- (1.) Messrs Dwarka Dass and company, petitioners, secured a country liquor vend at Baretta, district Bhatinda, for the year 1968-69. They were found to have committed certain irregularities in the operation of the vend. 'Show-cause' notices were given to them, but it appears from paragraph 4 of the return filed by the respondents that no reply was received from the petitioners to the said notices. Thereupon the impugned order was passed by Shri K.L. Grover Deputy Excise and Taxation Commissioner, Patiala Division, Patiala (Annexure 'A') on July 24, 1968. The relevant and operative part of the order read as follows :- "The licensees have contravened that provisions of Rules 37(23), 37(24) and 37(29)(a) of the Punjab Liquor Licence Rules, 1956. I accordingly cancel the licence and forfeit the security under rule (Section) 36(c) of the Punjab Excise Act, 1914. But keeping in view the incidence of the vend and the other circumstances prevailing, in exercise of the powers vested in me under Section 80(2) of the Act ibid, I order that cancellation of the licence and forfeiture of security be revoked on payment of penalty of Rs. 10,000/- by the licensee." The petitioners went up in appeal against the above mentioned order of cancellation. Their appeal was dismissed by the order of Shri R.P. Ojha Excise and Taxation Commissioner, Punjab, dated September 13, 1968 (Annexure 'B'). Before the disposal of their appeal, the petitioners deposited the penalty of Rs. 10,000/-.
(2.) On October 19, 1968, this petition was filed for the issuance of a writ in the nature of certiorari to quash the orders Annexures 'A' and 'B', and to direct the refund of the sum of Rs. 10,000/- which had been according to the petitioners, got deposited by the respondents under coercion and duress. The writ petition has been contested by the respondents who are the Excise and Taxation Commissioner, Punjab and Deputy Excise and Taxation Commissioner, Patiala Division. In the return it has been stated that the petitioner's vend was checked in the presence of Dwarka Dass, a partner of the petitioners, on June 1, 1968, and that Dwarka Dass had admitted in his statement made and recorded at that time that as many as 72 bottles, 3 pints and 23 nips were lying in open condition kept for sale at the vend. The stock of the said liquor was suspected to be adulterated and was taken into possession after sealing it into four bags. The return of the respondents then states that the said liquor was tested at Patiala in the presence of Shri Dwarka Dass and that out of the liquor seized on June 1, 1968, 48 bottles, 3 pints and 23 nips were found to be adulterated. On that occasion again the statement of Shri Dwarka Dass was recorded on June 5, 1968, in which he admitted, inter alia, that the stock of the liquor mentioned above as such was adulterated. Thereafter notices were duly served on the petitioners on June 15, 1968, for giving them reasonable opportunity of being heard as to why their licence should not be cancelled under Section 36(c) of the Punjab Excise Act (1 of 1914) (hereinafter called the Act). It is then added in the return that no reply to the 'show-cause' notices having been received from the petitioners, their licence was cancelled by the Deputy Excise and Taxation Commissioner on July 24, 1968.
(3.) The first and the main submission of Mr. Tirath Singh Munjral, the learned counsel for the petitioners, is that the impugned order of the Deputy Excise and Taxation Commissioner (Annexure 'A') does not comply with the mandatory requirements of sub-section (2) of Section 80 of the Act, inasmuch as no valid option to have the order of cancellation revoked was given to the petitioners and without obtaining such opinion of the petitioners, the order for revocation on payment of penalty was passed suo motu by respondent No. 2. The law relating to the interpretation and effect of sub-section (2) of Section 80 of the Act has already been settled by a Division Bench of this Court in Jagtjit Distilling and Allied Industries Ltd. v. State of Punjab and another, 1965 1 ILR(P&h) 189. In that case a penalty of Rs. 25,000/- had been imposed for certain irregularities committed by the distillery and the distillery was required to deposit the aforesaid amount into the Government treasury immediately. No order for cancelling the licence of the distillery had been passed. The order of imposition of penalty was set aside by the Division Bench of this Court on the ground that the penalty had been imposed without conforming to the procedure that is contemplated by sub-section (2) of Section 80. The learned Judge observed in this connection as follows :- "It is perfectly clear that although the Distillery has had full opportunity to answer the charge with regard to the violation and breaches of the rules and conditions of the licence as also with regard to the determination of penalty, it could not be made to pay the same without having been given an option of having its licence cancelled or suspended." The contention of Mr. Tirath Singh is that the same applies to the instant case, as the petitioners have been made to pay the amount of the penalty under coercion and duress without having been given an option of having its licence cancelled or suspended. We are unable to agree with this contention. In contra-distinction to the order passed in the case of Jagtjit Distilling and Allied Industries Ltd. , a clear and unambiguous order of the cancellation of the licence of the petitioners has been passed in the instant case. It is only after ordering cancellation that the second respondent has directed that the said order be revoked if the petitioners pay a penalty of Rs. 10,000/-. The petitions cannot make a just grievance of the fact that immediately on the passing of the order their vend was not seized as they had gone up in appeal against the order of cancellation of their licence. We have not been shown how the claim of the petitioners about their having been compelled to pay the amount of the penalty is justified. Mr. Mela Ram Sharma, the learned counsel for the State, has shown us a copy of the grounds of appeal which was preferred by the petitioners against the order of cancellation of their licence. No such ground as is now sought to be pressed before us was taken in the memorandum of appeal. The imposition of penalty was attacked only on the ground that the question of imposing penalty could not arise unless liability for cancellation of the licence was incurred and it was urged in the memorandum of appeal that no such liability had in fact been incurred by the petitioners. In the last ground of appeal, it was submitted that in any event the amount of penalty imposed was disproportionately heavy. Records shown by the learned counsel for the State indicate that the petitioners had at the time of filing the appeal prayed for time to make a deposit of the amount of penalty. It, therefore, appears that the amount of penalty was voluntarily paid by the petitioners and was not recovered from them under duress or coercion. The payment of the amount of penalty by the petitioners in these circumstances appears to us to be equivalent to their having exercised the option to pay the penalty in lieu of the revocation of the licence.;