TMI Blog1991 (8) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions of the licence. Accordingly we have no hesitation to hold that the appellant is not entitled to the restitu- tion of the plant and machinery of the distillery at Ujjain and the attached warehouses. - C.A. 5483 OF 1983 - - - Dated:- 9-8-1991 - KASLIWAL, N.M. AND RAMASWAMY, K. , JJ JUDGMENT This appeal by special leave arises against the judgment of the Division Bench of the Madhya Pradesh High Court, Indore Bench dismissing M.P. No. 169 of 1982 dated October 7, 1982. The appellant, a partnership firm filed the writ petition seeking writ of mandamus and other direction to remove Rajdhani Distilleries Corporation, the 7th respondent in the writ petition in the High Court and 6th respondent in this appeal for short 'respondent' or his 'servants' or 'agents' and to deliver vacant and peaceful possession of Ujjain Distillery and warehouses attached to it and the plant and machinery mentioned in the schedule Annexure P-3 to the writ petition. It also sought for mandamus or other order to have the valuation of the plant and machinery in Annexure P-3 assessed or direction to return the goods or things described in Annexure P-7 or on its failu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inventory of stock in hand in the presence of the witnesses and the same were handed over to the respondent on August 28, 1981. The appellant sent a letter on February 23, 1982 valuing the goods taken possession of at Rs.8,36,988.61. On August 8, 1982 the appellant demanded redelivery of the distillery, plant and machinery and warehouses and the value of the stock in trade or pay the amount. On March 16, 1982 the appellant filed the writ petition in the High Court but was dismissed. The appellant contended in the High Court that it had been in exclusive possession of the distillery, plant and machinery at Ujjain and the attached warehouses and dispossession was unlawful and that, therefore, the appellant was entitled to restitution of the plant and machinery and also to the grant of licence after cancellation of the licence granted to the respondent. The High Court found that the appellant had no exclusive posses- sion which always remained with the Excise Department. The appellant worked out the contract of manufacturing rectified spirit or spirit (country made liquor) in the distillery and wholesale supply to the retail vendors within the area attached to the distillery. Due to n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession of by the respondent and the state. In support thereof he placed strong reliance in Godhra Electricity Co. Ltd. Anr. v. State of Gujarat Ors., [1975] 2 SCR 42. He also referred to us in support of his contention various documents. In our view it is not necessary to dwelve deep into them. Sri Ganpule and Sri Tarkunde, the learned senior counsel for the State and the respondent. contended that the appellant was requested twice to-be present for delivery of the plant and machinery in the distillery and warehouses to the respondent and due to its non-cooperation possession was taken. Even for the assessment of the valuation, before the expiry of the contract. the appellant was given several notices requesting it to furnish the evidence of the value of the plant and machinery stock in trade, etc., and due to its non-cooperation. the valuation could not be made. Prior valuation and payment are not condition precedent to work out the licence. The appellant has no right to the restitution after the expiry of the licence. Sri Tarkunde, in particular, emphasised that the restitution prayed for became infructuous on account of the subsequent events, namely, pursuant to December ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition. To find whether it is a condition precedent to fix the valuation of the plants and machinery of the distillery and the warehouses and the stock in trade and payment thereof before taking over possession and handing over the same to the incoming licencee, the material clause 50 to be looked into reads thus: All the materials like buildings, still, machinery, drums, wood fuel, coal, mahua, bottling, machinery, bottles, spices, red sealing wax, coaltar, pilfer proof seals, crown corks, alongwith alu capsules, etc. belonging to the outgoing licensee purchased for the use of distillery and warehouses attached thereto, shall be valued before the expiry of the old contract and the commence- ment of the new one by a committee appointed by the Excise Department in this behalf. The committee aforesaid shall be appointed by the Excise Commissioner under the previous sanc- tion of the Government (Separate Revenue Department) and it shall consist of five members, namely (1) Collector or Additional Collector-convenor, (2) Assistant Commissioner of Excise of the Division concerned member (3) Executive Engineer--Technical member, (4) Accounts Officer of the Excise Department--Member, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the