Abhay Tiwari And Ors vs The State Of Bihar And Ors
2021 Latest Caselaw 97 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.2979 of 2017
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1. Abhay Tiwari, S/o Late Sobha Tiwari, R/o Vill-Khoraithha, P.S.-Bikram, Distt.-Patna.

2. Ajay Kumar, S/o Sri Bhola Singh, R/o Vill/Mohalla-Indra Nagar, P.S.-

Kankarbagh, Distt.-Patna.

3. Jai Prakash S/o Sri Sheetal Prasad R/o Mohalla-Ashok Nagar, P.S.-

Kankarbagh, Distt-Patna.

4. Manish Kumar, S/o Lal Babu Yadavm R/o Vill-Goriya Toli, Staqtion Road, P.S.-Kotwali, Distt-Patna.

5. Mukesh Kumar, S/o Ramjanam Prasad, R/o New Alkapuri, Anisabad, P.S.-

Gardanibagh, Distt-Patna.

6. Pramod Kumar, S/o Late Parmeshwar Dayal Singh, R/o B-57 Housing Colony, P.S.-Kankarbagh, Distt-Patna.

7. Ajit Kumar, S/o Yamuna Singh, R/o Vill-Gangachak, P.S.-Masaudhi, Distt.-

Patna.

8. Staym Kumar, S/o Ramanuj Singh, R/o Vill-Meer Nagar, P.S.-Sarmera, Distt.-Patna.

9. Sonajeet Sharma, S/o Yamuna Singh, R/o Vill-Khoraithha, P.S.-Bikram, Distt.-Patna.

10. Vijay Dubey, S/o Bhola Dubey, R/o Mithhapur Bus Stand, P.S.-Jakkanpur, Distt-Patna.

... ... Petitioner/s Versus

1. The State Of Bihar, through the Secretary, Excise and Prohibition Department, Bihar, Patna

2. The Chief Secretary, Government of Bihar, Patna.

3. The Member, Board of Revenue, Govt. of Bihar, Department of Revenue and Land Reforms, Patna.

4. The Bihar State Beverage Corporation Limited, A Government of Bihar Undertaking, having its Registered Office at Eastern Wing, 1 st Floor, Vidyut Bhawan-2nd, Jawaharlal Nehru Marg, Patna-1 through its Managing Director.

5. The Managing Director, Bihar State Beverage Corporation Limited, having its Registered Office at Eastern Wing, 1st Floor, Vidyut Bhawan-2nd, Jawaharlal Nehru Marg, Patna-1.

6. The General Manager Operation-1, The Bihar State Beverage Corporation Limited, having its registered office at Eastern Wing, 1 st Floor, Vidyut Bhawan-2nd, Jawaharlal Nehru Marg, Patna-1.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr.Suraj Narain Yadav, Advocate Patna High Court CWJC No.2979 of 2017 dt.11-01-2021

For the Respondent/s : Mr. Vikash Kumar, SC 11 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 11-01-2021

Petitioner has prayed for the following relief(s):

" This is an application for issuance of a writ in the nature of Certiorari to quash the order as contained in memo no. 3500 dated 29.08.2013 issued by the respondent no. 5 to the extent by which it has been directed that the distribution fee @ Rs. 3/- per LPL on IMFL and per BL on Beer respectively be recovered from the retail licensee for the supply of IMFL/Beer made between 01.04.2013 to 16.04.2013 for its reimbursement to the manufacturers/suppliers and further for issuance of a writ in the nature of mandamus directing the respondent BSBCL to refund amount to the petitioners which has been deducted from their respective balance account with the BSBCL."

It is the common contention of the parties that the

instant petition has to be disposed of in terms of the decision

dated 25.06.2014 rendered by a Co-ordinate Bench of this Court

in C.W.J.C. No. 24646 of 2013, titled as Nawal Kishore Singh

Vs. The State of Bihar & Ors., which is extracted as under:-

"These two Writ Petitions under Article 226 of the Constitution have been filed by the retail sellers of liquor.

The challenge is against the direction of the Managing Director, Bihar State Beverage Corporation Limited Patna High Court CWJC No.2979 of 2017 dt.11-01-2021

(hereinafter referred to as `the Corporation') issued on 29thAugust 2013 to recover distribution fee of Rs.3/-per LPL (London Proof Liter)of foreign liquor and of Rs.3/-per BL (Bulk Liter) of beer, from 1stApril 2013 to 16thApril 2013.

Learned advocate Mr. Satyabir Bharti has appeared for the petitioners. He has submitted that the petitioners being the licencee for retail sale of foreign liquor/beer, they had purchased the stock from the Corporation at the maximum retail price fixed by the State Government and printed on the container. Under the terms of licence, they are supposed to make retail sale at the price printed and not more. Although the Corporation is not empowered to levy any fee upon the retail sellers,under the guise of distribution fee the Corporation seeks to recover the additional amount illegally and without authority of law.

In support of his submission, Mr. Bharti has relied upon rules 20(iii) and 20(iv) of the Bihar Excise (Settlement of Licences for Retail Sale of Country Liquor/Spiced Country Liquor/Foreign Liquor/Beer and Composite Liquor Shop) Rules, 2007.

The Petitions are contested by the State Government and the Corporation. Learned Principal Additional Advocate General Mr. Lalit Kishore has appeared for the State Government and the Corporation. He has vehemently opposed the writ petitions. Mr. Lalit Kishore has relied upon the liquor sourcing policy reproduced in the writ petitions. He has submitted that the licence fee for the manufacturers was enhanced under the Government Notification dated 7th December 2012. However, commensurate enhancement in the retail price was not made upto 17th April 2013. The Corporation had, therefore, Patna High Court CWJC No.2979 of 2017 dt.11-01-2021

to pay higher price to the manufacturers. However, it could not recover the price higher than the maximum retail price for the retail sale. The Corporation is, therefore, entitled to recover the amount of difference from the retailers. He has further submitted that the petitioners have failed to establish that the petitioners had not recovered the price higher than the fixed price from the retail buyers. The petitioners,therefore,should pay the distribution fee to the Corporation.

We are unable to agree with Mr. Lalit Kishore. The terms and conditions of the retail licence require the retail seller to sell the liquor to the retail buyers at a price not higher than the printed price. The presumption should be that the petitioners have sold the liquor at a price not higher than the printed price. If at all the Corporation has a dispute, the burden lies upon the Corporation to prove otherwise.

Mr. Lalit Kishore has failed to establish that the Corporation has a right to charge distribution fee from the retail sellers. In absence of any power conferred upon the Corporation, the Corporation was not justified in issuing the impugned direction dated 29th August 2013 or in collecting the distribution fee from the retail sellers.

No other contention is raised before us. The Writ Petitions are allowed. The impugned order dated 29thAugust 2013 issued by the Bihar State Beverage Corporation to collect the distribution fee is quashed and set aside.

We may clarify that this order shall apply to the writ petitioners alone."

The directions issued in C.W.J.C. No.24646 of Patna High Court CWJC No.2979 of 2017 dt.11-01-2021

2013 (supra) shall apply mutatis mutandi also to the instant

petition, more so for the reason that the said decision stands

affirmed by Hon'ble Apex Court with the dismissal of the

Special Leave Petition filed by the State bearing Petition(s) for

Special Leave to Appeal (C) No(s). 13520/2017, titled as The

Bihar State Beverage Corporation Ltd. & Ors. Versus Manju

Devi & Ors.

(Sanjay Karol, CJ)

( Partha Sarthy, J)

K.C.Jha/-

AFR/NAFR
CAV DATE
Uploading Date          12.01.2021
Transmission Date