Madhya Pradesh High Court
Rajesh Singh vs Commerce And Taxation Department on 30 March, 2022
Author: Vivek Rusia
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IN THE HIGH COURT OF MADHYA PRADESH AT
INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA)
WRIT PETITION No. 1675 of 2021
Between:-
M/S WINE WORLD THROUGH MR. ASHISH PANDEY
AUTHORISED REPRESENTATIVE/PARTNER A3/272, VAIBHAV
KHAND, GOMTI NAGAR, LUCKNOW (U.P.) (UTTAR PRADESH)
.....PETITIONER
(BY SHRI RAVINDRA SHRIVASTAVA, LEARNED SENIOR COUNSEL
WITH SHRI VIJAY CHOUHAN LEARNED COUNSEL FOR THE
PETITIONER.)
AND
COMMERCIAL TAXES DEPARTMENT PRINCIPAL SECRETARY
1.
VALLABH BHAWAN, BHOPAL (MADHYA PRADESH)
STATE OF MADHYA PRADESH THROUGH THE COLLECTOR
2. OFFICE OF THE COLLECTOR OLD TOWN A.B. ROAD DIST
DEWAS (MADHYA PRADESH)
ASSISTANT EXCISE COMMISSIONER DISTRICT EXCISE OFFICE
3.
DEWAS (MADHYA PRADESH)
PUNJAB NATIONAL BANK AKBARPUR, AMBEDKAR NAGAR
4.
(UTTAR PRADESH)
.....RESPONDENTS
(BY SHRI PUSHYAMITRA BHARGAV, LEARNED ADDITIONAL
ADVOCATE GENERAL FOR THE RESPONDENT/STATE.)
WRIT PETITION No. 7988 of 2021
Between:-
M/S WINE WORLD THROUGH ITS PARTNER SHRI ASHISH
PANDEY A3/272, VAIBHAV KHAND, GOMTI (UTTAR PRADESH)
.....PETITIONER
(BY SHRI RAVINDRA SHRIVASTAVA, LEARNED SENIOR COUNSEL
WITH SHRI VIJAY CHOUHAN LEARNED COUNSEL FOR THE
PETITIONER.)
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AND
THE STATE OF MADHYA PRADESH THROUGH PRINCIPAL
1. SECRETARY COMMERCIAL TAX DEPARTMENT, VALLABH
BHAWAN (MADHYA PRADESH)
STATE OF M.P. THROUGH THE DEPUTY SECRETARY
2. COMMERCIAL TAX DEPARTMENT VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH)
THE EXCISE COMMISSIONER MOTI MAHAL GWALIOR
3.
(MADHYA PRADESH)
THE ASST. EXCISE COMMISSIONER DEWAS (MADHYA
4.
PRADESH)
.....RESPONDENTS
(BY SHRI PUSHYAMITRA BHARGAV, LEARNED ADDITIONAL
ADVOCATE GENERAL FOR THE RESPONDENT/STATE. )
WRIT PETITION No. 3809 of 2021
Between:-
RAJESH SINGH S/O MAHAVIR SINGH THAKUR , AGED ABOUT
42 YEARS, OCCUPATION: BUSINESS HB 10, NEW INDIRA
COLONY, BURHANPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ASHOK AGRAWAL, LEARNED COUNSEL FOR THE
PETITIONER.)
AND
COMMERCE AND TAXATION DEPARTMENT SECRETARY
1.
VALLABH BHAWAN, BHOPAL (MADHYA PRADESH)
EXCISE COMMISSIONER MOTIMAHAL GWALIOR (MADHYA
2.
PRADESH)
3. DISTRICT EXCISE OFFICER MANDSAUR (MADHYA PRADESH)
COLLECTOR/ DISTRICT MAGISTRATE COLLECTOR MANDSAUR
4.
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PUSHYAMITRA BHARGAV, LEARNED ADDITIONAL
ADVOCATE GENERAL FOR THE RESPONDENT/STATE.)
(HEARD ON 04.03.2022)
(ORDER PASSED ON 30.03.2022)
PER: VIVEK RUSIA, J.
The petitioner has filed the writ petition no.1675/2021
against the order dated 08.06.2020 passed by Collector, Dewas
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and recovery notice dated 28.11.2020 initiated by respondent
no.3. During pendency of the above, the petitioner has also filed
W.P. No.7988/2021 challenging the letter dated 25.02.2021
written by Deputy Secretary, State Govt. to Commissioner,
Excise.
The petitioner-Shri Rajesh Singh has also filed the W.P.
