Jharkhand High Court
Anil Chandra Basak vs The State Of Jharkhand & Ors on 13 July, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
[Civil Writ Jurisdiction]
W.P.(C) No. 4466 of 2009
Anil Chandra Basak .... .. ... Petitioner
Versus
The State of Jharkhand & Ors. .. ... ... Respondents
...........
CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO
.........
For the Petitioner : None
For the respondents-State :
......
04/ 13.07.2022.
Nobody appears on behalf of the petitioner on repeated call.
It appears that petitioner- Anil Chandra Basak, S/o Late Gopal Basak
has preferred the writ petition for issuance of writ in the nature of mandamus
or any other appropriate writ, order or direction for a declaration that the
provision contained in Clause (v) at page 4 of Resolution No.604 dated
07.05.2008 of the Excise Prohibition Department of the Government of
Jharkhand (Annexure-1) and the similar provision contained in Clause 13
(Kha) of the sale notification in Form 127-Ka, published by respondent no.4
under Memo No.438 dated 03.03.2009 (Annexure-2) and in Rule 15 of the
Rules made by the Government under Section 89 of the Jharkhand Excise Act
in Notification No.647 dated 27th March, 2009 (Annexure-3), in so far as they
provide that if, 1/12th of the annual fee fixed for a shop is not paid by a
licensee by the 20th of every month, interest at the rate of 5% per day of
default shall be calculated and realized from him, is not only arbitrary,
irrational, unfair, unjust, unreasonable and ultra vires the provisions of the
said Act but is also violative of Article 14 of the Constitution of India.
From perusal of the counter-affidavit filed on 17.11.2009, it appears
that relevant facts are at paras 7, 8, 9, 10, 11 and 12 of the counter-affidavit,
which reads as follows:-
"7.That it is stated that after the bifurcation of the State of Bihar the Government of
Jharkhand having limited resources, experimented some policies to get the maximum
excise revenue but the Department of Excise & Prohibition could not collect the
expected revenue. On the basis of some shortcomings and weak points in the previous
policy, the defaulter licensee of the State got the favourable orders from the different
courts which prevented the respondent in collection of huge arrear in the head of
license fee. After such experience of loss of excise revenue, high level committee was
constituted by the State Government and this committee formulated the Rule No.15 of
the Resolution No.647 dated 27.03.2009 under Section 89 of Excise Act. This Rule
relates to the charging of interest at the rate of 5% per day in default of payment of
license fee on due date. The said Rule 15 is working now as deterrent is being defaulter
of license fee.
8.That it is stated that the citizen can not have the fundamental right to trade or carry
on the business of Excise in properties of or right belonging to the government, nor can
there be any infringement of Article 14, if the government tries to get the best available
price for its valuable right. It is all because that rights in regard to intoxicants belong
to the state, and as such, it is open to the State Government to part with those rights for
consideration.
9.That it is stated that the judgment of Hon'ble Supreme Court in the order of P.N.
Kaushal vrs. Union of India (AIR 1978 SC 1457). The Hon'ble court considered that
the dealing in intoxicant is not trade or business within the meaning of Article 19(1)(g)
of the Constitution of India. Trade in liquor has historically stood on a different footing
from other trades. Restrictions which are not permissible with other trades, are lawful
and reasonable as far as the trade in liquor is concerned.
10.That it is stated that by Section-89 of the Excise Act, the State Government may
make rules for carrying out the objects of this act or any other law for the time being in
force relating to the excise revenue.
11.That it is stated that any section like Section 46 and 93 or PDR Act enable the
department to recover the dues/ arrears but these sections do not ensure, to have any
dues or arrears. So the Government felt to improve the stiffer Rule which can deter the
dues/ arrears. The impugned Rule 15 in notification no.647 dated 27.03.2009 has been
introduced with a purpose to ensure the collection of excise revenue within the
stipulated time. The Government has not intention to earn revenue by way of imposition
of interest at the rate of 5% per day of default, but to ensure the collection of license fee
within the stipulate time. The government this year is achieving the fruitful result in all
the districts of Jharkhand except as far as the collection of the District of East
Singhbhum.
No substantial amount of such interest has been reported to be imposed in the
district except East Singhbhum of the State. So the imposition of such interest of the
default worked as deterrent in being defaulter.
12.That it is stated that the licensee having once accepted the terms and conditions can
not back out from the same. Writ jurisdiction cannot be invoked to avoid contractual
obligation. This can be had from the judgment of the Hon'ble Supreme Court in the
case of State Bank of Harayana Vrs. Jage Ram (1980) 3 Section 599."
Considering the facts and circumstances of the case and having gone
through the materials available on record including counter-affidavit, no writ
can be issued in favour of petitioner.
Accordingly, the instant writ petition is dismissed.
I.A. No.3201 of 2009 stands closed.
(Kailash Prasad Deo, J.)
R.S.
