The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 758 of 2018 ------ Narottamka Mercantile Pvt. Ltd. a company incorporated under the Indian Companies Act, 1956 having its office at 2, Joginder Kaviraj Row, 3rd Floor, Kolkata-7 through its Manager Lakhan Lal, aged about 57 years, son of Late Badho Lal, resident of Friends Colony, P.O.-Kamre, P.S. Pandra, Distrcit-Ranchi, Jharkhand. … … Appellant Versus 1.The State of Jharkhand, through Excise Commissioner, PO + PS-Dhurwa, Dist Ranchi, Government of Jharkhand 2.The Member Board of Revenue, PO + PS-Dhurwa and Dist. Ranchi, Jharkhand, Ranchi. … Respondents With L.P.A. No. 760 of 2018 ------ M/s Laxminarayan Ram Swaroop Shivhare & Company, having its office at opposite Sagar Hotel, Sakchi, Jamshedpur, represented through Akash Shivhare, aged about 48 years, son of Sri Ram Swaroop Shivhare resident of F.F. 53, Schem No. 54, Vijay Nagar, P.O. + P.S.-Vijay Nagar, District-Indore, State-Madhya Pradesh. … … Appellant Versus of Jharkhand, 1.The State the Excise Commissioner, Government of Jharkhand, PO + PS- Dhurwa, Dist Ranchi, 2.The Member Board of Revenue, PO + PS-Dhurwa and Dist. Ranchi, Jharkhand, Ranchi. … Respondents through With L.P.A. No. 761 of 2018 ------ M/s Laxminarayan Ram Swaroop Shivhare & Company, its office at opposite Sagar Hotel, Sakchi, having Jamshedpur, represented through Akash Shivhare, aged about 48 years, son of Sri Ram Swaroop Shivhare resident of F.F. 53, Schem No. 54, Vijay Nagar, P.O. + P.S.-Vijay Nagar, District-Indore, State-Madhya Pradesh. … … Appellant Versus 1.The State the Excise Commissioner, Government of Jharkhand, PO + PS- Dhurwa, Dist Ranchi, of Jharkhand, through 2 2.The Member Board of Revenue, PO + PS-Dhurwa and Dist. Ranchi, through Excise Commissioner, Jharkhand, Ranchi. … … Respondents with L.P.A. No. 762 of 2018 ------ K.D. Liquor & Fertilizers Pvt. Ltd. 503, N.P. Center, Dak Bunglow Road, Patna through its Manager Binod Kumar, aged about 42 years, S/o Late Baleswhar Yadav, Residnet of Piska More, Bank Colony, P.O. + P.S. Hehal, District- Ranchi. … … Appellant Versus 1.The State Commissioner, Government of Jharkhand. 2.The Member Board of Revenue, Jharkhand, Ranchi. of Jharkhand, through the Excise … … Respondents with L.P.A. No. 763 of 2018 ------ Abbu Sama @ Abbu Sama, aged about 60 years, Son of Late Sheikh Jalil, Resident of Bajarapara P.O and & P.S. Mihijim, District-Jamtara, Jharkhand. … … Appellant Versus of Jharkhand, the Excise 1.The State Commissioner, Government of Jharkhand, PO + PS- Dhurwa, Dist Ranchi, 2.The Member Board of Revenue, PO + PS-Dhurwa and Dist. Ranchi, Jharkhand, Ranchi.… … Respondents through with L.P.A. No. 764 of 2018 ------ Radhey Biscuits Pvt. Limited, a registered company incorporated under the Company Act, having its office at -2 Joginder Kaviraj Row, 3rd Floor, Kolkata, represented through Akash Shivhare, aged about 48 years, son of Sri Ram Swaroop Shivhare resident of F.F. 53, Schem No. 54, Vijay Nagar, P.O. + P.S. – Vijay Nagar, District-Indore, State-Madhya Pradesh. … … Appellant Versus the Excise 1.The State Commissioner, Government of Jharkhand, PO + PS- Dhurwa, Dist Ranchi, of Jharkhand, through 3 2.The Member Board of Revenue, PO + PS-Dhurwa and Dist. Ranchi, Jharkhand, Ranchi.… … Respondents with L.P.A. No. 765 of 2018 ------ M/s Laxminarayan Ram Swaroop Shivhare & Company, having its office at opposite Sagar Hotel, Sakchi, Jamshedpur, represented through Akash Shivhare, aged about 48 years, son of Sri Ram Swaroop Shivhare resident of F.F. 53, Schem No. 54, Vijay Nagar, P.O. + P.S.-Vijay Nagar, District-Indore, State-Madhya Pradesh. … … Appellant Versus 1.The State Commissioner, Government of Jharkhand. 2.The Member Board of Revenue, Jharkhand, Ranchi. of Jharkhand, through the Excise … … Respondents with L.P.A. No. 766 of 2018 ------ M/s Laxminarayan Ram Swaroop Shivhare & Company, M/s Laxminarayan Ram Swaroop Shivhare & Company, having its office at opposite Sagar Hotel, Sakchi, Jamshedpur, represented through Akash Shivhare, aged about 48 years, son of Sri Ram Swaroop Shivhare resident of F.F. 53, Schem No. 54, Vijay Nagar, P.O. + P.S.-Vijay Nagar, District-Indore, State-Madhya Pradesh. … … Appellant Versus of Jharkhand, 1.The State the Excise Commissioner, Government of Jharkhand, PO + PS- Dhurwa, Dist Ranchi, 2.The Member Board of Revenue, PO + PS-Dhurwa and Dist. Ranchi, Jharkhand, Ranchi.… … Respondents through With L.P.A. No. 769 of 2018 M/s Laxminarayan Ram Swaroop Shivhare & Company, its office at opposite Sagar Hotel, Sakchi, having Jamshedpur, represented through Akash Shivhare, aged about 48 years, son of Sri Ram Swaroop Shivhare resident of F.F. 53, Schem No. 54, Vijay Nagar, P.O. + P.S.-Vijay Nagar, District-Indore, State-Madhya Pradesh. … … Appellant Versus 4 of Jharkhand, 1.The State the Excise Commissioner, Government of Jharkhand, PO + PS- Dhurwa, Dist Ranchi, 2.The Member Board of Revenue, PO + PS-Dhurwa and Dist. Ranchi, Jharkhand, Ranchi.… … Respondents through ------- CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE SUBHASH CHAND ------- For the Appellants For the State : : Mr. Satyabir Bharti, Advocate Mr. Abhishek Kumar, Advocate Mr. Ratnesh Kumar, SC (L&C)-I Per Sujit Narayan Prasad, J: Order No. 18/Dated 28th March, 2023 Since all these intra-court appeals are arising out of common order/judgment, therefore, with the consent of learned counsel for the parties they are taken up together and are being disposed of this by this common order. 2. These intra-court appeals, under Clause 10 of the Letters Patent, are directed against order/judgment dated 31.01.2018 passed in W.P.(C) No. 943 of 2007 and analogous cases whereby and whereunder the writ petitions have been allowed holding therein that the petitioner-State may calculate the amount payable by respondent no. 2- appellants herein (licensee) and raise a demand upon the respondent no. 2-appellants and in turn the respondent no. 2-appellants were directed to pay the demand within a period of 4 weeks from the date of receipt of the demand failing which the petitioner-State will be at liberty to realize the same from the respondent no. 2-appellants in 5 accordance with law. It was further directed that till the respondent no. 2-appellants clear the dues of the
Legal Reasoning
petitioner-State arising out of the impugned judgment they shall not transfer/alienate the aforesaid immoveable properties as mentioned in their undertaking filed before this court and it will be open to the petitioner to realize the dues from the concerned respondent no. 2-appellants by all methods including from the immoveable properties of the concerned respondent no. 2-appellant of each case in accordance with law. 3. Brief facts of the case, as per the pleadings available on record, read as under: The petitioner-State came up with a new Excise Policy on 21.02.2004 for settlement of retail excise shop, which provides that all retail country and spiced country liquor shops in a district shall be clubbed together to form one group. Similarly, all retail foreign liquor, wine and beer shops in a district were to be constituted and settled in another group. Thus, in a district there were two groups of shops: (i).for country and spiced country liquor (Group-I); and (ii).for foreign liquor and beer (Group-II). Pursuant to aforesaid policy decision, a sale notification in Form-127 dated 01.06.2004 was issued inviting applications for settlement of Group-I and Group-II retail liquor shops for the block period 2004-07 6 (01.07.2004 to 31.03.2007) through tender-cum-auction. As per Clause-4 of the sale notification, for the settlement of second and third year there was requirement to increase in license fee by 10% in each year. The appellants, which are the private limited companies, who are the retail vendor licensee under different distributors, participated in the auction and were declared successful. Initially they were granted license for running shops for the year 2004-05 i.e., for the period from 01.04.2004 to 31.03.2005 which was renewed for the year 2005-06 i.e. for the period 01.04.2005 to 31.03.2006. The dispute in the present matter pertains to settlement of Group-I retail liquor shops i.e., with respect to country and spiced country liquor for the year 2005-06 onwards. It is pertinent to note that the appellants, as a retail licensee, were permitted only to supply/purchase country liquor and spiced country liquor from the contractors awarded license by the