Rajasthan High Court - Jaipur
Satveer Chaudhary S/O Sh. Jai Ram ... vs State Of Rajasthan on 8 December, 2020
Bench: Pankaj Bhandari, Manoj Kumar Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ Petition No. 10936/2020
Satveer Chaudhary S/o Sh. Jai Ram Chaudhary, R/o Chatarpura,
District Alwar, Rajasthan Through Power Of Attorney Holder Sh.
Kamlesh Gurjar
----Petitioner
Versus
1. State Of Rajasthan, Through Principal Secretary, Finance
Department, Government Of Rajasthan, Government
Secretariat, Jaipur.
2. Commissioner, Excise Department, Government Of
Rajasthan, 2, Gumaniwala, Panchwati, Udaipur, Rajasthan.
3. District Excise Officer, Jaipur Rural, Excise Department
Rajasthan, Jaipur.
----Respondents
Connected With D.B. Civil Writ Petition No. 10958/2020 Rohitash Gurjar S/o Sh. Hazarilal Gurjar, R/o Bhojpura @ Lakhawala, Tehsil Chitoli District Jaipur, Rajasthan Through Power Of Attorney Holder Sh. Kamlesh Gurjar
----Petitioner Versus
1. State Of Rajasthan, Through Principal Secretary, Finance Department, Government Of Rajasthan, Government Secretariat, Jaipur.
2. Commissioner, Excise Department, Government Of Rajasthan, 2, Gumaniwala, Panchwati, Udaipur, Rajasthan.
3. District Excise Officer, Jaipur City, Excise Department Rajasthan, Jaipur.
----Respondents D.B. Civil Writ Petition No. 11197/2020 Manoj Kumar Jangid S/o Sh. Rajendra Jangid, R/o Ward No. 9, Narehada, Tehsil Kotputli District Jaipur, Rajasthan Through Power Of Attorney Holder Sh. Kamlesh Gurjar
----Petitioner Versus (Downloaded on 11/12/2020 at 09:35:00 PM) (2 of 19) [CW-10936/2020]
1. State Of Rajasthan, Through Principal Secretary, Finance Department, Government Of Rajasthan, Government Secretariat, Jaipur
2. Commissioner, Excise Department, Government Of Rajasthan, 2, Gumaniwala, Panchwati, Udaipur, Rajasthan
3. District Excise Officer, Jaipur City, Excise Department Rajasthan, Jaipur
----Respondents D.B. Civil Writ Petition No. 11198/2020 Pooja Yadav W/o Sh. Vijay Kumar, R/o Ward No. 21, Paota, Tehsil Kotputli, District Jaipur, Rajasthan.
----Petitioner Versus
1. State Of Rajasthan, Through Principal Secretary, Finance Department, Government Of Rajasthan, Government Secretariat, Jaipur.
2. Commissioner, Excise Department, Government Of Rajasthan, 2, Gumaniwala, Panchwati, Udaipur, Rajasthan.
3. District Excise Officer, Jaipur Rural, Excise Department Rajasthan, Jaipur.
----Respondents D.B. Civil Writ Petition No. 11199/2020 Vanita Yadav W/o Sh. Vikas Sisodiya, R/o Chimanpura, Tehsil Shahpura, District Jaipur, Rajasthan Through Power Of Attorney Holder Sh. Kamlesh Gurjar
----Petitioner Versus
1. State Of Rajasthan, Through Principal Secretary, Finance Department, Government Of Rajasthan, Government Secretariat, Jaipur.
