Jharkhand High Court
Ajay Kumar Gupta vs The State Of Jharkhand on 15 March, 2022
[1]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.6300 of 2019
Ajay Kumar Gupta, aged about 48 years, son of Shri Rameshwar Prasad,
Resident of J.C. Mallick Road, Hirapur, P.O. Hirapur, P.S. Dhanbad,
District-Dhanbad. ... ... Petitioner
Versus
1. The State of Jharkhand, through the Secretary, Department of Excise &
Prohibition, Government of Jharkhand having his office at Utpad
Bhawan, Second Floor, Near New Police Line, Kanke Road, P.O.
Ranchi University, P.S. Gonda, Ranchi, Jharkhand 834008.
2. The Excise Commissioner, Jharkhand, having his office at Utpad
Bhawan, Second Floor, Kanke Road, P.O. Ranchi University, P.S.
Gonda, Ranchi, Jharkhand 834008.
3. The Deputy Commissioner of Excise (Headquarter) having his office at
Utpad Bhawan, Near New Police Line, Kanke Road, P.O. Ranchi
University, P.S. Gonda, Ranchi, Jharkhand 834008.
4. The Assistant Commissioner of Excise (Headquarter) having his office
at Utpad Bhawan, Near Police Line, Kanke Road, P.O. Ranchi
University, P.S. Gonda, Ranchi, Jharkhand 834008.
5. The Deputy Commissioner, Dhanbad, P.O. & P.S. Dhanbad, District-
Dhanbad.
6. The Assistant Commissioner of Excise, Dhanbad, P.O. & P.S. Dhanbad,
District-Dhanbad.
... ...Respondents
-------
CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
-------
For the Petitioner : Mr. Sumeet Gadodia, Advocate
For the Respondents : Mr. Mithilesh Singh, GA-IV
----------------------------
CAV on 27.10.2021 Pronounced/Delivered on 15/03/2022
Per Sujit Narayan Prasad, J.
1. The instant writ petition is filed under Article 226 of the
Constitution of India for the following reliefs:
[2]
"(i) For issuance of an appropriate writ/order/direction, (as
adopted) and is also wholly arbitrary and violative including a
Writ in the nature of Declaration, declaring Rule 47(11) of the
"Jharkhand Utpad (Madira ki Khudra Bikri Hetu Dukano Ki
Bandobasti Evam Sanchalan) Niyamawali, 2018", (Annexure-
I), which provides for mandatory cancellation of a license for
the irregularity of selling liquor in excess of the fixed maximum
retail price is ultra vires the provisions of Section 68 of the
Bihar Excise Act, 1915 of Articles 14 and 19(1)(g) of the
Constitution of India.
(ii) For issuance of an appropriate writ/order/direction,
including Writ of Declaration, declaring Rule 44 of the
"Jharkhand Utpad (Madira ki Khudra Bikri Hetu Dukano Ki
Bandobasti Evam Sanchalan) Niyamawali, 2018", (Annexure-
I), to the extent it provides that if a licensee charges from a
consumer price in excess of that printed on the labels of the
bottles of liquor, action may be taken to cancel the license, as
being wholly arbitrary, illegal and violative of Articles 14 and
19(1)(g) of the Constitution of India and also not being in
consonance with the legislative intention as reflected in Section
42 of the Bihar Excise Act, 1915, as adopted.
(iii) For issuance of an appropriate writ/order/direction,
including Writ of Declaration, declaring Rule 46(2) of the
"Jharkhand Utpad (Madira ki Khudra Bikri Hetu Dukano Ki
Bandobasti Evam Sanchalan) Niyamawali, 2018", (Annexure-
I), as ultra vires being contrary to the scheme of the Bihar
Excise Act, 1915, as adopted, and beyond the powers of
delegated legislation conferred to the State Government under
Section 89 of the said Act and also ultra vires the provisions of
Articles 14 and 19(1)(g) of the Constitution of India.
(iv) For issuance of an appropriate writ/order/direction for
quashing/setting aside the order contained in Letter No.1203
dated 26.10.2019 (Annexure-8) passed by Respondent No.5-
Deputy Commissioner, Dhanbad, whereby license granted in
favour of the Petitioner for running of Foreign Liquor shop vide
License No.011_FLX_DHN_19-20 years 2019-20 has been
cancelled and further direction has been issued for forfeiture of
advance Excise Transport Duty (for short „ETD‟) and Security
Deposit amount, total amounting to Rs.34,50,000/-.
[3]
(v) For issuance of further appropriate writ/order/direction,
including Writ of Mandamus directing the Respondent-
authorities to open the seal of Liquor Shop of the Petitioner
which was being operated by him pursuance to the license
granted in his favour vide License No.011_FLX_DHN_19-20
years 2019-20 and allow the Petitioner to operate the said
Liquor Shop after accepting compounding fine in terms of
Section 68 of the Bihar Excise Act, 1915, as adopted."
2. The brief facts of the case which require to be enumerated herein
reads as hereunder:
The respondent-State of Jharkhand issued an
advertisement on 22.01.2019 notifying the process of settlement of
Retail Excise Shops through lottery. The petitioner participated in
the aforesaid lottery process and was declared successful in respect
of the Shop bearing Group No.10 notified for the District of
Dhanbad, which comprised of a Foreign Liquor Shop situated at
Police Line, Dhanbad and a Country Liquor Shop situated at Kusma
in the District of Dhanbad. It is stated that two separate licenses
were issued in faovur of the petitioner.
The petition involves the dispute pertaining to Foreign
Liquor Shop in respect of shop bearing Group No.10 which has
been allotted in favour of the petitioner having license
No.011_FLX_DHN_19-20 years 2019-20 which is valid for a
period of three years starting from 2019 to 2022.
The aforesaid settlement of Liquor Shop has been
initiated in pursuance to the rule promulgated vide notification
dated 24.12.2018 which have been promulgated in exercise of
power conferred under Section 89 of the Bihar Excise Act, 1915, as
[4]
adopted and known as "Jharkhand Utpad (Madira ki Khudra Bikri
Hetu Dukano Ki Bandobasti Evam Sanchalan) Niyamawali, 2018".
According to the petitioner, as per the provision of Rules,
2018, a successful allottee of the liquor shop was required to deposit
5% of the total annual minimum revenue of the shop in question as
security deposit with the respondent-State of Jharkhand and
accordingly, the petitioner after being declared successful in the
lottery, deposited a sum of Rs.13,80,000/- with the respondent-State
of Jharkhand towards security deposit.
