JUDGMENT 1. - The instant writ petition has been filed for quashing the order dated 30.10.99 (Annx.10) passed by the respondent No. 2, the Excise Commissioner, for recovery of the amount of Exclusive Privilege from petitioners. 2. The facts and circumstances giving rise to this case are that petitioner's tender had been accepted for grant of licence for sale of liquor at Jalore-Ahore Group of Shops in the name and style of `D.M. Sidhawat & Party' for the year 1999-2000. Petitioners were also given licence for sale of liquor at Bhinmal, Raniwada and Sachore Group of Shops for the year 1999-2000 for a sum of Rs. 7,07,50,000/- (Rs. Seven crores seven lacs fifty thousand). Petitioners made representations repeatedly to the concerned Authorities that respondents were unable to meet the demand by supplying the liquor as and when required by them and failed to discharge their obligation. Thus, they were entitled for certain relief and as the same were not considered, rather a demand was raised, petitioners preferred Writ Petition No. 3776/1999 challenging the order of Demand of Outstanding Dues. This Court disposed of the said writ petition vide order dated 5.10.99 clarifying that there could be no dispute whatsoever regarding demand/recovery of dues in respect of Indian Made Foreign Liquor (IMFL) and beer. So far as the dispute regarding demand in respect of Country Made Liquor (CML) was concerned, representation of the petitioners was pending before the Excise Commissioner and the same would be decided by the said Statutory Authority within a specified period provided petitioners made payment of 50% of the outstanding dues uptil 30.9.99. In pursuance of the said order, petitioners deposited certain amount with the respondents but there is a dispute that the deposit by them was not 50% of the outstanding dues as on 30.9.99, as per the directions of this Court. However, the Excise Commissioner, inspite of the fact that the petitioners failed to deposit 50% of the outstanding dues, considered their representation and rejected it and vide impugned order dated 5.11.99, issued direction of recovery. Hence this petition. 3. Heard Mr. N.M. Lodha, learned counsel for petitioners and Mr. Dinesh Maheshwari for respondents, and perused the record. 4. The instant case relates to the statutory contract, where the terms and conditions have formally been drawn in consonance with the statutory rules. Hence this petition. 3. Heard Mr. N.M. Lodha, learned counsel for petitioners and Mr. Dinesh Maheshwari for respondents, and perused the record. 4. The instant case relates to the statutory contract, where the terms and conditions have formally been drawn in consonance with the statutory rules. In such a contract, it is not permissible for the licensees to agitate that terms of contract are of onerous nature nor they can resile from the express obligation undertaken by them. (Vide Assistant Commissioner, Excise v. Issac Peter, (1994) 4 SCC 104 ). As per the terms of the contract, particularly Condition No. 5.10.3, the Excise Department can regulate the quantity of supply to the licensee from Government godown in any particular worth and for that reason, the licensee shall not be entitled to claim any compensation/reduction in the amount of exclusive privilege. More so, if there is a shortage of supply for any unforeseen reason in the Government godown, or the supply of liquor is affected by some other reason, the licensee shall not be entitled for compensation/reduction of such amount. As per Condition 5.6, a licensee must have stock sufficient for sale for fifteen days. It is so for the reason that in case the Government is not able to supply liquor for some reason, there may not be discontinuity in the sale of liquor at the licensed shops and the retail sale to liquor may continue. In view of the aforesaid two terms/conditions of the License/Contract in case the Government is not able to make the supply regularly for some unforeseen reason for a short period, the licensee would not be able to claim any kind of reduction/concession in the exclusive privilege amount. 