K.C. Agarwal, J. - (1.) THIS writ petition under Article 226 of the Constitution has been filed by Vijay Kali Shanker Mishra challenging the recovery of Rs. 1,75,553/ - from the petitioner as the shortfall between the prices of the shops in question at the re -auction and those at the auction held earlier in favour of the petitioner. The petitioner participated in the auction held on 21st March, 1986 for the year 1986 -87 for retail vend of 'bhang' in the district of Mirzapur and was the highest bidder for the various shops, details of which are given below:
(2.) THE petitioner deposited 1/6th of the licence fee and also the licence fee for the months of April, May and June, 1986. The petitioner was given provisional licence to sell 'bhang' at the places mentioned above. The petitioner has claimed that on account of non -supply of 'bhang' by the Excise Department, he could not do the business he was entitled to. The petitioner expressed his desire to withdraw from his bids and stopped depositing the licence fee. The petitioner was declared to be defaulter and the shops were re -auctioned on 24th October, 1986. There was a shortfall of Rs. 1,75,553/ - between the prices offered by the petitioner and those fetched at the re -auction. The Collector issued a recovery certificate for recovery of the shortfall against the petitioner. The Tahsildar was taking steps to recover the amount of the shortfall when the present petition was filed mainly on three grounds: (1) As the bid had not been approved by the Excise Commissioner, the entire proceedings for recovery against the petitioner were void. (2) No concluded contract between the petitioner and the Excise Department had taken place and as such the shortfall could not be recovered as arrears of land revenue. (3) In the absence of a concluded contract, even a suit for recovery of the shortfall would not be maintainable. We have heard learned counsel for the parties and are of the opinion that none of the points has any merit.
(3.) IN pursuance of the provisions of Section 41(1)(c) of the U.P. Excise Act, 1910, the Excise Commissioner, U.P. with the previous sanction of the State Government, framed the U.P. Excise (First Amendment) Rules, 1984. Section 41(1)(c) of the Act is of wide amplitude conferring power on the Excise Commissioner to make rules laying down the manner of fixation of fee payable for any licence. The amending Rules of 1984 were published in the U.P. Gazette on 5 -3 -1984 in accordance with Section 77 lays down: - - All rules made and notifications issued under the Act shall be published in the official Gazette, and shall have effect as if enacted in this Act from the date of such publication or from such other date as may be specified in that behalf. In view of Section 77 of the Act and general principles applicable to interpretation of statutes as set out in the State of U.P. and others v. Babu Ram Upadhya : A.I.R. 1961 S.C. 751 the amending rules should, for purposes of construction and obligation, be treated as if they were in the enabling Act and would be of the same effect as if contained in the Act.;