{"id":115302,"date":"2004-02-12T00:00:00","date_gmt":"2004-02-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/secretary-department-of-excise-vs-ms-sun-bright-marketing-pvt-on-12-february-2004"},"modified":"2015-06-17T07:04:56","modified_gmt":"2015-06-17T01:34:56","slug":"secretary-department-of-excise-vs-ms-sun-bright-marketing-pvt-on-12-february-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/secretary-department-of-excise-vs-ms-sun-bright-marketing-pvt-on-12-february-2004","title":{"rendered":"Secretary, Department Of Excise & … vs M\/S. Sun Bright Marketing Pvt. … on 12 February, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Secretary, Department Of Excise & … vs M\/S. Sun Bright Marketing Pvt. … on 12 February, 2004<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: Cji, S.B. Sinha, S.H. Kapadia<\/div>\n
           CASE NO.:\nAppeal (civil)  6425 of 2002\n\nPETITIONER:\nSecretary, Department of Excise & Commercial Taxes & ors.\t\n\nRESPONDENT:\nM\/s. Sun Bright Marketing Pvt. Ltd.Chhattisgarh & Anr.\t\n\nDATE OF JUDGMENT: 12\/02\/2004\n\nBENCH:\nCJI, S.B. Sinha & S.H. Kapadia\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
S.B. SINHA, J:\n<\/p>\n
 \tThe judgment of the Chhattisgarh High Court dated
\n4.4.2001 passed in Writ Petition No. 6021 of 2000 granting
\nexemption from payment of licence fee is in question before
\nus in this appeal.\n<\/p>\n
 \tThe respondent herein was awarded a contract for
\nrunning Indian Made Foreign Liquor shops in the district of
\nRaipur for the period commencing 1.4.2000 to 31.3.2001.
\nAlthough the contract was to commence from 1.4.2000, he had
\nbeen handed over the licence on 3.4.2000.\n<\/p>\n
 \tThe respondent claimed deduction by way of remission
\nand\/ or compensation from the amount of licence fee payable
\nby him for three periods for different reasons which are:\n<\/p>\n
(i)\tFor closure of shop due to holding of municipal
\nelection at several places wherefor the liquor
\nshops situated within a radius of 25 kilometers
\nfrom the Municipal Corporation of Durg and Bhilai
\nwere directed to be closed.\n<\/p>\n
(ii)\tFor closure of shop for five days consisting of –
\nthree days due to agitation on account of
\nconstitution of Chhattisgarh State, one day owing
\nto strike with regard to constitution of High
\nCourt Bench at Raipur and one day on account of
\nstrike on Kargil issue.\n<\/p>\n
(iii)\tFor non-grant of the licence from 1st April,
\n2000 to 3rd April, 2000.\n<\/p>\n
  \tThe High Court in its judgment held that the respondent
\nwas entitled for compensation and\/ or exemption from
\npayment of licence fee for three days when the liquor shops
\nremained closed due to political agitation and
\ndemonstration.  He was also found to be entitled for
\ncompensation and\/ or exemption from payment of licence fee
\nfor a period of three days for the period when the shops
\nwere directed to be closed for municipal election.  The High
\nCourt further held that the respondent was also entitled to
\nexemption from payment of licence fee for three days, i.e.,
\nfor the period from 1st April, 2000 to 3rd April, 2000 on
\naccount of delay in handing over the licence.\n<\/p>\n
 \tMr. Prakash Shrivastava, learned counsel appearing on
\nbehalf of the State would urge that the respondent herein
\nwas not entitled to any compensation and\/ or remission in
\nlicence fee for closure of his shops owing to holding of
\nelection of municipal corporation at Raipur in view of the
\nprovisions contained in Sub-Section (1) of Section 24 of the
\nMadhya Pradesh Excise Act, 1915 (for short “the Act”) as
\nin terms thereof the District Collector is empowered to
\ndirect closure of such shops for maintenance of public
\npeace.\n<\/p>\n
 \tThe learned counsel would argue that closure of shops
\ndue to political agitation and demonstration cannot give
\nrise to any claim for compensation in view of condition No.