It has further been provided under the provision of Rules,
2018 about the condition for deposit of 10% of the annual minimum
excise transport duty by way of advance with the respondent-State
of Jharkhand. However, the said condition of deposit of 10% of the
annual minimum excise transport duty was reduced from 10% to
7.5% and accordingly, the petitioner deposited a sum of
Rs.20,70,000/- towards excise transport duty amount in advance
with the respondent-State of Jharkhand which as per the condition
was to be adjusted in the month of March, 2020 towards monthly
liability of minimum excise transport duty amount.
The petitioner, pursuant to the allotment of the aforesaid
shop was running the said shop, however, on 19.09.2019, the
Deputy Commissioner, Excise (Headquarter) and the Assistant
Commissioner of Excise (Headquarter) inspected the police line
foreign liquor shop and in course of surprise inspection of the said
shop it was found that when a bottle of Carlsberg (Premium Pils)
Beer of Batch No.209 dated 22.06.2019 was purchased, the
[5]
salesman present in the shop, namely, Shri Ramesh Paswan, took
Rs.120/- instead of Rs.100/- being the maximum retail price fixed
by the Government. The said shop was sealed by the said authorities
on the ground of the said alleged irregularity.
The Deputy Commissioner, Dhanbad had issued a notice
to the petitioner vide letter No.1113 dated 25.09.2019 asking the
petitioner to submit his explanation within a week as to why the
license held by him should not be cancelled for the alleged
irregularity for selling liquor above the maximum retail price. The
said notice contained the reference of the provision of Rule 47(11)
and Rule 46(1) of the Rules, 2018. The petitioner had submitted his
explanation on 30.09.2019 denying the commission of irregularity
stating therein that the beer which was sold at Rs.120/- instead of
Rs.100/- possibly because the salesman, namely, Shri Ramesh
Paswan was ignorant of the actual price and this lapse on his part
should not be treated as a lapse on the part of the petitioner or
contravention by him of the relevant rule.
The petitioner, thereafter, had again been issued with the
notice by the Assistant Commissioner of Excise, Dhanbad vide
letter No.1148 on 05.10.2019 wherein the petitioner was directed to
submit his explanation within three days as to why action should
not be taken for cancellation of the license held by him for the
alleged irregularity of selling liquor at a price higher than the
maximum retails price. The petitioner responded to the aforesaid
show cause notice by making reference of the earlier reply
submitted by him in terms of the notice issued by the Deputy
[6]
Commissioner, Dhanbad but the reply furnished by the petitioner
has been treated to be not satisfactory, hence, an order has been
passed on 26.10.2019 under the joint signature of the Deputy
Commissioner, Dhanbad and the Assistant Commissioner of Excise,
Dhanbad cancelling the license No.011_FLX_DHN_19-20 years
2019-20 held by the petitioner under Rule 47(11) of the Rules, 2018
for alleged irregularity or selling liquor at higher price than the
maximum retail price fixed by the Government and also advance
excise transport duty and security deposit made by the petitioner
was forfeited.
3. The petitioner in the backdrop of such factual aspect has questioned
the validity of the provision of Rules 44, 46(2) and 47(11) of the
Rules, 2018 claiming to be in the teeth of the provisions contained
under the provision of Sections 44 and 68 of the Bihar Excise Act,
1915, the parent act.
4. It is the contention of the petitioner that the vires of Rules 44, 46(2)
and 47(11) of the Rules, 2018 is in the teeth of the provision of
Sections 42 and 68 of the Bihar Excise Act, 1915 as because the
provision of Rule 44 is for sale of liquor on maximum retail price
which provides that a licensee shall not charge from consumers
price higher than that printed on the labels of the liquor and on
failure to do so, after enquiry, action shall be taken for cancellation
of license.
Provision of Rule 46(2) of Rules, 2018 provides that in
case of rescission of a license advance excise transport duty and
security money deposited by licensee shall be forfeited to the
[7]
Government and the licensee shall not be entitled to claim any
compensation for refund thereof.
Rule 47 provides about compounding of irregularity
committed by the licensee under Section 68 of the Excise Act,
19156 while Rule 47(11) provides that for the irregularity of selling
liquor in excess of the maximum retail price, action shall be taken
for cancellation of license.
5. It has been contended by the learned counsel for the petitioner that
Section 42 of the Act, 1915 provides power to cancel or suspend a
license under Section 42(1) of the Act, 1915 which is a
discretionary power as because the word „may‟ has been inserted in
the provision which means discretion and not mandatory.
According to the learned counsel for the petitioner, the use of
expression „may cancel‟ in Section 42(1) indicates discretionary
element, as such, the aforesaid provision does not impose obligatory
duty on the authority who granted any license, permit or pass to
cancel or suspend it in certain circumstances mentioned therein. It
confers discretionary power in the matter of cancellation or
suspension of license whereas the provision as contained under
Rule 44 of the Rules, 2018 mandates that a license must be
cancelled if the holder thereof charges from consumers, price higher
than that printed on the labels of the bottle of liquor. Thus, the
impugned Rule 44 takes away the discretionary power given by the
legislature to the license granting authority under Section 42(1) of
the Act.
[8]
6. It has been submitted by the learned counsel for the petitioner that a
joint reading of Section 42 and Section 68 of the Act would make it
clear that under Section 42(1) of the Act, the Collector or the
Deputy Commissioner has the authority to cancel or suspend a
license on the grounds mentioned in clause (a), clause (b) or clause
(c) of Section 42(1) thereof. The said authorities have also been
conferred power to forgo or revoke the cancellation or suspension
of license on payment of any appropriate sums of money under
Section 68 of the Act. Thus, it would be improper decision of the
said authority that in a case of contravention of the provisions of the
Act and Rules made thereunder, the license granting authority has
no option but to cancel or suspend a license if it is liable to be
cancelled or suspend under clause (a), clause (b) or clause (c) of
Section 42.
7. It has further been submitted that the provision as contained under
Section 68 of the Act, provides that license shall be cancelled only
in the event of third contravention of the provisions of the Act or
the rules which has resulted in loss of excise revenue, as such, the
provision as contained under Rule 44 or Rule 47(11), which
provides for cancellation of license even for the first such
contravention of the provisions of the Act or rules which has not
cause any loss of excise revenue, is nothing but in the teeth of the
provisions of Section 68 of the Act.
