PRADEEP PARWANI Vs. STATE OF RAJASTHAN & OTHERS

JUDGEMENT

(1.) Under challenge is the judgment dated 18-2-2013 passed by the Rajasthan Tax Board (hereinafter 'the Board') dismissing the petitioner-licensee's (hereinafter 'the petitioner') appeal and upholding the judgment dated 19-11-2012 passed by the Excise Commissioner who had affirmed the order dated 9-5-2012 passed by the District Excise Officer cancelling the petitioner's licence for two shops for vending Indian Made Foreign Liquor (IMFL) i.e. licence No.JPR/2011-12/ ROF/3; JPR/2012-2013/ ROF/ 24120100712 for the shop No.7/752 Sindhi Colony, Jaipur and license No.JPR/2011-12/ ROF/ 24120100813 & JPR/2012-2013/ ROF/ 24120100813 Malviya Nagar, Jaipur and further directed that all amounts of license and special vendee fee deposited by the licensee be forfeited.

(2.) The relevant facts are that the petitioner was first granted two licences for vending IMFL Beer from the aforesaid two shops in the year 2011-2012. The respondent department invited applications on 27-2-2012 for renewal of licences in currency pursuant whereto the petitioner deposited the requisite licence fee at the rate of Rs.12.65 lacs each for two shops aforesaid effective after 1-4- 2012. The petitioner continued operation as license for the year 2012-2013. A notice dated 30-4-2012 then came to be issued requiring the petitioner to show cause as to why the licenses for vending IMFL/ Beer from the aforesaid two shops not be cancelled for reason of him having been challaned under Section 54-A of the Rajasthan Excise Act, 1950 (hereinafter 'the Act of 1950') following investigation in FIR No.66/2012 for offences under Section 14, 19/54 of the Act of 1950, which was first lodged against his brother Tola Ram Parwani on 3-3-2012. The petitioner filed reply to the show cause notice on or about 7-5-2012. The reply was considered and counsel for the petitioner was heard following which vide order dated 9-5-2012 the District Excise Officer cancelled the two licences as detailed above with reference to Section 34(1)(c) of the Act of 1950 read with Rule 76(c) of the Rajasthan Excise Rules, 1956 (hereinafter 'the Rules of 1956') as also the conditions No.7.2 and 7.3 of the licences first issued in 2012. A statutory appeal followed before the Excise Commissioner, who vide his judgment dated 19-11-2012 affirmed the order passed by the District Excise Officer. A further appeal before the Board by the petitioner was also dismissed by the impugned judgment dated 18-2-2013. Hence this petition.

(3.) Mr. G.S. Bapna, Seniror Advocate appearing with Mr. Sameer Jain on behalf of the petitioner submitted that mere lodging of a FIR No.66/2012 on 3-3-2012 against the petitioner's brother Tola Ram Parwani for offences under Sections 14, 19/54 of the Act of 1950 in which the petitioner was arrayed as an accused in the course of investigation by resort to Section 54A of the Act of 1950 was not a contravention of license issued to the petitioner in respect of two shops above nor sufficed, by resort to Section 34(1)(d) of the Act of 1950, for cancellation of licences and forfeiture of the fee deposited therefor. It was submitted that Section 34(1)(d) of the Act of 1950 merely provides that the authority the granting the license under the Act of 1950 can cancel or suspend the license if the holder thereof was convicted for any offence punishable under the Act of 1950 or any other law set out therein. It was submitted that the petitioner has not been convicted and has merely been made an accused in an absolutely false criminal case against his brother Tola Ram Parwani. It was further submitted that in any event insofar as clause 7.2 of the conditions of the licence for 2011-2012 provided that mere registration of an FIR for any offence under the Act of 1950 would entail cancellation of licence, it is ultra vires Section 34 of the Act of 1950 and to be valid has to be read down as entailing cancellation of licence issued under the Act of 1950 only if the criminal case lodged entailed conviction by a court of competent jurisdiction. It was submitted in the alternative that as FIR No.66/2012 was lodged on 3-3-2012, if at all the licence was liable to be cancelled for reason therefor by resort to condition 7.2 of the conditions of the licence 2011-12, it could be cancelled only upto 31-3-2012 and not for the subsequent period i.e. 2012-2013 for which only the license fee was deposited by the petitioner on 15-3-2012, but the renewed licence not actually issued. Senior counsel then submitted that if at all the lodging of FIR No.66/2012 was a disability against the petitioner in respect of his right to renewal for Financial Year 2012-2013 the department ought not to have accepted the license fee of Rs.12.65 lacs for each of the two shops at Sindhi Colony and Malviya Nagar for the year 2012-2013. Counsel has further submitted that to have accepted the licence fee for renewal qua the two shops, allowed continuation of sale of IMFL/ Beer therefrom beginning 1-4-2012 then to cancel the two licences vide order dated 9-5-2012 was unjust and expropriatory. Hence the order dated 9-5-2012 passed by the District Excise Officer Jaipur as upheld by the Excise Commissioner in appeal vide judgment dated 19-11-2012 and by the Board in second appeal vide judgment dated 18-2-2013 is unsustainable and even otherwise vitiated for having forfeited the licence fee paid by the petitioner, without the said issue being set out in the show cause notice.