\n18 of the Sale Memo as also General Condition No. 8.\n<\/p>\n
 \tSo far as the judgment of the High Court directing
\npayment of compensation for the period 1st April, 2000 to
\n3rd April, 2000 is concerned, Mr. Shrivastava would argue
\nthat the same is impermissible under the provisions of the
\nAct.\n<\/p>\n
 \tMr. P.N. Mishra, learned counsel appearing on behalf of
\nthe respondent, on the other hand, would urge that from a
\nperusal of the note appended to Clause (V) of the conditions
\nlaid down in Schedule-4 of the Sale Memo, it would be
\nevident that there was no embargo for claiming payment of
\ncompensation as in terms thereof only those shops, which
\nfall within the area of the local bodies, where election was
\nto be held, were required to be compulsorily closed.\n<\/p>\n
 \tMr. Mishra would further submit that having regard to
\nthe proviso appended to Sub-Section (2) of Section 24 of the
\nAct, a statutory duty was cast upon the licensee to close
\ndown his shop in the event of any riot or unlawful assembly
\ntakes place and in that view of the matter, the licensee was
\nentitled therefor to claim exemption and\/ or remission from
\npayment of licence fee.\n<\/p>\n
 \tThe learned counsel would submit that Rule VIII (3) of
\nthe General Licence Conditions whereupon the learned counsel
\nfor the appellant has relied upon will have no application
\nin the instant case.  He would urge that Rule VIII of the
\nGeneral Licence Conditions will have no application in a
\ncase where closure is forced upon the shop by reason of a
\npolitical agitation which would be apparent from the fact
\nthat a similar embargo contained in Condition No. 42 of the
\nSale Memo had been deleted.  Mr. Mishra would, therefore,
\nsubmit that the finding of the High Court cannot, thus, be
\nfaulted as while granting relief to the respondents herein
\nall the relevant provisions of the Act, the General Licence
\nConditions and the conditions laid down in Sale Memo had
\nbeen taken into consideration.\n<\/p>\n
 \tMr. Mishra would further contend that as the respondent
\nwas not legally entitled to run the shop for the period
\n1st April, 2000 to 3rd April, 2000, as no licence was
\ngranted to him, it must be held that the licence remained
\nsuspended for the said period and in that view of the matter
\nthe High Court must be held to have correctly arrived at the
\nconclusion that the respondent was entitled to grant of
\nremission in payment of licence fee for the said period.\n<\/p>\n
STATUTORY PROVISIONS:\n<\/p>\n
 \tSection 24 of the Act reads as under:\n<\/p>\n
“24. Closing of shops for the sake of
\npublic peace  (1) The District
\nMagistrate, by notice in writing to the
\nlicensee, may require, that any shops in
\nwhich any intoxicant is sold shall be
\nclosed at such times or for such period
\nas he may think necessary for the
\npreservation of the public peace.\n<\/p>\n
(2). If a riot or unlawful assembly is
\napprehended or occurs in the vicinity of
\nany shop, a Magistrate of any class, who
\nis present, may require such shop to be
\nkept closed for such period as he may
\nthink necessary:\n<\/p>\n
 \tProvided that, when any such riot
\nor unlawful assembly occurs, a licensee
\nshall, in the absence of the Magistrate,
\nclose his shop without any order.\n<\/p>\n
(3). When any Magistrate issues an order
\nunder sub-section (2), he shall
\nforthwith inform the Collector of his
\naction and his reasons thereof.”\n<\/p>\n
  \tRules II and VIII of the General Licence Conditions
\nread as under:\n<\/p>\n
