JUDGMENT : ( 1. ) THE petitioner was granted a licence in Form No. FL 1 in regard to a shop in Marhatal Jabalpur, for the period between 1-4-1984 and 31-3-1986. The licence fee pyable by the petitioner was Rs. 14,01,000. 00. We are unformed that 1/6 of the total licence fee being Rs. 2,33,000. 00 was deposited by the petitioner before starting the shop and the balance of the licence fee was to be deposited in monthly instalments of Rs. 58. 37s. 00. The petitioner was also required to furnish bank guarantee in the sum of Rs. 1,16,750. 00 to ensure regular payment of monthly instalments of the licence fee. It would be seen that the sum of Rs. 1,16,750. 00 represents the amount of two monthly instalments. ( 2. ) THE case of the petitioner is that the monthly instalments of the licence fee were paid by him regularly upto 31-8-1984, that on 31-10-1984, for reasons beyond his control and stated in the writ petition, the shop of the petitioner was burnt and looted; that by latter dated 7-11-1984, a copy whereof has been attached as Annexure IV to the writ petition, he surrendered his licence; that a copy of the said letter was also handed over in person to the Collector and District Excise Officer on 16-11-1984 and that the district Excise Officer, on behalf of the Collector, passed an order on the said application on 22-11-1984, a copy whereof has been attached as Annexure XIV to the writ petition. It has further been stated in the writ petition that the Collector also served on the petitioner a notice dated 9-11-1984, a copy whereof has been attached as annexure VII to the writ petition requiring him to show cause within three days of the receipt of the notice, as to why for non-payment of the monthly instalments of licence fee for the month of September to November 1984, his licence may not be cancelled and the shop may not be re-auctioned. It is on these allegations that the present writ petition has been filed for the following reliefs: "a. the Court be pleased: (i) to strike down Section 33 of the M. P. Excise Act, 1915 (Act No. II of 1915), as a piece of bad legislation and in the alternative, a judicious interpretation to meet the instant exigencies may be given; (ii) to quash Annexure VII dated 9-11-1984 demanding a sum of rs. 1,17,050. 00 from the petitioner; (ill) to quash Annexure XIV, dated 22-11-1984. B. The court be further pleased to issue a writ of mandamus directing the respondent No. 1 : (i) to refund the pre-paid tax amount of Rs. 2,33,260. 25 p. as arrived at in annesure XVI or any other sum to the petitioner; (ii) to refund the sum of Rs. 2,33,000. 00 deposited with the respondent at the time of the auction to the petitioner; (iii) to release the bank guarantee of the respondent No. 2. C. The court may be further pleased to pass such other orders as may be deemed fit under the circumstances of the case. " ( 3. ) RETURN has been filed on behalf of the respondents wherein it has been admitted that the letter dated 7-11-1984 referred to above, was received on 12-11-1984. It has also been admitted in the said return that a copy of the application dated 7-11-1984 was handed over personally to the Collecotor on 16-11-1984. From the material on record, it further appears that between 27-11-1984 and 15-2-1985, the shop was being run by the Government itself, whereas a fresh licence was granted to the father of the petitioner with effect from 15-2-1985 for the remainder of the period for which licence had been grated to the petitioner and the licence fee for this fresh grant was Rs. 6,70,000. 00. ( 4. ) IT has been urged by learned counsel for the petitioner that the surrender of the licence has been made by the petitioner as contemplated by Section 33 of the M. P. Excise Act, 1915 (hereinafter referred to as the Act) and that the said section was ultra-vires. 6,70,000. 00. ( 4. ) IT has been urged by learned counsel for the petitioner that the surrender of the licence has been made by the petitioner as contemplated by Section 33 of the M. P. Excise Act, 1915 (hereinafter referred to as the Act) and that the said section was ultra-vires. The only ground in support of the plea that Section 33 of the Act was ultra vires, is that it does not make any provision for such cases where the licence may have to be surrendered for no fault of the licensee in so far as the requirement of payment of the fee payable for the licence for the remainder of the period, consequent upon the surrender of the licence, is concerned. ( 5. ) HAVING heard learned counsel for the parties, we find it difficult to agree with this submission. Section 33 of the Act reads as hereunder : "33. Surrender of licences : (1) Any holder of a licence granted under this Act to sell an intoxicant, may surrender his licence on the expiration of one months notice in writing given by him to the Collector of his intention to surrender the same, and on payment of the fee payable for the licence for the remainder of the 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 surrendering a licence, he may remit to the holder thereof the sum so payable on surrender or any portion thereof. (2) Sub-section (1) shall not