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TMI Blog1975 (12) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... s. A sale notice was published by the authorities concerned for the auction of licences to open country liquor shops in Singhbhum district with effect from April 1, 1966, including an outstill shop at Bhirbhania. Appellant Ayodhya Prasad gave the highest bid which was knock ed down in his favour, and he deposited two months' licence fee in advance at the rate of Rs. 3,650/- per month. He applied on March 22, 1966 to the Kolhan Superintendent of Singhbhum to settle a piece of land for establishing an outstill shop at Bharbharia, but the application was rejected on September 27, 1966 because of the objection raised by some members of the District Consultative Committee. The villagers of Bharbharia also opposed the opening of the outstill shop. The shop could not therefore be established there. `The appellant how ever obtained a piece of land in village Chittimitti and applied on July 30, 1966 for permission to open the outstill shop there. This was allowed and the appellant claimed that he began to collect the necessary material but a mob forcibly removed the building and the distillation material. He filed a report with the Police about the incident. The approval for opening th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or reduction of the fees for the year 1974-75, but they were rejected by he Board of Revenue. They then filed the aforesaid writ petitions in the High Court and have now filed the present appeals because the petitions have been dismissed by the High Court's impugned judgment dated March 15, 1975. These will be referred to as group 'B' appeals. As has been stated, the remaining Civil Appeal No. 1105 of 1975 is also directed against the High Court's common judgment dated January 2, 1975. It relates to the grant of a licence to the appellant for establishing outstill shops at Mahuadom, Barahi, Asnair, Aksi and Kabri, in Palamau district. The appellant applied for a direction for the refund of Rs. 2,71,340/- which had already been realised from him, and for restraining the realisation of a further sum of Rs. 1,40,680/- on the ground that there was no quid pro quo for the fee, but without success. The High Court has taken the view that the amounts in question were not due on account of fees, but were payable for leases of the exclusive privileges which had been granted to the appellant in respect of the outstills. It is in these circumstances that these appeals have co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o above was not granted to them even though the licences were for establishing outstills in the area covered by them. It is however not disputed that the licences were granted in Form 30 (Volume II, Part I, Bihar and Orissa, Excise Manual) on the condition that the appellants would pay to the government, in advance. the monthly fee mentioned therein. It is nobody's case that the licences were cancelled or suspended under section 42 of the Act for any of the reasons mentioned in the section, or that the licences were withdrawn under section 43 so as to entitle the appellants to remission of the fee payable in respect of them or to payment of compensation in addition to such remission, or to refund of the fee paid in advance. It is also not the case of the appellants that they surrendered their licences within the meaning of sub-section (1) of section 44 so as to justify the remittance of the fee payable by them, or paid by them in advance. In fact it has clearly been provided in sub-section (2) of section 44 that the provisions of sub- section (1) 'shall not apply in the case of a licence for the sale of any country liquor in the exercise of an exclusive privilege granted un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in spite of his bona fide endeavors or (ii) for any other adequate reason. But it was not the case of the appellants that the licences were "subsequently refused" to them for any reason whatsoever. So even if it were assumed, for the sake of argument, that the instructions contained in paragraph 121 were binding on the authorities concerned, that would not matter for purposes of the present controversy as it does not relate to refund of the deposits referred to in paragraph 121. In this view of the matter, it is not necessary for us to examine here the larger question whether the instructions contained in the Manual were made under any provision of the law and created any rights in favour of persons whose bids were accepted at public auctions of the shops. It may be mentioned that counsel for the appellants have not been able to refer to any other - provision of the law under which the appellants could claim remission , of the price or the consideration for the exclusive privilege of manufacturing and selling country liquor. It has however. been argued that as appellant Ayodhya Prasad did not succeed in locating the outstill shop at Bharbharia in spite of his best efforts, and he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n October 6, 1966, and the demand for the licence fee was made on January 9, 1967. Even so, the appellant did not take any action to save himself from any such liability in the future and, on the other hand, went on making the highest bids in the subsequent years and incurring similar liability to pay the price even though he was not able to establish his outstill anywhere in any year. It is therefore difficult to reject the contention in the affidavit of the respondents that there must have been some other reason for him to do so, particularly as the location of his shop was to be on the border of l the State. It has also been contended that the High Court erred in holding that the State Government had the power to require the appellants to pay the amounts under demand as they represented consideration for the contracts. It has been argued that this Court's decision in Nashirvar etc. v. State of Madhya Pradesh and others 1975 (2) S.C.R. 861 and Har Shankar and others etc. v. The Deputy Excise and Taxation Commissioner and others etc. 1975 (3) S.C.R. 254 related to the Excise laws of other States and did not bear on the present controversy. The argument is however futile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ole of the law and the rules which have the force of law relating to excisable articles other than opium." It has been stated in the preface to Volume III that it consists of the Board's "instructions with regard to excisable articles other than opium" and that references have been made to the Government Rules and the Board's Rules having the force of law. There is however no such reference to any rule in regard to instructions Nos. 130 and 93. But quite apart from the question whether these instructions were legally enforceable, we have examined the question whether they could justify the argument that the appellants were entitled to reduction of the amounts of the fees payable by them. Instruction No. 93 mentions the circumstances when it would be advisable to accept bids other than the highest. It states that it is not an absolute rule that the highest bids must, on every occasion, be accepted. It states further that the presiding officer at an auction "may also refuse bids which he considers to be purely speculative or which are the outcome of private enmity", and that what is desired is not the highest fee obtainable, but a fee that can fairly be paid out of the profi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be very difficult for an officer in a contract supply area to realise the stage at which bidding becomes purely speculative. He knows the issues of spirit during the previous year and the cost to the vendor including duty, carriage, establishment charges and the like, and should thus be able to estimate the figure beyond which a prudent man would not bid. If after warning the bidder, that this point has been reached, the latter still wishes to take the risk no case for remission can arise. The case is, however, different where exceptional reasons which would not at the time be. foreseen, operate adversely to the interest of the licensee but at the same time it is not the duty of Government to safe guard licensees from the effects of their own imprudence or ignorance." It would appear that there is nothing in the note to justify the argument that it gave rise to a right in favour of the appellants to obtain a reduction of the fees. As has been pointed out, that was clearly a matter within the discretion of the Board of Revenue under section 39, and the wordings of the note appended to paragraph 130 could not overreach that provision of the law. Moreover, the question whether the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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