“II. Payment of fees  (1) the licence
\nfees for all intoxicant shall be payable
\nat the treasury or, in outlying tahsils,
\nat the sub-treasury, on or before the
\nfirst working day of each month.\n<\/p>\n
(2) The licence fees for intoxicating
\ndrugs and country liquor shall be paid
\nin twelve equal monthly instalments.  If
\na licence fee be not exactly divisible
\nby 12, the remainder left over after
\ndivision by 12 shall be paid with the
\nfirst instalment.\n<\/p>\n
(3) No remission or abatement shall be
\nclaimable except in accordance with the
\nprovisions of Section 32 of the Act, or
\nof rule VIII below.  An advance
\ndeposited as security shall be credit to
\nfees due in the closing months of the
\nyear.”\n<\/p>\n
“VIII. Shops to be kept open and
\nadequately stocked.  (1) Shops shall be
\nkept open every day throughout the year
\nunless their temporary or permanent
\nclosure has been authorised by the
\nCollector.  Such supply of liquor or
\nintoxicating drugs as the Collector may
\nconsider sufficient to meet the local
\nrequirement shall be maintained.\n<\/p>\n
Subject to the provisions of section 38
\nof the Act, and to the exceptions
\nspecified in rule XIV, sales be made to
\nall comers on payment at the current
\nrate of sale.  Shops for the sale of
\ntari may be closed during the rains,
\ni.e. from 1st June to the 14th
\nOctober.\n<\/p>\n
(2) Shops shall remain closed for the
\nwhole day on such days as the Collector
\nmay announce at the time of auctions:\n<\/p>\n
Provided that the Collector, or District
\nExcise Officer, or in their absence a
\nDeputy Collector, duly authorised by the
\nCollector, may require foreign liquor
\nlicensees holding licenses in Forms F.L.
\n1 and F.L. 2 to open the shops on such
\ndays for sale of foreign liquor to bona
\nfide foreign visitors.\n<\/p>\n
(3) Shops shall also remain closed in
\nany area or areas for such period as the
\nState Government may in public interest
\ndeem necessary so to do.  An intimation
\nto the effect shall be given to the
\nlicensee through the Collector of the
\ndistrict well in advance as far as
\npossible:\n<\/p>\n
Provided that, when a shop is closed
\nunder this rule, the Collector may, with
\nthe previous sanction of the Excise
\nCommissioner, award compensation to the
\nlicensee for loss of profits.”\n<\/p>\n
 \tThe relevant clauses of Schedule-4 appended to Sale
\nMemo are as under:\n<\/p>\n
“(IV) In addition to this, the
\nCollector shall have power in
\nadministrative and public interest to
\nissue orders for closure of any one or
\nmore shops of any place or all the shops
\nof Tehsil or Distt. for additional 3
\ndays and the shops shall remain closed
\naccordingly.\n<\/p>\n
(V) During Lok Sabha and Assembly
\nGeneral Elections\/ by elections, the
\nshops shall remain closed for 48 hours
\nbefore the time fixed for closure of
\nelection\/ voting i.e. on the date of
\nelection and one day before the date of
\nelection and so far the question of
\ndeclaring the days as dry days after the
\nelection and counting days is concerned,
\nthe concerned Collector shall be
\nempowered to take decision in view of
\nlocal circumstances as to whether there
\nis a need from administrative point of
\nview or not to declare dry days after
\nthe election and counting days.\n<\/p>\n
Similarly, shops shall also remain
\nclosed during i.e. for general\/ by
\nelections of local bodies.\n<\/p>\n
Note: The local bodies includes
\nMunicipal Corporation, Municipal
\nCommittee, Nagar Panchayat and Distt.
