{"id":32011,"date":"2003-09-12T00:00:00","date_gmt":"2003-09-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shiv-kumar-bhagat-vs-state-of-bihar-and-ors-on-12-september-2003"},"modified":"2018-12-26T19:15:03","modified_gmt":"2018-12-26T13:45:03","slug":"shiv-kumar-bhagat-vs-state-of-bihar-and-ors-on-12-september-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shiv-kumar-bhagat-vs-state-of-bihar-and-ors-on-12-september-2003","title":{"rendered":"Shiv Kumar Bhagat vs State Of Bihar And Ors on 12 September, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Shiv Kumar Bhagat vs State Of Bihar And Ors on 12 September, 2003<\/div>\n
Bench: N. Santosh Hegde, B.P. Singh<\/div>\n
           CASE NO.:\nAppeal (civil)  7269 of 2003\n\nPETITIONER:\nSHIV KUMAR BHAGAT\n\nRESPONDENT:\nSTATE OF BIHAR AND ORS.\n\nDATE OF JUDGMENT: 12\/09\/2003\n\nBENCH:\nN. SANTOSH HEGDE & B.P. SINGH\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
2003 Supp(3) SCR 654<\/p>\n
The following Order of the Court was delivered : B.P. SINGH, J. : Special
\nLeave granted.\n<\/p>\n
We have have heard counsel for the parties at length. In this appeal the
\nappellant has impugned the judgment and order of the High Court of
\nJudicature at Patna dated 13.8.2002 in CWJC No. 7075 of 2002. The High
\nCourt while allowing the writ petition filed by respondent No. 5 herein
\nquashed the letter of the Collector dated 13.2.2002 recommending the grant
\nof one additional licence for wholesale vending of Indian Made Foreign
\nLiquor (hereinafter referred to as “IMFL”) for the district of Begusarai on
\nthe ground that the same was not made in accordance with Rule 45 of the
\nBihar and Orissa Excise Rules (hereinafter referred to as the “Rules”)
\nframed under Section 89 of the Bihar Excise Act, 1915 (hereinafter referred
\nto as “the Act). It held that since the recommendation made by the
\nCollector was not in accordance with the Rules, the recommendation could
\nnot be acted upon and accepted by the Commissioner by his order dated
\n18.3.2002.\n<\/p>\n
The facts of the case in so .far as they are relevant for the disposal of
\nthis appeal are as follows :\n<\/p>\n
The Collector of Begusarai sent a proposal to the Excise Commissioner for
\nsanction of one additional wholesale liquor licence in favour of the
\nappellant herein vide his proposal dated 22.1.2002. The said proposal of
\nthe Collector was turned down by the Commissioner and returned to him since
\nin the opinion of the Commissioner the Collector was not justified in
\nmaking a recommendation for an additional licence for any particular
\nperson. He directed that a proposal may be made for sanctioning an
\nadditional wholesale licence looking to the demand and public need
\njustifying such additional wholesale licence. Thereafter, the Collector,
\nBegusarai made another recommendation dated 13.2.2002 for the sanction of
\none additional wholesale licence for the sale of IMFL for the district of
\nBegusarai. In his letter addressed to the Excise Commissioner, he stated
\nthat by grant of one additional wholesale licence there will be
\naugmentation of licence revenue in the district of Begusarai and the same
\nwas also conducive to promote competition which could increase the
\ncollection of revenue in view of the increase in the consumption of IMFL.