8. It has further been stated that the provision as contained under Rule
46(2) of the Rules, 2018 which provides for forfeiture of the excise
transport duty and security deposit amount deposited by the
[9]
petitioner at the time of grant of license in his favour is beyond the
power of delegated legislation, i.e., rule making power conferred
under the State Government under Section 89 of the Excise Act,
therefore, the provision as contained under Rules 44, 46(2) and
47(11) of the Rules, 2018 is ultra vires to Sections 42 and 68 of the
Act, therefore, the same be declared to be ultra vires and the
impugned decision may be quashed and set aside with a direction to
refund the forfeited amount which has been deposited by the
petitioner.
9. Counter affidavit has been filed by the respondent-State of
Jharkhand, however, no response to the said counter affidavit has
been filed by the petitioner.
10. Mr. Mithilesh Singh, learned GA-IV relying upon the said counter
affidavit has submitted that the petitioner has been declared to be a
successful allottee in pursuance to the advertisement notified for
settlement of liquor shops in view of the provisions of Rules, 2018.
The petitioner has started carrying out his business but on
19.09.2019 a surprise inspection was conducted on his shop in
question and it was found that the salesman, namely, Shri Ramesh
Paswan, sold Calsberg Beer (Premium Pils) having Batch No.209
dated 22.06.2019 @ Rs.120/- instead of maximum retail price
@ Rs.100/- which is in contravention to the provision of Rules,
2018.
The respondent authorities having found the aforesaid
irregularity issued notice which has duly been responded by the
[10]
petitioner but having not being found satisfactory, decision to
cancel the license has been taken vide impugned order.
He submits by referring to condition Nos.12 & 13 of the
license which provides restriction imposed under Rules 44, 46 and
47 of the Rules, 2018 at the time of issuance of license, now he
cannot be allowed to assail the validity thereof by invoking the writ
jurisdiction of this Court.
It has further been submitted that the provision of Rules
44, 46(2) and 47(11) of the Rules, 2018 have been framed in
exercise of power conferred under Sections 89(1) and 89(3) of the
Act, 1915 in order to carry out the objects of this Act and to
supplement this.
11. According to the learned counsel for the State, since the provision
of Rules, 2018 has been framed out in exercise of power conferred
under the provision of Section 89(1) of the Act, 1915 the same
being a policy decision, cannot be said to suffer from infirmity. He
further submits that the petitioner since has participated and
declared to be successful in pursuance to the notification issued in
terms of the provision of Rules, 2018 and the license has been
granted in favour of the petitioner which also refers about the Rules
44, 46(2) and 47(11) of the Rules, 2018, therefore, the same being a
condition of license and when it has been found that the breach of
condition has been committed, the respondent authorities resorted to
the aforesaid provision of law and cancelled the license after
following the principles of natural justice, therefore, according to
the learned counsel for the respondent-State of Jharkhand once the
[11]
petitioner has participated in terms of the provisions of Rules, 2018
and has been declared successful and started carrying out his
business but when an adverse action has been taken due to breach of
the terms and conditions of the license, the petitioner cannot be
allowed to assail the validity of the aforesaid provision by virtue of
which the license has been granted in favour of the petitioner,
therefore, the writ petition is lacking merit, hence, the same may be
dismissed.
12. This Court has heard the learned counsel for the parties and on
appreciation of their rival submissions, the writ petition contains the
relief sought for in two parts, first pertains to the validity of the
provisions as contained under Rules 44, 46(2) and 47(11) of the
Rules, 2018; and second, the decision taken by the authority by
cancelling the license by finding the commission of irregularity by
the petitioner which is violative of the provisions of Rules 44, 46(2)
and 47(11) of the Rules, 2018.
Thus, the questions required to be considered in this case
are:
(i) Whether the provision contained in Rules 44, 46(2) and
47(11) of the Rules, 2018 is ultra vires to the provision of
Section 42 of the Excise Act, 1915?
(ii) Whether the decision of forfeiting the earnest money and
Excise Transport Duty (ETD) is justified?
Issue No.1: For answering this issue, we, deem it fit and
proper first to deal with the issue of validity of the provision of law
[12]
as contained under Rules 44, 46(2) and 47(11) of the Rules, 2018 as
impugned in this writ petition.
13. It requires to refer herein before entering into the validity of the
provisions that the Bihar Excise Act, 1915 has been enacted which
has been adopted by the State of Jharkhand after its bifurcation in
view of the provision of Bihar Reorganization Act, 2000 to be
known as the Jharkhand Excise Act. We, for the present, are
concerned with the relevant provision contained under the provision
of the Act, 1915 that has been provided under Sections 42, 68 and
89 thereof.
Section 42 of the Act, 1915 speaks about the power to
cancel suspend license, permit or pass, or impose penalty. For ready
reference, the same is being reproduced hereinbelow:
"42. Power to cancel or suspend license, permit or pass, or
impose penalty.--(1)-["subject to restrictions as the State
Government may prescribe the authority who granted any licence,
permit or pass under this Act may cancel, suspend it or impose
penalty."]
(a) if it is transferred or sublet by the holder thereof without the
permission of the said authority; or
(b) if any duty or fee payable by the holder thereof be not duly
paid; or
(c) in the event of any breach by the holder thereof, or by any of
his servants, or by anyone acting on his behalf with his express or
implied permission, of any of the terms or conditions thereof; or
(d) if the holder thereof is convicted of any offence punishable to
revenue under this Act or any other law for the time being in force
relating to revenue, or of any cognizable and non-bailable
offence, or of any offence punishable under the Dangerous Drugs
Act, 1930 (2 of 1930) or under the Merchandise Marks Act, 1889
(4 of 1889), or under other section which has been introduced
into the Indian Penal Code by Section 3 of that Act; or
(e) if the holder thereof is punished for any offence referred to in
clause(8) of Section 167 of the Sea Customs Act, 1878 (8 of
1878); or
[13]
(f) where a licence, permit or pass has been granted on the
application of the holder of an exclusive privilege granted under
Section 22-on the requisition in writing of such holder; or
(g) if the conditions of the licence, permit or pass provide for such
cancellation or suspension at will.
["(h) (i) for breach of such conditions of licence, which caused
loss or revenue to the State (including Excise duty, other
admissible fee, Sales tax etc.) in addition to the total amount of
loss on equal amount shall be imposed as penalty.
(ii) Penalty of two hundred per cent of loss of revenue shall be
imposed for subsequent economic offence committed under clause
(h) (i) of the said sub-section (i).
