Lokeshwar Singh Panta, J.@mdashM/s. Madan Lal Jagjit Kumar and Company Wine Contractors through its partner Madan Lal has filed this writ petition under Articles 226/227 of the Constitution of India praying for the issuance of a writ in the nature of certiorari quashing the notices Annexures P-7, P-9 and P-10 and further for the issuance of the writ in the nature of mandamus directing the Respondents not to charge/collect the license fee of the closed ends of Manpura and further for issuance of appropriate writ restraining the Respondents from sealing/closing other liquor vends of the Petitioner-Company and/or for the issuance of any other suitable writ, order or direction which this Court may deem fit and proper in the facts and circumstances of the case.
2. The Petitioner-Company (hereinafter referred to as the licensee) is engaged in the business of sale of liquor in the State of Himachal Pradesh. The Excise and Taxation Department of the State of Himachal Pradesh auctioned the retail vends of Country Liquor, Foreign Liquor, Beer and other fermented liquor in Himachal Pradesh for the financial year 1995-96 vide Annual Auction Announcements Annexure P-7. The licensee being the highest bidder was allotted the liquor vend licenses of L-2, L-10 and L-14 of Nalagarh group comprising of Nalagarh Unit, Barotiwala Unit and Kasauli Unit for the period from 1.4.1995 to 31.3.1996. The case of the licensee in this writ petition is that for each of the vends, separate licence was issued by the Additional Excise and Taxation Commissioner (South Zone)-cum-Collector (Excise), Shimla-Respondent No. 3 herein in which separate license fee and the quota of the country liquor was mentioned. But however, the licenses of L-2 and L-14 for Manpura vends were not issued to the licensee. L-14 country liquor vend of Manpura was allotted to the licensee for licence fee of Rs. 6.75 lakh and L-2 English Wine Shop of Manpura for licence fee of Rs. 2.80 lakh. The licensee was directed on April 1, 1995 by the Department not to start/open the liquor vends of Manpura area because some direction/stay of the opening of the liquor vends at Manpura was issued by the High Court of Himachal Pradesh in a writ petition and as per the direction of the Department, the licensee could not open/start the liquor vends of L-2 and L-14 licenses from April 1, 1995 at Manpura. The Excise and Taxation Commissioner, Himachal Pradesh-Respondent No. 2 herein addressed a letter dated 15th April, 1995 (Annexure P-2) to Respondent No. 3 conveying the decision of the State Government to shift L-2 and L-14 vends of Manpura to a suitable place outside the area of Manpura Panchayat. Thereafter in view of the orders of this Court, a letter dated 4th May, 1995 (Annexure P-3) was written by the Assistant Excise and Taxation Commissioner, Solan-Respondent No. 4 herein to the licensee directing him to start functioning of L-12 and L-14 vends of Manpura at Mastanpura immediately.
3. According to the licensee, no suitable place was provided at Mastanpura by the Respondents to enable the licensee to open the vends and as such the Department assured the licensee that since it was not possible to start the vends, the licences of L-2 and L-14 would be withdrawn. On 15.9.1995 a letter (Annexure P-4) was written to the licensee by the Excise and Taxation Officer, Nalagarh conveying the decision of the Respondent No. 3 directing the licensee to get the licences of L-2 and L-14 vends of Manpura opened at village Khera and collect the site plan of the vends of the premises approved from the Excise and Taxation Officer, Nalagarh. The licensee submitted reply dated 18.9.1995 to the Excise and Taxation Officer, Nalagarh, a copy thereof is placed on record as Annexure P-5 in which it was submitted that the licensee was ready to start the vends at Mastanpura if suitable place was provided and the proportionate licence fee was settled by way of negotiations but inspite of the reply, no negotiations were held for the settlement of proportionate licence fee but on the other hand the licensee received a letter dated 30.10.1995, a copy thereof is placed on record as Annexure P-6, from the Excise and Taxation Officer, Nalagarh directing the licensee to collect the licenses of L-2 and L-14 vends of Manpura to be opened at village Khera and start the business on 18.10.1995. According to the licensee, the partner of the company visited the office of the Excise and Taxation Officer, Nalagarh but neither licences were allotted to him nor suitable place was provided to open the proposed vends at village Khera. The licensee further stated that from the above said communications of the Department it was clear that at the first intance a decision dated May 4, 1995 (Annexure P-3) was taken by the State Government to shift the vends of Manpura to Mastanpura and lateron vide letter dated 15.9.1995 (Annexure P-4) it was again decided/ directed by Respondent No. 2 to shift the vends of Manpura to village Khera and the licensee was directed to contact the Excise and Taxation Officer, Nalagarh on 18.10.1995 [for the collection of the licenses inspite of the fact that more than six months had elapsed for running/operating the said vends as the life of the licence was only for one year and the vends of Manpura were withdrawn by the Department in view of the directions/orders passed by this Court.