\nThe respondent No. 5 herein was the only wholesale licence holder for IMFL
\nin the district of Begusarai. The husband of the aforesaid respondent was
\ngranted such a licence in the year 1984 which licence stood transferred to
\nrespondent No. 5 upon his death. The respondent No. 5 filed a petition
\nbefore the Excise Commissioner, which was registered as Excise Case No. 16
\nof 2002, against the proposal of the Collector for sanction of one
\nadditional wholesale licence for IMFL. The Excise Commissioner by his order
\ndated 18.3.2002 rejected the objection of respondent No. 5 which is annexed
\nas annexure P-2. It appears from the said Order that he called for the
\ncomments of the Collector, Begusarai, as also the relevant administrative
\nfile from the excise office and after hearing the parties came to the
\nconclusion that in the facts and circumstances of the case the grant of an
\nadditional licence for wholesale trade in IMFL was justified, keeping in
\nview the provisions of Rule 45 of the Rules. He observed that under the
\naforesaid Rules an additional licence may be granted considering the demand
\nof the area in question. It appears that before the Excise Commissioner
\nrespondent No. 5 contended that since she had the sole wholesale licencee
\nfor the district of Begusarai since 1984 and had been working with dilignce
\nand executing her work satisfactorily giving huge amount to the State by
\nway of excise revenue, there was no need to grant an additional wholesale
\nlicence.\n<\/p>\n
The Excise Commissioner after perusing the records produced before him by
\nthe Collector, Begusarai and the comments of the Collector found that since
\n1984 there was only one wholesale licencee operating in the district. Since
\nthen there had been considerable increase in the demand of IMFL. He also
\nnoticed the report of the Collector about the monopoly which had been
\ncreated in this regard. Having regard to the fact that there was increase
\nin demand for IMFL consequent to the increase in the population and
\neconomic potentiality, he found justification in the recommendation made by
\nthe Collector for the grant of an additional wholesale licence for the
\ndistrict of Begusarai. After taking into consideration all relevant
\nconsiderations the Excise Commissioner disposed of excise case before him
\nwith, inter alia, the following directions :\n<\/p>\n
“(i) In the district of Begusarai now there is only one wholesale license
\nand in addition to this one additional license is sanctioned.\n<\/p>\n
(ii) It is made clear that the additional licence is not sanctioned for any
\nindividual person. The Collector will consider the principle of equality
\nbefore granting the licence and will follow the prescribed procedure.\n<\/p>\n
(iii) For this he will make publication in the newspaper and will consider
\nthe applications independently and with equality. I am making clear here
\nthat in this procedure the Collector, Begusarai will not make any special
\ncondition in favour of an individual and\/ or at the same time he will not
\nconsider the case of other applicants without previous biasness.”\n<\/p>\n
Prusuant to the order of the Excise Commissioner, the Collector issued a
\ngeneral notice in the newspapers on 28.3.2002 inviting applications from
\ninterested parties for the settlement of sanctioned wholesale licence for
\nthe sale of IMEL for the district of Begusarai for the year 2002-2003. The
\nconditions for the settlement and the documents required to be submitted
\nalong with the application have been detailed in the notice. Respondent No.
\n5 herein, the existing wholesale licencee preferred a revision before the
\nBoard of Revenue being Board Revision Case No. 57 of 2002 challenging the
\norder of the Commissioner dated 18.3.2002 sanctioning an additional
\nwholesale licence for wholesale vending of IMFL. The said Revision Petition
\nwas admitted, but the stay prayed for was refused. Respondent No. 5
\npurported to file a Title Suit on 29.3.2002 but the same was not entertaind
\nby the Court of Munsif, Begusarai for non-compliance with Section 80 of the
\nCode of Civil Procedure.\n<\/p>\n
Respondent No. 5 then filed a writ petition before the High Court of
\nJudicature at Patna on 8.4.2002 being CWJC No. 4607 of 2002 challenging the
\norder of the Excise Commissioner aforesaid, but in view of the pendency of
\nthe Revision before the Board of Revenue, the High Court disposed of the
\nwrit petition with a direction to the Board of Revenue to dispose of the
\nRevision, and further directed that till disposal of the Revision no
\nfurther action may be taken parsuant to the order of the Excise
\nCommissioner dated 18.3.2002.\n<\/p>\n
The Revision Petition came up before the Board of Revenue for consideration
\nand by order dated 21.6.2002, Ex. P-5, the learned Member, Board of Revenue
\ndismissed the Revision Petition. Though it was contended on behalf of the
\nappellant herein that Rule 45 was not applicable to the case in hand, the
\nBoard of Revenue dicided the Revision Petition on the assumption that Rule
\n45 applied to the facts of the case, and further held that the said Rule
\nwas complied with. The Board of Revenue by a detailed order considered the
