RAMESH KUMAR JAISWAL Vs. STATE OF M.P.

JUDGEMENT

(1.) THE factual matrix and the questions of law involved being similar in these two writ petitions they were heard analogously and are disposed of by this common order. For the sake of clarity and convenience the factual aspects in W.P. No. 765/98 are adumbrated herein.

(2.) THE Petitioner is an excise contractor and carries on the business of sate of liquor under the licence issued by the State Authorities. For the year 1997 -98; i.e. 1.4.1997 to 31,3.1998 the Respondents held public auction for grant of licence for retail sale of sealed bottles under the auction amount adjustment system in February/March 1997 at Sidhi district for waidhan group of shops comprising of 22 country liquor shops and 4 foreign liquor shops. Before the auction the Respondents had published a sale -memorandum under the authority of Respondents No. 3 and 4, namely, the Collector, Excise, and the District Excise Officer, Sidhi which contained certain conditions subject to which the licence was proposed to be granted. In the sale memorandum the Respondents reiterated the conditions relating to auction amount adjustment system. Keeping in view the conditions of the sale -memorandum which was putforth to the general public the Petitioner participated in the public auction. The Petitioner was the highest bidder having offered Rs. 3,75,00,000/ - which was accepted and eventually the said group of shops was knocked down in his favour. After completing necessary formalities, a licence in form CS -2A under Rule 9 of the Country Spirit Rules, 1995 was issued in favour of the Petitioner. It is stated that according to the condition of the licence and the provisions of the prevalent Rules the petitoner was receiving supply of both country and foreign liquor from the warehouse on deposit of the excise duty. Before obtaining supply the Petitioner was required to deposit the duty for the whole amount. The Petitioner deposited the amount in question for the months of April, May, June and August, 1997 and the supply was made available to him. According to the Petitioner the said supply might have exceeded the requisite quantity, i.e. last year's quota plus 15% for the concerned shop, but no objection was raised by the departmental authorities. However the Petitioner received a notice dated 16.1.1998, Annexure -P.4, deposit a sum of Rs. 2,23,986/ - within 15 days from the date of receipt of the notice in the Treasury towards the duty payable by the Petitioner on the excess quantity of liquor lifted during the months of April, May, June and August, 1997. In the said notice it was stated that the Petitioner during the aforesaid months had availed supply of liquor in excess of the requisite quota. The said demand is the cause of grievance of the Petitioner.

(3.) A counter affidavit was filed in W.P. No. 4322/97 which has been adopted in this case. The stand of the State and the functionaries is that in accordance with the provision of condition II -A of the General Licence Conditions the Petitioner was given benefit of adjustment of excise duty to the extent of 15% over and above the quantity of liquor lifted by the Petitioner in the corresponding month of the previous year for that particular shop which has been leased out to him and this condition was duly accepted an implemented against all persons from 1.4.97 onwards and accordingly recoveries as and when required to be made were made from the concerned licensee in case he had lifted more than 15% over and above quota fixed in the previous year in respect of the particular shop concerned. As there was complaint in respect to the prevalent situation the government after duly considering the grievance of various licensees brought a notification dated 14.8.97 published in the gazette amending the proviso to Clause 2 -A of the General Condition Rules and gave the benefit keeping the group of shops as one unit and accordingly from 14.8.97 onwards the benefit of this adjustment of 15% was given in relation to the entire group of shops leased out to a licensee. Apart from this, various other provisions of the Act and Rules have been referred to in support of their stand.