apply in the case of any licence granted under section 18. Explanation. The words holders of a licence, as used in this section, include a person whose tender or bid for a licence has been accepted, although he may not actually have received the licence. " Even a bare perusal of Section 33 will indicate that really no order is contemplated to be passed by the Collector either accepting or refusing to accept the surrender of a licence. " Even a bare perusal of Section 33 will indicate that really no order is contemplated to be passed by the Collector either accepting or refusing to accept the surrender of a licence. Section 33 (1) of the Act enables a licensee to surrender his licence on the expiration of one months notice in writing given by him to the Collector of his intention to surrender and on payment of the fee payable for the licence for the remainder of the period for which it would have been current but for such surrender. After the requirement of giving one months notice, coupled with the surrender of the licence and payment of the fee for the remainder period, as contemplated by Section 33 (1) of the Act is fulfilled by the licensee, the licence stands surrendered What has been urged by learned counsel for the petitioner is that a surrender cannot be effective unless the fee payable for the licence for the remainder of the period has been paid by the licensee and since this condition has been made of universal application, the provision of Section 33 of the Act was ultra vires. Suffice it to say so far as this submission is concerned, that this argument ignores the proviso to Section 33 (1) of the Act according to which a high Officer of the rank of Excise Commissioner, has been given the power to remit to the holder of the licence the sum payable on surrenderor any portion thereof if he is satisfied that there is sufficient cause for surrendering the licence. The proviso, in our opinion, amply safeguards the situation and mitigates the hardship contemplated by learned counsel for the petitioner. We accordingly find it difficult to agree with the submission made by learned counsel for the petitioner that Section 33 of the Act is ultra vires. ( 6. ) SO far as the prayer for quashing the notice date 9-11-1984 is concerned, suffice it to point out that it is just a notice to show case as to why the licence of the petitioner may not be cancelled and the shop may. not be re-auctioned for non-payment of the monthly instalments of the licence fee for the months of September to November 1984. not be re-auctioned for non-payment of the monthly instalments of the licence fee for the months of September to November 1984. Since the notice only requires the petitioner to show cause the proper course for the petitioner was to have shown cause, however, since the said notice does not suffer from any patent lack of jurisdiction, it does not deserve to be quashed in the writ petition. ( 7. ) AS regards quashing of the order dated 22-11-1984, a copy whereof has been sled as Annexure XIV to the writ petition which according to the learned counsel for he petitioner is tantamount to dismissing the application made under section 33 of the act for surrender of the licence, it may be pointed out, as already noticed above, that section 33 (1) of the Act really does not contemplate the passing of an order. it is true that in the instant case, the petitioner had surrendered the licence simultaneously with his application dated 7-11-1984 which according to the requirement of Section 33 (1) of the Act, ought to have been done after one month of the service of the notice, but in our opinion, on that score alone, surrender of the licence could not be denied to the petitioner. At best, the surrender of the licence could have been taken to be effective after one month of the receipt of the notice in writing. In this connection, a further circumstance which will have to be kept in mind is that even according to the respondents, they had taken over the shop and had run it between 27-11-1984 and 15-2-1985. ( 8. ) ON the facts of the instant case, therefore, it is apparent that the requirement of the first part of Section 33 (1) of the Act was substantially complied with, namely, that the licensee had surrendered his licence by giving a notice in writing. Unless, therefore, remittance was granted by the Excise Commissioner in exercise of the power conferred on him by the proviso to Section 33 (1) of the Act, the only thing which remained to be done by the Collector was to enforce payment of the fee payable for the licence for the remainder of the period for which it would have been current but for such surrender. Section 33 of the Act does not contemplate any procedure for invoking jurisdiction of the Excise Commissioner by the licensee for grant of remittance as contemplated by the proviso to Section 33 (1) of the Act. ( 9. ) ON the plain reading of Section 33 (1) of the Act, therefore, what transpires is that if the notice given by the licensee makes out a case for remittance of the licence fee, as contemplated by the proviso to Section 33 (1) of the Act, the Collector has to forward the matter to the