4. The licensee also stated that as per the provisions of Section 41 of the Punjab Excise Act, 1914 as applicable to the State of Himachal Pradesh, the Department was liable to refund back the security deposited by the licensee alongwith a sum equal to licence fee of 15 days and also to pay the compensation in case of withdrawal of the vends of Manpura. The case of the licensee is that instead of refunding the amount of licence fee, surprisingly the Department through Respondent No. 4 served a notice dated 23rd November, 1995 (Annexure P-7) upon the company calling upon it to pay the licence fee of Rs. 7,30,575 of Manpura vends by 30.11.1995 positively failing which the licenses held by the licensee for other vends will be recommended for cancellation and subsequent resale of the vends would be at the risk and expenses of the licensee. When the licensee received the above said notice a reply/legal notice through Advocate was got served upon Respondent No. 5 by registered A.D. letter dated November 28, 1995 a copy of the same is filed with the writ petition as Annexure P-8. In the reply it was stated that as the vends were closed by the Department in view of the directions/undertaking given by the Department to the High Court, there was no reason under the law to pay the licence fee of the vends which had been closed by the Department itself and accordingly the licensee is entitled for the refund of the amount alongwith interest as per Section 41 of the Punjab Excise Act. The Respondents inspite of the above detailed reply/notice remained silent and it was only when two notices (Annexures P-9 and P-10) dated 5.1.1996 were issued by Respondent No. 3 to the licensee calling upon him to show cause as to why the amount of Rs. 36,96,501 be not forfeited and the licenses in Forms L-2, L-10 and L-14 be not cancelled and put to re-auction at the sole responsibility of the licensee further action as warranted under the law be also not taken against the licensee. In addition to the above said notices, directions had been given by Respondent No. 4 to the Excise and Taxation Officer, Nalagarh to seal the vends of the licensee and to recover the amount of the licence fee by using coercive methods. On these premises, the licensee has challenged the above said notices being illegal, mala fide and against the provisions of the Punjab Excise Act as well as the Himachal Pradesh Liquor Licence Rules, 1986.
5. The writ petition was listed before the learned vacation Judge on 9.2.1996. Notice was ordered to be issued to the Respondents directing them to file the reply within four weeks. In the interim, it was ordered that the operation of Annexures P-7, P-9 and P-10 shall remain stayed subject to the condition that the licensee shall furnish a bank guarantee in the sum of Rs. 9.55 lakhs of a Nationalized Bank to the satisfaction of Assistant Excise and Taxation Commissioner, Solan before 16.2.1996 and further that on account of non-deposit of this amount the Respondents shall not either obstruct and/or discontinue the supply of quota of country liquor/I.M.F.L. to the licensee in respect of L-2 and L-14 vends and other vends of Nalagarh circle for which, according to the learned Counsel for the licensee, his client was the licensee for the period 1.4.1995 to 31.3.1996. It was also ordered that in case the requisite bank guarantee was not furnished as aforesaid without any further reference on this question, the stay order shall stand vacated. The writ petition was lateron admitted on 3.7.1996 and interim order dated 9.2.1996 was also confirmed by order dated 31.7.1996.