(2) When a licence, permit or pass held by any persons is
cancelled under clause (a), clause (b), clause (c), clause (d) or
clause (e) of sub-section (1), the authority aforesaid may cancel
any other licence, permit or pass granted to such person by, or by
the authority of the State Government under this Act, or under any
other law for time being in force relating to Excise, or under the
Opium Act, 1878 (1 of 1878).
[(3) When a licence, permit or pass is liable to be cancelled, it
may, at the discretion of the authority who granted the same, be
suspended for a period of ninety days at a time, provided the
authority concerned may extend the period of suspension beyond
ninety days under exceptional circumstances, after recording
reasons for the same.]
(4) The holder of a licence, permit or pass shall not be entitled to
any compensation for its cancellation or suspension under this
section, or to the refund of any fee paid or deposit made in respect
thereof."
It is evident from the provision as contained under
Section 42 which starts with the words "subject to restrictions as
the State Government may prescribe the authority who granted any
licence, permit or pass under this Act may cancel, suspend it or
impose penalty", as such, the provision as contained under sub-
section (1) of Section 42 confers power upon the competent
authority who has been conferred with the power to grant any
licence, permit or pass under this Act for cancelling, suspending or
imposing penalty subject to restriction as the State Government may
prescribe, therefore, the words "subject to restrictions" is of
paramount importance, meaning thereby, although the authority has
[14]
been conferred with the power to cancel, suspend or impose penalty
but subject to restrictions as the State Government may prescribe.
It is further evident that the authority may exercise power
to cancel, suspend or impose penalty if any of the following
conditions as enshrined under Section 42 is found to be committed,
i.e., (a) if it is transferred or sublet by the holder thereof without the
permission of the said authority; or (b) if any duty or fee payable by
the holder thereof be not duly paid; or (c) in the event of any breach
by the holder thereof, or by any of his servants, or by anyone acting
on his behalf with his express or implied permission, of any of the
terms or conditions thereof; or (d) if the holder thereof is convicted
of any offence punishable to revenue under this Act or any other
law for the time being in force relating to revenue, or of any
cognizable and non-bailable offence, or of any offence punishable
under the Dangerous Drugs Act, 1930 (2 of 1930) or under the
Merchandise Marks Act, 1889 (4 of 1889), or under other section
which has been introduced into the Indian Penal Code by Section 3
of that Act; or (e) if the holder thereof is punished for any offence
referred to in clause(8) of Section 167 of the Sea Customs Act,
1878 (8 of 1878); or (f) where a licence, permit or pass has been
granted on the application of the holder of an exclusive privilege
granted under Section 22-on the requisition in writing of such
holder; or (g) if the conditions of the licence, permit or pass provide
for such cancellation or suspension at will; (h)(i) for breach of such
conditions of licence, which caused loss or revenue to the State
(including Excise duty, other admissible fee, Sales tax etc.) in
[15]
addition to the total amount of loss on equal amount shall be
imposed as penalty; (ii) Penalty of two hundred per cent of loss of
revenue shall be imposed for subsequent economic offence
committed under clause (h) (i) of the said sub-section (i).
It is thus evident that condition as contained under sub-
section (1)(c) of Section 42 requires consideration in the present
scenario of this case which provides that the power to cancel,
suspend it or impose penalty can be exercised in the event of any
breach by the holder thereof, or by any of his servants, or by anyone
acting on his behalf with his express or implied permission, of any
of the terms or conditions thereof.
14. In the present fact of the case as would be evident from the show
cause notice issued to the petitioner it is admitted that in course of
conducting surprise inspection the authority have found that the
Carlsberg (Premium Pils) Beer of Batch No.209 dated 22.06.2019
has been sold out excess to the maximum retail price, the MRP of
which is Rs.100/- but it is sold out at Rs.120/-.
15. The question of applicability of Section 42(1)(c) would be available
herein as because as per reply to the show cause filed by the
petitioner the person who was deputed as salesman was not aware
with the price of the aforesaid manufacture but the question is that
can such ground be treated to be a valid ground to condone the
irregularity, the answer of this Court would absolutely be in
negative as because he being the servant of the petitioner acting on
his behalf will also come under the fold of provision of Section
42(1)(c).
[16]
16. Now the question is that the petitioner is interpreting the provision
of Section 42(1) that the same is discretionary by the use of the
word „may‟, as such, there could not have an order of cancellation
by taking the aid of the provision of the Rule 44 of the Rules, 2018
which provides that sale of liquor excess to maximum retail price as
has been marked in the labels contained in the bottles and if found
to have taken the amount excess to the maximum retail price the
action for cancellation of license would be taken. Such provision,
according to the petitioner, is in the teeth of the provision of Section
42(1) of the Act, 1915, therefore, the same has been sought to be
declared ultra vires to the parent provision as contained under
Section 42(1) of the Act, 1915. According to the petitioner, the
provision as contained under Section 42(1) of the Act, 1915 since is
a discretionary power by virtue of the use of the word „may‟ while
the provision of Section 44 has been made to be mandatory in
nature containing therein the provision for cancellation of license in
case of charging higher price than the maximum retail price as
marked in the labels of the bottles.
17. In continuation to the aforesaid submission and in addition to
declare the provision of Rule 44 of the Rules, 2018 to be declared as
ultra vires the prayer has also been sought to declare the provision
of Rule 47(11) of the Rules, 2018 to be ultra vires since the same
also contains a provision for cancellation of license in case of sale
of liquor in excess to the fixed price which according to the learned
counsel for the petitioner is also in the teeth of the provision of
Section 42 of the Act, 1915. Further, the provision of Section 46 (2)
[17]
has also sought to declared as ultra vires since the same contains a
provision of forfeiture of the security amount and amount deposited
against the excise transport duty.
According to the learned counsel for the petitioner the
provision of Section 46(2) or Section 47(11) is also in the teeth of
the provision of Section 68 of the Act, 1915 which provides power
to compound offences and to release property liable to confiscation.
The provision of Section 68 reads as hereunder:
"68. Power to compound offences and to release property liable
to confiscation.--
(1) The Collector or any Excise Officer specially empowered by
the State Government in this behalf, not below the rank of
Deputy Collector or Superintendent of Excise--
[(a) may subject to any restriction imposed by any rules made
under clause (k) of Section 89 accept from any person whose
license, permit or pass is liable to be cancelled suspended or
imposed penalty on economic offence under clause (a), clause
(b), clause (d), clause (e), clause (f), clause (g), and clause (h) of
Section 42 or who is reasonably suspected of having committed
an offence punishable under any section of this Act other than
Section 61, payment of a sum of money minimum rupees one
thousand and maximum Rupees One lac, depending on quantum
of evasion or repetition of breach in lieu of such cancellation,
suspension or by way of composition for such offence, as the
case may be.
