IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.8127 of 2010 ========================================== SHRI SURENDRA PRASAD SINGH S/O LATE SHARDA PRASAD SINGH PRESENT R/O HOTEL 'KANCHAN', MAIN ROAD, DANIYAWAN, P.S.- DANIYAWAN, DISTT.- PATNA Versus 1. THE STATE OF BIHAR 2. MEMBER, BOARD OF REVENUE, BIHAR, PATNA 3. THE EXCISE COMMISSIONER, BIHAR, PATNA 4. THE COLLECTOR, PATNA 5.THE ASSISTANT COMMISSIONER OF EXCISE, PATNA ========================================== Appearance : For the Petitioner : Mr. Abhinay Raj For the Respondent: Mr. Ram Balak Mahto, A.G. Mr. Ajeet kumar, Assisting counsel to A.G. Mr. Krishna Chandra, Assisting counsel to A.G. ========================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 04. 05.01.2011 This petition filed under Article 226 of the Constitution challenges the judgment and order dated 24th July 2009 passed by the Board of Revenue in Revision Application No. 1 of 2009. The facts material are; in response to the sale notification dated 11th June 2007 published by the District Collector, Patna for settlement of liquor shops in the district of Patna, the petitioner applied for Licence for country liquor shop at Punpun, District-Patna and for composite liquor shop at 2 Sigariyao, Shahjanpur, District-Patna. Under the sale notification the settlements were made by draw. The petitioner succeeded in winning the draw for country liquor shop at Punpun and for composite liquor shop no. 93 at Sigariyao, Shahjanpur. The petitioner did deposit the security money and advance licence fee in accordance with the sale notification in respect of shop no. 93 at Sigariyao, Shahjanpur. But he failed to deposit the security money and the advance licence fee for the sale of country liquor shop at Punpun. Consequently, settlement of both the shops made in favour of the petitioner were cancelled and the security money and the advance licence fee deposited in respect of shop no. 93 at Sigariyao, Shahjanpur was forfeited. The challenge to the action of the respondent authority in forfeiting the amount of security money and the advance licence fee for shop no. 93 at Sigariyao, Shahjanpur before the Commissioner of Excise failed. The Commissioner of Excise by his order dated 8th August 2008 made in Case No. 13 of 2008 rejected the claim. The said order was confirmed by the Board of Revenue in Revision Application No. 1 of 2009 by its order dated 24th July 2009. Therefore, the present petition. Learned Advocate Mr. Abhinay Raj has appeared for the petitioner. He has submitted that as far as the shop no. 93 was concerned, the petitioner did deposit the security money and the advance licence fee as required. There was no reason to cancel the said settlement made in favour of the petitioner or in 3 forfeiting the amount deposited by him. True, the petitioner did not challenge the cancellation of settlement as after the cancellation of the settlement made in favour of the petitioner the successor happened to be the son of the petitioner. Nevertheless the action of forfeiture of the deposit was without the authority of law. The petition is contested by the learned Advocate General. He has relied upon Rules 12, 15 and 16 of the Bihar Excise (Settlement of Licences for Retail Sale of Country/Spiced Country Liquor/Foreign Liquor/Beer and Composite Liquor Shop) Rules, 2007 (hereinafter referred to as “the Rules”). He has submitted that Rule 12 of the Rules provides for cancellation of all settlements made in favour of an applicant in case he fails to deposit the security money and the advance licence fee in respect of any of the shops settled in his favour. Rule 16 of the Rules provides for forfeiture of such amount in a case where the settlement is cancelled. We are unable to agree with the learned Advocate General. Rule 12 of the Rules does provide that if an applicant backs out from the settlement he shall be disqualified from settlement of any shop in the State. However, the said Rule does not envisage forfeiture of the amount of security money and the advance licence fee deposited by such applicant in respect of any other shop. Rule 15 of the Rules provides for payment of advance security and one twelfth of the annual 4 licence fee. Rule 16 of the Rules provides; “Default in Advance security-In case of failure to deposit the amount of advance security and the advance licence fee, as mentioned in Rule 15 of these Rules within the prescribed time, the settlement shall stand cancelled and the deposited amount, if any, shall be forfeited to the Government and shop shall be settled with the candidate at serial number two and three in descending order of the seriatem in the lottery.” The aforesaid Rule 16 thus empowers the State to forfeit the amount of the advance security and the advance licence fee, if any, deposited by an applicant in case the settlement of a shop made in his favour is cancelled. That necessarily means that the settlement of a shop can be cancelled in case of which the applicant has failed to deposit the amount of advance security and the advance licence fee as envisaged by Rule 15 of the Rules. Rule 16 does not provide for forfeiture of the amount of deposit made by an applicant in respect of one shop in case he fails to deposit the advance security and advance licence fee in respect of some other shop. In our opinion, the conjoint reading of Rules 12, 15 and 16 of the Rules also does not empower the State to forfeit the advance deposited by an applicant in respect of one shop if he fails to deposit the advance security and the advance licence fee as envisaged by Rule 15 of the Rules in respect of any other sop 5 in respect of which a settlement is made in his favour. In the present case that exactly is the situation. The petitioner won settlement of two shops; one at Punpun and one at Sigariyao, Shahjanpur. He did deposit the amount of advance security and advance licence fee in respect of shop no. 93 at Sigariyao, Shahjanpur but failed to deposit such amount in respect of the shop at Punpun. The State may have legitimately cancelled the settlement made in respect of both the shops as envisaged by Rule 12 of the Rules. However, Rule 12 does not empower the State to forfeit the security money and the amount of advance licence fee deposited in respect of one of the shops for failure to deposit such amount in respect of some another shop. The State could not have forfeited the security money and the advance license fee deposited in respect of shop no. 93 at Sigariyao, Shahjanpur for failure to deposit such amount in respect of the shop at Punpun. In our opinion, the authority below and the Board of Revenue both have failed to correctly interpret and implement the Rules in respect of the case in hand. The denial of the authority below to refund the amount of deposit made by the petitioner in respect of shop no. 93 at Sigariyao, Shahjanpur is illegal and requires to be quashed and set aside. For the aforesaid reasons, we allow this petition. The impugned order dated 24th July 2009 made by the Board of Revenue in Revision Application No. 1 of 2009 is quashed and 6 set aside. Consequently, the Case no. 13 of 2008 filed before the Commissioner of Excise is allowed. The respondent no. 4 District Collector, Patna is directed to refund the amount of advance security and the advance licence fee deposited by the petitioner in respect of shop no. 93 at Sigariyao, Shahjanpur within two months from today. In the event the respondent no. 4 fails to refund the aforesaid amount to the petitioner within two months as directed, commencing from 7th of March 2011, the petitioner will be entitled to recover interest on the aforesaid amount at the rate of 10 per cent per annum till the date of payment. The parties will bear their own cost. The registry will send the writ of this order to the respondent no. 4 forthwith. S.Sb/- (R.M. Doshit, CJ.) (Jyoti Saran, J.)