IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. S.B.Civil Writ Petition No.2150/2001 Surendra Singh Vs. The Excise Commissioner, Udaipur & Ors. Date of order : 05.05.2010 P R E S E N T HON'BLE MR.JUSTICE PREM SHANKER ASOPA Mr.AK Pareek,for the petitioner. Mr.RB Mathur, for the respondents. BY THE COURT Heard learned counsel for the parties. (2). By this writ petition, the petitioner has challenged the auction proclamation dated 3.4.2001 (Annexure/4), letter dated 17.04.2001 (Annexure/6) and auction notice dated 13.04.2001 published in the daily newspaper 'Rajasthan Patrika' dated 23.04.2001 (Annexure/8) issued by the non- petitioner No.2 in relation to the property of the petitioner with a further prayer to direct the non-petitioners not to proceed against the petitioner, in any manner, whatsoever, in relation to the surety offered by him for Bundi Group liquor contract of the non-petitioner No.3. (3). Briefly stated, the relevant facts of the case are that the petitioner stood a surety in respect of the liquor contract granted to the non- petitioner No.3 Paras Ram & Party for the year 1999-2000 and 2000-2001. The non-petitioner No.2 issued a demand notice dated 1.8.2000 to the petitioner calling upon the petitioner to provide his security cover to the deficit in the - 2 - excise revenue pertaining to the Bundi Group liquor contract of non-petitioner No.3 by depositing the amount. It is further stated in the writ petition that the petitioner stood surety only for Rs. 30,00,000/- and the said amount was deposited by him in State Bank of Bikaner & Jaipur through challan alongwith cash and cheque. The details of which are as follows : S.No. Date Challan No. Bank Amount 1. 17.10.2000 Cash deposited SBBJ 10,00,000 by Surendra Singh Bundi through challan 2. 11.12.2000 Transfer “ 7,00,000 (Cheque No.53102) 3. 16.12.2000 Transfer “ 2,00,000 (Cheque No.109551) 4. 18.12.2000 Transfer “ 4,00,000 (Cheque No.109552) 5. 20.12.2000 Transfer “ 4,00,000 (Cheque No.109553) 6. 22.12.2000 Transfer “ 2,00,000 (Cheque No. 109554) 7. 22.3.2001 Transfer “ 92,000 (Cheque No.109555) 8. 13.04.2001 Cash deposited by “ 8,000 Surendra Singh through challan _________ Total 30,00,000 _________ The petitioner has then stated that the respondents again issued an auction proclamation dated 03.04.2001 (Annex.4) mentioning the date of auction sale as 7th & 9th May 2001 indicating the amount as Rs. 30,00,000/- - 3 - Thereafter, the petitioner submitted an application (Annex.5) to the non-petitioner No.2 on 16.04.2001 with reference to the demand notice dated 1.8.2000 and requested that he had deposited the entire surety amount of Rs. 30,00,000/-, therefore, No Dues Certificate may be issued to the petitioner and the immovable property of petitioner, which was attached by the Excise Department on 13.10.2000 be released. The respondent No.2 Excise Department rejected the said representation of the petitioner on the ground that the amount deposited by the petitioner through challan was not the surety amount but the same had been deposited in the account of liquor licencee against the regular sale, therefore, in case the petitioner wanted that his property be released from the attachment and auction, then he should deposit the entire amount in Government account prior to 7.5.2001 i.e. the date of auction. (4). The respondents have filed reply and stated therein that the aforesaid amount has been credited in the account of the licencee and not in the account of the Government. (5). The submission of counsel for the petitioner is that he had proof of challan as well as proof of transferring the said amount in the Government account as surety but the said proof could not be produced before the District Excise - 4 - Officer, Bundi (respondent No.2), so, one more opportunity be granted to the petitioner. Counsel for the petitioner further submits that the property has not been auctioned so far and the same is continuing under attachment. (6). Counsel for the respondents submits that the aforesaid amount has not been transferred in the Government account as surety by the petitioner so far; however, the same has been credited in the account of the liquor licencee. (7). I have gone through the record of the writ petition and further considered the aforesaid submissions of the parties. (8). In my view, since the property of the petitioner is under attachment and the same has not been auctioned so far, therefore, in the interest of justice, one more opportunity be allowed to the petitioner to submit the proof of depositing of the amount of Rs. 30,00,000/- as surety in the Government account. (9). Accordingly, the order dated 17.04.2001 (Annexure/6) passed by the District Excise Officer, Bundi rejecting the representation of the petitioner is quashed and set aside and all consequential orders, except attachment order, are also quashed and set aside and the matter is remanded back to the District Excise Officer, Bundi to allow the petitioner an opportunity to submit proof that the aforesaid amount of Rs. 30,00,000/- has been deposited in the Government - 5 - account as surety. (10). The writ petition is party allowed. The petitioner will appear before the District Excise Officer, Bundi on 31st May 2010 and the matter shall be decided by the District Excise Officer, Bundi within a period of 3 months thereafter. Till then, the property of the petitioner shall continue to remain under attachment and no further coercive action shall be taken by the respondents. (PREM SHANKAR ASOPA),J. N.Gandhi H/1