Nitesh Kumar Verma, S/O. Banwari ... vs The State Of Rajasthan
2022 Latest Caselaw 3539 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

                D.B. Civil Writ Petition No. 4928/2022

Nitesh Kumar Verma, S/o. Banwari Lal Verma, R/o. Ward No.2
Mohalla Ballaiyan, Data Ramgarh, Sikar Rajasthan
                                                                     ----Petitioner
                                    Versus
1.     The   State     Of       Rajasthan,       Through         Chief   Secretary,
       Government Of Rajasthan, Jaipur
2.     Principal    Secretary,       Finance Department, Secretariat,
       Jaipur
3.     The Excise Commissioner, Government Of Rajasthan,
       Udaipur
4.     The District Excise Officer, Jaipur
                                                                  ----Respondents

Connected With D.B. Civil Writ Petition No. 4929/2022 Rajiya Bano, W/o Illiyas Ali, R/o. C-296, Murlipura Scheme, Jaipur, Rajasthan

----Petitioner Versus

1. The State Of Rajasthan, Through Chief Secretary, Government Of Rajasthan, Jaipur

2. Principal Secretary, Finance Department, Secretariat, Jaipur

3. The Excise Commissioner, Government Of Rajasthan, Udaipur

4. The District Excise Officer, Jaipur

----Respondents

For Petitioner(s) : Mr. RB Mathur, Sr. Adv. with Mr. Nikhil Simlote, Adv. Mr. Amit Malani, Adv. & Mr. Dheeraj Palia, Adv.

For Respondent(s) : Mr. M.S. Singhvi, Advocate General with Mr. Tarang Gupta, Adv., Mr. Pranav Bhansali, Adv. & Mr. Darsh Pareek, Adv.

                                           (2 of 10)                     [CW-4928/2022]


         HON'BLE MR. JUSTICE PANKAJ BHANDARI
              HON'BLE MR. JUSTICE SAMEER JAIN

                          Judgment / Order

Reserved on 20/04/2022
Pronounced on 05/05/2022

(Per: Hon'ble Sameer Jain, J.)

1. Both these writ petitions have been filed by the petitioners

seeking declaration of the action of respondents in denying the

renewal of their liquor shops due to late payment of advance

annual guarantee amount as violative of Art. 14 of the

Constitution of India as well as to declare Clause 2.5.6 of the

Excise Policy 2022-23 as illegal, unconstitutional, arbitrary and to

strike down the same with further directions to the respondents to

renew license of the petitioner at Rs.93,67,336/- and

Rs.1,56,35,560/- respectively with 12 percent addition for the

year 2022-23 as per first clause of 2.5.3 and not to discriminate

only on the basis that the petitioners have delayed Advance

Guarantee Amount by two days.

2. The case of the petitioner as per them is that they applied

for renewal of license for composite liquor shop. For the year

2021-22, they were highest bidders and the shops were allotted to

them and sanction was issued. As per Clause 2.5.3 of the new

Liquor Policy of 2022-23 and 2023-24, the petitioners gave option

to renew their license as per the table mentioned therein and the

petitioners were offered the renewal as per Clause 2.5.3.

3. As per pleadings of the petitioners, they were required to get

renewal only if they deposit the security amount, renewal fee,

advanced guarantee amount and 50% of the annual license fee by

the due date. The petitioners were interested in renewal of their

(3 of 10) [CW-4928/2022]

shops and in the light of the conditions, they paid the security

amount, renewal fee by the specified date/extended dates.

4. It is claim of the petitioners that the advance guarantee

amount was required to be paid by the due date i.e. 19th March,

2022 but due to non-functioning of server, the petitioners could

deposit the same by 21st March, 2002 as on 19th March, 2022,

there was a holiday and merely because of delay of two days in

payment of the annual guarantee amount, which was beyond their

control, their case has not been considered for renewal and on

account of the same, license of their shops has been cancelled on

22nd March, 2022 by the respondents while relying upon Clause

2.5.6 of the new Excise Policy and therefore, the action of the

respondents has been assailed alleging the same to be arbitrary,

irrational, illegal and ulravires to the provisions of the Rajasthan

Excise Act, 1950 as well as the Rules of 1956 framed thereunder.

