Smt. Jiyo Devi vs The State Of Rajasthan
2023 Latest Caselaw 4603 Raj

[2023/RJJD/013745]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 3991/2022

Riya Purbia D/o Shri Bharat Raj Purbia, Aged About 27 Years, R/o House No. 16, Krishi Mandi Ke Samne, Savina, District Udaipur (Raj.).

----Petitioner Versus

1. State Of Rajasthan, Through Excise Commissioner, Rajasthan, Udaipur.

2. The District Excise Officer, Udaipur.

----Respondents Connected With S.B. Civil Writ Petition No. 4465/2022 Smt. Jiyo Devi W/o Shri Gena Ram, Aged About 68 Years, By Cate Jat, R/o Adarsh Chawa, Tehsil And District Barmer (Raj.).

----Petitioner Versus

1. The State Of Rajasthan, Through The Principal Secretary (Finance), Secretariat, Jaipur.

2. The Commissioner, Excise Department, Udaipur, Rajasthan.

3. The District Excise Officer, Barmer.

                                                                      ----Respondents


For Petitioner(s)              :     Mr. Vijay Bishnoi.
For Respondent(s)              :     Mr. M.S. Singhvi, Senior Advocate &
                                     Advocate General assisted by
                                     Mr. K.S. Lodha.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 05/05/2023 Pronounced on 15/05/2023

1. These writ petitions under Article 226 of the Constitution of

India have been preferred claiming the following reliefs:

[2023/RJJD/013745] (2 of 12) [CW-3991/2022]

S.B. Civil Writ Petition No. 3991/2022:

"It is, therefore, most humble prayed that this writ petition may kindly be allowed with cost and by and appropriate writ, order or direction; (i) the respondents may kindly be directed to renewal the license of the petitioner for composite liquor shop No.15 of Udaipur comprising area of Chetak Circle, Pahadi Bus Stand, UIT, Bhopaalpura, Shastri Circle, Court Circle, Udaipur for further financial year 2022-2023 and 2023-2024 after taking the increased amount as fixed under the point No.2.5.3 of Excise and Temperance Policy for year 2022- 2023 and 2023-2024 on the annual guarantee amount of Rs.81,82,444/- of year 2021-2022 and (ii) respondents may kindly be directed to issue the license of composite liquor shop located at Chetak Circle, Pahadi Bus Stand, UIT, Bhopalpura, Shastric Circle, Court Circle of Udaipur in favor of the petitioner for financial year 2022-2023 and 2023-2024 after permitting her to deposit renewal fees as per Excise and Temperance Policy for year 2022-2023 and 2023-2024.

Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favor of the petitioner.

Costs of the writ petition may kindly be awarded to the petitioner."

S.B. Civil Writ Petition No. 4465/2022:

"It is, therefore, most humbly and respectfully prayed that the record of the case may kindly be called for and:

i) by an appropriate writ, order or direction, the respondents may kindly be directed to renew the petitioner's license in pursuance of Clause 1 of the excise policy dated 06.02.2021 (Annxure-1) while considering the Minimum Reserve Price as Rs.60,06,240/- with its 25% increased Amount for said shop's renewal for year 2022- 2023.

[2023/RJJD/013745] (3 of 12) [CW-3991/2022]

ii) Any other writ, order or direction which this Hon'ble Court deems fit, just and proper in the interest of equity and justice in favour of the petitioner may kindly be passed."

2. For the sake of brevity and convenience, the facts are being

taken from the above-numbered SBCWP No.3991/2022, while

treating the same as a lead case.

3. Brief facts of the case, as placed before this Court by learned

counsel for the petitioner, are that the respondents issued the

Rajasthan Excise Policy for the year 2021-22, and invited

applications for issuance of license for composite liquor shops at a

minimum reserve price (fixed for 12 months). The petitioner was

declared as the highest bidder, with a bid to the tune of

Rs.81,82,444/-, as against the reserved price of Rs. 81,72,444/-,

and accordingly, liquor Shop no. 15, Chetak Circle, Pahadi Bus

Stand, UIT, Bhopalpura, Shastri Circle, Court Circle, Udaipur was

allotted to the petitioner.

