Rajasthan High Court - Jaipur
Pukhraj Shishodia Murlidhar And Party ... vs The State Of Rajasthan And Ors. on 14 March, 2008
Author: Vineet Kothari
Bench: Vineet Kothari
JUDGMENT Vineet Kothari, J.
1. Liquor or alcohol, has many stories and comments. Drinkers' paradise and tee-totallers' taboo, this commodity, has many social evils attached to it. It is not only a very attractive source of Revenue for State Government through Excise Department, but large auction bids in yearly contracts lifted by liquor barons and contractors makes several eyes wide open. It has certainly compelled the State Government to shift its policy decisions of giving away contracts to fetch maximum exclusive privilege price every year. These days each shop is separately auctioned in State of Rajasthan and there is no upper limit on the total number of shops in a city or town. This has resulted in mushroom growth of liquor shops and more often than not public outcry, disputes and police cases are reported in media on account of opening of wine shops near schools, hospitals, temples and other residential areas.
2. The State Government does not appear to have undertaken any impact assessment of this policy change and it seems State is only trigger happy in increasing its Revenue instead of taking socially more acceptable and morally more reasonable decision in this regard. It could have been much more advisable to keep the number of shops limited and to locate them only at suitably selected places in accordance with the Rules and norms in this regard. State could itself select such fixed rented premises and put only such fixed shops to auction, so that unbriddled mushroom growth of wine shops is avoided and peace in the localities is maintained.
3. The back ground given above is relevant to the controversy in hand involved in the present writ petitions, which centres round the demand of extra exclusive privilege price by Excise Department for additional shops sanctioned to the petitioners. Whether these shops are 'additional' or not or whether they are in 'substitution' of existing shops on account of 'transfer or relocation' is the grievance of these writ petitioners.
4. These petitions have been filed by the petitioners aggrieved by the demand of additional exclusive privilege amount by the respondent - Excise Department of the State of Rajasthan on account of permission to shift four shops for sale of IMFL and beer from one Municipal Ward to another in the same city of Jodhpur on account of Clause 3(r) of the Terms and Conditions of auction for the year 1997-1999.
5. The case of the petitioners in the present writ petition is that he was given licence for the period from 1.4.1997 to 31.3.1999 in pursuance of the tender notice dated 22.2.1997 Ex.1 for 45 shops specified in Schedule C of the said tender notice being highest bidder and the exclusive privilege price of Rs. 29.60 crores for the said period was duly paid by the petitioner. The petitioner has averred in the writ petition that four shops, namely, shop No. 7, 35, 25 and 24 which were shown to be opened in the area specified in the said Schedule C to the tender notice could not be opened on account of opposition of local people of that area and, therefore, the petitioner applied for re-location/transfer of the said four shops to different other areas in the same City and said permission was duly granted by the Commissioner of the Excise vide his letter dtd. 13.6.1997 (Ex.4). Thereafter vide letter dtd.11.3.1998, the Dist. Excise Officer, Jodhpur gave notice to the petitioner that the said transfer of shops was permitted by the Commissioner provisionally by aforesaid letter dtd.13.6.1997, but said transfer would attract levy of 50% of the exclusive privilege price in term of Condition No. 3(r) of the tender notice and, therefore, a sum of Rs. 50,00,000/- was required to be paid by the petitioner in S.B. Civil Writ Petition No. 145/1999. Similar notices were issued in other two connected matters also. This communication of the Dist. Excise Officer was supported by another communication of Addl. Commissioner (Admn.) of Excise Department, Udaipur addressed to Dist. Excise Officer in which levy of 50% extra exclusive privilege price for transfer of said four shops to other areas in the same city was directed to be recovered from the petitioner.
6. Being aggrieved by the same, the petitioner requested the Excise Department vide his letter dated 1.4.1998 Annex.7 to permit the petitioner to re-locate the shops at original prescribed place, but that was also not permitted in view of fact that by that time, one of the writ petition had been filed in this Court and the matter was thus subjudice before this Court and therefore respondents refused to take any action in the matter. Therefore, being aggrieved by the demand of said extra exclusive privilege price, the petitioner approached this Court by way of present writ petitions.
