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Himachal Pradesh High Court · body

2019 DIGILAW 2009 (HP)

A K Vasishta v. State Of H P

2019-12-23

JYOTSNA REWAL DUA, L.NARAYANA SWAMY

body2019
JUDGMENT L. Narayana Swamy, C.J. - Learned Counsel for the parties submit that this Court vide judgment dated 06th September, 2019, has disposed of the similar matter i.e. CWP No. 5232 of 2014, titled as M/s Mohan Meakin ltd. Vs. State of H.P. and others alongwith connected matters (CWP No. 8047/2014 and CWP No.2069 of 2015) and pray that these writ petitions may be disposed of in terms of the aforesaid judgment. Their statements are taken on record. It is apt to reproduce operative portion of the said judgment hereinafter:- "150. Insofar as the wholesalers and manufacturers are concerned, the Rules are silent about any obligation to lift the minimum guaranteed quota. Therefore, it is open to the respondents to fill up this void, in the form of Annual Policy Announcements, as held by the Supreme Court in Surinder Singh, which was followed in Orient Paper Mills. 151. But since what is sought to be collected by way of additional fee and penalty, is as per the terms of the contract, they can be tested in terms of the provisions of the Contract Act. When so done, it is found that the wholesalers and manufacturers are imposed with a financial burden, not for their own failure to fulfill the contractual obligations, but for the failure of third parties namely retailers to fulfill their obligations. We have elaborated this position elsewhere while dealing with the second contention of the manufacturers. In addition, the additional fee and penalty sought to be collected from all the three categories of persons, exceeds the loss of revenue that the State would suffer in the form of excise duty. We have given detailed mathematical calculation with regard to the same. For one act of failure on the part of one of the three parties, which results in the loss of revenue in the form of duty of excise to the extent of a particular amount, it is unreasonable to impose a burden upon all the three categories of persons resulting in the collection of more amount than what was lost by way of duty of excise. Therefore, condition Nos. 10.28(A) (8) and 10.29 of the policy conditions for the year2014-15, insofar as manufacturers and wholesalers are concerned, are liable to be set aside. 152. Therefore, in fine- (A) the writ petitions filed by the manufacturers and wholesalers are allowed and condition Nos. Therefore, condition Nos. 10.28(A) (8) and 10.29 of the policy conditions for the year2014-15, insofar as manufacturers and wholesalers are concerned, are liable to be set aside. 152. Therefore, in fine- (A) the writ petitions filed by the manufacturers and wholesalers are allowed and condition Nos. 10.28(A) (8) and 10.29, insofar as they impose the burden of additional duty and penalty for failure to lift the minimum guaranteed quota are set aside, however with a rider that they shall pay the license fee for the entire minimum guaranteed quota; and (B) the writ petitions filed by the retailers are partly allowed and condition No 4.3 of the policy announcements for all the 4 years namely 2013-14 to 2016-17 are set aside, with a rider that the retailers will be liable to pay the license fee for the entire minimum guaranteed quota together with the additional fee as stipulated in Rule 35-A (22) of the Himachal Pradesh Liquor License Rules, 1986 for all the years during which the said rule is in operation." 2. Under these circumstances, these writ petitions are disposed of alongwith pending application(s), in the light of the judgment, supra. The judgment, supra shall form part of this judgment, also.