5. Learned counsel for the petitioners submitted that in the

year 2020-21, the Policy for Allotment of Liquor Shops was by

lottery mode. It was only in the year 2021-22 that e-auction qua

the highest bidder was introduced. As per the new Excise Policy of

2022-23 and 2023-24 dated 05/02/2022, for renewal of license,

the renewal fee and security amount has to be deposited

mandatorily in time which has been complied with by the

petitioners within time.

6. Learned counsel for the petitioners has drawn attention of

this Court towards Clause 2.5.6 of the new Excise Policy 2022-23

and 2023-24 which reads as under:-

^^vuqKk/kkjh }kjk fu/kkZfjr vof/k esa uohuhdj.k Qhl o /kjksgj jkf'k ds vUrj dh jkf'k tek djkus ds ckn vfxze okf"kZd xkj.Vh rFkk okf"kZd ykbZlsUl Qhl dh fu/kkZfjr jkf'k tek

(4 of 10) [CW-4928/2022]

ugha djkus ij mldk uohuhdj.k fujLr dj uohuhdj.k Qhl o /kjksgj jkf'k tCr dj yh tk;sxhA**

7. Learned counsel has also drawn attention of this Court upon

Annexure-7 dated 22/03/2022 issued by the respondents wherein

while relying upon Clause 2.5.6 of the new Excise Policy 2022-23

and 2023-24, it has been ordered that for non-depositing of due

advance guarantee amount by 19th March, 2022, the amount of

renewal fees, security amount and annual license fee amount of

the petitioners is forfeited. Learned counsel for the petitioners

submitted that such action of the respondents in not renewing the

license of the petitioners is de-hors the Excise Rules and the

provisions of the Excise Act more particularly, Section 42(d) and

Section 74. It is further submitted that the petitioners have made

substantial compliance by depositing 90% of the amount towards

security, renewal fee, annual license fee and only on account of

delay of two days in depositing the amount towards advance

guarantee amount, renewal of license has been denied in the case

of the petitioners. Learned counsel further submitted that Clause

2.5.6 of the new Excise Policy is not only arbitrary but irrational.

He has relied upon judgment of the Apex Court in Commissioner

of Central Excise, New Delhi Vs.Hari Chand Shri Gopal &

Ors.: (2011) 1 SCC 236 wherein doctrine of substantial

compliance was considered and it was held that merely on account

of the procedural delay/lapses, the substantial rights should not

be affected. He submitted that in the case in hand, the delay in

depositing of a meager amount towards advance guarantee

amount, which was directory but not mandatory and was beyond

control of the petitioners as there was technical glitch in the

server, should be ignored and in alternative, he submitted that

(5 of 10) [CW-4928/2022]

Cause 2.5.6 be declared as illegal, irrational whereby merely on

delay, the renewal fees, security amount and annual license fee

has been forfeited. He further submitted that discrimination is

made between fresh applicants and the petitioners as they have

been granted 15 days time for depositing the amount unlike the

petitioners.

8. Per-contra, learned Advocate General appearing for the

respondents while raising preliminary objections submitted that

the equitable jurisdiction under Article 226 of the Constitution of

India can only be exercised by persons who have come with clean

hands before the Court. As per him, in the case in hand, the

application (Annexure-R/2) submitted by the petitioners for online

renewal was concealed wherein the petitioners themselves

admitted for depositing the amount in question within the

prescribed time failing which in accordance with the Excise Policy,

appropriate action could have been initiated against them. The

contention of learned Advocate General is that once the said

application/undertaking duly supported by affidavit was submitted

and the same was suppressed before this Court, the instant writ

petitions could not have been filed specially suppressing the same.