2. Commissioner, Excise Department, Government Of Rajasthan, 2, Gumaniwala, Panchwati, Udaipur, Rajasthan.
3. District Excise Officer, Jaipur Rural, Excise Department Rajasthan, Jaipur.
----Respondents D.B. Civil Writ Petition No. 11200/2020 Vikram Singh Shekhawat S/o Sh. Madan Singh, R/o 121 A, Sri Niwas Nagar, Road No. 5, Vkia, Jaipur, Rajasthan (Downloaded on 11/12/2020 at 09:35:00 PM) (3 of 19) [CW-10936/2020]
----Petitioner Versus
1. State Of Rajasthan, Through Principal Secretary, Finance Department, Government Of Rajasthan, Government Secretariat, Jaipur
2. Commissioner, Excise Department, Government Of Rajasthan, 2, Gumaniwala, Panchwati, Udaipur, Rajasthan
3. District Excise Officer, Jaipur Rural, Excise Department Rajasthan, Jaipur
----Respondents D.B. Civil Writ Petition No. 11201/2020 Anwar Khan S/o Sh. Adrish Khan, R/o 25 Ntr Ward No. 6, Ramsara District Hanumangarh, Rajasthan.
----Petitioner Versus
1. State Of Rajasthan, Through Principal Secretary, Finance Department, Government Of Rajasthan, Government Secretariat, Jaipur.
2. Commissioner, Excise Department, Government Of Rajasthan, 2, Gumaniwala, Panchwati, Udaipur, Rajasthan.
3. District Excise Officer, Jaipur City, Excise Department Rajasthan, Jaipur.
----Respondents D.B. Civil Writ Petition No. 11202/2020 Vijender Singh S/o Sh. Ishwar Singh, R/o Bilwas, 57, Bhiwani, Haryana.
----Petitioner Versus
1. State Of Rajasthan, Through Principal Secretary, Finance Department, Government Of Rajasthan, Government Secretariat, Jaipur.
2. Commissioner, Excise Department, Government Of Rajasthan, 2, Gumaniwala, Panchwati, Udaipur, Rajasthan.
3. District Excise Officer, Jaipur City, Excise Department Rajasthan, Jaipur.
----Respondents D.B. Civil Writ Petition No. 11214/2020 (Downloaded on 11/12/2020 at 09:35:00 PM) (4 of 19) [CW-10936/2020] Kamaldeep S/o Radheyshyam, R/o Plot No. 9, Jagdish Nagar, Mansarovar, Rajasthan.
----Petitioner Versus
1. State Of Rajasthan, Through Principal Secretary, Finance Department, Government Of Rajasthan, Government Secretariat, Jaipur.
2. Commissioner, Excise Department, Government Of Rajasthan, 2, Gumaniwala, Panchwati, Udaipur, Rajasthan.
3. District Excise Officer, Jaipur City, Excise Department, Rajasthan, Jaipur.
----Respondents D.B. Civil Writ Petition No. 11215/2020 Gurnam Singh S/o Tej Singh, R/o Ward No. 5, Lic Ratanpura Ke Paas, Sangaria, Hanumangarh, Rajasthan.
----Petitioner Versus
1. State Of Rajasthan, Through Principal Secretary, Finance Department, Government Of Rajasthan, Government Secretariat, Jaipur.
2. Commissioner, Excise Department, Government Of Rajasthan, 2, Gumaniwala, Panchwati, Udaipur, Rajasthan.
3. District Excise Officer, Jaipur City, Excise Department, Rajasthan, Jaipur.
----Respondents D.B. Civil Writ Petition No. 11828/2020 Durga Lal Mewara S/o Sh. Heera Lal, R/o 263, Higher Secondary School, Sanpla, Sarwad Sanpla, District Ajmer, Rajasthan.
----Petitioner Versus
1. State Of Rajasthan, Through Principal Secretary, Finance Department, Government Of Rajasthan, Government Secretariat, Jaipur.
2. Commissioner, Excise Department, Government Of Rajasthan, 2, Gumaniwala, Panchwati, Udaipur, Rajasthan.
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3. District Excise Officer, Jaipur City, Excise Department Rajasthan, Jaipur.
----Respondents D.B. Civil Writ Petition No. 11830/2020 Sanjay Choudhary S/o Ram Dayal Choudhary, R/o 395, Near Secondary School Chakwada, District Jaipur, Rajasthan.
