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2004(2) Supreme 180
SUPREME COURT OF INDIA
(From Chhattisgarh High Court)
V.N. Khare, CJI., S.B. Sinha & S.H. Kapadia, JJ.
Secretary, Department of Excise & Commercial Taxes and Ors. -Appellants
versus
M/s. Sun Bright Marketing Pvt. Ltd. Chhattisgarh and Anr. -Respondents
Civil Appeal No. 6425 of 2002
Decided on 12-2-2004
Counsel for the Parties :
For the Appellants : Prakash Shrivastava, Advocate.
For the Respondents : P.N. Mishra, Sr. Advocate, P.K. Bansal, Pankaj K. Singh, Dr. Vinod Tiwari, K.L. Janjani, Advocates.
Held : Section 24 of the Act does not militate against the claim of remission in the licence fee, in the event a closure is effected thereunder. (Para 34)
Rule VIII of the General Licence Conditions also enjoins upon the licensee to keep the shop open everyday throughout the year unless their temporary or permanent closure has been authorised by the Collector. Rule VIII aforementioned also in our considered opinion contemplates a situation where Sub-Section (2) of Section 24 would be attracted. The proviso appended to Sub-Section (2) of Section 24 will have to be read as a part of the main enactment and not an exception thereto. Sub-sections (1) and (2) of Section 24 as also the proviso appended thereto refer to the closure of shop for the reasons stated therein. Whereas in terms of Sub-Section (1) of Section 24 the Collector may pass an order, in a case falling within the purview of Sub-Section (2) thereof, even a Magistrate can pass such an order. Thus, Rule VIII of the General Conditions also refers to a temporary or permanent closure, as has been authorised by the Collector and, thus, the same having regard to the principles of purposive construction would include an order passed by a Magistrate in terms of Sub-Section (2) of Section 24. In that view of the matter, if a Magistrate is not available when a riot or unlawful assembly occurs, the licensee having a statutory duty to close the shop; the same shall stand at par in view of the fact that in both the situations maintenance of public peace is mandatory. Clause (3) of Rule VIII stands on a different footing. Proviso appended to Clause (3) of Rule VIII refers to closure under the said rule, viz., Rule VIII. The said proviso does not cover clause (3) of Rule VIII alone but also brings within its fold a case falling under Clause (1) aforementioned. Therefore, in a situation of this nature, the licensee is entitled to claim remission in licence fee and/ or damages. (Paras 36 to 38)
So far as the closure of the shop in terms of the direction of the Collector dated 21.6.2000 is concerned, the same is not in dispute. The validity of the order of the Collector is not in question. Schedule-4 specifies the dry days and also specifies the date on which the shops are required to remain closed. The note appended to Clause (V) specifically directs closure of shops of only those areas falling within the area where elections are being held. The area refers to the cases in respect whereof the election is being held and not which is outside the said area. In terms of Schedule-4, a remission in licence fee is impermissible if the closure occurs for a reason mentioned in any of the clauses referred to therein. The shops which are situated outside the area where election is being held would not, therefore, come within the purview of Clause (V) and, thus, would attract Clause (VIII) aforementioned, in terms whereof, the Contractor becomes entitled to grant proportionate rebate/concession in auction money as prescribed for the concerned shop. (Paras 42 and 43)
However, so far as the claim of the respondent for the period 1st April, 2000 to 3rd April, 2000 for non-grant of licence is concerned, in our opinion, the same does not come within the purview of the Act, the General Conditions or the conditions of Sale Memo. The respondent for the aforementioned purpose must avail other remedies, if any, in relation thereto. We, therefore, are of the opinion that the judgment of the High Court to that extent cannot be sustained. (Para 48)
JUDGMENT
S.B. Sinha, J.-The judgment of the Chhattisgarh High Court dated 4.4.2001 passed in Writ Petition No. 6021 of 2000 granting exemption from payment of licence fee is in question before us in this appeal.
2. The respondent herein was awarded a contract for running Indian Made Foreign Liquor shops in the district of Raipur for the period commencing 1.4.2000 to 31.3.2001. Although the contract was to commence from 1.4.2000, he had been handed over the licence on 3.4.2000.
3. The respondent claimed deduction by way of remission and/or compensation from the amount of licence fee payable by him for three periods for different reasons which are:
(i) For closure of shop due to holding of municipal election at several places wherefor the liquor shops situated within a radius of 25 kilometers from the Municipal Corporation of Durg and Bhilai were directed to be closed.
(ii) For closure of shop for five days consisting of - three days due to agitation on account of constitution of Chhattisgarh State, one day owing to strike with regard to constitution of High Court Bench at Raipur and one day on account of strike on Kargil issue.
(iii) For non-grant of the licence from 1st April, 2000 to 3rd April, 2000.
4. The High Court in its judgment held that the respondent was entitled for compensation and/or exemption from payment of licence fee for three days when the liquor shops remained closed due to political agitation and demonstration. He was also found to be entitled for compensation and/or exemption from payment of licence fee for a period of three days for the period when the shops were directed to be closed for municipal election. The High Court further held that the respondent was also entitled to exemption from payment of licence fee for three days, i.e., for the period from 1st April, 2000 to 3rd April, 2000 on account of delay in handing over the licence.
5. Mr. Prakash Shrivastava, learned counsel appearing on behalf of the State would urge that the respondent herein was not entitled to any compensation and/ or remission in licence fee for closure of his shops owing to holding of election of municipal corporation at Raipur in view of the provisions contained in Sub-Section (1) of Section 24 of the Madhya Pradesh Excise Act, 1915 (for short "the Act") as in terms thereof the District Collector is empowered to direct closure of such shops for maintenance of public peace.
6. The learned counsel would argue that closure of shops due to political agitation and demonstration cannot give rise to any claim for compensation in view of condition No. 18 of the Sale Memo as also General Condition No.8.
7. So far as the judgment of the High Court directing payment of compensation for the period 1st April, 2000 to 3rd April, 2000 is concerned, Mr. Shrivastava would argue that the same is impermissible under the provisions of the Act.
8. Mr. P.N. Mishra, learned counsel appearing on behalf of the respondent, on the other hand, would urge that from a perusal of the note appended to Clause (V) of the conditions laid down in Schedule-4 of the Sale Memo, it would be evident that there was no embargo for claiming payment of compensation as in terms thereof only those shops, which fall within the area of the local bodies, where election was to be held, were required to be compulsorily closed.
9. Mr. Mishra would further submit that having regard to the proviso appended to Sub-Section (2) of Section 24 of the Act, a statutory duty was cast upon the licensee to close down his shop in the event of any riot or unlawful assembly takes place and in that view of the matter, the licensee was entitled therefor to claim exemption and/or remission from payment of licence fee.
10. The learned counsel would submit that Rule VIII (3) of the General Licence Conditions whereupon the learned counsel for the appellant has relied upon will have no application in the instant case. He would urge that Rule VIII of the Gene
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