\nPanchayat.  During their elections,
\nshops of only those areas will remain
\nclosed where elections are being held.\n<\/p>\n
(VI) In addition to above festivals\/
\noccasions, every Collector shall decide
\nand fix the boundaries of the industrial
\narea situated within their district
\nseparately for each area and the shops
\nshall remain closed for two days, i.e.,
\ndays for disbursement of salary and
\nexpenses of workers\/ labourers, which
\nshops are situated within the boundary
\nso fixed by them.  The Collector shall
\nfix\/ decide these days in such a manner
\nthat these days are same for all the
\nmills and industrial establishments of
\none Town.\n<\/p>\n
(VII) For the dry days as mentioned in
\nthe above para (I) to (VI), the
\nconcerned contractors shall not be
\nallowed any rebate\/ concession
\nwhatsoever in the auction money for
\nthose days and nor they will be entitled
\nto any compensation whatsoever.\n<\/p>\n
(VIII) If in addition to the abovesaid
\nfixed dry days, shops are remained
\nclosed on the written order of
\nCollector, then in case of closure of
\nsuch shops, the Contractor shall be
\nentitled to proportionate rebate\/
\nconcession in auction money as
\nprescribed for the concerned shop.”\n<\/p>\n
 \tThe Act is a self-contained code.\n<\/p>\n
 \tThe licensees indisputably are bound by the provisions
\nof the said Act, the general conditions framed thereunder as
\nalso the terms and conditions of the sale memo.  It is also
\nnot in dispute that remission in licence fee would be
\npermissible provided the claim of the licensee is covered by
\none or the other provisions contained therein.\n<\/p>\n
 \tThe scheme of the Act, the General Licence Conditions
\nand the conditions contained in the Sale Memo postulate
\nthat, in the event, the licensee is required to close a shop
\nin terms of an order passed by the statutory authority or
\notherwise, he would be entitled to claim remission in
\nlicence fee unless the same is expressly barred.\n<\/p>\n
 \tSection 24 of the Act is in two parts.  Sub-section (1)
\nof Section 24 empowers the District Magistrate to direct
\nclosure of any shop in which any intoxicant is sold for such
\ntime or for such period as he may think necessary for
\npreservation of the public peace.  Sub-section (2) of
\nSection 24, however, deals with a specific situation in
\nterms whereof in the event of apprehension or occurrence of
\na riot or unlawful assembly in the vicinity of a shop, a
\nMagistrate of any class may require such shops to keep
\nclosed for such period as he may think necessary.  In the
\nevent, however, no magistrate is available, the proviso
\nappended thereto mandates that the licensee shall close the
\nsaid shop without any order.\n<\/p>\n
 \tA bare perusal of the provisions contained in Sub-
\nsection (2) of Section 24 read with the proviso appended
\nthereto makes the legal position absolutely clear that
\nclosure of a shop in the event of occurrence of a riot or
\nunlawful assembly is mandatory whether at the instance of a
\nMagistrate or at the instance of a licensee himself; the
\nonly difference being that the Magistrate can pass an order
\nwhere a riot or unlawful assembly is apprehended, the
\nlicensee is enjoined with a duty to close his shop whence a
\nriot or unlawful assembly occurs.\n<\/p>\n
 \tIt is not disputed that the shops of the respondent
\nremained closed for three days owing to agitations as regard
\ncreation of State of Chhattisgarh etc.<\/p>\n
 \tIn terms of Clause (3) of Rule II of the General
\nLicence Conditions, a remission or abatement in the licence
\nfee cannot be claimed save and except in the cases which
\nwould come within the purview of Section 32 of the Act or
\nRule VIII of the General Licence Conditions.  It is also not
\nin dispute that Section 32 of the Act has no application in
\nthe instant case.\n<\/p>\n
 \tRule VIII aforementioned mandates the licensee to keep
\nhis shop open everyday throughout the year.  Such a
\nstatutory obligation on the part of the licensee, however,
\nis subject to temporary or permanent closure which is
\nauthorised by the Collector.  Clause (2) of Rule VIII states
\nthat the shops would remain closed for the whole day on such
\ndays as the Collector may announce at the time of auctions.