5. Claim of rebate/remission/abetment in the licence fee can be made only where the Government fails to perform its statutory obligation, e.g. it fails to supply by the monthly quota referred to in the agreement. (Vide Assistant Commissioner, Excise v. Issac Peter (supra). Admittedly, licence fee cannot be recovered for the period for which no liquor was supplied. (Vide Ram Chandra Rai v. State of Madhya Pradesh, AIR 1971 SC 128 ). (Vide Assistant Commissioner, Excise v. Issac Peter (supra). Admittedly, licence fee cannot be recovered for the period for which no liquor was supplied. (Vide Ram Chandra Rai v. State of Madhya Pradesh, AIR 1971 SC 128 ). The factual matrix placed and submissions made before the learned Excise Commissioner by the petitioners have been considered meticulously and a finding of fact has been recorded that not a single instance could be pointed out by the petitioners wherein he had deposited the amount and came before the Department with challan, asking to supply a particular quantity for the said amount and it could not be met out. 6. There is no material on record to show that the said finding is perverse or contrary to the evidence on record. Placing reliance upon the inter-departmental communication that there was a shortage in the Government Godown of liquor or it may be able to meet demands of the so licensees, is of no consequence for the reason that the respondents were under the legal obligation to make the supply for the amount deposited by Petitioners and asking for the supply and if there has been a delay of very short period of a day or a week, that would not make petitioners entitled for any reduction/concession as per the terms of the contract. 7. There is no force in the submission made by Mr. Lodha that petitioners had deposited certain amount and they could not be supplied the liquor for the said amount immediately. The facts contained in para 12 of the petition that petitioners could not get the immediate supply for the amount deposited or in close proximity for non-availability of liquor in the Government godown stand falsified by the documents placed on record by respondents, as Annx. R/1-A to Annx. R/1-1 make it crystal clear that the supply of liquor, to the extent of the amount deposited by petitioners, had been made within a period of days or a week and there had been not much delay. Said documents falsify the factual statement made by petitioners that the Government was not in a position to make the supply as per their demand. 8. In paragraph 7 of the petition, it has been stated that the the respondents were/are accepting the money only to the extent of availability of supply of liquor. Respondents have emphatically denied it. Said documents falsify the factual statement made by petitioners that the Government was not in a position to make the supply as per their demand. 8. In paragraph 7 of the petition, it has been stated that the the respondents were/are accepting the money only to the extent of availability of supply of liquor. Respondents have emphatically denied it. Moreso, had it been so, this point specifically could have been raised before the Excise Commissioner. Mr. Lodha, learned counsel appearing for the petitioners, could not furnish any explanation for making such a statement. Undoubtedly, the plea goes to the root of the lis-involved but there is not material on record to substantiate the allegation and, thus, seems to have been levelled to achieve ulterior purpose. It is settled legal position that if a plea, which requires investigation of facts, is not raised before the Tribunal or Administrative Authority, may not be permitted to be raised for the first time in writ jurisdiction, which is equitable and discretionary, is `not of course' or ` must.' However, if the plea, though raised first time in writ petition, goes to the root of the question and is based on admitted and uncontroverted facts and does not require any further investigation into questions of facts, must be a lowed to be raised in the interest of justice which is paramount consideration of the court. (Vide A.M. Allison v. B.L. Sen & ors., AIR 1957 SC 227 ; A.A. Arunachalam Pillai v. M/s. Southern Roadways Ltd., AIR 1960 SC 1191 ; The Cantonment Board, Ambala v. Pyare Lal, AIR 1966 SC 108 ; State of U.P v. Dr. Anupam Gupta, AIR 1992 SC 932 ; Bhanwar Lal v. T.K.A. Abdul Karim, AIR 1992 SC 2166 ; Ratan Lal Sharma v. Managing Committee, AIR 1993 SC 2155 ; Rajeshwari Amma v. Joseph & Anr., AIR 1995 SC 719 ; C.I.T. v. V.P. Forest Corporation, AIR 1998 SC 1125 ; M/s. Savita Chemicals (Pvt.) Ltd. v. Dyes & Chemical Workers Union & Anr., AIR 1999 SC 413 ; Management of Karnataka State Road Transport Corporation v. K.S.R.T.C. Staff and Workers' Federation, AIR 1999 Kar. 1059 ; and Munnalal Agarwal v. Jagdish Narain, (2000) 1 SCC 31 . 9. It is further settled legal position that unless the delay in making the supply is unreasonable or inordinate, licensee cannot claim any concession in the exclusive privilege amount. 