Ramji Prasad v. State of Jharkhand & Ors.

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO …......... : Mr. Anil Kumar, Sr. Advocate. Ms. Chandana Kumari, Advocate. : Mr. Rahul Saboo, S.C.-I. Mr. Gaurang Jajodia, A.C. to S.C.-I. Mr. Jagdeesh, A.C. to S.C.-I. Mr. Prambir Singh, A.C. to S.C.-I. ........ 04/14.03.2022. Heard, learned senior counsel, Mr. Anil Kumar assisted by learned counsel for the petitioner, Ms. Chandana Kumari and learned counsel for the respondents / State, Mr. Rahul Saboo, S.C.-I assisted by Associate Counsels, Mr. Gaurang Jajodia, Mr. Jagdeesh and Mr. Prambir Singh. Petitioner, Ramji Prasad, son of Awadh Bihari Sahu, resident of Radium Road, Near Maharaja Hotel, P.O. - Ranchi, P.S. - Sadar, District – Ranchi, has preferred this writ petition for quashing the order dated 13.08.2010 passed by Member, Board of Revenue, Jharkhand, in Excise Revision Case No. 22 / 2008 (Annexure-9), whereby the revision application preferred by the petitioner for refund of license fee amounting to Rs. 33,60,736/-, deposited by the petitioner for the financial year 2007-8 for manufacturing and wholesale supply of country liquor in the district of Singhbhum East, Jharkhand for the period from 01.04.2007 to 31.03.2008 has been dismissed. Learned senior counsel for the petitioner, Mr. Anil Kumar has submitted that pursuant to tender notice published for the grant of exclusive privilege of the manufacture and wholesale supply of country liquor in bottles for the period 01.04.2005 to 31.03.2008, the petitioner was granted exclusive privilege for manufacturing and wholesale supply of country liquor in the district of East Singhbhum, Jamshedpur and the petitioner has deposited license fee as contemplated in Form-27 has been issued in favour of the petitioner. -2- Learned senior counsel for the petitioner, Mr. Anil Kumar has further submitted that so far for the financial year 2005-06 and 2006- 07 are concerned, there were no dispute, but for the period from

01.04.2007 to 31.03.2008, no retail license has been issued by the Government of Jharkhand, as such, petitioner could not supply the liquor and thus, license fee to the tune of Rs. 33,60,736/- ought to have been refunded in view of Section 39 of the Bihar & Orissa Excise Act, 1914 adopted by the State of Jharkhand. Learned senior counsel for the petitioner, Mr. Anil Kumar has further submitted, that there was a condition precedence for the licensee, which has been incorporated at Clause-8 i.e. Internal Page- 2 of the license, granted vide Excise Prapatra No. 27, which has been brought on record at Page No. 30 of the writ petition, i.e. Annexure-1. Clause-8 of Excise Prapatra No. 27 may profitably be recorded hereunder :- “8- bl ykbZlsal ds v/khu 'kjkc dh fcØh le;≤ ij dsoy mUgha O;fDr;ksa (vkxs vuqKfIr izkIr foØsrk ds :i esa fofufnZ"V) ds lkFk dh tk;sxh tks fofgr izi= esa ikjd is'k djsaxs vkSj ftlesa muds gkFk 'kjkc cspus dk mUgsa izkf/kdkj fn;k x;k gS vkSj buds gkFk dsoy mlh izdkj@ izdkjksa dh v©j mruh gh ek=k esa 'kjkc dh fcØh dh tk;sxh tks ,sls ikjdksa esa mfYyf[kr gksa] mlls vf/kd ughaA ” Learned senior counsel for the petitioner, Mr. Anil Kumar has further submitted that the Board of Revenue has also admitted the same in the impugned order dated 13.08.2010, which is in internal page no. 2 at page No. 107 of the brief, may profitably be quoted hereunder:- “The fact of the case remains that the government in fact failed to appoint any retailer licensee who would have been able to lift the business stock of the present applicant.” Learned senior counsel for the petitioner, Mr. Anil Kumar has further submitted that the Board of Revenue has not passed any order for refunding the amount on the basis of doctrine of estoppel and in -3- view of understanding of the Member, Board of Revenue, that provisions of Section 39 of the Act, the Board has only limited power to reduce the amount of fee payable in respect of (thereof) due to unexpired portion by the Government. Learned senior counsel for the petitioner, Mr. Anil Kumar has further submitted, that it is wisdom of the Member, Board of Revenue to read the act in such manner, but the Member, Board of Revenue, though have considered the fact that for the financial year 2007-08 admittedly from 01.04.2007 to 31.03.2008, there was no appointment of retailer, but the Board of Revenue has not passed any order for refunding the amount, as such, the amount may be refunded which has been deposited for the financial year 2007-08, which has wrongly been considered by Board of Revenue and the writ petition may be allowed along with statutory interest of nationalized bank on the aforesaid amount from date of submission till the date of reimbursement. Learned counsel for the respondents / State, Mr. Rahul Saboo, S.C.-I assisted by his associate counsels, Mr. Gaurang Jajodia, Mr. Jagdeesh and Mr. Prambir Singh has submitted that counter affidavit has already been filed in this matter by Dr. Rakesh Kumar, son of Late Virendra Kumar Singh, Assistant Commissioner of Excise, East Singhbhum, Jamshedpur on 04.05.2011. Thereafter supplementary counter affidavit has been filed by Pravin Kumar Rana, son of Bisheshwar Rana, Excise Inspector, Jamshedpur on 14.01.2022, where they have categorically provided a list of settlement for the period from 01.07.2004 to 31.03.2007, which have been brought on record as Annexure-A to the supplementary counter affidavit dated

14.01.2022 from page no. 9 onwards. In reply, learned counsel for the petitioner has submitted that the respondents / State, have not categorically stated that for the financial year 2007-08, there was any retail license issued by the State of Jharkhand or not, but the contention of the petitioner has been endorsed by Annexure-A to the Counter Affidavit, as such, this Court may pass necessary order. -4- Considering the rival submission of the parties, looking into facts and circumstances of the case, this Court considered that the orders passed by the Member, Board of Revenue, which is assailed before this Court, is not sustainable in the eyes of law as Member, Board of Revenue as well as State of Jharkhand has not disputed the contention of the petitioner. The respondents / State has admitted that for the financial year 2007-08 a sum of Rs. 33,60,736/- has been deposited as a license fee for the financial year 2007-08 and State Authorities have not granted any license with regard to retail shop, as such, it was not the fault of the petitioner for non-supply of manufactured liquor. Thus, the amount, which was deposited by the petitioner is fit to be reimbursed in the form of refund or in the form of remission under Section 39 of the Bihar and Orissa Excise Act, 1914, adopted by State of Jharkhand. Accordingly, the order dated

13.08.2010 passed by the Member, Board of Revenue, Jharkhand in Excise Revision Case No. 22 / 2008 is set aside. This Court is surprised that even the Board of Revenue has considered the fact that for the year 2007-08, which starts from

01.04.2007 to 31.03.2008, the State Government in view of Clause- 8 of Form – 27 has not issued any license to the retailer, as such, the license fee, which was deposited by the petitioner for the year 2007- 08 to the tune of Rs. 33,63,736/- must be remitted under Section 39 of the Bihar and Orissa Excise Act for the non-utilized period of 2007-08. Accordingly, this Court allowed the writ petition directing the respondent / State to refund the said amount along with statutory interest of a nationalized bank from the date of deposit till the date of disbursement. Sunil/- (Kailash Prasad Deo, J.)