----Petitioner Versus
1. State Of Rajasthan, Through Principal Secretary, Finance Department, Government Of Rajasthan, Government Secretariat, Jaipur.
2. Commissioner, Excise Department, Government Of Rajasthan, 2, Gumaniwala, Panchwati, Udaipur, Rajasthan.
3. District Excise Officer, Jaipur City, Excise Department Rajasthan, Jaipur.
----Respondents D.B. Civil Writ Petition No. 11831/2020 Bhima Shankar Meena S/o Dolat Ram Meena, R/o Gram Chimanpura, Post Talaw, Tehsil Lalsot, District Dausa, Rajasthan.
----Petitioner Versus
1. State Of Rajasthan, Through Principal Secretary, Finance Department, Government Of Rajasthan, Government Secretariat, Jaipur.
2. Commissioner, Excise Department, Government Of Rajasthan, 2, Gumaniwala, Panchwati, Udaipur, Rajasthan.
3. District Excise Officer, Jaipur City, Excise Department Rajasthan, Jaipur.
----Respondents D.B. Civil Writ Petition No. 11832/2020 Suresh Kumar Jakhar S/o Danaram, R/o Anantpura, Deeppura, District Jaipur, Rajasthan.
----Petitioner Versus
1. State Of Rajasthan, Through Principal Secretary, Finance (Downloaded on 11/12/2020 at 09:35:00 PM) (6 of 19) [CW-10936/2020] Department, Government Of Rajasthan, Government Secretariat, Jaipur.
2. Commissioner, Excise Department, Government Of Rajasthan, 2, Gumaniwala, Panchwati, Udaipur, Rajasthan.
3. District Excise Officer, Jaipur City, Excise Department Rajasthan, Jaipur.
----Respondents D.B. Civil Writ Petition No. 11846/2020 Mukesh Kumar S/o Nathu Lal, R/o Village Narena, Tehsil Phulera, District Jaipur, Rajasthan.
----Petitioner Versus
1. State Of Rajasthan, Through Principal Secretary, Finance Department, Government Of Rajasthan, Government Secretariat, Jaipur.
2. Commissioner, Excise Department, Government Of Rajasthan, 2, Gumaniwala, Panchwati, Udaipur, Rajasthan.
3. District Excise Officer, Jaipur City, Excise Department Rajasthan, Jaipur.
----Respondents D.B. Civil Writ Petition No. 11847/2020 Kishanlal Gurjar S/o Sh. Gangdev Gurjar, R/o Aranya Kalan District Dausa, Rajasthan.
----Petitioner Versus
1. State Of Rajasthan, Through Principal Secretary, Finance Department, Government Of Rajasthan, Government Secretariat, Jaipur.
2. Commissioner, Excise Department, Government Of Rajasthan, 2, Gumaniwala, Panchwati, Udaipur, Rajasthan.
3. District Excise Officer, Dausa, Excise Department Rajasthan, Dausa.
----Respondents D.B. Civil Writ Petition No. 11850/2020 Manna Lal Meena S/o Chanda Lal Meena, R/o Vpo Nangal (Downloaded on 11/12/2020 at 09:35:00 PM) (7 of 19) [CW-10936/2020] Susawatan, Dhani Byanka Ki, Tehsil Amer, District Jaipur, Rajasthan.
----Petitioner Versus
1. State Of Rajasthan, Through Principal Secretary, Finance Department, Government Of Rajasthan, Government Secretariat, Jaipur.
2. Commissioner, Excise Department, Government Of Rajasthan, 2, Gumaniwala, Panchwati, Udaipur, Rajasthan.
3. District Excise Officer, Jaipur City, Excise Department Rajasthan, Jaipur.
----Respondents D.B. Civil Writ Petition No. 11870/2020 Om Prakash Dadeech S/o Sh. Sh. Suresh Chand Dadeech, R/o Bazar, Manpur, Manpur District Dausa, Rajasthan
----Petitioner Versus
1. State Of Rajasthan, Through Principal Secretary, Finance Department, Government Of Rajasthan, Government Secretariat, Jaipur.
