Himachal Pradesh High Court
Yashpal Sharma vs . State Of H.P. & Ors. on 21 August, 2023
Bench: Mamidanna Satya Ratna Sri Ramachandra Rao, Ajay Mohan Goel
Yashpal Sharma vs. State of H.P. & Ors.
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CWP No.5591 of 2023 21.08.2023 Present: Mr. Satish Awasthi and Mr. Arvind Sharma, Advocates, for the petitioner.
Mr. Anup Rattan, Advocate General with Mr. Rakesh Sharma, Advocate, for the respondents/ of State.
CWP No.5591 of 2023 rt Notice. Mr. Anup Rattan, learned Advocate General, accepts notice on behalf of the respondents.
Reply be filed within four weeks.
List on 26th September, 2023.
CMP No.10831 of 2023
2. Notice in above terms.
3. In this writ petition, the petitioner challenges the action of the respondents, whereby, the quantities of the Annual Minimum Guarantee Quota of liquor in respect of liquor vends allotted to the petitioner, have been increased to the detriment of the petitioner after completion of the auction process.
4. Petitioner alleges that a State Excise Policy for the year 2023-24 (for short "Excise Policy") was approved on 6th March, 2023, which was conveyed to respondent no.2 on 07.03.2023. Thereafter, based on the approved Excise ::: Downloaded on - 22/08/2023 20:33:42 :::CIS Policy, the 2nd respondent published a booklet under his .
authority, called the "Excise Announcements for the year 2023-24", which inter- alia, contains various features of the approved Excise Policy including the terms and conditions and procedure to be followed for allotment of retail liquor of vends by the processes of Auction-cum-Tender or by renewal or by allotment through draw of lots for the year rt 2023-24.
5. The respondent no.2, through a notice, issued the Schedule for the allotment of retail liquor vends in the State of Himachal Pradesh through Auction-cum-Tender process for the Financial Year 2023-24. The dates of submission of the tender applications in respect of Shimla District were fixed for 15.03.2023 & 16.03.2023 and the date for bidding-
cum-opening was fixed for 17.03.2023.
6. The petitioner contends that the Additional Commissioner, State Taxes and Excise-cum-Collector (Excise ) (respondent no.3), issued on 13.03.2023 the reserve price of various Liquor Vends/Units in different Circles of District Shimla, Himachal Pradesh, fixed by the 4th respondent.
::: Downloaded on - 22/08/2023 20:33:42 :::CIS7. In the said Annexure P-3, at serial no.10, for the .
Unit Chopal with which we are concerned, the MGQ was also fixed for country liquor as 2,13,017.339 and the MGQ for IMFL was fixed as 1,21,454.097.
8. Petitioner contends that as per Clause 2.29 of of "Announcements for the Allotment of Retail Excise Vends by Auction -cum-Tender for the year 2023-24", the MGQ rt allotted to a Unit should be divided into twelve parts as per the Condition no.4.3 to be lifted compulsorily on monthly basis on the payment of the license fee thereon, and if it is not so lifted, there would be a penalty levied under Clause 4.3, at the rates specified therein.
9. He, therefore, contends that once the petitioner was induced to participate in the bidding/auction process on the basis of what is mentioned in the proceedings dt. 13.03.2023 by respondent no.3, and had bid of Rs.15,91,91,191/-, and was declared as successful bidder in respect of the retail liquor vends of the country liquor and foreign liquor comprised in the Chopal area by the Selection Committee constituted for the conduct of process of Auction-cum-
Tender, the same could not be increased unilaterally by respondents.
::: Downloaded on - 22/08/2023 20:33:42 :::CIS10. He contends that Annexure P-4 proceedings was .
issued abruptly on 27.03.2023, enhancing the MGQ of Country Liquor to 3,07,723.8956 and for IMFL to 1,75,452.0464, and such enhancement in the MGQ is arbitrary, contrary to the terms of the Policy.
of
11. Petitioner contends that the terms and conditions contained in the "Excise Announcements 2023-24", rt nowhere provides that in case a bid higher than the reserve price is made for a particular Unit by an intending bidder and is accepted/approved by the respondents, the Annual MGQ fixed for that unit prior to initiation of the allotment process, shall also be enhanced.
12. The learned Advocate General, appearing for the respondents, however, contends that as per Clause 2.16 of the Excise Policy, such enhancement is permitted.
13. He contends that such enhancement is necessary to prevent illicit sale of liquor and it is a Policy decision.
14. He further contends that the license issued on 29.04.2023 to the petitioner vide Annexure P-1, mentions the enhanced MGQ only and, therefore, the petitioner is bound to lift the said MGQ and cannot complain about it.
::: Downloaded on - 22/08/2023 20:33:42 :::CIS15. Learned Advocate further submits that the MGQ is .
enhanced to the highest bid made by the petitioner and there is nothing wrong with such enhancement.
16. Clause 2.16 relied upon by the learned Advocate General, states as under:-
of "2.16 The District In-charge shall fix the minimum reserve price of each unit/vend based on the minimum rt guaranteed Quota. In case the sub-vend of unit is regularized the value of the sub-vend in the financial year will be added to that unit after giving the general increase as per Excise Announcements 2023-24 and the reserve price shall be fixed by the District In-charge accordingly. There shall be a fixed license fee in respect of Country Liquor. In the case of IMFL and BII, there are four slabs of license fee based on EDP rates and final value of the vend/unit shall be determined on the basis of EDP of different slabs of IMFL lifted by the licensee. For the purposes of fixation of reserve price of the vend/unit, the license fee applicable for the lowest slab of IMFL shall be taken as reference. The annual License Fee(MVV)of a particular vend/unit shall finally be determined based on the highest bid offered by successful tenderer/bidder. The quota of closed vends will be allocated to the nearby vends. In case of opening of a new vend, quota of that vend will be determined by the District In-charge concerned. No bid/tender submitted below the reserve price will be accepted."::: Downloaded on - 22/08/2023 20:33:42 :::CIS
17. We are of the opinion that the language in Clause .
2.16 does not permit a unilateral enhancement of MGQ as is sought to be contended by the learned Advocate General.
Moreover, the MGQ having been fixed in Clause 4.1 of the Excise Policy for each District, and under Clause 2.29 such of MGQ allotted to a Unit would be further divided into twelve parts to be lifted compulsorily on monthly basis on payment rt of license fee thereon, prima facie it suggests that the MGQ fixed on 13.03.2023 on the basis of which bids were invited for each Unit, has to be treated as fixed and unalterable later.
18. If the same is permitted to be unilaterally varied thereon by the respondents, then there would no meaning to the MGQ fixed under Clause 4.1 or as specified in Annexure P-3.
19. Admittedly, the licensee is required to lift 100% of MGQ prescribed as per Clause 4.3 of the Excise Policy only and not what the respondents are now asking him to lift by enhancing the MGQ, for which he never bid.
20. If the quantity of MGQ is not finalized at the time of grant of license as is sought to be contended by the Advocate General, then it would give a free hand to the ::: Downloaded on - 22/08/2023 20:33:42 :::CIS State to enhance the MGQ far beyond the capacity of the .
bidder, and compel him to lift it on penalty to be levied, if he failed to lift the enhanced quota.
21. Prima facie, this action of the respondents appears to be arbitrary, unilateral and violates Article 14 of the of Constitution of India.
22. Therefore, pending further orders, the respondents rt are restrained from demanding the petitioner to lift more than what is mentioned as MGQ in Para-7 above.
(M.S. Ramachandra Rao)
Chief Justice
(Ajay Mohan Goel)
August 21, 2023 Judge
(Yashwant)
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