State Government for manufacture and sale of country liquor and spiced country liquor in the district concerned. It is the case of the appellants that in first year of the privilege awarded to the appellants, the appellants were getting regular supply of country and spiced country liquor but for the year 2005-06 the supply of country and spiced 7 country liquor was interrupted as tenders floated for award of contract for manufacture of spiced country liquor was not decided by the Government and price for supply of country liquor could not be fixed up-to December, 2005. In consequence thereof, even though the appellants deposited license fee but was not able to supply country liquor and spiced country liquor for sale through its retail outlet for the period concerned, which resulted into closure of its retail shops. In such circumstances, the appellants left with no alternative made an application for grant of remission of license fee before the Member Board of Revenue under Section 39 of the Bihar Excise Act, 1915 (hereinafter referred to as ‘Act, 2015’) on account of alleged non-supply of country liquor for different periods ranging from a few months to the entire license period for the license year 2005-2006 except for the days notified in advance as dry days. Similar applications for country liquor and spiced country liquor were clubbed together and numbered as Revision Case Nos. 20 to 31 of 2006 and disposed of vide common order dated 01.11.2006 allowing the prayer for remission on account of non-supply of country liquor for the period from 1st October, 2005 to 8th December, 2005 except for the days notified in advance as dry days. So far as the remission for non-supply of spiced country liquor is 8 concerned the same was allowed for the period prayed for except for the days notified in advance as dry days. Being aggrieved by the impugned order dated 01.11.2006 passed by the Member, Board of Revenue and the State of Jharkhand through Excise Commissioner, State of Jharkhand approached this Court by filing series of writ petitions, raising the issue since under the sale notification it was requirement to make requisition for supply of minimum guaranteed quota (MGQ), as per condition stipulated under Clause 20(Ka) of the sale notification but since no requisition has been made in terms thereof, therefore, as per condition stipulated under Clause 20(ka) of the sale notification the laches lies on the part of licensee-the appellants herein but the aforesaid aspect of the matter since alleged to have not been considered in right prospective by the Member Board of Revenue, as such the matter requires interference. The learned Single Judge after hearing all the writ petitions together allowed vide order 31.01.2018, reversing the order passed by the Board of Revenue, which is the subject matter of instant intra-court appeals. 4.
Legal Reasoning
Mr. Satyabir Bharti, learned counsel appearing for the appellants-licensee has submitted that the order passed by learned Single Judge suffers from patent illegality on the following grounds: 9 (I).There is no dispute that as per condition stipulated under Clause 20(ka) of the sale notification it was incumbent upon the licensee to make requisition for lifting of the minimum guaranteed quota and as such the appellants-licensee, in compliance of the aforesaid condition, has made the application seeking remission for supply of minimum guaranteed quota by making application on 31.03.2006, therefore, it is incorrect on the part of respondent-State to take the ground that there is violation of condition as stipulated under Clause 20(ka) of the sale notification but the learned Single Judge has failed to consider the fact about making application for requisition for minimum guaranteed quota as on 31.03.2006, which suffers from patent illegality. (II).The appellants-licensees had taken the ground before the Member Board of Revenue that though requisition of the lifting of minimum guaranteed quota was made on 31.03.2006 but even then there was no supply of country liquor or country spiced liquor reason being that there was no wholesale license having been operated by any wholesale licensee for the aforesaid period, as would be evident from the extract of the decision dated 27.02.2006, as appended as Annexure 2 to the rejoinder from which it is evident that none of the wholesale licensees have accepted the terms of license for carrying out the wholesale supply of country 10 liquor and spiced country liquor, therefore requisition has been made by the appellants for lifting of the minimum guaranteed quota as on 31.03.2006 and hence it is incorrect on the part of respondent-State to say there was no requisition for lifting of minimum guaranteed quota. The Member, Board of Revenue has taken into consideration the aforesaid aspect of the matter and came to the conclusion that since there was no wholesale supply either of country liquor or spiced country liquor in the State of Jharkhand from October, 2005 in the license year 2005- 06 and further even the wholesale price of country liquor was not fixed till 8th December, 2005 there was no question of any wholesale transactions in between 1st October, 2005 and 8th December, 2005, therefore, applications for remission have rightly been made by the appellants- licensees and considering that aspect of the matter order was passed in exercise of power conferred under Section 39 of the Act, 1915 for remission of license fee, but the learned Single Judge has not appreciated that aspect of the matter and merely taking the ground that Section 39 of the Act, 1915 will be only applicable in unexpired period of license without considering the fact that license was given for the block year i.e., 2004-2007 and if any remission application has been made under Section 20(ka) of the sale notification as on 31.03.2006, the same would be said to be submitted 11 in the midst of the license period reason being that license was granted for a block period of three years i.e. 2004-07 for the financial years 2004-05; 2005-06 and 2006-07, subject to enhancement of license fee of 10% annually and if any application has been made on 31.03.2006 it will be said to be made in the midst of said three block years. Therefore, the order passed by the learned Single Judge suffers from patent illegality since the same has been passed without taking into consideration the fact that license was granted for block period of three licensee years and not for individual years. (III).Further contention has been raised referring to order dated 29.08.2022 whereby the Co-ordinate Bench of this Court directed the State to come up with affidavit as to whether for the concerned period for which remission was sought on the ground that there was no wholesale dealer or supply during that period from the side of State, therefore, it was not possible for lifting liquor for that period, whether the statement is correct or not. In pursuance thereto, affidavit has been filed by the State but no specific averment has been made in response to the aforesaid order rather it has been stated that the several retailers procured country liquor and spiced country liquor from the wholesalers at the relevant time and hence it is incorrect on the part of the appellants to 12 take the ground for non-supply of country liquor or spiced country liquor without making any requisition in that respect as per the condition stipulated under Clause 20(ka) of the sale notification. It has been contended that save and except the aforesaid ground there is no averment made therein with respect to the specific query made by Co-ordinate Bench of this Court, as referred above, therefore, contention has been raised that the learned Single Judge ought to have taken into consideration the aforesaid specific finding as taken note of by the Member Board of Revenue but having not done so, gross illegality has been committed, as such order passed by learned Single Judge suffers from patent illegality. 5. Per contra, Mr. Ratnesh Kumar, learned counsel appearing for the respondents-State has submitted by referring to the condition as stipulated under Clause 20(ka) of the sale notification wherein it has been stipulated that requisition is to be made by the licensee for weekly lifting of the wholesale supply regarding appraisal of the supply and quantity to be lifted but since no weekly requisition was made before the competent authority and as such laches lies on the part of the licensees-the appellants herein since they did not make requisition in the light of condition as stipulated under Clause 20(ka) of the sale notification. 