Learned Advocate General relied upon the e-challan dated

19/03/2022 generated at 18.47 hrs. and at 21.49 hrs respectively

annexed with both the writ petitions in order to show that the

server was very well functioning on 19/03/2022. He further

submitted that the petitioner-Nitesh Kumar Verma has signed his

writ petition and affidavits in support of the same marking his

signature as "furs'k dqekj** while in the application/undertaking

dated 21/03/2022 (Annexure-6), he has marked his signatures

^^uhrs'k dqekj** which exhibits different signatures rather the

(6 of 10) [CW-4928/2022]

Annexure-6 is a forged and created document not belonging to the

petitioner-Nitesh Kumar Verma. Thus, the affidavit filed by the

petitioner-Nitesh Kumar Verma is forged ad on this count alone,

the writ petition should be dismissed.

9. Learned Advocate General further submitted that from the

pleadings made in Paras 12 & 13 of the writ petitions, it is an

admitted fact that the petitioners were to deposit the advance

guarantee amount by 19th March, 2022 but they deposited the

same on 21st March, 2022 and as such, the prayers made in the

writ petition is also an afterthought. The validity of Clause 2.5.6 of

the Excise Policy is only challenged at the belated stage after

renewal of the petitioner was struck down on account of late

deposit and the amount was forfeited. Learned Advocate General

submitted that neither there was a technical glitch nor any

evidence has been brought on record with regard to the same.

The e-challan generated and exhibited by the petitioners of 19th

March, 2022 bears testimony of the said fact. He further

submitted that on 20th March,2022 (Sunday), on-line system was

operational and even otherwise, the amount could have been

deposited in cash as agreed by the petitioners themselves in

Annexure-R/2.

10. Learned Advocate General submitted that a licensee has no

vested right for renewal of license and in this regard, he relied

upon a judgment of the Apex Court rendered in M.R. Patel Vs.

State of Bihar: AIR 1966 SC 343. He further submitted that

meaning of renewal is a fresh grant and the principles of

promissory estoppel and legitimate expectation cannot be invoked

to alter or amend specific terms of contract. In this regard, he

relied upon judgments rendered by the Apex Court in Gajraj

(7 of 10) [CW-4928/2022]

Singh & Ors. Vs. The State Transport Appellate Tribunal &

Ors.: (1997) 1 SCC 650 and Assistant Excise Commissioner

& ors. Vs. Issac Peter & ors.: (1994) 4 SCC 104. He also

submitted that trade in liquor is not a fundamental right as held in

the judgment rendered by the Apex Court in State of Punjab &

ors. Vs. Devans Modern Brewaries Ltd.& ors.: (2004) 11

SCC 26. He further submitted that contractual obligations cannot

be challenged when entered with open eyes as held in Har

Shankar Vs. The Deputy Excise & Taxation Commissioner &

ors.: (1975) 1 SCC 737. He also relied upon a judgment of the

Apex Court in Bhaskar Laxman Jadhav & ors. Vs. Karamveer

Kakasaheb Wagh Education Society: (2013) 11 SCC 531

wherein it was held that the writ petition is not maintainable on

account of concealment, suppression and misstatement.

11. We have heard the arguments advanced by learned counsel

for both the sides, scanned records of the writ petition and gone

through the judgments cited at bar.

12. On consideration of above, this Court is of the view that the

petitioners have approached this Court for declaring action of the

respondents in denying renewal of the petitioners' shop on

account of late payment of advance guarantee amount and

forfeiting the security and renewal fee etc. in light of Clause 2.5.6

of the new Excise Policy as illegal, unconstitutional and arbitrary.