Excise Commissioner enabling him to exercise power conferred on him by the said proviso. In that event, the Excise Commissioner would have to record a finding as to whether sufficinet reason had been made our or not for remittance of the licence fee as contemplated by the proviso. It goes without saying that since the power to grant remittance has been conferred on the Excise Commissioner by the proviso on his satisfaction that there was sufficient reason for surrendering a licence, such power shall have to be exercised, to ensure fair-play, after giving the licensee an opportunity of showing that for surrendering the licence there was sufficient reason. It is only if after giving the licensee such an opportunity, the Excise Commissioner is satisfied that there was no sufficient reason for surrendering the licence that the Collector can require the remainder of the period for which it would have been current, but for such surrender as contemplated by the latter part of Section 33 (1) of the Act. ( 10. ) IN the instant case, what the District Excise Officer has done by passing the order dated 22-11-1984 (Annexure XIV) is that he has simply informed the petitioner of the requirements of Section 33 (1) of the Act. A perusal of the notice dated 7-11-1984 which was given by the petitioner, a copy whereof has been attached as Annexure IV to the writ petition, indicates that the petitioner had given reasons to support the necessity of surrendering the Licence. He had also made a prayer that the deposits made by him may be returned to him so that he may be in a position to spend the rest of the days of his life in peace and tranquillity. He had also made a prayer that the deposits made by him may be returned to him so that he may be in a position to spend the rest of the days of his life in peace and tranquillity. From the tenor of the notice dated 7-11-1984, it is apparent that the petitioner not only was seeking redress for not being required to pay the remainder of the licence fee as contemplated by the latter part of Section 33 of the Act, but he was really seeking return of the amount already paid by him. Even though the notice is not very happily worded so as to contain a specific prayer for granting remittance as contemplated by the proviso to Section 33 (1) of the Act, there seems to be no doubt that the petitioner was really seeking the benefit of the said provisio. The matter, therefore, ought to have been referred to the Excise Commissioner for consideration as to whether the petitioner was entitled to the remittance contemplated by the said proviso or not. It is only after the Excise Commissioner had passed an order refusing to grant remission after giving the petitioner an opportunity of hearing, that the petitioner could be required by the Collector to pay the remainder of the licence fee. Since in the instant case, recourse has not been taken to this procedure, we are of the opinion that a case has been made out that the Excise Commissioner may be required to pass necessary orders in the instant case as contemplated by the proviso to Section 33 (1)of the Act. To this extent, this writ petition deserves to be allowed. ( 11. ) IN regard to the reliefs (i), (ii) and (iii) under sub-head b contained in the prayer clause of the writ petition and quoted above, learned counsel for the petitioner has made a statement that these reliefs are not being pressed in the present writ petition and the petitioner shall seek redress in regard to these reliefs before the authorities concerned. In view of this statement, it is not necessary for us to consider these reliefs. ( 12. In view of this statement, it is not necessary for us to consider these reliefs. ( 12. ) IN the result, this writ petition succeeds and is allowed to the extent that the excise Commissioner, M. P. , Gwalior, is directed to summon the record of the case containing the application dated 7-11-1984 (Annexure IV) from the Officer of the collector, Jabalpur, and to decide the question as to whether the petitioner, consequent upon the surrender of his licence as aforesaid, is entitled to the remittance of the licence fee payable by by on surrender of his licence as contemplated by the proviso to Section 33 (1) of the Act. Before deciding the matter, however, the Excise Commissioner shall afford the petitioner an opportunity of satisfying him that there was sufficient reason for surrendering the licence. We further direct that proceedings for recovery of the remainder of the licence fee from the petitioner shall not be taken recourse to till the excise Commissioner has decided the matter as to whether on the facts and circumstances of the present case, remittance ought or ought not to be granted to the petitioner as contemplated by the proviso to Section 33 (1) of the Act. The writ petition, in so far as the remaining reliefs are concerned, is dismissed. The interim order passed by this Court on 19-9-1985, stands vacated with the decision of this writ petition. In the circumstances of the case, however, there shall be no order as to costs. The outstanding security amount be refunded to the petitioner. Order accordingly.