{"id":91044,"date":"1975-12-18T00:00:00","date_gmt":"1975-12-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/thakur-prasad-sao-etc-vs-the-member-board-of-revenue-ors-on-18-december-1975"},"modified":"2016-09-28T08:35:39","modified_gmt":"2016-09-28T03:05:39","slug":"thakur-prasad-sao-etc-vs-the-member-board-of-revenue-ors-on-18-december-1975","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/thakur-prasad-sao-etc-vs-the-member-board-of-revenue-ors-on-18-december-1975","title":{"rendered":"Thakur Prasad Sao Etc vs The Member, Board Of Revenue & Ors on 18 December, 1975"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Thakur Prasad Sao Etc vs The Member, Board Of Revenue & Ors on 18 December, 1975<\/div>\n
Equivalent citations: 1976 AIR 1913, \t\t 1976 SCR (3)\t 34<\/div>\n
Author: P Shingal<\/div>\n
Bench: Shingal, P.N.<\/div>\n
           PETITIONER:\nTHAKUR PRASAD SAO ETC.\n\n\tVs.\n\nRESPONDENT:\nTHE MEMBER, BOARD OF REVENUE & ORS.\n\nDATE OF JUDGMENT18\/12\/1975\n\nBENCH:\nSHINGAL, P.N.\nBENCH:\nSHINGAL, P.N.\nRAY, A.N. (CJ)\nBEG, M. HAMEEDULLAH\nSARKARIA, RANJIT SINGH\n\nCITATION:\n 1976 AIR 1913\t\t  1976 SCR  (3)\t 34\n 1976 SCC  (2) 850\n CITATOR INFO :\n R\t    1977 SC 722\t (17,19)\n\n\nACT:\n     Bihar &  Orissa Excise  Act 1915-Ss.  22 and 30-Licence\ngranted under  s. 22  all exclusive  privilege-Inability  to\nopen liquor  shop-If entitled  to refund  of fees.-Incurring\nloss-If a  ground for  reduction of fees-If refund should be\ngranted if quid pro quo is absent.\n\n\n\nHEADNOTE:\n     Under the\tBihar &\t Orissa Excise\tAct the holder of an\noutstill licence  for country  liquor pays a certain sum per\nmensem for  manufacturing country spirit in his outstill and\nselling it  by retail  in his  premises. No definite area is\nfixed within  which each outstill has the monopoly to supply\ncountry spirit\tbut their  number is  regulated according to\nrules and  five miles  is  taken  as  the  minimum  distance\nbetween one outstill and another.\n     The appellants  in all  the appeals were the holders of\nlicences for  the manufacturing\t and sale of country liquor.\nIn the first batch of cases the appellant could not open the\noutsill even after more than six months of its grant despite\nhis best  efforts. The approval for opening the outstill was\nwithdrawn and  he   was asked to pay the monthly licence fee\naccording to the terms of licence. The appellant's claim for\nrefund\tof   the  money\t deposited  by\thim,  together\twith\ncompensation for  loss of  anticipated profits\tand damages,\nwas rejected.  Despite this  the appellant  continued to bid\nfor licences  during the  subsequent three years and claimed\nrefund\tand   damages,\twhich  claim  was  rejected  by\t the\nauthorities. In\t the second  batch of appeals the appellants\nclaimed reduction  of the  licence fee\tfor outstill  liquor\nshops on the ground that they incurred losses because of the\nspeculative bids  at the  auction should have been prevented\nby  the\t authorities.  In  the\tthird  batch  of  cases\t the\nappellants claimed  refund of sums realised from them on the\nground that  there was\tno quid pro quo for the fees. In all\nthe cases the High Court dismissed their writ petitions.\n     On appeal\tit was\tcontended that\tthe High  Court\t was\nwrong in  holding that\texclusive privilege had been granted\nunder s.  22 of the Bihar & Orissa Excise Act, 1915 but that\nthe licences fell within the purview of s. 30 of the Act.\n     Dismissing the appeals,\n^\n     HELD: (1)\tIt is  futile to  contend that\tthe licences\nwere merely  licences for  the retail  sale  of\t spirit\t for\nconsumption on\tthe vendor's  premises within the meaning of\ns. 30  of the  Act. The\t essential feature  of the  outstill\nsystem is that the holder of a licence acquires the right to\nmanufacture country  spirit in\this outstill  and sell it by\nretail \"in  his premises\"  without any\t'restriction on\t the\nstrength or  prices at\twhich the  spirit is manufactured or\nsold. He  has a\t monopoly  of  manufacturing  and  supplying\ncountry liquor\twithin his area. The right is, therefore, an\nexclusive privilege within the meaning of s. 22(1)(d) of the\nAct. [38A-C]\n     (2) The  licences of  the appellants  remained in force\nfor the\t purposes for  which they were granted and by virtue\nof the\texpress provisions of s. 45 they could have no claim\nto compensation. [38 G]\n     (3) Even  though the  High Court has held that what was\ngranted was  an exclusive  privilege under s. 22, it did not\nnotice s.  44(2) while\ttaking the  view that the petitioner\nwas at\tliberty to  surrender  the  licence.  