1059 ; and Munnalal Agarwal v. Jagdish Narain, (2000) 1 SCC 31 . 9. It is further settled legal position that unless the delay in making the supply is unreasonable or inordinate, licensee cannot claim any concession in the exclusive privilege amount. The judgment in Chandan Mal v. State of Rajasthan, 1980 WLN (UC) 137 , cited by Mr. Lodha, is of no help to the petitioners for the reason that in the said case, this Court had held that in case of failure to fulfil guarantee due to non-supply of liquor by Government Warehouses, licensee cannot be held liable for the deficiency and on that account, the recovery cannot be made. While deciding the said case, this Court referred to its earlier judgment in Writ petition No. 3889/1997, Shanti Lal v. State of Rajasthan, decided on 5.7.73 , wherein it has been held that in order to succeed in the writ petition, the licensee must prove that the shortfall was caused on account of non-supply of the liquor to him by the Excise Authorities, as and when demanded by him, either wholly or partially. Therefore, proof of short fall due to non-supply of liquor by the Government is a condition precedent for claiming the relief. 10. In Panna Lal v. State of Rajasthan, AIR 1975 SC 2008 , the Hon'ble Supreme Court held that recovery in relation to short fall occasioned on account of failure on the part of the liquor contractor to fulfil the terms and conditions of the licence, was justified in terms of the contract and the statutory rules. 11. In State of Rajasthan & ors. v. Nand Lal & ors., 1993 (Suppl.) 1 SCC 681 , the Hon'ble Supreme Court held as under : "State is the only source of supply for such licensees. Unless the State supplies them the liquor they cannot carry on their business. As stated earlier, it is essentially a commercial contract, no doubt governed by statutory provisions. The obligation to supply constitutes the underpinning of the contract. This does not, however, mean that the State is bound to supply as much as is demand or that its failure to supply on a given day or in a given week can be termed as failure to supply. Supplies of liquor are normally effected through warehouses and depots maintained by or on behalf of the State. This does not, however, mean that the State is bound to supply as much as is demand or that its failure to supply on a given day or in a given week can be termed as failure to supply. Supplies of liquor are normally effected through warehouses and depots maintained by or on behalf of the State. Supplies have to be drawn over the month. It cannot be insisted that the entire monthly quantity or any other quantity must be supplied at once or as and when demanded by a licensee. All that can be said is that all licensees must be treated in a fair and equal manner in the matter of supplies, particularly during the lean years. Due regard must also be had to the rules, conditions of licence and agreement and other provisions applicable in that behalf, in determining whether there was a failure on the part of the State to supply. Again, the extent of relief in case of failure on the part of the State to supply depends upon the length of period of non-supply, the loss caused to the licensee on that account, all of which has to be judged in the light of the relevant provisions of the Act, rules, conditions of licence and agreement and other orders, if any, applicable." (Emphasis added). 12. The Hon'ble Supreme Court has also observed as under : "What we wish to emphasise is that the allegations made by each of the petitioners has to be established by him. 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 warehouse could not supply the indented quantity, they must have made an endorsement to that effect on some document or must have issued the certificate to that effect. All that material must be in possession of the licensee. 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. 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." 