MD FIDA KARIM Vs. STATE OF BIHAR

JUDGEMENT

(1.) These sixteen writ petitions have been heard together and are being disposed of by a common judgment. Initially, out of these sixteen cases, fourteen cases of the year 1991 were taken up for final hearing at the admission stage itself with consent of the parties, having regard to the nature of the controversy and resultant state of uncertainty prevailing in the State of Bihar in regard to settlement of country liquor shops, India Made Foreign Liquor Shops (Foreign Liquor, in short) and spiced country Liquor shops during the last two settlement years, namely, 1990 -91 and 1991 -92. The hearing of these cases commenced on 14th August, 1991. When the hearing was resumed on 16th August, 1991, it was stated at the Bar that two other writ petitions in which the opposite view has been canvassed and which were admitted for hearing in March, 1990, are running on the daily board before another Bench. It was suggested that the merits of the contentions raised in the two groups of writ petitions being opposite to each other, the decision in one group of writ petitions may have hearing on the other group of cases and, in fact, there may be a chance of conflicting judgments being passed. The hearing of this case, accordingly, was adjourned to 20th August, 1991 to enable the parties to move the Hon'ble the Chief Justice for appropriate orders. The above noted two cases, being C.W.J.C. Nos. 1481 and 1879 of 1990 have accordingly, been listed before this Bench for hearing and heard. In this Judgment the petitioners of the writ petitions filed in the year 1991 will be referred to as 'the petitioners' while the petitioners of the other group of writ petitions of the year 1990, referred to above, will be described as the respondents'. Although the writ petitions filed in 1991 are more or less on the same lines, C.W.J.C. No. 2102 of 1991 has been treated as the leading case and, as such, wherever necessary, reference will be made to the facts stated and the different documents as numbered in the said case.

(2.) The controversy in these cases relates to the mode of settlement of the right of vend of country liquor, foreign liquor and spiced country liquor under the provisions of the Bihar Excise Act (in short 'the Act') and the rules framed there under. Prior to 1984, settlement of country liquor shops was being done by renewing the license according to, what was called, the sliding scale system. In 1984, the State Government decided to make settlement of country liquor shops by public auction. The said policy decision was unsuccessfully challenged in this Court in various writ petitions. The judgment of this Court is reported in, 1984 BBCJ 417. Thereafter, the settlement of such shops was made by holding public auction annually up to 1989 -90, the period commencing from the 1st of April of the year and ending on 31st March of the following calendar year.

(3.) According to the petitioners, during the currency of licensing period 1989 -90, the State Government took a policy decision on the basis of recommendations of a high power committee to make settlement of the aforesaid categories of excise shops for five years by renewing the existing licenses (for the year 1989 -90), subject to their fulfilling certain conditions such as their satisfactory record of performance, and their agreeing to take settlement for five years, on annual renewal basis, and subject to further conditions, such as enhancement of license fee at the rate of 10 per cent every year and enhancement of the Minimum Guaranteed Quota (MGQ) at the rate of 5 per cent every year. The petitioners have brought on record a copy of the Cabinet Memorandum dated 25th January, 1990, marked as Annexure -7, which, according to them, contains the underlying rationale for the aforesaid change in policy. It is said that pursuant to the aforesaid policy decision, duly approved by the Council of Ministers, the Excise Commissioner, addressed a communication dated 8th February, 1990, a copy of which has been marked as Annexure -8 informing the licensing authorities to take steps for settlement of such excise shops as per the amended policy of the Government. It would not be out of place to mention at this stage that as a necessary sequel to the aforesaid policy decision, on 17th February, 1990 necessary amendments in the Rules, namely, Rule 44 of the Government Rules framed under Section 89 of the Act as Rule 100 of the Board's Rules framed under Section 90 of the Act were made. The aforesaid amendments were duly published in the official Gazette on 7th March, 1990, to come into force on 1st April, 1990. It is said that, in the meantime, individual offers were made to the various existing licensees (of the year 1989 -90) to take settlement of the shops in question for five years i.e. for the period 1991 to 1995, as per the conditions mentioned in the aforesaid letter of the Excise Commissioner dated 8th February, 1990 and it is further said that in pursuance of the aforesaid offers, necessary Ekrarnama (agreement) was also executed by the consenting licensees, it is also said that on 7th March, 1990, six months' license fee was also deposited as per rules for the first year of settlement year i.e. 1990 -91. According to the petitioners, thus, a concluded contract came into existence on that very date i. e. 7th March 1990, although this was to come into force from the 1st of April. 1990.