Case Note & Summary
The petitioner, Nagpur Distillers, a partnership firm holding licences for manufacturing country liquor (CL-I) and potable liquor (PLL), decided to convert itself into a private limited company and sought transfer of the licences to the new entity. It applied to the Commissioner of State Excise, Mumbai, for the procedure. After an exchange of correspondence, the government, on 30-3-2002, permitted the transfer. The petitioner deposited the privilege fees at the rates applicable for the year 2001-2002, amounting to Rs. 1,48,505 for CL-I and Rs. 6,75,000 for PLL, on 30-3-2002, and informed the Commissioner. Meanwhile, the fees for transfer of such licences had been enhanced for the year 2002-2003 by a notification dated 10-1-2002. On 4-5-2002, the Commissioner informed the petitioner that privilege fees must be paid at the new rates, effective from 1-4-2002, and that the rate prevailing at the time of actual amendment of the licence would apply. The petitioner objected, contending that since the permission was granted and fees paid before 1-4-2002, the old rates should apply. The petitioner made representations to the Minister, but the Commissioner reiterated his stand on 11-3-2005, leading the petitioner to file the writ petition in April 2005. The core legal issues before the court were two preliminary objections raised by the respondents: whether the writ petition was barred by delay and laches, and whether it was not maintainable due to the availability of an alternate remedy of appeal under Section 137(2) of the Bombay Prohibition Act, 1949. The respondents argued that the cause of action arose in May 2002 and the petition filed nearly three years later suffered from inordinate delay, relying on M/s. Rup Diamonds v. Union of India. The petitioner countered with Dehri Rohtas Light Railway Company Limited v. District Board, Bhojpur, where the Supreme Court held that delay is not a rule of law but a matter of discretion, and the real test is whether a parallel right has been created. The court, applying that principle, held that no third-party right had been created and the petitioner had been diligently pursuing the matter, so the petition could not be barred on the ground of delay and laches. On the alternate remedy point, the respondents cited Titaghur Paper Mills Co. Ltd. v. State of Orissa to argue that the statutory appeal must be exhausted. The petitioner relied on Gulabsing Anantramsingh Thakur v. Collector, Amravati, where this court had observed that the mere existence of an alternate remedy is no absolute bar, especially if grounds like violation of natural justice are raised. The court was exploring these contentions when the record of the judgment ends, and no final determination on the maintainability or the merits of the fee dispute is reached in the provided text.
Headnote
A) Civil Procedure - Writ Jurisdiction - Delay and Laches - No specific act, general principles - The court held that delay in filing a writ petition is not a rigid rule of law but a matter of judicial discretion; the real test is whether a parallel right has been created in the meantime and whether the delay is attributable to laches or negligence of the petitioner. In this case, the petitioner had been corresponding with authorities since 2002 and no third-party rights had intervened; hence, the delay was not fatal. Relied on Dehri Rohtas Light Railway Company Limited v. District Board, Bhojpur, AIR 1993 SC 802. Distinguished M/s. Rup Diamonds v. Union of India, (1989) 2 SCC 356. (Paras 10-12) B) Bombay Prohibition Act, 1949 - Alternate Remedy - Section 137(2) - Exhaustion of Statutory Appeal - The court examined whether the writ petition should be dismissed for failure to avail the appeal provided under Section 137(2) of the Bombay Prohibition Act, 1949. The petitioner argued that the mere existence of an alternate remedy is no absolute bar and that the court may entertain a writ if grounds such as violation of natural justice exist, citing Gulabsing Anantramsingh Thakur v. Collector, Amravati, 1996(1) Mh.L.J. 549. The respondents relied on Titaghur Paper Mills Co. Ltd. v. State of Orissa, AIR 1983 SC 603, to contend that the statutory remedy must be exhausted. The court was in the process of evaluating these contentions when the judgment breaks off. (Paras 13-15)
Issue of Consideration
Whether the writ petition is maintainable in view of delay and laches, and failure to exhaust statutory appeal under Section 137(2) of Bombay Prohibition Act, 1949
Final Decision
Decision not clearly stated
Law Points
- Legal points not extracted
- Rule relating to delay and laches is not a rule of law but one of practice based on sound and proper exercise of discretion
- real test is whether petitioner should come to writ court before a parallel right is created and that lapse of time is not attributable to laches or negligence
- where circumstances justifying the conduct exists illegality which is manifest cannot be sustained on sole ground of laches
- mere existence of alternate remedy is no absolute bar for filing a writ petition