2. Commissioner, Excise Department, Government Of Rajasthan, 2, Gumaniwala, Panchwati, Udaipur, Rajasthan.
3. District Excise Officer, Dausa, Excise Department Rajasthan, Dausa.
----Respondents D.B. Civil Writ Petition No. 11871/2020 Jyoti Meena D/o Girdhari Lal Meena, R/o Guwardi, Kaladera, Tehsil Chomu, District Jaipur, Rajasthan
----Petitioner Versus
1. State Of Rajasthan, Through Principal Secretary, Finance Department, Government Of Rajasthan, Government Secretariat, Jaipur.
2. Commissioner, Excise Department, Government Of Rajasthan, 2, Gumaniwala, Panchwati, Udaipur, Rajasthan.
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3. District Excise Officer, Jaipur City, Excise Department Rajasthan, Jaipur
----Respondents D.B. Civil Writ Petition No. 11873/2020 Shrwan Singh S/o Sh. Phool Singh, R/o Ward No. 7, Khora Larkahni District Jaipur, Rajasthan
----Petitioner Versus
1. State Of Rajasthan, Through Principal Secretary, Finance Department, Government Of Rajasthan, Government Secretariat, Jaipur.
2. Commissioner, Excise Department, Government Of Rajasthan, 2, Gumaniwala, Panchwati, Udaipur, Rajasthan.
3. District Excise Officer, Jaipur City, Excise Department Rajasthan, Jaipur
----Respondents D.B. Civil Writ Petition No. 12381/2020 Neetu Kumari Sharma W/o Mukesh Kumar Sharma, Aged About 35 Years, R/o Vill. Jaisinghpura, Tehsil Sanganer, District Jaipur, Rajasthan.
----Petitioner Versus
1. State Of Rajasthan, Through Principal Secretary, Finance Department, Government Of Rajasthan, Government Secretariat, Jaipur.
2. Commissioner, Excise Department, Government Of Rajasthan, 2, Gumaniwala, Panchwati, Udaipur, Rajasthan.
3. District Excise Officer, Jaipur City, Excise Department Rajasthan, Jaipur.
----Respondents D.B. Civil Writ Petition No. 12385/2020 Gaurav Kumar Bhardwaj S/o Sh. Mahesh Kumar, R/o 42, Kailash Puri, Heera Path, New Sanganer Road, Mansarovar, District Jaipur, Rajasthan.
----Petitioner
Versus
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1. State Of Rajasthan, Through Principal Secretary, Finance Department, Government Of Rajasthan, Government Secretariat, Jaipur.
2. Commissioner, Excise Department, Government Of Rajasthan, 2, Gumaniwala, Panchwati, Udaipur, Rajasthan.
3. District Excise Officer, Jaipur City, Excise Department Rajasthan, Jaipur.
----Respondents D.B. Civil Writ Petition No. 12404/2020
1. Shubahm Sharma S/o Ramjilal Sharma, Resident Of Subhash Circle, Tehsil Chomu, District Jaipur, Rajasthan.
2. Dilip Singh S/o Dalpat Singh, Resident Of Subhash Circle, Tehsil Chomu, District Jaipur, Rajasthan.
----Petitioners Versus
1. State Of Rajasthan, Through Principal Secretary, Finance Department, Government Of Rajasthan, Government Secretariat, Jaipur.
2. Commissioner, Excise Department, Government Of Rajasthan, 2, Gumaniwala, Panchwati, Udaipur, Rajasthan.
3. District Excise Officer, Jaipur City, Excise Department, Rajasthan, Jaipur.
----Respondents D.B. Civil Writ Petition No. 12408/2020 Hari Singh S/o Vijay Singh, R/o Vpo Maulasar, Tehsil Deedwana, District Nagaur, Rajasthan
----Petitioner Versus
1. State Of Rajasthan, Through Principal Secretary, Finance Department, Government Of Rajasthan, Government Secretariat, Jaipur.