Section  44(2)\nclearly provides  that sub-s.  (1) of that section shall not\napply in  the case  of a licence for the sale of any country\nliquor in  exercise of\tan exclusive privilege granted under\ns. 22(c). [38 F-G]\n     (4) There\tis nothing  wrong in  the view\ttaken by the\nHigh Court  that the  responsibility for  finding a suitable\nsite was that of the appellant. There is no\n35\njustification for  the argument\t that nothing was payable by\nthe appellant because  he could not locate the shop in spite\nof his best efforts. The appellants retained the licence all\nthrough and  continued to make higher bids at the subsequent\npublic auctions\t thereby preventing  others from undertaking\nthe responsibility of establishing the outstills. [40 B-D]\n     (5) It was permissible for the State to frame rules for\nthe grant  of licences\ton payment of fees fixed by auction,\nfor that was only a mode or medium for ascertaining the best\nprice for  the grant of exclusive privilege of manufacturing\nand selling liquor. [41 A-13]\n     Nashirwar etc. v. State of Madhya Pradesh & Ors. [1975]\n2 SCR 861 and Har Shankar & ors. etc. v. The Deputy Excise &\nTaxation  Commissioner\t &  Ors.   etc.\t [1975]\t 3  SCR\t 254\nexplained.\n     (6) In the second group of appeals, there is nothing in\nthe rules  which could\tbe said\t to give  rise to a right in\nfavour of  the\tappellants  for\t reduction  of\tthe  amounts\ndemanded from them. [43 A-B]\n     (7) Id  the third\tgroup of  appeals the High Court was\nright in  holding that\tthe amounts in question were payable\nfor the\t licence which\thad been  granted for  the exclusive\nprivilege. The\targument that there should be refund of fees\nbecause there  was no quid pro quo is no longer available to\nthe  appellants\t  in  view   of\t this  Court's\tdecision  in\nNashirwar's case and Har Shankar's case.\n\t\t\t\t\t\t    [43 C-D]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil  Appeals Nos. 819-
\n823 of 1975.\n<\/p>\n
     From the  Judgment and  order dated  15-3-1975  of\t the
\nPatna High Court in Civil Writ Nos. 1184 of 1974.\n<\/p>\n
\t\t\t    AND
\n\tCIVIL APPEALS Nos. 824-827 and 1105 of 1975.
\n     From the Judgment and order dated 2-1-1973 of the Patna
\nHigh Court  in Civil Writ P.C. Nos. 1239 to 1242 of 1971 and
\n1532\/73 respectively.\n<\/p>\n
     Basudeo Prasad  (In CAs. 819-827\/75) for the Appellants
\n(in all the appeals).\n<\/p>\n
     Balbhadra Prasad,\tA. G. Bihar (In Cas. 819-823), U. P.
\nSingh for Respondents (In all the appeals)
\n     The Judgment of the Court was delivered by-
\n     SHINGHAL, J.,-  These ten appeals against two judgments
\nof the\tHigh Court  of Judicature at Patna raise some common
\nquestions of  law. They\t have been  argued together,  and we
\nshall examine  them in\tthis common  judgment. Civil Appeals
\nNos 824-827  of 1975  arise out\t of a  common judgment dated
\nJanuary 2,  1975 in  a bunch  of civil writ petitions; Civil
\nAppeals Nos.  819-823 of 1975 arise out of a common judgment
\ndated  March  15,  1975\t in  another  bunch  of\t civil\twrit
\npetitions; while  Civil Appeal\tNo. 1105 of 1975 is directed
\nagainst the  aforesaid judgment\t dated January\t2,  1975  by
\nwhich the  civil writ  petition giving\trise to\t it was also
\ndisposed  of   by  the\tHigh  Court  along  with  the  other
\npetitions. Certificates of fitness have been granted for all
\nthe appeals.  There is\tno controversy\tin regard to some of
\nthe basic  facts and  they  are\t quite\tsufficient  for\t the
\ndisposal of the appeals.\n<\/p>\n
36<\/span><\/p>\n
     A\tsale   notice  was   published\tby  the\t authorities
\nconcerned for the auction of licences to open country liquor
\nshops in  Singhbhum district with effect from April 1, 1966,
\nincluding an  outstill shop at Bhirbhania. Appellant Ayodhya
\nPrasad gave  the highest  bid which was knock ed down in his
\nfavour, and  he deposited two months’ licence fee in advance
\nat the\trate of\t Rs. 3,650\/-  per month. He applied on March
\n22, 1966 to the Kolhan Superintendent of Singhbhum to settle
\na piece\t of  land  for\testablishing  an  outstill  shop  at
\nBharbharia, but\t the application  was rejected\ton September
\n27, 1966  because of the objection raised by some members of
\nthe  District\tConsultative  Committee.  The  villagers  of
\nBharbharia also\t opposed the  opening of  the outstill shop.
