JUDGMENT 1. - The petitioner Son Singh by way of the aforesaid writ petitions bearing No. 4451/93, 289/94 and 2191/94 seeks to quash the demand notice dated 18.8.1993 (Ex. 18) pertaining to the month of July, 1993, demand notice dated 30.12.93 (Ex. 4) pertaining to the month of November, 1993 and demand notice dated 5.3.94 (Anexure. 3) pertaining to the month of February, 1994 respectively and also prays that the respondents may be directed to give adequate rebate in exclusive privilege fixed for the aforesaid months because of non-supply of the liquor. 2. Since all these writ petitions raise a common question of law and controversy, as agreed they are being disposed of this common order. 3. For the convenient disposal of these matters facts of S. B. C. W. Petition No. 4451/93 are being taken into consideration. The petitioner Son Singh s/o Girdhari Singh r/o of Jaipur & party has been granted licence for sale of liquor as co-licencee for sale of country liquor as well as for the sale of India Made Foreign Liquor of Nagaur Merta Group for the year 1993-94 in view of the tender submitted for a sum of Rs. 4,61,01,000 in pursuance of the invitation of tender by the Excise Commissioner. It is alleged that as per condition the petitioner gave cash security to the tune of 122% of the total licence money so also he gave solvent security for the like amount i.e. 12% of the total exclusive privilege amount. It is also alleged that in the month of June requisite quantity of liquor was not given despite the petitioner deposited the amount and there remained balance of Rs. 57,788.45 as issue price and a sum of Rs. 55,712.50 as permit fee whereas against the amount of Rs. 1,13,000 the petitioner was given liquor for a sum of Rs. 28,265.75. It is further alleged that on 4.7.1993, the petitioner deposited Rs. 74,250 as against issue price and Rs. 52,500 as against the permit fee but no liquor was supplied to the petitioner. On 6.7.93 a little quantity of liquor to the tune of Rs. 33,588/- was supplied. On 9.7.1993, the petitioner deposited Rs. 95,000/- but liquor was not supplied to him. According to him liquor for a sum of Rs. 25,913/- and odd as issue price and Rs. 18,122/- and odd as permit fee, was supplied to him. On 6.7.93 a little quantity of liquor to the tune of Rs. 33,588/- was supplied. On 9.7.1993, the petitioner deposited Rs. 95,000/- but liquor was not supplied to him. According to him liquor for a sum of Rs. 25,913/- and odd as issue price and Rs. 18,122/- and odd as permit fee, was supplied to him. The petitioner was supplied liquor on 20.7.93 amounting to Rs. 25,913/- as alleged by him as issue price and permit fee of which comes to Rs. 18,322/-. The petitioner also alleged that till 23.7.93 no liquor was supplied but thereafter for two days some liquor was given. The petitioner further alleged that he made representations/telegrams (Ex. 14 to 17) but the respondents issued a demand notice dated 18.8.93, making the petitioner to deposit a sum of Rs. 17,06,891.75. Hence, this writ petition along with the documents; some permits, representations and telegrams (Ex. 4 to 18).3-A. This Court while admitting the writ petition on 2.9.93 stayed the recovery in pursuance of Annexure 18 dated 18.8.93. In Writ petition No. 289/94 the petitioner was granted stay on 17.1.1994 to the effect that no coercive step be taken for recovery and in Writ Petition No. 2191/94 the petitioner was granted stay on 12.8.94 that licence of the petitioner shall not be cancelled. 4. Reply to the writ petition has been filed by the respondents raising preliminary objections that the writ petition is not maintainable as the same has been filed with a view to avoid contractual liability and further alternative remedy of appeal & revision as provided in Section 9A of the Rajasthan Excise Act is also available. It has been stated that the petitioner has not made any averment in the writ petition as to on what dates he demanded liquor and the respondent did not supply during the entire month and that the petitioner has not suffered any loss. It has been stated that the petitioner has not made any averment in the writ petition as to on what dates he demanded liquor and the respondent did not supply during the entire month and that the petitioner has not suffered any loss. It has been stated that the petitioner is licencee for IMFL and Beer also and as sales price of any item has not been fixed, therefore, the total business in liquor is conducted by him by selling country liquor, IMFL and Beer and it is wrong to contend that due to alleged less sale in country liquor any loss has been caused particularly when the question of short supply is a question of fact which cannot be considered under Article 226 being a question of fact and cannot be adjudicated properly in the writ petition. 