7. Mr. Vikas Balia, the learned Counsel for the petitioner vehemently urged before this Court that Clause 3(r) of Conditions of Tender Notice would get attracted only if additional shops were sanctioned or permitted to be opened by the respondent - Excise Department in addition to the number of shops for which already sanction was issued or licences were given. He submitted that this was not a case of permission of any additional shop, but it was only a request for re-location or transfer of shops from one ward to another in view of public opposition in particular area, which was duly permitted by the Commissioner of Excise Department vide Annex. 4 dated 13.6.1997. He submitted that at the time of giving of said permission, no information was given to the petitioner that such approval of transfer/ relocation of the shops would attract levy of additional exclusive privilege price, otherwise the petitioner would have withdrawn his request for such transfer of shops from one area to another and secondly, as a matter of fact, he submitted that neither at the transferred place approved by the Commissioner, the petitioner opened such shops in view of subsequent demand made of additional exclusive privilege price which is impugned in the present writ petition nor at originally prescribed places, these four shops could be opened by the petitioner and as against licences given to the petitioner for 45 shops for the aforesaid period of 1997-1999 under the said tender notice, the petitioner operated throughout the period only 41 shops. He submitted that question of additional' shop as envisaged in Clause 3(r) could arise only if number of total shops exceeded 45 in the case of the petitioner. He submitted that levy of additional exclusive privilege price could not get attracted merely on account of re-location or transfer or substitution of one shop for another at different place in the same area. He prayed for quashing of the impugned demand of such additional privilege price.
8. Explaining the meaning of additional, Mr. Balia urged that the word additional' involves the idea of joining or uniting one thing to another so as thereby to form one aggregate. Referring to the judgment of the Hon'ble Supreme Court in the case of Ashok Service Centre and Anr. v. State of Orissa which deals with the case under Orissa Additional Sales Tax Act, 1975 and Orissa Sales Tax Act, 1947, he submitted that the word additional connotes some thing in addition to the existing or original number of shops. Since it is not the case of the Department that any additional shop over and above number of shops already permitted to be opened by the petitioner was sanctioned in the present case, there was no question of levy of additional exclusive privilege price. In other words, he submitted that Clause 3(r) was being misconstrued by the respondent - Department in the present case.
9. Mr. M.R. Singhvi, the learned Counsel on the side opposite strenuously opposed the submissions made on behalf of the petitioner. He submitted that provisions of Rajasthan Excise Act and the Rules and conditions of Contract pertaining to Revenue have to be strictly construed and therefore any additional shop in the area in which one shop was already sanctioned to the petitioner as per Schedule C to the tender notice, such additional shop would attract levy of additional exclusive privilege price in terms of Clause 3(r) of the tender notice irrespective of the fact that total number of shops exceeded 45 or not. He submitted that separate licence for each shop was issued to the petitioner and therefore, it was a misnomer to compute total number of shops in the present case for the purpose of levy of additional exclusive privilege price. He explained the initial words of Clause 3(r) and submitted that since additional shop in new place was allowed to be opened to the petitioner by the Commissioner under order Annex.4 dated 13.6.1997, it would attract levy of additional exclusive privilege price. He, therefore, prayed for dismissal of the writ petition. He further submitted that if at all the petitioner was aggrieved by the order of the Dist. Excise Officer with regard to demand of additional exclusive privilege price, he could file an appeal to the Commissioner under Section 9A of the Rajasthan Excise Act, 1950, which permits an appeal to be filed to the Commissioner against any order passed by the Dist. Excise Officer.
