Mohammad Rafiq, J. - (1.) THIS writ petition has been filed by petitioner Krishna Lal and Party, inter -alia, with following prayer: - - (i) by a writ of certiorari or any other appropriate writ, order or direction in the nature thereof the notification dated 6.2.1991 issued by the Excise Commissioner, and as publish in the Rajasthan Gazette dated 7.2.1991, prescribing the forms of licence for retail sale of country liquor, retail and wholesale of IMFL and Beer to the extent it demands cash security and more specifically, condition No. 25 of the licence for retail sale of country liquor; condition No. 28 for retail sale of IMFL and condition No. 26 for retail sale of Beer, may be declared ultra vires Sec. 31 of the Act as well as Article 14 of the Constitution of India and the same may be quashed; (ii) by an appropriate writ, order or direction, the action of the respondents in not providing payment of interest on the cash security furnished by the petitioner may kindly be declared to be arbitrary, unreasonable and the respondents may be directed to make payment of interest on cash security collected by the respondents from the petitioner at the same rate realized by the respondents u/S 30A of the Act; While the prayer contained in clause (i) supra has, due to lapse of time, has become redundant and, therefore, the learned counsel for the parties have prayed that it may not be necessary to decide the writ petition in respect of prayer clause (i). Learned counsel for the parties have addressed the Court only in so far as prayer contained in clause (ii) is concerned. The matter is accordingly considered and decided by this judgment.
(2.) FACTS of the case shorn of unnecessary details are that petitioner was granted licence of the exclusive privilege for the wholesale and retail sale of Indian made foreign liquor and beer and retail sale of country liquor for Jaipur city Group of Shops, for the years 1991 -1992 and 1992 -1993. Aforesaid license was granted to the petitioner after their participation in the process of tender pursuant to tender auction notice dated 06.02.1991 issued by the Excise Commissioner. Petitioner submitted his tender for Jaipur City group and offered the highest bid. Petitioner was awarded contract for retail sale of country liquor and it accordingly started business from 01.04.1991. For the first year, petitioner agreed to pay to the Government a sum of Rs. 37 crore for exclusive privilege amount with further undertaking, however, since the licence was for two years, the petitioner, for the second year, agreed to pay aforesaid amount along with increase by 15%. Condition No. 10 of the tender, copy of which is on record, provided that tenderer would be required to enclose with the tender a certificate duly attested with regard to his financial capacity and the said certificate should be of a minimum value of at least 12.5% of the total tender amount. Under condition No. 12(Ka) of the tender notice, another condition has been put that the tenderer along with his tender would be required to deposit earnest money in cash as notified in the tender notice in Column No. 6. Condition No. 13(Ka) provided that in case the tender is accepted, the successful tenderer would be required to deposit in cash an amount by way of security, equivalent to 12.5% of the exclusive privilege amount for the year 1991 -1992 in relation to country liquor, IMFL and Beer, within a period of three days from the date the list of successful candidates is notified. The earnest money deposited by the tenderer would be adjusted against the amount of security and balance security should be deposited by the tenderer by 20.03.199,1. Condition No. 13(Kha) provided that on the tender being accepted, the tenderer will have to deposit 1/3rd of the amount of exclusive privilege for wholesale licence of IMFL for the year 1991 -1992 as security by 20.03.1991 and earnest money would be adjusted therein. Condition No. 13(Ga) provided for ensuring due payment of the monthly installments of the exclusive privilege amount and that the tenderer will also have to furnish, apart from the security amount, one or more than one, solvent sureties for the amount equivalent to residual monthly installments for wholesale of IMFL and in case of country liquor, IMFL and Beer retail sale, the solvent surety would be equal to the amount of security, which would be required to be furnished by 20.03.1991. According to the petitioner, the petitioner has already submitted cash security to the tune of Rs. 4,65,76,045/ - and submitted solvency bonds to the tune of Rs. 4,62,50,000/ - and solvent sureties to the tune of Rs. 4,70,97,720/ -. For the year 1992 -93, the total amount of petitioner's security, solvencies and sureties is Rs. 16,09,12,322/ -, out of which the petitioner deposited cash security to the tune of Rs. 5,35,62,452/ -. The amount so deposited by the petitioner in cash with the respondent department remained with them for the entire period of more than two years but the respondents have not paid any interest whatsoever to the petitioner for retaining such a huge amount for this long period. On the other hand, the petitioner licensee was required to pay, according to Sec. 30 -A of the Rajasthan Excise Act, 1950, (herein, 'the Act of 1950') interest to the State in case any amount is due, at the rate of 1 1/2% per month for the first three months and at the rate of 2% per month after three months. There is absolutely no justification for not paying interest to the petitioner on the cash security furnished by him as licensee. Shri K.K. Sharma, learned senior counsel for petitioner, has submitted that under Sec. 30 -A of the Act of 1950 in case there was any default in payment of exclusive privilege amount, the respondents have used the amount of cash security lying deposited with them against such default and the petitioner licensee would be required to refurnish replenish the cash security to the extent of short fall. It is contended that the power of the Excise Commissioner to prescribe restrictions or conditions, on which any license could be granted, is circumscribed by the matters enumerated in clause (e) of Sec. 42 of the Act of 1950 and are not general. Moreover, the power of the State Government is overriding and the power has been granted only to the State Government under the Act to frame Rules in this regard. The Excise Commissioner cannot prescribe the conditions in the form of conditions of licence requiring the licensee to deposit the cash security. Such powers vest only in the State Government under Sec. 42 of the Act of 1950. It is only the State Government, which can, under Sec. 41 of the Act of 1950, make Rules laying down the condition of deposit of cash security. The Excise Commissioner does not have any such power.
(3.) SHRI K.K. Sharma, learned senior counsel for petitioner, argued that Rule 93 of the Rajasthan Excise Rules, 1956, only empowers the Commissioner to prescribe the forms for any licence, permit, permission etc., but in exercise of that power, the Commissioner certainly cannot call upon the licensee to deposit cash security. It is therefore prayed that the writ petition be allowed and respondents be directed to pay interest to the petitioner at the same rate at which it charged interest from petitioner as per provisions of Sec. 30 -A of the Act of 1950.;