JUDGMENT
A. Pasayat, J.
1. Petitioner seeks for a direction to the opposite parties for refund of the amount deposited by him in respect of certain tenders for dealing with country liquor in the district of Mayurbhanj.
2. Petitioner responded to the invitation for bid in respect of grant of exclusive privilege for retail sale of country liquor for the year 1993-94 on tender-cum-auction basis. The sale notice dated 4-3-1993 was issued by the Collector, Mayurbhanj (opposite party No. 2). The notice in Form A under R. 3 of the Orissa Excise (Exclusive Privilege) Rules, 1970 (in short the ‘Rules’) was issued on 4-3-1993. It was indicated in the notice that the consideration money was to be determined in accordance with order issued under Sub-section (2) of Section 29 of Bihar and Orissa Excise Act, 1915 (in short the ‘Act’). Petitioner did not participate in the tender-cum-auction held on 19-3-1993 in respect of five shops situated at Damodarpur, (sic), Raghunath-pur, Station Bazar and Palbani. However, on 29-3-1993 petitioner offered bid of Rs. 48,500/- for the aforesaid shops which was provisionally accepted, and he deposited the months consideration money. State Government did not confirm the auction which was held on 29-3-1993, and directed fresh auction which was held on 20-4-1993. On 12-4-1993 the petitioner asked for refund of money deposited by him, as the auction held on 29-3-1993 was not confirmed. On 20-4-1993 in the re-auction, the petitioner was again the highest bidder and the bid amount was Rs. 48,600/- per month. Accordingly the petitioner deposited Rs. 200/- over and above the sum of Rs. 97,000/- which he had deposited earlier. The Collector directed negotiation on 24-6-1993 consequent upon non-confirmation of provisional settlement in favour of petitioner. The petitioner was directed to appear at the negotiation. On 22-5-1993 the petitioner expressed his inability to participate in the negotiation and asked for refund of Rs. 97,200/-. On 24-6-1993, petitioner expressed his inability to participate in negotiation and reiterated his demand for refund of the amount. On 11-6-1993 the petitioner was directed to take the licence from the Excise Office and pay licence fee of Rs. 32,000/- for the period 11-6-1993 to 30-6-1993. Petitioners did not take the licence and on 22-6-1993 and 23-7-1993 the petitioner reiterated his demand for refund of the amount. A representation was also submitted before the Minister, Excise, on 3-8-1993 by order dated 9-8-1993, the Superintendent of Excise, Mayurbhanj (opposite party No. 3)
cancelled the exclusive privilege pursuant to the decision taken by the Government, at the loss and risk of the petitioner, for the remaining period of 1993-94. Accordingly, the petitioner has sought for a direction to the opposite parties for refund of the amount deposited by him.
2. In the counter-affidavit filed by the State it has been stated that the petitioner was clearly intimated that he was to negotiate, and in fact on 24-5-1993 the petitioner expressed his inability to appear on the ground of illness and not because he was not willing to participate in the negotiation: Further the petitioner was also intimated about acceptance of his offer on the basis of negotiation, considering his earlier offer and therefore, question of granting any refund to him is not acceptable. It is also submitted that since Government had cancelled the licence at the loss and risk of the petitioner, the petitioner cannot avoid that.
3. It is open to the State Government to either accept or reject the bid, having regard to the wide amplitude of powers vested on it. The consideration realised from the grantee or the licensee of an exclusive privilege for the manufacture and sale of any liquor of any intoxicating drug, is neither a fee properly so-called nor indeed a tax, but is in the nature of the price of the privilege which belongs exclusively to the State, which the purchaser has to pay in any trading or business transaction. Section 29 authorises the State Government to receive a sum in consideration of the grant of exclusive privilege under Section 22 which is to be determined in accordance with the provisions contained in Sub-section 2(a) namely, either by auction or by catting tender or otherwise as the State Government may in the interest of excise revenue by general or special order direct.
Raising revenue is one of the important
purposes of the provisions contained in Sections 22
and 29. The sale of privilege is at a mode of
raising revenue. Public auctions are held to
get the best possible price for the exclusive
privileges. The owner of the privileges can
decline to accept the highest bid if he thinks
that the price offered is inadequate. There is
no completed contract till the bid is accepted.
In Lakhenlal v. State of Orissa, AIR 1977 SC
722 : (1977 Tax LR 1701) it was held that bids
were apparently nothing more than offer in
response to invitation to make tender and
such auctions were the mode of ascertaining the highest offers. The express and advertised terms of the auction made it clear that the money tendered was to be deemed to be deposited tantatively, pending the acceptance of the bid. The sale notice stipulated that acceptance of the bid was provisional and was subject to confirmation of the same by the State Government and if the State Government did not accord sanction, the amount deposited would be refunded. It is not in dispute that until the Government accepts there is no final settlement in favour of any person. In fact Clause 6(iii) of the sale notice clearly stipulated that advance consideration money taken in case of provisional acceptance of a bid/tender will be refunded if the State Government does not accord sanction. It is with reference to this clause the petitioner has asked for refund of the amount.
4. From the various documents to which
reference has been made supra, we find that
the petitioner has, immediately after the Gov-
eminent refused to accord sanction asked for
refund of the amount and also indicated his
intention not to press his bid. Subsequent
unilateral decision taken by the authorities
settling the shop of the petitioner is of no
consequence.
5. In the aforesaid premises we direct the opposite parties to refund Rs. 97,200/- collected from the petitioner within a period of six weeks from the date of receipt of our order.
The writ application is accordingly dis
posed of.
S.K. Mohanty, J.
6. I agree.
