IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3472 of 2009 Rajendra Prasad son of Shri Yugal Prasad Sah, Resident of village Duhbi Bazar, P.S. Basopatti, District Madhubani… … Petitioner Versus 1.The State of Bihar through the Secretary to the State Government-cum-Excise Commissioner, Bihar, Patna, 2. The Excise Commissioner, Bihar, Patna, 3. The Collector, Madhubani, 4. The Superintendent of Excise, Madhubani… Respondents with CWJC No.3473 of 2009 Girdhari Lal Prasad son of Shri Bhagwat Prasad, Resident of village Mehsaul, P.S. Sitamarhi, District Sitamarhi… … Petitioner Versus 1.The State of Bihar through the Secretary to the State Government-cum-Excise Commissioner, Bihar, Patna, 2. The Excise Commissioner, Bihar, Patna, 3. The Collector, Sitamarhi, 4. The Superintendent of Excise, Sitamarhi … Respondents ----------- For the Petitioners : Mr. Satya Bir Bharti, Advocate, For the S t a t e : Mr. P.K. Shahi, Advocate General. ….. 2 24.03.2009 Heard learned counsel for both the sides. The petitioner in C.W.J.C. No. 3472 of 2009 is a licensee of a retail liquor shop in the district of Madhubani for the financial year 2008-09. The petitioner in C.W.J.C. No. 3473 of 2009 is licensee of a liquor shop in the district of Sitamarhi for the financial year 2008-09. The petitioners have approached this Court for declaring Rule 7(2) of the Bihar Excise (Settlement of Licenses for Retail Sale of Country/Spiced Country 2 liquor/foreign liquor/beer & Composite Liquor Shop) Rules, 2007(hereinafter to be referred to as “the Rules”) as ultra vires the Bihar and Orissa Excise Act, 1915 and Article 14 of the Constitution of Indias, inasmuch as the aforesaid Rules enables the respondents to settle liquor shops in less than 15 days from the date of issuance of a sale notification inviting applications for settlement of liquor shops. The petitioners got their respective licences to conduct their respective shops in the respective districts till 31.03.2009. By the middle of February 2009, recently a notice was issued for awarding fresh settlement of the retail liquor shops in the entire State of Bihar and the date of settlement was fixed in between 14.03.2009 to 23.03.2009, but the above date was kept in abeyance, as election of Lok Sabha was announced. On 16.03.2009 the Election Commissioner allowed to proceed with the settlement and thereafter the Excise Commissioner issued notice and directed the Collectors of the concerned districts to proceed with the settlement of the liquor shops on the dates as provided in the notice. The schedule dates were provided in the aforesaid notice for settlement of retail liquor shops in between 26.03.2009 to 29.03.2009. The aforesaid notice has been 3 annexed as annexure 6 to the writ applications. The case of the petitioners is that that the Collector of Madhubani issued advertisement fixing date of settlement on 28.03.2009 and the Collector of Sitamarhi issued advertisement fixing the date of settlement on 27.03.2009. It is the contention of the petitioners that since Rule 6 and 7 of the Rules are violated, the notice of settlement is illegal. It is also submitted that Rule 7(2) empowers to issue notice in less time than fifteen days also. Rules 6 and 7 of the Rules read as under: “ 6. Date of settlement—(1) The date of first settlement, for any period in different districts, shall be determined and notified by the Excise Commissioner after its approval as mentioned in Rule 7 of these Rules by the competent authority and shall be published in the leading newspapers/web site of the department and thereafter communicated to the Collector, who shall get the same published in widely circulated newspaper, which shall include following particulars:- (i) date of settlement of country liquor/spiced country liquor, foreign liquor and the composite shop of liquor; (ii) time and place of settlement of licenses; (iii) any other particulars or requirements which may be deemed necessary; (iv) the last date, time and place of receiving the application with necessary documents and application for participating in the settlement. 4 (2) Except for unavoidable circumstances, the Licensing Authority shall commence the settlement proceedings on the date or dates fixed and leave any unsettled shop for subsequent settlement. If it is necessary to defer the settlement on any account, the Licensing Authority shall immediately inform the Excise Commissioner with the deferred date giving reason for deferment. (3) The shops, which could not be settlement on the first date of settlement, shall be settled, ordinarily, within ten days. After closing of the settlement on the first date, the Licensing Authority shall declare the date of re-settlement of balance shop, and shall notify and announce the programme. Provided that if any retail liquor shop not settled through lottery, the Bihar State Beverages Corporation Ltd. with the approval of Excise Commissioner, will manage