\nClause (3) of Rule VIII, however, authorises the State
\nGovernment to direct closure of any shop in public interest,
\nintimation wherefor is required to be given to the licensee
\nthrough the Collector of the district well in advance as for
\nas possible.  The proviso appended to Rule VIII, however,
\nempowers the Collector to award compensation to the licensee
\nfor loss of profits.\n<\/p>\n
 \tThe provisions of the sale memo, so far as they are not
\ninconsistent with the provisions of the Act or the Rules
\nalso provide for closure of the shop on one ground or the
\nother.\n<\/p>\n
 \tCondition No. 18 contains the liquor prohibition policy
\nwhich as has been noted by the High Court reads as under:\n<\/p>\n
“(18) Liquor Prohibition Policy and
\nclosure of shops due to natural
\ncalamities:-\n<\/p>\n
 \tAs a result of Liquor Prohibition
\nPolicy of any neighbouring State or of
\nthe State, any shop\/ shops are closed,
\nthen no compensation on this account
\nshall be payable by the State to the
\ncontractor.  Similarly, due to Liquor
\nProhibition in neighbouring State or for
\nany other reason, if the decision to
\nreauction any shop of the States is
\ntaken or in case State consider it
\nnecessary to open any shop during the
\nyear 2000-2001, then the Excise
\nCommissioner shall have power to do so
\nand no objection whatsoever from the
\ncontractor shall be entertained and
\naccepted and no compensation whatsoever
\nor any rebate\/ concession whatsoever
\nshall be payable objector.  If during
\nthe period of contract, contractor
\nsuffers from any loss or damage
\nwhatsoever as a result of natural
\ncalamity, celestial problem or political
\ndemonstrations, public demonstration,
\nmovements, law and order problems, the
\ncontractor shall not be entitled to any
\ncompensation whatsoever.  All the
\nlicenses shall be subject to the Madhya
\nPradesh Excise Act, 1915 and Rules
\nframed thereunder and rules as amended
\nfrom time to time and orders\/
\ninstructions passed and issued by the
\nState Government, Excise Commissioner,
\nCollector from time to time.”\n<\/p>\n
 \tThe said provision does not put an embargo on remission
\nin payment of licence fees in the event the closure of shop
\ndue to any reason authorised by law.  The said provision
\nfurthermore cannot restrict the operation of the provisions
\nof the Act.  As would appear from what has been stated
\nhereinbefore, the provision contained in Clause 42 of the
\nSale Memo in this behalf had been stood deleted.\n<\/p>\n
 \tSchedule-4 appended to the Sale Memo provides for the
\nproposed dry days for 2000-2001.\n<\/p>\n
 \tClause (IV) of the Sale Memo empowers the Collector to
\ndirect closure of anyone or more shops for three days in
\naddition to the days which have been noticed in Clause (I)
\nof the Schedule-4 in administrative and public interest.