5. Rejoinder has also been filed stating that there is no other alternative remedy and no disputed question of fact is involved. 6. As agreed by the learned counsel for the parties, these matters are heard finally. 7. Mr. N. M. Lodha, learned counsel for the petitioner has contended that despite the petitioner had deposited the amount liquor was not supplied properly which has affected the sale of the petitioner in the month of July, 1993 so also in the other months. He has also contended that since the respondents failed to give supply of liquor asked for and due to short supply of liquor, the petitioner is entitled for rebate on account of short supply while adjusting the amount lying with them as the respondents are duty bound to supply liquor. He has referred to various documents annexed with the writ petitions and has relied on M/s. Jai Bharat Wine Contractor, Jodhpur v. The State of Rajasthan, WLN (UC) 1979-282 and Chandan Mal v. State, WLN (UC) 1980-137 . 8. He has referred to various documents annexed with the writ petitions and has relied on M/s. Jai Bharat Wine Contractor, Jodhpur v. The State of Rajasthan, WLN (UC) 1979-282 and Chandan Mal v. State, WLN (UC) 1980-137 . 8. Mr Vyas, learned counsel for the respondents has urged that this writ petition has been filed against the notice which is not maintainable as the better course for the petitioner is to appear in compliance of the notice before the respondents and thereafter if there remains any grievance he could have availed alternative remedy he has also urged that the petitioner is not entitled for any relief as he has breached the condition of the contract which is statutory in nature and cannot wriggle out from his contractual liability and also has not kept the stock of 15 days as per the condition of the licence. He has also urged that the Department can supply the liquor at any time in the entire month and it is not necessary for the Department to supply liquor as and when demand is made and due to non-lifting of liquor by the licencee himself for the reasons known to him, the Department cannot be held responsible for short supply whereas as a matter of fact there was no short supply on the part of the State. Mr. Vyas has further contended that it is a question of fact which cannot be decided in the writ jurisdiction and the respondents are well within their competence to issue demand notice. He has relied on the State of Rajasthan v. Nandlal, JT 1992 (5) SC 655 . 9. I have heard learned counsel for the parties carefully and perused the material placed in these writ petitions and gone through the case law cited at Bar as also the provisions of law and conditions of the licence. 10. It is no doubt true that after grant of licence it is the responsibility of the State to supply the liquor to the licencees as unless the State supplies than the liquor they cannot carry on their business and if there is any short supply, the licencees are entitled for rebate as per the rules and terms and conditions of the licence. To appreciate the controversy, the question which arises for consideration is who is responsible for the alleged short supply. 11. To appreciate the controversy, the question which arises for consideration is who is responsible for the alleged short supply. 11. In State of Rajasthan v. Nandlal (supra) their lordships while considering the question of short supply has observed as under : "So far as the first question is concerned, the fact remains that it is for the writ petitioners to establish their contention that in spite of their demand, the State could not supply the requisite quantity. The mere fact that there was a short fall in overall production of country liquor in the State of Rajasthan during the said year does not establish the contention of any of the petitioners ....... If really the petitioners had asked for supply of certain quantity, there must be some evidence in support of such demand, whether in the shape of challan, indent or some other document. Further when the ware house could not supply the indented quantity, they must have made an endorsement to that effect on some document or must have issued a certificate to that effect. All that material must be in possession of the licencees. It is true that the State cannot merely rely upon the theory of onus of proof and ought to assist the court in arriving at a fair decision by placing all the relevant material before it. But this obligation cannot be read to mean that the State is under an obligation to establish or make out the writ petitioner's case. The burden lies upon the petitioner, who seeks a particular relief on the basis of certain facts, to establish those facts. Now, if we examine the principle underlying the decisions of the Divisions Benches of the Rajasthan High Court from the above stand point, it would be clear at once that it cannot be sustained." 