\nsubmissions urged before it by the appellant and the respondent No. 5
\nherein as also the Government pleader who appeared on behalf of State of
\nBihar and its authorities. He also perused the comments of the Collector
\nwhich had been called for giving year-wise break-up of the consumption of
\nIMFL. He also considered the report of the Excise Superintendent, Begusarai
\ndated 10.6.2002. From the material placed before it, the Board of Revenue
\nfound that while in the year 1985-1986 the demand of IMFL was only 12655.76
\nL.P.L., the same increased to 265643.32 L.P.L. in the year 2001-2002, and
\ntill May, 2002 the consumption was as high as 35286.25 L.P.L. Based on
\nthese figures the learned Government Pleader in view of the increased
\ndemand for IMFL, submitted that there was justification to grant an
\nadditional licence for the district of Begusarai. The report of the
\nCollector also disclosed that while there were 7 wholesale IMFL licencees
\nin the district of Patna, 5 in the district of Muzaffarpur, 3 in the
\ndistricts of Saran, Bhagalpur, Darbhanga and Pumea, 4 in East Champaran and
\n2 in the districts of West Champaran, Samastipur, Madhubani and Sitamarhi,
\nthere was only one wholesale licencee in the district of Begusarai. The
\nBoard was, therefore, satisfied that having regard to the tremendous
\nincrease in the consumption of IMFL, there was justification for the grant
\nof one additional wholesale licence for the sale of IMFL for the district
\nof Begusarai. There was, therefore, no justification for interference with
\nthe order of the Excise Commissioner. On these findings the Revision
\nPetition preferred by the respondent No. 5 was rejected.\n<\/p>\n
Respondent No. 5 thereafter filed a writ petition before the High Court of
\nJudicature at Patna which was allowed by the High Court giving rise to the
\ninstant appeal.\n<\/p>\n
Before the High Court the appellant herein contended that the sole purpose
\nof objecting to the grant of an additional licence by respondent No. 5 was
\nto maintain her monopoly. In view of the increased demand over the years,
\nthere was justification for grant of an additional wholesale licence for
\nthe district of Begusarai and that more than one wholesale licence had been
\ngranted in the adjacent and surrounding districts. The respondent No. 5 in
\nher writ petition also challenged the grant of a wholesale licence in
\nfavour of appellant herein, since the Collector in the meantime had granted
\na wholesale licence in favour of the appellant herein on 29.6.2002 after
\ndismissal of the Revision Petition by the Member, Board of Revenue. The
\nHigh Court found that though the authorities in granting the licence to the
\nappellant had acted fairly and had followed the procedure therefor, and the
\ncharge of unfairness etc. made against the Authorities was not justified,
\nthe grant utimately made in favour of the appellant was illegal inasmuch as
\nthe Collector had not complied with the requirement of Rule 45 of the Rules
\nwhile making a recommendation to the Excise Commissioner for the grant of
\nan additional wholesale licence. Consequently, such a recommendation could
\nnot be accepted by the Excise Commissioner.\n<\/p>\n
The short question which arises for our consideration in this appeal is
\nwhether the sanction of one additional wholesale licence for wholesale
\ntrade in IMFL for the district of Begusarai by the Commissioner on the
\nbasis of the recommendation made by the Collector is bad for non-compliance
\nwith Rule 45 of the Rules. Counsel for the appellant submitted before us
\nthat the High Court fell into an error in holding that Rule 45 was not
\ncomplied with. The facts of this case would disclose that before the
\nCommissioner of Excise sanctioned one additional wholesale licence, he had
\nsatisfied himself one the basis of the comments of the Collector and the
\nmaterial placed before him that the requirement of Rule 45 were fully
\ncomplied with. Since, the recommendation of the Collector required the
\napproval of the Commissioner for gaining finality, before a final order was
\npassed by the Commissioner all the relevant material had been placed before
\nhim which he took into consideration and on being satisfied that the
\nrecommendation was justified, he sanctioned one additional wholesale
\nlicence for trade in IMFL for the district of Begusarai. He further
\nsubmitted that in view of the provisions of Section 41 of the Act, even if,
\nthere was any technical defect, or ommission in the proceedings taken prior
\nto the grant of the wholesale licence, such technical defect or
\nirregularity or omission did not invalidate the licence.\n<\/p>\n
It is necessary at the stage to notice some of the relevant provisions of
\nthe Act. Sub-section (1) of Section 5 of the Act provides that the Board of
\nRevenue may by Notification declare with respect either to the whole of the
\nState or to any specified local area, what quantity of any intoxicant
\nshall, for the purpose of the Act be the limit of a retail sale. Sub-
\nsection (2) provides that the sale of any intoxicant in any quantity in
\nexcess of the quantity declared in respect thereof under sub-section (1)
\nshall be deemed to be a wholesale.\n<\/p>\n
Chapter 6 of the Act deals with Licences, Permits and Passes. Sections 34
