STATE OF M P Vs. RAMBABU YADAV

JUDGEMENT

(1.) STATE by this petition has called in question the order, Annexure P-1 dated 8.12.1998 passed by the Board of Revenue by which orders passed by the Collector and the Excise Commissioner, Gwalior imposing penalty against respondent No. 1 have been quashed. The respondent No. 1 was granted permit and licence for the purpose of setting up 14 country liquor shops and an agreement was entered into and thereafter CS-3 licence was executed Between the petitioner and the respondent No. 1 vide Annexure P-3 to P-16. Under the provisions of clause 2(C) of the aforesaid licence, it was obligatory on the part of respondent No. 1 to lift minimum quantity of liquor in all the 14 shops and in the event of respondent No. 1 failed to lift the minimum quantity of liquor, Collector was empowered to impose penalty at the rate of Rs.25/- per proof ltr.

(2.) IT is the case of petitioner that when respondent No. 1 failed to lift minimum quantity of liquor as mentioned in clause 2(C) of the licence, show cause notices Annexures P-17 to P-23 were issued to him. The respondent No. 1 did not file any reply. After considering the matter, the licensing authority, Collector, Gwalior issued orders, Annexure P-24 to P-30 imposing a fine of Rs.3,41,300/- on the respondent No. 1 for failure to lift the minimum quantity of liquor. In the meanwhile, a show cause notice, Annexure P-32 was issued to the respondent No. 1 and the respondent No. 1 filed his reply to the same vide Annexure P-33. As the reply was not satisfactory, order Annexure P-34 dated 30.4.1997 was passed by the Collector imposing penalty at the rate of Rs.10/- per proof ltr. i.e., Rs.1,07,120/ on the respondent No. 1. Being aggrieved thereof, respondent No. 1 preferred an appeal before the Excise Commissioner, M.P., Gwalior. The appeal was dismissed vide order dated 8.5.1998 (Annexure P-35). Against the order of Excise Commissioner, a second appeal was preferred by the respondent No. 1 and the Board of Revenue by the impugned order dated 8.12.1998 (Annexure P-1) has held that the Collector is entitled to impose the penalty subject to the maximum of Rs.10,000/-, and therefore, interfered with the order of penalty and reduced the same to Rs.10,000/-. It is the case of petitioner-State that the Board of Revenue without considering the provisions of section 28 and 48 of the Madhya Pradesh Excise Act, 1915 has passed the impugned order. It is submitted by them that imposition of penalty under section 48 of the Act is an independent action. The licensing authority is empowered under the conditions of licence to impose penalty as per the provisions contained in the licence. This is a power independent to the power available under section 48, and therefore, the Board of Revenue has committed material irregularity in holding that the Collector cannot impose penalty more than Rs.10,000/-. It is submitted by them that by wrongly applying the provisions of sections 48 and 48-A as amended with effect from 16.2.1995 vide the Amending Act No. 6 of 1995, the Board of Revenue has passed the impugned order which is unsustainable.

(3.) I have heard the learned counsel for the parties.