2. Commissioner, Excise Department, Government Of Rajasthan, 2, Gumaniwala, Panchwati, Udaipur, Rajasthan.
3. District Excise Officer, Jaipur City, Excise Department, Rajasthan, Jaipur.
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----Respondents
D.B. Civil Writ Petition No. 12409/2020 Het Ram Meel S/o Sh. Dula Ram Meel, R/o 144, Hanuman Nagar, Vaishali Nagar, District Jaipur, Rajasthan
----Petitioner Versus
1. State Of Rajasthan, Through Principal Secretary, Finance Department, Government Of Rajasthan, Government Secretariat, Jaipur.
2. Commissioner, Excise Department, Government Of Rajasthan, 2, Gumaniwala, Panchwati, Udaipur, Rajasthan.
3. District Excise Officer, Jaipur City, Excise Department, Rajasthan, Jaipur.
----Respondents For Petitioner(s) : Mr. R.K. Mathur, Sr. Adv. with Mr. Aditya Kiran Mathur through V.C. & Mr. Achintya Kaushik through V.C. For Respondent(s) : Mr. Vivek Dangi with Mr. Hitesh Jatawat, Mr. M.S. Singhvi, AG assisted by Mr. Siddhanth Jain, Mr. Shiv Kumar Parihar and Mr. Praveen Poswal through V.C. HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE MANOJ KUMAR VYAS Order 08/12/2020
1. Petitioners have preferred these Civil Writ Petitions inter alia seeking quashing of Clauses 3.18 (i) & 4.6 of the Excise and Temperance Policy for 2020-21 (hereinafter referred as "Excise Policy 2020-21") and for quashing and setting-aside the Notice/Penalty Orders passed by District Excise Officer, Jaipur Rural, Excise Department, Jaipur.
2. The clauses under challenge are same in both category of matters in the Writ Petitions i.e. Retail Off Vend matters, where (Downloaded on 11/12/2020 at 09:35:00 PM) (11 of 19) [CW-10936/2020] basic license fees is applicable and Composite license matters, where composite fees is applicable.
3. It is contended in the Writ Petitions that the Excise Policy 2020-21 has imposed additional penalty/charge on shortlifting of IMFL/Beer and on the basis of said Clauses, penalty has been imposed on the petitioners in the name of Additional Minimum Special Vend Fees for shortlifting of IMFL/Beer.
4. It is averred in the Writ Petitions that during lockdown, the shops remained closed and a request was made by the petitioners for consequential reduction in the Basic License Fees.
5. It is also averred in the Writ Petitions that the Special Vend Fees is an additional liability on the licensee which is directly related to the lifting of IMFL/Beer by the licensee from RSBCL.
6. It is further asserted in the Writ Petitions that the Excise Policy 2020-21 seeks to penalize licensees at the rate of Rs.20/- per bulk litre for IMFL and at the rate of Rs.10/- per bulk litre for Beer, if they are not able to show 10% increase in sale as compared to the previous year's relevant quarter, and those who do not give increase sale by 10%, are also to bear penalty at the rate of Rs.20/- per bulk litre for IMFL and at the rate of Rs.10/- per bulk litre for Beer.