12. In view of the above, it is clear that burden lies on the licencee to prove that inspite of the demand, the respondents could not supply the requisite quantity indented and to prove that there must be some evidence in support thereof as to when the warehouse could not supply the quantity demanded, they must have made an endorsement to that effect on some document or must have issued a certificate to that effect. 13. 13. According to the Condition No. 1 (GA) of the licence either the licencee has to deposit the instalment of the exclusive privilege amount in 12 monthly instalments before expiry of 10th of subsequent month every month and if in a particular month there is any deficiency then that is required to the fulfilled by cash deposit and if in a particular month, more than the requisite liquor is lifted, then that cannot be adjusted towards any other month for the purpose of rebates. 14. As already stated it is not necessary for the respondents to supply liquor as and when demand is made but it can be supplied at any time/times during the entire month as some times due to non-availability of liquor in the warehouse or sometimes due to non-availability of loading/unloading & transportation facility with the licencee, or for any other reason, liquor is not lifted and what is the reason at the point of time for non-supply of liquor either on the part of State or on the part of licencee is material for fixing the responsibility for non-supply or non-lifting of the liquor. In the instant case, the petitioner in support of -his contention that there was short supply on the part of the State and that the State has failed to discharge its duty of supplying the liquor has placed on record Ex. 7 to 13 permits issued to him showing that he has been supplied liquor of Rs. 3 lacs & odd whereas he deposited the amount more than that, which has been disputed by the counsel for the respondents on the ground that the licencee did not lift the liquor on his own. Considering the material produced by the petitioner nothing can be borne out that the petitioner approached the respondents other days also during the month and despite that ware house could not supply the liquor. The documents placed on record that too in 4451/93 only, only shows the amount deposited and the quantity of goods supplied along with the cost of the goods, which does not establish that the indented quantity of liquor was not supplied as there is no endorsement made by the respondent authority that liquor could not be supplied. The documents placed on record that too in 4451/93 only, only shows the amount deposited and the quantity of goods supplied along with the cost of the goods, which does not establish that the indented quantity of liquor was not supplied as there is no endorsement made by the respondent authority that liquor could not be supplied. Therefore, in the absence of there being any documentary proof on record regarding the inability of the State to supply the liquor of the respective months under challenge in these writ petitions, as per the demand, at this stage the liability of short supply cannot be fixed on the State. Moreso, the argument of the learned counsel for the respondents that the licencees themselves do not lift the liquor and without depositing the amount as per the terms & conditions of statutory contract try to make out a case of short-supply, cannot be brushed aside particularly when whether the licencee has breached the condition or not and deliberately did not lift the liquor from the warehouse are questions of fact and cannot be adjudicated upon by this Court under Article 226 of the Constitution of India unless there are clear pleading and proof but in the case in hand as already stated there is no such material on record from which on the basis of such arguments any decision can be rendered. On this ground alone, without expressing any opinion on the merits of the case, I am of the view that the petitioner has failed to make out a prima facie case for interference under Article 226 of the Constitution as the disputed questions of fact are involved and the cases cited by Mr. Lodha are not helpful. 15. In view of what I have discussed above, the petitioner cannot be granted any relief in the extra ordinary jurisdiction of this Court vested under Article 226 of the Constitution of India. In view of this the ad-interim orders passed in these writ petitions stand discharged. 16. Accordingly, these writ petitions have no force and they are hereby dismissed. A copy of this order be placed in each file.Writ Petitions Dismissed. *******