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Haru Vs. the State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 1128 of 1972
Judge
Reported in1977WLN(UC)381
AppellantHaru
RespondentThe State of Rajasthan and ors.
DispositionPetition dismissed
Excerpt:
.....on that ground as well.;(e) constitution of india - article 226--and rajasthan excise act 1952 shortfall of guarantee amount on account of less supply--held, it is a question of fact and cannot be decided in extra ordinary jurisdiction.;writ dismissed - - 10,760 82. it appears that the district excise officer, nagaur issued a notice to the petitioner to deposit the said amount within 15 days of the receipt of the notice the notice is undated however, the petitioner then received a notice dated 18-1-69 issued by the sub-divisional officer, didwana under he rajasthan public demands recovery act, 1952, asking the petitioner to deposit the aforesaid amount by 4-2-1969, on failure of which the amount was directed to be realised by means of attachment. however, according to clause 2 of..........however cancelled on, 13-1-66, and the state raised, a demand of rs. 13,300.82 paise on account of short fall in the minimum amount guaranteed after adjusting the amount of security the state proceeded to realise the amount of rs. 10,760 82. it appears that the district excise officer, nagaur issued a notice to the petitioner to deposit the said amount within 15 days of the receipt of the notice the notice is undated however, the petitioner then received a notice dated 18-1-69 issued by the sub-divisional officer, didwana under he rajasthan public demands recovery act, 1952, asking the petitioner to deposit the aforesaid amount by 4-2-1969, on failure of which the amount was directed to be realised by means of attachment. the tehsildar, didwana appears to have then issued another notice.....
Judgment:

M.L. Jain, J.

1. The petitioner obtained a licence for retail vend of country liquior on a basis of minimum guarantee of sale of Rs. 25,370/- for the year 1965-66. He deposited a security amount of Rs. 2540/-. His licence was however cancelled on, 13-1-66, and the State raised, a demand of Rs. 13,300.82 Paise on account of short fall in the minimum amount guaranteed After adjusting the amount of security the State proceeded to realise the amount of Rs. 10,760 82. It appears that the District Excise Officer, Nagaur issued a notice to the petitioner to deposit the said amount within 15 days of the receipt of the notice The notice is undated However, the petitioner then received a notice dated 18-1-69 issued by the Sub-Divisional Officer, Didwana under he Rajasthan Public Demands Recovery Act, 1952, asking the petitioner to deposit the aforesaid amount by 4-2-1969, on failure of which the amount was directed to be realised by means of attachment. The Tehsildar, Didwana appears to have then issued another notice dated 7-6-72 to the petitioner that since he was a defaulter, his lands were attached and the Collector had directed sale by auction of the cultivatory rights of the said ands. The Tehsildar directed the petitioner to refrain from cultivation and he fixed. 17-6-72 for auction of the rights of cultivation for that, year. On 13-6-72, the petitioner filed the present petition praying that the aforeseid demand and the notices be quashed. It was further prayed that the recovery proceedings under Public Demand Recovery Act, 1952, before the Collector, Nagaur and Tehsildar, Didwana be also quashed. He also prated that the amount of security of Rs. 2,540/- be directed to be refunded. The petitioner also raised a question that the terms of the Licence providing a minimum guarantee for sale was unconstitutional.

2. The State in its reply has said that the matter regarding constitutionality of the licence has been set at rest by the Supreme Court on 1-8-75 in Pannalal's case. According to the terms of the licence contained in para 2 (ka) and (gha) para 24 (ka) and (ga) and para 19, the District Excise Officer was entitled to cancel the licence and also to recover the short fall of the guaranteed amount. The learned Deputy Government Advocate has also raised some more objections. His first objection is that the licence was cancelled in the year 1966 and the recovery proceedings started some time in the year 1968 while the present petition has been filed on 13-6-72 which is highly belated. He farther contends that serveral alternative remedies were available to the petitioner under the Rajasthan Public Demands Recovery Act, 1952, and the Rajasthan Excise Act, 1950, and this petition must abate under section 68 of the Constitution (42nd Amendment) Act.

