Rajasthan High Court - Jaipur
Pradeep Parwani vs State (Finance Department)Ors on 17 August, 2016
Author: Alok Sharma
Bench: Alok Sharma
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH
ORDER
Pradeep Parwani Vs. State of Rajasthan & Others
(S.B. Civil Writ Petition No.4749/2013)
Date of Order: August 17, 2016.
PRESENT
HON'BLE MR. JUSTICE ALOK SHARMA
Mr. G.S. Bapna, Senior Advocate with
Mr. Sameer Jain, for the petitioner.
Mr. Nikhil Simlote, on behalf of
Mr. R.B. Mathur, for respondents.
BY THE COURT:
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/ 2 ROF/ 24120100813 Malviya Nagar, Jaipur and further directed that all amounts of license and special vendee fee deposited by the licensee be forfeited.
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, 3 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.
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. 4 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 5 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.
Per contra, Mr. R.B. Mathur, counsel for the department submitted that cancellation of the petitioner's licence for the two shops at Sindhi Colony, Jaipur and Malviya Nagar, Jaipur for the year 2012-2013 relates to Section 34(1)(c) of the Act of 1950 read with Rules 76(c) of the Rules of 1956 and conditions 7.2 and 7.3 of the licence issued to the petitioner, in the first instance for the year 2011-2012 and thereafter renewed on deposit of licence fee for two shops aforesaid effective 1-4-2012 whereupon the petitioner was allowed to sell IMFL/ Beer therefrom till 31-3-2013. It was submitted that the petitioner's brother while driving Maruti Suzuki RJ-14/CK-5111 was caught red handed by the Enforcement wing of the Excise Department on 3-3-2012 illegally transacting 12 bottles of IMFL bottled in Haryana and to be sold in Haryana only to one Kishore, driver of Maruti Car RJ-06/C-0364. It was submitted that the two accused aforesaid were thereupon arrested and FIR No.66/2012 for offence u/s. 14, 19/54 of the Act of 1950 lodged. On 6 investigation made, it transpired that the vehicle involved in the commission of the offence u/s.14, 19/54 of the Act of 1950. Maruti Suzuki RJ-14/CK-5111 was registered in the name of the petitioner, the holder of the licences for the two shops aforesaid situate at Sindhi Colony Jaipur and Malviya Nagar Jaipur. It was submitted that Section 54A of the Act of 1950 inter alia provides that where any motor vehicle is used in the commission of an offence under the Act of 1950 and is liable to confiscation, the owner thereof shall be deemed to be guilty of such offence and shall be liable to be proceeded against and punished accordingly unless he satisfied the court that he had no reason to believe that such offence was being or likely to be committed and he had exercised due care in the prevention of the commission of such an offence. It was submitted that in the course of proceedings before the Additional Civil Judge (Junior Division) Judicial Magistrate No.7, Jaipur, one Poonam, wife of Tola Ram Parwani, brother of the petitioner, stated that her husband Tola Ram Parwani was working at a wine shop in Malviya Nagar--which shop was licenced to the petitioner. It was submitted that Tola Ram Parwani is none other than the real brother of the petitioner. Mr. R.B. Mathur submitted then that the petitioner was thus evidently engaged with his brother in the business of sale of IMFL/ Beer. The petitioner was thus clearly an active participant in commission of an offence under the Act of 1950. Counsel submitted 7 that a clear case of breach of conditions of the licence was thus made out. It was further submitted that the guilty mind of the petitioner was prima facie established from the fact that in the first instance the petitioner absconded, subsequent to lodging of FIR No.66/2012. Thereafter he set up a false case as an afterthought in defence that Maruti Suzuki RJ-14/CK-5111 had been sold by him to his brother. That defence was found unsustainable by the District Excise Officer and Tax Board, as no document with regard to the sale of the car was submitted by him with the competent authenticity under the Motor Vehicle Act, 1988 and Rules made thereunder to make out sale of the offending vehicle. It was submitted that indulging in illicit sale of IMFL being a contravention of the Act of 1950 and the conditions of the licence to sell IMFL/ Beer, the District Excise Officer consequently cancelled the petitioner's licence and forfeited the licence fee in terms of Section 34(3) of the Act of 1950. His judgment has rightly been affirmed by the Excise Commissioner on 19-11-2012 as also by the Board vide its judgment dated 18-2-2013. No interference is warranted at the hand of this court as the three concurrent judgments neither suffer any jurisdictional error, patent illegality nor perversity.
Heard. Considered.