7. It is also averred that the provisions under challenge are contrary to the objects and objectives of the Excise Policy 2020-21 and are also contrary to Article 47 of the Constitution of India. The trade in liquor is a heavily regulated trade, with restrictions of fixed timings, dry days and closure of shops at the directions of the Authorities and prohibition on advertising, etc. The impugned clauses of the Excise Policy 2020-21 makes it mandatory to lift more liquor and in consequence sell more liquor. (Downloaded on 11/12/2020 at 09:35:00 PM)
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8. In reply to the Writ Petitions, it is averred that petitioners have an alternate remedy under Section 9A of the Rajasthan Excise Act of filing Appeal. Petitioners have raised number of disputed facts which cannot be agitated in the Writ Petitions. Petitioners were aware of the Excise Policy and as per the terms and conditions of the Policy, petitioners were bound by the license conditions, and are thus liable to pay the Additional Minimum Special Vend Fees in case of shortlifting. Petitioners are estopped from questioning the Policy.
9. It is further stated in the reply that in the Excise Policy 2020- 21, annual license fees has been divided into two parts i.e. Basic License Fees and Additional Special Vend Fees. The Additional Special Vend Fees is charged only when the lifting is not in accordance with the Excise Policy and licensee's growth is below the prescribed quantity of the average growth of the District of the previous year. The purpose of putting the Additional Special Vend Fees was to ensure that the smuggled/illicit liquor is not sold in the State, as the same may be injurious to health and it also causes revenue loss to the State.
10. It is also stated in the reply that the conditions in the Excise Policy are very much clear and thus, the petitioners cannot turn around and escape from bare contractual obligations. The benefit of liquor shops remaining closed due to COVID-19 has already been extended to the petitioners and the impugned notice has only been issued for the post lockdown period.
11. It is further averred that provision for Special Vend Fees has been existing since 2016 and the petitioners have entered into the contract with open eyes and now they cannot be allowed to back out, taking undue shelter of COVID-19. (Downloaded on 11/12/2020 at 09:35:00 PM)
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12. It is contended by counsel for the petitioners that vide Notification dated 08.02.2020, the Excise Policy 2020-21 was published, in which it is clearly mentioned that the Government intends to discourage the consumption of liquor. However, in the same Excise Policy, conditions have been imposed that the licensee has to increase the sale by at least 10% as compared to the previous year's relevant quarter, and if the sale is not increased by 10%, then for the shortfall, the licensee will have to pay Additional Special Vend Fees. It is argued that the conditions imposed are contrary to the objective of the Excise Policy 2020- 2021.
13. It is also contended that the Clauses of the Excise Policy 2020-21 are contrary to Article 47 of the Constitution of India, as it is the duty of the State to raise the level of nutrition and standard of living and to improve public health. The decision of the State is contrary to the Directive Principles of State Policy. Counsel for the petitioners have placed reliance on "Minerva Mills Ltd. vs. Union of India (AIR 1980 SC 1789)."
14. It is also argued by counsel for the petitioners that as per the CAG report, the stipulation of penalty on shortlifting is inconsistent with the objects of the Excise Policy and detrimental to it. The provision of additional amount on shortlifted quantity is in fact an indirect promotion of the consumption of alcohol.
15. It is further contended by counsel for the petitioners that there is no substantive provision in the Rajasthan Excise Act which allows penalty to be imposed on shortlifting of liquor. In this regard, counsel for the petitioners have placed reliance on the following judgments:-
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i) "Bimal Chandra Banerjee vs. State of M.P., (1970) 2 SCC 467.
ii) Excise Commissioner vs. Ram Kumar, (1976) 3 SCC 540.
iii) State of U.P. vs. Saraya Industries Ltd., (2006) 11 SCC 129.
iv) Indian Carbon Ltd. vs. State of Assam, (1997) 6 SCC 479.
v) Shri Narayan Prasad vs. State of Orissa, (1995) II OLR 361".
16. It is argued that the Special Vend Fees is in fact in the nature of penalty, and penalty cannot be imposed, unless there is a provision in the statute i.e. under the Rajasthan Excise Act, 1950 or Rajasthan Excise Rules, 1956.
17. With regard to the reply filed by the respondents that petitioners have given declaration while filing the application form and that they cannot now challenge the same, it is argued that there cannot be estoppel against the law. The challenge is with regard to the penalty for shortlifting, which is without statutory basis and contrary to the objects of the Excise Policy 2020-21. The signing of the agreement does not debar the petitioners from challenging the specific clauses of the Excise Policy.
