TATIA, J. - (1.) BRIEF common facts of all these writ petitions are that the respondents No. 2 issued notices inviting tenders for grant of exclusive license for sale of liquor for different areas in the State of Rajasthan, for the year 2002- 2003. In response of said N. I. T. , the petitioners submitted their tenders along with requisite earnest money. The petitioners are successful bidders and got the exclusive license for sale of liquor for the area for which they gave their bid. As per the conditions prescribed for the grant of the license for the sale of liquor, the petitioners were required to furnish cash security equal to 17 percent of the exclusive license amount within period of 10 days from the date of publication of acceptance of bid by affixing the information of acceptance of the bid. The petitioners were given two options for furnishing the security, one, by way of depositing the entire amount as mentioned above or by depositing 10% of license amount instead of 17% (after adjusting the adjusting the earnest money) with Bank Guarantee of the amount, equal to 10% of bid amount, for a period three months beyond the license period. The petitioners opted for the second option and deposited 10% of the bid amount and furnished Bank guarantee of the amount equal to the 10% of the bid amount. The cash amount was deposited within the period but the bank guarantees were submitted by the petitioners after the period available to them for furnishing the bank guarantee. These facts are not in dispute. The respondents issued demand notices against the petitioners demanding interest @ 2% per month for the period of delay on the ground that the petitioners failed to furnish the bank guarantees within the period available to them for furnishing the bank guarantees. Mainly, dispute between the petitioners and the respondents is that whether the petitioners are at all liable to pay the interest to respondents only because of the reason that the petitioners failed to furnish the bank guarantee within the period available to them?
(2.) ACCORDING to petitioners, as per the provisions of the Act and the Rules framed there under and so also as per the prescribed performa of license, no amount of interest on late deposit of bank guarantee can be levied by the respondents. Respondents can charge and demand interest only under Section 30- A of the Rajasthan Excise Act, 1950 (in short "act of 1950" ). The Section 30-A permits respondents to charge the interest, if the amount of any duty, fee or other demand is due under the Act or the Rules made there under. The interest can be charged under the section from the day on which the said amount became due. ACCORDING to the petitioners, admittedly, neither the duty nor the fee or any other demand is due in the petitioners and the non-furnishing of the Bank Guarantee cannot be treated as any amount of duty, fee or other amount due. It is further pleaded that neither under the Act or the Rules nor there is any clause in the agreement or license providing levy of interest because of the late deposit of the bank guarantee. Even the respondents cannot claim interest over the security amount. In some of the writ petitions it is also submitted that if the court comes to the conclusion that as per the instructions issued by the respondents, the conditions relating to charge of interest on late deposit of bank guarantee exists, then the condition itself is illegal and against the principle of equity and the same deserves to be quashed. In some of the writ petitions the amount of the demand is also disputed on the ground that the respondents could have charged interest over the 7% amount only because at the most in case of cash deposit of the security the petitioners were required to deposit 17% of the bid amount against which the petitioners have already deposited 10% of the bid amount in cash. In one of the writ petition No. 323/03 Hanuman Singh and others vs. State and Others, the petitioners tender for a sum of Rs. 54,43,92,999/- was accepted by communication dated 7th March 2002. The petitioner was required to deposit security in the form of cash amounting to Rs. 5,50,06,000/- and was required to give the bank guarantee of Rs. 5,44,40,000/ -. The petitioners submitted an application on 16th March 2002 and requested that petitioners has already submitted Bank Draft of Rs. 2,52,50,000/- and against the balance amount, petitioner's other amount is lying with the department may be adjusted. For this request of the petitioner, the respondents made adjustment of Rs. 1,40,00,000/- on 31 March 2002 and Rs. 1,55,00,000/- on 15 April 2002. The petitioner submitted bank guarantees of Rs. 22,00,000/- and Rs. 1,95,00,000/- on 30th March 2002 which were within the available time limit for deposit of the bank guarantees. The petitioner submitted two bank guarantees on 8 April 2002 and on 10 May 2002 of Rs. 3,25,00,000/-, 2,40,000/- respectively. The petitioners was served with a notice dated 4 May 2002 by the respondents demanding Rs. 9,47,086/- which is the amount of interest on two counts; Rs. 6,71,753 due to the late furnishing of the bank guarantee, Rs. 2,75,333/- for late payment of cash security. However, this demand of Rs. 9,47,086/- was increased to Rs. 17,21,419/- on the ground that the respondent department is entitled for the interest of Rs. 7,24,333/- as the petitioner has furnished the bank guarantee late. In the above facts, the petition No. 323/03 also has common ground of challenge, the right of the respondents to demand the interest on the ground of the late furnishing of the bank, guarantee in addition to the challenge to the respondents' demand