\nThe shop  could not  therefore be  established\tthere.\t`The
\nappellant how  ever obtained  a piece  of  land\t in  village
\nChittimitti and\t applied on  July 30, 1966 for permission to
\nopen the  outstill shop\t there. This  was  allowed  and\t the
\nappellant claimed  that he  began to  collect the  necessary
\nmaterial but  a mob  forcibly removed  the building  and the
\ndistillation material.\tHe filed  a report  with the  Police
\nabout the  incident. The  approval for\topening the outstill
\nshop at Chittimitti was however withdrawn on October 6, 1966
\nand the\t appellant was\tasked to pay the monthly licence fee
\nfor the period April 1, 1966 to January, 1967. He denied his
\nliability to  pay the  fee and claimed a refund of the money
\nwhich had been deposited by him. His case was recommended by
\nthe Collector for remittance of the licence fee amounting to
\nRs. 43,800\/-  for the  entire year  1966-67. He also made an
\napplication to\tthe Commissioner of Excise for refund of the
\ndeposit of  Rs. 7,300\/-\t and for payment of compensation for
\nloss  of   anticipated\tprofits\t  and  dam   ages,  but\t the
\napplication was rejected. It appears that the appellant went
\non bidding  at the  bids for the subsequent three years, and
\nlaid similar claims for refund and damages, but to no avail.
\nHe then\t filed the bunch of writ petitions referred to above
\nfor  quashing\tthe  demand  notices,  but  they  have\tbeen
\ndismissed as  aforesaid by  the High  Court’s judgment dated
\nJanuary 2, 1975. Civil Appeal No. 825 relates to the bid for
\n1966-67, Civil\tAppeal No.  824 relates to the bid for 1967-
\n68, while  Civil Appeals Nos. 826 and 827 relate to the bids
\nfor 1968-69  and 1969-70.  These may be said to be group ‘A’
\nappeals.\n<\/p>\n
     Civil Appeals  Nos.  819-823  of  1975  relate  to\t the
\napplications of\t appellants Thakur Prasad Sao and others for
\nreduction of  the licence  fees for outstill liquor shops at
\nGua, Noamandi,\tKiriburu,  Andheri,  Goiekara,\tPatajai\t and
\nDangusposi for 1974-75. In these cases the licensees were T.
\nP. Sao or his relations or employees. They claimed that they
\nincurred a loss of Rs. 55,874.79 at Gua, of Rs. 26,651.45 at
\nNoamandi, of  Rs. 39,389.53  at Kiriburu of Rs. 35,169.40 at
\nAndheri, of  Rs. 11,649.87  at Goekera,\t of Rs. 11,705.95 at
\nPatajai and of Rs. 11,657.21 at Dengusposi.\n<\/p>\n
     The appellants  claimed  that  there  was\trivalry\t and
\nenmity with  Bishwanath Prasad\tand  his  brother  who\tmade
\nspeculative bids  at the  auction, as  a result of which the
\noutstill shops\twere settled  for uneconomic  amounts. Their
\ngrievance was that the Deputy Commissioner did not discharge
\nhis duty  of refusing  to allow\t the manifestly\t speculative
\nbids although the percentage of increase in the licence fees
\nranged between
\n37<\/span>
\n24 to  130 per\tcent when  for other  shops the increase was
\nbelow 12  percent. The\tappellants filed  application  under
\nsection 39  of\tthe  Bihar  and\t Orissa\t Excise\t Act,  1915,
\nhereinafter referred  to as  the Act,  for reduction  of the
\nfees for  the year  1974-75, but  they were  rejected by  he
\nBoard  of  Revenue.  They  then\t filed\tthe  aforesaid\twrit
\npetitions in  the High\tCourt and have now filed the present
\nappeals because\t the petitions\thave been  dismissed by\t the
\nHigh Court’s  impugned judgment\t dated March 15, 1975. These
\nwill be referred to as group ‘B’ appeals.\n<\/p>\n
     As has been stated, the remaining Civil Appeal No. 1105
\nof 1975\t is also  directed against  the High  Court’s common
\njudgment dated January 2, 1975. It relates to the grant of a
\nlicence to  the appellant for establishing outstill shops at
\nMahuadom,  Barahi,   Asnair,  Aksi  and\t Kabri,\t in  Palamau
\ndistrict. The  appellant applied  for a\t direction  for\t the
\nrefund of  Rs. 2,71,340\/-  which had  already been  realised
\nfrom him,  and for  restraining the realisation of a further
\nsum of\tRs. 1,40,680\/-\ton the ground that there was no quid
\npro quo for the fee, but without success. The High Court has
\ntaken the  view that the amounts in question were not due on
\naccount\t of  fees,  but\t were  payable\tfor  leases  of\t the
