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2019 Supreme(MP) 663
(HIGH COURT)
G. S. Ahluwalia, J.
Gwalior Alcobrew Pvt. Ltd. v. State of M.P. and others
Writ Petition No. 3059 of 2019, 13271 of 2019, 9830 of 2019 and 9877 of 2019 (Gwalior): against order dated 2.1.2019 passed by the Board of Revenue in Appeal No. 6525/2018/Gwalior/Ex. A.; Decided on 3.12.2019.
S. K. Shrivastava for petitioners; R. K. Soni, Government Advocate for respondent/State.
Headnote:
¼1½ Hkkjr dk lafo/kku && vuq- 19¼1½¼N½ && ewy vf/kdkj && ls vfHkizsr && efnjk dk O;kikj ewy vf/kdkj ugha gS && cfYd ;g fo'ks"kkf/kdkj gS && vuqKfIrèkkjh vuqKfIr dh 'krksZa ds vuqikyu ds fy, ok/;rk/khu gSA
vfHkfu/kkZfjr% fof/k dk ;g lqLFkkfir fl)kar gS fd efnjk dk O;kikj ek= fo'ks"kkf/kdkj gS] ewy vf/kdkj ughaA ¼2004½11 ,l lh lh 26] ¼1990½1 ,l lh lh] ¼1995½1 ,l lh lh 574 rFkk ¼2013½6 ,l lh lh 573 vuqlfjrA ¼iSjk 16] 28 ,oa 47
¼2½ ns'kh fLifjV fu;e] 1995 ¼e-ç-½ && fu- 4¼4½¼d½ rFkk 11 && lh- ,l&&1 vuqKfIr && 'krZ Ø- 1 && vuqKfIr dh 'krZ ls vfHkizsr && vkcdkjh vk;qä }kjk tkjh fd;k x;k lk/kkj.k ;k fo'ks"k vkns'k && og Hkh vuqKfIr dh 'krksZa esa lfEefyr gS && vuqKfIr/kkjh lafonkRed ck/;rkvksa ls cp ugha ldrkA
vfHkfu/kkZfjr% ;g Li"V gS fd tgk¡ ;kph efnjk ds O;kikj dks 'kkflr vkSj fofu;fer djus okys fof/k ds mica/kksa ls HkyhHkk¡fr voxr gS ;k uhyke@fufonk lwpuk ds fuca/kuksa ls voxr Fkk] ogk¡ cksyh yxkus okyk lafonkRed ck/;rkvksa ls cp ugha ldrkA ¼iSjk 17
bl izdkj] ;g Li"V gS fd tc ;kph us uhykeh esa Hkkx fy;k vkSj ns'kh efnjk iznk; djus dh vuqKfIr izkIr dh] rc og rks efnjk O;kikj dks fofu;fer djus okys mica/kksa ls cp ldrk gS vkSj u vuqKfIr vFkok uhyke@fufonk lwpuk ds fuca/kuksa vkSj 'krksZa ;k vkcdkjh vk;qä }kjk tkjh fd, x, lk/kkj.k ;k fo'ks"k vkns'k ls cp ldrk gSA ¼1984½3 ,l lh lh 634] ¼2004½11 ,l lh lh 26 rFkk ¼2013½16 ,l lh lh 147 vuqlfjrA ¼iSjk 19 rFkk 20 ls 25
¼3½ ns'kh fLifjV fu;e] 1995 ¼e-ç-½ && fu- 4¼4½¼d½ 11 rFkk 12 && lh- ,l&&1 vuqKfIr iznku dh xbZ && 'kkfLr vf/kjksi.k dh oS/krk dk fook|d && vkcdkjh vk;qä }kjk dk¡p dh cksryksa esa de&ls&de 25 izfr'kr U;wure LVkWd cuk, j[kus laca/kh vkns'k tkjh fd;k x;k && dk¡p dh cksryksa esa 25 izfr'kr U;wure LVkWd ugha j[kk x;k cfYd isV cksryksa esa j[kk x;k && vkcdkjh vk;qDr dk vkns'k vuqKfIrèkkjh ij vkc)dj Fkk && de&ls&de 25 izfr'kr U;wure LVkWd dk¡p dh cksryksa esa ugha j[kuk && fu;e 4¼4½ ds Hkax dh dksfV esa vkrk gS && fu;e 12 ds v/khu 'kkfLr lgh vf/kjksfir dh xbZA 2019¼1½ jk fu 148 ¼mPp U;k-½ voyafcrA , vkb vkj 1978 ,l lh 851] ¼2010½9 ,l lh lh 496] vkb ,y vkj 2013 ,e ih 837] , vkb vkj 1970 ,l lh 253] ¼2012½3 ,l lh lh 248] , vkb vkj 1973 ,l lh 1098] , vkb vkj 1970 ,l lh 1955 rFkk 2010 ¼3½ ,l ih ,y ts 29 fufnZ"VA ¼iSjk 27] 30] 33] 40] 44] 47 ,oa 49
(1) Constitution of India -- Art. 19(1)(g) -- fundamental right -- meaning -- trade in liquor is not a fundamental right -- it is a privilege -- licensee is under obligation to follow license conditions.
Held: It is well established principle of law that trade in liquor is merely a privilege and not a fundamental right. (2004)11 SCC 26, (1990)1 SCC 109, (1995)1 SCC 574 and (2013)6 SCC
573 followed. [Paras 16, 28 & 47
(2) Country Spirit Rules, 1995 (M.P.) -- Rr. 4(4)(a) and 11 -- C. S.-1 license -- condition No. 1 -- meaning of license condition -- general or special order issued by excise Commissioner -- is also included in license conditions -- licensee cannot wriggle out of contractual obligations.
