IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14372 of 2009 UMERI DISTILLERY PVT.LTD A REGISTERED COMPANY INCORPORATED UNDER THE INDIAN COMPANIES ACT, 1956 HAVING ITS HEAD OFFICE AND FACTORY AT JEYPORE, DISTRICT KORAPUT, ORISSA THROUGH ITS AUTHORIZED SIGNATORY AND POWER OF ATTORNEY HOLDER SHRI SANJAY KUMAR SON OF SHRI SACHIDANAND PRASAD, RESIDENT OF MOHALLA- CHOTI KELAWARI, P.S. KOTWALI, P.O.& DISTRICT- MUNGER ......... PETITIONER Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, REGISTRATION, EXCISE AND PROHIBITION DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 2. THE EXCISE COMMISSIONER, BIHAR, PATNA. 3. THE SUPERINTENDENT OF EXCISE, KAIMUR.... BHABUA..................................................................... RESPONDENTS ------- FOR THE PETITIONE :- MR MRIGANK MAULA, MR. VINAY MISTRY & MR. KUNDAN MISTRY ... ADVOCATES FOR THE STATE MR. P.K. SAHI, ADVOCATE GENERAL,BIHAR, PATNA. ------------ 2 6-11-2009 Heard the parties. Petitioner has been awarded an exclusive privilege for manufacture and supply of country made liquor for the district of Bhabhua as is apparent from letter of the Commissioner, Excise, Bihar, Patna dated 21-6-2009 contained in annexure-5. The reason why the petitioner has moved this Court through this writ petition is said to be letter dated 5-8-2009 contained in annexure-9 sent by the Excise Commissioner to the petitioner’s firm. That letter mentions that one of the conditions for grant of exclusive privilege for the period 1-7-2009 to 31-3-2012 is that the petitioner will obtain rectified spirit from a distillery situated in its State. The petitioner-firm belongs to the State of Orissa and petitioner wants this Court to clarify, on the basis of several material that the - 2 - respondents cannot insist that the petitioner must obtain rectified spirit from Orissa only. According to petitioner such condition was not in the tender notice and when it was insisted upon by including it as condition no.18 of annexure-5, the authorities failed to take into consideration the affidavit filed by the petitioner pursuant to letter dated 15-6-2009 by which the tenderer had been invited for negotiation. It appears that in order to comply with the requirement of grant of licence the petitioner faced difficulty in obtaining required quantity of rectified spirit from the State of Orissa only and hence he applied before the authorities of the Excise Department for grant of permission to import rectified spirit from the State of U.P. When the authorities insisted that he should bring the rectified spirit only from the State of Orissa, he preferred C.W.J.C.No. 7139 of 2009 which was ultimately dismissed as withdrawn vide order dated 13-7-2009 contained in annexure-7 in which it has been recorded that learned counsel for the petitioner has prayed to withdraw the writ petition for the reason that there has been a out of court settlement between the parties. On behalf of petitioner it has been submitted that annexures-6 series and annexure-8 which contain permission granted earlier to withdrawal of the writ petition and even later for bringing rectified spirit from the State of Uttar Pradesh, would show that the respondents accepted the request of the petitioner. It causes no harm to the State of Bihar and therefore, they have allowed such permission in the past and there is no reason why they should now insist vide - 3 - annexure- 9 that petitioner must bring rectified spirit only from the State of Orissa. Several legal issues based upon the tender notice, petitioner’s affidavit and past conduct of the respondents have been highlighted to submit that this Court should hold that condition no.18 in annexure-5 is a condition which cannot be mandatory/binding and in any case it stands waived by the respondent authorities by their subsequent conduct and there is no justification for the respondents to now insist that petitioner has to obtain rectified spirit only from its State i.e. Orissa. Learned Advocate General appearing for the respondents has opposed the aforesaid contention and has highlighted that condition no.18 was imposed in the light of such condition indicated in the letter dated 15-6-2009 ( Annexure-3) by which the tenderers were invited for negations and it was, in spite of affidavit of the petitioners given in annexure-4. Hence, according to learned Advocate General there is no good reason to hold that condition no.18 is against law and it was never negotiated between the parties. However, so far as the conduct of the respondents as apparent from annexures-6 series and annexure-8 is concerned, it was submitted that on an application being made by the petitioner that he has difficulty in bringing the rectified spirit from Orissa the authorities had the necessary power to grant permission to bring rectified spirit from other States and this system can be followed even in future if the petitioner makes such an application indicating his difficulty. We are of the view that the stand taken by the learned - 4 - Advocate General is reasonable and it also practically solves the entire dispute and the problem which petitioner may face in case he finds, for some good reason, that required quantity of rectified spirit is not available in Orissa and cannot be brought from a distillery situated there. As a result the stand taken by the learned Advocate General, Bihar is accepted with the explanation that the power of the authorities to insist that petitioner must bring rectified spirit only from its own State is directory and in appropriate situation, as in the past they will grant permit to the petitioner to import rectified spirit from other States, as per request made. This clarification would provide a practical solution to the grievance of the petitioner and problems that may have arisen in its way on account of strict adherence to Clause 18 of the grant. In our view, since learned counsel for the petitioner is also satisfied with the stand of the Advocate General indicated above no further adjudication is required. The writ petition is, accordingly, disposed of. ( Shiva Kirti Singh,ACJ) ( Shyam Kishore Sharma,J) Naresh