18. With regard to the objection that petitioners have an alternate remedy, it is argued that the penalty has been imposed in pursuance to the clauses under challenge, and since a Clause is existing, the Appellate Authority would not entertain the Appeal.
19. Learned Advocate General appearing for the State contends that the order passed by the Authorities is an appealable order, hence, a Writ Petition does not lie for the same. In this regard, reliance has been placed on:-
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i) "M/S HCL Infosystem Ltd. vs. State of Rajasthan, D.B. SAW 491/2017.
ii) Union of India vs. Major General Shrikant Sharma, 2015 (6) SCC 773.
iii) Nivedita Sharma vs. Cellular Operators, (2009) 14 SCC 337".
20. It is also contended that the Doctrine of Acquiescence and Estoppel would apply. Reference in this connection is made to the following judgments:-
i) AIR 1978 SC 28
ii) (2011) 5 SCC 435
iii) (2011) 10 SCC 420
iv) (2017) 9 SCC 322
v) State of Rajasthan vs. M/S CKM & Company, D.B. SAW 212/2017
21. It is contended that petitioners entered into the contract after agreeing to the terms and conditions of the license, and now they cannot wriggle out of the same. In this regard reliance has been placed on "Bihar State Electricity Board vs. M/S Green Rubber Industries, (1990) 1 SCC 731."
22. It is further argued that petitioners have concealed material facts while filing the Writ Petitions and have persuaded the Hon'ble Court to grant interim order. The petitioners while moving application for the grant of license, undertook to abide by the terms and conditions of the license, and having agreed to the same, it was obligatory for the petitioners to mention the same in the Writ Petition.
23. It is also contended that petitioners have also concealed the fact that benefits, relaxations and rebates were given to them for the period 01.04.2020-03.05.2020 on account of COVID-19. The State has given suitable relaxations and rebates and when the (Downloaded on 11/12/2020 at 09:35:00 PM) (16 of 19) [CW-10936/2020] shops opened on 03.05.2020, there was an abrupt rise in the sale of liquor. In this regard, counsel has placed reliance on following judgments:-
i) K.D. Sharma vs. SAIL, 2008 (12) SCC
481.
ii) Bhaskar Laxman Jadhav & Ors. vs. Karamveer Kakasaheb Wagh Education Society & Ors., 2013 (11) SCC 531.
iii) Ramjas Foundation & Anr. vs. Union of India & Ors., (2010) 14 SCC 38.
24. It is argued by learned Advocate General that there is always an increase in the sale of liquor and if the Clause under challenge was not incorporated in Excise Policy 2020-21, then there is every likelihood of smuggled liquor entering the market, which would be injurious to the health of public and would also cause revenue loss to the State.
25. With regard to the CAG Report, it is argued that the same does not have any evidentiary value. However, in the report itself, it is mentioned that there is illegal transportation of liquor in the State of Rajasthan. It was the duty of the State to provide good quality liquor and prohibit the sale of illicit liquor, and thus, the CAG report cannot be made a ground to challenge the Excise Policy 2020-21.
26. It is also argued that in the State of Rajasthan, there are almost 5543 groups and number of shops are 6665. The number of IMFL shops are 1000. Out of so many number of groups/shops, only the present petitioners have challenged the provisions of the Excise Policy 2020-21.
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27. It is further argued that the notice for recovery of additional amount according to the Excise Policy 2020-21, cannot be constituted as penalty by any stretch of imagination, since the petitioners have failed to lift the quantity of liquor as required by the Excise Policy 2020-21, they were under a contractual obligation to pay the additional amount.
28. Petitioners while applying for grant to license gave an unconditional undertaking that they shall abide by the rules and polices framed time to time. Hence, the additional amount is recoverable from the petitioners.
