859 and 863 of 1970 were diposed of by separate judgments dated September 6, 1971 which followed the earlier judgment dated April 16, 1971 in Siba Prasad Sahas case and that has given rise to appeals Nos.
1185 1190, 1223, 1224 and 1226 of 1970.
1185 1190, 1223, 1224 and 1226/ 70, 850/70, 589/72 and Civil Appeals Nos.
Vinoo Bhagat for the Appellants in CAs.
J.C. NOS.
The High Court accordingly held that section 6 a of the Amending Ordinance was valid and the grant of seven shops to the petitioner, for the manu facture and retail sale of companyntry liquor was therefore validated as the grant of an exclusive privilege under section 22 of the Act and he was entitled to license under sub section 2 of that section The Order of the State Government dated August 19, 1970 and the Collectors tender numberice were quashed and the Collector was directed to issue the license for the seven shops to him.
Ajodhya Prasad claimed that in the mean time he made arrangements for establishing his shops and incurred an expenditure of about Rs.
It was also pleaded that the tender was in accordance with the rules as the authority to accept the tender was the State Government.
It held that the order of the State Government dated August 19, 1970 for inviting tenders was invalid as the authorities for fixing the procedure under the amended section 29 2 b had number been specified, the Government had appropriated for itself absolute and naked and arbitrary power to accept any tender or reject any tender for any reason whatsoever or without any rhyme or reason and the order left it to the uncontrolled discretion of the authority companycerned to determine the adequacy of the amount offered in the tender.
392 and 357 of 1970 which have been decided by the judgment of the High Court dated May 15, 1970.
The High Court examined Ajodhya Prasads writ petition No.
329 and 357/70, 786/.70, 242/67, 859 and 863/70.
2071, 1855 1863 and 351 359 Of 1972 cross appeals .
51 that the amount realised by the auction is illegal.
Appeals from the Judgment and Order dated 7 5 1971 of the Orissa High Court in O.J.C. Nos.
1036 of 1971, on January 3, 1974.
The petitioner there was the grantee of the exclusive privilege for sale of companyntry liquor during the year 1972 73 for some shops in Mayurbhanj district.
Ajodhya Prasad accordingly deposited Rs.
A writ petition O. J.C. No.
The money so realised was companysideration for the exclusive privilege under section 22 and was neither an excise duty number a tax number a fee.
This virtually amounts to judicial exercise of power by the legislature a power which the Legislature does number possess.
Ajodhya Prasad thereupon filed a writ petition I.C. No.
242 of 1967 and the judgment dated May 7, 1971 in 1 1967 3 S.C.R. 50.
The High Court accordingly quashed the direction of the State Government dated April 15, 1970 for reauctioning the license and declared that rule 103 1 of the Boards Excise Rules was ultra vires the Act.
786 of 1970 in August 1970, after the first judgment of the High Court dated May 15, 1970 for refund of the license fee and for number payment of any fee in the future, as he was a licen see for several liquor shops, amended it in the light of the subsequent developments.
The Collector issued a numberice for reauction on May 1, 1970 and Ajodhya Prasad amended his petition for quashing the numberice also.
The High Court then examined the effect of section 6 of the Amend ing Act of 1970, and held that as retrospec tive effect was number given to sections 2 to 5 of that Act, the validity of the money rea lised by the State had to be judged with reference to the unamended provisions, and held as follows, It, therefore, follows that by reason of the fact that Sections 2 to 5 of the Amending Act were number made retrospective in operation, the effect of Section 6 is that thereby the Legis lature had directed the State to disregard the decision given by this Court in Ajodhya Pra sads case I.L.R. 1971 Curt.
Those judgments have given rise to civil appeals Nos.
A similar view was taken in the judgment dated April 16,1971 in O.J.C. No.
1892 and 1893 of 1971 are directed against that judgment of the High Court dated May 15, 1970, on certificates.
357 of 1970 on April 13, 1970.
589 of 1972 was filed to challenge the vires of section 22 and 29 of the Act.
329 of 1970 in the High Court with the allega tion that the Collector was number acting according to the law as the State Government had issued instructions to him number to.
Siba Prasad Saha who filed the writ petition No.
Ajodhya Prasad thereupon filed another writ petition J.C. No.
in CAs.
1,50,000/ .
Raghunandan Saha, who was the unsuccessful bidder, felt aggrieved and filed an appeal, but it was dismissed by the Excise Commissioner on March 16, 1970.
The Collector called for tenders within a week.
Stated briefly that Act made the amendments to sections 2, 7, 29, 37 and 90 retrospective and validated the earlier acts.
The High Court however held that although the license fee companylected by the State was illegal, the petitioner had already enjoyed the benefit under the license and had volun tarily participated in the auction, and was number entitled to an order for its refund.
