Orissa High Court
Krushna Chandra Sahu And Anr. vs State Of Orissa And Ors. on 1 July, 1998
Equivalent citations: 1998(II)OLR203
JUDGMENT Susanta Chatterji, J.
1. The present writ petition at the instance of one Krushna Chandra Sahu and another Narendra Sahu against State of Orissa by impleading Commissioner, Excise, Orissa, Collector, Ganjam at Chatrapur and Superintendent of Excise, Ganjam seek the following reliefs :
"..........that your lordships be graciously pleased to admit this writ application, issue a Rule/in asking the opposite parties to show cause as to why the petitioners shall not be paid back the money deposited by the petitioner under Annexure - 1 along with compensation and if the opposite parties fail to show cause or show insufficient cause make the said rule absolute and issue a writ in the nature of mandamus directing the opposite parties to refund the consideration amount deposited by the petitioner under Annexure-1 and also further direct that adequate compensation should be given also be paid to the petitioners and in the alternative the Hon'ble Court direct the opposite parties to refund the consideration money along with 18% interest from the date of his deposit and or issue any other writ/writs, order/orders, direction/directions giving complete relief to the petitioners......."
2. It is stated, inter alia, that the writ petitioners were the highest bidders in respect of opening of a country liquor shop at B. Nuagaon in the district of Ganjam for the year 1992-93. The State of Orissa had authorised Collector, Ganjam for auction of exclusive privilege in respect of O.S.shop for the Ganjam District in the year 1992-93. The petitioners deposited Rs. 1,20,000/- with the District Collector, Ganjam on the same day. After the deposit was made the Collector, Ganjam forwarded to the opposite party No. 1- State of Orissa. The opposite party No. 1 by order dated 31.3.1992 intimated the Excise Commissioner, Orissa that settlement of the privilege in respect of the B. Nuagaon C.S.shop had been kept in abeyance for the coming year and further ordered that the Collector, Ganjam would enquire and submit a report on the representation made by the local villagers protesting such opening of the liquor shop. Therefore, any further action would be taken along with the said order and a copy of the representation was also forwarded to the Exise Commissioner, Orissa. It is also stated in the writ petition that the local M.L.A. also wrote a letter to the Collector, Ganjam-Chatrapur against opening of any liquor shop in the said village. The local villagers also made an application to the Collector, Ganjam immediately after the auction so that the petitioners may not be permitted to open any C.S.shop in that village. The local villagers have protested for opening of a liquor shop in the entire village and the petitioners were presented from finding any location thereon. Stating all these facts in details the petitioners have come to this writ Court seeking relief as indicated above, by contending that it was obligatory on the part of the Government to refund the consideration amount.
3. The writ petition is vehemently opposed by opposite party No. 1 and Mr. P.K.Ray, learned Additional Government Advocate has strenuously argued that the petitioners are not entitled to any relief in the manner as prayed for and the writ petition should be dismissed.
In the counter-affidavit it is disclosed, inter alia, that it is the primary responsibility of the petitioners to open the C.S.Shop at a suitable and unobjectionable site as published in para (3) VIII of sale notice for the year 1992-93 prior to the settlement of the shop. It is stated in the Counter-affidavit further that the petitioners deliberately avoided to take the licence only to escape from the liability for payment of Government dues as it is stipulated in para (3) VIII of the sale notice. It is submitted that it is the responsibility of the privilege holder to arrange a suitable place and carry on the privilege granted to him. Basing on the request of the petitioners for closure of the shop, the opposite party No. 3(Collector) issued letters to the opposite parties 1 and 2 to take an appropriate decision not to allow opening of the shop of the petitioners. A copy of the said letter by the Collector to the Commissioner of Excise, Orissa has been annexed as Annexure-A to the counter-affidavit.