\nand 35 of the Act are relevant which provide as folows :\n<\/p>\n
“34. Grant of licences by Collector and submission of list, objections and
\nopinions in Excise Commissioner. – (1) After the date prescribed for the
\nreceipt of objections and opinions submitted under Section 33, the
\nCollector shall consider the same, and shall, if necessary, revive the said
\nlist, and shall decide for what places licences for the retail sale of
\nspirit shall be granted, and may, in his discretion, grant licences
\naccordingly.\n<\/p>\n
(2) The Collector shall then forthwith submit the said list, as so revised,
\nand the said objections and opinions, and his own opinion to the Excise
\nCommissioner.\n<\/p>\n
35. Finality of decision of Excise Commissioner. – The Excise Commissioner
\nshall consider the list, objections and opinions so sent to him, and may
\nmodify or annul any order passed or licence granted by the Collector and,
\nnotwithstanding anything contained in Section 8, his order shall be final.”\n<\/p>\n
Section 41 of the Act reads as under :\n<\/p>\n
“41. Technical defects, irregularities and omissions. – (1) No licence
\ngranted under this Act shall be deemed to be invalid by reason merely of
\nany technical defect, irregularity or omission in the licence or in any
\nproceedings taken prior to the grant thereof.\n<\/p>\n
(2) The decision of the Excise Commissioner as to what is a technical
\ndefect, irregularity or imission shall be final.\n<\/p>\n
It is also necessary to notice some of the Rules which are relevant namely
\nRules 44, 45 and 46 which are as follows :\n<\/p>\n
“44. Licences for the wholesale or retail vend of excisable articles may be
\ngranted for one year, from the 1st April to the 31st March, subject to the
\nfollowing provisions :\n<\/p>\n
(1) Licences for the retail vend of country spirit, foreign liquor and
\nspiced country spirit may be granted for any number of years up to three
\nyears, beginning on the 1st April, in cases where the Excise Commissioner
\nconsiders this advisable.\n<\/p>\n
(2)  If any licence be granted during the course of the financial year, it
\nshall be granted only up to the 31st March, next following.\n<\/p>\n
(3) Season licences for the sale of either fresh or fermented tariff may be
\ngranted for periods fixed by the Collector.\n<\/p>\n
(4) Temporary licences may be granted to provide for the supply of
\nexcisable articles on temporary and special occasions e.g., fairs,
\nregimental camps of exercises, etc., and shall be limited to the period
\nduring which such temporary or special occasions last.\n<\/p>\n
(5) Wholesale licences for the supply and sale of excisable articles may be
\ngranted for any numbers of years not exceeding five, as the Board may
\ndecide in each case.\n<\/p>\n
45.  The number of licences which may be granted for any local area shall
\nbe regulated by the needs of the people of that area, and no licence for
\nthe sale of any excisable article in any local area shall be granted unless
\nit is required either to meet an ascertained demand for such article or to
\ncounteract supplythrough illicit sources.\n<\/p>\n
46.  The general principles below stated shall be borne in mind, and shall
\nbe applied by Collectors, so far as possible, in fixing the number of
\nlicences to be granted for the retail sale of liquor for consumption on the
\npremises of the vendor :\n<\/p>\n
Liquor shops should not be so sparsely distributed as to give to each a
\npractical monopoly over a considerable area, or at least such a monopoly
\nshould only be allowed when prices can be effectively fixed. At the same
\ntime two or more shops should not be equally convenient to a considerable
\nnumber of persons. In other words, liquor shops need not be so limited in
\nnumber as to make it practically impossible for a resident in a particular
\narea to get his liquor except from one particular shop; but it should only
\nbe possible for him to get his liquor from two different shops at the cost
\nof considerable inconvenience, and he ought to have as little freedom of
\nchoice in the matter as possible.”\n<\/p>\n
Sub-section (1) of Section 5 of the Act. “5.    Definition of retail and
\nwholesale. –\n<\/p>\n
(1) The Board may, by notification, declare, with respect either to the
\nwhole of State or to any specified local area, and as regards purchasers
\ngenerally or any specified class of purchasers, and either generally or for
\nany specified occasion, what quantity of any intoxicant shall for the
\npurposes of this Act, be the limit of a retail sale.”\n<\/p>\n
It appears from Chapter VI of the Act that the provisions therein contained
\ndeal with grant of licence for the retail sale of spirit etc. The
\nprovisions of Chapter VI do not deal specifically with the grant of licence
\nfor wholesale vending in IMFL. However, Rule 44 refers to licences for the
\nwholesale or retail vend of excisable articles and sub-rule (5) provides
\nthat wholesale licences for the supply and sale of excisable article may be
\ngranted for any number of years not exceeding five as the Board may decide
\nin each case. Rule 45 refers to the number of licences which may be granted
\nfor any local area but there is no reference of wholesale licences.