(b) in any case in which any property has been seized as being
liable to confiscation under section 66, may, at any time before
the Magistrate has passed an order under section 67, sub-section
(1) release the property on payment of any sum not exceeding the
value thereof as estimated by the Collector or such Excise
Officer.
(2) when the payments referred to in sub-section (1) have been
duly made, the accused person, if in custody, shall be
discharged, and the proper seized (if any) shall be released, and
no further proceedings shall be taken against such person or
property."
It is evident from the provision of Section 68 of the Act,
1915 that the Collector or any Excise Officer specially empowered
by the State Government in this behalf, not below the rank of
Deputy Collector or Superintendent of Excise, may subject to any
[18]
restriction imposed by any rules made under clause (k) of Section
89 accept from any person whose license, permit or pass is liable to
be cancelled suspended or imposed penalty on economic offence
under clause (a), clause (b), clause (d), clause (e), clause (f), clause
(g), and clause (h) of Section 42 or who is reasonably suspected of
having committed an offence punishable under any section of this
Act other than Section 61, payment of a sum of money minimum
rupees one thousand and maximum Rupees One lac, depending on
quantum of evasion or repetition of breach in lieu of such
cancellation, suspension or by way of composition for such offence,
as the case may be. It further contains that provision under sub-
section (1)(b) thereof in any case in which any property has been
seized as being liable to confiscation under section 66, may, at any
time before the Magistrate has passed an order under section 67,
sub-section (1) release the property on payment of any sum not
exceeding the value thereof as estimated by the Collector or such
Excise Officer. While sub-section (2) thereof provides that when the
payments referred to in sub-section (1) have been duly made, the
accused person, if in custody, shall be discharged, and the proper
seized (if any) shall be released, and no further proceedings shall be
taken against such person or property."
18. According to the petitioner in view of the provision of Section 68
there should not have been forfeiture of the amount deposited
against security deposit or the excise transport duty, therefore, the
provision as contained under Rule 46(2) ultra vires the provision of
Section 68 of the Act, 1915.
[19]
19. We have already considered the provision of Section 42 as above
while considering the same we have reached to the conclusion that
in case of breach of any of the condition committed by any of the
servant or by any acting on his behalf, the power conferred under
Section 42 shall be exercised. The State Government has been
conferred with the power under Section 89 to make rules, which
reads as hereunder:
"89. Power of State Government to make rules.--(1) The
State Government may make rules to carry out the objects of this
Act or any other law for the time being in force relating to the
excise revenue.
(2) In particular, and without prejudice to the generality of the
foregoing provision, the State Government may make rules--
(a) for prescribing the powers and duties of officers of the
Excise Department;
(b) for regulating the delegation of any powers by the Board,
the Commissioner of a Division, the Excise Commissioner or
Collectors under section 7, clause (g);
(c) for declaring in what cases or classes of cases and to what
authorities appeals shall lie from orders, whether original or
appellate, passed under this Act or under any rule made
hereunder, and for prescribing the time and manner for
presenting, and the procedure for dealing with such appeals;
(d) for regulating the import, export or transport or any
intoxicant;
(e) for regulating the periods for which licenses for the
wholesale or retail vend of any intoxicant may be granted and
the number of such licenses which may be granted for any
local areas;
(f) for prohibiting the grant of licenses for the retail sale of any
intoxicant at any place or within any local area described in
the rules, or for defining the places in the vicinity of which
shops for the retail sale of any intoxicant shall not ordinarily
be licensed;
(g) for prohibiting the grant to specified classes of persons of
licenses for the retail sale of any intoxicant;
(h) for declaring, either generally, or in respect of areas
described in the rules, the persons or classes of persons to
whom any intoxicant may or may not be sold;
(i) for regulating the procedure to be followed and prescribing
the matters to be ascertained before any license for the
wholesale or retail vend of any intoxicant is granted for any
locality;
[20]
(j) for restricting the exercise of any of the powers conferred by
clause (a) of sub-section (1) of section 68 and by sections 69
and 70;
(k) for declaring the Excise Officers to whom, and the manner
in which information or aid should be given under section 75;
(l) for the grant of expenses to witnesses;
(m) for the grant of compensation for loos of time to persons
released by any Excise Officer under this Act on the ground
that they have been improperly arrested and to persons
charged before a Magistrate with offences punishable under
this Act and subsequently acquitted; and
(n) for prescribing the restrictions or modifications in the
application to Excise Officers of the provisions of the Code of
Criminal Procedure [1973 (Act 2 of 1974)] relating to powers
of Police Officers which are referred to in section 78, sub-
section (1) of this Act.
(3) The powers conferred by this section for making rules are
subject to the condition that rules be made after previous
publication:
Provided that any such rules may be made without previous
publication if the State Government considers that they should be
brought into force at once."
It is evident from the provision of Section 89 as referred
hereinabove that the State Government may make rules to carry out
the objects of this Act or any other law for the time being in force
relating to the excise revenue. Sub-section (1) thereof provides that
In particular, and without prejudice to the generality of the
foregoing provision, the State Government may make rules--
(a) for prescribing the powers and duties of officers of the Excise
Department;
(b) for regulating the delegation of any powers by the Board, the
Commissioner of a Division, the Excise Commissioner or
Collectors under section 7, clause (g);
(c) for declaring in what cases or classes of cases and to what
authorities appeals shall lie from orders, whether original or
appellate, passed under this Act or under any rule made
[21]
hereunder, and for prescribing the time and manner for
presenting, and the procedure for dealing with such appeals;
(d) for regulating the import, export or transport or any
intoxicant;
(e) for regulating the periods for which licenses for the wholesale
or retail vend of any intoxicant may be granted and the number of
such licenses which may be granted for any local areas;
(f) for prohibiting the grant of licenses for the retail sale of any
intoxicant at any place or within any local area described in the
rules, or for defining the places in the vicinity of which shops for
the retail sale of any intoxicant shall not ordinarily be licensed;
(g) for prohibiting the grant to specified classes of persons of
licenses for the retail sale of any intoxicant;
(h) for declaring, either generally, or in respect of areas described
in the rules, the persons or classes of persons to whom any
intoxicant may or may not be sold;
(i) for regulating the procedure to be followed and prescribing the
matters to be ascertained before any license for the wholesale or
retail vend of any intoxicant is granted for any locality;
(j) for restricting the exercise of any of the powers conferred by
clause (a) of sub-section (1) of section 68 and by sections 69 and
70;
(k) for declaring the Excise Officers to whom, and the manner in
which information or aid should be given under section 75;
(l) for the grant of expenses to witnesses;
(m) for the grant of compensation for loos of time to persons
released by any Excise Officer under this Act on the ground that
[22]
they have been improperly arrested and to persons charged before
a Magistrate with offences punishable under this Act and
subsequently acquitted; and
(n) for prescribing the restrictions or modifications in the
application to Excise Officers of the provisions of the Code of
Criminal Procedure [1973 (Act 2 of 1974)] relating to powers of
Police Officers which are referred to in section 78, sub-section
(1) of this Act.