No.3809/2021 challenging the validity of recovery notice dated
08.12.2020 and order dated 27.07.2021 seeking directions to
decide the representation in terms of the para-128 of the order
passed by the Division Bench in W.P. No.7373/2020 [M/s. Maa
Vaishno Enterprise and others Vs. State of M.P. and others].
Since the issues and grounds to challenge the impugned
action of respondents are identical hence all the writ petitions are
being decided by a common order. The facts of the case are being
taken from Writ Petition No. 1675/2020.
The facts of the writ petitions are as under:-
1. The petitioner is engaged in the business of retail of
country spirit and foreign liquor by way of licensee issued by the
excise department of M.P. The present two writ petitions in the
name of M/S WINE WORLD are filed through authorized
representative Mr. Ashish Pandey by virtue of authorization given
in his name.
2. The State Government of M.P. formulated an excise policy
for the financial year 2020-2021 for the period of 12 months
commencing from 01.04.2020 to 31.03.2021 and published it
vide Gazette notification dated 25.02.2020. Under the aforesaid
policy, for awarding licensees to the interested parties, procedure
was commenced on 21.02.2020 and completed on 09.03.2020.
The petitioner submitted its bid on 09.03.2020 for a single group
licensee of all retail shops for spirit/liquor for the entire district
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Dewas at an annual License fee of Rs.2,39,51,00,000/-.
3. That on 11.03.2020 the W.H.O. declared Covid-19 as a
pandemic thereafter, Central, as well as the State Government of
M.P., have issued notification/ order for imposing complete
lockdown from 24.03.2020 in the central as well as in the
respective states. By way of the aforesaid notification and orders
all the shops, bars, Ahatas attached to the liquor shops were
directed to close down.
4. According to the petitioner, on one hand, State
Government has directed to close all the shops and Bars and on
the other hand issued the letter of award dated 16.03.2020 to the
petitioner and thereafter vide letter dated 17.04.2020 a direction
was issued to complete the formalities/obligation as per Liquor
policy. The petitioner deposited Rs.25 crores as security deposits
and FDR of Rs.3 lacs on 24.03.2020. The petitioner has also paid
an advance licensee fee of Rs.11,97,555/- in total, the petitioner
has deposited the amount under the excise policy to the tune of
Rs.37,00,55,000/-. According to the petitioner due to the corona
pandemic and strict guidelines issued by the Central Government
as well as the State Government for imposing lockdown it was
impossible to complete the obligations under the licensee policy
2020-21 and the letter of award, therefore, as many as 30 other
licensees including the petitioner approached the High Court of
M.P., Jabalpur by way of Writ Petition No. 7373/2020 titled as
Maa Vaishno Enterprise and others vs. the State of M.P.
5. All the bunch of writ petitions came up for hearing on
04.06.2020 and after hearing learned counsel for the petitioners
as well as State Government, the Division Bench of the High
Court, Jabalpur has passed an interim order to the effect that
petitioners who are ready and willing to continue shall file an
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affidavit within three days from today failing which the state shall
be entitled to auction the shops afresh on terms as laid down by
them, however, the issue related to the recoveries due to re-
auction shall be subject to the decision of the writ petition.
6. The petitioner did not submit an affidavit or undertaking
but surrendered its license on 05.06.2020.In pursuant to the
interim order dated 04.06.2020 the collector Dewas has issued a
letter dated 08.06.2020 for cancellation of the contract/ license
and thereafter initiated fresh auction proceedings.
7. Vide judgment dated 22.07.2020 this court has dismissed
all the writ petitions Writ Petition No. 7373/2020 titled as Maa
Vaishno Enterprise and others vs. the State of M.P. however,
liberty has been granted to the petitioners to invoke Clause 49 of
the Excise Policy 2020-21 to seek remission/ waiver of excise
duty to the extent of loss by applying to the district committee
who shall send the fact-finding report to the State Government
(para 128).
8. After the dismissal of the writ petitions, respondent no.3
vide letter dated 23.07.2020 has initiated the recovery
proceedings against the petitioner and vide letter dated
28.09.2020 respondent no.2 has raised a recovery of
Rs.28,54,76,820/- against the petitioner. The petitioner submitted
a reply on 03.10.2020 and 16.11.2020 and also demanded the
details and the documents pertaining to the aforesaid recovery.
9. Meanwhile, the petitioner- M/s. Wine World also
approached the Supreme Court of India by way of SLP(C)
No.11898/2020 against the order dated 22.07.2020 passed in W.P.