\nexclusive privileges which had been granted to the appellant
\nin respect of the outstills.\n<\/p>\n
     It is  in these  circumstances that  these appeals have
\ncome up for consideration before us.\n<\/p>\n
     As has  been stated,  the controversy  in these appeals
\nrelates to  the grant  of licences for establishing outstill
\nshops which  are also  known as “jalti bhattis”. That system
\nhas been  described in paragraph 253 of the Bihar and Orissa
\nExcise Manual,\tVolume III,  hereinafter refer red to as the
\nManual, as follows:-\n<\/p>\n
\t  “By this system a certain number of stills for the
\n     manufacture of  country spirit  are  allowed  within  a
\n     certain area.  The holder of an outstill licence pays a
\n     certain sum  per  men  sem\t for  manufacturing  country
\n     spirit in\this outstill and selling it by retail on his
\n     premises. No  attempt is made to regulate the strengths
\n     or the prices at which spirit is manufactured or
\nIt has\tbeen stated  in paragraphs 254 and 255 of the Manual
\nthat no\t . definite area is fixed within which each outstill
\nhas the\t “monopoly of  supply of  country spirit”, but their
\nnumber is  regulated according\tto rules,  and five miles is
\ntaken roughly  as the  minimum distance of one outstill from
\nanother.<\/p><\/blockquote>\n
     It has  been argued  on behalf  of the appellants, that
\nwhat was  granted to them was not the exclusive privilege of
\nmanufacturing and  selling country  liquor in retail, in the
\nareas for which the licences were granted, and that the High
\nCourt erred in holding that such an exclusive  privilege had
\nbeen granted  under section 22 of the Act. It has been urged
\nthat the  licences in  question fell  within the  purview of
\nsection 30 of the Act
\n38<\/span>
\n     We\t have\tdescribed  the\tessential  features  of\t the
\noutstill system,  and there  can be no doubt that the holder
\nof  a  licence\tunder  the  system  acquires  the  right  to
\nmanufacture country  spirit in\this outstill  and sell it by
\nretail “in  his premises”  without any\trestriction  on\t the
\nstrength or  price at  which the  spirit is  manufactured or
\nsold. Moreover\the has\tthe monopoly  of  manufacturing\t and
\nsupplying country  liquor within  his  area.  The  right  is
\ntherefore clearly  an exclusive privilege within the meaning
\nof section  22(1) (d) of the Act and it is futile to contend
\nthat the  licences in  question were merely licences for the
\nretail sale  o f  spirit for  consumption  on  the  vendor’s
\npremises within\t the meaning  of section  30 of the Act. The
\nHigh Court was therefore quite correct in taking that view.\n<\/p>\n
     It may  be\t mentioned  that  the  appellants  have\t not
\nproduced their\tlicences in  support of\t the contention that
\nexclusive privilege  of the nature referred to above was not
\ngranted\t to   them  even   though  the\t licences  were\t for
\nestablishing outstills\tin the\tarea covered  by them. It is
\nhowever not  disputed that the licences were granted in Form
\n30 (Volume  II, Part  I, Bihar and Orissa, Excise Manual) on
\nthe  condition\t that  the   appellants\t would\tpay  to\t the
\ngovernment, in\tadvance. the  monthly fee mentioned therein.
\nIt is  nobody’s case  that the\tlicences were  cancelled  or
\nsuspended under section 42 of the Act for any of the reasons
\nmentioned  in\tthe  section,  or  that\t the  licences\twere
\nwithdrawn under\t section 43  so as to entitle the appellants
\nto remission  of the  fee payable  in respect  of them or to
\npayment of compensation in addition to such remission, or to
\nrefund of  the fee  paid in advance. It is also not the case
\nof the\tappellants  that  they\tsurrendered  their  licences
\nwithin the meaning of sub-section (1) of section 44 so as to
\njustify the  remittance of  the fee payable by them, or paid
\nby them\t in advance. In fact it has clearly been provided in
\nsub-section (2)\t of section  44 that  the provisions of sub-
\nsection (1)  ‘shall not\t apply in  the case of a licence for
\nthe sale  of any  country  liquor  in  the  exercise  of  an
\nexclusive privilege  granted under  section 22.\t It is\ttrue
\nthat in\t its judgment  under appeal  (in Civil\tAppeals Nos.
