Full Judgment Text
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PETITIONER:
STATE OF RAJASTHAN & ORS.
Vs.
RESPONDENT:
ANIL KUMAR SUNIL KUMAR & PARTY & ANR.
DATE OF JUDGMENT: 03/04/2000
BENCH:
S.R.Babu, R.C.Lahoti
JUDGMENT:
R.C. Lahoti, J.
M/s Anil Kumar Sunil Kumar & Party, the respondent
no.1 in these appeals had filed a writ petition before the
High Court of Rajasthan impleading the State of Rajasthan,
the Excise Commissioner and the other officers of the Excise
Department as respondent nos.1 to 4, also M/s Ganganagar
Sugar Mills Ltd. as respondent no.5. For the sake of
convenience the parties shall be referred to as they were
arrayed in the writ petition before the High Court.
The Excise Commissioner, Rajasthan, Udaipur vide
tender notice dated 6.2.1991 invited tenders for grant of
exclusive privilege licences (E.P.L.) under Rules 67(I) and
67 (K) of the Rajasthan Excise Rules, 1956 read with Rule 3
of the Rajasthan Foreign Liquor (Grant of Wholesale Trade
and Retail Licence) Rules, 1982 for sale of country liquor
for the whole of Rajasthan (excluding tribal area), retail
sale of beer, retail and wholesale sale of Indian-Made
Foreign Liquor for shops and group of shops/sub-shops for
financial years 1991-92 and 1992- 93. One of the group of
shops forming subject matter of the tender notice was
designated as Sirohi group of shops falling in excise
district of Jalore for the sale of country liquor.
Thereunder fell 35 main shops and 48 sub-shops as notified.
The total amount of reserve price for the group of shops as
notified was as under:- Rs. 1. Country Liquor
2,42,94,800/- 2. I.M.F.L. (Retain) 2,39,29,200/- 3.
Retain sale of beer 21,72,900/- 4. Wholesale of I.M.F.L.
3,87,900/- ------------------ 5,17,84,800/-
------------------
The petitioners submitted tenders for the grant of
exclusive privilege licences of all the aforesaid heads as
under :- 1. Country Liquor 2,42,94,800/- 2. I.M.F.L.
(Retail) 3,42,55,511/- 3. Retail sale of beer 21,72,900/-
4. Wholesale sale of I.M.F.L. 3,87,900/ ----------------
6,11,11,111/- ---------------- The petitioners tenders
being the highest were accepted. They were granted licence
for the retail sale of country liquor for Sirohi group of
shops amongst other licences. We are concerned in this
appeal with the abovesaid licence relating to Sirohi group
of shops.
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According to the petitioners they were grantees of the
exclusive privilege licence of shops for the local area
comprising of Sirohi Revenue District excluding the Janjati
(tribal) area. Abu Road and Mount Abu Municipal areas,
including the Janjati area as notified by the Presidential
Order known as the Scheduled Areas (Rajasthan State) Order,
1981, formed part of Sirohi Revenue District. The District
Excise Officer, Sirohi did not allow or permit the
petitioners to open their sub-shops of country liquor in the
municipal areas of Abu Road and Mount Abu on the ground that
those two areas were included in the Janjati area. This led
to the shortfall in the sale of country liquor as they could
not fulfil the minimum demand by lifting the quantum of
exclusive privilege for the fiscal years 1991-92 and
1992-93. Instead M/s Ganganagar Sugar Mills Limited, the
respondent no.5 (hereinafter referred as the Sugar Mills,
for short) which were holding the licence for selling by
retail the country liquor through their five shops and
sub-shops in the Abu Road and Mount Abu municipal areas for
and upto the year ending 31.3.1991 were renewed the licence
for the fiscal years 1991-92 and 1992-93 whereunder the
Sugar Mills continued to operate their shops in those areas.
The petitioners sought for the following reliefs :- (i) a
declaration that the renewal of the licences granted by the
District Excise Officer, Sirohi in favour of the Sugar Mills
for the financial years 1991-92 and 1992-93 for the retail
sale of country liquor in the municipal areas of Mount Abu
and Abu Road was illegal and void; (ii) the policy decision
of the State, if any, which prohibited the sale of country
liquor in the above-said areas by any private licensee other
than the Sugar Mills was illegal and void; and (iii) that
the petitioners be held entitled to vend country liquor by
retail sale in the municipal areas of Mount Abu and Abu Road
for the said years and the amount of due price and margin
money paid by the Sugar Mills, respondent no.5 to the State
Government be adjusted towards the exclusive privilege
amount payable by the petitioners.
