Heard Mr. Prabhat Kr. Sinha, counsel appearing on behalf of the petitioner.

2. Heard Mrs. Chandra Prabha, counsel appearing on behalf of the respondents.

3. This writ petition has been filed for the following reliefs :

i. “For issuance of an appropriate writ for a declaration that clause 17 of the Sale Notification in Excise Form 127 prescribed by the Member, Board of Revenue, Jharkhand for settlement by auction-cum-tender for settlement of retail vends of liquor for 2008-09 and condition XII of license in Form 26C are ultra vires the provisions of the Jharkhand Excise Act, 1915.

ii. For issuance of an appropriate writ, order or direction for quashing of the order contained in Memo No.1328 dated 25.11.2010, whereby, in terms of the aforesaid clause 17 of the Sale Notification, a sum of Rs.7,93,094.00 has been forfeited from the amount of security deposited by the petitioner;

iii. For issuance of an appropriate writ, order or direction to the respondents to refund to the petitioner the aforesaid forfeited amount along with interest @ 18 % per annum.”

4. Counsel for the petitioner submits as under :

(a) That a policy decision was taken vide Annexure – 1 dated 07.05.2008 and he refers to clause – 15 of the said policy decision to submit that as per the policy, the consequences in connection with the violation of the terms and conditions of license were provided and it was also indicated that in order to give effect to such conditions, a corresponding amendment in Section 42 of the Jharkhand Excise Act, 1915 (herein after referred to as “the Excise Act”) was required to be carried out.

(b) Thereafter, the petitioner refers to the sale notice as contained in Annexure – 2 and submits that the petitioner duly participated pursuant to the sale notice dated 21.07.2008 and the petitioner was granted the composite license for retail vend in Form - 26 C as prescribed under the Excise Act which inter alia provided for various conditions including conditions in Clause Nos. 11 and 12.

(c) According to Clause – 11 of the Excise license, the petitioner was bound to lift the fixed monthly minimum guaranteed quantity of each liquor by the end of last working day of every month and the shortfall found in lifting of the minimum guaranteed quantity could be compensated by lifting of another kind of liquor covered by the Excise license, excess to its fixed minimum guaranteed quantity.

(d) He further submits that as per the clause - 12 of the aforesaid excise license, on account of first irregularity found under the Excise law in the premises of the shop, the licensee could be settled with a composition fee and the cap was Rs. 1 lakh for such irregularity.

(e) The petitioner is aggrieved by clause - 12 (b) (i) which provides that equivalent amount of economic penalty is to be imposed on the licensee in addition to total amount of revenue loss (excise duty, other admissible fee including commercial taxes) for the contravention of the condition which resulted in loss of revenue.

(f) Counsel for the petitioner submits that the period involved in this case is 2008-2009 and the license period is from 12.11.2008 to 31.03.2009 and he submits that during this period, the total quantity of beer which was to be lifted by the petitioner was 1,02,656.00 bulk litres but the petitioner had actually lifted 81,432.00 bulk litres and there was a shortfall of 21,224.00 bulk litres, which is equivalent to 2,722 cases of beer.

(g) He submits that issue involved in this case is related only to short lifting of beer.

(h) He submits that after completion of the entire period of license vide order as contained in Annexure – 4 dated 25.11.2010, a penalty in terms of clause - 12 of the Excise license was imposed upon the petitioner which included excise duty, education cess, sales tax and surcharge on the shortfall of beer lifted by the petitioner. This order was passed at the stage when the issue regarding refund of security deposit was being considered by the respondents and th