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Rajasthan High Court · body

1995 DIGILAW 6 (RAJ)

Amar Kumar and Party v. Board of Revenue

1995-01-03

N.K.JAIN, P.P.NAOLEKAR

body1995
JUDGMENT 1. 1. This writ petition has been filed by M/s. Amar Kumar & Partners for quashing the impugned order of the District Excise Officer, Sri Ganganagar dated 15.2.79 (Ex.2), order of the Excise Commissioner dated 23.2.1980 (Ex.3) and the order dated 31.8.1982 (Ex.4) passed by the Board of Revenue for Rajasthan, Ajmer. It has been prayed that the respondents No.2 to 4 may be directed to pay an amount of Rs. 9,95,000/- being the amount of the proportionate exclusive privilege for three months on account of the premature termination of their licence. 2. Briefly stated the facts of the case as alleged by the petitioner are that a licence of exclusive privilege for sale of country liquor of the group of country liquor shops numbering 10 was granted to the petitioner for a sum of Rs. 43,13,800/- from 3.5.78 to 31.5.79 vide Ex.1. It is alleged that the licence was for the duration of 13 months and the said amount was to be deposited in 13 equal instalments of Rs. 3,31,830/-. It is also alleged that though the petitioner had to pay the security amount of Rs. 2,38,415/- which they paid but subsequently respondent No.3 Excise Commissioner forced the petitioner to make up the security amount to the tune of Rs. 4,49,415/- which was also deposited. The petitioner further alleged that he paid monthly instalments without any default but according to respondent No.3 the monthly instalment was to the tune of Rs. 3,94,571.44 and, the licence of the petitioner was cancelled on the ground of default vide order dated 15.2.79(Ex.2) and it was ordered that the security amount of Rs. 4,49,415/- as well as some other amounts paid subsequently be also adjusted towards the amount of the exclusive privilege. An appeal was filed by the petitioner before the respondent No.2 but the same was rejected vide order dated 23.2.1980(Ex.3). Being aggrieved with the order of Excise Commissioner, the respondent No.2, the petitioner filed a revision before the Board of Revenue but that too was dismissed by the order dated 31.8.1982 (Ex.4). Hence, this writ petition. 3. This writ petition is pending since 8.2.1983. While admitting the petition on 18.2.1983, this Court restrained respondents No.2 and 3 from recovering by amount from the petitioner. Hence, this writ petition. 3. This writ petition is pending since 8.2.1983. While admitting the petition on 18.2.1983, this Court restrained respondents No.2 and 3 from recovering by amount from the petitioner. Vide order dated 15.5.1984, the ad-interim order dated 18.2.83 was recalled and the respondents were directed to serve a demand notice if according to them any amount is outstanding against the petitioner, before taking any coercive measures. Respondents No.2 to 4 filed reply stating that licence has to be granted for the period commencing from 1st April and ending on 31st March or for the period which is to end on 31st March of the next year and no licence for sale of country liquor on exclusive privilege basis for 13 months is granted and the petitioner submitted his auction form for the year 1978-79 which means that the period was to end at the end of financial year i.e. 31.3.1979. The respondents have also filed Annexure/1, a photostat copy of the licence issued to the petitioner. It has been stated that the amount of Rs. 43.13.800/- was for the period of 3.5.1978 to 31.3.79 and not up to the period 31.5.79 as stated by the petitioner. It has been stated that the averment made by the petitioner that he was forced to make the security amount to the tune of Rs. 4,49,413.90 is wrong for the reason that as per the condition of the auction the petitioner was required to deposit the total amount of security of Rs. 4,72,830/- which was to be calculated @ 1.⅕% of the amount of monthly instalment of exclusive privilege money and as after deposit of the amount of Rs. 2,38,415/- as security, the petitioner did not make payment of balance amount of security and, therefore, a notice under the provisions of Rajasthan Excise Act, 1950 and the rules made thereunder was issued asking the petitioner to pay or deposit the balance security amount. It has also been stated that the petitioner did not make payment of the total amount of monthly instalments as of exclusive privilege money but only a part of the amount of monthly instalments of exclusive privilege money was deposited by the petitioner and for the period 3.5.1978 to 31.3.1979 was required to pay or deposit the total amount of Rs. 43,11,800 as the amount of exclusive privilege against which the petitioner only paid Rs. 29,25,063.28. 43,11,800 as the amount of exclusive privilege against which the petitioner only paid Rs. 29,25,063.28. Respondents have further stated that since the petitioner did not make the payment of the balance amount of exclusive privilege money as per terms of the contract and as per the provision of Rajasthan Excise Act, a demand notice was served upon him to make payment of this amount. It has been further stated the inspite of notice of demand served upon the petitioner to pay balance amount of exclusive privilege money, the petitioner did not pay the amount due and, therefore, the respondent No.3 cancelled the licence. The respondents in their reply also stated that on merits the petitioner has no case and the writ petition deserves to be dismissed. No counter was filed by the petitioner inspite of time granted by this Court. 4. As agreed by the counsel for the parties, the matter is heard finally. 5. Mr. Bhandari, learned counsel for the petitioner has submitted that the period mentioned in the licence is 3.5.78 to 31.5.79 and the Board of Revenue has erred in observing that the period is 3,578 to 31.3.79 since Ex.1, the original licence is a solemn contract between the parties which cannot be done away with by the Excise authorities unilaterally. He has also submitted that the petitioner was granted the exclusive privilege licence which could be granted by the Excise Commissioner and, it is he who alone could cancel the licence and not the District Excise Officer, therefore the Board of Revenue has committed illegality in holding that the District Excise Officer is competent to cancel the licence. He has relied on AIR 1975 SC 1285, AIR 1958 AP 533 , AIR 1970 Manipur 17 and AIR 1974 Orissa 31. 