6. In the counter affidavit filed on behalf of the Respondents, the Excise and Taxation Commissioner submitted that the Country Liquor and Indian made Foreign Liquor of Nalagarh, Barotiwala and Kasauli units were auctioned jointly for consideration of Rs. 2.55 crores to the licensee being the highest bidder for the financial year 1995-96. The liquor vends L-2 and L-14 Manpura were one of those vends of the aforesaid Units which were ordered not to be opened by this Court in the area of Gram Panchayat, Manpura vide order dated 27.3.1995 passed in C.W.P. No. 64/ 95 titled Gram Panchayat, Manpura v. State of H.P. and Ors. Accordingly the State Government decided to shift the vends of Manpura to some other suitable place outside the area of Gram Panchayat Manpura and the decision of the State Government was conveyed to Respondent No. 3 on 18.4.1995 for taking further necessary action. The licensee was directed by Respondent No. 4 vide letter dated 4.5.1995 (Annexure P-3) to shift the vends to Mastanpura, but the licensee had failed to comply with the order. The Respondents stated that though under condition No. 22 of the Annual Auction Announcements for the year 1995-96 (Annexure P-l), the licensee was bound to make arrangements to get the premises approved for the functioning of the liquor vends yet the Department assisted the licensee to get the premises where the liquor vends could be opened. The vends were proposed to be opened at Khera and for that purpose a piece of land was also got sanctioned from the Collector, Solan. The licensee had failed to make the payment of licence fee of Rs. 7,30,575 upto October 1995 in respect of L-2 and L-14 vends, Manpura (Khera) thus, notices dated 23.11.1995 and 5.1.1996 were issued directing the licensee to show cause as to why the licences should not be cancelled and the security deposited by the licensee be not forfeited. The Respondents stated that their action was well within the provisions of the Himachal Pradesh Liquor Licence Rules, 1986 read with conditions of the Annual Auction Announcements for the year 1995-96 and under Condition No. 25(i) and (ii) of the Announcements, no compensation or any kind of relief for shifting such premises will be allowed to liquor licences. The defence of the Respondents is that as the disputed questions of facts are involved in this writ petition which cannot be adjudicated upon by this Court in exercise of writ jurisdiction therefore, the writ petition deserves to be dismissed on this sole ground. The Respondents stated that the licences for L-2 and L-14 for opening of the vends at Khera were issued by Respondent No. 3 directing Respondent No. 4 to deliver them to the licensee. The Respondent No. 4 in turn directed the Excise and Taxation Officer, Nalagarh to deliver the licences to the licensee and the licensee was directed to furnish the site plan of the aforesaid vends for further approval of the Collector (Excise). The Excise and Taxation Officer, Nalagarh vide letter dated 15.9.1995 (Annexure P-4) asked the licensee to collect the licences for L-2 and L-14 vends from his office so that the liquor vends at the proposed site at Khera could be started. The licensee instead of complying with the orders insisted on holding negotiations for appropriating the proportionate licence fee for the vends. According to the Respondents the licensee reluctantly and deliberately was avoiding the functioning of the vends as was evident from the reply dated 18.9.1995 (Annexure P-5). The Respondents also stated that L-2 and L-14 vends of Khera were not auctioned separately for licence fee of Rs. 6.75 lacs and Rs. 2.80 lacs as alleged by the licensee but were included in Nalagarh, Barotiwala and Kasauli units which were put to auction jointly at the Annual Auction by the Presiding Officer. The Respondents stated that the licensee was to make his own arrangements to get the premises for the functioning of the liquor vends allotted to him and to get the same approved from the concerned authority as provided under Rule 37(4) of the H.P. Liquor Licence Rules, 1986 read with condition No. 22 of the Annual Auction Announcements. The Respondents however have emphatically denied that any assurance was given by them that the allotment of the two vends would be withdrawn in case it was not possible to the licensee to start the vends. It is submitted that even if the licensee wanted to hold any negotiations, the Excise and Taxation Officer, Nalagarh and Respondent No. 4 were not the proper forum to seek negotiations and this fact was brought to the notice of the licensee by letter dated 29.9.1995 issued by Respondent No. 4 (Annexure RC) and copy thereof was endorsed to the licensee.
7. The further stand of the Respondents is that the licensee did not submit the site plan of the shops for approval nor started the business. However, it is submitted that as licences for L-2 and L-14 vends were never withdrawn by trie Respondents, therefore, the provisions of Section 41 of the Punjab Excise Act, 1914 as applicable to the State of Himachal Pradesh do not apply to the facts and circumstances of the case. The Respondents stated that the licensee under Condition No. 27 of the Annual Auction Announcements is not entitled for claim of any compensation or any kind of relief for shifting of the liquor vends and the shifting of vends cannot be interpreted to mean the withdrawal of the licences.
