JAI BHARAT WINE CONTRACTOR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) MESSRS . Jai Bharat Wine Contractor, (hereinafter referred to as the petitioner firm') is a partnership firm, carrying on business in retail sale of country liquor at Jodhpur For the year 1968 69, a licence was issued to the petitioner firm under the provisions of the Rajasthan Excise Act, 1950, for felling country liquor at 12 shops in the city of Jodhpur. At the relevant time, the Rajasthan Excise Rules, 1956 provided for the sale of country liquor according to the 'guarantee system'' and the 'exclusive privilege system' Under the 'gurantee system', for which provision was made in chapter VII A of the Rules, the licencee for retail shops of country liquor had to give guarantee to the Government to draw liquor from the Government warehouses for the purpose of sale of a specified value during the particular financial year for which licence had been obtained and that specified value was called the amourt of guarantee Under the 'exclusive privilege system' for which provision was made in Chapter VI [ B of the Rules, a licence for exclusive privilege of selling by retail of country liquor within any local area was granted on condition of payment of lump sum instead of, or n addition to, excise duty as may be determined by the Excise Commissioner. The licence that was granted to the petitioner firm was under the 'guarantee system'. The amount of guarantee prescribed for under the said licence was Rs. 27, 09, 050 and the petitioner firm was required to deposit the sum of Rs. 2,25, 760/ - as security deposit, which amount was deposited by the petitioner firm on 11th March, 1968 Condition No. 1 (ka) of the licence issued in favour of the petitioner firm contained a guarantee by the petitioner firm to the Governor of the State of Rajasthan that it would obtain from the Government Warehouses during the financial year ouch quantity of country liquor in all, whose total value calculated at the issue price effective on the 1st January, would not be less than Rs. 27,09,050/ - Condition No. 2(ka) of the licence prescribed that the petitioner firm would be bound to lift upto the end of every month country liquor of the value of l/12th part of the amount of guarantee, per month at the issue price effective on the 1st january, 1964 and if failed to lift Jiquor of the aforesaid value at the issue price effective on 1st January, 1964 it would be bound to lift by the 10th of the next succeeding month extia liquor of the value of such difference amount at the aforesaid issue price or otherwise it would be bound to make payment of the said difference at the ware house by the aforesaid date. Condition No. 2 (kha) of the said licence laid down that in the event of the petitioner firm tailing to pay she aforesaid amount or of its failing to life such extra quantity of liquor as aforesaid, the said difference amount would he liable to be recovered from out of the security amount deposited by the petitioner firm or from out of its moveable and immoveable property and also from the legal representatives. Condition No.2 (Gha) of the said licence further provided that in the event of the gurantee not being fulfilled according to the term of condition No. 1(a) or there being a shore fall in the amount of guarantee on account of condition No. 2 (Ga), the amount of such shortfall shall be liable to be recovered from out of the cash security of the petitioner farm and or out of its move able and immoveable property and from its Jegal representatives.

(2.) IT appears that by the end of financial year 1968 69 the petitioner firm was not able to sell liquor of the value equal to the guarantee amount and there was a shortfall to the extent of Rs. 3,18,922.32/ -. The District Excise Officer, Jodhpur, by his notice dated 28th july, 196 9 informed the petitioner firm that there was short fall of Rs. 3,18,922 32/ in the year 1968 69 and that after the adjustment of the sum of Rs. 2 25,760/ - which has been deposited by the petitioner firm by way of security, the sum of Rs. 93 992.32/ - was recoverable from the petitioner firm and the petitioner firm was recruited to deposit the aforesaid amount of Rs. 93,962 32 within a period of 15 days from the date of the reccipt of the said notice, failing which, proceedings for the recovery of the said amount under the provisions of the Rajasthan Land Revenue Act would be initialed. Being aggrieved by the aforesaid notice, the petitioner firm has filed this writ petition for the issue of an appropriate writ, direction or order, quashing the demand of Rs. 3,18 922 32/ and the notice of demand dated 28th July. 1979 for the recovery of Rs. 93.162 32/ - and also for the issue of a writ or order, directing the respondents to refund the security amount of Rs. 2,25 760/ to the petitioner firm. In the writ petition, the petitioner firm has also praved for a declaration that the Rules 67. I and 67. J of Chapter VII B and also Section 24 of Rajasthan Excise Act ate unonconti -tiunal.

(3.) AFTER the aforesaid decision of the Supreme Court, an affidavit was filed by Shri Pukhraj on behalf of the petitioner firm and a counter affidavit in reply to the said affidavit was also filed by Shri U.K. Bohra, District Excise Officer. Jodhpur and a rejoinder to the said affidavit was filed by Shri Pukhraj in D B Special Appeal No. 498 of 1972 The said special appeal alongwith other connected special appeals was heard by a Division Bench of this Court (Sen, Actg.C J, and Gunta, J ) and by order dated 9th Jaunary, 1878, the Division Bench, while allowing the appeals and setting aside the orders of the learned Single Judge (Tyagi.J) and remitting the writ petitions to be listed for hearing before a Single Judge, has directed that: While deciding the writ petitiong, the learned Singh Judge may take into consideration the documents and affidavits filed by the parties in these appeals in support of their respective contentions.