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2010 DIGILAW 962 (PNJ)

A-one Wine Sales Agency v. State Of Haryana

2010-02-23

JASBIR SINGH, MUKUL MUDGAL

body2010
Judgment Mukul Mudgal, J. 1 This writ petition has been filed by M/S. A-One Wine Sales Agency, which was the allottee of L-l licence for the year 2008- 2009 under the Excise Policy for that year. In the Excise Policy of 2009- 2010, a clause 3.8 towards transfer fee was introduced, which reads as follows : 3.8 TRANSFER FEE: A transfer fee shall be charged @ Rs. 4/- per P.L. from Country Liquor, Rs. 10/- per P.L. from IMFL and Rs. 3/- per B.L. from beer on closing stock remaining with the licensees on 31.3.2009 and allowed to be carried over to the next year 2009-10. Any quantity of liquor in physical possession of the outgoing licensee at the termination of the contract for the year 2008-2009 and transferred to a incoming licensee for the year 2009-2010 in accordance with the provisions of the Haryana Liquor License Rules, 1970 shall not be counted towards lifting of annual quota for the year 2009- 2010." 2 It is the legality and vires of the above transfer fee, which has been sought to be challenged by the petitioner in this Court. The case of the petitioner is that the said transfer fee is ultra vires the provisions of the rule making powers of the State under the Punjab Excise Act, 1914 (as applicable to Haryana) and in particular Section 5 thereof. The case of the petitioner, inter alia, is that the said transfer fee is in fact an additional excise duty, which is not chargeable, particularly when no quid pro quon exists for charging the said fee. 3 Before we get into the legality of the challenge of the petitioner, it is worth while noticing that the petitioner was also a successful tenderer for the said licence L-l for the year 2009-2010. At the time when the petitioner opted to seek the allotment of the said licence for the year 2009-2010, the aforesaid clause 3.8, imposing transfer fee, existed in the policy. At the time of the allotment of the licence for the year 2009-2010, the petitioner did not challenge the said transfer fees. He has, in fact, availed the benefit of the said-transfer. At the time of the allotment of the licence for the year 2009-2010, the petitioner did not challenge the said transfer fees. He has, in fact, availed the benefit of the said-transfer. In our view, without going into the legality of the challenge of the petitioner in the present case, we are satisfied that it is not open to the petitioner to avail of the benefit of the said transfer, accept the licence (L-l ) under the existing policy and then turn around and question the transfer fee on the basis of its legality. The petitioner having availed of the benefit of the said policy cannot dissect the said policy to challenge a particular portion thereof and consequently estopped by his own conduct. 4 The Honble Supreme Court in Bank of India and others v. O.P. Swarnkar and others, 2003(4) S.C.T. 787: (2003) 2 Supreme Court Cases 721, while interpreting the provisions of voluntary retirement scheme observed that the scheme was contractual in nature. The contractual right derived by the employees concerned, therefore, could not be waived. The employees concerned having accepted a part of the benefit could not be permitted to approbate and reprobate and could not be permitted to resile from their earlier stand. Similarly, in K.A. Nagamani v. Indian Airlines and others, 2009(2) S.C.T. 715: (2009) 5 Supreme Court Cases 515, Honble Supreme Court was considering the right of an employee, who had taken part in the process for promotion and then laid challenge to the said procedure. The Honble Supreme Court held that an unsuccessful candidate lateron cannot be permitted to question the process of selection/promo tion, if he failed to object before the process had started. The situation is similar in this case. The petitioner having obtained licence under 2009-10 policy, it is not possible for him to turn back and say that sortie of the provisions of that policy are not suitable to him.if the petitioner was of the opinion that any of the conditions were not as per law, he should have laid challenge to the same before getting licence under the policy in question. 5 Counsel for the petitioner relied upon judgments of the Honble Supreme Court in T.J. Baby and others v. State of Kerala and others, AIR 2000 Supreme Court 3013, M/S Gupta Modern Breweries v. State of Jammu & Kashmir & others, Judgments Today 200 7 (5) Supreme Court 619, Indian Mica and Micanite Industries v. The State of Bihar and others, 1971(2) SCC 236, State of Kerala and others v. Unni and another, 2007(2) Supreme Court Cases 365, and Mohan Meakin Limited v. State of Himachal Pradesh and others, 2009(3) Supreme Court Cases 157. In particular, be laid stress on the ratio of judgment in T.J. Baby case (supra), and para 10 thereof, which reads as under : "10. The provision to Section 18(3) obliges the existing stock holders who are licensees to pay the difference of duty of excise or luxury tax in case there is an increase in respect thereof. The importers, exporters, manufacturers and warehouse owners would be concerned with the levy of excise duty whereas luxury tax would be payable by the licensees relatable to Section 7(g) which would be like the appellants in the present case. What the proviso means is that those licensees who are liable to pay excise duty can be called upon to pay the increase thereof while those licensees who are liable to pay luxury tax. Section 17 (a) to (f) which deals with the imposition of excise duty refers to licensees under Section 6, Section 7, Section 11, Section 12 and Section 14. The appellants are licensees under Section 15 of the Act. It is not in dispute that excise duty is not levied or realised in the first instance from the F.L.I or F.L. 3 licensees. Excise duty of liquor which is manufactured within the State or is imported from outside the State, is paid either by the manufacturer or by F.L. 9 manufacturer or by the F.L. 9 licensee, namely, the aforesaid Corporation. The proviso to Section 18(3) would not enable the respondents to realise the increase in excise duty from the licensee who was not under an obligation to pay the original excise duty which has increased. The proviso to Section 18(3) would not enable the respondents to realise the increase in excise duty from the licensee who was not under an obligation to pay the original excise duty which has increased. The luxury tax on the sale of intoxicating liquor can be imposed only on the persons holding licence for sale simpliciter but not excise duty." 6 In our view the above judgments can not come to the aid of the petitioner inview of the fact that it adjudged the liablity to pay additional excise duty of those who were not obliged to pay the original excise duty. 7 Accordingly, we decline to interfere in this petition under, Articles 226/227 of the Constitution of India, on the basis of above said conduct of the petitioner and the position of case summarised by us. The writ petition is accordingly dismissed.