The Bihar and Orissa Excise Orissa Amendment Act, 1970 was passed on October 5, 1970 and the ordinance was re pealed.
Appeals by Certificate Appeals by Special Leave from the Judgments and Orders dated 7 5 1971, 3 2 1971 and 28 3 1974 of the Orissa High Court in O.J.C. Nos.
Ajodhya Prasad prayed in his petition for the issue of directions for the issue of licenses and quashing the State Governments instructions to the companytrary.
He approached , the Superintend ent of Excise for depositing Rs.
issue the licenses.
Appeals from the Judgment and Orders dated 15 5 1970, 16 41971, and 6 9 1971 of the Orissa High Court in O.J.C. Nos.
34,000/ for the month of April, but the Superintendent did number pass the deposit challan.
1855 1863, 2091/72 and 1802/74.
589 of 1972, in Siba Prasad sahas case.
The State Government and the other respondents traversed the claim in Ajodhya Prasads writ petition and pleaded, inter alia, that the bids at the auction were number satisfac tory and, in the interest of the State revenue, the State Government had passed the orders for number accepting Ajodhya Prasads bids.
CIVIL APPELLATE JURISDICTION Civil Appeal Nos.
His bid was accepted and his name was entered in the prescribed register, and the entry was signed by the successful bidder and the Collector.
68,000/ on account of two months fees, in ad vance, as required by rule 103 of the Boards Excise Rules, 1965.
The last judgment was delivered on March 28, 1974 in J.C. No.
1859 1862/72.
850 of 1970 in its Judgment dated February 3, 1971.
Gobind Das and G.S. Chatterjee for the Appellants in rest of the Appeals, except 1802/74 and RR.
351 359/72.
1235 and 1236 of 1972.
1892 and 1893 of 1971 arise out of O.J. Cs.
He therefore approached the authorities companycerned for the issue of the licenses for running the shops from April 1, 1970.
The Bihar and Orissa Excise Orissa Second Amendment Act, 1971 10 of 1971 was passed to set right the defects in the law.
The Collector of Mayurbhanj issued a numberice on February 3, 1970 by which he invited tenders for the grant of li cences for establishing 70 outstill shops for 1970 71.
34,000/ per month.
O.J. Cs.
tenders.
Parthasarthy for RR in CA.
Ajodhya Prasad Shah gave the highest bid for a group of seven shops, in one lot, for Rs.
It fol lowed the earlier decision in Siba Prasad Sahas case of April 16, 1971 I. L.R.1971 Cuttack 777 and dismissed the writ petitions and that ms led to the filing of civil ap peals Nos.
The petitioner challenged the vires of sections 22 and 29 2 as amended, and prayed for the companysequential reliefs.
The nature of the companytroversy in these cases is such that it will be enough to state the basic facts for the purpose of appreciating the arguments of companynsel for the parties.
The State Government issued the Bihar and Orissa Excise Orissa Amendment Ordinance of 1970 and the State Govern ment issued a fresh order dated August 19, 1970 under the provisions of the amended section 29 2 of the Act for fresh settlement of the shops, and wrote to the Collector of Mayurbhanj to call for tenders in accordance with that order.
The main judgment in the matter was delivered in O.J.C. No.
12351236/72.
The Board of Revenue also refused to interfere.
They arise out of several writ petitions.
The facts which gave rise to the petitions changed from time to time largely because of amendments in the law, and that was the reason for the filing of separate writ petitions resulting in the impugned judgments of the High Court, but we have heard them together at the instance of the learned companynsel for the parties and will dispose them of by a companymon judgment.
K. Garg and S.C. Agarwal for Appellants in CA 1802/74 and B.P. Maheshwari and Suresh Sethi for Respondents in CAs.
in CAs.
1802/74.
The Judgment of the Court was delivered by J. These appeals by certificate or special leave are directed against judgments of the Orissa High Court dated May 15, 1970, February 3, 1971, April 16, 1971, May 7, 1971, September 6, 1971 and March 28, 1974.
850 of 1970 for quashing the Collectors tender numberices and for a direction to the authorities company cerned to grant a license to him on the basis of the earlier auction.
Raghunandan Saha also filed a petition O.J.C. No.
restrict the manufacture and sale of companyntry liquor.
Appeals Nos.
1185 to 1190, 1223 and 1224 of 1970 and 41/71 and CiviI AppeaI Nos.
In that judgment the High Court examined the challenge to the vires of sections 22 and 29 of the Act and the claim for refund of the money already paid with reference to the amendments to the Act.
351 359/72 and RR.
1892 1893 of 1971, 1302, 2071 and 12351236 of 1972.
1235 and 1236 of 1972.