\nSimilarly, Rule 46 lays down the general principles for fixing the number
\nof licences to be granted for the retail sale of liquor for consumption on
\nthe premises of the vendor. However, it appears that the statutory
\nauthorities under the Act as well as the Board of Revenue have proceeded on
\nthe assumption that the provisions of Chapter VI of the Act and those of
\nRules 44, 45 and 46 apply as much to the grant of licence for retail sale
\nas for the grant of wholesale licence. We find that there is no specific
\nprovision in the Act providing a procedure for the grant of wholesale
\nlicence to vend IMFL. Apparently, for the grant of wholesale licence to
\nvend liquor, the same Rules are followed as are prescribed for the grant of
\nlicence for retail sale. We also, therefore, proceed on the same
\nassumption.\n<\/p>\n
Section 34 of the Act which we have quoted earlier obliges the Collector to
\nconsider the objections and opinions submitted under Rule 33. After
\nconsidering the same he may revive the existing list and decide for what
\nplaces licences for the retail sale of spirit shall be granted and may, in
\nhis discretion grant licences accordingly. However, sub-section (2) obliges
\nhim to submit forthwith the said list along with objections and his own
\nopinion to the Excise Commissioner. The Excise Commissioner is required by
\nSection 35 to consider the matters placed before him by the Collector under
\nSub-section (2) of Section 34. He may, thereafter, modify or annul any
\norder passed or licence granted by the Collector. The order of the
\nCommissioner as declared by Section 35 shall be final. Reading two
\nprovisions together, it is apparent that after considering the objections
\nand opinions submitted, the Collector is required to finalize the list with
\nregard to the grant of licences and he may in discretion grant licences
\naccordingly. However, his decision is not final and the matter is required
\nto be further considered by the Commissioner of Excise. For this purpose,
\nthe Collector is obliged to place before the Excise Commissioner the
\nobjections and opinions received by him together with his own opinion.
\nThese matters have then to be considered by the Commissioner and it is
\nwithin his competence to modify or annul any order passed or licence
\ngranted by the Collector. The decision of the Commissioner is made final.\n<\/p>\n
So far as the Rules are concerned, Rule 45 provides that the number of
\nlicences which may be granted for any local area shall be regulated by the
\nneeds of the people of that area. No licence for the sale of any excisable
\narticle in any local area shall be granted unless it is required either to
\nmeet an ascertained demand for such article or to counteract supply through
\nillicit sources. These two considerations are to some extent co-related
\ninasmuch as supply through illicit sources may increase if supply through
\nthe authorised sources is not sufficient to meet the demand. Thus, the
\nprimary consideration appears to be that a licence may be granted, if the
\nneeds of the people of that area, so demand. In sum and substance, both the
\nCollector as well as the Commissioner while granting licence for the retail
\nsale or wholesale vend of IMFL must keep in mind the needs of the people of
\nthe area concerned. If the supply of IMFL through the existing licencee is
\nnot adequate to meet the demand, they may be justified in granting an
\nadditional licence or licences. The true test, therefore, is whether the
\nadditional licence has been granted having regard to the needs of the
\npeople of that area with a view to counteract supply through illicit
\nsources. The use of the words “to meet an ascertained demand for such
\narticle” only means that the authorities must make an assessment as to
\nwhether the demand for the excisable article in question has increased and
\nwhether supply of such excisable article, in the instant case IMFL,can be
\nmet with the existing licencees. The ascertainment of demand is not
\nrequired to be made with mathematical precision. It is sufficient if the
\nauthorities have applied their mind to the extent of need of the people and
\nthe adequacy of the arrangement to meet such need through existing
\nlicencees. For this purpose, no doubt, they must take into account the
\nincreased consumption of the excisable article concerned in any local area.\n<\/p>\n
As we have noticed earlier, the Collector in his recommendation for the
\ngrant of additional wholesale licence no doubt referred to the augmentation
\nof licence revenue and the need to provide competition in view of increase
\nin consumption of liquor. In his recommendation he had not detailed the
\nmaterial on the basis of which he had come to the conclusion that an
\nadditional licence is required to meet the needs of the people of the area.