According to respondent nos.1 to 4, the petitioners
had submitted tender for 35 shops and 48 sub-shops included
in the Sirohi group of shops. The petitioners were not
granted exclusive privilege licence for vending country
liquor for the entire Sirohi Revenue District. The tender
notice clearly specified the group of 35 shops and 48
sub-shops designated as Sirohi group of shops which is
tried to be confused with shops in the entire Sirohi Revenue
District. The petitioners knew it well from the very
beginning that in so far as the areas of Abu tehsil
including Abu Road and Mount Abu were concerned licences for
selling country liquor by retail were being granted
invariably over a number of years in favour of the Sugar
Mills which was a Government of Rajasthan undertaking. No
private party was ever allowed such a privilege by way of
licence. It was the policy of the State, well within the
knowledge of the petitioners, that to protect the tribals
from exploitation at the hands of the private licensees,
sale by private licensees was not allowed in the tribal
areas. The licences which were held by the Sugar Mills for
the period expiring on 31.3.1991 were renewed for the next
two financial years consistently with the policy of the
State. Exclusive privilege for vending country liquor by
licence in the municipal areas of Abu Road and Mount Abu
neither formed the subject-matter of the tender notice nor
could it have been. The petitioners did not submit tenders
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for Mount Abu and Abu Road. The licences issued to the
petitioners did not relate to any shop at Mount Abu or Abu
Road insofar as vending of country liquor by retail sale is
concerned; on the contrary the licences granted to the
petitioners for sale by retail of IMFL included shops in the
towns of Mount Abu and Abu Road. The petitioners made a
default in payment of the fee for exclusive privilege grant.
On 31.12.1991 an amount of Rs.98,30,468 was outstanding
against the petitioners. The petition is an attempt to
wriggle out of the petitioners obligation to pay the amount
by pleading a false and imaginary ground.
It is not disputed nor could it have been that the
declared policy of the State Government consistently with
the directives issued by the Central Government in this
regard was not to allow private parties as licensees for
vending country liquor by retail in the tribal areas.
Eversince 1.4.1982 Abu road and Mount Abu were not allowed
to have any private contractor and retail sale of country
liquor in the said areas was being arranged through the
licences granted to the Sugar Mills, a Government
undertaking.
The respondents also raised a few preliminary
objections to the maintainbility of the writ petition
submiting that the petition raised disputed questions of
fact and the relief sought for arose out of contractual
obligations voluntarily incurred by the petitioners and so a
writ petition was not an appropriate remedy for the grant of
the reliefs asked for.
A few relevant dates which are not in dispute may be
noticed as they will have a material bearing on the
adjudication of the dispute. The writ petition was filed on
16.3.1992 initially before the Jaipur Bench of the Rajasthan
High Court. On 27.4.1992 the respondents filed their
counter-affidavits contesting that pettion. On 28.8.1992
the writ petition filed by the petitioners was allowed by a
learned Single Judge. The decision was put in issue by the
respondents before the Division Bench of Rajasthan High
Court by filing a writ appeal. On 15.1.1993 the appeal was
allowed upholding the plea of the respondents that the
Jaipur Bench of Rajasthan High Court did not have
territorial jurisdiction to entertain the writ petition.
The writ petition was directed to be returned to the
petitioners for being presented at Jodhpur, the principal
seat of the Rajasthan High Court. Accordingly the writ
petition was returned to the petitioners and re-filed on
21.1.1993 at Jodhpur.
After hearing the parties, the learned Single Judge
directed the petition to be dismissed. Briefly stated, the
learned Single Judge upon evaluation of several documents
brought on record by the parties upheld the pleas raised by
the respondents. The learned Single Judge found that the
notice inviting tenders and the tender submitted by the
petitioners were both for the grant of exclusive privilege
for a group of shops termed as Sirohi group of shops which
comprised of 35 main shops and 48 sub-shops. The
petitioners were trying to confuse Sirohi group of shops
with shops in the revenue district of Sirohi. The notice
inviting tenders, the tenders submitted by the petitioners
and the licence issued to the petitioners all related to
Sirohi group of shops. The 35 main shops and 48 sub-shops
were situated only in four tehsils of District Sirohi namely
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Revdar, Pinvara, Sirohi and Sheoganj. None of the said
shops or sub-shops was situated in Mount Abu and Abu Road
which formed part of Abu Road tehsil. This was in
conformity with the State policy of 1981 adopted in response
to Central Government directives. The petitioners have been
in the liquor trade since long. At the time of submitting
their tenders they knew it well that in Mount Abu and Abu
Road licences had never been granted to any private
contractors for vending country liquor. Such licences in
Mount Abu and Abu Road were invariably issued in favour of
the Sugar Mills, a Government undertaking, eversince 1st
April, 1982. The entire Abu Road tehsil including the areas
of Abu Road and Mount Abu was declared a scheduled area
under the Presidential notification. Merely because Abu
Road and Mount Abu were constituted as municipality under
the Rajasthan Municipality Act, it could not be held that
these local areas were excluded from the scheduled area
declared by the President of India. On these findings the
learned Single Judge held the petitioners not entitled to
any relief and directed the petition to be dismissed.