13 Therefore, it is not available for the appellants to make out a case for remission under Section 39 of the Act, 1915. It has been contended that the requisition said to have been made on 31.03.2006 is only on the last date of end of the license year and as such the same cannot be construed to be in strict compliance of the condition as stipulated under Clause 20(ka) of the sale notification and in that view of the matter if the aforesaid requisition has not been taken into consideration, by way of requisition said to have been made by the appellants, for supply of minimum guaranteed quota, it cannot be said that the same has wrongly been considered since it is not available for the appellants to make requisition on the last day of the license year. Learned counsel for the State has further submitted by referring to the provision of Section 39 of the Act, 1915 wherein it has been mandated that the application for remission can only be filed for the unexpired period of license since requisition has been made on 31.03.2006 i.e., on the last day of the end of the license year, therefore, the period of license having been expired and hence it cannto be treated to be application for seeking remission for the unexpired period of license since requisition for lifting the minimum guarantee quota has only been made on the last day of end of license year. 14 The learned State counsel therefore has advanced his argument by raising the issue of maintainability of application for remission by taking the ground that since the application was made on the last day of end of license year, therefore, it cannot be said to be unexpired period of license, as Section 39 of the Act, 1915 is only to be made applicable for the unexpired period of license but herein since application for remission has been made on the last day of end of license year, therefore, the remission application filed under Section 39 of the Act, 1915 cannot be said to be maintainable. The learned counsel for the State has further argued by referring to the averments made in the supplementary counter affidavit said to have been filed in terms of order passed by Co-ordinate Bench of this Court on 29.08.2022 wherein the averment has been made that the licensee, either country liquor or spiced country liquor, who have made the requisition for supply of country liquor or spiced country liquor had been made, as would appear from tabular chart, appended as Annexure A to the affidavit, but in the instant case, it is admitted case of the appellants-licensee that they had not made any application for lifting of minimum guaranteed quota and as such the ground of non-supply of liquor is not available to be raised on behalf of appellants. 15 Learned counsel for the State on the basis of aforesaid submission has submitted that the learned Single Judge after taking into consideration these facts since has come to the conclusive finding for reversal of the order passed by the Board of Revenue, the same suffers from no error. 6. We have heard learned counsel for the parties, perused the documents available on record and the finding recorded by learned Single Judge. The undisputed fact in this case is that there was a bid for settlement of liquor shop i.e., country liquor and spiced country liquor. The appellants participated in the process of bid and were declared successful. They have entered into agreement by virtue of sale. As per Clause-4 of the sale notification, the settlement for second and third year required increase in license fee by 10% in each year. One of the conditions as has been carved out under Clause 20(ka) which is required to be taken into consideration, is quoted as under: 20d& देशी “kjkc vuqKfIr;ksa ds fuykedzsrk dks cUnkscLrh ds mijkUr mik;qDr dks U;wure izR;kHkwr ek=k dk ekfld forj.k fooj.kh izLrqr djuk gksxkA mik;qDr fuykedzsrk }kjk izLrqr dh x;h ekfld forj.k fooj.kh ds iqujh{k.k ds fy, l{ke gksaxs vkSj mudk fu.kZ; vafre gksxkA fuykedzsrk ns”kh “kjkc dh vkiwfrZ ds fy, viuh lkIrkfgd ekax ,oa vkiwfrZ ysus dk dk;Zdze HkaMkxkj inkf/kdkjh ,oa Bsdsnkj dks fiNys ekg ds vafre lIrkg rd ns nsxk vkSj rnuqlkj izR;sd lIrkg esa vkiwfrZ ysxkA ;fn fuykedzsrk }kjk mDr jhfr ls ns”kh “kjkc dh U;wure izR;kHkwr ek=k ds vuq:i vkiwfrZ ysus ds fy, vfxze lkIrkfgd ekax dh forj.k fooj.kh izLrqr ugha dh tkrh gS rks oSlh fLFkfr esa ns”kh “kjkc 16 dh vkiwfrZ ckf/kr gksus ij og fdlh izdkj dh {kfriwfrZ vFkok vuqKk “kqYd dh okilh dk gdnkj ugha gksxkA efnjk dh vukiwfrZ dh n”kk esa u rks ljdkj }kjk fdlh izdkj dh {kfriwfrZ nh tk,xh vkSj u vuqKk “kqYd esa NwV dk dksbZ nkok Lohdkj fd;k tk;sxkA [k& fons'kh “kjkc ,oa elkysnkj ns”kh “kjkc ds izR;sd fuykedzsrk dks fons”kh “kjkc] ch;j rFkk elkysnkj ns”kh “kjkc dh fu/kkZfjr U;wure izR;kHkwr ek=k dh ekfld forj.k fooj.kh izLrqr djuk gksxkA mik;qDr fuykedzsrk }kjk izLrqr fd;s x;s ekfld forj.k dk iqujh{k.k djus ds fy, l{ke gksaxs vkSj mudk fu.kZ; vafre gksxkA x& fdlh ekg ds fy, vuqeksfnr U;wure izR;kHkwr ek=k ds vuq:i “kjkc ml ekg ds vafre dk;Z fnol rd mBk;h tk;sxhA It is evident from the said provision that one or the other licensees have to lift the minimum guaranteed quota and for lifting such quota a weekly requisition is to be made before the competent authority showing available stock and the required supply to be made in the particular week. It is further evident from the sale notification that the license is for the three block years for the period from 01.07.2004 to 31.03.2007. 6. This Court at this juncture deems it fit and proper to refer the difference in between ‘yearly license‟ and the ‘license which was issued for the block period of particular year‟. The license will be said to be block year if the settlement has been made for the period of a block year like 2, 3 or 4 etc. depending upon the condition that in the following year there will be increase of 10% in the license 17 fee. The license if issued for the block year there will be no requirement for fresh tender in between the period settlement made for the block year unless the condition stipulated under the sale notification has been violated and the license on the ground of such violation has been cancelled. While the „license for a particular year’ will be said to be said license for one license year and after expiry of license period there will be fresh bid for settlement of license afresh. Herein, in the facts of the given case, as would appear from sale notification, that the shops has been settled for three block years i.e. for the period 01.07.2004 to 31.03.2007, as would appear from condition no. 4 to the sale notification. The aforesaid license for the block period of three years will be on the basis of increase of 10 % in the 2nd and 3rd block years. It would be evident from condition no. 6 herein that the settlement so made will be operative from 01.07.2004 till 31.03.2007. Further Condition as stipulated under Section 20(ka) has also been referred hereinabove. 7. It further requires to refer herein that the sale notification is having binding force between the parties. The issue of the binding effect of the excise contract with the State fell for consideration before the Hon’ble Apex Court in the judgment rendered in Assistant Excise Commissioner 18 & Ors Vs. Issac Peter & Ors [(1994) 4 SCC 104], wherein at paragraph 14, 16 and 23, it has been held as under: “14. The contract between the parties is governed by statutory provisions, i.e., provisions of the Act, the rules, the conditions of licence and the counterpart agreement. They constitute the terms and conditions of the contract. They are binding both upon the Government and the licensee. Neither of them can depart from them. It is not open to any officer of the Government to either modify, amend or alter the said terms and conditions, not even to the Minister for Excise. It is, therefore, not really necessary for our purpose to examine what precisely was the statement made by the Minister for Excise on March 19, 1981 or by the auctioning authorities at the time of auction. Even according to the licensee, the Minister merely stated that steps will be taken in the coming days to supply requisite quantities. The statement is sought to be proved by producing a newspaper report, Deshabhimani, dated March 19, 1981. On the basis of this newspaper report, it is difficult to record a finding as to what