Rajasthan High Court - Jodhpur

Dharmendra Singh vs State Of Rajasthan ... on 25 April, 2023

Bench: Nupur Bhati

[2023/RJJD/011929]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 11063/2020

Dharmendra Singh S/o Shri Prem Singh, Aged About 40 Years, R/o Silvata Para, Jaisalmer District Jaisalmer, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Excise Department, Government Of Rajasthan, Jaipur, Rajasthan.

2. The Excise Commissioner, Excise Department, Gumaniwala, Panchwati Udaipur (Raj.).

3. The District Excise Officer, Excise Department, Jaisalmer (Raj.).

                                                                       ----Respondents


For Petitioner(s)              :     Mr. Vikram Singh Bhati
For Respondent(s)              :     -



                 HON'BLE DR. JUSTICE NUPUR BHATI

                               Judgment / Order

25/04/2023

1. Learned counsel for the petitioner submits that the

controversy involved in the writ petition is squarely covered by the

judgment dated 11.01.2021 passed in SB Civil Writ Petition

No.11384/2020 (Balveer Bana Vs. State of Rajasthan and

other connected matters) which is reproduced hereinbelow:-

"The petitioners are the licence holders of the shops of selling Indian made foreign liquor and country made liquor in various locations of State of Rajasthan. They have filed these writ petitions being aggrieved with the action of the respondent - Excise Department of imposing penalty upon the petitioners for the reason that they have failed to achieve the target of selling the liquor as per the conditions

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of the agreement executed between them and the respondent - Excise Department or in other words for selling less quantity of liquor from the fixed target. The Excise Department has imposed the said penalties and demanded the same while invoking the provisions of Clauses 3.18 (1) & 4.6 of the Excise and Temperance Policy for 2020-21 (hereinafter referred as "Excise Policy 2020-21").

Mr M.S.Singhvi - learned Advocate General - Senior Counsel assisted by ish Sankhla and Mr K.S. Lodha has by Mr Girish submitted that Division Bench of this Court at Jaipur Bench in Satveer Chaudhary vs. State of Rajasthan & Ors. (DBCWP No.10936/2020) and other connected writ petitions decided on 08.12.2020 has dismissed the challenge of Clauses 3.18 (i) & 4.6 of the Excise Policy 2020-21 and the controversy raised in these writ petitions is squarely covered by the said decision.

Learned counsels for the petitioners are not in a position to dispute the fact that the challenge to the Clauses 3.18 (i) & 4.6 of the Excise Policy 2020-21 has been failed before the Division Bench of this Court at Jaipur Bench.

The Division Bench of this Court at Jaipur Bench in Satveer Chaudhary, and other connected writ petitions (supra) has held as under:

"29. We have considered the contentions.

30. Admittedly, petitioners have entered into a contract and as per the terms and conditions of the license, they are required to follow the conditions imposed by the respondent and the terms of the Excise Policy. As per the terms of the Excise Policy 2020-21, petitioners were required to sell a particular quantity of IMFL/Beer and in case of shortlifting, they were required to pay the amount as Additional Minimum Special Vend Fees. Further, they were required to sell 10% more than the last year's quantity. Petitioners have entered into the contract with open eyes and now, they cannot challenge the terms of the Excise Policy 2020-21, on the ground that the clauses are contrary to Article 47 of the Constitution of India and against the objects of the Excise Policy. 31. It is a clear case of the respondent that they are duty bound to supply good quality product to the consumers and if restrictions are not

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imposed, there would be illegal transportation of liquor in the State and bad quality product would find place in the market and would cause revenue loss as well to the Government.

32. The Excise Policy for the year 2015-16 was challenged before the Rajasthan High Court in the case of "Abhishek Jaiswal vs. State of Rajasthan & Ors. (D.B. Civil Writ Petition No.948/2016)." The matter pertained to shortlifting of IMFL/Beer. Division Bench held that charging of Additional Vend Fees on account of shortlifting of IMFL/Beer, cannot be said to be a tax or penalty and the same is supported by Subordinate Legislation.

33. In the case of "Har Shankar & Ors. vs. The Deputy Excise & Taxation Commissioner & Ors. (AIR 1975 SC 1121), Apex Court has held that in a concluded contract, Writ Petition is not an appropriate remedy for impeaching contractual obligations. In, "State of Rajasthan & Ors. vs. M/S C.K.M. & Company (D.B. Civil Special Appeal (Writ) No.212/2007)" there was condition in the agreement that any kind of stoppage of mining operations shall not have any bearing or impact upon the recovery of royalty. The Writ Petitioners in that case had entered into an agreement for collection of royalty which contained the aforesaid language of absolute liability irrespective of the status of the mining operations. The Court observed that in those circumstances, no relief could have been granted to the petitioners as the law of equity, without any basis, cannot override specific conditions in the contract. In the present case in hand also, petitioners have entered into a contract, wherein, they have agreed to pay Additional Special Vend Fees for shortlifting and the same cannot be challenged in the Writ Jurisdiction.

34. The basis for challenge in this case is that the Excise Policy 2020-21 is contrary to Article 47 of the Constitution of India. Article 47 of the Constitution of India deals with the Directive Principles of State Policy. The State is bound to raise the level of nutrition and standard of living and to improve public health. As per the reply submitted by the State, State wants to provide good quality liquor to the consumers and to avoid pilfering of liquor from other States, which may not be quality product, State has put these conditions in the Excise Policy, hence, the same cannot be said to be violative of Article 47 of the Constitution of India.

35. Petitioners having entered into the contract with open eyes, cannot now challenge the terms of the contract under the Writ Jurisdiction. There are as

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many as 5543 groups and number of shops are 6665. The number of IMFL shops are 1000. Out of so many number of groups/shops, only the present petitioners have approached the Court.

36. It is further evident that the petitioners have not come with clean hands, as suitable relaxation and rebates were given by the State to the petitioners which have not been mentioned in the Writ Petitions and interim order has been obtained from the Hon'ble Court by concealing the material facts.

37. In view of the above, we do not find any merits in the present Civil Writ Petitions. The same are accordingly dismissed."

In view of the above, these writ petitions are dismissed in terms of the judgment dated 08.12.2020 passed by the Division Bench of this Court at Jaipur Bench in Satveer Chaudhary vs. State of Rajasthan & Ors. (DBCWP No.10936/2020), and other connected writ petitions (supra). Stay petitions also stand dismissed."

2. In view of the above, this writ petition is dismissed in the

same terms of the judgment dated 11.01.2021 passed by the

Coordinate Bench of this Court in the case of Balveer Bana Vs.

State of Rajasthan (supra). Stay petition is also dismissed.