of interest for the cash security amount which is, according to petitioner already lying with the respondents and the petitioner gave letter of request to the respondents in time but the respondents adjusted the amount after the period within which the petitioner was required to deposit the cash amount. According to learned counsel for the petitioners, the respondents can charge interest only in the eventualities which are given in the Section 30-A of the Act of 1950. As per Section 30-A of the Act of 1950, the respondents can charge the interest in cases where (1) duty, (2) fee or (3) other demand is due against any person under the Act of 1950 or the Rules made there under. The right to claim interest accrues only when amount becomes due. Further, the Sec. 30-A also prescribed rate of interest which is only 1-1/2% per month for the period of three months and thereafter 2% per month if default continues after the period of three months. According to learned counsel for the petitioners, there is no other provision in the act which permits respondents to charge the interest. Therefore, according learned counsel for the petitioners, any demand contrary to the Section 30-A is illegal. Here in these cases admittedly neither any amount of duty, fee or other demand is due against the petitioners. Non-furnishing of bank guarantee, by no stretch of imagination can be treated as not making payment of "duty", "fee" or "other demand. " The petitioners submitted bank guarantee covering the entire period of the contract and they would not to make any payment of any amount to the respondents. It is also submitted that interest can be charged against, in cases where the other party is deprived of any cash or any money is withheld by the defaulting party. Even if the petitioners would have submitted their bank guarantees within the prescribed period of time even then that could not have been encashed by the respondents nor could it have been treated as money in the hand of the respondents. Therefore, also there is no reason for charging interest on the ground of non-furnishing of the bank guarantee by the petitioners.
(3.) LEARNED counsel for the petitioners further submitted that even for charging interest, the respondents are required to pass an order, determining the "due" and thereafter can issue notice of demand by following the procedure given under the rule 76-A of the Rajasthan Excise Rules, 1956. It is also submitted by the petitioners that before raising this demand, no opportunity of hearing was given to the petitioners and therefore, the respondents have violated the principles of natural justice. The respondents submitted reply and denied the allegations of the petitioners. The respondents submitted that petitioners having obtained the contract and having operated the same and derived the benefits under the contract are not entitled to turn around and say that the security could not have been demanded. The security amount is an integral part of and an essential condition of the contract and it became a demand due against the petitioners when the tenders were accepted and it was required to be deposited within time permitted under the terms of the contract. The petitioners were fully aware of the condition No. 17. 5 of the tendered document which specifically provides that delayed deposit of security with bank guarantee was liable to be visited with interest at the rate of 2% per month. Learned counsel for the respondents advancing arguments in support of their contentions, further submitted that the petitioners have no right to challenge the conditions of the tendered document and the terms and conditions of the contract and, therefore, they have rightly not sought any relief of declaration of quashing of any of the conditions of the tendered document or any part of the contract. Learned counsel for the petitioners in arguments submitted in addition to what has been mentioned above, that the security amount is only an `amanat'. The recovery of interest on late deposit of security has been stayed by the Division Bench of this Court in Rajendra Kumar vs. State (1), the amount is required to be determined and if the outstanding amount of any duty, fee or other demand is not paid till due date then interest at the rate as given under Section 30-A at the rate of 1. 5% per month for three months and 2% thereafter can be charged. Charging of interest otherwise will be against the statutory provisions and if it is allowed then that would be rewriting of the statutory provisions by instructions. Learned counsel for the petitioners relies upon the judgments reported in 1999 (3) SCC 596 (2), 2002 (4) SCC 566 (3), 1999 (2) SCC 192 (4) and 1999 (4) SCC 192 It is also submitted that no particular date was fixed for giving option for opting for bank guarantee nor any option was called for. Even if the interest can be levied then that can be only over 7% and not over 20% or over 17% of the license amount. If bank guarantee has been given latter then 7% amount only was not paid and, therefore, interest can be charged only on that amount. Since no opportunity of hearing was given to the petitioners before issuing notice of demand, therefore, the petitioners could not raise any objection regarding rate of interest, computation of interest and legality of charging interest. Since respondents have not passed any order determining the liability of the petitioners and quantifying the interest, therefore, petitioners have no alternative remedy available to challenge the action of the respondents except by way of approaching this Court under Article 226 of the Constitution of India. ;