No.7373/2020 since the Hon'ble apex court was not inclined to
grant leave to file a petition hence, the petitioner sought
withdrawal of this SLP with liberty to take due steps to challenge
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the recovery.
10. After the withdrawal of the SLP, the petitioner submitted a
representation in terms of the liberty given by the Division
Bench of the High Court, Jabalpur in para.128 of the order dated
22.07.2020 passed in writ petition no.7373/2020. Meanwhile, the
respondents have again issued a recovery notice dated 28.11.2020
demanding Rs.28,88,03,050/-.The petitioner submitted a reply as
well as objections claiming the following reliefs:-
1 Remission of recovery of the penalty of Rs.28,88,03,050/-.
2. Refund of Excise duty paid from 25.02.2020 to 06.06.2020.
3. Losses under section 56 of the Contract Act.
11. The petitioner was called upon to appear before the
committee on 23.01.2020 and the petitioner did appear through its
representative before the committee and thereafter vide letter
dated 30.01.2021 a committee i.e. District Collector, Dewas has
sent its report to the State Government. The petitioner has
demanded a copy of the fact-finding report but the same has not
been supplied. Vide impugned letter dated 25.02.2021 the
Deputy Secretary, Commercial Tax Department has directed the
Commissioner, Excise, that para-128 of the order dated
22.07.2020 passed in WP No.7373/2020 and Clause 49 of the
Excise Policy applies to those petitioners/licensees who have
continued with the licenses for the remaining period, meaning
thereby, objections/ representation submitted by those licensees
whose license have been terminated and recovery proceedings are
pending are not entitled to invoke Clause 49 of the Excise Policy
Being aggrieved the aforesaid letter the petitioner has filed the
writ petition no.7988/2021.
12. By way of these writ petitions, the petitioners are
challenging the termination notice, recovery notices as well as the
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validity of the letter dated 25.02.2021 whereby the respondents
have declined to entertain the representation submitted under
Clause 49 of the Excise Policy.
13. The respondents have filed the reply in the first W.P.
No.1675/2021 contending that the petitioner did not file an
affidavit/ undertaking to continue with the license hence, as per
the interim order dated 04.06.2020 hence the license of the
petitioner came to an end and by virtue of Clause 44 of the
Excise Policy the license stood cancelled. The Division Bench of
the Court finally dismissed the writ petition no.7373/2020 vide
order dated 22.07.2020 in which the petitioner was one of the writ
petitioners. The petitioner has also filed SLP (C) No.11898/2020
and that too has been dismissed therefore, so far as the
termination of the contract of the petitioner is concerned the said
issue has come to an end. It is further submitted that in the said
bunch of writ petitions by way of an additional affidavit as well
as an application for taking subsequent document on record it has
already been informed to the hon'ble the Division Bench and the
petitioners who did not submit an undertaking their contract has
been cancelled and the shops have been put to re-auction. The
petitioner did not challenge the said action in the pending writ
petition therefore, the petitioner is estopped from challenging the
action of the respondents regarding the termination of license in
this writ petition. It is further submitted by the respondent that in
the second writ petition that Clause 49 of the Excise Policy, as
well as para-128 of the writ petition no.7373/2020, applies to
only those licensees who have continued with the license and not
to those who have surrendered their license, therefore, the
communication dated 25.02.2021 has rightly been issued and the
action of the respondents is neither illegal nor arbitrary and not
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contrary to the judgment passed by this court in WP
No.7373/2020. Since the petitioner has surrendered the license,
therefore, the government had no option but to re-auction the
shop and to demand the difference of the amount from the
petitioner as per the terms and conditions of the policy and
section 64 of M.P. Excise Act . No case for interference is made
out and the writ petitions are liable to be dismissed.
14. Shri Ravindra Shrivastava learned senior counsel appearing
for the petitioner M/s Wine World has argued that assuming the
petitioner did not file the affidavit of willingness and submitted a
letter for surrender of the license it does not amount to a breach of
the contract as contemplated under the section 31 of the M.P.
Excise Act. It is further submitted that even if the petitioner was
not willing to continue with the license due to reasons beyond its
control there cannot be an automatic end of the license. There are
only three ways under the Excise Act under which the license can
be treated as come to an end firstly by way of surrender, secondly
by way of cancellation and thirdly due to force majors. Once the
petitioner has applied for the surrender of the license then the
same ought to have been considered under the provisions of
section 34 of the M.P. Excise Act in which no recovery can be
made. The license is liable to be cancelled or suspended only in
the case of breach or violation of the terms and conditions of the
policy or under sub-section 1(a) to (g) of section 31 of the Act .