exactly did the Minister say. In any event, even the newspaper report does not say that he held out an assurance to supply all such additional quantities as may be demanded by the licensees or additional quantities equal to previous year’s supply. All he said was that “steps will be taken” to supply requisite quantities to arrack shops — a general declaration of intent and no more. Similarly we do not know what precisely was the assurance held out by the auctioning authorities, namely, the District Collector and the Assistant Excise Commissioner who conducted the auction relating to Sultan Battery and Kalpetta ranges. According to the respondent (para 5 of WP), they “assured that necessary excess quantity of arrack should be supplied as in the previous year”. The respondents in the writ petition (appellants) have denied the said averment. The High Court has accepted the respondents’ averment in the writ petition on the ground that neither the Collector nor the Assistant Excise Commissioner filed affidavits denying the said averments. Learned Additional Solicitor General criticized the High Court’s view on the ground that the 19 Collector was not obliged to file his affidavit unless he was impleaded as a respondent’s nominee. In any event, he says, it was not competent to any of the authorities to make any promise or give any assurance over and above those contained in the statutory provisions including the rules and conditions of licence. We agree with the latter part of the submission of the learned Solicitor General. We do not wish to go into the disputed question whether any such statement was indeed made by the said officials. It is enough to note that they were not competent to hold out any such promise nor any such promise can clothe the licensees with any legally enforceable rights. We shall, therefore, go strictly by what is contained in the statutory provisions. 16. The concept of monthly quota is a well-known one in excise contracts all over the country. In several States it is called „minimum guarantee quota‟. It is true that the expression „minimum guarantee quota‟ is not used in Rule 8(1). Rule 8(1) speaks of „monthly quota‟. But if the said expression is read along with the accompanying words it would be evident that it means „minimum guarantee quota‟ alone. The first sentence in Rule 8(1) says “the monthly quota of arrack which shall be allowed for the shop”. As against this, the next sentence says “the Assistant Excise Commissioner may, however, permit the issue of arrack in excess of the announced monthly quota …”. The use of words “may” and “permit” clearly indicate a discretion in the authority. In the face of the said language, it is difficult for us to accept the contention that the State is under an obligation to supply all that quantity that is asked for by the licensee, or quantities equal to the previous years’ supply or for that matter, equal to the average of previous three year’s supplies. Reliance upon Rule 8(3) is of no help. Rule 8(3) is an independent power. Even where ample supplies are available, the Board of Revenue can yet restrict the supply of additional quota to a shop having regard to the local requirements. But Rule 8(3) cannot be relied upon to say that unless the Board of Revenue places a restriction, the Assistant Commissioner of Excise is bound to supply all that is demanded, irrespective of the availability of arrack and the requirements of other 20 licensees. No such absolute right can be recognized. This is also the view taken by this Court in State of Rajasthan v. Nandlal [1993 Supp (1) SCC 681] , and this is how it has been understood all these years. See State of M.P. v. Sunder Lal Jaiswal [1976 MPLJ 254, 263 : AIR 1976 MP 175] . Now, coming to the licensees’ right to claim rebate/remission/abatement, Rule 6(26) says that no remission or abatement in the licence fee shall be “claimable” by the licensee “on any account whatsoever”. This sub-rule should no doubt be read along with Rule 8(1), which sets out the only situation in which the duty and commission payable will be adjusted. [Of course, where the Government fails to perform its statutory obligation e.g., if it fails to supply the monthly quota referred to in Rule 8(1) it may not be open to the Government to invoke Rule 6(26).] In such a situation, it is not possible to say that in addition to the situation contemplated by Rule 8(1), there are other situations also wherein such rebate/remission or adjustment is permissible. Not only the conditions are statutory in this case but they are formally drawn in the shape of statutory rules. In such a situation, it would not be permissible to say that there was some other condition or term agreed upon or implied between the parties which is not found therein. Moreover any implied term should be consistent with the express terms of the contract and not otherwise. This principle was affirmed as far back as 1865 by Cockburn, C.J., in Churchward v. Queen [(1865-66) 1 QBD 173] . The learned Chief Justice said: “Where a contract is silent, the court or jury who are called upon to imply an obligation on the other side which does not appear in the terms of the contract, must take great care that they do not make the contract speak where it was intentionally silent; and, above all, that they do not make it speak entirely contrary to what, as may be gathered from the whole terms and tenor of the contract, was the intention of the parties. This I take to be a sound and safe rule of construction with regard to implied convenants and agreements which are not expressed in the contract.” 21 Also see Interpretation of Statutes by Lewison. Chapter V — „Implied Terms‟, page 97, para 5.02 and para 5.07 at page 106. If the express term says that the Assistant Commissioner of Excise “may permit”, an implied term cannot be inferred and read into the contract to read it as “shall permit”. Even otherwise, having regard to the context and the object underlying, there is no warrant for holding that the words “may permit” in Rule 8(1) should be read as “shall permit”. The fallacy in the contention advanced by the licensees can be demonstrated by taking a converse case. Suppose in a given year, the production of arrack is abundant. The Government has huge stocks of arrack, and they are piling up. Can the Government force and compel the licensees to lift additional quantities to clear its own stocks? Would not the licensees say in such a case that they cannot be forced to lift quantities which they are not able to sell? If they cannot be so forced, on what parity of reasoning is it claimed that even if there are no supplies with the Government, it must somehow supply the additional quantities demanded and if it cannot so supply, it is not entitled to demand the monies as per the contract? All this demonstrates amply that there is no right in the licensees to compel the Government to supply what all they demand nor has the State the right to compel the licensees to purchase all that it proposes to sell to them. We see no unreasonableness in this statement. We are of the opinion that in the absence of a statutory right in the licensees to get additional supplies demanded by him, there is no basis in law for the claim of remission or rebate. As stated by this Court in Panna Lal v. State of Rajasthan [(1975) 2 SCC 633] the onerous nature of the terms is no ground for the licensees to resile from the express obligations undertaken by them. The Court observed : (SCC p. 638, para 21) “The licences in the present case are contracts between the parties. The licensees voluntarily accepted the contracts. They fully exploited to their advantage the contracts to the exclusion of others. The High Court rightly said that it was not open to the appellants to resile from the contracts on the ground that the terms of payment were onerous. The reasons given by the High 22 Court were that the licensees accepted the licence by excluding their competitors and it would not be open to the licensees to challenge the terms either on the ground of inconvenient consequence of terms or of harshness of terms.” 