4. We have perused the averments made in the writ petition as well as in the counter-affidavit. Mr. Ashok Mohanty, learned counsel for the petitioners has drawn our attention to Annexure-1, the receipt of deposit of a sum of Rs. 1,20,000/-. Annexure-2 refers to the communication made by the Under Secretary, Government of Orissa, Revenue and Excise Department to the Excise Commissioner, Orissa asking to take notice of the protest application of the villagers and for keeping in abeyance of the Government's decision to confirm to the privilege settlement. Annexure-3 is a letter written by the local M.L.A., Chikiti to the Collector, Ganjam raising serious objection that there should not be opening of liquor shop at village B. Nuagaon and opening of said shop will create serious law and order problem affecting the peace of the village. Annexure-4 is a letter of the villagers of B. Nuagaon to the Collector, Ganjam raising their serious objection against opening of C.S.shop in that village. Annexure-5 is a letter by the Tahasildar, Chikiti to the petitioner No. 1 informing that, no Government land was available for operating a C.S.Shop at village B. Nuagaon as per Rule 34 of the Orissa Excise Manual, 1965. Annexure-6 is the letter of the Superintendent of Excise to the Collector, Ganjam stating, inter alia, that the efforts made by E.P.Holders to find out a suitable unobjectionable site both Government and private, is not wanting. In the reports, the Superintendent of Excise has clearly placed on record that during enquiry 200 people of the village approached him and strongly objected for opening of C.S. shop. The inhabitants have taken decision for not opening of such a shop in the locality. Annexure-7, which is also Annexure-A to the counter-affidavit, is the letter of the Collector, Ganjam addressed to the Commissioner of Excise stating clearly that no C.S.shop at village B. Nuagaon should be operated during (he cunent year due to the hot feeling of local people of the area.
5. Mr. Mohanty has argued by drawing attention of the Court the various Annexures and the relevant materials on record indicating that the matter for opening a C.S.shop in the year has become infructuous ' in view of the prevailing circumstances. Privilege proposed to be given to the petitioners are not available to the petitioners as the Government is not in a position to maintain the law and order situation as well as the situation does not permit opening of C.S.shop in the entire area in village B. Nuagaon.
Out attention is drawn to the case reported in 82 (1996) CLT 202, Ganapati Sahu v. State of Orissa and Ors. The Bench rendering that decision has relied upon a previous unreported decision of this Court in OJC No. 852/93 disposed of on 4.11.1993 (Kartika Chandra Sahu v. Collector, Cuttack and Ors.). It was found that due to liquor tragedy the petitioner's shop was not permitted to be opened. It transpires from the report of the Excise Inspector addressed to the Superintendent of Excise that the petitioner was not able to operate the shop in question on account of serious objections raised by the villagers of Bidanasi. In view of such peculiar circumstances the Division Bench saw ample force in the contention of the petitioner that he was not liable to pay licence fees in question. By relying upon these decisions and considering the facts and circumstances of the case, the writ petition was allowed by quashing the impugned demand under Annexures 4 and 5 thereto.
6. Mr. P.K.Ray, learned Additional Government Advocate with great force argues that the claim for refund of the amount by the petitioner is thoroughly misconceived. Once privilege has been received, privilege-holders cannot ask for refund in any situation. He has drawn attention of the Court to Section 22 (a) of the Bihar and Orissa Excise Act, 1915. Section 22 refers to grant of exclusive privilege of manufacture and sale of country liquor or intoxicating drugs. It is envisaged that the State Government may grant to any person, on such conditions and for such period as it may think fit, the exclusive privilege :
(a) of manufacturing, or supplying wholesale; or
(b) or manufacturing and supplying wholesale; or
(c) of selling, wholesale or retain; or
(d) of manufacturing or supplying wholesale and selling retain; or
(e) of manufacturing and supplying wholesale and selling retain, any contrary liquor or intoxicating drug within any specified local area.