6. Mr. Vyas, learned counsel for the non-petitioners has vehemently opposed the submissions of Mr. Bhandari contending that the licence was granted for the financial year ending on 31.3.1979 which was within the knowledge of the petitioner. He has also urged that District Excise Officer, Sri Ganganagar was competent to grant a licence for exclusive privilege and there was no question of any avoidance of contract. 7. We have heard learned counsel for the parties and perused the material on record as well as the relevant provisions of law as also the case law cited at Bar. 8. 7. We have heard learned counsel for the parties and perused the material on record as well as the relevant provisions of law as also the case law cited at Bar. 8. As regards the contention that licence was for 13 months and amount was deposited in accordance with contract therefore powers under Section 34(b) could not be exercised, in this regard there is specific rule viz. R. 73 of the Rajasthan Excise Rules, 1956 which provides that a licence for retail sale is to be granted for one year corresponding to the financial year of the Government and if a licence is during the course of a financial year then it has to expire at the midnight of the last day of the financial year i.e. 31st March and further that if a licence is to be granted for a period exceeding one year then in that case it has to be either by the Excise Commissioner or with the special sanction of the Excise Commissioner, Rajasthan. The learned Member, Board of Revenue has examined the original files and found that the period written is 1978-79 and also seen the copy of licence wherein the period was mentioned as 3.5.78 to 31.3.79. We have also perused the original records and found that the licence was granted for the financial year 1978-79 and in the copy of licence submitted with the reply as Ex.R/1 also the period is shown as 3.5.78 to 31.3.79. From the bare perusal of Annex. R. 2 it clearly shows that a note appended to it in which it has been specifically mentioned that shop will be allowed to run from the day of opening till the end of the financial year. Annex. R. 2 has been duly signed by the petitioner himself and he was fully aware of this fact. Therefore, the view taken by the Board of Revenue that it was due to mistake calls for no interference and the date shown as 31.5.79 will not create any right in favour of the petitioner. The cancellation order dated 15.2.79 was restored by the interim order dated 15.3.79 passed by the Excise Commissioner in appeal will also not help the petitioner. The cancellation order dated 15.2.79 was restored by the interim order dated 15.3.79 passed by the Excise Commissioner in appeal will also not help the petitioner. Admittedly, the petitioner has not deposited instalments in time, thus, committed defaults in terms of the licence and not deposited balance of amount in time despite notice and in view of this, the cancellation was justified. That apart in Ex.1 and Ex.R/1 licence number has been clearly mentioned as Pa (20) Deme/78-79 and if the licence was granted to the petitioner up to 31.5.79 then there would have been 80 after the number of licence. Therefore, the findings arrived at by the learned Board of Revenue cannot be disturbed by this Court under Article 226 of the Constitution of India since while sitting in extra ordinary jurisdiction, this court cannot function as court of appeal. 9. So far as the contention that the District Excise Officer has no jurisdiction to cancel the licence is concerned, suffice it to say that the District Excise Officer concerned has been designated as the licensing authority under Rule 58 of the Rules for retail sale of excisable articles and, therefore, he was empowered to cancel, suspend or modify the licence in view of Rule 76 of the Rules. Learned counsel for the petitioner has referred to Sections 24(2), 31 and 34(6) of the Rajasthan Excise Act and Rule 67 K and 67 KK of the Rajasthan Excise Rules to substantiate the said contention. Under the provisions of Section 24 of the Act, subject to provisions of Section 31 it is the Excise Commissioner who has been empowered to order the grant to any person a licence of exclusive privilege. Section 31 deals with Form and condition of licences etc. and provides that licence be granted by such authority subject to restrictions and conditions. Section 34 deals with power to cancel and suspend licenses by the authority granting licence, permit subject to such restrictions as the State Government may prescribe. Rule 67 K of the said Rules provides procedure for auction and 67 KK speaks the procedure for invitation of sealed tenders. It may be stated that in this case before issuing licence to the petitioner, the District Excise Officer obtained sanction from the Excise Commissioner and prior to which conducted the auction in compliance of the direction issued by the Excise Commissioner according to their internal system. It may be stated that in this case before issuing licence to the petitioner, the District Excise Officer obtained sanction from the Excise Commissioner and prior to which conducted the auction in compliance of the direction issued by the Excise Commissioner according to their internal system. Therefore, it cannot be said that the District Excise Officer was not competent to cancel the licence. Moreso, earlier at the time of obtaining licence the petitioner did not challenge the authority of District Excise Officer to issue licence and now, it is not open to him to argue that the licence was issued by the Excise Commissioner and, District Excise Officer could not cancel the same. Under these circumstances, the Board of Revenue has rightly come to the conclusion that the District Excise Officer was competent to cancel the licence and has also rightly distinguished the decision rendered in Chaitram v. Superintendent of Excise, Puri, (supra) AIR 1974 Orissa 31 . 10. In view of what we have discussed above, the impugned orders passed by the authorities below call for no interference in this writ petition and the cases cited by the counsel for the petitioner are also not of any help to him. So far as the points regarding applicability of Contract Act etc. and concerned, in the absence of any foundation they cannot be allowed to be agitated in this petition and the cases cited are not helpful. 11. Accordingly, the writ petition has no force and the same is' hereby dismissed.Writ Petition Dismissed. *******