20. It is evident from the particulars provides under sub-section (1) of
Section 89 that one of the particulars is under sub-section (2) (d) of
Section 89 which is for regulating the import, export or transport or
any intoxicant while sub-section (2) (e) provides for regulating the
periods for which licenses for the wholesale or retail vend of any
intoxicant may be granted and the number of such licenses which
may be granted for any local areas. Sub-section (2) (j) provides for
restricting the exercise of any of the powers conferred by clause (a)
of sub-section (1) of section 68 and by sections 69 and 70. Thus, it
is evident that the provision as contained under sub-section (1) (a)
of Section 68 is subject matter of making rules by the State in
pursuance to the provision of Section 89 of the Act, 1915.
21. The provision of Rules, 2018 has been promulgated by the State
Government in exercise of power conferred under the provision of
Section 89 of the Act, 1915.
22. The provision of sub-section (1) of Section 89 provides as referred
and quoted above that the State Government has been conferred
with the power to make out rules to carry out the objects of the Act
[23]
or any other law for the time being in force relating to the excise
revenue. While sub-section (3) of Section 89 provides that the
powers conferred by this section for making rules are subject to the
condition that rules be made after previous publication:
23. The petitioner is not questioning the conferment of power to the
State Government in view of the provision of Section 89 of the Act,
1915 rather he is only questioning the vires of the provision of Rule
44, 46(2) and 47 (11) of the Rules, 2018 which according to the
petitioner is in the teeth of the parent act which contains a provision
under Sections 42 and 68.
24. Section 42 confers power upon the authority subject to restricting as
the State Government may prescribe to cancel, suspend or impose
penalty in case of violation of any of the condition enumerated
therein.
Here, in the facts of this case as has been referred
hereinabove by taking into consideration the nature of irregularity
committed by the petitioner by charging excess price to the
maximum retail price which has been admitted by the petitioner,
however, giving excuse that the salesman was not aware with the
actual price but the question is that the awareness of the salesman is
of no importance rather it is to be considered by the concerned
competent authority while exercising the power conferred under
Section 42 as to whether any of the condition enumerated therein
has been flouted or not?
[24]
25. In that respect, if the word „may‟ has been inserted, the same cannot
be construed to be discretionary rather it will be treated to be
mandatory and furthermore the word under the provision of Section
42 is subject to restrictions as the State Government may prescribe
and if such provision would be read out alongwith the provision of
Section 89 of the Act, 1915 which confers power upon the State
Government to make out rules to carry out the objects of this Act,
therefore, according to our considered view, if any provision has
been inserted under the provision of Section 42 for cancellation of
license in case of violation of the terms and conditions as prescribed
will have the consequence of cancellation of the license and in order
to meet out that provision if the State Government has made out a
rule under the provision of Section 89, the same will not be treated
in conflict with the provision as contained under Section 42.
26. The emphasis of the argument of the learned counsel for the
petitioner is only on the ground of insertion of the word „may‟
which according to the petitioner makes the provision under Section
42 as discretionary and not mandatory.
27. There is no doubt about the fact that normally, the word „may‟
means discretionary and not mandatory but it is equally important
that the context is to be seen which can attach the obligation to the
power compelling its power in a certain way. It has been held by the
Hon'ble Apex Court in Official Liquidator vs. Dharti Dhan (P)
Ltd., (1977) 2 SCC 166 at paragraph-7 which reads as hereunder:
"7. Sections 442 and 446 of the Act have to be read together. It is
only where the object of the two sections, when read together, is
served by a stay order that the stay order could be justified. That
[25]
object is to expeditiously decide and dispose of pending claims in
the course of winding up proceedings. A stay is not to be granted
if the object of applying for it appears to be, as it does in the case
before us, merely to delay adjudication on a claim, and, thereby
to defeat justice. In other words, a stay order, under Section 442,
cannot be made mechanically, or, as a matter of course, on
showing fulfilment of some fixed and prescribed conditions. It can
only be made judiciously upon an examination of the totality of
the facts which vary from case to case. It follows that the order to
be passed must be discretionary and the power to pass it must,
therefore, be directory and not mandatory. In other words, the
word "may", used before "stay" in Section 442 of the Act really
means "may" and not "must" or "shall" in such a context. In
fact, it is not quite accurate to say that the word "may", by itself,
acquires the meaning of "must" or "shall' sometimes. This word,
however, always signifies a conferment of power. That power
may, having regard to the context in which it occurs, and the
requirements contemplated for its exercise, have annexed to it an
obligation which compels its exercise in a certain way on facts
and circumstances from which the obligation to exercise it in that
way arises. In other words, it is the context which can attach the
obligation to the power compelling its exercise in a certain way.
The context, both legal and factual, may impart to the power that
obligatoriness."
It is, thus, evident that the Hon'ble Apex Court has been
pleased to hold that it is not the conferment of a power which the
word „may‟ indicates that annexes any obligation to its exercise but
the legal and factual context of it. It has been contended that the
word „may‟ carries with it the obligation to exercise a power in a
particular manner or direction. In such a case, it is always the
purpose of the power which has to be examined in order to
determine the scope of the discretion conferred upon the donee of
the power. If the conditions in which the power is to be exercised in
particular cases are also specified by a statute then, on the
fulfillment of those conditions, the power conferred becomes
annexed with a duty to exercise it in that manner.
28. In Mansuklal Vithaldas Chauhan vs. State of Gujarat, (1997) 7
SCC 622 it has been held that what is determinative of the nature of
duty, whether it is obligatory, mandatory or directory, is the scheme
of the statute in which the „duty‟ has been set out. Even if the „duty‟
[26]
is not set out clearly and specifically in the statute, it may be
implied as correlative to a „right‟.
