ARUN KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) Since all the five writ petitions involve common issues of facts and law as they seek to challenge the vires of the Bihar Excise (Amendment and Validating) Ordinance, 1998 which was subsequently replaced by the Bihar Excise (Amendment and Validating) Act , 1998 (6 of 1998) (hereinafter referred to as the Validating Act), hence, they have been heard together and are being disposed of by a common judgment. CWJC No.2291 of 1998 was argued as a leading case by Mr Y.V.Giri, Senior Advocate and therefore, unless otherwise indicated, facts have been taken from the records of said writ petition.

(2.) The facts are not in dispute and can be easily gathered from an earlier judgment rendered by a Division bench of this Court on 28.5.1996 in the case of M/s Sheo Narain Jaiswal Vs. The State of Bihar,1996 BBCJ(SC) 469. However, for the sake of ready reference and convenience, some essential facts may be noticed. In exercise of powers under Section 22 of the Bihar Excise Act, 1915, the State of Bihar decided to grant exclusive privilege for manufacture Patna High Court CWJC No.2291 of 1998 dt.02-09-2011 and wholesale supply of country liquor. The whole State of Bihar had been divided into nine zones for this purpose. The Board of Revenue, Bihar issued tender notice dated 3.6.1995 (Annexure-1) inviting tenders from interested parties for grant of the aforesaid privilege in different nine zones for the period 1st July, 1995 to 31st March, 1999. The terms of tender notice permit grant of exclusive privilege for manufacture and wholesale supply of country liquor to more than one licensee in a particular zone and it also provided that the licence fee had to be paid in equal proportion by the licensees in a particular zone. For each zone an annual guaranteed quantity was worked out on the basis of the gross sale of country liquor in different zones during the year 1994-95 and the licence fee was determined at the rate of Re.1 per L.P. litre of the guaranteed quantity. The successful tenderers such as the petitioners were informed of the grant of licence through different communications which contain a condition inconformity with the terms of the tender notice, noticed above. One such communication dated 23rd June, 1995 (Annexure-2) shows that the petitioner- Arun Kumar and another licensee for the Muzaffarpur zone were informed about annual minimum guarantee on the basis whereof licence fee was to be realized. In clause 6 of that communication for grant of the exclusive privilege it was indicated that for each licensee of a particular zone, the licence fee would be at the rate of Re.1 L.P. Patna High Court CWJC No.2291 of 1998 dt.02-09-2011 Litre on the minimum guaranteed quantity payable proportionately in advance. It was clarified that the licence fee would be payable only for each financial year in advance and in case the quantity supplied exceeds the guaranteed quantity, further licence fee would be payable by each licensee over such excess quantity.

(3.) When the petitioners who had been granted licence for exclusive privilege for manufacture and wholesale supply of country liquor along with some other licensees in same zone were coerced to pay the entire licence fee for the zone and not proportionately along with other co- licensee of the zone, two licensees- Sheo Narain Jaiswal and M/s Ellen Breweries & Distilleries Pvt. Ltd. preferred writ petitions which were allowed by the judgment in the case of M/s Sheo Narain Jaiswal (supra). The Division Bench of this Court considered the meaning of clause 2 (kha) and 3 (ga) of the notice inviting tenders as well as clause 6 of the conditions of grant to come to a conclusion that the terms of the grant provide that the licence fee calculated in the manner prescribed shall be paid by each of the grantee in equal proportion and no other meaning could be given to the said clause. The Division Bench after giving the aforesaid finding in paragraph 13 of the judgment went on to consider the results that would accrue if the case of the State was accepted and in paragraph 14 of the judgment it held that it would result in clear unfairness between sole Patna High Court CWJC No.2291 of 1998 dt.02-09-2011 grantee of any zone vis- -vis co-grantees in another zone. For the sake of convenience paragraph 13 and 14 of the judgment are reproduced herein below :