Lajwani Anand vs The State of M.P. and Others

Rajendra Menon, J—This petition was filed in the year 1991, it''s pending for more than 14 years and none appears even after the case was adjourned on 10.2.2015. Considering all these factors, this Court deems it appropriate to proceed with the matter after going through the records and considering the submission made by Shri Rahul Jain, learned Dy. Advocate General.

Petitioner claims to be an old lady, residing permanently in New Delhi and it is said that with the help of finance given by her husband and other relatives, she is running the business in question. In the year 1991-92, in accordance with the excise policy of the State Government, as was existing then, auction proceedings for running the country liquor shop in the district of Mandala was notified by the State Government, amongst other, shops situated in the following places within the districts namely, Niwas, Dindori & Shahpura were offered for auction. It is said that the petitioner appeared in the auction proceedings along with her attorney and submitted her bid for various shops in the district in question and on 11.2.1991, the petitioner''s bid for running the country liquor shops in Tehsil Niwas, Dindori & Shahpura for a total license fee of Rs. 27,90,000/- was allowed. Further, various averments are made in the writ petition to say that Mandla District is a tribal dominated district and illegal manufacturing of the country liquor by the inhabitants, who are tribal in the district is pre-dominant, it is the case of the petitioner that she was ensured by the excise authorities that they will prevent manufacturing of the country liquor and illicit liquor by the tribal and, therefore, it is the case of the petitioner that she was induced to participate in the auction process and submit her bid and take the contract based on the assurance given by the respondents to say that they will prevent illicit sale of liquor in the area.

Various facts in this regard are stated in the petition and finally, it is the case of the petitioner that because of the illicit manufacturing of the liquor by the inhabitant tribal, sale of liquor in the area was much below the expectation and the price fixed by the State Government, as a result, the petitioner could not deposit the amount of licence fee in accordance with the agreement. It is said that the petitioner was induced to participate in the auction because of the promise given by the respondents. Accordingly, it is stated that the petitioner could not carry out the business and wanted to surrender the license and in accordance with the provisions of Section 33 of the M.P. Excise Act, she filed an application to the Collector on 10.5.1991 for surrendering of the license. It is stated that the petitioner carried out with the activities of running the shop for the period from 1.4.1991 till middle of May, 1991 and, thereafter, due to the aforesaid reasons that there was no business available due to illicit distillation and further on account of non-supply of country liquor in Polly Packs as promised by the State Government, she suffered the loss and had to surrender the licence. Now, it is the grievance of the petitioner that on account of the contract given to the petitioner, a Revenue Recovery Certificate has been issued for recovery of Rs. 10,24,576/- and in a Revenue Recovery Case No. 23B-26/1991-92 the order dated 6.9.1991 passed by the Collector Mandla and seeking quashment of this Revenue Recovery Certificate, this petition has been filed.

On going through the body of the writ petition, it is clear that the petitioner has come out with the following grounds to say that the petitioner had suffered the loss and could not carry out working in pursuance to the award made to her for the following reasons:

"(a) That there was large scale of illicit distillation of the liquor in the area by the tribals, which prevented the petitioner for effecting proper sale and inspite of promise given by the State Government to the petitioner, the State Government did not control this illegal activities.

(b) The petitioner surrendered the licence but inspite of surrendering of licence, the Revenue Recovery Certificate is being effected.

(c) For the area in question, nobody was willing to take the work and obtain the license because of the peculiar circumstances prevailing in the tribal area and the petitioner having accepted the challenge, she should have been given adequate time to effect the sale but as no assistance was given either by the Excise Department by constituting the flying squads for preventing illicit manufacture and use of liquor, it is case of the petitioner that she should be granted relief."

Respondent Nos. 1 to 4 have filed the reply and they have specifically denied that there was any inducement or promise given to the petitioner in the matter of controlling the illicit manufacture of liquor. On the contrary, the State Government has filed the notification Annexure-R1 dated 19th of February, 1981 to say that the entire Mandla District is declared as a Tribal District and consumption by manufacturing of liquor by the tribals for their own use to the extent indicated in the notification Annexure-R1 is permissible. It is said that all liquor contractors, who take contract in the District of Mandla are aware of this and inspite of that the petitioner is coming out with a false plea. The respondents say that the petitioner is an old lady, she may be staying in Delhi but her attorney holders and other persons, who carry out the business of liquor trading in the State of Madhya Pradesh are full fledged contractors having worked through out the State of Madhya Pradesh and they are supposed to know the ground reality with regard to supply of liquor in the district of Mandla.

Accordingly, respondents deny the contention of the petitioner that on false promise, she was induced to accept the offer and submit her tender in the District of Mandla. Respondents have filed a detailed statement from Paragraph-3 onwards in their reply to say that for the Niwas Group, three shops, the offset price was fixed at Rs. 12,03,450/-, for the Dindori and Shahpura Groups, five shops and the offset price was fixed at Rs. 17,39,730/- and in the earlier years, the amount of license fee received for these groups were Rs. 15,81,550/- and 26,75,592/-. It is said that the offset price is fixed based on the total scale of country liquor during the previous 12 months after deducting the amount of licence. Accordingly, in the return, respondents say that the fixing of offset price has been done based on the sale in the previous 12 months and the petitioner''s contention that the petitioner was induced to accept the offer on improper inducement is denied by the respondents.