29. In Mohan Singh and Ors vs. International Authority of India and
Ors, (1997) 9 SCC 132 at paragraph-26 it has been held which
reads as hereunder:
"26. Thus, this Court, keeping in view the objects of the Act, had
considered whether the language in a particular section, clause or
sentence is directory or mandatory. The word „shall‟, though
prima facie gives impression of being of mandatory character, it
requires to be considered in the light of the intention of the
legislature by carefully attending to the scope of the statute, its
nature and design and the consequences that would flow from the
construction thereof one way or the other. In that behalf, the court
is required to keep in view the impact on the profession, necessity
of its compliance; whether the statute, if it is avoided, provides for
any contingency for non-compliance; if the word „shall‟ is
construed as having mandatory character, the mischief that would
ensue by such construction; whether the public convenience would
be subserved or public inconvenience or the general inconvenience
that may ensue if it is held mandatory and all other relevant
circumstances are required to be taken into consideration in
construing whether the provision would be mandatory or
directory. If an object of the enactment is defeated by holding the
same directory, it should be construed as mandatory whereas if by
holding it mandatory serious general inconvenience will be
created to innocent persons of general public without much
furthering the object of enactment, the same should be construed
as directory but all the same, it would not mean that the language
used would be ignored altogether. Effect must be given to all the
provisions harmoniously to suppress public mischief and to
promote public justice."
It has been held in the judgment that the court is required
to keep in view the impact on the profession, necessity of its
compliance; whether the statute, if it is avoided, provides for any
contingency for non-compliance; if the word „shall‟ is construed as
having mandatory character, the mischief that would ensue by such
construction; whether the public convenience would be subserved
or public inconvenience or the general inconvenience that may
ensue if it is held mandatory and all other relevant circumstances
are required to be taken into consideration in construing whether the
provision would be mandatory or directory. If an object of the
[27]
enactment is defeated by holding the same directory, it should be
construed as mandatory whereas if by holding it mandatory serious
general inconvenience will be created to innocent persons of
general public without much furthering the object of enactment, the
same should be construed as directory but all the same, it would not
mean that the language used would be ignored altogether. Effect
must be given to all the provisions harmoniously to suppress public
mischief and to promote public justice.
30. In Dinesh Chandra Pandey vs. High Court of Madhya Pradesh
and Another, (2010) 11 SCC 500 it has been held at paragraph-15
which reads as hereunder:
"15. The courts have taken a view that where the expression
"shall" has been used it would not necessarily mean that it is
mandatory. It will always depend upon the facts of a given case,
the conjunctive reading of the relevant provisions along with
other provisions of the Rules, the purpose sought to be achieved
and the object behind implementation of such a provision. This
Court in Sarla Goel v. Kishan Chand [(2009) 7 SCC 658] , took
the view that where the word "may" shall be read as "shall"
would depend upon the intention of the legislature and it is not to
be taken that once the word "may" is used, it per se would be
directory. In other words, it is not merely the use of a particular
expression that would render a provision directory or mandatory.
It would have to be interpreted in the light of the settled
principles, and while ensuring that intent of the Rule is not
frustrated."
It has been held in the judgment that where the
expression „shall‟ has been used it would not necessarily mean that
it is mandatory. It will always depend upon the facts of a given
case, the conjunctive reading of the relevant provisions along with
other provisions of the Rules, the purpose sought to be achieved and
the object behind implementation of such a provision. Thus, it
would have to be interpreted in the light of the settled principles and
while ensuring that intent of the Rule is not frustrated.
[28]
Thus, it is evident from the judgments referred
hereinabove that while interpreting the word „may‟ the scope of the
statute in entirety is to be seen by taking into consideration the
conjoint reading of the statutory provision.
31. The Excise Act, 1915 has been enacted relating to import, export,
transport, manufacture, possession and sale of certain kinds of
liquor and intoxicating drugs. It is not in dispute that dealing in
intoxicants 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 so
far as the trade in liquor is concerned. That is why even prohibition
of the trade in liquor is not only permissible but is also reasonable.
The reasons are public morality, public interest and harmful and
dangerous character of the liquor. The State possesses the right of
complete control over all aspects of intoxicants viz., manufacture,
collection, sale and consumption as has been held by the Hon'ble
Apex Court in P.N. Kaushal and Ors. vs. Union of India and Ors.,
(1978) 3 SCC 558.
32. Thus, the primary object of this Act is to regulate the import,
export, transport, manufacture, possession and sale of certain kinds
of liquor and intoxicating drugs and in that view of the matter if the
word „may‟ has been used in Section 42 beginning with the words
„subject to restrictions as the State Government may prescribe‟ and
if any restriction has been provided in exercise of power conferred
[29]
under Section 89 of the Act, 1915 the word „may‟ used in Section
42 cannot be said to be discretionary rather it is mandatory.
It would be treated mandatory also for the other reason
that, to regulate the trade of the intoxicants taking into consideration
the fact that the trade in liquor has been held not to come under
Article 19(1)(g) of the Constitution of India.
Further, the provision of Section 68 of the Act, 1915 is
also put to restriction in view of the provision of Section 89 which
contains a provision as under sub-section (2)(j) which provides a
provision for restricting the exercise of any of the powers conferred
by clause (a) of sub-section (1) of section 68, therefore, with the
conjoint reading of Sections 42 and 68 the provision of Section 42
cannot be said to be discretionary rather it is mandatory and further
the argument as has been advanced by the learned counsel for the
petitioner that in such a circumstances the power to compound the
offences as has been provided under Section 68 which requires to
be adopted is also not acceptable to us in view of the specific
provision for restricting the exercise of any power conferred by
clause (a) of sub-section (2)(j) of Section 89 of the Act, 1915.
33. According to our considered view, since the provision of Section 89
confers powers upon the State to make out rules and taking into
consideration the aforesaid aspect of the matter if the provision of
Rule 44 as also the provision of Rule 47(11) have been inserted
under the provision of Rules, 2018 which confers power upon the
competent authority to cancel the license in case of charging excess
[30]
price than the maximum retail price which cannot be said to be in
the teeth of the provision of Section 42 of the Excise Act, 1915.
If provision as under Rules 44 and 47(11) would be
treated to be not in consistent with the provision of Section 42, as
such, the provision of Section 46(2) is concerned, which confers
power upon the authority to forfeit the security amount and the
excise transport duty, is also not in the teeth of the provision of
Section 68 in view of the specific stipulation made under the
provision of Section 89 (1)(j) of the Act, 1915 as discussed above.