It is well settled that the extraordinary equitable jurisdiction of this court under Article 226 of the Constitution of India can be 8 exercised against the order passed by a statutory authority not as a matter of course but only if a case of jurisdictional error, perversity, patent illegality or manifest injustice is made out. None of the aforesaid situations obtain in the present case. From the facts on record before the three statutory authorities it was established that FIR No.66/2012 dated 3-3-2012 for offences u/s.14, 19/54 of the Act of 1950 was lodged against the brother of the petitioner Tola Ram Parwani while he was engaged in illegally transacting liquor, using Maruti Suzuki RJ-14/CK-5111 of which the petitioner was at the relevant time the registered owner as was established following investigation. The petitioner was deemed to be guilty of an offence under the Act of 1950 by virtue of Section 54A thereof. The petitioner first absconded and then took a desperately false defence of having sold the Maruti Suzuki RJ-14/CK-5111 to his brother-- this was however not established from the record of the Motor Vehicle Department. These facts were brought to the notice of the District Excise Officer by the Enforcement Wing of the Excise Department vide letter dated 25-4-2012, show cause notice dated 30-4-2012 followed to the petitioner.
Section 34(1)(c) of the Act of 1950 reads thus
34. Power to cancel and suspend licences. (1) Subject to such restrictions as the State Government may prescribe, the 9 authority granting any licence, permit or pass under this Act may cancel or suspend it-
(c) in the event of any breach by the holder of such licence, permit or pass or by his servant or by anyone acting on his behalf with his express or implied permission, of any of the terms or conditions of such licence, permit or pass; or Rule 76 provides thus:
76. Cancellation, modification and suspension of licences-
The authority granting a licence under these rules may cancel, suspend or modify the licence-
(a) to rectify clerical mistakes;
(b) If the licence has been obtained by fraud; or
(c) If the licensee has been guilty of the violation of a condition of his licence or the contravention of the provision of the Act or any notification order or rule issued under the Act.
Condition 7.2 and 7.3 of the licences issued to the petitioner in Financial Year 2011-2012 which were renewed for 2012-2013 provided thus:
7.2 अनज पत क अवध क द र न अनज र क ववरद र जस न आबक र अध ननयम १९५० न रक"ट$क डग' एव) ' इक"ट,वपक 'बस$ )'ज एक$ १९८५ अ व र जस न आबक र अध ननयम १९५० क र ३४ म2 उल5ख7त अध ननयम" त उ'म उल5ख7त र ओ) क अ)तर;त अभ=य"र दज; ह"न य उ'क 'ज य ब ह"न पर अनज पत ननरसत ककय ज 'कर .
7.3 यटद अनज र अव@ रप ' मटदर अफ म य अनय म दक पद ; र7त ह@ य बचत ह@ य कक'E अनय र जय ' अव@ रप ' मटदर क" बचन क य अफ म य अनय म दक पद ; बचन क क म करत ह@ य कक'E ऐ'E जरह ' उ'क 'मबन ह@ जह I ' य वसतए) अव@ रप ' 5 इ ज न क ')दह ह" त" ऐ'E दश म2 अनज पत ननरसत ककय ज 'कर .10
In terms of aforesaid legal structure, it is apparent that contrary to what was argued by Shri G.S. Bapna, Senior Counsel appearing for the petitioner, conviction for an offence under the Act of 1950 is not the only ground on which an excise licence can be cancelled. A licence granted under the Act of 1950 can also be cancelled under Section 34(1)(c) read with Rule 76(c) of the Rules of 1956 for breach of conditions of the said licence. In the instant case the petitioner has breached the conditions of the licence as is established from the evidence on record. The petitioner was thus existing owner of Maruti Suzuki RJ-14/CK-5111 used in the commission of offence u/s. 14 and 19/54 of the Act of 1950 by his brother Tola Ram. He absconded following Tola Ram's arrest. The statement of Poonam, wife of Tola Ram Parwani, buttressed the petitioner's business relationship with Tola Ram, as she stated that Tola Ram worked at the petitioner's wine shop in Malviya Nagar. The terms and conditions of the licence for 2011-2012 were binding on the petitioner even for 2012-2013 as the petitioner was only continuing as the licensee earlier having been granted two licenses in 2011-2012. The petitioner was challaned in the case against Tola Ram with the aid of Section 54A of the Act of 1950. In the face of the evidence on record before the statutory authorities their conclusion about the breach of licence by the petitioner cannot be held to be perverse. Cancellation was the resultant consequence 11 u/s. 34(1)(c) of the Act of 1950, Rule 76(c) of the Rules of 1956 and conditions 7.2 and 7.3 of the licence.
In the circumstances, I am of the considered view that there is no ground whatsoever to interfere with the well considered conclusions of District Excise Officer arrived at on objective consideration of the evidence on record, cancelling petitioner's licences and forfeiting the lincence fee deposited. Section 34(3) clearly provides that the holder of a licence, permit or pass shall neither be entitled to any compensation for the cancellation or suspension thereof under section 34 nor to a refund of any fee paid or deposit made in respect thereof. The order passed by the District Excise Officer has rightly been upheld by the Excise Commissioner, as also the Board.
There is no force in the petition. Dismissed.
(Alok Sharma), J.
arn/ 12 All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.