Decided on July 18,1984



M. C. JAIN, J. - (1.)BY this writ petition, under Art. 226 of the Constitution, the petitioner seeks to quash the notices (Ex. 11) dated June 7, 1984 and (Ex. 12) dated June 14, 1984.
(2.)THE petitioner was intimated that for the month of April, 1984, the short fall was Rs. 5. 15, 313. 228. and for the month of May, 1984, the short fall was Rs. 5 84, 632 00 p THE total short fall comes to Rs. 11. 00,945. 22 p. This total short fall was adjusted against the petitioner's amount of security which runs upto Rs. 16,66,671/ -. THE petitioner was called upon to deposit the amount of short fall by June 22, 1984 failing which his licence would be cancelled and at his risk, second auction would be ordered.
The petitioner submitted his tender for issuance of licence for Bikaner City group shops which are 12 in number for the sale of country liquor for the years 1984-85 and 1985 86. His tender was approved although the minimum guarantee stated in the list was muchless but he was the highest tenderer. After approval of his tender necessary formalities were completed and thereafter, licence was issued to the petitioner. The petitioner has tried to explain in the petition as to why he did not deposit the amount of short fall. The petitioner has stated that in respect of the main shop of Alakhsagar, site was not approved by the Department and in respect of three other shops namely; sub-shop at Chokhuthi, main shop at Teliwada and Kot Gate shop, some circumstances arose as a result of which, the petitioner could not continue with these shops. Out of these three shops, in respect of the first two shops, suits were instituted by the residents of the locality and an injunction was obtained and in respect of the third shop, there was a public agitation on account of which the petitioner was unable to run that shop According to the petitioner, the petitioner was not at all at fault and so, the petitioner is entitled to claim that the Department is not entitled to recover the amount of short fall from the amount of security.

A reply to the writ petition has been filed on behalf of respondents No. 1 to 3. A rejoinder to the reply has also been filed.

I have heard Mr. N. M. Lodha, learned counsel for the petitioner and Mr. H. N. Calla learned Government Advocate at sufficient length and after hearing. I am of the opinion that the present writ petition is misconceived.

The parties are at serious issue on the question of approval of the site relating to the main shop at Alakhsagar. The petitioner's case as stated in the petition and the rejoinder is that he submitted the site for Alakhsagar shop and the Excise Inspector gave his consent. In the original writ petition, the petitioner did not make mention of the specific date as to when he applied for the approval of the site. Learned counsel for the petitioner stated at the bar that it was done on March 31, 1984. It was stated that when approval was not conveyed to the petitioner, on enquiry, it was revealed that it was refused on the ground that there was a public demand for not opening the shop in Alakhsagar area The petitioner further averred that on account of public agitation, no shop was made available to the petitioner, and the District Administration also wrote to the Excise Department that public demand should be kept in mind while granting approval as there are chances of breach of peace. The petitioner further averred that the District Excise Officer with the consultation with the District Administration asked the Municipal Council for allotment of the land which was lying vacant in the area and before that request, the District Excise Officer and the Excise Inspector inspected the site and found it suitable for establishing the shop and in that connection, the petitioner even deposited a sum of Rs. 450/ with the Municipal Council and that land was allotted to him for installing a cabin. But there was agitation and the petitioner's cabin was removed and stock was also removed.

(3.)IN connection with the facts stated by the petitioner relating to Alakshagar shop, the respondent's reply is of denial. It has been categorically stated in reply to para 3 of the petition that when approval was sought in respect of the main shop, the Excise INspector after enquiry and inspection, did not approved the site and the petitioner was asked to submit another location but the petitioner failed to submit another location. On the contrary, the petitioner started without approval that shop on April 1, 1984 in respect of which a case was registered by Excise INspector for breach of condition of the licence. As regards allotment of land by Municipality and placing of cabin by the petitioner and starting of business there it was averred that the petitioner did not apply for another location for opening of the shop after withdrawal of the permission by the Municipal Council. It is stated that the respondents were prepared to help the petitioner foropening the shop but it was the fault of the petitioner who did not submit any application for proper location for opening the shop at Alakhsagar. It would appear from the pleadings of the parties that the parties are at issue on question of facts and such disputed question of facts cannot be gone into in this writ petition. Who was at fault in connection with the opening of the shop at Alakhsagar whould depend on the findings of disputed questions of facts.
So far as the other three shops are concerned, the case of the respondents is that the petitioner was asked to seek approval for alternative site and on the very date, the alternative site was applied for, it was approved. In case of Chokhuti sub shop, application for alternative site was made on April 28, 1984 and on the same date, it was approved. Similarly, in case of Teliwada shop, the petitioner was asked to give another location which he submitted on April 27, 1984 and on that very date, it was approved. In respect of Kota Gate shop the respondents' plea is that they are in any way not responsible for any public agitation as per licence condition No. 14. I have perused condition No. 4 and to my mind, to a situation as stated by the petitioner, condition No. 14 is not at all attracted.

Still in connection with short fall, the questions may arise was there any short fall? If so, to what extent? and for what reasons? And whether respondents can be held liable for the same, These questions cannot be answered without evidence. The respondents have pleaded that the petitioner has not suffered any loss whatsoever. The licence was a group licence relating to 12 shops. If the petitioner does not suffer any loss then hardly, the question of short fall will arise and the petitioner would not be entitled in any case for any adjustment of short fall. In this connection as well, it is suffice to say that it would again be a question of evidence as to whether the petitioner has suffered any loss entitling him to claim the amount of short fall in his monthly liability as contemplated under the licence Ex. R. 1. The petitioner's conduct cannot be lost sight of. His tender was approved as back; as January 21, 1984 and other formalities were also completed. He ought to have got the sites approved much before 1. 4. 1984, the date of commencement of the licence. For Alakhsagar site, he waited upto 31. 3. 1984 and for other three sites even thereafter, for which he is to blame himself. Had the petitioner applied for the approval of the sites soon after the acceptance of the tender, no difficulty would have arisen. For any such reasons as stated by the petitioner there has been any short fall, the petitioner's aforesaid conduct cannot be overlooked and if the petitioner fails to pay the monthly guarantee amount, action can be taken by the competent authority under clause 24 (Kha) of the Licence.

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