Further, for the reason that Section 68 stipulates about
compounding of offences and to release property liable to
confiscation but the admitted fact herein is that no decision has been
taken to compound the offence and to release the property liable to
confiscation rather the fact herein is that the competent authority
has found the commission of irregularity which is violative of the
terms and conditions of the license, therefore, the show cause
notices have been issued and reply having found not to be
satisfactory, decision to cancel the license has been taken, hence,
there is no question of applicability of the provision of Section 68 of
the Act, 1915 rather the competent authority of the State
Government has proceeded for cancellation of the license and in
that circumstances as per the provision of Section 46(2) the amount
deposited against security deposit and the excise transport duty has
been forfeited.
34. It also requires to refer herein that the petitioner was knowing about
the fact that license has been granted containing reference of the
[31]
provision of Rules 44, 46(2) and 47(11) of the Rules, 2018,
therefore, once the petitioner has accepted the terms and conditions
of the provision of law and when an adverse decision has been
taken, he cannot be allowed to question the validity of the aforesaid
provisions basis upon which he has been benefited by granting
license at the time of allotment of liquor shop.
35. According to our considered view, if the petitioner will be allowed
to question the provision of rule as contained under Rules 44, 46(2)
and 47(11) of the Rules, 2018, it will amount to approbate and
reprobate as because the condition which suits the petitioner has
been accepted and after commission of irregularity in pursuance to
the same provision of law if penal action is being taken the same is
being questioned which is not permissible in the eye of law as has
been held by Hon'ble Apex Court in R. N. Gosain vs. Yashpal
Dhir, (1992) 4 SCC 683. Paragraph-10 of the said judgment is
being reproduced as hereunder:
"10. Law does not permit a person to both approbate and
reprobate. This principle is based on the doctrine of election which
postulates that no party can accept and reject the same instrument
and that "a person cannot say at one time that a transaction is
valid and thereby obtain some advantage, to which he could only
be entitled on the footing that it is valid, and then turn round and
say it is void for the purpose of securing some other advantage".
[See : Verschures Creameries Ltd. v. Hull and Netherlands
Steamship Co. Ltd. [(1921) 2 KB 608, 612 (CA)] , Scrutton, L.J.]
According to Halsbury's Laws of England, 4th Edn., Vol. 16,
"after taking an advantage under an order (for example for the
payment of costs) a party may be precluded from saying that it is
invalid and asking to set it aside". (para 1508)"
In State of Punjab and Ors. vs. Krishan Niwas, AIR
1997 Hon'ble Supreme Court 2349 the Hon'ble Apex Court at
paragraph-4 has laid down that once the employee has accepted the
[32]
correctness of the order and then acted upon it, the same cannot be
questioned by the concerned.
In Suzuki Parasrampuria Suitings Private Limited vs.
Official Liquidator of Mahendra Petrochemicals Limited (In
Liquidation) and Ors., (2018) 10 SCC 707 the Hon'ble Apex Court at
paragraphs 12 & 13 has laid down which reads as hereunder:
"12. A litigant can take different stands at different times but
cannot take contradictory stands in the same case. A party cannot
be permitted to approbate and reprobate on the same facts and
take inconsistent shifting stands. The untenability of an
inconsistent stand in the same case was considered in Amar
Singh v. Union of India [Amar Singh v. Union of India, (2011) 7
SCC 69 : (2011) 3 SCC (Civ) 560] , observing as follows: (SCC p.
86, para 50)
"50. This Court wants to make it clear that an action at law
is not a game of chess. A litigant who comes to court and
invokes its writ jurisdiction must come with clean hands. He
cannot prevaricate and take inconsistent positions."
13. A similar view was taken in Joint Action Committee of Air Line
Pilots' Assn. of India v. DGCA [Joint Action Committee of Air Line
Pilots' Assn. of India v. DGCA, (2011) 5 SCC 435] , observing:
(SCC p. 443, para 12)
"12. The doctrine of election is based on the rule of
estoppel--the principle that one cannot approbate and
reprobate inheres in it. The doctrine of estoppel by election is
one of the species of estoppels in pais (or equitable estoppel),
which is a rule in equity. ... Taking inconsistent pleas by a party
makes its conduct far from satisfactory. Further, the parties
should not blow hot and cold by taking inconsistent stands and
prolong proceedings unnecessarily.""
36. This Court, after taking into consideration the fact in entirety, is of
the view that the petitioner has failed to make out a case for
declaring the provision of Rules 44, 46(2) and 47(11) of the Rules,
2018 ultra vires to the provision contained in the parent Act.
[33]
In view thereof, prayer Nos.(i), (ii) & (III) are hereby,
dismissed. Accordingly, issue No.1 is answered against the writ
petitioner.
37. Issue No.2: So far as issue No.2 is concerned which pertains to
prayer No.(iv) for release of the forfeited amount.
Since this Court has considered the fact about the
commission of irregularity and the same has also been admitted by
the petitioner as would be evident from the reply furnished to the
show cause wherein the ground has been taken that the salesman
working at the time of inspection was not aware of the price and
therefore the said irregularity has been committed, which is nothing
but an admission on the part of the petitioner about the commission
of irregularity and in that view of the matter since the irregularity
has been admitted of charging excess amount to the maximum retail
price, as such, as per the settled position of law in a case of
admission of irregularity the penal action is required to be taken as
per the prevailing and applicable law/rule. Herein, the prevailing
law provides as under Rule 44 and 47(11) of the Rules, 2018 to the
effect that in case of charging excess price than the Maximum
Retail Price (MRP) the consequence would be cancellation of
license and further consequence would be forfeiture of Security
Deposit and Excise Transport Duty (ETD) as per provision of Rule
46(2) of the Rules, 2018.
Accordingly, the authority after taking into consideration
the admission of irregularity as alleged in the show cause notices, if
exercised the power conferred under Rules 44 and 47(11) and in
[34]
furtherance if exercised their power under the provision of Section
46(2) by forfeiting the amount of security deposit and excise
transport duty, the same cannot be said to be improper and
unjustified.
Accordingly, issue No.2 is also answered against the
petitioner.
In view thereof, this Court is on no merit in this context
and hence, the prayer made by the petitioner for release of the
forfeited amount, is also hereby, rejected.
38. Accordingly, the writ petition fails and is dismissed.
I agree (Dr. Ravi Ranjan, C.J.)
(Dr. Ravi Ranjan, C.J.)
(Sujit Narayan Prasad, J.)
Saurabh/ A.F.R.