The petitioner submitted a letter of surrender on 05.06.2020 but it
was neither accepted nor rejected by the authority.
15. It is further submitted by the learned senior counsel that
even if the stand of the government is accepted that the petitioner
did surrender the license before this court by not submitting an
undertaking even then neither provisions of section 31 of the M.P.
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Excise Act nor clause 44 of the Excise policy would attract. It is
further submitted by Shri Shrivastava Senior Advocate that the
cancellation of license is one thing and recovery of losses is
another thing. The petitioner can not be settled with the recovery
if before cancellation an opportunity of hearing was not given.
Every cancellation of a license does not automatically entail
recovery of the losses.
16. It is further submitted there is a delebarte violation of the
interim order dated 04.06.2020 passed in W.P. No.7373/2020
(Maa Vaishnao Enterprise and others Vs. the State of M.P. and
others) whereby the Government was restrained to take coercive
action against the petitioners, therefore, the termination of
contract initiation the recovery proceedings are nothing but a
coercive step hence the said action is liable to be considered as
contempt of court.
17. Shri Shrivastava has further submitted that the Apex court
in the case of SLP (c)No.10758/2020 [Alco-Active retail traders
vs State of Madhya Pradesh] has already granted liberty to make
an application under para-128 of the judgment passed in WP
No.7373/2020 to the District committee. The Division Bench at
Principal Bench of this High Court in W.P. No.20915/2020 Nakul
Ram Yadav Vs. State of M.P. has also relegated writ petitioner to
submit a representation to the District committee invoking clause
49 of the Excise Policy as per liberty granted in para-128 of the
judgment passed in WP No.7373/2020 therefore, the Dy.
Secretary has wrongly held that para-128 of the judgment passed
in WP No.7373/2020 and Clause 49 of the policy does not apply
to the petitioner who did not continue with the license by showing
unwillingness. The letter dated 25.02.2021 is nothing but a
violation and contempt of order passed by this court. Hence
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recovery notices are liable to be quashed and the respondents be
directed to decide the petitioner's representation as per the report
given by the district committee in compliance with Clause 49 of
the Excise Policy.
18. Learned Senior Advocate has closed his arguments by
submitting that the petitioner has deposited an amount of Rs.37
crores to the government with the intention to continue with the
license but due to the Covid-19 pandemic situation, it was not
possible to continue further with the contract looking to the
uncertainty of the period of lockdown. The government has not
only forfeited the license fee, bank guarantee and now demanding
Rs.28 crores, it would also be very harsh to the petitioner to
deposit the aforesaid amount in case of surrender of license,
hence some mercy is liable to be shown by this court in the
interest of justice .
19. Shri Ashok Agrawal learned counsel for the petitioner in
WP No.3809/2021 has adopted the arguments advanced by Shri
Shrivastava senior advocate and in addition, he has submitted
that this court in the case of Nakul Rav (supra) has granted liberty
to the petitioner to invoke clause 49 of the policy by submitting
the representation to the District Committee as per the para-128
of W.P. No.7373/2020 (Maa Vaishno Enterprise and others Vs.
State of M.P. And others) therefore, the similar directions be
given in this petition also as binding precedent.
20. Shri Pushyamitra Bhargav, learned Additional Advocate
General for the respondents/State has contended that once the
petitioner has shown an unwillingness to continue with the
contract and surrendered the licensee then in order to protect the
revenue the government had no option but to cancel the license of
the petitioner and gone for fresh auction as directed vide interim
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order dated 04.06.2020 by the Division Bench has permitted to do
so. During the pendency of the writ petition, the licence was
cancelled and the shops were re-auctioned. The petitioner did not
challenge the same by amending the said writ petition therefore,
the issue of termination has come to an end which cannot be
permitted to re-agitate in this petition. It is further submitted by
the learned Additional Advocate General that para.128 of writ
petition no.7373/2020 (Maa Vaishno Enterprise and others Vs.
State of M.P). And others is very clear and according to which
only those licensee who was continuing with the licensee can
submit a representation to claiming to seek the loss, waiver of
duty and since the petitioner is not continuing with the licensee
then clause 49 of the Excise Policy would not apply. Hence, the
respondent has rightly written the letter dated 25.02.2021 for not
entertaining any representation of the petitioner and another
licensee who has surrendered their license. The recovery has
rightly been initiated under Section 64 of the Excise Act and the
petitions are liable to be dismissed.