He has also drawn attention to Section 43(3) of the Act. Section 43 indicates power to withdraw licences. It is stipulated therein that whenever the authority who granted any licence (or exclusive privilege) under this Act considers that the licence (exclusive privilege) should be withdrawn for any cause other than those specified in Section 42, it shall remit a sum equal to the amount of the fees (or consideration money) payable in respect thereof for fifteen days, and may withdraw the licence (or exclusive privilege). Section 43(3) indicates, inter alia, that if any licence (or exclusive privilege) be withdrawn under Clause (b) of Subsection (1), the Excise Commissioner may, in special circumstances, direct the payment of such compensation as he may consider fit, in addition to the remission of the fee (or consideration money) as aforesaid.
In this case, the petitioners are the exclusive privilege-holders. It is not duty of the State authorities to find out location. It is the obligation of the petitioners to find out the location where there should be no objection of the local people. If the petitioners have not obtained privilege and paid consideration money to obtain licence, failure to find out location for opening of C.S.shop, they cannot be given licence and in that case they may ask for refund of the consideration amount in the manner as asked for. To fortify their claim, the learned counsel for the petitioners relied on a decision reported in 1996 (8) Supreme 647 (State of Orissa and Ors. v. Narain Prasad and Ors.). It is found by the Apex Court that the petitioners cannot ask for validity of contractual obligation as to the minimum guaranteed quota and the obligation to lift the minimum guaranteed quota every money and the duty is payable on or before the specified dates every month. Remittance is not tied with that purchase of minimum guaranteed quota. By the decision in the said case that the obligation to remit the excise duty is independent of the obligation to lift M.G. every month and the duty is payable on or before the specified dates every month.
It is also decided that a person who enters into a contractual obligations and works the entire contract, cannot be allowed to question the validity of those obligations or the validity of the Rules which constitute the terms of the contract and the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India cannot be invoked in aid of such persons.
7. With great patience and respects we have considered the submission of Mr. P.K.Ray, learned Addl. Government Advocate. We have gone through the ratio of the decision made in the aforesaid Supreme Court case. i.e. in the case of State of Orissa v. Narain Prasad (supra), we are afraid that the points decided in the said case are not applicable to the present case and the ratio of the said decision has no application so far as the facts of the present case is concerned. It is not doubt that this is an obligation of the privilege- holder to comply with the minimum guaranteed quota. But in the present case notification issued by the appropriate State Government to permit a person to hold privilege by obtaining licence to sale country spirit liquor to the entire area of village B. Nuagaon has become infructuous. Grievance of the petitioners is that in spite of his best efforts they are not able to utilise the privilege offered by the State Government, as not only the villagers are opposed to it, but there is opposition by Excise authorities as well as the Collector who informed to the higher authorities that in the entire village area, because of the law and order situation, proposal to set up/opening of C.S.shop is not possible. Shop in the Government finds that it is not possible to open shop in the proposed area covered by the relevant notification, we cannot hold that the equity stands against the petitioners who bonafidely participated in the auction and deposited the amount vide Annexure-1. If, law and order situation do not permit opening of such a liquor in the entire village and that duty and obligation have not been carried by the opposite party No. 1 or is strongly opposed to by them, the petitioners cannot be blamed and the State Government who is supposed to act fairly and equitably, have to refund the licence fee coirected from the petitioner.
8. We are convinced that the petitioners having no fault of their own, are not able to open such shop for reasons for which they are not responsible. If the petitioners having obtained the privilege, had they been responsible under any circumstances for not opening C.S.shop, certainly they cannot ask for refund and argument of Mr. P.K.Ray could have been sustained. But the facts are little distinguishable on these aspects which clearly indicate that the statutory authorities, namely-Superintendent of Excise, Collector, Ganjam and Under Secretary to the Government of Orissa are of the view that it is not possible for the petitioners to open any shop pursuant for the petitioners to open any shop pursuant to notification. In view of such peculiar circumstances, we find merit in the writ petition. We allow the same and direct the opposite parties to take effective step to refund the amount received by them as per Annexure-1 to the petitioner within a period of sixty days from the date of communication of the order. The writ petition is disposed of accordingly. No order as to cost.
D.M. Patnaik, J.
9. I agree.