3.1. The respondents, on 05.02.2022, issued the Rajasthan

Excise and Temperance Policy for the years 2022-23 and 2023-24,

and that, on 28.02.2022, some amendments were incorporated in

the said Policy. The respondents again amended the Policy on

07.03.2022 and extended the last date for renewal of the earlier

license upto 11.03.2022.

3.2. The petitioner filed an application on 09.03.2022 before the

District Excise Officer, Udaipur through Excise Inspector Circle,

Udaipur for renewal of license for the years 2022-23 and 2023-24,

as per the point no.2.5.3 of the aforementioned amended Excise

Policy.

[2023/RJJD/013745] (4 of 12) [CW-3991/2022]

4. However, aggrieved by the non-renewal of the license for the

years 2022-23 and 2023-24, as per the amended Excise Policy

(WP No.3991/2022) and in pursuance of Clause 1 of the Excise

Policy dated 06.02.2021 (WP No.4465/2022), by the respondents,

the petitioners have preferred these writ petitions claiming the

afore-quoted reliefs.

5. Learned counsel for the petitioners submitted that as per

point no. 2.5.3 of the aforementioned Policy, the respondents gave

a choice to the existing license holder for renewal of license for

years 2022-23 and 2023-24, who gave duly cleared all dues upto

28.02.2022.

5.1. Learned counsel further submitted that as per the point no.

2.5.3 of the aforementioned Policy, the annual guarantee amount

was less than Rupees One Crore for the year 2021-22, and if the

license holder deposits 12 % increased amount of highest bid of

the year 2021-22 with Rs. 75,000/- towards renewal fees, is

entitled for renewal of license, and therefore, since the petitioners

have no dues for the year 2021-22, and had already deposited the

requisite 12 % increased amount for renewal of shop in question,

they were entitled for the necessary renewal.

5.2. Learned counsel also submitted that in the year 2021-22,

once the earlier highest bidder chose to discontinue with the shop

in question, the respondents conducted fresh auction and the shop

in question was allotted to the petitioner on minimum reserve

price; and thus, thereafter, the respondents ought not to have

increased the amount on proportionate basis or on the basis of the

earlier bid, as given by the said earlier bidder. Therefore, as per

[2023/RJJD/013745] (5 of 12) [CW-3991/2022]

learned counsel, such action of the respondents, being highly

illegal, is unsustainable in the eye of law.

6. On the other hand, Mr. M.S. Singhvi, learned Senior

Advocate and Advocate General assisted by Mr. K.S Lodha

appearing on behalf of the respondents, while opposing the

aforesaid submissions made on behalf of the petitioners,

submitted that the petitioners have not challenged the Excise and

Temperance Policy of 2022-2024, and not even challenged the

relevant clause of the Policy of 2022-2024; the previous Policy of

2021-2022 came to an end on 31.03.2022, and therefore, the

present petitions, being not maintainable, are liable to be

dismissed.

6.1. It was further submitted that the petitioners were granted

sanction to operate the shop(s) in question upto 31.03.2023; the

license(s), as granted to the petitioners, had expired, and the

same was not renewed for the year 2023-24, as the petitioner did

not duly apply for the same. It was also submitted that the

petitioners failed to submit the online application by the last date

and also the petitioners did not comply with the term and

conditions of the Policy of 2022-24 and the advertisement dated

16.02.2022, by depositing the advance guarantee amount, as

required.

6.2. It was further submitted that the petitioner in WP

No.3991/2022 though claimed to have visited the office of the

respondent-Department and submitted the application for

renewal, but the said petitioner deliberately did not produce the

copy of advertisement dated 16.02.2022.

[2023/RJJD/013745] (6 of 12) [CW-3991/2022]

6.2.1. As regards, the petitioner in WP No.4465/2022, it was

submitted that the averment made in the writ petition by the

petitioner therein that he had approached the respondent-

Department with a request for renewal of the license on the basis

of minimum reserve price as per the Policy dated 06.02.2021, is

bereft of any supporting material.

6.3. It was further submitted that there is no fundamental right

available to the petitioners to carry on the trade in liquor. It was

also submitted that the trade in liquor is the exclusive privilege of

the State Government.

6.4. It was further submitted that as per Section 37 of the

Rajasthan Excise Act, 1950, there is complete prohibition on the

right of a person to claim renewal of a license, and that, the State

Government has exclusive right to take decision in the interest of

the Revenue.