\nClause (V) provides for closure of shops for 48 hours during
\nthe time fixed for holding of election.  The provisions
\ncontained in Clause (V) also applies in case of general\/by
\nelections of local bodies.  The note appended to the same,
\nhowever, provides that during holding of election inter alia
\nof local authorities, shops of only those areas would remain
\nclosed where election is held.  It is, however, not in
\ndispute that the Collector of Raipur district had issued an
\norder purported to be in terms of Sub-Section (1) of Section
\n24 for keeping the shops closed for 48 hours which would
\nfall within a radius of 25 kilometers from the boundary of
\nMunicipal Council, Bhilai-III of Charoda Nagar.  Such an
\norder, therefore, was outside the purview of Clause (V).\n<\/p>\n
 \tClause (VI) of the said Memo provide for closure of the
\nshop in addition to the days specified in Clauses (I) to (V)
\nfor two days within or nearabout the industrial area.\n<\/p>\n
 \tIn terms of Clause (VII) of the Sale Memo
\naforementioned, the licensees are not entitled to any
\nrebate\/ concession for the days of closure of such shops in
\nterms of Clauses (I) to (VI) aforementioned.  Clause (VII),
\ntherefore, does not prohibit remission in licence fee and\/
\nor grant of compensation if the closure is directed for any
\nreason other than those mentioned in Clauses (I) to (VI) of
\nthe said Sale Memo.\n<\/p>\n
 \tIt is also not in dispute that the power of the
\nCollector to direct closure of any shop may emanate from a
\ndirection by a Competent Authority in terms of the
\nprovisions of the other statutes.\n<\/p>\n
 \tSub Para 3 of Chapter 13 of the Handbook to the
\nReturning Officers issued by the State Election Commission
\nprovides:\n<\/p>\n
“3. Ban on sale of liquor:- (a) During
\npublic election in every Municipal
\nCorporation area and within the radius
\nof 25 Kilometers of its limit all the
\nliquor shops will be closed from 48
\nhours before closing of the voting and
\nduring this period the sale and purchase
\nof liquor will be totally prohibited.”\n<\/p>\n
 \tThe power, in terms of Sub-Section (1) of Section 24 of
\nthe Act, was, therefore, exercised by the Collector, Raipur
\nhaving regard to the aforementioned provision and not in
\nterms of Clause (V) of the Sale Memo.\n<\/p>\n
 \tCondition No. 42 of the Sale Memo which stood deleted
\nread thus:\n<\/p>\n
“(42) Loss arising from celestrial\/
\nnatural calamities and for other
\nreasons: – No contractor shall be
\nentitled to get compensation whatsoever
\nfrom the State for the loss suffered as
\na result of loss in contract business,
\ndamages to crop or political movements,
\ntransfer of markets or natural
\ncalamities.”\n<\/p>\n
 \tKeeping in view the aforementioned provisions, the
\ncorrectness of the impugned judgment would have to be
\nconsidered.\n<\/p>\n
 \tSection 24 of the Act does not militate against the
\nclaim of remission in the licence fee, in the event a
\nclosure is effected thereunder.\n<\/p>\n
 \tIt is a well-settled principle of law that a
\nsubordinate legislation either by way of rules framed in
\nterms of the provisions of the Act or the General Conditions
\nissued by the Excise Commission in exercise of its statutory
\npower or the conditions of Sale Memo framed would be subject
\nto the provisions of the Act.  For proper interpretation of
\nthe statutory provisions, the  Act and the Rules are
\nrequired to be harmoniously read.  Political agitation
\nresulting in unlawful assembly would clearly attract the
\nproviso appended to Sub-Section (2) of Section 24.  As
\nnoticed hereinbefore, in case of a riot or unlawful
\nassembly, a licensee is statutorily enjoined to close his
\nshop.  The proviso appended to Sub-Section (2) of Section 24
\nis mandatory in nature.\n<\/p>\n
 \tRule VIII of the General Licence Conditions also
\nenjoins upon the licensee to keep the shop open everyday
\nthroughout the year unless their temporary or permanent
\nclosure has been authorised by the Collector.  Rule VIII
\naforementioned also in our considered opinion contemplates a
\nsituation where Sub-Section (2) of Section 24 would be
\nattracted.  The proviso appended to Sub-Section (2) of
\nSection 24 will have to be read as a part of the main
\nenactment and not an exception thereto.  Sub-sections (1)
\nand (2) of Section 24 as also the proviso appended thereto
\nrefer to the closure of shop for the reasons stated therein.
\nWhereas in terms of Sub-Section (1) of Section 24 the
\nCollector may pass an order, in a case falling within the
\npurview of Sub-Section (2) thereof, even a Magistrate can
\npass such an order.  Thus, Rule VIII of the General
\nConditions also refers to a temporary or permanent closure,
\nas has been authroised by the Collector and, thus, the same
\nhaving regard to the principles of purposive construction
\nwould include an order passed by a Magistrate in terms of
\nSub-Section (2) of Section 24.  In that view of the matter,
\nif a Magistrate is not available when a riot or unlawful
\nassembly occurs, the licensee having a statutory duty to
\nclose the shop; the same shall stand at par in view of the
\nfact that in both the situations maintenance of public peace
\nis mandatory.\n<\/p>\n
 \tClause (3) of Rule VIII stands on a different footing.
