- (1.) THIS appeal has been preferred by the State of Jharkhand against the order dated 4.12.2007 passed by the learned Single Judge in W.P.(C) No. 2234 of 2007 alongwith W.P.(C) No. 2268 of 2007 whereby he was pleased to dismiss the writ petitions and thus upheld the order passed by the Member, Board of Revenue, wherein it was held that the respondent No. 2 was not liable to pay the licence fee for the period during which it had surrendered the licence for the country liquor shop.
(2.) TO appreciate the controversy, it is relevant to state that the respondent No. 2 had been granted licence for supply of country liquor along with supply of Indian Made Foreign Liquor (IMFL) and although the supply was to be made for a period of three years, there was a specific agreement between the parties that the licence would be renewed every year and licence fee for each year would be paid by the licensee. Admittedly, the respondent No. 2 used the licence for a period of two years in sofar as country liquor is concerned, but after the expiry of two years, the respondent No. 2 surrendered his licence for the supply of country liquor and as the licence had been surrendered, the licence fee was also not paid. But the District Collector, Ranchi vide order dated 22.3.2006 passed an order refusing to accept the surrender of licence by the respondent No. 2, on the ground that the licence for country liquor could not be accepted as the respondent No. 2 had not surrendered his licence for IMFL and was surrendering only the licence for the country liquor. Consequently it was ordered that the respondent No. 2 is liable to pay the licence fee for the third year also, although the licence had been surrendered. The respondent No. 2 assailed the said order before the Member, Board of Revenue, Jharkhand and the Member, Board of Revenue was pleased to allow the application in favour of the respondent No. 2. The said order thereafter was assailed by the State of Jharkhand before the learned Single Judge by filing two writ petitions referred to hereinbefore and the learned single Judge was pleased to dismiss the writ petitions against which this appeal has been preferred. Mr. Dilip Kumar Prasad, JC to S.C. (L&C;) assailed the order passed by the learned Single Judge as also the Member, Board of Revenue and initially submitted that in view of Section 44 of the Bihar Excise Act, 1915, the respondent No. 2 could not have been allowed to surrender his licence only for country liquor as he was retaining the licence of IMFL and in this context he invited the attention of this Court to Section 44 of the Bihar Excise Act, 1915, which reads as follows: Surrender of licence. (1) Any holder of a license granted under this Act to sell an intoxicant may, unless his licence is liable to cancellation or suspension under Section 42, surrender the same - (a) on the expiration of one month's notice in writing given by him to the Collector of his intention to surrender it, and (b) on payment of the fees payable for the licence for the whole period for which it would have been current but for such surrender: Provided that, if the Excise Commissioner is satisfied that there is sufficient reason for the surrender of a licence, he may remit to the holder thereof the sum so payable on surrender, and any fees paid in advance or any portion of such sum or fees.(2) Sub -section (1) shall not apply in the case of a licence for the sale of any country liquor or intoxicating drug in the exercise of an exclusive privilege granted under Section 22.
(3.) LEARNED Government counsel relying upon Sub -section (2) of Section 44 submitted that in view of this provision, the respondent No. 2 could not have been permitted to surrender the licence for the country liquor.;