23. Maybe these are cases where the licensees took a calculated risk. Maybe they were not wise in offering their bids. But in law there is no basis upon which they can be relieved of the obligations undertaken by them under the contract. It is well known that in such contracts — which may be called executory contracts — there is always an element of risk. Many an unexpected development may occur which may either cause loss to the contractor or result in large profit. Take the very case of arrack contractors. In one year, there may be abundance of supplies accompanied by good crops induced by favourable weather conditions; the contractor will make substantial profits during the year. In another year, the conditions may be unfavourable and supplies scarce. He may incur loss. Such contracts do not imply a warranty — or a guarantee — of profit to the contractor. It is a business for him — profit and loss being normal incidents of a business. There is no room for invoking the doctrine of unjust enrichment in such a situation. The said doctrine has never been invoked in such business transactions. The remedy provided by Article 226, or for that matter, suits, cannot be resorted to wriggle out of the contractual obligations entered into by the licensees.” It is, thus, evident that the contract in writing in between the appellants and the State is having binding force; meaning thereby the condition stipulated in the sale notification is to be given due compliance by both the parties i.e., the appellants and the State. The appellants had carried out its business but on 31.03.2006 a requisition was made for supply of minimum guaranteed quota. No supply was made and thereafter an application 23 was filed under Section 39 of the Act, 1915 seeking remission by approaching the Member Board of Revenue. 8. The learned Member, Board of Revenue has considered the fact in entirety and disposed of the applications holding therein: “Under such circumstances the following is ordered. 1. The applicants of all 12 cases are allowed remission of fees for licenses held by them for spiced country liquor for the period prayed for and claimed except for the days notified as dry days in advance during this period. 2. Remission as prayed for and claimed by the applicant for non supply of country liquor in Case No. 21 of 2006 relating to the District of Dhanbad is allowed except for the days notified in advance as dry days. 3. The prayer for remission for non supply of country liquor is allowed in all the remaining 11 cases for the days in which remission has been claimed for the period commencing 1" October, 2005 to 8th December, 2005 except for the days notified in advance as dry days. Case No.20 to 31 of 2006 are disposed of with the common order.” 9. Aggrieved thereof, the State filed writ petitions, being W.P.(C) No. 943 of 2007 and analogous cases, which was allowed vide order dated 31.01.2018 reversing the order passed by the learned Member Board of Revenue, against which, the instant intra-court appeals have been filed by the appellants-licensee. 10. Learned counsel for the appellants have raised the issue before this Court, as would appear from order dated 29.08.2022, that during the period remission was sought 24 for by the appellants-licensees, there was no wholesale dealer to supply during that period from the side of State and to know whether the statement made by the appellants is correct or not, the Co-ordinate Bench took cognizance of the finding so recorded by the Member Board of Revenue, wherein it has been stated that allotment of district for wholesale supply of country liquor as well as sale price was finalized by the Board in May, 2006. Allotment orders could be issued for only 10 of the 22 Districts since the matter became sub-judice, which are Garwa, Palamu, Latehar, Ranchi, Dumka, Deoghar, Sahibgunj, Godda, Pakur and Jamtara. Aggrieved thereof, number of Writ Applications being C.W.J.C. No. 2890, 2891, 2893, 2894, 1997 and 3242 of 2005 were filed before the this Court challenging the process of tendering, selection of bidders and allotment wherein a stay was granted and subsequently order of maintenance of status quo was passed. The aforesaid interim order resulted in the old wholesaler of country liquor, who held the license for the year 2004-05, continue to function by being granted extension of license from time to time. Further, this Court vide its order dated 19th July, 2005 found that the process and procedure adopted were as per the provisions of the Act and the Rules and upheld 25 the allotments made in May, 2005 and dismissed the writ petitions. The matter was also raised before a committee of the Legislative Assembly which decided to recommend cancellation of the tender process and to refer the matter to the Vigilance Department for enquiry. Accordingly, the relevant file was put up before the Board by the Excise Commissioner on 23rd July, 2005 seeking further directions. However, the Board refused to make any changes in its earlier decision. Thereafter, the file was called for by the Chief Secretary on 28th May, 2005, which was kept till 15th July, 2005 and was returned without any orders. Then the file was then called for by the Chief Minister’s Secretariat on 27th July, 2005 but was returned the next day without any orders. Then the matter was re-submitted before the Chief (Excise) Minister by the Excise Commissioner on 30th July, 2005 seeking directions. The Chief Minister ordered cancellation of tenders on 31st July, 2005. The file was re- submitted to the Chief (Excise) Minister on 23rd August, 2005 for reconsideration. The Chief Minister approved the proposal of the Department on 6th October, 2005 with the proviso that the sale prices prevalent in adjoining States be ascertained. 26 Accordingly, the Chief Minister was apprised of the sale price in neighboring States and his approval was sought for the action taken so far. The Chief Minister gave his proposal on 8th December, 2005. In the meanwhile, due to pending litigations and the confusion prevalent in the Government, the wholesale licensees of the year 2004-05 were allowed to continue functioning. This was finally stopped only after the High Court passed orders prohibiting the authorities from giving any further extension to the old licensee after September, 2005. The Member Board of Revenue on the basis of aforesaid fact has reached to the conclusion that there is utter confusion prevailed when the orders of the Board were interfered with by authorities who do not have the statutory power to do so. The sale price was finally approved by the Hon’ble Chief Minister on 8th December, 2005. 11. It further appears from the document brought on record by the appellants, which is the minutes of meeting held on 27.03.2006, as has been appended with rejoinder affidavit filed in response to the supplementary counter affidavit, wherefrom it is evident that the licensees were participated in the aforesaid meeting in the background of the rate having only been approved by the Chief Minister on 8th December, 2005 had expressed their willingness to go 27 for the fresh tender for Hazaribagh, Jamshedpur, Dumka, Ranchi and Dhanbad. It further appears from the minutes of the said meeting that so far as the Ranchi Zone is concerned even after issuance of license no objection has been issued and in consequence thereof no permit has been issued for liquor as such no manufacturing of the liquor could commence. Similar was the condition for the other zones ie., Hazaribagh, Jamshedpur and Dumka. 12. For ready reference, the contents of the minutes of meeting dated 27.03.2006, as appended as Annexure 2 to the rejoinder to the counter affidavit, is quoted as under: elkysnkj nslh ’kjkc dh Fkksd vkiwfRrZ ds ’ks"k rhu iz{ks=ksa ds vuU; fo’ks"kkf/kdkj ds fy, fnukad&27-03-06 dks lEiUu ;ksX; fufonknkrkvksa ds cSBd dh dk;ZokghA vkt fnukad&27-03-06 dks 11-00 cts iwokZg~u esa elkysnkj nslh ’kjkc dh Fkksd vkiwfRrZ ds vuU; fo’ks"kkf/kdkj ds fy, lnL;] jktLo i"kZn] >kj[k.M] jk¡ph dh v/;{krk esa ;ksX; fufonknkrkvksa ds lkFk cSBd lEiUu gqbZA cSBd esa fuEufyf[kr inkf/kdkjh ,oa fufonknkrk mifLFkr gq,A mifLFkr lnL;ksa dh lwph%& 1- Jh d‘".k fcgkjh izlkn flUgk] vk;qDr mRikn&lg&lfpoA 2- Jh v[kkSjh /kuat; dqekj flUgk] v/kh{kd mRikn …eq[;ky;‰ 3- Jh thou dqekj nkl] izks0&thou baMLV“ht Ukkedqe] jk¡phA 4- Jh jes’k dqekj fjrksfy;k] csdkj ck¡/k] /kucknA cSBd essa dqy nks ;ksX; fufonknkrk ;Fkk thou dqekj nkl ds izfrfuf/k Jh f'kf”kj nkl izkf/kdkj i= ds lkFk mifLFkr gq, vkSj lkFk gh Jh jes’k dqekj 28 fjrksfy;k mifLFkr gq,A rhljk ;ksX; fufonknkrk Jh euh’k tk;loky vuqifLFkr jgsA vk;qDr mRikn }kjk vkt gh 10-50 cts iwokZg~u esa izkIr Jh euh’k tk;loky dk i= fn[kyk;k x;k ftlesa mUgksaus Li’V :i ls lwpuk nh gS fd os viuh fufonk okil ysrs gSa ,oa fufonk laca/kh okrkZ esa fgLlk ugha ys ik,¡xsA Jh euh’k