That apart, by referring to Section 33 of the Excise Act, it is stated that the statutory procedure has been contemplated to enable surrender of a licence by the licence holder, which indicates issuance of one month''s notice in writing to the Collector, payment of fee payable for the licence for the entire period and, thereafter, the effect of the surrender after one month. It is said that the petitioner submitted the application for surrender on 10.5.1991 but immediately after one or four days, stopped supply for various shops between 11.5.1991 to 17.5.1991 in accordance with the tabulated chart filed in Paragraph-7. Accordingly, it is said that surrender of the licence by the petitioner was not in accordance with the requirement of Section 33 of the Act and as there was no surrender of licence in accordance with law, it is said that the State Government has proceeded to recover the amount in accordance with the statutory provisions and there is no error in the same. Accordingly, respondents say that the petitioner is not entitled for any relief.

Even though, the petitioner has filed the rejoinder, nothing new has been stated except for contending that the petitioner was deprived from working in the area because of the fault of the State Government and the peculiar situation prevailing in the area.

I have gone through the material available on record, the pleadings and the submissions made by Shri Rahul Jain, learned Deputy Advocate General and I find that the petitioner has come out with a case that Mandla District is a tribal dominated district, where there is a predominant tendency amongst the tribals to make illicit liquor for their own consumption. According to the petitioner, the entire situation arose resulting in loss to the petitioner in carrying out the business, because the State Government, even though, had promised the petitioner that they will control illicit distillation in the District of Mandla but they did not do so. Except for making a bald allegation in this regard, no evidence worth consideration is produced by the petitioner in support of the aforesaid contention. On the contrary, available on record is a notification issued by he State Government under Section 66 of the M.P. Excise Act as far back on 19th of February, 1981 notifying that Mandla being a tribal district and the inhabitant of the district, who are tribals are entitled to manufacture and distill their own country liquor for domestic consumption to the extent indicated in the notification Annexure-R1. It is seen on a perusal of this notification that such a notification is issued and made applicable not only for the District of Mandla but also to other tribal dominated districts in the State of Madhya Pradesh like, Jhabua, Sarguja, Bastar and certain areas where tribunal domination is available in the district of Dhar, Khargao and Khandawa.

It is therefore, clear that exercising the powers available under Section 66 i.e. the power to exempt person from making liquor for their personal use, the State Government has empowered the tribal in the district Mandla to manufacture the liquor to the extent permissible for domestic consumption and, therefore, no use.

The petitioner through her attorney holder and family members had participated in the process of tendering and the petitioner does not deny the assertion of the State Government that petitioner''s family is involved in liquor business in the State of Madhya Pradesh and, therefore, the petitioner was not aware of the ground reality, this contention advanced by the petitioner based on the promise given by the State Government, therefore, cannot be accepted. That apart, once the petitioner had made an offer and entered into the statutory agreement with the Excise Department in the State of Madhya Pradesh in accordance with the statutory provisions and the rules formulated under the M.P. Excise Act, 1950, the petitioner cannot on grounds, which are not permissible under law, seek for discharge from the liabilities imposed by the statute. The statutory liabilities contemplated under the Excise Act warrants the petitioner to deposit the licence fee in accordance with the agreement and contract given to the petitioner and nothing is brought to the notice of this Court to say that the petitioner can claim any exemption. The only remedy available to the petitioner was to seek surrender of the license in accordance with Section 33 of the Act. Section 33 of the Act reads as under:

"Surrender of licences" (1) Any holder of a license granted under this Act to sell an intoxicant may surrender his licence on the expiration of one month''s notice in writing given by him to the Collector of his intention to surrender the same, and on payment of the fee payable for the licence for the remainder of the period for which it would have been current put for such surrender.

Provided that if the Excise Commissioner is satisfied that there is sufficient reason for surrendering a licence he may remit to the holder thereof the sum so payable on surrender or any portion thereof.

(2) Sub-section (1) shall not apply in the case of any licence granted under Sec. 18.

Explanation- The words "holder of a licence" as used in this section include a person whose tender or bid for a licence has been accepted, although he may not actually have received the licence."

This provision contemplates that the holder of the licence may surrender the license on expiration of one month''s notice in writing given to the Collector and on payment, if payable, the license for the remainder of the period, for which it would have been in operation, except for such surrender. From the material available on record, it is clear that the petitioner submitted the application to the Collector on 10.5.1991 did not wait for one month, did not pay the licence fee, instead stopped working as per the contract immediately from 11.5.1991 itself. If the assertion made by the State Government in Paragraph-7 of the reply is taken note of, it would be seen that after submitting notice to the Collector on 10.5.1991, immediately, from 11.5.1991 upto 17.5.1991, petitioner stopped working in the area and for the following shops, the petitioner refused to carry out the work as per the contract before expiry of the statutory period of one month of giving notice under Section 33 of the Act. The days on which the petitioner stopped or closed shops are:

From the aforesaid assertion of facts, it is clear that in the case in hand, the petitioner did not carry out the work with regard to the contract in question in accordance with terms and conditions of the statutory agreement and in effecting the recovery of the loss caused to the Government in the licence fee by taking recourse to the remedy available under law, the State Government has not committed any error, which warrants consideration.

Accordingly, finding no ground to interfere, the petition stands dismissed.