Held: It is clear that where the petitioner is well aware of the provisions of law governing and regulating the business of liquor or was aware of the terms of auction/tender notice, then the bidder cannot wriggle out of the contractual obligations.
Thus, it is clear that when the petitioner had participated in an auction and had obtained license to supply country liquor, then he cannot avoid either the provisions regulating the trade in liquor or cannot avoid the terms and conditions of license or auction/tender notice or general or special order issued by Excise Commissioner. (1984)3 SCC 634 (2004)11 SCC 26 and
(2013)16 SCC 147 followed. [Paras 19 & 20 to 25
(3) Country Spirit Rules, 1995 (M.P.) -- Rr. 4(4)(a), 11 and 12 -- C. S. -1 license granted -- issue of legality of imposition of penalty -- order regarding maintaining at least 25% of minimum stock in glass bottles issued by Excise Commissioner -- 25% of minimum stock not maintained in glass bottles but same maintained in PET bottles -- order of Excise Commissioner was binding upon lincensee -- non-maintenance of at least 25% minimum stock in glass bottles -- amounts to breach of rule 4(a) -- penalty rightly imposed under rule 12. 2019(1) RN 148 (HC) relied on. AIR 1978 SC 851, (2010)9 SCC 496, ILR 2013 MP 837 AIR 1970 SC 253, (2012)3 SCC 248, AIR 1973 SC 1098, AIR 1970 SC 1955 and 2010(3) MPLJ 29 referred to. [Paras 17, 30, 33, 40, 44, 47 & 49
ORDER
1. Heard Finally.
By this Common Order, W.P. Nos. 3059/2019 (Gwalior Alcobrew Pvt. Ltd. v. State of M.P. and ors.), 13271/2019 (Gwalior Alcobrew Pvt. Ltd. v. State of M.P. and ors.), 9830/2019 (Gwalior Alcobrew Pvt. Ltd. v. State of M.P. and ors.), and 9877/2019 (Gwalior Alcobrew Pvt. Ltd. v. State of M.P. and ors.) shall be decided.
2. For the sake of convenience, the facts of W.P. No. 13271 of 2019 shall be taken into consideration.
3. The present petition has been filed against the order dated 2.1. 2019 passed by Board of Revenue in Appeal No. 6525/2018/Gwalior/Ex.A, thereby affirming the order dated 12.11. 2018 passed by Excise Commissioner, Gwalior in case No. 5(1)2018-9/7183, by which the penalty of Rs. 1,75,750/- has been imposed for not maintaining atleast 25% of minimum stock in glass bottles during the year 2017-2018.
4. According to the petitioner, it is a Private Limited Company registered under the provisions of Companies Act, 1956 and is engaged in the manufacture of rectified spirit and extra neutral alcohol. The petitioner has its distillery at Gwalior. Apart from manufacturing and bottling its own brands, the petitioner is also engaged in business of bottling brands for other alcohol manufacturers.
5. It is the case of the petitioner that it had applied for and was granted various licenses i.e., C.S.-1,D-1, F.L.9 and F.L. 9A by Respondent No. 2 and accordingly the petitioner has been granted permission to undertake the activity of manufacturing and bottling of Indian Made Foreign Liquor (IMFL) and Country Spirit at its distillery. The petitioner has also been permitted to sell/transfer the IMFL and Country Spirit from its unit to storage warehouses and other destinations within the State of Madhya Pradesh as well as outside the State.
6. The respondent No.1 issued a Tender Notice for the supply of country spirit in sealed bottles in 51 Districts (Supply areas) of Madhya Pradesh. Sealed Tenders were invited from distillers of Madhya Pradesh for the grant of licence (s) under the provisions of the Madhya Pradesh Country Spirit Rules, 1995 (In short Rules, 1995) to supply country spirit through bonded storage warehouses to the retail sale contractors in sealed bottles for a period commencing 1 st April 2012 and ending 31st March 2013.
7. The petitioner also participated and was declared successful and accordingly it was granted license and the petitioner was regularly supplying bottled country spirit. It is the claim of the petitioner, that there was no instances of non-supply of Country spirit. It is claimed that owing to the demand in the market, the supplies and consequently the stock was largely maintained in PET bottles. Since, the demand of glass bottles was nill in the market, therefore, Country spirit was filled only in PET bottles. However, a show cause notice dated 3.2.2016 was issued mentioning therein, that since for the period between April 2012 to March 2013, 25% of day's average issue in glass bottles from the warehouse was not kept in glass bottles, therefore, the present petitioner is liable to penalty under rule 4(4)(a) and rule 12 of M.P. Country Spirit Rules, 1995.
8. The petitioner submitted its reply and submitted that previously 100% supply was done in glass bottles, however, with the permission of the State Govt., the supply is also made in PET bottles. Since, the demand was of PET bottles, therefore, the minimum stock was maintained in PET bottles so that the supply may not be discontinued. No loss was ever caused to the State Govt. It is alleged that the Excise Commissioner, did not consider the reply filed by the petitioner, in its true perspective, and by order dated 24.7.2017 (Annexure P-2) imposed a penalty of Rs. 2,42,500/-.
9. The petitioner being aggrieved by the order of the Excise Commissioner, filed an appeal which was registered as Appeal PBR/Appeal/Gwalior/Ex.A./2018/1116. The Board of Revenue, by order dated 26.2.2018 (Annexure P-2) has dismissed the appeal, accordingl
