NARAYAN PRASAD Vs. STATE OF ORISSA

JUDGEMENT

(1.) This order shall also govern the disposal of OJC. No. 827/92 (Smt. Kamala Saha v. State of Orissa) OJC No. 1359/92 (Ganouri Prasad v. State of Orissa) and OJC No. 1361/92 (Lalan Prasad Gupta v. State of Orissa). The petitioner has filed this petition for quashing the fixation of the Minimum Guaranteed Quantity (in short, 'M. G. Q') in respect of his liquor shops and also prays for issuance of an appropriate writ, direction or order, quashing the notice of demand dated 9 -12 -1991 (Aunexure -3 to the petition) whereby the petitioner is required to pay a sum of Rs. 1,80,150/ - towards the duty, on shortfall in lift the M.G.Q.

(2.) THE facts giving rise to the petition are hereafter stated : The petitioner is an Excise Contractor. For the year 1991 -92 (1 -4 -1991 to 31 -3 -1992) tenders were invited by the Collector, Kalahandi for granting exclusive privilege in respect of country spirit in the District of Kalahandi. The petitioner and others participated in the auction -cum -tender. As the M.G.Q. fixed for the year 1991 -92 was (according to the petitioner) about 52% more than that of the previous year, i. e., 1990 -91, representations were made by the petitioner and others to the Collector. It is contended that the petitioner and others participated in the auction under protest. The petitioner being the highest bidder was granted the exclusive privilege, and accordingly, a licence was issued on his depositing the consideration money as fixed by the opp. party Nos. 3 and 4. After obtaining the licence, the petitioner opened the shops. However, there being a shortfall, a notice dated 9 -12 -1991 was issued by the authorities requiring the petitioner to deposit towards duty, the amount representing the shortfall of lifting of the MGQ. The notice provided that in case the petitioner failed to deposit the amount towards the shortfall, the same would be adjusted from out of the advance consideration money. On his representation not being decided, the petitioner has filed this petition.

(3.) THE opp, party Nos. 1 to 4 filed a counter affidavit opposing the petition. The averment of the petitioner that the increase in the MGQ is by 52% has been specifically denied, it is submitted that the increase is by 22.2% to 23.3%. It is further contended that the Excise Policy dated 15 -1 -1991 was received by the Collector on 21 -1 -1991 whereas the MGQ for the relevant shops was fixed and approved by the Excise Commissioner prior to that date, and as such, the fixation, though it was in excess of 15%, could not be said to be erroneous. It is further contended that the fixation of MGQ was made considering the potentiality of sale and by taking other relevant factors into consideration, and the petitioner and other contractors were aware of the MGQ at the time when they participated in the auction -cum -tender It was also contended that the petitioner having accepted the contract cannot now turn around and challenge the fixation of MGQ for the year 1991 -92. It is agreed that as the demand was justified being the duty towards shortfall of the MGQ, the challenge of the petitioner to Annxure -3 is untenable. Sub -rule (3) of Rule 6 -A of the Orissa Excise (Exclusive Privilege) Rules, 1970, according to the opp. parties, is valid and has bean framed in exercise of powers under Sub -Section (1) of Section 89 of the Bihar and Orissa Excise Act, 1915 which empowers the State Government to make rules to carry out the objects of the Act, or any other law for the time being in force relating to the excise revenue and also by Section 89 (2) of the Act which empowers the State Government to make rules for regulating the import, export or transport of any intoxicant. It is further contended that under Section 22(1) of the Act, an exclusive privilege can be granted to any person on such terms and conditions and for such period as the State Government may think fit. The M. G. Q. being one of the conditions for grant of a licence, the Government was fully empowered in framing rules which related to fixation of M. G. Q. and also for providing the consequences which would follow on reach of such condition. This power, according to the opposite parties, flows from a combined reading of Section 22, 27, 29 and 89 of the Act. According to the opposite parties, the provision relating to the M. G. Q. ought to be considered as a condition of licence, and that being a condition, subject to which the licence was issued and accepted by the petitioner, the petitioner cannot, after operating the licence, challenge the same. He is bound by the conditions and is, therefore, liable to pay the amount demanded to compensate the State for the loss sustained by it for failure on the part of the petitioner to lift the M. G. Q.