\n824-827 of  1975) the  High  Court  has\t observed  that\t the
\npetitioner  before  it\twas  at\t liberty  to  surrender\t the
\nlicense, but  it appears that in taking that view it did not
\nnotice sub-section (2) of section 44 even though it had held
\nthat what  was granted\twas  an\t exclusive  privilege  under
\nsection\t 22.   The  licences  of  the  appellants  therefore
\nremained in  force for\tthe  periods  for  which  they\twere
\ngranted and,  by virtue of the express provisions of section
\n45, they could have no claim to compensation.\n<\/p>\n
     In such  a situation,  counsel for\t the appellants have
\nplaced considerable  reliance on paragraph 121 of the Manual
\nand have argued that the High Court erred in taking the view
\nthat the  instructions contained   in  it had  no  statutory
\nforce and  its benefit\twas not available to the appellants.
\nReliance in this connection has been placed on Sukhdev Singh
\nand  others   v.  Bhagatram  Sardar  Singh  Raghuvanshi\t and<\/a>
\nanother(1), Laljee  Dubey and  others v.  Union of India and
\nothers<\/a>(2) Union of India v. K. P. Joseph and others<\/a>(3).\n<\/p>\n
     (1) [1975] 3 S.C.R 619.\t    (2) [1974] 2 S.C.R. 249.
\n\t\t  (3) [1973] 2 S.C.R. 75.\n<\/p>\n
39<\/span><\/p>\n
     Paragraph 121  of the Manual states, inter alia, that a
\nperson whose  bid has been accepted by the presiding officer
\nat the\tauction must  pay the  sum required  on\t account  of
\nadvance\t fee   immediately.  It\t  states  further  that\t the
\npurchaser would\t be liable  for any  loss that may accrue to
\ngovernment in  case it becomes necessary to resell the shops
\nfor a lower sum in consequence of his failure to pay the sum
\nat the\ttime of\t the  sale.  Then  there  is  the  following
\nsubparagraph on\t which reliance\t  has been placed by counsel
\nfor the appellants:\n<\/p>\n
\t  “Deposits will  be returned  to a person to whom a
\n     licence  may   be\tsubsequently   refused\tbecause\t the
\n     Magistrate declines  to grant  him\t a  certificate,  or
\n     because he\t is unable  to obtain  suitable premises and
\n     satisfies the  Collector that  he has  made  bona\tfide
\n     endeavor to  secure such or if a licence be refused for
\n     any other adequate reason.”\n<\/p><\/blockquote>\n
It would  thus appear  that the sub-paragraph deals with the
\n“deposits” made\t immediately on account of advance fees, the
\nconsequences of\t the failures  to make\tsuch payment and the
\nreturn of those “deposits” to the person to whom the licence
\nmay subsequently  be  refused  because\t(1)  the  Magistrate
\ndeclines to  grant him a certificate or because he is unable
\nto obtain  suitable premises  in  spite\t of  his  bona\tfide
\nendeavors  or (ii) for any other adequate reason. But it was
\nnot the\t case of  the  appellants  that\t the  licences\twere
\n“subsequently refused” to them for any reason whatsoever. So
\neven if\t it were assumed, for the sake of argument, that the
\ninstructions contained\tin paragraph 121 were binding on the
\nauthorities concerned, that would not matter for purposes of
\nthe present  controversy as  it does not relate to refund of
\nthe deposits  referred to  in paragraph 121. In this view of
\nthe matter,  it is  not necessary for us to examine here the
\nlarger question\t whether the  instructions contained  in the
\nManual were  made under any provision of the law and created
\nany rights  in favour of persons whose bids were accepted at
\npublic auctions\t of the\t shops. It  may\t be  mentioned\tthat
\ncounsel for  the appellants  have not  been able to refer to
\nany other  – provision of the law under which the appellants
\ncould claim  remission ,  of the  price or the consideration
\nfor the\t exclusive privilege  of manufacturing\tand  selling
\ncountry liquor.\n<\/p>\n
     It has  however. been  argued that as appellant Ayodhya
\nPrasad did  not succeed\t in locating  the outstill  shop  at
\nBharbharia in spite of his best efforts, and he was also not
\nsuccessful in  locating it at Chittimitti, he was not liable
\nto pay\tthe fee.  It has been pointed that even the approval
\nfor locating  the   shop at  Chitimitti was withdrawn by the
\nSuperintendent of  Excise on  October 6,  1966, and  Ayodhya
\nPrasad’s case  for remitting  the sum  of Rs.  43,800\/-\t was
\nrecommended by\tthe  Deputy Commissioner of Singhbhum on May
