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2009 DIGILAW 2569 (ALL)

DHANPAL SINGH v. STATE OF U. P.

2009-07-15

SATISH CHANDRA

body2009
JUDGMENT Hon’ble Dr. Satish Chandra, J.—By this writ petition, the petitioners have challenged the impugned order passed in Revision No. 45 of 2008 on 25th September, 2008 by the Special Secretary of the Excise Department and also the citation dated 28.4.2008. 2. Sri Manoj Kumar Dwivedi, learned counsel for the petitioners, submitted that for the Excise Year 2007-08 in village Urdauli, District Sitapur, an advertisement was published. The applications were invited for the license of country-made liquor shop. The petitioners after depositing the earnest money Rs. 15,650/- participated in the auction on 29.3.2007. As no other contestant participated in the said auction, so the shop was allotted to the petitioners as per telephonic information on 31.2.2007. By the said telephonic message, the petitioners were informed by the authorities that they were the successful allottee in the auction/lottery. As per the terms and conditions of the invitation to the offer, the petitioners were supposed to take delivery of 11,600 bulk litre of country-made liquor. As the quantity was too high, so the petitioners vide its letter dated 2.4.2007 (Annexure No.6) have refused to accept the invitation to the offer. The learned counsel for the petitioners further submits that as per Rule 12 of the Uttar Pradesh Excise ( Settlement of Licences for Retail Sale of Country Liquor) Rules 2002 dated 14th March, 2002, the petitioners have neither submitted any basic licence fee within three days nor any security money within ten days. In the said Rule, it was mentioned that if the basic licence fee as well as the security money were not deposited within stipulated period, the offer will automatically be cancelled. Lastly, he submitted that by the impugned order, the demand of the licence fee for the full year under consideration is against the law, so the same may kindly be quashed. 3. On the other hand, Sri Sanjay Sarin, learned counsel for the opposite-parties, submitted that once the petitioners have participated in the auction/lottery by depositing the earnest money, they have entered into the agreement with the Govt. and as per the rules, the petitioners are liable to pay the fee for full excise year. 4. I have heard learned counsel for both the parties and gone through the material available on record. 5. and as per the rules, the petitioners are liable to pay the fee for full excise year. 4. I have heard learned counsel for both the parties and gone through the material available on record. 5. From the record, it also appears that this Court vide order dated 6.11.2008 has passed an interim order and stayed the demand of the licence fee. 6. In the instant case, it appears that the petitioners have deposited the earnest money of Rs. 15,650/- to participate in the auction and they have participated on 29.3.2007 for the Excise Year 2007-08. As there was no competitor, so the shop was allotted in favour of the petitioners as per telephonic message on 31.3.2007. No letter was issued by the authorities, as I was told/informed by the learned counsel for the petitioners during the course of arguments. Thereafter just within two days, the petitioners have informed the authorities (Annexure 6) that the petitioners are not interested to take the licence of the said shop and no basic licence fee was deposited within a period of three days. The security money which was supposed to be deposited within ten days was also not deposited as per Rule 12 of the aforesaid Rules 2002. 7. Rule 12 of the Rules of 2002 provides that the money to be deposited before any licence can be granted to the selected candidates for the excise shops. Rule 12 reads as follows : “12. Payment of basic licence fee and security amount.—In case an applicant is selected as licensee, he shall deposit the entire amount of basic licence fee within 3 working days of being informed of his selection. He shall be required to deposit half the security amount within 10 working days of information of his selection and balance of security amount within 20 days of information of his selection. If he fails to deposit the amount of basic licence fee or security amount within prescribed period, his selection shall stand cancelled and his earnest money and the basic lincence fee and security amount if deposited by him shall be forfeited in favour of the State Government and the said shop shall be resettled forthwith.” 8. If he fails to deposit the amount of basic licence fee or security amount within prescribed period, his selection shall stand cancelled and his earnest money and the basic lincence fee and security amount if deposited by him shall be forfeited in favour of the State Government and the said shop shall be resettled forthwith.” 8. It cannot be disputed that unless and until the payment of basic licence fees and security money as required under aforesaid Rule 12 is made, the selected applicant is not treated to be a licensee nor he is entitled to the benefits of licensee flowing therefrom. Rule 12 itself contemplates the consequences, in case of violation of the conditions stipulated therein and therefore, the Rule is mandatory in nature. The Rule does not confer any discretion upon the licensing authority to relax any of the conditions mentioned therein. The consequences take effect by operation of law, and therefore, in the facts of the present case, till the petitioner had not deposited the security money, as required under Rule 12 of the Rules of 2002, his selection for grant of licence itself stood cancelled in the eye of law and he could not be treated to be a licensee. Merely because the petitioner was illegally permitted by the Excise Authorities of the district Etah to continue and run his shops, despite non-compliance of the mandatory Rule 12 he cannot be held to become a licensee within the meaning of the Rules of 2002. Since the petitioner cannot be said to have been granted any licence, having regard to the language of Rule 12, the provisions of Rules 13, 14 and 15 will not be attracted in his case. Similar views were expressed by this Hon’ble Court in the case of Rajendra Singh Chauhan v. State of U.P., 2007(1) AWC 436 (All). 9. In the light of above discussions and by considering the totality of the facts and circumstances of the case, I am of the view that no agreement was executed between the parties in view of the statutory provisions. The said agreement was at the initial stage. When the ingredients of the agreement have not completed, then the said agreement cannot be considered as valid contract. The said agreement was at the initial stage. When the ingredients of the agreement have not completed, then the said agreement cannot be considered as valid contract. Therefore, I am of the view that the petitioners cannot be fastened with the liability qua the Minimum Guaranteed Quantity or for payment duty relating to the Minimum Guaranteed Quantity, as no licence was ever granted to the petitioners in the eyes of law. The demand raised, therefore, cannot be sustained. 10. Hence, I set aside the impugned order dated 25.9.2008 along with consequential orders. The writ petition is allowed accordingly. ————