to establish and run such shop. 7. Sale Notification—(1) Sale notification in excise form 127 shall be published with the prior approval of Board of Revenue, ordinarily fifteen days before the date fixed for commencement of settlement, in which general conditions of settlement shall be mentioned, besides other facts. A copy of it shall be pasted for inspection at the collectorate or at the place where settlement is held. (2) Sale notification issued in excise form 127 shall include general terms and conditions of the settlement, prescribed by the Excise Commissioner after approval of the Board of Revenue and those terms shall be deemed to be included in the conditions of licence. In special circumstances, the sale notification shall be published within less time than fifteen days also. (3) Descriptions of shops, their annual minimum guaranteed quantity and the licence fee of each shop shall be incorporated in the sale notification by the 5 licensing authority.” In this case, the fact that licence of the petitioners will cease with effect 31.03.2009 is not in dispute. The petitioners cannot continue with the liquor shop after 31.03.2009, as the settlement is only up to that date. In February 2009 itself the Department took steps to conduct fresh settlement for the year 2009-2010, but due to Election of Lok Sabha the same has been postponed awaiting permission from the Election Commission and after getting approval from the Election Commission on 16.03.2009 fresh notice was issued on 19.03.2009 for settlement of the liquor shops in between 23.03.2009 and 29.03.2009. Thereafter the respective Collectors of the Districts also issued notice and advertisement in the newspaper in the area fixing the respective dates, and, therefore, they have complied. Learned counsel for the petitioners submitted that as per the provisions contained in the Bihar Excise Act, a sale notification in form 127 should be published at least 15 days before the date fixed for commencement of the settlement and in the decision of this Court in the case of Uma Shankar Singh v. Excise Commissioner, Bihar, Patna and others(1988 Patna Law Journal Reports, 942), such a 6 notification was set aside, because it was not issued in accordance with the procedure prescribed under the Bihar and Orissa Excise Act, 1915 and the notification as published in the newspaper. In the present case, notifications were published in accordance with the present Rules. As per the present Rules, as quoted above, the notice impugned has been published in the newspaper for settlement of the liquor shops in the respective Districts on the respective dates and after getting permission from the Election Commission, the respective Collectors have published the notice in the newspaper, which is the requirement of law. In the present case, dates of settlement were fixed in February 2009 itself fixing the dates between 14.03.2009 and 23.03.2009 and thereafter advertisements were published to that effect. But since elections of the Lok Sabha were declared, those notices were kept in abeyance and settlements were adjourned awaiting permission from the Election Commission. After permission of the Election Commission, the respective dates were fixed. The Collectors of the Districts also published advertisements fixing dates in view of the intervening declaration of election of the Lok Sabha and the delay in getting the permission from the Election Commission 7 for issuance of further fifteen days’ notice cannot be issued, because auction has to take place before 31.03.2009. Reduction of notice period is fully justified. Settlement of liquor licences in every year much before next financial year is a routine affair. Since the settlement is given on the basis of lottery system by including all the eligible bidders, it has no effect in the election. Rule 7(2) of the Rules speaks of reducing the time notice and in this case the Excise Commissioner obtained the permission from the Board of Revenue also and all the formalities were completed. Even though the petitioners questioned the validity of Rule 7(2) of the Rules, no valid grounds are stated to quash the same. It is not shown to us as to how the above Rule to reduce the time of notice to meet the exigency of circumstances is violative of the Act or the provisions of the Constitution of India. In fact, facts in these cases fully justify reduction of notice period by virtue of the powers given under Rule 7(2) of the Rules. If a settlement made, in any way, vitiated either due to favourtism, malafide or lack of procedural formalities, aggrieved party or parties can challenge the same in accordance with law. 8 In the background of the aforesaid circumstances, Rule 7(2) of the Rules cannot be said to be ultra vires, and it cannot be said to be violative of Article 14 of the Constitution of India. In the result, both the writ applications are dismissed. (J.B. Koshy, CJ) SC ( Dr. Ravi Ranjan, J.)