Appreciation and conclusion
21. Vide letter dated 16.03.2020 the Collector (Excise), Dewas
has informed the petitioner that for the financial year 2020-2021
country/ foreign liquor single group Dewas its highest bid
amounts to Rs.23,51,00,000/- has been accepted. The petitioner
was directed to deposit the security amount, the license fee as
well as a bank guarantee up to 19.03.2020. The petitioner was
required to deposit the security amount of Rs.25,02,87,950/-
within ten days i.e. up to 26.03.2020 and the balance amount of
security up to 26.03.2020. It has been made clear that if the
licensee fails to deposit the aforesaid amount then the allotment
of liquor single group No.DEW/FL/CS Dewas shall be cancelled
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without giving any information and all the deposited amount shall
be forfeited. After the issuance of the aforesaid order, the
Government of India issued the orders under section 6(2)(1) of
the Disaster Management Act due to Covid-19 breakthroughs all
over India. The Commercial Department of the State of Madhya
Pradesh vide letter dated 28.02.2020 has directed all the
commercial establishments to remain closed including all the
liquor shops from 28.03.2020 to 14.05.2020. The petitioner along
with other licensees have approached this high court by way of
writ petition no.7373/2020 (Maa Vaishno Enterprise and others
Vs. State of M.P and others ) seeking the following reliefs:-
(i) To issue an appropriate writ or order thereby
directing the respondents to quash/recall the entire
auction process conducted by them for grant of license to
for the retail liquor shops.
(ii) To issue an appropriate writ or order thereby
directing the respondents to revalue the entire auction
process conducted by them for grant of license to for all
the retail liquor shops.
(iii) To issue an appropriate writ or order thereby
restraining the respondents to issue licenses to the
petitioners.
(iv) To issue an appropriate writ or order thereby
directing the respondents to refund the money deposited
by the petitioners with the respondents.
(v) To issue a writ of certiorari thereby quashing and
setting aside the offers made by the petitioners and the
acceptance thereof by the respondent state government.
(vi) To grant any other relief as this court deems
fit and proper in the interest of justice.
22. The aforesaid reliefs make it clear that petitioners sought
quashment/ recall of the entire auction process, revalue the entire
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auction process, restraining the respondents to issue license and
refund of the money. By way of interim relief, the petitioner
sought that the respondents be restrained from issuance of the
license and be further restrained to take any coercive step against
the petitioner, which means that from the very beginning the
petitioner was not intended to continue with the license to run the
liquor shop. After hearing the learned counsel for the parties this
court was of the opinion that the petitioner being the license
cannot refuse to perform the contract therefore, as an interim
measure , in order to maintain the equity between the parties, also
to prevent the loss of revenue to the State and considering the
submissions made by the counsel for the petitioners that few
petitioners are ready to continue with the license, the Division
Bench has directed that the petitioners who are ready and willing
to continue with the license shall file an affidavit within three
working days from today failing which the State shall be entitled
to auction the shops afresh on terms as laid down. However, the
issue related to the recoveries due to re-auction shall be subject to
the decision of the writ petitions , it has also been observed that
meanwhile, State is liable to be restrained from taking any
coercive means against the petitioners during the pendency of the
writ petition. The operative part of the order passed in the writ
petition is reproduced below:-
"The hearing in the cases is continuing, which is
likely to take some time before the final decision is
rendered. An interim order is required to be passed to
balance the equity between the parties and also to prevent
loss of revenue to the State.
Accordingly, examining the issue relating to
interim directions, it may be noted that learned senior
counsel for the petitioners inter alia submitted that few
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petitioners are ready and willing to continue. Therefore,
under the circumstances, it is directed that the petitioners,
who are ready and willing to continue (including the cases
of renewal), shall file an affidavit within three working
days from today, failing which the State shall be entitled to
auction the shops afresh on terms as laid down by them.
However, the issue relating to the recoveries due to
re-auction shall be subject to the decision of the writ
petitions.
In the meantime, the State is restrained from taking
any coercive means against the petitioners during the
pendency of the writ petitions till the next date of
hearing."
23. The above interim order emerges in three facts firstly that
the Division Bench of this Court has declined to restrain the State
from issuing the license to the petitioner as the petitioner cannot
refuse to perfume its obligation after acceptance of the bid,
secondly, the statement made by the counsel for the petitioner that
few petitioners are ready and willing to continue with the license,
therefore, the court has directed the petitioners to submit an
affidavit within three working days and in case of those who are
before the court and not willing to continue with the license, and
thirdly those who did not submit willingness they are out of the
run and the State shall be entitled to auction the shops afresh and
the issue of recovery related to re-auction shall be subject to the
decision of the writ petition.