8. In rejoinder to the reply of the Respondents the licensee has admitted that the liquor vends of Nalagarh, Barotiwala and Kasauli Units were jointly auctioned for Rs. 2.55 crores. The Respondents have issued licences Annexures P-11 and P-12 for L-2 and L-14 vends proposed to be opened at village Khera during the pendency of this writ petition. The licensee has stated that the partner of the company visited the office of the Excise and Taxation Officer, Nalagarh but no licence was issued to him for running the vends. The licensee also stated that in the auction, the bid was given for L-2 and L-14 vends at Manpura considering the location and area of operation of the business. The vends were not opened in compliance to the orders of the High Court, therefore, the licensee was not liable to pay the licence fee for the closed vends. It is stated that the Department had also not provided the alternative site for more than six months for running the business. It is submitted that as the officials of the Respondents have acted beyond their jurisdiction and agaisnt the Statute, the writ petition under Articles 226/227 of the Constitution of India is maintainable and Condition Nos. 25(i) and (ii) of the Annual Auction Announcements cannot have any overriding effect on the Punjab Excise Act or any order passed by this Court for the closure of the liquor vends.
9. In the supplementary affidavit filed in compliance to order dated 8.5.1996, the Excise and Taxation Commissioner stated that the licensee had lifted 1,76,175,000 Proof Liters of Country Liquor as against the sanctioned auction quota of 1,77,930.000 Proof Liters for the country liquor vends of Nalagarh, Barotiwala and Kasauli Units during 1995-96. The licensee had also lifted the additional quota of 26,424.000 Proof Liters of country liquor during the same year in respect of the aforesaid units and as such the total quantity of liquor lifted by the licensee during the year 1995-96 was 2,02,559.000 Proof Liters. So far the position of lifting of foreign liquor was concerned, it is stated that there is no ceiling limit fixed for the lifting of foreign liquor quota but the licensee had lifted 99,949.063 Proof Liters of Indian Made Foreign Spirit (IMFS) and 28,815.900 Bulk Liters of Beer during the year 1995-96 which was more by 7,549.094 Proof Liters of Indian Made Foreign Spirit.
10. In reply to the supplementary affidavit Sh. Madan Lal, partner of the Company has stated that as per the admission of the Excise and Taxation Commissioner in his supplementary affidavit the licensee had lifted only 1,76,175.000 P.L. of liquor against the sanctioned auction quota of 1,77,930.000 P.L. of country liquor, meaning thereby that the licensee had not lifted quota of 1,755 P.L. of liquor vends of Manpura as reflected in Annexure P-11.
11. I have heard Mr. Kuldip Singh, learned Senior Advocate for the licensee and Mr. M.S. Chandel, learned Advocate General for the Respondents.
12. Mr. Kuldip Singh, learned Senior Advocate contended that as per Clauses 22 and 25 (iii) of the Annual Auction Announcements of the excise licences for the year 1995-96 the liquor vends for L-2 and L-14 were approved by the State Government at Manpura and the Respondents have no authority and jurisdiction to shift the said vends firstly to Mastanpura and thereafter to village Khera beyond the localities of Manpura for which the particular licences of the vends were auctioned as the licensee had given bid for vends at Manpura keeping in view the location of the place and the financial benefits likely to be derived by the licensee from the sale of liquor, therefore, the action of the Respondents cannot be termed as ''shifting'' but it will be deemed to open new vends at Mastanpura or at Khera which was not the place where the vends were to be opened. He next contended that because of supervening impossibility the contract for the acceptance of the bids by the Respondents for L-2 and L-14 licences at Manpura was a case of frustration of contract as the High Court had passed the interim stay on 27.3.1995 in CWP No. 64 of 1995 filed by Gram Panchayat Manpura against the State of Himachal Pradesh and another directing the Respondents therein not to open liquor vends at Manpura till further orders, therefore the contract to that extent was accordingly void u/s 56 of the Contract Act, 1872. He contended that Respondents are liable to refund back the security deposited by the licensee alongwith a sum equal to licence fee of 15 days and also to pay the compensation in case of withdrawal of the vends in respect of licences of vends at Manpura u/s 41 of the Punjab Excise Act, 1914.