\nBut it is quite evident that when called upon to submit his comments, he
\nhad disclosed the material on the basis of which he had recommended the
\ngrant of an additional licence. The Excise Commissioner had also called for
\nthe comments of the Excise Superintendent and the relevant file for his
\nconsideration. Similarly, before the Board of Revenue as well, the
\nCollector had placed all the relevant material to satisfy him that the
\nrecommendation made by him for grant of additional licence was on the basis
\nof relevant considerations under Rule 45 of the Rules. The comments of the
\nCollector and the material placed by him before the Commissioner and other
\nmaterial placed before the Commissioner were duly considered by him before
\ngranting his approval to the recommendations made by the Collector. The
\nfactual position as to the tremendous increase in consumption of IMFL was
\nbefore him and it appeared thereform that since 1984, there had been a
\nsteep increase in the consumption of IMFL and yet there was only one
\nwholesale licencee for vending of IMFL in the entire district. It also
\nappeared from the material placed before him that in other comparable and
\nneighbouring districts there were at least two and in some as many as seven
\nwholesale licencees. Under these circumstances and on such material as were
\nplaced before the Commissioner, if he came to the conclusion that the grant
\nof an additional licence was justified, we cannot find fault with his
\ndecision. In the decision making process he has taken into consideration
\nonly relevant considerations and, therefore, the conclusion reached by him
\ncannot be faulted. The High Court found that Rule 45 had not been complied
\nwith in as much as in the recommendation made by the Collector, he had not
\nmentioned that an additional licence should be granted since there was a
\nsteep rise in the demand for IMFL, or that it was so necessary to
\ncounteract supply through illicit sources. The letter simply referred to
\nthe increase in State revenue by way of licence fee and promotion of
\ncompetition in view of the increased demand for IMFL. The High Court was of
\nthe view that the letter of recommendation made by the Collector should in
\nitself be complete and must show that all considerations relevant under
\nRule 45 have been taken into account while making a recommendation. Since,
\nthe letter of the Collector making the recommendation did not contain these
\nparticulars, he could not be permitted to supplement his recommendation by
\nthe comments submitted by him before the Commissioner of Excise.\n<\/p>\n
In our view, the High Court was not justified in reaching this conclusion.
