SUNITA SENAPATI Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS Writ Petition has been filed with a prayer for quashing the guidelines prescribed under Clause 23(B) of the Circular dated 25.02.2010 (Annexure -4) for the year 2010 -11 (for short Guidelines 2010 -11) pertaining to excise duty and fees structure and for a direction to the opp.parties not to reduce the percentage of profit as prescribed under Circular dated 19th December, 2006.

(2.) BEREFT of unnecessary details facts and circumstances giving rise to the present writ petition are that the petitioner is a licencee under O.P. No.1 for running IMFL Off Shop at Patia and Rasulgarh No.II, Bhubaneswar. Prior to 2001, liquor business in the State of Orissa was directly handled by the manufacturers through their wholesalers and retailers. On the 1st day of January, 2001, the Orissa State Beverages Corporation Ltd. (for short 'the Corporation) was established to carry on wholesale trade and distribution of foreign liquor in the State of Orissa and it became mandatory for all the IMFL Off Shopkeepers to purchase liquor from the Corporation for the purpose of sale in retail. For the fist time in the year 2006, it ws decided by the State Government for fixation of maximum retail price of IMFL and Beer bottle. Accordingly, the Government of Orissa in Excise Department vide its letter dated 19th December, 2006 (Annexure -3) wrote to the Managing Director of the Corporation informing that the Government had approved the recommendation of the Price Fixation Committee of the Corporation regarding the principles and formula for determination of Maximum Retail Price (for short 'MRP) of IMFL and Beer bottle. In the said letter, it was further informed that the Corporation had been requested to intimate to all the suppliers and manufacturers to take effective steps for printing MRP inclusive of all taxes and duties on IMFL and Beer bottles. While determining the MRP, the profit margin for retailers on different products was provided varying from 41% to 25%. However, in the guidelines issued for the year 2010 -11 under Annexure -4, the Government of Orissa in Excise Department has reduced the profit margin in respect of retailers like the petitioner on different products varying from 25% to 15%. This being the reason for which the present writ petition has been filed.

(3.) PER contra, Mr. Mishra, learned Addl. Government Advocate appearing on behalf of opposite parties argued that nobody has any vested right to deal with liquor trade. It is the privilege of a State. State parts with the privilege for the sake of revenue consideration. While parting with the privilege, the State Government is competent to prescribe the terms and conditions which cannot be termed to be violative of any principles of law. The authority after taking into consideration several factors including interest of the general consumers have come to the conclusion that percentage of profit of the retailers should be reduced for the year 2010 -11. The scope of judicial review or interference is very limited. As per Annexure -3, the retailers were getting profit margin from 12% to 41% depending upon the category of IMFL dealt with by them. The calculation made in Annexure -3 and 4 presumptive in nature. In practice, the retail vendors sell the IMFL at a lesser price than the maximum retail price in the competitive market reducing their profit margin. There has been huge growth in the sale of liquor n the State since 2005 -06. The Excise Commissioner in his letter No.6517 dated 01.10.2009 suggested the Government for limiting the retailers margin while fixing maximum retail price. After the matter was examined at length at the level of the Government in Excise Department and the Government in Finance Department, the Government has prescribed the guidelines under Clause 23(B) (Annexure -B). The matter relating to fixation of MRP has been fully decided by the Price Fixation Committee of the Corporation constituted by the State Government. In the State of Andhra Pradesh, retailers profit margin in relation to the IMFL is @ 20% and Beer at the rate of 25%. Similarly, in the State of Bihar, retailers margin is prescribed @ 15% on the MRP of the Brand. In support of his contention, Mr. Mishra, drawn the attention of this Court to the true copies of the letter No.8550 dated the 10.03.2010 of the Andhra Pradesh Beverages Corporation Ltd.and letter No.5590 dated 09.09.2008 of the Bihar State Beverage Corporation Ltd. under Annexure -B/2 series to the counter affidavit.