distillery and brewery; (c) establish or licence warehouses wherein any intoxicant may be deposited and kept without payment of duty, subject to payment of such fee as the State Govt. may direct..... Section 17 provides inter alia that no intoxicant shall be sold except under the authority and subject to the terms and conditions of licence granted in that behalf. Thus it is clear that establishment of a distillery or a warehouse; manufacture of intoxicants, spirit (country made liquor), the possession and distribution and sale thereof are regulated under the Act. The Govt. in exercise of its power under s. 62 of the Act made rules regulating the control of distilleries and warehouses by Officers of the Excise Department, especially appointed by the Excise Commissioner for that purpose. Therefore, any licensee, under the Act and the Rules, be it incoming or outgoing, should have D-2 and D-I licences for establishment of distillery and warehouses, possession of raw materials, manufacture of liquor or rectified spirit or denatured spirit and supply to the retail vendors of the area attached to the distillery. Any infraction is an offence. It is settled law by several ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the members, the Commissioner of the Excise or the State Govt. would fix the valuation, which was made final. The Committee designated was to be constituted with prior approval of the Govt. as per condition 50 to evaluate the plant and machinery of the distillery and some of them of the warehouses. Outgoing licensee also is entitled to represent in the Committee. On his non-cooperation the rest of the four members of the Committee are empowered to determine the value. Clause 23(iii) provides that any dispute relating to valuation of the sanctioned plant shall be referred to the State Government and the decision of the State Govt. shall be final and binding on the parties to the dispute. Clause 2 thereof refers that the licensee shall made over the said distillery and warehouses buildings on the termination of the licence in as good condition as they were at the commencement hereof excluding reasonable wear and tear. Clause 36(4) provides that any dispute relating to the sale of spirit or plant by the licensee or the valuation of the plant shall be referred to the State Govt. and the decision of the State Govt. shall be final and binding. Clause 39(1) in particular, mentions tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds of the previous purchases of the materials, or plant or machinery if any new additions are made etc. Unless they are made available, it is not possible to assess the value after giving due rebate or depreciation, etc. to the incoming licensee. The human nature and conduct would be such that the outgoing licensee, being the unsuccessful tenderer, would not cooperate in handing over possession of the distillery and stock in trade and would approach the High Court under Art. 226 of the Constitution as was done in this case. The incoming licensee has time of thirty days in case of stock in trade or three months in the case of plant and machinery from the date of communication to him to pay the value to the outgoing licensee. Keeping those circumstances at the back of our mind we decline to adopt lexographic strict construction of clause 50 which would thwart continuity; create hiatus in smooth operation of manufacture, storage, distribution and sales of the intoxicants. Moreover, after the assessment is made and in case of any difference of opinion in the valuation or the outgoing licensee claims higher value the final arbiter would be in some cases like stock in trade, the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... envisage any payment of interest subsequent thereto. Accordingly this court directed redelivery of the undertaking to the licensee subject to follow the procedure as per law laid down therein. In this case admittedly the conditions of licence are not questioned, but expressly given up in the High Court. Even before us the validity of the valuation has not been questioned. It cannot cut the branch on which the appellant sits to assail the constitutional validity of the conditions of the licence. Accordingly we have no hesitation to hold that the appellant is not entitled to the restitu- tion of the plant and machinery of the distillery at Ujjain and the attached warehouses. The appellant though claimed that the value of the plant and machinery was too low, contrary 'to the specification in this behalf in tender condition and though we decline to go into the question, the appellant appeared to have smarted under apprehension that it had to face the plea of acquiescence, if it were to cooperate earlier. So it is open to the appellant to make a representation to the Govt. and any officer not below a Secretary preferably of the concerned Department would go into the matter and de ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