The petitioners preferred an appeal before the
Division Bench. The only question raised before the
Division Bench was as to the interpretation of local area
for which the petitioners were granted the licence. Having
made an evaluation for itself of the documents brought on
record the Division Bench held that Mount Abu and Abu Road
were included in the area to which the licences granted to
the petitioners related and the conduct of the excise
department treating Mount Abu and Abu Road to be scheduled
areas was a mistake of law under which both the parties were
belabouring. The Division Bench further opined that though
the petitioners did not apply for opening any sub-shops for
the sale of country liquor at Mount Abu and Abu Road from
April 1991 till February 1992, but merely from that omission
it could not be inferred that they had voluntarily waived
their right to open sub-shops in those areas. They had a
legal right and consequences flowing from the denial of the
legal right of the petitioners must follow. Consequently,
the appeal filed by the petitioners was allowed and the
demand raised against the petitioners was quashed.
Aggrieved by the judgment of the Division Bench, the
State of Rajasthan have come up in appeal by special leave
to this Court.
Having heard the learned counsel for the parties, we
are of the opinion that the appeal deserves to be allowed
and the judgment of the Division Bench of the High Court
deserves to be set aside.
The policy decision of the State Government contained
in its G.Os. dated 18.9.1981 and 7.2.1991 is not in
dispute. No fault can be found with the said policy
decision whereby in the interest of tribals the State
Government had, consistently with the directives issued by
the Central Government, taken a policy decision not to
permit sale by private licensees in such areas as were
populated by the tribals so as to protect them from likely
exploitation at the hands of private liquor vendors.
Licence to sale country liquor by retail was given only to
the Sugar Mills which was a Government undertaking. The
price of the country liquor to be sold by the Sugar Mills
was fixed while the private licensees were free to sell the
liquor at whatever price they liked. Such policy protected
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the tribals and weaker sections of the population in the
scheduled areas. The controversy which was sought to be
raised by the petitioners before the High Court by filing
the writ petition related to the interpretation of several
documents so as to find out whether Mount Abu and Abu Road
areas were intended to be put to auction by the tender
notice and whether the petitioners had submitted their
tenders so as to include those areas and whether the licence
issued to them covered those areas or not. The learned
Single Judge by carefully analysing the documents brought on
record held against the petitioners. In appeal, the
Division Bench by evaluating the same set of documents drew
factual inferences in favour of the petitioners. The
petitioners had raised highly disputed questions of fact and
had also sought for a relief against a contractual liability
which was sought by the State to be enforced against them.
However, we are of the opinion that it is not necessary for
us to enter into the abovesaid disputed questions of fact,
re-appreciate and re-evaluate the documentary evidence
brought on record and to record a finding on the correctness
or otherwise of the inferences drawn by the learned Single
Judge and the Division Bench. We are unhesitatingly of the
opinion that the conduct of the petitioners disentitled them
to the grant of any reief in exercise of discretionary writ
jurisdiction of the High Court.
It cannot be denied nor has it been that eversince
1.4.1982 continuously and uninterruptedly the Sugar Mills
only were having the licence for sale of country liquor by
retail in Mount Abu and Abu Road tehsils. Even on 6.2.1991
when the tender notice was issued by the Excise
Commissioner, the licence granted in favour of the Sugar
Mills was already in operation. The petitioners were well
aware of the policy of the State Government having been in
this trade for long. Right from April 1991 till February
1992 the petitioners never applied for opening any sub-shops
of theirs for the sale of country liquor at Mount Abu and/or
Abu Road, though they had submitted several applications
from time to time for obtaining permission of the District
Excise Officer for opening shops/sub- shops in various areas
covered by their licences. They were seeking approval of
the location of the shops/sub-shops at the places situated
in 4 tehsils of Sirohi District excluding Abu Road tehsil.
For a period of about 11 months, the petitioners exploited
their licences and enjoyed the exclusive privilege of
selling by retail the country liquor in Sirohi District
excluding Mount Abu and Abu Road tehsils. It is only when
they fell into arrears of the licence fee and a demand was
raised against them that on 4.3.1992 they raised a plea of
having been wrongfully excluded from exercising the
exclusive privilege for sale by retail of country liquor in
Mount Abu and Abu Road areas and for that purpose served a
notice seeking the withdrawal of the demand raised by the
State and demanding permission in future for opening
sub-shops in Mount Abu and Abu Road Municipal areas. The
plea raised in the notice dated 4.3.1992 that the
petitioners had become aware of the correct factual and
legal position by making enquiries in the last week of
February 1992 was apparently false and highly belated. The
plea that on further enquiries being made and legal advice
being sought it has transpired that Mount Abu and Abu Road
were not included in the Janjati Kshetra (tribal area) was
raised by the petitioners by making an averment in that
regard in the rejoinder which they had filed on 15.2.1993.