The said Section 37 is reproduced as hereunder:

"37. No renewal of licence or compensation on determination or nonrenewal of licence claimable.- No person to whom a licence has been granted under this Act shall have any claim to the renewal of such licence, or to any claim for compensation on the determination or non-renewal thereof."

6.4.1. In support of such submission, reliance was placed on the

judgment rendered by the Hon'ble Apex Court in the case of

State of Punjab & Ors. Vs. Devans Modern Brewaries Ltd. &

Ors. (2004) 11 SCC 26; and the judgment rendered by a

Division Bench of this Hon'ble Court at Jaipur Bench in the case of

[2023/RJJD/013745] (7 of 12) [CW-3991/2022]

M/s Lucky Wines Vs The State of Rajasthan & Ors. (D.B.

Civil Writ Petition No. 2993/2021, decided on 24.03.2021)

Relevant portion of the judgment rendered in M/s Lucky Wines

(Supra), is reproduced as hereunder-:

"23. On bare reading of the above clause, it is clear that the phrase used with regard to renewal of license is '' uohuhdj.k fd;k tk ldsxk'' which necessarily implies that the licenses issued in the policy may be renewed or may not be renewed. If the promise was to be made for mandatory renewal of the licenses, obviously the phrase ''uohuhdj.k fd;k tk;sxk'' was used in place of the phrase ''uohuhdj.k fd;k tk ldsxk''. It is not open to substitute the phrase''uohuhdj.k fd;k tk ldsxk'' with the phrase''uohuhdj.k fd;k tk;sxk''. Thus, the above clause does not confer any right on the petitioners to rightfully claim the renewal of their licenses or it does not cast the obligation upon the State Government to renew the licenses of the petitioners mandatorily. Therefore, it is clear that no promise was made by the State Government to renew the licenses positively.

24. It is well settled legal position that the principle of promissory estoppel can only be applied where some promise is in unequivocal terms but in this case, in view of the above interpretation of clause 1 of the excise policy, the principle of promissory estoppel is not applicable and accordingly, in the absence of any promise by the State Government, the question of legitimate expectation to the petitioners does not arise at all.

25. It is also pertinent to note that the principle of promissory estoppel is not applicable against the statute. In this case Section 37 of the Act of 1950 strictly prohibits the petitionerslicensees to claim renewal of their licenses therefore, being no promissory obligation for renewal on the part of the state and in light of this statutory restriction, the principle of promissory estoppel cannot be applied in this case.

26. It cannot be disputed that no one has a fundamental or legal right to trade in liquor. It is only the State Government which can grant the licenses for the purpose after taking a proper policy decision regarding necessary modalities. Such policy decision of

[2023/RJJD/013745] (8 of 12) [CW-3991/2022]

the State Government cannot be interfered with by the Courts unless the same can be termed as arbitrary, unfair, unreasonable or violative of fundamental rights of the citizens.

27. In this regard, it is pertinent to note that the State Government has not issued the new policy with similar terms but the fact remains that the new policy for the year 2021-22 has been issued with material changes, with the object to augment the excise revenue, the process of auction has been adopted to issue the licenses in place of existing process of lottery. To increase the business of each licensee, composite licenses for country made liquor and IMFL are being issued for every shop instead of existing separate licenses for both types of liquor. The number of licenses within the district or State have also been restricted to ensure wider participation of the public. Thus, it cannot be construed that the new policy has been issued in arbitrary, unfair and unreasonable manner or to defeat the fundamental or legal rights of the petitioners or other persons."

6.5. While contending that the petitioners are guilty of forgery,

concealment and misstatement of facts, reliance was placed on

the judgment rendered by a Division Bench of this Hon'ble Court

at Jaipur Bench in the case of Nitish Kumar Verma Vs. The

State of Rajasthan & Ors. (D.B. Civil Writ Petition No.

4928/2022, decided on 05.05.2022); relevant portion of which is

reproduced as hereunder:

"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

[2023/RJJD/013745] (9 of 12) [CW-3991/2022]

record whereby they 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 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.

[2023/RJJD/013745] (10 of 12) [CW-3991/2022]

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."

7. Heard learned counsel for the parties as well as perused the

record of the case, alongwith the judgments cited at the Bar.

