Decided on February 06,1973

CHAITRAM Appellant


- (1.) THE petitioner was granted exclusive privilege in respect of four outstill liquor shops at Jatni, Naharpara, Daspalla and Chandka all located in the district of Puri under Section 22 of the Bihar and Orissa Excise Act for the year 1972-73 on a monthly consideration of Rs. 50,500/- by the State Government. Licenses were issued as required under Section 22 (2) of the Act to the petitioner. The petitioner had, as required under the rules, deposited a sum of Rs. 1,01,0007-being the sum equal to two month's consideration money and had undertaken to pay every month's consideration money on the first day of the subsequent month. He filed O. J. C. No. 633 of 1972 in this court challenging the vires of some of the provisions of the Act and the Rules made thereunder, and applied for interim orders. On 248-72, this Bench gave the following directions:-- "issue notice of admission and hearing. There shall be stay of realisation of the amount on the following conditions:--The petitioner shall be called upon to pay out of the entire dues payable upto March, 1973 dues of the three months. The first instalment would be payable by the end of September, 1972 and the second by the end of november, 1972 and the third by the end of January, 1973. It is stated that two month's licence fee is already in deposit. That would be held by government under the arrangement already entered into. Expedite hearing of this case. Failure to pay any of the instalments as directed would entail withdrawal of the orders of stay without further reference to the Bench. " The petitioner paid the instalment due by 30-9-72 in time. On 30-11-72 he got a chalan for Rs. 50,500/- passed by the Sub-Inspector of Excise, Jatni and along with a cheque for the said amount drawn on the Union Bank of India, Cut-tack, made over the treasury chalan to the State Bank of India at Khurda for crediting to the Government account. On 1-12-72, he intimated the Superintendent of excise at Puri of the action taken by him on the previous day said to be in compliance with the directions of this Court. On 15-12-72, the Additional District magistrate, Puri wrote the following letter to the petitioner, "it is learnt from your letter under reference that you submitted a cheque bearing No. CT 104031 dated 30-11-72 at the State Bank of india, Khurda on 1-12-T2 towards payment of the second instalment payable by the end of November, 1972. Therefore, it is evident that you have not paid the consideration money in time as provided under Rule 118 of the Board's Rules, 1965 and further disobeyed the direction of the Hon'ble High Court of Orissa given on 24-8-72 in O. J. C. No. 683 of 1972. Failure of payment of this instalment payable by the end of November, 1972 as directed thus amounts to withdrawal of the orders of stay without further reference to the Bench. Please, therefore, take notice as to why the grants of the above four shops should not be cancelled as provided under Section 42 (1) (b) of the Orissa Excise Act. X X X X the petitioner on 23-12-72 wrote back to the Additional District Magistrate saying that he had actually made over the cheque along with the requisite chalan on 3011-72 and not on 1-12-72 as indicated in the notice to show cause. The petitioner contended that he had complied with the directions of this Court. On 1-1-73, the superintendent of Excise, Puri informed the petitioner that the Collector of Puri had cancelled the outstill liquor licenses held by the petitioner for the year 197273 for non-payment of monthly consideration money. For the remaining period of the year the outstill shops in question were directed to be put up for auction on 27-1-73. The petitioner thereupon filed this writ application. On 25-1-73, we directed issue of notice of admission and hearing and called upon the Collector not to re-settle the shops in the meantime.
(2.) IN the counter-affidavit of the Deputy Commissioner of Excise it has been contended that there was no compliance with the direction dated 24-8-72. The government account is said to have been credited only on 19-12-72 when the cheque given by the petitioner was encashed. According to the opposite parties, therefore, for non-compliance with the conditions indicated in the order of 24-8-72 there has been an automatic vacation of the stay. Consequently the cancellation is justified and the petitioner is not entitled to any relief.
(3.) DURING the hearing of the petition, Mr. Mohanty relying on the decision of the supreme Court in 25 ITR 529 = (AIR 1954 SC 429) (Commr. of Income-tax v. Ogale Glass Works Ltd.) submitted that when the cheque was not dishonoured on presentation it must be taken to have been a payment on the date when the cheque was accepted by the State Bank. The State Bank was the agent of the state Government and when the cheque was accepted on the last day indicated in this Court's order, there must be taken to be a full compliance with the direction because notwithstanding the actual date of encashment which is a subsequent event, payment must be taken to relate back to the date of receipt of the cheque. The learned Additional Government advocate appearing for the opposite parties disputes this contention. According to him, the petitioner has not been able to show that payment by cheque was acceptable either under the rules or in terms of this Court's order. In 25 ITR 529 = (AIR 1954 SC 429) referred to above admittedly payment by cheque was in terms of the agreement. The rules in question which can be taken to represent the usual practice of the department do not contemplate payment by cheques, nor did our order direct payment by such method. We accept the learned Additional Government Advocate's contention that tender of the cheque to the State Bank of India on the last date fixed for compliance, particularly when indisputably the payment was actually received, on 19-12-72 would not amount to compliance with our order.;

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