SINHA, J. : - This writ petition has been filed by Ganga Prasad under Article 226 of the Constitution challenging the validity of the proceedings proposed to be taken by the respondents for recovering certain amounts from him as land revenue.

2. The facts leading up to this petition can briefly be stated as under:

The petitioner obtained Theka of Deshi Sharab at Kalinjar, Banda, for the years 1970-71 and 1971-72. One of the conditions of the auction was that the petitioner shall take at least 430 litres per month of Deshi Sharab for sale at his shop and that, in case he failed to lift the aforesaid quantity of liquor, he would have to pay as compensation an amount equal to the excise duty leviable on the unlifted quota. It appears that the petitioner failed to lift the aforesaid quantity of liquor from the warehouse during the periods 1970-71 and 1971-72. The District Excise Officer, Banda, therefore, sent a notice to him on 15-3-1972 for the recovery of Rupees 1,442.20 for the year 1970-71 and a letter dated 11th May, 1972 for recovery of Rs. 186 for the year 1971-72 as arrears of land revenue. Aggrieved against the aforesaid notices and the action proposed thereunder, the petitioner filed the present writ petition.

3. In the counter-affidavit sworn on behalf of the respondents it is stated that the aforesaid amount was payable by the petitioner under Cls. 3 (a), 3 (b) and 3 (c) of the licence. It is also averred in the counter-affidavit that the contents of the aforesaid clauses were made known to all the bidders, who participated at the time of the auction, and, consequently, the petitioner could not challenge the recovery of the aforesaid amounts.

4. The sole question for consideration in the present petition is whether the condition in the licence, that the petitioner shall lift a fixed quantity of liquor from the warehouse every month and, in the event of default, he shall be liable to pay compensation equal to the excise duty leviable on the amount of the quota unlifted, was a valid and enforceable condition.

5. In the case of Excise Commr., U. P. V. Ram Kumar (AIR 1976 SC 2237) the impugned clauses of the licence came up for consideration and the Supreme Court, placing reliance on an earlier decision in Bimal Chandra Banerjee v. State of M. P. (AIR 1971 SC 517) held (at p. 2241 of AIR):

" We have, therefore, not the slightest hesitation in holding that the demand made by the appellants though disguised as compensation, is in reality a demand for excise duty on the unlifted quantity of liquor which is not authorised by the provisions of the Act." In view of the above rule laid down by the Supreme Court, it must be held that the impugned condition of the licence in the instant case also was invalid and unenforceable.

6. Learned Standing Counsel, however, urged that the petitioner offered his bid in the auction with full knowledge of the terms and conditions of the licence and he cannot, by the present writ petition, be permitted to wriggle out of the contractual obligations arising out of the acceptance of his bid. Reliance was placed by the learned Standing Counsel for this argument on the decision of the Supreme Court in the case of Har Shankar v. Dy. Excise and Taxation Commr., (AIR 1975 SC 1121).

7. In our opinion, the case relied upon by the learned Standing Counsel is clearly distinguishable. In that case the petitioners were the highest bidders in an auction for getting rights to sell liquor at two vends. The bids were accepted and the petitioners were granted licence to sell the liquor in lieu of a lump sum consideration viz. the bid money. The Supreme Court held that the right in regard to intoxicants belongs exclusively to the State and it is open to the State to part with their rights for a consideration. The Supreme Court held that it was a case of contractual obligation which cannot be subject of writ jurisdiction. The Supreme Court however, clarified by further observing (in para 56): (at p. 1133 of AIR)