tk;loky ds bl i= ds vkyksd esa dqy ik¡p iz{ks=ksa esa ls rhu iz{ks=ksa ;Fkk>kjhckx] te”ksniqj ,oa nqedk iz{ks= ij vuU; fo”ks’kkf/kdkj ysuk ckdh jg tkrk gSA jk¡ph ,oa /kuckn iz{ks= dk vuU; fo’ks"kkf/kdkj iwoZ esa (cid:216)e’k% Jh thou dqekj nkl ,oa /kuckn dk Jh jes’k dqekj fjrksfy;k dks fn;k tk pqdk gSA cSBd esa vc rhu cps gq, iz{ks=ksa ds vkoaVu ij fopkj gksuk gSA tgk¡ rd nslh elkysnkj ’kjkc ds fy, fu/kkZfjr ewY; dk iz’u gS ;g fnukad 25-05-05 dks fu/kkZfjr fd;k tk pqdk gS ---------- fu/kkZfjr ewY; ij jk¡ph ,oa /kuckn iz{ks= dk vuU; fo”ks’kkf/kdkj ------ i=kad 833] fnukad&25-05-05 }kjk Jh thou dqekj nkl ,oa i=kad ------ fnukad&25-05-05 }kjk Jh jes’k dqekj fjrksfy;k dks fn;k --------- ewY; iqu% fu/kkZj.k ds fo’k; ij ekuuh; iVuk mPp U;k;ky; -------- (India) Vrs. State of Bihar, 1997 (1) PLJR 459 esa ----- lqlaxr gSA /kuckn iz{ks= ds fy, vuU; fo”ks’kkf/kdkj Jh jes'k dqekj fjrksfy;k dks fn;k x;k FkkA Jh fjrksfy;k }kjk lwpuk nh x;h gS fd mRikn vk;qDr ds i= la[;k&834] fnukad&25-05-05 }kjk --------- fo”ks’kkf/kdkj nsus lacaf/kr funs’k ds rgr~ vuqKfIr ----------------------- gqbZ gSA ,slh ifjfLFkfr esa ukS efguksa dh vof/k chr tkus ds i’pkr~ ------ os dk;Z izkjEHk ugha dj ik;s gSaA mUgksaus ;g Hkh cryk;k fd ---------- lguk iM+ jgk gSA vr% os cps gq, iz{ks=ksa dk vuU; fo”ks’kkf/kdkj ---------- ds fy, bPNqd ugha gSaA jk¡ph iz{ks= dk vuU; fo”ks’kkf/kdkj Jh thou dqekj nkl dks mRikn vk;qDr ds i= la[;k&833] fnukad&25-05-05 }kjk fn;k x;k FkkA Jh nkl }kjk lwpuk nh x;h fd vuqKfIr rks muds i{k esa -------- gks pqdh gS ijUrq mRiknu “kq: djus ds fy, mUgsa lq"ko ds ijfeV ------- vukifRr izek.k i= bR;kfn miyC/k djk nsus ds i’pkr~ Hkh ---------- lq’ko dk ijfeV ugha fey ik;k gSA ,slh ifjfLFkfr esa os -- ------- mRiknu izkjEHk ugha dj ik;s gSaA Jh nkl us eraO; O;Dr fd;k ---------- foyEc ds dkj.k mUgsa ?kkVk lguk iM+ jgk gS vkSj ,slh ifjfLFkfr esa os Hkh cps gq, vU; iz{ks=ksa dk vuU; fo”ks’kkf/kdkj ysus ds fy, --------- gSaA ,slh ifjfLFkfr esa vkSj dksbZ fodYi ugha jg tkrk gS ----------- fd cps gq, rhu iz{ks=ksa ;Fkk>kjhckx] te”ksniqj ,oa nqedk ds fy, -------- fufonk vkeaf=r dh tk,A Jh fjrksfy;k ,oa Jh nkl }kjk iwoZ esa ----------- fo”ks’kkf/kdkj ds laca/k esa tks fLFkfr dk o.kZu fd;k x;k gS mlds --------- dj izfrosnu nsus dk funs”k lnL;] jktLo i’kZn }kjk mRikn vk;qDr dks fn;k x;kA 29 11. This Court, on this basis of grounds raised by the parties, is framing following issues to be answered to adjudicate the lis: (I).Whether application filed under Section 39 of the Act, 1915, seeking remission under the Act, 1915, is said to be maintainable on the ground that the said application for remission of license fee has been made on 31.03.2006, said to be on the end of license year in a case of license issued for the block year for three years? (II).Whether the ground which is being taken on behalf of State of not making requisition in pursuance to the condition stipulated under Clause 20(ka) of the Sale notification will disentitle the appellants from claiming remission under Section 39 of the Act, 1915? (III).Whether the State having admitted that the manufacturers or the wholesalers of the spiced country liquor have not carried out their manufacturing processes during the relevant time and in such circumstance the question arises even though the requisition would have been made in the light of the condition stipulated under Condition no. 20(ka) can there be supply by the State in absence of any manufacturer of the country liquor and/or spiced country liquor? (IV).Whether the appellants are entitled for the remission for the period for which there was no supply/manufacture of country liquor or spiced country liquor, if the earlier manufacturer have been allowed to manufacture/supply the country liquor or spiced country liquor up-to September, 2005 30 when this Court has passed vide order dated 19th July, 2005 ordered restraining the earlier bidder to manufacture the country liquor or spiced country liquor then what would be the consequence of the claim of remission for the period October, 2005 to the end license period i.e., 31st March, 2006? 12. Since all the issues are inter-linked, as such they are taken up together to be answered. 13. So far issue of maintainability of the application under Section 39 of the Act, 1915 said to have been filed on 31.03.2006 is concerned, the reference of the provision of Section 39 is required to be made herein, which reads as under: 39.Power of Board to reduce fees. – the Board may, if it thinks fit, at any time during the period for which any license has been granted, order a reduction of the amount of fees payable in respect thereof during the unexpired portion of the grant. It is evident from Section 39 of the Act, 1915 that the power has been conferred upon the Member Board of Revenue to reduce fee, depending upon its subjective satisfaction if at any time during the period for which any license has been granted, it can order for reduction of the amount of fees payable in respect thereof during the unexpired portion of the grant. 31 The learned State counsel has given much emphasis upon Section 39 of the Act, 1915 stating that it is only applicable for the unexpired portion of grant. 14. According to the learned State counsel the application for remission was filed on 31.03.2006 i.e., on the last day of the license year, therefore, there is no unexpired period of grant, hence, there cannot be any order for reduction of amount of the fees said to be passed by the Member Board of Revenue. 15. While on the other hand, learned counsel for the appellants-licensees has submitted that the fact would be different if the license year starting from 1st April of the year and ends on the last day of March of the following year. It has been contended that in such circumstances where the license has been granted for a license year then what has been contended on behalf of State can be said to be correct. But here the matter is entirely different since the license was for the block period of three years starting from 1st July, 2004 to 31st April, 2007. Therefore, if an application was made on 31.03.2006 it will be said to be in the midst of the license period and hence the Member Board of Revenue has been conferred with the power under Section 39 to grant remission. 16. We are now proceeding to scrutinize the rival submissions and found from the statutory provision as 32 contained under Section 39 of the Act, 1915 wherein statutory mandate is that application seeking remission of the amount of fees payable in respect thereof will be for the unexpired portion of the grant; meaning thereby the remission can only be asked if there is survival of the period of grant otherwise not. Here, the facts which are not in dispute is that license is not yearly license i.e. from first day of April of the year and ending on the last day of the month of March of the following year rather the license has been granted for the block period of three years starting from 01.07.2004 to 31.03.2007, however, with the condition that for the following 2nd and 3rd year respectively, there will be 10% increase in the license fee. It is not the case of the State that the appellants had not deposited 10% of the enhanced fee, therefore, the ground cannot be taken on behalf of State that the period license will end on 31.03.2006. Otherwise the same will in violation to the terms of the contract as entered in between the appellant-licensees and the State by way of sale notification. The license since was for the block period of three years starting from 01.07.2004 to 31.03.2007, therefore, if the application has been made on 31.03.2006, the same is said to be in the midst of the license period. Therefore, the 33 stipulation so made in Section 39 of the Act, 1915 will be said to have been complied with, as would be evident from the provision as contained under section 39 wherein it has been stipulated „at any time during the period for which any license has been granted, order a reduction of the amount of fees payable in respect thereof during the unexpired portion of the grant‟. The phrase „at any time during the period for which any license has been granted‟ will have its implication since the license for the period is the subject matter for consideration of remission for unexpired portion of grant; meaning thereby the period is to be taken into consideration and in the given facts of the case the period is from 01.04.2004 to 31.03.2007, subject to required enhancement in license fee by 10% in each year. 17. Therefore, according to our considered view, the ground which has been taken about non- maintainability of Section 39 of the Act, 1915, is having no substance and accordingly the same is rejected. 