\nProviso appended to Clause (3) of Rule VIII refers to
\nclosure under the said rule, viz., Rule VIII.  The said
\nproviso does not cover clause (3) of Rule VIII alone but
\nalso brings within its fold a case falling under Clause (1)
\naforementioned.\n<\/p>\n
 \tTherefore, in a situation of this nature, the licensee
\nis entitled to claim remission in licence fee and\/ or
\ndamages.\n<\/p>\n
 \tFurthermore, it has rightly been opined by the High
\nCourt that having regard to the fact that Condition No. 42
\nof the Sale Memo stood deleted, a mischief covered thereby
\nwas sought to be removed.  To that extent Clause 18 of the
\npurported excise policy has not been given effect to,
\npresumably because the same may be held to be violative of
\nSection 24 of the Act.\n<\/p>\n
 \tTo us it appears that such a decision was taken
\nconsciously.  In a case of occurrence of natural calamity,
\nriot or unlawful assembly, the licensee cannot discharge his
\nobligation to keep his shop open.  A riot or an unlawful
\nassembly may take place for any reason including political
\nagitation.\n<\/p>\n
 \tIf an unlawful assembly takes place in course of a
\npolitical movement, having regard to Section 24 of the Act,
\nit might not even be possible to sustain the validity of
\nCondition No. 42.  Unlawful assembly owing to political
\nmovement was within the purview of Condition No. 42 of the
\nSale Memo having regard to Clause 18 of the excise policy.
\nBy deleting the said condition, a mischief is sought to be
\nremedied thereby.  (See Ameer Trading Corporation Ltd. Vs.
\nShapoorji Data Processing Ltd., JT 2003 (8) SC 109, Ashok
\nLeyland Ltd. Vs. State of Tamil Nadu & Anr., 2004 (1) SCALE
\n224 and Reema Aggarwal Vs. Anupam & Ors., 2004 (1) Supreme\n<\/p>\n
355).\n<\/p>\n
 \tSo far as the closure of the shop in terms of the
\ndirection of the Collector dated 21.6.2000 is concerned, the
\nsame is not in dispute.  The validity of the order of the
\nCollector is not in question.  Schedule-4 specifies the dry
\ndays and also specifies the date on which the shops are
\nrequired to remain closed.  The note appended to Clause (V)
\nspecifically directs closure of shops of only those areas
\nfalling within the area where elections are being held.  The
\narea refers to the cases in respect whereof the election is
\nbeing held and not which is outside the said area.\n<\/p>\n
 \tIn terms of Schedule-4, a remission in licence fee is
\nimpermissible if the closure occurs for a reason mentioned
\nin any of the clauses referred to therein.  The shops which
\nare situated outside the area where election is being held
\nwould not, therefore, come within the purview of Clause (V)
\nand, thus, would attract Clause (VIII) aforementioned, in
\nterms whereof, the Contractor becomes entitled to grant
\nproportionate rebate\/ concession in auction money as
\nprescribed for the concerned shop.\n<\/p>\n
 \tThe above view also find supports from the fact that
\nClause (VII) excludes those contractors who had to keep
\ntheir shops closed owing to the declaration of dry day as
\nprovided for in Clauses (I) to (VI).  If a shop falling
\noutside the area has to be kept closed in terms of an order
\npassed under Sub-Section (1) of Section 24 of the Act,
\nClause (VIII) of the Sale Memo shall be attracted.\n<\/p>\n
 \tWe may notice that recently in State of U.P. Vs.