24. It means that those petitioners who were not inclined to
continue their license would be treated as cancelled and the state
shall be free to re-auction the shop afresh and any recoveries after
re-auction shall be subject to the decision of the writ petitions.
The petitioners did not object to this interim order and submitted
an application for surrender of the license even though was not
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required to be submitted to the respondent. In terms of the order
dated 04.06.2020 the petitioner was not required to submit an
application for surrender as the Division Bench did not grant any
liberty to surrender the license to the competent authority under
section 33 of the M.P. Excise Act. Straight away court has
directed the State Government to go for re-auction after the
expiry of the three days and any recoveries be kept in abeyance
till the final decision of the writ petition. The counsel for the
petitioner did not seek any directions from the court that they are
given permission to surrender the license. The petitioner could
have withdrawn the writ petition at that stage with liberty to
excise the right of surrender the license under section 33 of the
M.P. Excise Act but the petitioner has chosen to continue with the
writ petition awaiting the final outcome. The license of the
petitioner had come to an end after the expiry of three days from
04.06.2020 and the government becomes entitled to re-auction
the shop. The issue of cancellation of the license cannot be re-
agitated in this petition as the same has come to an end after the
expiry of three days from 04.06.2020.
25. In the bunch of writ petitions Division Bench of this High
Court has formulated the following issues for adjudication. They
are as follows:-
" (i) Whether a valid and enforceable concluded
contract has come into existence between the parties so as to
bind the petitioners to comply with the statutory and legal
obligations arising therefrom?
(ii) Whether the State is correct in unilaterally issuing
the licensees with changed terms and conditions?
(iii) Whether the amended Excise Policy issued on
23.05.2020 is valid and legal?
(iv) Whether in the facts and circumstances of the
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present case, if the answer to Question (i) above is in the
affirmative, the contract between the parties becomes
impossible to perform or unlawful so as to excuse the
petitioner from its performance in terms of Section 56 of the
Contract Act?
(v) Whether clauses 9.6, 10.1.4, 10.1.5, 10.1.9, 44
and 48 of the Excise Policy 2020-2021 dated 25.02.2020 are
contrary to the provisions of M.P. Excise Act, 1915?
(vi) Whether the writ petition is maintainable in the
resent facts and circumstances, as raised by the respondents?"
By pronouncing a detailed judgment the Division Bench of
this Court has held that a valid and enforceable contract was
established between the license and the Government. The State
was correct in unilaterally issuing the license to the petitioners.
The amended Excise policy issued on 25.03.2020 is valid and
legal. Clause 9.6 which has been examined and considered in the
judgment is reproduced below:-
"9-6 o"kZ 2020&21 dh Bsdk vof/k ds fy;s bZ&Vs.Mj ¼Dykst fcM ,oa
vkWD'ku½ }kjk efnjk nqdkuksa ds [email protected],dy lewgksa ds fu"iknu dh izfdz;k
esa /kjksgj jkf'k mijksDrkuqlkj tek u fd;s tkus ij i`Fkd ls fcuk fdlh
vU; lwpuk ds lacaf/kr efnjk nqdkuksa ds [email protected],dy lewgksa dk
[email protected];lsal fujLr fd;k tk;sxk o mldk iqufuZ"iknu orZeku
mPpre vkWQjnkrk ds mRrjnkf;Ro ij fd;k tkosxk A bZ&Vs.Mj ¼Dykst
fcM ,oa vkWD'ku½ ds ek/;e ls fu"iknu dh izfdz;k esa Hkkx ysus okyk
lQy Hkkxhnkj ihNs ugha gV ldrk gS vFkkZr cSd&vkmV ugha dj ldrk
gS] ,slk djus ij lQy Hkkxhnkj }kjk tek dh xbZ fu/kkZfjr /kjksgj jkf'k
jktlkr dh tk ldsxh rFkk mlds fo:) fof/k lEer dk;Zokgh dh tk;sxh
A"
26. It has also been held that clause 9.6 is not contrary to the
provisions of M.P. Excise Act,1915. This court has observed that
after the interim order on 04.06.2020 except the petitioner in the
bunch of writ petitions who are 57 liquor group have surrendered
their license but as many as 323 liquor groups have continued
with their licenses and are operating with their liquor vends. It
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has also been observed that the over all operation of the liquor
vends said to be in disarray for only about two months during
which the period also the liquor shop of red zone were also
allowed to be opened 04.05.2020 except for urban/city areas and
for three red zone Bhopal, Indore and Ujjain. The contract is for
the period 01.04.2020 to 31.03.2021 and by way of amended
notification two months extra have been given and the license has
been extended for a period of two months i.e. up to 31.05.2021 to
compensate the loss caused in the initial two months of the policy
period therefore, after analyzing the entire gamut of the facts and
circumstances, it cannot be said that the contract between the
parties has become totally unworkable, impossible frustrated and
unlawful to perform. It has been finally held that at the most it
was a case of hardship and interruption in the operation of the
liquor shop for about two months therefore, the petitioner cannot
claim that they are to be excused from the performance of
contract. Therefore, in sum and substance, the Division Bench of
this High Court has found that there was no loss to the licensee
due to the pandemic covid -19and the lockdown imposed by the
government and even if there was any loss that has been
compensated by extending the period of license for two months.