8. This Court observes that the petitioners, being the highest

bidders, were allotted the composite liquor shop(s) in the year of

2021-22 as highest bidder; whereafter, the respondents issued the

Rajasthan Excise and Temperance Policy for the year 2022-24

after taking the increased amount as fixed under Clause 2.5.3 of

the said Policy.

The said clause 2.5.3 is reproduced as hereunder:

"2.5. uohuhdj.k dh izfdz;k % 2.5.1 & 2.5.2 . . . . .

2.5.3. uohuhdj.k dh izfd;k esa o'kZ 2021&22 ds fy;s fu/kkZfjr okf'kZd xkj.Vh jkf"k ;k efnjk ds okLrfod mBko dh jkf"k (actual lifting)] tks Hkh vf/kd gks] dks fuEufyf[kr rkfydk esa fn;s x;s izfr'kr ds vuqlkj c<+kdj o"kZ 2022&23 ds fy;s okf"kZd xkj.Vh jkf'k dk fu/kkZj.k fd;k tk,xk& o"kZ 2021&22 dh okf"kZd xkj.Vh jkf'k ;k Izfr'kr uohuhdj.k Qhl okLrfod mBkko jkf'k] tks Hkh vf/kd gks ¼:i;s½ o`f) ¼:i;s½ ¼1½ ¼2½ ¼3½ ,d djksM+ rd 12 75]000 1 djksM+ ls vf/kd ,oa 2 djksM+ rd 11 1 yk[k 2 djksM+ ls vf/kd ,oa 3 djksM+ rd 10 1-25 yk[k 3 djksM+ ls vf/kd ,oa 4 djksM+ rd 9 1-50 yk[k 4 djksM+ ls vf/kd ,oa 5 djksM+ rd 8 1-75 yk[k 5 djksM+ ls vf/kd 7 2 yk[k

[2023/RJJD/013745] (11 of 12) [CW-3991/2022]

fdlh nqdku ds o"kZ esa ,d ls vf/kd ckj fuykeh gksus ;k iw.kZ o"kZ ls de vof/k esa lapkyu dh fLFkfr esa ml nqdku ds fy;s izkIr vf/kdre fcM jkf'k ;k lapkyu vof/k esa efnjk ds okLrfod mBko ds vk/kkj ij vkuqikfrd :i ls x.kuk dj okf"kZd mbkko dh vakadfyr jkf'k] tks Hkh vf/kd gks ds vk/kj ij mi;qZDr rkfydk ds dkWye la[;k ¼1½ dh jkf'k dk fu/kkZj.k fd;k tk;sxkA "

9. This Court further observes that the petitioners have not

challenged the Policy in question and also did not challenge any

specific condition thereof before this Hon'ble Court. This Court also

observes that the renewal cannot be claimed and granted against

the terms and conditions of the Policy. Thus, the renewal of

license(s), as prayed for in the present petitions, clearly runs

contrary to the Policy.

10. This Court further observes that as per the submissions

made on behalf of the respondents, firstly, the petitioners have

not submitted the requisite applications/forms for renewal of

licenses in question, and even if it is believed that the applications

were so submitted, the same was done without attaching or

enclosing the requisite documents as per the Policy in question.

11. This Court also observes that the renewal of license falls

under the exclusive domain of the State Government. As per

Section 37 of the Rajasthan Excise Act, 1950, "No person to whom

a licence has been granted under this Act shall have any claim to

the renewal of such licence, or to any claim for compensation on

the determination or non-renewal thereof". Therefore, it is clear

from a bare reading of the said provision of law, that renewal of

licenses in question cannot be claimed as a matter of right.

[2023/RJJD/013745] (12 of 12) [CW-3991/2022]

12. This Court further observes that the allotment and renewal of

liquor shop are not the fundamental rights, and only the State

Government has a right to grant and renew the liquor license, as

observed by the Hon'ble Division Bench in case of M/s Lucky

Wines (Supra).

13. Thus, in view of the aforesaid observations and in light of the

judgment rendered in M/s Lucky Wines (Supra), as also looking

into the factual matrix of the present case, this Court does not

find it a fit case so as to grant any relief to the petitioners in the

present petitions.

14. Consequently, the present petitions are dismissed. All

pending applications stand disposed of.

(DR.PUSHPENDRA SINGH BHATI), J.

SKant/-

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