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2018 DIGILAW 254 (MP)

Aman Jaiswal v. State of M. P.

2018-03-05

HEMANT GUPTA, VIJAY KUMAR SHUKLA

body2018
ORDER 1. The challenge in the present writ appeal is to an order passed by the learned Single Bench on 20.2.2018, whereby the Court passed an interim order to the following effect : “ **** **** **** Under such circumstances, it was considered apposite to strike a balance between the petitioner and the respondent-State without jeopardizing rights of either parties. Therefore, Shri Tiwari was called upon to disclose revenue involved and the probable loss in the event the petitioner is permitted for renewal of licence for the aforesaid groups. Shri Tiwari, on instructions of Shri Solanki, OIC has passed on Board reserved price for the year 2018-19 for both the groups, which are as under: 1. For Group (DMH/F-1) Bus Stand No. 2, Distt. Damoh- Rs.11.87 crores. 2. For country liquour (sic) group of Panna Naka Distt. Satna- Rs. 4.41 crores. It is submitted by Shri Tiwari, on instruction, that if 50% of the reserved price is secured by way of bank guarantee, petitioner's licence for the said groups may be renewed purely as an interim measure subject to final outcome of the petition. Shri Nagrath though accepts the proposal but expresses apprehension that respondents may initiate hostile actions against petitioner-firm or its partners in the individual capacity and that may jeopardize their business prospects, hence, prays for protection against any coercive action against the firm or any of its partners in the capacity of the partner of the said firm. Though the prayer is opposed but the respondents are prepared to renew the licence of the petitioner-firm on deposit of 50% of the reserved price for the year 2018-19, it shall be appropriate that the firm or its partners are not made to suffer the stigma of defaulter at the instance of respondents in their independent business ventures during the pendency of this petition. Accordingly, as an interim measure, it is directed : 1. The petitioner shall submit an application for renewal of licence for both the aforesaid groups viz. i) Group (DMH/F-1) Bus Stand No. 2, District Damoh and (ii) Country liquor group of Panna Naka, District Satna within three days and the District Level Committee shall renew the licence of the petitioner-firm on petitioner's depositing 50% of Rs. 11.87 crores and 50% of Rs. 4.41 crores which is the reserved price for the year 2018-19 for the respective groups, by way of bank guarantee. 2. 11.87 crores and 50% of Rs. 4.41 crores which is the reserved price for the year 2018-19 for the respective groups, by way of bank guarantee. 2. The bank guarantee so deposited shall be subject to further orders by this Court. 3. The petitioner-firm and its partners for the reasons of their status as partners of the said firm shall not be treated as defaulter for any purpose whatsoever during the pendency of this writ petition. It is made clear that this arrangement is purely of interim nature and subject to final decision of the writ petition.” 2. The petitioner was granted license for sale of liquor for Shanwarha Group Liquor Shop, District Burhanpur for the financial year 2016-17. The said license was renewed for the year 2017-18 as well. The petitioner requested the State to remit his license fee already submitted as he was unable to operate his shop. Ultimately petitioner was served with a notice dated 28.4.2017, whereby the writ petitioner was granted last opportunity to deposit a sum of Rs. 36,14,284/-, as license fee for the month of April, 2017 towards the amount due for liquor license granted in District Burhanpur. This Court passed the following order on 8.5.2017 : “The petitioner is challenging the order dated 28.4.2017 (Annexure P12), by which a notice was issued to him and to submit Rs. 36,14,284/- as a security amount and if it is not deposited by first of May, 2017, his licence will be cancelled and re-auction will be done and in case the amount in re-auction is less than the aforesaid amount, then the difference of the amount will be recovered as arrears of revenue. The counsel for the petitioner has filed an application, I.A. No. 6249/2017, for taking subsequent events on record. Along with the application, the details of bank guarantee encashed by the respondent/State. This bank guarantee is about Rs. 79,52,000/-. Though, the learned counsel for State has objected that this application is not supported by an affidavit, but considering the fact that the factum of encashment of bank guarantee is not denied by the counsel for the State, the same is taken on record. Since the bank guarantee has already been encashed by the State, under the circumstances, no further coercive action shall be taken against the petitioner in pursuance to order dated 28.4.2017 (Annnexure P-12).” 