The Additional Advocate General has informed us that none of
the petitioner/licensee who continued with the licensee have
submitted any claim under clause 49 of the Excise policy as their
losses have been compensated by extending the period for two
months.
27. Section 64 of the M.P. Excise Act provides modes of the
recovery of government dues. According to which all the excise
revenue, any loss that may occur when in consequence of default
a grant has been taken under the management of collector has
- : 18 :-
been resold by him may be recovered from the person primarily
liable to pay the same or from his surety or by way of recovery of
land revenue. The license is liable to be cancelled under section
31(1) of the M.P. Excise Act in the event of any breach by the
holder thereof or by any of his servants of any of the terms or
conditions of the license. Under section 31(4) of the M.P. Excise
Act where the license is cancelled the collector may re-sale the
shop at the risk and loss of the ex-licensee and the same shall be
treated as loss and becomes a government due recoverable by the
ex-licensee under section 64 of the Excise Act, therefore, due to
the non-performance of license the petitioner has violated the
terms and conditions of the license which gave the right to the
respondents to recover loss of revenue under section 64..
28. Shri Shrivastava, learned counsel has strongly placed
reliance on the judgment passed by the Supreme Court of India in
case of Ganesh Prasad Vs. State of M.P. reported in 1972
M.P.L.J. 672 in which according to him in similar facts and
circumstances the apex court has quashed the recovery. As per the
facts of the aforesaid case, the government decided to close down
one shop and thereafter, re-auctioned it at the risk and cost of the
licensee and started recovery proceedings from the licensee. The
Hon'ble the Supreme Court has held that even if the
administration has a good prima facie case for cancellation but
still an opportunity of hearing ought to have been given to the
licensee. Shri Shrivastava submits that section 1(A) has been
inserted in Section 31 of the Excise Act to the effect that before
making an order of cancellation or suspending a license permit or
the authority shall record in writing the reasons for proposed
action furnished to the holders and given a reasonable opportunity
of being heard. The facts of the present case are different the
- : 19 :-
licensees like the petitioner approached this court seeking
cancellation of the process of auction of liquor shops. This court
has granted an opportunity to continue with the license but the
petitioner himself surrendered the license, the liberty was granted
to the government to re-auction the shop in order to save the
revenue and restrained to recover the losses till the final
conclusion of the writ petition. Ultimately the writ petitions filed
by the petitioners have been dismissed against which the SLP was
also dismissed with liberty to challenge the recovery process.
Therefore, the issue of cancellation or surrender cannot be
examined in this petition. This petition is only confined to the
validity of the recovery initiated by the respondents as held above
in view of section 31 read with Section 64 of the Excise Act the
government can recover the loss from the petitioner.