\n3, 1967\t on the\t ground that  he could not open the shop for
\nreasons beyond his-control. It has therefore been urged that
\nthere was no lack of bona fides on the part of the appellant
\nand it\twas a  matter of  no consequence  that\the  did\t not
\nsurrender his licence.\n<\/p>\n
     It will  be recalled  that it  was an  incident of\t the
\noutstill system\t that the  holder of an outstill licence was
\nallowed to manufacture country
\n     4-390SCI\/76
\n40<\/span>
\nspirit within  a “certain area” and he paid a certain sum of
\nmoney per  mensem for  manufacturing country  spirit in\t his
\noutstill and  “selling it by retail on his premises”. It was
\ntherefore permissible for appellant Ayodhya Prasad to locate
\nthe shop  at Bharbharia\t or at\tsome  other  suitable  place
\nwithin his  area, with\tthe permission of the Collector. The
\nnotice which  had been\tissued for  the public auction is on
\nthe record and condition No. 5 thereof expressly states that
\nthe department\twould not  be responsible  for providing the
\nplace for  the location\t of the\t outstill. Moreover  it\t was
\nexpressly stated  that the  outstill at\t Bharbharia would be
\nsettled purely\tas a  temporary measure on condition that an
\nundisputed  site   was\tmade  available\t for  it.  There  is
\ntherefore nothing  wrong with  the view\t taken by  the\tHigh
\nCourt that  the responsibility\tfor finding  a suitable site
\nwas of\tthe appellant, and there is no justification for the
\nargument that  nothing was  payable by\thim because he could
\nnot locate  the shop in spite of his best efforts. It may be
\nthat  the  Deputy  Commissioner\t recommended  his  case\t for
\nremission, but\tthat I\twould not  matter when the appellant
\nwas liable  to pay  the money  under the  law governing\t his
\nlicence. The  appellant in  fact retained  the 1 licence all
\nthrough and  continued to  make\t the  highest  bids  at\t the
\nsubsequent public  auctions for\t the years  1967-68, 1968-69
\nand 1969-70  and thereby  prevented others  from undertaking
\nthe responsibility  of establishing  the outstill and paying
\nthe price  admissible to the department. As has been stated,
\nthe approval  for opening  the outstill shop at Chittimitti,
\nwas withdrawn  on October  6, 1966,  and the  demand for the
\nlicence fee  was made  on January  9,  1967.  Even  so,\t the
\nappellant did  not take\t any action to save himself from any
\nsuch liability in the future and, on the other hand, went on
\nmaking\tthe   highest  bids  in\t the  subsequent  years\t and
\nincurring similar  liability to pay the price even though he
\nwas not able to establish his outstill anywhere in any year.
\nIt is  therefore difficult  to reject  the contention in the
\naffidavit of  the respondents that there must have been some
\nother reason  for him to do so, particularly as the location
\nof his shop was to be on the border of l the State.\n<\/p>\n
     It has also been contended that the High Court erred in
\nholding that  the State\t Government had the power to require
\nthe appellants\tto pay\tthe amounts  under  demand  as\tthey
\nrepresented consideration  for the  contracts. It  has\tbeen
\nargued that this Court’s decision in Nashirvar etc. v. State
\nof Madhya  Pradesh and\tothers(1) and Har Shankar and others
\netc. v.\t The Deputy  Excise and\t Taxation  Commissioner\t and
\nothers etc.(2)\trelated to  the Excise\tlaws of other States
\nand did not bear on the present controversy. The argument is
\nhowever futile\tfor we\thave given  our reasons\t for holding
\nthat what  was granted\tto the\tappellants was the exclusive
\nprivilege of manufacturing and selling country liquor within
\nthe meaning of section 22(1) (d) of the Act, and it has been
\nexpressly  provided   in  section   29\tthat   it  would  be
\npermissible for\t the State Government to accept payment of a
\nsum in\t“consideration” of  the\t exclusive  privilege  under
\nsection 22.  The decisions of this Court in Nashirwar’s case
\nand Har Shankar’s case have set any controversy in
\n     (1) [1975] 2 S.C.R. 861.\t    (2) [1975] 3 S.C.R. 254.\n<\/p>\n
41<\/span><\/p>\n
this respect at rest, so that it is well settled that as the
\nState has the exclusive right and privilege of manufacturing
\nand selling  liquor, it\t has the  power\t to  hold  a  public