18. This Court after answering the same has again gone across the order passed by learned Single Judge wherefrom it is evident that the learned Single has considered the maintainability of the application filed under Section 39 of the Act, 1915, as would appear paragraph 9 thereof, wherein discussion about applicability of provision 39 of the Act, 1915 has been made. It is evident therefrom that 34 the learned Single Judge has accepted the submission advanced on behalf of State by giving the finding that since the application for remission of licensee fee was filed on 31.03.2006 and as on the day there was no unexpired portion of the grant of license available to the concerned respondent and since Section 39 of the Act, 1915 mandates to ensure that if the application for remission of license fee is filed then for the unexpired portion of grant of license the reduction of license fee will be granted but as on 31.03.2006 there was no unexpired portion of grant of license was available to the concerned respondent. Therefore, it has been held that the petition for remission of license fee filed on behalf of concerned licensees before the Member Board of Revenue was not maintainable. 19. We, after consideration of the aforesaid fact, are not in agreement with the aforesaid ground reason being that the learned Single Judge has considered the license for a year beginning from 1st April, 2005 and ending on 31st March, 2006 but the fact herein is otherwise since the license is for the block year of three years and when the license has been granted for block period of three years then the application so made for remission on 31.03.2006 cannot be said to have been on the last day of license year rather by taking three years period in entirety beginning from 1.04.2006 to 31.03.2007, according to considered 35 view the application said to have been filed on 31.03.2006 will be said to be in midst of the grant of license period and as such this Court on the basis of aforesaid fact and taking into consideration the fact that license since was granted for a block period of three years, is of the view that the finding so recorded by learned Single Judge that the application filed for remission on 31.03.2006 will said to have been filed on the last day of license year cannot be said to be correct finding. Therefore, the order passed by the learned Single Judge to this effect requires interference by this Court. 20. Therefore, according to our considered view, the application filed under Section 39 of the Act, 1915 seeking remission under the Act, 1915, is held to be maintainable on the ground that the remission application for license fee will be said to be midst of unexpired period of license which was issued for the block period of three years. 21. Now the question which requires to be considered is as to what relief the appellants can be granted in the pretext that there is laches on the part of the State in not allowing the manufacturers to manufacture the country liquor or spiced country liquor as per the documents available on record i.e., the minutes of the meeting dated 27.03.2006, as quoted in the preceding paragraph. 36 There is no doubt that if a condition is stipulated under the sale notification the same binds the parties. The appellants were said to be required to make application in pursuance to Clause 20 (ka) by making requisition as per the requirement contained therein. 22. The argument has been advanced on behalf of appellants that even if the requisitions would have been made, then the question which requires consideration is as to whether the State was in a position to supply the country liquor or spiced country liquor since in absence of any manufacturers who are to manufacture the country/spiced country liquor. 23. This Court is now proceeding to examine the aforesaid argument keeping the fact into consideration the minutes of the meeting dated 27.03.2006, as quoted and referred hereinabove, wherefrom it is evident that manufacturers of the zones as mentioned in the minutes of meeting dated 27.03.2006, have failed to carry out their obligation for manufacture of the country/spiced country liquor in their respective zone reason behind is that the rate was not approved, as would appear from the reference to that effect having been made in the order passed by the Member Board of Revenue at paragraph 15, as reflected in order dated 29.08.2022 passed by the Co-ordinate Bench of 37 this Court and for ready reference the same is being reproduced hereinbelow: “Heard the parties. Let the State come up with a clear affidavit as to whether for the concerned period for which the remission was sought on the ground that there was no wholesale dealer or supply during that period from the side of State, therefore it was not possible for lifting liquor for that period, whether the statement is correct or not and if the statement is incorrect, then name of the wholesaler and the details of the stock must be brought on record and further, why not such stand was taken in the writ petition. We are raising this question only for the reason that the Board of Revenue has clearly written a finding which stands engrafted in
Decision
paragraph 15 of the order which was impugned in the writ petition. For ready reference, we are quoting the relevant portion of the order: “15. xxx xxx xxx xxx xxx xxx xxx xxx xxx: A somewhat similar situation prevailed as far as the manufacture and wholesale supply of country liquor is concerned. The sequences of events as evident from records available with the Board are: 1. The allotment of districts for wholesale supply of country liquor as well as the sale price was finalized by the Board in May, 2006. 2. Allotment orders could be issued for only 10 of the 22 Districts since the matter became sub-judice. These districts were Garwa, Palamu, Latehar, Ranchi, Dumka, Deoghar, Sahibgunj, Godda, Pakur and Jamtara. 3. A number of Writ Applications were filed before the Hon‟ Jharkhand High Court challenging the process of tendering, selection of bidders and allotment. These were registered as C.W.J.C. No. 2890, 2891, 2893, 2894, 1997 and 3242 of 2005. The Hon’ Court first granted a stay order and subsequently ordered maintenance of status quo. This resulted in the old wholesaler of country liquor, who held the license for the year 38 2004-05, continuing to function by being granted extension of license from time to time. 4. Later the Hon‟ High Court through its order dated 19th July, 2005 found that the process and procedure adopted were as per the provisions of the Act and the Rules and upheld the allotments made in May, 2005. The Hon‟ Court dismissed the various petitions filed before it. 5. This matter was also raised in a committee of the Legislative Assembly which decided to recommend cancellation of the tender process and to refer the matter to the Vigilance Department for enquiry. 6. The relevant file was put up before the Board by the Excise Commissioner on 23rd July, 2005 seeking further directions. 7. The Board refused to make any changes in its earlier decision. 8. The file was called for by the Chief Secretary on 28th May, 2005. The Chief Secretary kept the file till 15th July, 2005 when it was returned without any orders. 9. The file was then called for by the Chief Minister‟s Secretariat on 27th July, 2005 but was returned the next day without any orders. „ 10. The matter was, as such, re-submitted to the Chief (Excise) Minister by the Excise Commissioner on 30th July, 2005 seeking directions. 11. The Chief Minister ordered cancellation of tenders on 31st July, 2005. He also ordered that the opinion of the Advocate General be obtained. 12. The opinion of the Advocate General was sought on 5th August, 2005 and received on 19th August, 2005. The Advocate General advised that perhaps all the facts had not been put up before the Chief Minister and that since the selection process and consequent process of allotment was the same for spiced country liquor and country liquor and that the Hon‟ble High Court had upheld the selection of bidders and allotment of areas to them in the cases relating to country liquor, the Chief Minister should be appraised of the same. 3. The file was resubmitted to the Chief (Excise) Minister on 23rd August, 2005 for reconsideration. 