29. The only issue which remains consideration is whether the
petitioner is entitled to invoke the clause 49 of the Excise Policy
which is reproduced below:-
^^49 lkekftd] jktuSfrd izn'kZuksa] dkuwu O;oLFkk laca/kh dkj.kksa
ds QyLo:i U;wure izR;kHkwr M~;Vw h esa {kfriwfrZ Lohd`r fd;k
tkuk%&
yk;lsal vof/k esa lkekftd] jktuSfrd izn'kZuksa] dkuwu
O;oLFkk laca/kh dkj.kksa ds QyLo:i fdlh {ks= fo'ks"k dh efnjk
nqdkusa cUn fd;s tkus ds vkns'k ds dkj.k] ;fn lacaf/kr yk;lsalh
o"kZ ds fy;s ns; okf"kZd fu/kkZfjr U;wure izR;kHkwr M~;wVh ds
lerqY; efnjk dk iznk; ugh ys ikrk gS] rks ,slh fLFkfr esa
mldks efnjk fodz; dh ,slh gkfu ds lnaHkZ esa] leLr fLFkfr;ksa
dks vkadyu dj lekuqikfrd U;wure izR;kHkwr M~;wVh jkf'k dh
{kfriwfrZ dk ik= ekuk tk ldsxk A
bl gsrq lacaf/kr ftys dh ftyk lfefr }kjk Hksts x;s
;qfDr;qDr ,oa RkF;kRed izLrko ij jkT; 'kklu @ vkcdkjh
vk;qDr }kjk lekuqikfrd U;wure izR;kHkwr M~;wVh dh {kfriwfrZ
vFkok ns; jkf'k ls NwV fn;s tkus dk fu.kZ; fy;k tk ldsxkA^^
The above clause lays down that if during the license
period consequent upon any social, political presentation or
law and order situation licensee of a particular area is unable
to take the supply of liquor equivalent to the minimum bank
- : 20 :-
guarantee duty to be fixed for the licensee year in such
circumstances of the loss of sale of liquor the concerned
licensee shall be entitled to compensation and an equal portion
of minimum bank guarantee after taking into account all the
situation and such decision to compensation or grant rebate
and duty shall be taken by State/ Excise commission."
Hence the respondents are justified in issuing the recovery
notices after the termination of the license of the petitioner.
30. According to the State above Clause 49 of the liquor policy
applies to those licensees who continued with the license and
during that license period they were unable to take the supply of
liquor due to any social, political presentation or law and order
situation hence this clause cannot be made applicable to those
licensees who did not perform the contract or their licenses have
been terminated. The Division Bench of this court has already
held that in the case of the petitioner Clause 48 of the policy
applies and under the said clause due to any policy decision of the
government or due to any natural calamities the licensee is not
able to operate the allotted liquor shop then the licensee shall not
be entitled to any compensation or rebate by the government or
the authorities.
31. We are unable to accept the above contention for the simple
reason that those licensees who have continued with their license
and completed the period have already been given the benefit by
way of extending two extra months period of license and
thereafter they did not submit any claims to the Government as
informed by the learned Additional Advocate General, hence the
liberty has been given to the petitioner and other similar licensees
in para 128 of the writ petition No. 7373/2020 (Maa Vaishno
Enterprise and others Versus the State of M.P. And others).
- : 21 :-
32. The petitioner has already submitted a claim before the
District Committee/collector and thereafter report has already
been sent to the Government, it ought to have been considered on
merit and in between the State Government has wrongly written
a letter dated 25.02.2021 to the Excise Commissioner that this
clause 49 does not apply to the petitioner and in similarly situated
petitioners whose license has been terminated/ cancelled by virtue
of non-submission of willingness before the High Court. This
wrong interpretation of para 128 of the writ petition No.
7373/2020 ( Maa Vaishno and others Vs. the State of M.P. And
others) has unnecessarily increased the litigation in this High
Court.
33. The petitioners have already challenged the order dated
27.07.2020 in writ petition no.7373/2020 before the apex court
and the SLP has been dismissed therefore, all the issues raised in
this writ petition has attained finality. The only liberty which was
granted to the petitioner by the Supreme Court of India that to
assail the recovery initiated by the respondents. The respondents
are directed to take a final decision on the report submitted by the
respective District Committee / the collector within 45 days from
receipt of a Certified Copy of this order.
Accordingly, the writ petitions are partly allowed the
recovery against the petitioner is upheld and the letter dated
25.02.2021 is hereby set aside. Let photo copy of this order be
retained in each connected writ petitions. No order as to cost.
(VIVEK RUSIA) (RAJENDRA KUMAR (VERMA))
JUDGE JUDGE
Ajit/- Digitally signed by AJIT KAMALASANAN
AJIT
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE,
ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE,
postalCode=452001, st=Madhya Pradesh,
2.5.4.20=156c9cedca1b74d671db9f220a5e3ed6cba241effad89210
KAMALASANAN
7d95ef0a1afc55b4,
pseudonym=CFDFD9C36711CA738F527A5D61A1EE901C09EF29,
serialNumber=7F0BEE2D78BD57DA058F3247441C87E7E0817FB61
F5E2ABCAEE63CAAA7B3B9FF, cn=AJIT KAMALASANAN
Date: 2022.03.31 17:10:39 +05'30'