\nThe Act and the Rules do not provide any particular from in which
\nrecommendation has to be made by the Collector for the grant of additional
\nwholesale licence to vend IMFL.The Act and the Rules only provide the
\nprocedure to be followed and the matters to be taken into consideration
\nwhile granting an additional licence. The Act also makes it clear that the
\nfinal decision has to be taken by the Commissioner and the recommendation
\nof the Collector is subject to the final decision of the Commissioner of
\nExcise. Any decision taken by the Collector, and any licence granted by
\nhim, is expressly made subject to the final decision of the Commissioner of
\nExcise. In view of such legal provisions, for successfully challenging the
\ngrant of additional licence by the Commissioner of Excise and the
\nrecommendation of the Collector, it must be shown that the Collector and,
\nor, the Commissioner while granting the additional licence had not acted on
\nthe basis of relevant considerations. It matters little whether the
\nrecommendation made by the Collector incorporated the matterial on the
\nbasis of which he had made a recommendation for the grant of an additional
\nlicence. He was only making a recommendation and not taking a decision. In
\nany event, while considering the recommendation made by the Collector, the
\nCommissioner called for the relevant record and the comments of the
\nCollector, and all the relevant material was actually placed before the
\nCommissioner for his consideration. On the basis of such relevant material
\nhe took a final decision to approve the grant of additional licence. Thus,
\nthe recommendation of the Collector, which in any event was only a
\nrecommendation and not a final decision, was approved by the Commissioner
\nwho was authorized to take a final decision, only after application of mind
\nto all relevant considerations by the decision making authority. We are of
\nthe opinion that the requirements of the provisions of the Act and Rule 45
\nhave been complied with. We must, therefore, reject the submission urged
\nbefore us by counsel for respondent No. 5 that the grant of additional
\nlicence was bad for non-compliance with Rule 45 of the Rules.\n<\/p>\n
Counsel for respondent No. 5 then submitted that the matter has become
\ninfructuous since the licence granted to the appellant was only valid till
\n31st March, 2003. Th period of the licence having run out, there was
\nnothing left to be decided in this Appeal, which also has become
\ninfructuous. This submission is also misconceived. So far as the grant of
\nwholesale licence to vend IMFL is concerned, under the Rules the same may
\nbe granted for any number of years not exceeding five years, as the Board
\nmay decide in each case. It is not as if each year a fresh notice is issued
\nfor the grant of wholesale licence. In fact, respondent No. 5, as admitted
\nby her, holds a wholesale licence since the year 1984, and the same is
\nbeing renewed from time to time. In these circumstances, there is no
\njustification for the argument that the period for which the licence was
\nissued to the appellant has run out and the appeal has become infructuous.\n<\/p>\n
He then submitted that a fresh ascertainment may be made since the earlier
\nascertainment was not objective as it was based solely on the report of the
\nCollector, and no materials have been placed before the Commissioner by the
\nExcise Officers. We find no merit in this submission. As we have noticed
\nearlier in this judgment, though not mentioned in his letter of
\nrecommendation, the Collector had made an ascertainment of the needs of the
\npeople of the area in question and had come to the conclusion that there
\nhad been a tremendous increase in the consumption of IMFL which justified
\nthe grant of an additional licence for the wholesale vend of IMFL. The
\nyear-wise figures relating to increase in consumption of IMFL for the area
\nconcerned were ascertained by him and the same was placed before the
\nCommissioner for his consideration. The criticism, therefore, that the
\nascertainment was not based on an objective consideration is not justified.
\nMoreover, the Commissioner had called for the relevant administrative file
\nfrom the Excise Office and he had also perused the same. After perusing the
\nrecords of the Collector, Begusarai, the comments sent by him, and the
\nadministrative file of the Excise Office, he came to the conclusion, having
\nregard to the considerations enumerated in Rule 45 of the Rules, that there
\nwas need for granting an additional wholesale licence. Obviously, the
\nCommissioner found that the Collector had placed before him all the
\nrelevant material on the basis of which he was justified in making the
\nrecommendation.\n<\/p>\n
Even assuming that there was some technical defect by reason of some
\nomission on the part of the Collector, inasmuch as he did not mention all
\nthe relevant facts in the letter of recommendation itself, the same cannot
\ninvalidate the licence granted by the Excise Commissioner. The omission to
\nmention all the relevant material, which in fact existed, in the letter of
\nrecommendation itself, was at best a technical defect or omission and did
\nnot vitiate his recommendation in view of the provisions of Section 41 of
\nthe Act.\n<\/p>\n
In the result, this appeal is allowed, the judgment and order of the High
\nCourt is set aside. The writ petition filed by the respondent No. 5 is
\ndismissed. There will be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Shiv Kumar Bhagat vs State Of Bihar And Ors on 12 September, 2003 Bench: N. Santosh Hegde, B.P. Singh CASE NO.: Appeal (civil) 7269 of 2003 PETITIONER: SHIV KUMAR BHAGAT RESPONDENT: STATE OF BIHAR AND ORS. DATE OF JUDGMENT: 12\/09\/2003 BENCH: N. SANTOSH HEGDE & B.P. SINGH JUDGMENT: JUDGMENT 2003 Supp(3) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-32011","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nShiv Kumar Bhagat vs State Of Bihar And Ors on 12 September, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shiv-kumar-bhagat-vs-state-of-bihar-and-ors-on-12-september-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shiv Kumar Bhagat vs State Of Bihar And Ors on 12 September, 2003 - 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