K.C. Agarwal, Actg. C.J. - (1.) THIS petition under Article 226 of the Constitution has been filed by Hakim Singh challenging the recovery of Rs. 97,000/ - and odd outstanding against him as notified by the Excise Officer, District Agra. For the year 1987 -88, the petitioner was held to be the highest bidder in the auction held on 19th March, 1987 in respect of Bhang shop of Sikandra, his bid being Rs. 20,000/ -, Similarly, in the auction held for bhang shops of Firozabad and Achhnera, the petitioner was the highest bidder, having offered Rs. 2,12,100/ -. The petitioners' bids having been accepted, be commenced his business after making initial deposits at the aforesaid three shops with effect from April 1, 1987.
(2.) IT is alleged in this petition that on account of impediments created by the police and other agents of the State of U.P. the petitioner could not run the shops according to the rules and had to close all the three shops in the month of April, 1987 itself. Ultimately, his licence was cancelled on 11th May, 1987, which was followed by a fresh auction held on 21st May, 1987 in respect of the three shops. These auctions were finalised with a third party. Thereupon, the proceedings for recovery of Rs. 97,951/ - the short fall in between the price offered by the petitioner and those fetched in the reaction were initiated against the petitioner by sending a notice to him. The petitioner has challenged the recovery proceedings on the ground that as the auctions in his favour had not been approved by the Excise Commissioner, as was required by the Excise rules, no concluded contract between the parties was arrived at and as such it was not open to the Excise department to recover the short fall as arrears of land revenue. On these allegations, the petitioner has sought a certiorari quashing the notice dated 20th April, 1988. Contesting the writ petition, the Excise Inspector, Circle -II, Agra has filed a counter -affidavit on behalf of respondents Nos. 1 and 2. In the counter affidavit, proceedings for the recovery of Rs. 97,951/ - have been justified as arrears of licence fee in respect of bhang shops of Sikandra, Firozabad and Achhnera for the years 1987 -88. The contesting respondents have filed along with the counter affidavit a copy of the terms and conditions, on which the licence was granted to the petitioner, one of which is contained in paragraph 8 thereof, relevant portion of which is quoted below: - - Yadi Woh Mulya Jo Dusri Bar Ke Nilam Men Bola Jai Us Mulya Se Kam Hai, Jo Pahle Nilam Men Bola Gaya Tha To Jitna Antar Un Donon Mulya Men Hoga Utna Mulya Nilam Kreta Se Wasul Kiya Jayega.
(3.) LEARNED counsel for the petitioner urged that as the bid offered by the petitioner had not been accepted by the Excise Commissioner, which was mandatory, no contract came into existence and as such the recovery of the short fall could not be made under the Excise Act and the rules. The learned counsel further urged that under Section 39 of the Excise Act the amount realisable could be either the excise revenue or the amounts due to the Government on account of any contract relating to the excise revenue. In his submission, as no contract as contemplated by Section 39 of the Act had come into existence the petitioner could not be held responsible for the short fall. The short -fall recoverable could only be in respect of a contract, which is valid and binding. We find no substance in the submissions made by the learned counsel for the petitioner.;