10. I have heard the learned Counsel at length and perused the record.
11. Clause 3(r) of the tender notice which is bone of contention between the two parties is reproduced hereunder for ready reference:
j ifjf'k"V ^^l^^ esa of.kZr {ks= dh lhek esa vfrfjDr nqdkusa Lohdkj dh tk ldsxh A ;fn ,slk vkosnu fufonk ds lkFk gh fd;k tkrk gS rks {ks= fo'ks"k dh vkuqikfrd vkjf{kr ,dkdh fo'ks"kkf/kdkj jkf'k dk U;wure 50 izfr'kr vfrfjDr ns; gksxk A ;fn fufonk izLrqr@Lohdkj gksus ds ckn vkosnu fd;k tkrk gS rks nqdku {ks= fo'ks"k dh izkIr vuqikfrd ,dkdh fo'ks"kkf/kdkj jkf'k dk U;wure 50 izfr'kr vfrfjDr ns; gksxk A mnkgj.k ds fy, ;fn fdlh {ks= esa 3 nqdkus gS vkSj mldh vkjf{kr jkf'k@izkIr jkf'k 90 yk[k :- gS rks bl {ks= esa ,d vfrfjDr nqdku ds fy, 15 yk[k :- ns; gksxk] rFkk ;fn {ks= esa ,d nqdku gS rks ,d vfrfjDr nqdku ds fy, 45 :- tek djkus gksxs A
12. By order Annex. 4 dated 13.6.1997, the Commissioner had permitted the transfer or shifting of four shops in question from existing prescribed ward to new ward for which also the petitioner had already been given licence with specific stipulation that in view of the strong public opposition and non-availability of shops in those areas on rent, without any increase in the total number of shops to be run by the petitioner, the petitioner is allowed to shift these four shops from respective four wards to other new four wards in the same city of Jodhpur. The said order permitting transfer or shifting of the four shops did not mention anything about Clause 3(r) or the demand of additional privilege price. It is only thereafter that the Dist. Excise Officer, authority subordinate to the Commissioner proposed the said demand of 50% of exclusive privilege price in these four shops to be opened at new or transferred place, which according to the said communication of the Dist. Excise Officer dated 11.3.1998 came to Rs. 50,00,000/- for four shops. The said demand appears to be raised at the behest or with the approval of the Commissioner of Excise as is evident from Annex.6 communication dated 7.3.1998. Firstly when the petitioner applied for cancellation of said transfer proposal and permit him to locate his shop at the originally sanctioned place, this was refused by the respondent - Dist. Excise Officer vide Annex.8 dated 18.5.1998 in view of the matter being sub-judice before this Court, though there was no restraint order against the Dist. Excise Officer not to take any decision in the matter. Be that as it may, this is not the case of the respondent - Dist. Excise Officer that the shops allowed to be opened in new wards were in 'addition' to the number of shops already allowed to be opened to the petitioner for the period 1997-1999 under the said Contract. There is considerable force in the submission made by the learned Counsel for the petitioner that the word additional shop in Clause 3(r) of the tender notice would be attracted only if the additional shops are in addition to the total number of shops already sanctioned in his favour. Mere re-location, change of location or transfer of shops from one place to another as a matter of fact by way of substitution would not attract levy of additional exclusive privilege price as is envisaged in said Clause 3(r) quoted above. It is equally true that while the Commissioner himself did not stipulate any such condition or demand of additional exclusive privilege price in the order approving such re-location or transfer of shops vide order Annex. 4 dated 13.6.1997, the subordinate authority i.e. the Dist. Excise Officer could not have raised said demand vide Annex. 5 dated 11.3.1998. Of course, later on the Additional Commissioner (Administration) appears to have approved said proposal vide Annex.6 dated 7.3.1998, but it was not the case when originally such transfer or relocation of the shop was permitted or approved by the Additional Commissioner vide Annex.4 dated 13.6.1997.
13. Therefore in the considered opinion of this Court, the respondent - Department cannot be held to be justified in demanding additional exclusive privilege price for such re-location or transfer of shops from one place to another in same city for which the petitioner was authorised to operate such shops without any additional increase in total number of shops in the case of the petitioner. The object behind levy of additional exclusive privilege price as stipulated in Clause 3(r) is very clear that it is only for such additional shops beyond the number of shops for which the licences have already been given to the petitioner against the privilege price already paid by him, if some additional shops are applied to be given and are, thus, required by him in the same area, then 50% of the reserve exclusive privilege price or actually received privilege price for different areas would be attracted depending upon the point of time when the petitioner applies for such additional shops i.e. whether at the time of giving of tenders or after the tenders are accepted and the licences are issued. Since in the present case, no extra or additional shop was allowed to be opened to the petitioner, this Court is of the opinion that no additional privilege price could be taken from the petitioner.
11. Consequently, these writ petitions are allowed and the impugned demand of additional exclusive privilege price raised by the Excise Department is quashed and the orders Annex.11 dated 14.12.1998 and Communication Annex.6 dated 7.3.1998 of the Additional Commissioner in SBCWP No. 145/1999, order dated 4.3.1998 (Ex.13) in S.B. Civil Writ Petition No. 862/1998, and notice dated 11.3.1998 (Annex.5) and Communcation dated 7.3.1998 (Annex.7) in writ petition No. 897/1998 are quashed. No order as to costs.
12. Copy of this judgment may be sent to the Chief Secretary of the State Government also.