The plea was not raised in the writ petition as originally
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filed. Yet another very material fact which exposes the
falsity of the petitioners plea is that the reserve price
fixed by the State for exclusive privilege for vending
country liquor for Sirohi group of shops was based on the
previous years figures of sales of the notified 35 main
shops and 48 sub-shops, wherein the figures of sales of
shops at Mount Abu and Abu road were not included. This
plea raised by the respondents was supported by the
documents of unimpeachable veracity brought on record and
duly supported by affidavit.
In State of Orissa Vs. Nayaran Prasad 1996 (5) SCC
740 this Court has, in the backdrop of similar facts, held
:- A person who enters into certain contractual obligations
with his eyes open and works the entire contract, cannot be
allowed to turn round and question the validity of those
obligations or the validity of the Rules which constitute
the terms of the contract. The extraordinary jurisdiction
of the High Court under Article 226, which is of a
discretionary nature and is exercised only to advance the
interests of justice, cannot certainly be employed in aid of
such persons. Neither justice nor equity is in their
favour.
In the case at hand we find that the petitioners are
trying to wriggle out of a contractual obligation by raising
a plea which was highly belated and clearly an afterthought.
They knew it very well that they were not bidding for a
privilege by way of licence to sell country liquor by retail
in the areas of Abu Road tehsil nor could they have had that
privilege in view of the States policy decision whereunder
a Government undertaking only was allowed to operate its
licence in those areas. They having been faced with a
demand raised against them appear to have looked into
several documents and found out scope for raising plea on
the phraseology employed by the State or its officers in
different documents which were brought on record. Such a
plea could not be allowed to be entertained. The learned
Single Judge was right in turning down the plea raised by
the petitioners and thereby dismissing the writ petition.
In our opinion, the Division Bench ought not to have
interfered with the judgment of the learned Single Judge.
The learned counsel for the writ-petitioners lastly
submitted that the principal amount due and payable by them
on account of issue price and margin money has been paid by
them but a demand of Rs.8 lakhs is stated to be outstanding
against them, which amount consists of interest only which
if insisted on being paid, would be ruinous to the
petitioners. The amount outstanding against the petitioners
as per details contained in the letter of the Excise
Commissioner, Rajasthan, Udaipur dated 26.11.1994 was as
under:-
Principal amount outstanding for Deshi Madira (Country
Liquor) Rs.75,55,355-00
Interest on outstanding dues Rs.10,81,323-00
Bha.Ni.Vi.M. Rs. 3,91,455-00 -------------------
Total : Rs.90,28,133-00 -------------------
Pursuant to the judgment passed by the Division Bench
of the High Court on 23.2.1994, the petitioners had made an
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application before the Excise Commissioner and the latter
had vide order dated 25.5.1994, after adjusting the amount
of issue price and margin money paid by Sugar Mills from
29.8.1982 to 5.2.1993, computed the above-said amount, which
amount of Rs.90,28,133-00 has since been realised by the
Department. Upon operation of the judgment of the Division
Bench of the High Court of Rajasthan having been stayed by
this Court, the Excise Commissioner withdrew the relief of
rebate of Rs.29,81,159-00 which was allowed to the
petitioners pursuant to the Division Bench judgment of the
High Court. Thereafter the petitioners have deposited under
protest a further amount of Rs.21,81,159-00 (out of
Rs.29,81,159-00) between 10.9.1997 and 23.9.1997. Thus, it
is only an amount of Rs.8 lakhs on account of interest
calculated at the rate of 12% per annum which still remains
to be paid by the petitioners. In our opinion, looking to
the nature of the controversy raised and the stages through
which the litigation has travelled up to this Court, i.e.
the petitioners having succeeded before the single Judge
earlier, which judgment was set aside on the ground of want
of territorial jurisdiction only and again from the Division
Bench of the High Court which judgment was stayed by this
Court and further keeping in view the payments made by the
petitioners to the Excise Department during the pendency of
the litigation, we deem it proper to direct that no further
amount should now be realised from the petitioners. It may
be placed on record that on behalf of the State of Rajasthan
the factual position as to the amount of dues and the heads
under which it has been demanded and substantially paid, as
stated in this para, specially the fact that the outstanding
amount is only Rs.8 lakhs and is attributable to demand on
account of interest has not been disputed.
The appeals are allowed. The judgment of the Division
Bench of the High Court dated 23.2.1994 is set aside. The
judgment of the learned single Judge dated 26.5.1993 is
restored. However, for the reasons stated in the preceding
para, it is directed that the amount of Rs.8 lakhs, which is
on account of interest, shall not be realised from the writ
petitioners. No order as to the costs.