3. The learned Counsel for the petitioner conceded that a Single Bench of this Court has taken a view that the Public Demands Recovery Act; provides for an alternative remedy, but the matter is pending for consideration in an appeal before the Division Bench The petitioner became aware of the recovery proceedings on when he received the notice of auction of his lands and he filed this petition soon thereafter. There hive thus, been no laches.

4. The constitutionality of the licence is no more in question. However, according to Clause 2 of the licence in question, the licensee was required every month to lift liquor of the value of 1/12th of the total guaranteed amount If he failed to do so, then he is required to make up the short fall of one month by the 10th day of the next month. In case the licensee fails to male up the deficit, it can be deducted from the cash security and can also be recovered from his property. Clause 19 provides that if the licensing authority at any time comes to believe inter alia that the licensee is not running the shop at all or properly or does not sell liquor in sufficient quantity to reach the minimum guarantee amount or works in a manner which is likely to cause loss to the Government or does not mike up the amount according to condition No. 2 as aforesaid, then the licensing authority is entitled to forfeit the security amount, cancel the licence and also recover the amount of short fall from the licensee Clause 24 lays down that if the licensee commits any breach of the Rajasthan Excise Act. 1950, or the Rules made there under or and instructions issued by the Excise Officer, then his licence is liable to cancellation and the whole or part of the security amount is liable to forfeiture. Whenever a licence is cancelled under the aforesaid provisions, then the Excise Officer is entitled to auction the shop at the risk of the licensee so that if, as a result of such auction, any loss occurs to the Government, it can be recovered from the licensee or his successors. A notice was given to the petitioner by the District Excise Officer on 22-11-65 that by the end of October, 1965, the short fall of the petitioner was to the tune of Rs. 6,637.50 paise. He was required to make up this deficit by 10-12-65 and in case of default, his licence was likely to be cancelled Under Clause 24(ka). It is contended that the State Government in virtue of the aforesaid terms of the licence canceled it on 13th January, 1966,' and claimed the remaining amount of short fall due on the date of such cancellation.

5. Having considered the matter, it appears to me that the re is weight in the contention of the petitioner that by cancellation of the licence on 13-1-66, the respondents have prevented the petitioner from lifting and selling liquor any further and thus depriving him of the chance of making up the guaranteed amount. May be so, but this Court is prevented from giving him any relief in view of the amended Article 226A of the Constitution as he had several equally efficacious alternative remedies open to him before invoking the extra ordinary jurisdiction of this Court. The petitioner could file an appeal to the Excise Commissioner under Section 9A of the Rajasthan Excise Act, 1950, because the order of the Excite Officer hiving been made under a licence issued under the Act, shall be deemed to be an order passed under the Excise Act. More over, under Section 8 of the Rajasthan Public Demand Recovery Act, 1952 he could present to the Collector, a petition in the prescribed form denying his liability in whole or in part The Collector could set aside modify or vary the certificate. Section 20 of the said Act further provides that a defaulter could bring a suit to have the certificate cancelled or modified and also for any other consequential relief. Under Section 23A, an appeal lies to the Revenue Appellate Authority against the order made by the Collector under Section 8 etc. Lastly, under Section 23B, the Board of Revenue had ample powers to revise any order made under his Act by any officer subordinate to the Board. So many remedies were thus available to the petitioner but instead of availing any of them, he has come to this Court. The demand was raised in 1965 and he simply ignored its compulsiveness. He is certainly guilty of laches and his disentitled himself to any relief on that ground as well.

6. The learned Counsel for the petitioner also urged that the short fall occurred because the warehouse was unable to make the requisite supply. He also made a grievance that the procedure laid down under the Land Revenue Act his not been followed. The learned Deputy Government Advocate refuses and successfully to these contentions as these are matters of fact and have not been raised in the writ petition. I agree that these contentions cannot be allowed to be taken up.

7. For the foregoing reasons this petition abates under 42nd amendment of the Constitution and is hereby dismissed as such. Mo order as to costs.


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