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2016 DIGILAW 1266 (ORI)

Surendra Kumar Das v. State of Odisha

2016-12-21

SANJU PANDA, SUJIT NARAYAN PRASAD

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S. N. Prasad, J. The petitioner has approached this court for issuance of direction upon the opposite parties to refund the amount of Rs.17,14,200/- 2. The brief facts of the case is that the petitioner after having participated in the auction-cum-tender for foreign liquor off shop licence for six shops in the district of Ganjam, being highest bidder in both auction – cum tender for the six foreign liquor shops, the opposite party have recommended the case of the petitioner to the State Government for grant of exclusive privilege in favour of the petitioner’s foreign liquor off shop for retail vend of foreign liquor. The petitioner in pursuance to the said recommendation had deposited Rs.4,14,200/-and thereafter exclusive privilege was granted in respect of six Indian made foreign liquor off shop at Keshpur, Rambha, Khalikote, Ganjam, City High School Road and Santarani Street, Berhampur for the year 1992-93 under the provision of Section 22 of the Bihar and Orissa Excise Act, 1915 on a monthly consideration money. It is the case of the petitioner that while he was running with the business, all of a sudden the Superintendent of Excise, Ganjam has issued a letter on 18.7.1992 for cancellation of the foreign liquor off shop for the year 1992-93 in exercise of power conferred under Section 42 of the Bihar and Orissa Excise Act, 1965 and accordingly all the six Indian made foreign liquor shops have been seized and the stock has also been seized and subsequently it has been auctioned. The petitioner being aggrieved with the said decision has filed this writ petition for a direction to refund the amount of Rs.17,14,200/-which is the expenditure cost and the loss sustained by the licencee. 3. The opposite party State has been represented by the learned Additional Government Advocate and while opposing the prayer it has been submitted by him that the lincence of the six Indian made foreign liquor shop has been cancelled by the competent authority in exercise of power conferred under Section 42 of the Bihar and Orissa Excise Act, 1965 in the year 1992 but the petitioner has not chosen to challenge the said action and it is only after about more than 8 years this writ petition has been filed for refund of the amount and as such this writ petition is not worth to be considered. He further submits that when the cancellation order has been accepted it itself suggests that the petitioner is at fault. He submits that the decision has been taken by the authority in exercise of power conferred U/s.42 of the Act, 1965 due to the large scam spurious liquor was found from the different Indian made foreign liquor shops in the State resulting in to large number of casualty which after chemical examination has found to be true, Government after taking into consideration this aspect of the matter has exercised the jurisdiction conferred U/s.42 of the Excise Act, 1965. He further submits that under sub-section 3 of Section 42 of the Act, 1965 if any action is being taken, the lincencee will not be entitled to get any refund. In the light of this argument the submission has been made to dismiss the writ petition. 4. We have heard learned counsels for the parties and perused the documents available on record. The undisputed fact in this case is that the exclusive privilege of six Indian made foreign liquor off shops have been allotted in favour of the petitioner by the Government in exercise of power conferred U/s.22 of the Act, 1915 for the year 1992-93. The licencee -the petitioner herein started carrying out of his business, but the Government after coming to know that spurious liquor is being sold out resulting in to large number of casualty and the same is being spread out in the entire State, invoked the jurisdiction conferred U/s.42 of the Act, 1915 which confers power upon the state authority to cancel or suspend the exclusive privilege granted in favour of one or the other licencee, for better appreciation of provision of Section 42 of the Act 1915 is being reproduced herein below:- “42. Power to cancel or suspend licence, permit or pass-(1) Subject to such restrictions as the [State Government] may prescribe, [the authority who granted any exclusive privilege, licence] permit or pass under this Act may cancel or suspend it (a) if it is transferred or sublet by the holder thereof without the permission of the said authority ; or (b) if any duty or fee payable by the holder thereof be not duly paid; or (c) In the event of any breach by the holder thereof, or by any of his servants, or by anyone acting on his behalf with his express or implied permission, of any of the terms or conditions thereof; or (d) if the holder thereof is convicted of any offence punishable under this Act or any other law for the time being in force relating to revenue, or of any cognizable and non-bailable offence, or of any offence punishable [under the Dangerous Drugs Act 2 of 1930] or [under the Merchandise Marks Act 4 of 1889], or under any Section which has been introduced into the Indian Penal Code, XLV of 1860 by Section 3 of that Act; or (e) if the holder thereof is punished for any offence referred to in Clause (8) of Section 167 of the ‘[Sea Customs Act, VIII of 1878]; or (f) where a licence, permit or pass has been granted on the application of the holder of an exclusive privilege granted under Section 22, on the requisition in writing of such holder; or (g) [if the conditions of the exclusive privilege, licence] permit or pass provide for such cancellation or suspension at will. (2) When [an exclusive privilege licence] permit or pass held by any person is cancelled under Clause (a), Clause (b), Clause ( c), Clause (d), or Clause (e) of Sub-section (1), the authority aforesaid may cancel [any other exclusive privilege, licence permit or pass granted to such person [by or by the authority of the State Government] under this act, or under any other law for the time being in force, relating to Excise, or under the Opium Act 1 of 1878. (3) The holder of [an exclusive privilege licence] permit or pass shall not be entitled to any compensation for its cancellation or suspension under this Section, or to the refund of [any fee or consideration money] paid or deposit made in respect thereof.” We after going through the provision of Section 42 have found that the power has been conferred to the Government to take action for cancellation or for suspending the exclusive privilege if it is a transfer or sublet by the holder thereof without the permission of the said authority or, if any duty or fee payable by the holder thereof be not duly paid, or in the event of any breach by the holder thereof, or by any of his servants, or by anyone acting on his behalf with his express or implied permission, or any of the terms or conditions thereof or, if the holder thereof is convicted of any offence punishable under this Act or any other law for the time being in force relating to revenue, with the other conditions therein with the specific stipulation that if the licence will be cancelled under the provision of Section 42, the holder of permit or pass shall not be entitled to any compensation for its cancellation or suspension under this Section, or to the refund of any fee or consideration money paid or deposit made in respect thereof. Admittedly, in this case exclusive licence granted in favour of the petitioner had been cancelled in exercise of power conferred U/s.42 of the Act, 1915 on 18.7.1992 which has not been challenged and as such the decision taken by the authority U/s.42 has attained its finality and therefore the provision of Section 42(3) will be attracted, in view thereof the petitioner cannot be held entitled for refund. Taking into consideration the discussion made hereinabove and the statutory provision, we find there is no merit in this writ petition and accordingly the writ petition stands dismissed.