29. We have considered the contentions.
30. Admittedly, petitioners have entered into a contract and as per the terms and conditions of the license, they are required to follow the conditions imposed by the respondent and the terms of the Excise Policy. As per the terms of the Excise Policy 2020-21, petitioners were required to sell a particular quantity of IMFL/Beer and in case of shortlifting, they were required to pay the amount as Additional Minimum Special Vend Fees. Further, they were required to sell 10% more than the last year's quantity. Petitioners have entered into the contract with open eyes and now, they cannot challenge the terms of the Excise Policy 2020-21, on the ground that the clauses are contrary to Article 47 of the Constitution of India and against the objects of the Excise Policy.
31. It is a clear case of the respondent that they are duty bound to supply good quality product to the consumers and if restrictions are not imposed, there would be illegal transportation of liquor in the State and bad quality product would find place in the market and would cause revenue loss as well to the Government. (Downloaded on 11/12/2020 at 09:35:00 PM)
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32. The Excise Policy for the year 2015-16 was challenged before the Rajasthan High Court in the case of "Abhishek Jaiswal vs. State of Rajasthan & Ors. (D.B. Civil Writ Petition No.948/2016)." The matter pertained to shortlifting of IMFL/Beer. Division Bench held that charging of Additional Vend Fees on account of shortlifting of IMFL/Beer, cannot be said to be a tax or penalty and the same is supported by Subordinate Legislation.
33. In the case of "Har Shankar & Ors. vs. The Deputy Excise & Taxation Commissioner & Ors. (AIR 1975 SC 1121), Apex Court has held that in a concluded contract, Writ Petition is not an appropriate remedy for impeaching contractual obligations. In, "State of Rajasthan & Ors. vs. M/S C.K.M. & Company (D.B. Civil Special Appeal (Writ) No.212/2007)"
there was condition in the agreement that any kind of stoppage of mining operations shall not have any bearing or impact upon the recovery of royalty. The Writ Petitioners in that case had entered into an agreement for collection of royalty which contained the aforesaid language of absolute liability irrespective of the status of the mining operations. The Court observed that in those circumstances, no relief could have been granted to the petitioners as the law of equity, without any basis, cannot override specific conditions in the contract. In the present case in hand also, petitioners have entered into a contract, wherein, they have agreed to pay Additional Special Vend Fees for shortlifting and the same cannot be challenged in the Writ Jurisdiction.
34. The basis for challenge in this case is that the Excise Policy 2020-21 is contrary to Article 47 of the Constitution of India. Article 47 of the Constitution of India deals with the Directive (Downloaded on 11/12/2020 at 09:35:00 PM) (19 of 19) [CW-10936/2020] Principles of State Policy. The State is bound to raise the level of nutrition and standard of living and to improve public health. As per the reply submitted by the State, State wants to provide good quality liquor to the consumers and to avoid pilfering of liquor from other States, which may not be quality product, State has put these conditions in the Excise Policy, hence, the same cannot be said to be violative of Article 47 of the Constitution of India.
35. Petitioners having entered into the contract with open eyes, cannot now challenge the terms of the contract under the Writ Jurisdiction. There are as many as 5543 groups and number of shops are 6665. The number of IMFL shops are 1000. Out of so many number of groups/shops, only the present petitioners have approached the Court.
36. It is further evident that the petitioners have not come with clean hands, as suitable relaxation and rebates were given by the State to the petitioners which have not been mentioned in the Writ Petitions and interim order has been obtained from the Hon'ble Court by concealing the material facts.
37. In view of the above, we do not find any merits in the present Civil Writ Petitions. The same are accordingly dismissed.
38. Copy of this order be placed in the connected files. (MANOJ KUMAR VYAS),J (PANKAJ BHANDARI),J AMIT KUMAR /41-65 (Downloaded on 11/12/2020 at 09:35:00 PM) Powered by TCPDF (www.tcpdf.org)