\nJagjeet Singh [JT 2003 (8) SC 40: (2003) 8 SCC 270] a 3-
\nJudge Bench of this Court [in which one of us (the Chief
\nJustice of India) is a party] on interpreting Section 59 of
\nthe U.P. Excise Act which is in pari materia with Section 24
\nof the said Act held:\n<\/p>\n
“Section 59 empowers the district
\nmagistrate to close any liquor shop at
\nsuch time or for such period which he
\nmay consider necessary for preservation
\nof peace.  In cases where some riot or
\nunlawful assembly is apprehended in
\nvicinity of such a shop a magistrate or
\nany police officer above the rank of
\nconstable, who is present may order for
\nclosure of the shop.  The proviso to
\nSection 59 casts a duty on the licensee
\nto close the shop without any order by
\nany authority, where a riot or unlawful
\nassembly occurs at the place where the
\nshop is situated.  Apart from providing
\nfor closure of the shop to maintain
\npeace, Section 59 does not provide for
\nanything either way for awarding
\ncompensation or remission on account of
\nsuch a closure.”\n<\/p>\n
 \tIn that case it was inferred that if awarding of
\ncompensation is not specifically barred, the same may be
\ngranted.\n<\/p>\n
 \tWhile interpreting Rule 34(ii) of the U.P. Excise
\nLicenses (Tender-cum-Auction) Rules, 1991, it was further
\nobserved:\n<\/p>\n
“The position which finally emerges out
\nis that an application for remission \/
\ndamages for closure of shops in entirety
\nauctioned in a group as is the case in
\nthe appeals in hand would be
\nmaintainable.  But it is for the
\nauthorities concerned to consider the
\nmerit of the claim for remission\/
\ndamages and pass any appropriate order
\nlooking to the facts and circumstances
\nof the case in accordance with law.  It
\nwould be the position as it relates to
\ncases prior to the amendment of Rule 34
\nin 1998.”\n<\/p>\n
 \tHowever, so far as the claim of the respondent for the
\nperiod 1st April, 2000 to 3rd April, 2000 for non-grant
\nof licence is concerned, in our opinion, the same does not
\ncome within the purview of the Act, the General Conditions
\nor the conditions of Sale Memo.  The respondent for the
\naforementioned purpose must avail other remedies, if any, in
\nrelation thereto.  We, therefore, are of the opinion that
\nthe judgment of the High Court to that extent cannot be
\nsustained.\n<\/p>\n
 \tOrdinarily, we would have referred the matter back to
\nthe appropriate authority for passing an appropriate order
\nin accordance with law but herein we find that the
\nrespondents had filed representations which had been
\nrejected.  The period of licence is also long over.
\nFurthermore, the licence had been granted by the State of
\nMadhya Pradesh.  The writ petition filed by the respondent,
\nhowever, on creation of the High Court at Chhattisgarh, was
\nheard by it.\n<\/p>\n
 \tWe, therefore, do not intend to interfere with that
\npart of the judgment of the High Court wherein, having
\nregard to the interpretation of the provisions of the Act,
\ngeneral conditions and the conditions of Sale memo, a part
\nof its claim has been allowed.\n<\/p>\n
 \tFor the reasons aforementioned, the appeal is allowed
\nin part and to the extent mentioned hereinbefore.  However,
\nin the facts and circumstances of this case, there shall be
\nno order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Secretary, Department Of Excise & … vs M\/S. Sun Bright Marketing Pvt. … on 12 February, 2004 Author: S.B. Sinha Bench: Cji, S.B. Sinha, S.H. Kapadia CASE NO.: Appeal (civil) 6425 of 2002 PETITIONER: Secretary, Department of Excise & Commercial Taxes & ors. RESPONDENT: M\/s. Sun Bright Marketing Pvt. Ltd.Chhattisgarh & […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-115302","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSecretary, Department Of Excise & ... vs M\/S. 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