2000 Supreme(SC) 677

2000(3) Supreme 59
SUPREME COURT OF INDIA
(From Rajasthan High Court)
S. Rajendra Babu & R.C. Lahoti, JJ.
State of Rajasthan & Ors. -Appellants
versus
Anil Kumar Sunil Kumar & Party & Anr. -Respondents
Civil Appeal Nos. 11231-11232 of 1995
Decided on 3-4-2000
Counsel for the Parties :
For the Appellants : M.K. Das, Aruneshwar Gupta, Ms. Sandhya Goswami, Advocates.
For the Respondents : H.N. Salve, Dushyant, A. Dave, P. Chidambaram, Sr. Advocates, Ms. Indu Malhotra, Raj Kumar, Ms. Madhu Sweta, Raj Shekhar Rao, Ms. Kavita Wadia, Advocates.

Headnote:Rajasthan Excise Rules, 1956-Rule 67(I) and 67(K) r/w Rule 3 of Rajasthan Foreign Liquour (Grant of Wholesale Trade and Retail Licence) Rules, 1982-Exclusive Privilege licence for sale of country liquour, retail sale of beer, retail and wholesale of IMFL-Tender for Shirohi Group of Shops-Abu Road and Mount Abu tesits notified tribal areas-Licence to that areas not given to Private parties but to Government owned sugar mills as per Government Policy-Respondent licencee s claim the two areas in question also included in his licenced area and refusal of Excise Commissioner to open shop in that areas illegal-Prayer to adjust due price and margin money paid by Sugar Mills towards exclusive privilege amount payable by respondent (original writ petitioner)-Division Bench of High Court accepting plea-Held, petitioner knew very well about Govt. policy and he never submitted tender for two disputed areas in question-Licences issued to respondent did not relate to any shops and Mount Abu or Abu Road-Writ petition an attempt to wriggle out of a contractual obligation to pay amount payable under exclusive privilege licence after falling in arrears-Judgment of Division Bench of High Court set aside.

       Held : The conduct of the petitioners disentitled them to the grant of any relief in exercise of discretionary writ jurisdiction of the High Court. It cannot be denied nor has it been that eversince 1.4.1982 continuously and uninterruptedly the Sugar Mills only were having the licence for sale of country liquor by retail in Mount Abu and Abu Road tehsils. Even on 6.2.1991 when the tender notice was issued by the Excise Commissioner, the licence granted in favour of the Sugar Mills was already in operation. The petitioners were well aware of the policy of the State Government having been in this trade for long. Right from April 1991 till February 1992 the petitioners never applied for opening any sub-shops of theirs for the sale of country liquor at Mount Abu and/or Abu Road, though they had submitted several applications from time to time for obtaining permission of the District Excise Officer for opening shops/sub-shops in various areas covered by their licences. They were seeking approval of the location of the shops/sub-shops at the places situated in 4 tehsils of Sirohi District excluding Abu Road tehsil. For a period of about 11 months, the petitioners exploited their licences and enjoyed the exclusive pirvilege of selling by retail the country liquor in Sirohi District excluding Mount Abu and Abu Road tehsils. It is only when they fell into arrears of the licence fee and a demand was raised against them that on 4.3.1992 they raised a plea of having been wrongfully excluded from exercising the exclusive privilege for sale by retail of country liquor in Mount Abu and Abu Road areas and for that purpose served a notice seeking the withdrawal of the demand raised by the State and demanding permission in future for opening sub-shops in Mount Abu and Abu Road Municipal areas. The plea raised in the notice dated 4.3.1992 that the petitioners had become aware of the correct factual and legal position by making enquiries in the last week of February 1992 was apparently false and highly belated. The plea that "on further enquiries being made and legal advice being sought it has transpired that Mount Abu and Abu Road were not included in the Janjati Kshetra (tribal area)" was raised by the petitioners by making an averment in that regard in the rejoinder which they had filed on 15.2.1993. The plea was not raised in the writ petition as originally filed. Yet another very material fact which exposes the falsity of the petitioners plea is that the reserve price fixed by the State for exclusive privilege for vending country liquor for Sirohi group of shops was based on the previous year s figures of sales of the notified 35 main shops and 48 sub-shops, wherein the figures of sales of shops at Mount Abu and Abu Road were not included. This plea raised by the respondents was supported by the documents of unimpeachable veracity brought on record and duly supported by affidavit. The petitioners are trying to wriggle out of a contractual obligation by raising a plea which was highly belated and clearly an afterthought. They knew it very well that they were not bidding for a privilege by way of licence to sell country liquor by retail in the areas of Abu Road tehsil nor could they have had that privilege in view of the State s policy decision whereunder a Government undertaking only was allowed to operate its licence in those areas. They having been faced with a demand raised against them appear to have looked into several documents and found out scope for raising plea on the phraseology employed by the State or its officers in different documents which were brought on record. Such a plea could not be allowed to be entertained. The learned Single Judge was right in turning down the plea raised by the petitioners and thereby dismissing the writ petition. In our opinion, the Division Bench ought not to have interfered with the judgment of the learned Single Judge. (Paras 13, 14 & 16)