KALI CHARAN JAGDISH PRASAD Vs. EXCISE COMMISSIONER

JUDGEMENT

(1.) This writ petition and writ petition Nos. 435 to 443 of 1981 are similar on facts and raise identical questions of law and as such can be conveniently disposed of by common judgment. The petitioner in writ petition No. 434 of 1981 held a licence for retail vend of Bhang for the year 1981- 82 in respect of Sadar Bazar shop in the city of Agra. The licence was granted to the petitioner as he was the highest bidder, which bid was accepted. In view of paragraph 373 of the Excise Manual, an amount equal to one-sixth of the licence fee appears to have been paid by the petitioner on the conclusion of the sale. The balance of the licence, fee, according to the petitioner, was payable in monthly installments of Rs. 8. 300/- each. The petitioner, as a holder of the licence for retail vend of Bhang was to get his supplies from the bonded warehouse of the Department, in which Bhang is stored which was supplied by a contractor recruited by the Department. It is averred that on 1st of April, 1981, the petitioner deposited in the Treasury, the Government duty and, the contract price for a stipulated quantity of Bhang which he wanted to lift. When the petitioner approached the authorities for the supply of Bhang, he found that Bhang was not available in the bonded warehouse and no supply was made to him till 12th of May, 1981. By a notice dated 4th May, 1981, the District Excise Officer, Agra, called upon the petitioner to pay the licence fee for the period 1st April, 1981 to 9th May, 1981 and intimated that in case the licence fee was not paid the licence would be cancelled and the shop re- auctioned and any loss resulting there from would be realised from the petitioner. The petitioner has challenged the demand of licence fee and the proposal to cancel his licence in the event of his failure to pay the fee for the period demanded. Counsel for the petitioner has contended that as the petitioner had paid the licence fee in advance, and had also deposited the Government duty and the contracted price of Bhang in the Treasury, he was entitled to a prompt supply of Bhang and inasmuch as admittedly no supply was made to him for the period starting 1st April, 1981 to 12th May, 1981, no demand for licence fee for this period could be made from him. In this connection he has drawn our attention to paragraph 957 of the Excise Rules. This provision entitles a licensed vendor to prompt supply of Bhang on proof of payment of Govern ment duty and contract price. In the event of the supply contractor failing to supply Bhang the Collector is enjoined to procure it from elsewhere and supply it to the vendor. The cost of the Bhang and the loss occurring to the Government can be recovered from the supply contractor who also becomes liable to penalty at the discretion of the Excise Commissioner for an amount equal to double the rate of duty of Bhang not supplied. This provision no doubt, entitles the licensed vendors to a prompt supply of Bhang and casts a duty on the Collector to arrange for supply in case the supply contractor of the Department is unable to do so, but there is no indication in this provision nor have we been able to find out anything in the Act which entitles the licensee to withhold payment of the licence fee for the period during which he has not been supplied with Bhang. It appears that in order to give relief to licensees in such cases, provision has been made in paragraph 179 for grant of remission of licence fee by the State Government. This provision, however, comes into play only if the licence fee has been deposited. An order in one such case has been filed in the present petition. This however, cannot help the petitioner in getting relief from this Court at the present juncture under Article 226 of the Constitution. The reason being that a mandamus can only issue in case the State Government is under a statutory liability to remit the licence fee in case there is non-supply or short supply of Bhang. As indicated earlier we have not been able to find any such provision. The appropriate remedy open to the petitioner appears to be by filing a suit for damages or for claiming a remission under paragraph 179. It was next contended that inasmuch as the Department had failed to ensure the supply of Bhang, which it was bound to supply under the contract, it could not proceed to cancel the licence of the petitioner on the ground that there had been a default in the payment of licence fee. For this reliance was placed upon Section 65 of the Contract Act and it was urged that the licence for the period 1st April, 1981 to the 12th of May, 1981, became void on account of non-supply of Bhang and as such the State Government was bound to compensate the petitioner or to restore the advantage which had accrued to it on account of the void contract. It is not necessary for us to express any opinion as to whether Section 65 of the Contract Act will apply to a, situation like the one in hand, for, we are of the' view that assuming that Section 65 of the Contract Act applies, the proper forum for restoration of the advantage which the State Government has enjoyed or for compensa tion is the Civil Court. We are. also unable to find any provision in the Act or the Manual which would disentitle the State Government from cancelling the licence on the ground of default in payment of the monthly installments in the case like this. Thus, although on facts our sympathies lie with the petitioner we are unable to grant any relief under Article 226 of the Constitu tion. The proper remedy for the petitioner is no approach the Excise Com missioner under paragraph 179 of the Excise Rules or to file a civil suit for damages. The petitions accordingly fail and are dismissed. The Stay orders are discharged. There shall be no order as to costs. .