It is an admitted fact by the petitioners that the due date for

depositing the advance guarantee amount was 19th March, 2022

which was not complied with and the deposit was made on 21st

March, 2022. In the case in hand, the petitioners have failed to

bring on record any screen shot, certificate of bank or any

impossibility faced by them apart from mere assertion in the writ

(8 of 10) [CW-4928/2022]

petitions rather the respondents have brought on record e-challan

dated 19/03/2022 in both the writ petitions showing the amount

deposited by common bank serial number at various times. The

respondents have also brought on record Annexure-R/2 which is

an application/undertaking supported by an affidavit wherein the

petitioners have specifically stated that they will deposit the

advanced guarantee amount within the specified given time either

by bank or in cash which they have failed to do so. It is also an

admitted position that on Sunday i.e. 20th March,2022, online

payment mode was operational. In this regard, the reliance placed

by the respondents holds the field that the contractual obligations

cannot be challenged when entered with open eyes as held in Har

Shankar (supra).

13. Reliance placed by the learned Advocate General upon

judgment of the Apex Court in Lakshmanan Vs. B.R.

Mangalagiri & Ors.: 1995 Suppl.(2) SCC 33 also comes to the

rescue of the respondents wherein it is held that when the

contractual terms are not carried out and there is default

committed by one side as a part of contract, they are entitled to

forfeit the entire amount.

14. In Government contracts and State matters wherein the time

is essence and policies are issued, they have to be adhered to in

letter and spirit. No relaxation can be granted as the rules of game

are very open, wide and in public domain. It is not an individual

transaction which can be relaxed nor the respondents have power

to bypass the provisions of the policy. Adequate time has been

given to the petitioners as well as fresh licensees. The petitioners

have themselves given an undertaking which was concealed in the

present writ petitions and not brought on record whereby they

(9 of 10) [CW-4928/2022]

have agreed to deposit the arrears/due amount within time either

in cash or by way of online mode.

15. The judgments cited by the petitioners on account of

substantial compliance cannot come to rescue of the petitioners as

time was essence as per policy and was of mandatory nature.

Further, compliance of due deposit was undertaken on affidavit

which was concealed in the present writ petition by the petitioners

marked as Annexure-R/2. Further, there is no sufficient and

justified cause or explanation which exhibit that it was an act of

impossibility for the petitioners to deposit the money. They have

accepted the rules of game which could not have been altered and

the contractual obligations cannot be challenged when entered

with open eyes. The petitioners are estopped and the doctrine of

acquiescence and waiver too come in their way for renewal of

license.

16. The judgment cited by the petitioner (supra) on substantial

compliance is distinguishable for the above reasons. Further, in

the case in hand, the condition no.2.5.3 and 2.5.6 was a

substantial compliance and not a procedural compliance and there

was no vested right for renewal of license.

17. It is time and again held by the Apex Court that trade in

liquor is not a fundamental right as held in Devans Modern

Brewaries Ltd. (supra).

17. The reliance placed by the petitioners on provisions of Rule

72-A of the Excise Rules is also misconceived in the light of their

own undertaking and Clause 2.5.6 of the new Excise Policy. The

petitioners have come before this Court at the belated stage only

after issuance of Annexure-7 dt.22/03/2022 whereas the Excise

Policy in hand was issued on 05/02/2022. The contract of the

(10 of 10) [CW-4928/2022]

petitioners is also not worth consideration rather the essential

documents were concealed from the Court. The equitable

jurisdiction can only be applied when the petitioners come with

clean hands. The Apex Court has time and again held that there is

no equity against fraud. In this regard, reliance is placed upon

judgment rendered by the Apex Court in Sciemed Overseas

Incorporation Vs. BOC India Ltd. & Ors.: (2016) 3 SCC 70.

The challenge to vires of Clause 2.5.6 is also uncalled for and

unjustified for the reasons and judgments of Apex Court referred

above.

18. In the light of above, this Court does not find any substance

in both these writ petitions and the same are accordingly

dismissed. All pending applications stand disposed of in above

terms.

                                   (SAMEER JAIN),J                                             (PANKAJ BHANDARI),J




                                   Raghu









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