CIVIL WRIT JURISDICTION CASE No.5089 of 1998 In the matter of an application under Article 226 of the Constitution of India. 1. SUNIL KUMAR son of Sri Siya Saran Prasad, resident of Mohalla Kagzi Mohalla Siwan, PS Siwan, District Siwan 2. Vir Kuer Singh son of sri Sarwan Kumar Singh, resident of Darauli PS and District Siwan ........ .............Petitioners Versus 1. THE STATE OF BIHAR 2. The Hon’ble Member, Board of Revenue, Old Secretariat, Patna –I 3. The Excise Commissioner, Bihar, Patna, Vikash Bhawan, New Secretariat, Patna -1 4. The Collector, Siwan 5. The Superintendent of Excise, Siwan................. Respondents ******** For the Petitioners : Mr Shivanand Prasad Sinha Mr. Jayanand For the Respondents : Mr. Rai Shivaji Nath, AAG III P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE SAMARENDRA PRATAP SINGH S P Singh, J. The two petitioners have prayed for quashing the order dated 11.7.97 contained in Annexure 3, issued by the Superintendent of Excise, order dated 4.11.97 passed by the Commissioner of Excise contained in Annexure 4, and the order dated 27.1.98 contained in Annexure 5, passed by the learned Member, Board of Revenue, whereby the petitioners have been directed to pay the additional annual licence fee proportionately as they have lifted spirit in excess of 30% permissible minimum guarantee quota. 2. Petitioner no.1 was settled country spirit shops at Afrad More, Tarwara More, Mahua and Hassanpura. Petitioner no.2 was settled Aswan and Darauli country spirit shops in open auction. The sale notification dated 4.2.97 issued by the Collector, Siwan, laid down conditions of tender for auction sale of country liquor shops. The petitioners have relied upon clause 19 of the sale notification. Clause 19, states the successful settlees would submit a chart to the Collector of minimum guarantee quota that they would lift, who 2 would take a final decision in this respect. By referring to sub-clause (Kha) of clause 19, learned counsel submits that only after approval of the minimum guarantee quota, the licensee would be permitted to lift additional quantity after payment of additional licnece fee, if the amount lifted is in excess of 30% of minimum guarantee quota. The petitioners state that they filed detailed chart on 25.3.99 specifying the minimum guarantee quota that they would lift from country liquor shops allotted. The Collector of Siwan fixed the minimum guarantee quota only on 10.7.97. In the intervening period between 1.4.99 to 10.9.99, the petitioners did lift country liquor in excess of 30% of allotted quota. The details of quantity lifted is mentioned in paragraph -12 of the writ petition. The petitioners submit that authority has erred in demanding the additional licence fee for the additional monthly quota lifted by them between 25.3.97 to 10.7.97 in excess of 30% as Collector fixed the monthly quota only on 10.7.97. Thus the authorities are not entitled to levy additional licence fee for lifting of excess of liquor beyond monthly MGQ till the quota is itself approved by Collector of the district. 2. Mr. Rai Shivaji Nath, learned Additional Advocate General III, submits that the petitioners knew the exact minimum guarantee quota that they had applied for. He submits that the settlees admittedly were in know of sale notification dt. 4.2.97 which mandates that settlees lifting in excess of 30% of quota will have to pay additional licence fee. 3. We have heard learned counsel for the parties and perused the materials on record. It is not in dispute that the petitioners lifted more than the 30% of minimum guarantee quota that they had applied for between 1.4.97 to 10.7.97. The sale notification clearly spelt that if a licensee lifts more than 30% of the allotted quota, additional licence fees would be chargeable. Thus while lifting the additional quota of liquor they very well knew that it was not 3 permissible to lift more than minimum guarantee quota applied for, till they paid additional licence fee. The licensees cannot be permitted to take advantage of technicality that the additional quantity ought to have been released only after having deposited the additional licence fees from them. The petitioners had enjoyed the benefits of lifting additional quantity as such they would be liable to pay additional licence fees proportionately. The three courts below have rightly held that the petitioners would be liable to pay the additional licence fee. 4. We have no reason to interfere with the orders of the learned courts below. The writ petition is accordingly dismissed. ( S P Singh, J. ) S K Katriar, J. I agree. ( S K Katriar, J.) Patna High Court, Patna The 7th of February 2011 NAFR/mrl