SHYAMLAL Vs. STATE OF RAJASTHAN & ORS

JUDGEMENT

(1.) The petitioner is aggrieved of the order dated 01.09.2015, passed by the District Excise Officer, Kota cancelling his country liquor composite licence in respect of a shop in village Borabas, District Kota.

(2.) Faced with a query from this Court as to why the petitioner should not be remitted to his remedy of an appeal under Section 9A of the Rajasthan Excise Act, 1950 (hereinafter "the Act of 1950"), Mr. Akhil Simlote, appearing for the petitioner has vociferously submitted that the impugned order is in denial of principles of natural justice and that in such situations it is a well recognized ground to entertain the writ petition directly by this Court. Counsel further submitted that the purported show cause notice first issued to the petitioner on 08.06.2015 in regard to levy of higher licence fee treating the shop in issue to be category "A" rural country liquor composite shop was based on a predetermination of the financial liability of the petitioner leaving little room for him to set up a defence. Other show cause notices were also similarly vitiated and on this count alone this Court ought to entertain the writ petition and set aside the impugned order dated 01.09.2015 requiring the respondent-Department to give the petitioner an opportunity of hearing against the rectification of his licence for the country liquor composite shop from category "B" to "A" issued for the financial years 2014-15 and 2015-16. Counsel further submitted that the injustice of the whole situation is evident from the fact that in the event the shop in issue in village Borabas had been categorized as an "A" category shop with higher licence fee and he told about it at the relevant time, the petitioner would have been at liberty not to enter into a contract with respondent-Department. Counsel further argued that the category of licence for the financial years 2014-15 and 2015-16 was disputed only in the month of May, 2015 and the petitioner could then at best be required to discontinue as licencee of the said shop and nothing more. In no event a retrospective demand arising from an enhanced licence fee owing to alleged rectification of a purported mistake in the first instance could have been set up against the petitioner. Counsel also relied upon the judgment of this Court in SBCWP No.19/2012, Narsingh Jat Vs. State of Rajasthan & Ors. and nine other connected matter, decided on 17.04.2014 wherein, according to him, in similar circumstances the notices of demand issued by the District Excise Officer were quashed and set aside and the petitioners required to make a representation for adjudication of the dispute afresh by a reasoned order after being given an opportunity of hearing. Mr. Simlote further submitted that the case of the petitioner cannot fall within the ambit of Rule 76(b) of the Rajasthan Excise Rules, 1956 (hereinafter "the Rules of 1956"). It was submitted that the change of category cannot be a clerical mistake as it has far reaching consequence on the financial liability of the licencee. Location of the petitioner's shop having been approved as a country liquor composite shop in category "B", it could not have been thereafter rectified to be country liquor composite shop in category "A".

(3.) Mr. R.B Mathur, appearing for the respondents-Department submitted that it is indeed true that the petitioner was granted a country liquor composite licence for the year 2014-15 and 2015-16 treating the location offered by him in village Borabas as falling in category "B" of country liquor composite shops in the rural area. However on the error having come to notice of the Excise Department, on a complaint made, in the exercise of its power under Rule 76(b) of the Rules of 1956, the said country liquor composite licence was rectified as one falling in category "A" of the Rural area country liquor composite shops. It was submitted that even at the time of giving out of the licence for the shop in issue, as per the shops notified by the Excise Department, the shop in Borabas rural area in District Kota was categorized as an "A" category shop. Counsel submitted that "A" category and "B" category shops in rural areas have been notified in the Excise Policy and Guidelines for the year 2014-15 and 2015-16. For categorization the distance of the shop in issue from the municipal area was only secondary and if a shop fell in any of the location detailed in category "A", it was to be so categorized. Counsel submitted that in this view of the matter, vide notice dated 08.06.2015 the petitioner was issued a show cause notice and albeit it did indeed reflect the differential between the licence fee for category "A" and category "B" country liquor composite shop in rural area and required the petitioner to pay, the petitioner was free to file his objection thereto if at all he could, in the circumstances, have any grievance with the shops in village Borabas being categorized as category "A". Counsel then submitted that in fact the impugned order dated 01.09.2015 reflects that the petitioner was provided more than ample opportunity on multiple occasions to set up his defence. In fact a representation being received from the petitioner, the Excise Commissioner required the Additional Excise Commissioner, Kota to consider the matter whereupon vide notice dated 29.07.2015 the petitioner was required to submit his defence to the demand. Counsel pointed out that the impugned order dated 01.09.2015 is a detailed and considered order and reflects that the petitioner was well aware of the case set up by the Excise Department requiring him to show cause as to why the differential in the licence fee of the shop in issue earlier wrongly given out as category "B" country liquor composite shop but in fact an "A" category shop in rural not be recovered from him.