\nauction for  the grant\tof such\t a right or privilege and to
\naccept the  payment of\ta sum  therefor.  It  was  therefore
\npermissible for\t the State  to frame  rules for the grant of
\nlicences on  payment of\t fees fixed by auction, for that was
\nonly a\tmode or\t medium for  ascertaining the best price for
\nthe grant  of the  exclusive privilege\tof manufacturing and
\nselling liquor.\n<\/p>\n
     As has  been stated,  Group ‘B’  appeals relate  to the
\nclaim for reduction of the licence fees for the liquor shops
\nconcerned. It  has been argued by counsel for the appellants
\nthat as\t the Collector\tdid not discharge his duty under the
\ninstructions contained\tin paragraph 130 read with paragraph
\n93 of  the  Regulations,  the  Board  acted  arbitrarily  in
\nrefusing the  order reduction  of the  amounts of  the\tfees
\nwhich  were   the  subject-matter   of\tthe   demands  under
\nchallenge. It  has been\t urged that  the  bids\twere  highly
\nspeculative and should have been reduced.\n<\/p>\n
     It\t has  been  strenuously\t argued\t on  behalf  of\t the
\nrespondent State of Bihar that the instructions contained in
\nthe Regulations\t were not  issued under any provision of the
\nlaw and\t could not  give rise  to any right in favour of the
\nappellants. Reference  in this\tconnection has\tbeen made to
\nM\/s Raman  and\tRaman  Ltd.  v.\t The  State  of\t Madras\t and
\nothers<\/a>(1) and  R. Abdulla  Rowther v.  The  State  Transport
\nAppellate  Tribunal,  Madras  and  others(2).  It  has\tbeen
\npointed out  that there\t are three  volumes of the Bihar and
\nOrissa Excise  Manual, 1919.  It  has  been  stated  in\t the
\npreface to  Volume I  that it  is  complete  in\t itself\t and
\ncontains the  whole of\tthe law and the rules which have the
\nforce of  law “relating to excise opium.” Volume II contains
\nthe “whole  of the law and the rules which have the force of
\nlaw relating to excisable articles other than opium.” It has
\nbeen stated in the preface to Volume III that it consists of
\nthe Board’s  “instructions with regard to excisable articles
\nother than  opium” and that references have been made to the
\nGovernment Rules  and the  Board’s Rules having the force of
\nlaw. There  is however\tno such\t reference to  any  rule  in
\nregard to instructions Nos. 130 and 93. But quite apart from
\nthe  question\twhether\t these\t instructions  were  legally
\nenforceable, we\t have examined\tthe  question  whether\tthey
\ncould justify the argument that the appellants were entitled
\nto reduction of the amounts of the fees payable by them.\n<\/p>\n
     Instruction No.  93 mentions  the circumstances when it
\nwould be advisable to accept bids other than the highest. It
\nstates that it is not an absolute rule that the highest bids
\nmust, on every occasion, be accepted. It states further that
\nthe presiding  officer at  an auction  “may also refuse bids
\nwhich he considers to be purely speculative or which are the
\noutcome of  private enmity”, and that what is desired is not
\nthe highest  fee obtainable,  but a  fee that  can fairly be
\npaid out  of the  profits of  a\t shop  without\trecourse  to
\nmalpractices. There  is there-fore nothing in the rule which
\ncould be  said to  give rise  to a  right in  favour of\t the
\nappellants for\treduction of the amounts demanded from them.
\nInstruction No. 130 merely states that reduction of licence
\n     (1) [1959] Supp. (2) S.C.R. 227.\t(2) A.I.R. 1959 S.C.\n<\/p>\n
\t\t\t\t\t\t\t896.
\n42<\/span>
\nfees, during  the currency  of a licence, can be made by the
\nBoard under  section 39\t of the\t Act. It  does not therefore
\nadvance the  case of the appellants for, under that section,
\nthe Board  has been given that power, “if it thinks fit”, to
\norder a\t reduction of  the amount of fees payable in respect
\nof a  licence, “during\tthe unexpired  portion of the grant”
\nwhich is  not the  case of  the appellants. In fact all that
\nhas been  argued on  behalf of the appellants is that as the
\ninstructions contained in the note appended to paragraph 130
\nof the\tRegulations have not been complied with, their legal
\nright to  claim the  benefit of\t the note  has wrongly\tbeen
\ndenied to them. The note reads as follows,-\n<\/p>\n
\t  “Note-ordinarily  it\t is  not   the\t policy\t  of
\n     Government to  allow reduction  in excise\tsettlements.
