RUDRA AND COMPANY Vs. STATE OF H.P.

JUDGEMENT

(1.) THIS writ petition has been filed by M/s. Rudra and Company and its partner Jagdish Chander under Articles 226/227 of the Constitution of India seeking the following reliefs: (i) quash the order Annexure P -1 in so far as it directs the closure of the L -2 and L -14 liquor vends of the petitioners on a day after the elections i.e. 10th November, 1993 and . on the day preceding the counting day, the day of counting and the day of subsequent to the counting i.e. 26th, 27th and 28th November, 1993 or any other day on which counting takes place; (ii) direct the respondents to reduce the licence fee proportionately in case the vends are directed to be closed or remain closed on any of the days other than those specified in the H.P. Liquor Licence Rule 1986 i.e. 10th November 12th, 26th, 27th and 28th November or any other day of counting as per Annexure P -1. (iii) quash the order Annexure A -4 and allow the refund of licence fee of Rs.5,50,000/ - to the petitioners; (iv) direct the production of all the relevant records; (v) allow any other appropriate writ, order or direction which the court in the facts and circumstances may deem fit and proper; (vi) allow the costs of the petition.

(2.) THE case of the petitioners is that the petitioner No. 1 -Company participated in the auction of the excise licences for the retail vends of country liquor and foreign liquor etc. in HP. for the financial year 1993 -94. Being the highest bidders the petitioners were granted licences in Form L -2 and L -14 for the sale of Foreign Liquor and Country Liquor at Solan, Kandaghat, Dharampur, Jabli, Parwanoo and Kasauli units of District Solan on annual licence fee of Rs.3,95,000/ -. In the matter of conditions dealing with licence, sale, hours and dry days, the licences are governed by the H.P. Liquor Licence Rules, 1986 (hereinafter referred to Licence Rules framed under Section 59 of the Punjab Excise Act, 1914 (for short the Act) as applicable to the State of H.P. According to the petitioner as per terms and conditions of excise announcements (Annexure P -2) and Licence Rules, the retail vends of liquor were closed only on the polling day and two days preceding the polling day. The licence fee which the petitioners had to pay works out Rs.1,10,000/ - per day. The election of the H.P. State Legislative Assembly was held on 9.11.1993 and the counting was fixed for 27th November, 1993. The Financial Commissioner (Excise) -cum -Excise and Taxation Commissioner, H.P. (respondent No. 2 herein) by order dated 2.11.1993 (Annexure P -1) ordered that all liquor vends shall remain closed on the polling day; two days preceding the polling day; the day after the polling day; the day before the counting day, counting day(s) and the day immediately thereafter in connection with the election of the H.P. State Legislative Assembly. As a result of Annexure P -1 all the liquor vends of the petitioners will have to remain closed on 10.11.1993; 26th, 27th and 28th November, 1993 as well as besides, 7th, 8th, 9th and 27th November, 1993. According to the petitioners the number of days could be further extended in case counting fixed for 27th November, 1993 was not completed on that day. The petitioners stated that the order (Annexure P -1) has no nexus with the excise policy or condition of auction and the closure of the liquor vends could not be ordered to be closed for more than three days i.e. the polling day or two days preceding the polling days as per Rule 37(11)(e) of Excise Rules as the closure of the liquor vends for more than three days had resulted in considerable hardship and loss of income to the petitioners. The petitioners also stated that the order (Annexure P -1) passed by respondent No. 2 was illegal, void and against the statutory Rules and Excise Act besides being arbitrary and violative of Article 14 of the Constitution of India. The petitioners during the pendency of the writ petition, represented to the respondents to allow exemption of charging of licence fee and refund of the fee of Rs.5,50,000/ - during the days viz. 10.11.1993, 26.11.1993, 27.11.1993, 28.11.1993 and 29.11.1993 i.e. after the election; the day before the election, the days of counting and the days after the counting when the licence premises remained closed. The respondents by order dated 16.7.1994 (Annexure P -4) rejected their request to refund the licence fee for the aforesaid days. He petitioners also stated that respondent No. 2 has exercised the power on the dictate and mandate of the Election Commissioner of India (respondent No. 4 herein) without independently applying his mind to assess the need of imposing the restrictions of closing the liquor vends. As per the petitioners the respondent -State of HP. through Secretary Excise and Taxation to the Govt. of H.P. (respondent No. 1 herein), the Asstt. Excise and Taxation Commissioner (respondent No. 2 herein) and respondent No. 3 -Financial Commissioner (Excise) all have failed to exercise the jurisdiction vested in them by law in not ordering the refund of the licence fee to the petitioner for 5 days at the rate of Rs.1,10,000/ - per day when the liquor vends of the petitioners remained closed as per order (Annexure P -1) passed by respondent No. 3. On these premises the petitioners have prayed for the grant of above said reliefs.

(3.) REPLY on behalf of respondents 1 to 3 was filed on the affidavit of Shri V.K. Bhatnagar who at the relevant time was posted as Excise and Taxation Commissioner. The respondents have stated that petitioner No. 1 -Company was granted licence in Form L -2 and L -14 for the sale of Indian Made Foreign Liquor and Country Liquor, at Solan, Kandagat, Dharampur, Jabli, Parwanoo and Kasauli Unit under the Punjab Excise Act, 1914 as in force in the State of H.P. and Excise Rules framed there under from time to time. Licence Rules, - 1986 stipulated for various terms and conditions for the grant and regulating the various Excise Licences. Rule 37(11)(e) of Licence Rules, provides the closure of the vends on the following days : 1. Independence Day (15th August). 2. Mahatma Gandhis Birthday (2nd Oct.) 3. Republic Day (26th January). 4. Martyrdom Day (30th January).