3. Since the bank guarantee has already been encashed by the State, under the circumstances, no further coercive action shall be taken against the petitioner in pursuance to order dated 28.4.2017 (Annnexure P-12).” 3. The writ petitioner filed an interlocutory application (I.A. No.2003/2018) on 19.2.2018, wherein, the petitioner has produced the orders dated 16.2.2018 passed by the Collectors of the District Damoh and Satna, whereby request of the petitioner for renewal of liquor license for the year 2018-19 was declined in terms of Clause 19.4 of the Excise Policy published on 1.2.2018. The petitioner sought quashing of the said communications by way of the aforesaid interlocutory application. 4. The argument of the writ petitioner before the learned Single Bench was that writ petitioner is being treated as a defaulter though the order passed by this Court is that no coercive action shall be taken against the petitioner and that the loss, if any due to the alleged default, can be secured by forfeiture of earnest money of Rs. 36 Lacs and encashment of collateral security of Rs.79 Lacs. It was argued that under these circumstances neither the petitioner firm nor the partners can be treated as defaulters for any purpose nor renewal of license fee for the aforesaid group of shops can be denied. It is considering the said argument this Court passed the order as reproduced above. 5. We find that challenge in the writ petition was to demand of Rs.36,14,284/-, as license fee for liquor vend situated in Burhanpur District, whereby by virtue of amendment application, the petitioner has sought to dispute the orders passed by Collectors of District Damoh and Satna, by which the petitioner was found to be disqualified for grant of license for the year 2018-19 in terms of Clause 19.4 of the Excise Policy. The learned Single Bench has not set aside either the order-dated 28.4.2017 or the orders passed by Collectors of Damoh and Satna dated 16.2.2018, but has directed to grant license for the year 2018-19 to the petitioner. 6. We find that the license for sale of liquor can be issued only in terms of the Excise Policy and not by the Court in the manner adopted by the learned Single Bench. 6. We find that the license for sale of liquor can be issued only in terms of the Excise Policy and not by the Court in the manner adopted by the learned Single Bench. The order passed by this Court on 8.5.2017 contemplates that no coercive steps shall be taken against the writ petitioner but that does not mean that the writ petitioner ceased to be defaulter. Therefore till such time, the writ petitioner was defaulter, he could not be considered eligible for grant of liquor licence. The petitioner a firm, is compendious name of all the partners. Therefore, the firm and its partners are defaulters and thus ineligible for the grant of licence. 7. If the petitioner was disqualified from participating for the grant of liquor license for the year 2018-19 in Damoh and Satna, it was an independent cause of action which was required to be challenged by way of independent writ petitions rather than impugning the same in the writ petition, whereby demand was raised in respect of recovery of license fee of liquor vend situated in District Burhanpur. 8. We find that an interlocutory application filed by the petitioner to dispute the disqualification for the grant of liquor licence in the Districts of Damoh and Satna in a writ petition challenging the recovery of dues for a vend situated in District Burhanpur lacks bona fide. The petitioners have tried to mislead the Court by including the challenge to the orders passed by Collector Damoh and Satna in a clandestine manner. Such subsequent disqualification has nothing to do with the challenge in the writ petition which was directed against the recovery of license fee. 9. Consequently, we find that the order passed by the learned Single Bench on 20.2.2018 cannot be sustained. The same is hereby set aside and the appeal is allowed. The State is directed to grant license for the liquor shops in Damoh and Satna in terms of the Excise Policy in accordance with law. 10. At the request of Shri Naman Nagrath, learned counsel for the writ petitioner, the writ petition be listed before the Division Bench for arguments on merits on 13.3.2018.