\n     The licensees  to a  large extent, have only themselves
\n     to thank  if they\texceed in  their bidding  the figure
\n     which should  return them\ta  reasonable  profit  under
\n     normal conditions,\t and they are not therefore entitled
\n     to any reduction of fees as of right. The observance of
\n     this principle is the more important because it must be
\n     remembered that  each remission  is likely to aggravate
\n     the evil  and encourage speculative bidding in the hope
\n     that  should   the\t speculation  turn  out\t a  failure,
\n     Government will not insist on full payment. A remission
\n     should not\t be granted merely because working at a dead
\n     loss has  -. been\tactually proved. Each case should be
\n     dealt with on its own merits. Where, for example, it is
\n     proved that the Collector has not fulfilled his duty in
\n     refusing to  allow manifestly  speculative bids and has
\n     failed to\tstop the  bidding when\ta  figure  has\tbeen
\n     reached  which,   under  normal  conditions,  might  be
\n     expected to  return a  reasonable rate of profit to the
\n     vendor, the question would be whether the action of the
\n     Collector was  so flagrantly  opposed to the principles
\n     enunciated from  time  to\ttime  by  Government  as  to
\n     necessitate remedial  action. Such\t action\t should\t not
\n     take the  form of\tany promise of resettlement with the
\n     existing licensees.  It can  only take  the form  of  a
\n     reduction in the amount of the existing licensees.
\n\t  It should  not be very difficult for an officer in
\n     a contract\t supply area  to realise  the stage at which
\n     bidding becomes purely speculative. He knows the issues
\n     of spirit\tduring the previous year and the cost to the
\n     vendor including  duty, carriage, establishment charges
\n     and the  like, and\t should thus be able to estimate the
\n     figure beyond  which a  prudent man  would not  bid. If
\n     after warning  the bidder,\t that this  point  has\tbeen
\n     reached, the  latter still\t wishes to  take the risk no
\n     case for  remission can  arise. The  case is,  however,
\n     different where  exceptional reasons which would not at
\n     the  time\t be.  foreseen,\t operate  adversely  to\t the
\n     interest of the licensee but at the same time it is not
\n     the duty of Government to safe guard licensees from the
\n     effects of their own imprudence or ignorance.”\n<\/p><\/blockquote>\n
43<\/span><\/p>\n
It would appear that there is nothing in the note to justify
\nthe argument  that it  gave rise to a right in favour of the
\nappellants to  obtain a\t reduction of  the fees. As has been
\npointed out, that was clearly a matter within the discretion
\nof the\tBoard of  Revenue under section 39, and the wordings
\nof the\tnote appended  to paragraph  130 could not overreach
\nthat provision\tof the\tlaw. Moreover,\tthe question whether
\nthe circumstances  mentioned in\t the note  were\t at  all  in
\nexistence in  the case\tof the\tappeals under consideration,
\nwas a  question of  fact which\tcould not  be tried in these
\nproceedings. The decision in Rohtas Industries Ltd. v. S. D.
\nAgarwal and<\/a>  another(1) to  which  our\tattention  has\tbeen
\ninvited on  behalf of  the appellants, can be of no avail to
\nthem.\n<\/p>\n
     As has  been stated,  the writ petition which has given
\nrise to\t Civil Appeal  No. 1105\t of 1975 raised the question
\nwhether the  refund of\tfees claimed  by the  appellant\t was
\npermissible on the ground that there was no quid pro quo for
\nthe  same.   The  High\t Court\thas  rightly  rejected\tthat
\ncontention for\tthe reason that the amounts in question were
\npayable for  the licences  which had  been granted  for\t the
\nexclusive privilege in question and, as has been shown, that
\nargument is  no longer available to the appellant in view of
\nthis Court’s  decisions in  Nashirwar’s case (supra) and Har
\nShankar’s case (supra).\n<\/p>\n
     There is  thus no\tforce in  all these appeals and they
\nare hereby dismissed with costs. It is however ordered that,
\nas has\tbeen agreed  by the Advocate-General the authorities
\nconcerned  would   recover  the\t  amounts  in\tquestion  in
\ninstalments spreading  over a  period of three years in case
\nof those  appellants who  are able  to furnish\tsecurity for
\npayment within that period.\n<\/p>\n
P.B.R.\t\t\t\t\t  Appeals dismissed.\n     (1) [1968] 3 S.C.R. 108.\n44<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Thakur Prasad Sao Etc vs The Member, Board Of Revenue & Ors on 18 December, 1975 Equivalent citations: 1976 AIR 1913, 1976 SCR (3) 34 Author: P Shingal Bench: Shingal, P.N. PETITIONER: THAKUR PRASAD SAO ETC. Vs. RESPONDENT: THE MEMBER, BOARD OF REVENUE & ORS. DATE OF JUDGMENT18\/12\/1975 BENCH: SHINGAL, P.N. […]<\/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-91044","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThakur Prasad Sao Etc vs The Member, Board Of Revenue & Ors on 18 December, 1975 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/thakur-prasad-sao-etc-vs-the-member-board-of-revenue-ors-on-18-december-1975\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Thakur Prasad Sao Etc vs The Member, Board Of Revenue & Ors on 18 December, 1975 - 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