13. It is settled proposition of law that burden of proof always lies upon the party who makes certain allegations and seeks relief on it. The Court has to address itself whether the party, which has made the allegations, has discharged the burden of proving the allegations. Moreso, the party must succeed on the strength of its own case rather than on the weakness of the case of the other side. Such party is under a legal obligation to prove its case irrespective of the fact whether the opposite party has proved its case or not. "A mere destruction of the case of the defendant in absence of establishment of his own case, carries the petitioner nowhere." (Vide J.P. Ravidas & ors. v. Navyuvak Harijan Uthapan Multi Unit Industrial Co-op. Society Ltd. & ors., (1996) 9 SCC 300 ; H.M.M. Ltd. v. Director General, Monopolies and Restrictive Trade Practices Commission, (1998) 6 SCC 485 ; Kala & Anr. v. Madho Parshad Vaidya, (1998) 6 SCC 573 ; Moran Mar Basselios Catholics & Anr. v. Most Rev. Mar Poulose Atanasius & ors., AIR 1954 SC 626 ; and Moran Mar Basselios Catholicos v. Thukalan Paulo Avira & ors., AIR 1959 SC 31 ). 14. In A. Raghavarmma & Anr. v. A. Chenchamma & Anr., AIR 1964 SC 136 ; the Apex Court has explained the distinction between burden of proof and `onus to prove' observing as under : "There is an essential distinction between burden of proof and onus to prove; burden of proof lies upon the person who has to prove a fact and it never shifts. The burden of proof in the present case, no doubt, lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. The burden of proof in the present case, no doubt, lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting on onus is a continuous process in the evaluation of evidence It is well settled that a person, who seeks to displace the natural succession to property by alleging an adoption, must discharge the burden that lies upon him by proof of factum of adoption and its validity." 15. In Kalwa Devadattam & ors. v. Union of India & ors., AIR 1964 SC 880 , the Apex Court has observed as under : "The question of onus probandi is certainly important in the early stages of a case. It may also assume importance where no evidence, at all, is led on the question in dispute by either side; in such a contingency, the party on whom the onus lies to prove a certain fact, must fail. Wherever, however, evidence has been led by the contesting parties on the question in issue, abstract considerations of onus are out of place, truth or otherwise of the case must always be adjudged on the evidence led by the parties." (Emphasis added). 16. Similar view has been reiterated by the Supreme Court in Kundan Lal v. Custodian, Evacuee Property, Bombay, AIR 1961 SC 1316 ; and C. Abdul Shukoor Saheb v. Arji Papa Rao, AIR 1963 SC 1150 . 17. In the instant case, petitioners miserably failed to prove that even once they had deposited the money and produced the challan before the concerned authority and asked for supply of liquor for the said amount and it was not delivered within reasonable time. Making mere allegations that they did not deposit the money knowing it well that there was no sufficient stock for supply, is not worth consideration for the reason that had petitioners deposited the amount and asked for supply on presenting the challan or any other proof thereof, even if sufficient stock was not there, the Excise Department could have issued permits to lift the liquor from some other godown or could have arranged the supply from the same godown by consignment of liquor from some other godown. 18. 18. Therefore, the submissions made on behalf of petitioners that the record of the department can show that there was no sufficient stock available for supply even if has some substance, would not render any assistance to petitioners as explained above. The copy of the record, which has been produced by Mr. Maheshwari before the Court, rather shows to the contrary. The Chart of Consignment taken by petitioners in respect of I.M.F.L. shows that in April and May, 1999, petitioners had lifted 100% liquor, in June 43.82%, in July 68.55%, in August 68.86%, in September 33.06%, in October 18.68%, November 40.61%, and in December only 15.17%. Similarly, in respect of the consignment lifted by petitioner in respect of the Country Made Liquor (C.M.L.), it has substantially been reduced during that period from 83.84% to 39.96%. Though the record is not produced further but it is stated at the Bar that the position could not improve even in the year 2000. 19. Thus, in view of the above, as the petitioner's allegations in the writ petition have been couched in a very vague and general terms and they miserably failed to substantiate the allegations made in the petition, they are not entitled for any concession in the amount of short fall etc. 20. The petition fails and is hereby dismissed. Interim order, if any, stands vacated. There shall be no order as to costs.Writ Petition dismissed. *******