39 14. The Chief Minister approved the proposal of the Department on 6th October, 2005 with the proviso that the sale prices prevalent in adjoining States be ascertained. 15. This was done and the Chief Minister was apprised of the sale price in neighboring States and his approval sought for the action taken so far. This was put on 24th October, 2005. 16. The Chief Minister gave his proposal on 8th December, 2005. 17. In the meanwhile, due to pending litigations and the confusion prevalent in the Government, the wholesale licensees of the year 2004-05 were allowed to continue functioning. This was finally stopped only after the Hon’ Jharkhand High Court passed orders prohibiting the authorities from giving any further extension to the old licensee after September, 2005. Thus we see that a state of utter confusion prevailed when the orders of the Board were interfered with by authorities who do not have the statutory power to do so. Had this not been done then the manufacturing and wholesale supply chain of country liquor could have been functional after the bunch of writ applications had been dismissed by the Hon‟ Jharkhand High Court on 19th July, 2005. This however did not happen. The licensee for 2004-05 was allowed to carry on business till the end of September simply because the decision of the Board relating to allotment and price fixation was never fully implemented. It is clear from documents available that even the fixation of sale price was approved by the Chief Minister only on 8th December, 2005. The confusion prevalent amongst the field officers is, therefore, understandable. As matters stand, it is clear that there was no disruption of wholesale supply of country liquor, barring some delays that occurred in giving extension to the old licensee, before 1st October, 2005. The licensee for the year 2004-05 was supplying during this period and the only claims for remission made by the applicants for this period relate to short periods when extension could not be given to that licensee. 40 There could not have been any supply of country liquor in Jharkhand from 1st October, 2005 to 8th December, 2005 since instead of implementing the sale price approved by the Board, the file was put up for the approval of the Chief Minister. The sale price was finally approved by Chief Minister only on 8th December, 2005. How can any supply take place from the wholesalers when the price they are to sell at is itself not fixed? Xxx xxx xxx In view of the aforesaid, the specific view was required to be taken as statement in the writ petition but only vague statements appear to have been made. Still we are granting opportunity to the State to explain the things on affidavit. Let a supplementary counter affidavit be filed in these matters by the State. However, we are not passing any order on I.A. No. 5731 of 2020 as it is an admitted position till that no proceeding for recovery of the concerned amount has been initiated. If such situation arises in future, the appellants would be at liberty to make motion for hearing on the aforesaid Interlocutory Application. Put up these cases on 27.09.2022 within top five cases.” 24. Now, this Court is to consider then what would be the consequence if weekly requisition would have been made on behalf of appellants and if not made can it make disentitle the appellants seeking remission under Section 39 of the Act, 1915. The position of law is well settled that if there is any laches lies on the part of the concerned party he will not be entitled for any relaxation by way of remission in the license fee but it is also equally settled that the State is to show its bona fide if the requisition would have been made then whether the State was in a position to supply or not. 41 And, if the State was not in a position to supply the spiced country liquor/country liquor then in such situation can the State deny such remission in license fee that too when the aforesaid fact was known to the parties since litigation was pending before the Court of law, as would appear from reference of the fact about pendency of the proceeding before this Court at paragraph 15 of the order passed by the Member Board of Revenue. The matter would have been different if the State was in a position to supply the country liquor or spiced country liquor and in that circumstance if there was no requisition said to have been made under Section 20(ka) of the sale notification then certainly the appellants would not have been entitled for remission. But the fact herein is otherwise since when the dispute arose regarding fixation of price at the government level and in that view of the matter if bidders have not been allowed to manufacture the country liquor or spiced country liquor then litigation comes to this Court and this Court has passed allowing the earlier bidders to carry out manufacturing work but the carrying out manufacturing work by the earlier bidder has subsequently been restrained by this Court by passing of order on 19th July, 2005 thereafter the writ petitions were also dismissed. The implication of order dated 19th July, 2005 will be that after 42 September, 2005 there was no manufacturer to manufacture the country liquor or spiced country liquor by the earlier bidder. 25. Admittedly herein the license has been granted for the period 01.07.2004 to 31.03.2007; meaning thereby from 01.07.2004 to September, 2005 there was manufacturing of the country liquor or spiced country liquor. Therefore, it is not correct on the part of the appellants to take the ground that from 01.04.2004 to 18th July, 2005 there was no manufacturing in the State of Jharkhand either of country liquor or spiced country liquor since there was no requisition as per the condition stipulated under Clause 20 (ka) of the sale notification. Therefore, according to our consider view, there cannot be remission for the period from 01.07.2004 to September, 2005. 26. So far the issue of remission of license fee period from October, 2005 is concerned, admitted position as would appear from minutes of meeting dated 27.03.2006 the manufacturers have not manufactured either country liquor or spiced country liquor, and as such even if the requisition would have been made in the light of condition stipulated under clause 20(ka) of the sale notification the State was not in a position to supply country liquor or spiced country liquor. 43 Therefore, merely because the appellants have not made requisition as per the condition stipulated under Clause 20(ka), the appellants cannot be held disentitle for remission for the period from October, 2005 till March, 2006; it is for the reason that it is the State who have created confusion by not approving the rate and while the rate was approved the bidders, who have been granted license to manufacture either country liquor or spiced country liquor, refused to abide by the terms and conditions of the license by taking the plea of delay. The Member Board of Revenue, taking into these facts into consideration, has allowed remission of fees for licenses held by the appellants-licensees for spiced country liquor for the period prayed for and claimed except for the days notified as dry days in advance during this period and further the prayer for remission for non-supply of country liquor was allowed for the days in which remission has been claimed for the period commencing 1" October, 2005 to 8th December, 2005 except for the days notified in advance as dry days. 27. This Court, after having discussed the factual aspect, as above, is coming back to the order passed by learned Single Judge has found therefrom the fact about applicability of Section 39 of the Act, 1915 has not been considered in right prospective since individual license year 44 has been taken into consideration instead of block license year. The learned single Judge has not considered the implication of non-manufacture of country liquor or spiced country liquor for the said period for which remission of license fee was prayed for while disentitling the appellants for remissions for the said period. 28. This Court on the basis of discussion made herein above is of the view that the order passed by the learned Single Judge requires interference 29. In view thereof, the order dated passed by learned Single Judge is quashed and set aside. 30. Accordingly, instant intra-court appeals stand allowed. (Sujit Narayan Prasad, J.) (Subhash Chand, J.) A.F.R. Alankar/-