BHAJARAM CHOWDHURY Vs. STATE

JUDGEMENT

(1.) The grievance raised by the petitioner in this case is rejection of his representation by the State Government for reduction of the exclusive privilege amount fixed for the exclusive privilege of the country liquor shop at Bharagada taken by him. The petitioner became the exclusive privilege holder for the year 1990-91 for the shop at a price of Rs. 40,000/- per month. He admittedly failed to pay the dues and instead made a representation to the Collector, Ganjam for its reduction on the plea that because of the natural calamity of inundation on account of heavy rain, the shop was washed away and could not function in November and December of 1990. That application having not been disposed of and instead distress warrant having been issued against him, he filed O.J.C. No. 4959 of 1990 in this Court which was disposed of on 21-12-90 with direction that even if the petitioner's representation was disposed of, the Collector would re-hear him and that until the representation was decided, the distress warrant would remain unexecuted. The Collector having rejected the representation, the petition again filed O.J.C. No. 918 of 1991 before this Court claiming the self-same relief. That case was decided on 9-4-91, on the submission of the learned Government Advocate that the only authority empowered to grant remission of the exclusive privilege sum is the State Government, directing that the petitioner may file a representation before the Government which should be disposed of expeditiously by it and execution of the distress warrant to remain stayed till the matter was decided. The present writ petition has been filed as the representation has been rejected by the State Government. It is averred that no copy of the order of rejection has been made available to the petitioner and that he had been told that the order would be sent to him by post. On our direction, the learned Additional Government Advocate has filed counter affidavit in which the fact of rejection of the representation of the petitioner is admitted and stated that the rejection was on the basis of the report of the Tahsildar, Aska; the parawise comments of the Superintendent of Excise, and the order of the Collector dated 10-1-91.

(2.) The amount of exclusive privilege is fixed under Section 29 of the Bihar and Orissa Excise Act and under Sub-Section (3) thereof, the amount determined under Sub-Section (2) is declared to be final and binding on the parties making the offer once it is accepted. It is the submission of Mr. Tripathy that despite such finality attached, Section 39 of the Act in terms confers power on the Board of Revenue to direct reduction of the amount of fees payable for the unexpired portion of the grant period. That after the enactment of Section 29(3) by Orissa Acts 17 of 1970 and 10 of 1971 the Board's power under Section 39 to reduce the fees is no longer available has been settled by this Court in (1975) 41 CLT 934 (Ram Kishun Ram v. State of Orissa) holding that the finality as contemplated under Section 29(3) of the Act cannot be interfered with by the Board of Revenue under Section 39. It is however submitted by Mr. Tripathy that the very power under Section 39 is exercisable by the State Government and hence the representation made to the State Government in accordance with the direction of this Court in O.J.C. No. 918/91 was a statutory one. The submission is thoroughly misconceived. Section 39 in terms vests authority exclusively in the Board of Revenue without anything there to show that merely because Section 29(3) was introduced in the Act, the power of the Board got automatically transferred to the State Government. As was pointed out in ((975) 41 CLT 934 (supra), under the amended scheme the sum of money under Section 29(1) of the Act for the grant of exclusive privilege under Section 22 is to be determined either by auction or by calling tenders or otherwise as the State Government may direct. After ster such enactment there has been no corresponding provision enacted as in Section 39 of the Act. Hence, it must be taken that under the statute as it now stands, there is no provision of making any representation for consideration for reduction of the amount fixed which has otherwise become final.

(3.) Even so, though it cannot be said that a representation to Government statutorily lies for reduction of the amount, yet it cannot be said that a representation to the State Government is absolutely ruled out. Since ultimately the amount is due to the State Government, it must inherently be possible for the Government to consider cases of genuine difficulties and agree to accept a lower amount than what had been finally settled. Such a power must be inherent in all governmental activities as the right of representation of a person either affected by the State's action or under an obligation to the State can never be denied. This power of the State has to be held as flowing out of Art. 162 of the Constitution of India under which the executive power of the State is co-extensive with the legislative power. Hence, since no provision in the Excise Act prohibits exercise of discretion by the State Government in the matter, such administrative power in the State Government must be constitutionally inferred.