CHAITRAM Vs. SUPERINTENDENT OF EXCISE

JUDGEMENT

(1.) THE petitioner was granted exclusive privilege in respect of four outstill liquor shops at Jatni, Naharpara, Daspalla and Chandka all located in the district of Puri under Section 22 of the Bihar and Orissa Excise Act for the year 1972-73 on a monthly consideration of Rs. 50,500/- by the State Government. Licenses were issued as required under Section 22 (2) of the Act to the petitioner. The petitioner had, as required under the rules, deposited a sum of Rs. 1,01,0007-being the sum equal to two month's consideration money and had undertaken to pay every month's consideration money on the first day of the subsequent month. He filed O. J. C. No. 633 of 1972 in this court challenging the vires of some of the provisions of the Act and the Rules made thereunder, and applied for interim orders. On 248-72, this Bench gave the following directions:--

(2.) IN the counter-affidavit of the Deputy Commissioner of Excise it has been contended that there was no compliance with the direction dated 24-8-72. The government account is said to have been credited only on 19-12-72 when the cheque given by the petitioner was encashed. According to the opposite parties, therefore, for non-compliance with the conditions indicated in the order of 24-8-72 there has been an automatic vacation of the stay. Consequently the cancellation is justified and the petitioner is not entitled to any relief.

(3.) DURING the hearing of the petition, Mr. Mohanty relying on the decision of the supreme Court in 25 ITR 529 = (AIR 1954 SC 429) (Commr. of Income-tax v. Ogale Glass Works Ltd.) submitted that when the cheque was not dishonoured on presentation it must be taken to have been a payment on the date when the cheque was accepted by the State Bank. The State Bank was the agent of the state Government and when the cheque was accepted on the last day indicated in this Court's order, there must be taken to be a full compliance with the direction because notwithstanding the actual date of encashment which is a subsequent event, payment must be taken to relate back to the date of receipt of the cheque. The learned Additional Government advocate appearing for the opposite parties disputes this contention. According to him, the petitioner has not been able to show that payment by cheque was acceptable either under the rules or in terms of this Court's order. In 25 ITR 529 = (AIR 1954 SC 429) referred to above admittedly payment by cheque was in terms of the agreement. The rules in question which can be taken to represent the usual practice of the department do not contemplate payment by cheques, nor did our order direct payment by such method. We accept the learned Additional Government Advocate's contention that tender of the cheque to the State Bank of India on the last date fixed for compliance, particularly when indisputably the payment was actually received, on 19-12-72 would not amount to compliance with our order.