13. Per contra, learned Advocate General contended that the entire controversy involved in the present case is based on excise policy as contemplated in the Annual Auction Announcements (Annexure P-l) which authorises the Excise and Taxation Commissioner to shift or change the name of any liquor vend during the year 1995-96 with the prior approval of the State Government. He submitted that liquor vends were ordered to be shifted from Manpura to Mastanpura because of the stay order passed by this Court. He next contended that the licensee was duly informed by the Respondents in regard to the stay order of the Court and it was the fault of the licensee who has failed to explain as to why he did not shift the vends to the new place and in the facts and circumstances of the case, no relief can be granted to the licensee. He also contended that the question of frustration of the contract u/s 56 of the Contract Act as contended by the licensee is a question of facts which cannot be gone into and decided by this Court in the writ petition for lack of material on record. He also contended that the liquor vends of Nalagarh, Brotiwala and Kasauli Units were auctioned jointly for a consideration of Rs. 2.55 crores and the licensee being highest bidder had been granted licence after approval by the Financial Commissioner (Excise) under Rule 36(24) of the H.P. Liquor Licence Rules, 1986 on 31.3.1995. The licensee was offered an alternative place for starting the liquor vends at Khera for which the partner of the company was requested time and again to get the premises approved from the competent authority and collect the licences and as the licensee had failed to comply with the direction of the competent authority, no relief as prayed for can be granted to him. In support of their respective contentions, the learned Counsel for the parties have placed reliance on judgments of the Supreme Court and High Court which shall be referred to and considered in the latter part of this judgment.
14. The undisputed facts emerging from the above stated backdrop and respective contentions are that the licensee being the highest bidder was allotted the liquor vends of Nalagarh, Brotiwala and Kasauh Units for the year 1995-96 as per the Annual Auction Announcements Annexure P-l. Licences for L-2 and L-14 was issued to the Licensee for the premises at Manpura where the liquor vends could not be opened on 1.4.1995 because of the stay order passed by this Court in CWP No. 64/1995 titled Gram Panchayat Manpura v. State of Himachal Pradesh and Ors. Being faced with that situation beyond the control of the Respondents, the Excise and Taxation Commissioner Himachal Pradesh Respondent No. 2 vide letter dated 15th April, 1995 (Annexure P-2) conveyed the decision of the State Government to Respondent No. 3 directing the latter to shift L-2 and L-14 vends from Manpura to a suitable place outside the area of Manpura Panchayat. The Assistant Excise and Taxation Commissioner-Respondent No. 4, informed the licensee by letter No. 4-3/95-EXN-SLN-EX-3612 dated 4th May, 1995 (Annexure P-3) to start functioning of L-2 and L-14 vends proposed to be opened at Manpura at Mastanpura immediately keeping in view the orders passed by the Excise and Taxation Commissioner in compliance to the orders of the High Court. A copy of the said letter was endorsed to the Excise and Taxation Officer, Nalagarh Circle with a request to ensure that L-2 and L-14 vends should start functioning from 5.5.1995 at Mastanpura without fail. The licensee had failed to comply with the direction of Respondent No. 4 till September 15, 1995 when the Excise and Taxation Officer, Nalagarh again sent a communication dated 15.9.1995 (Annexure P-4) to the licensee drawing his attention to endorsement No. 7274 of letter dated 5.9.1995 of the Additional Excise and Taxation Commissioner as also memo No. 10668 dated September 11, 1995 of the Assistant Excise and Taxation Commissioner, Solan whereby L-2 and L-14 licences of Khera (Manpura) were to be handed over to the licensee after completing formalities and getting the site plan of the vend premises from the licensee for approval of the competent authority. The licensee was also informed that some official of the company should attend the office of the Excise and Taxation Officer to get the licences of L-2 and L-14 vends of Khera (Manpura) and to start liquor vends at the proposed site at the earliest. The licensee sent a reply dated 18.9.1995 (Annexure P-5) in response to the letter of the Excise and Taxation Officer, Nalagarh dated 15.9.1995 (Annexure P-4) stating that as per the schedule of the auction of the L-2 and L-14 vends proposed lo be opened at Manpura, bid was offered keeping in view the periphery of the area of business but on account of a writ petition in the Hon�ble High Court of H.P. the licensee was asked by the Department not to open the above vends at Manpura. In this reply it finds stated that letter dated 15.9.1995 (Annexure P-4) was issued with intents and purposes to collect the licences for opening vends at Khera after a lapse of 4-5 months and keeping in view the above facts the licensee had not been taken into confidence for opening the vends at new place for which there was no auction nor bid was offered by him and the change of the premises to some other place without the consent of the licensee was against the settled principle of contract (privity of contract). In paragraph 2 of this letter it is stated that the licensee was ready to co-operate for opening the liquor vends at Khera provided the suitable place for the vends was made available and the proportionate licence fee be settled by way of negotiations as village Khera is about 2-1/2 kilometres from the liquor vends of the licensee at Nalagarh whereas Manpura for which the original bid was accepted is about nine Kilometer surrounded by a periphery having no vends. It is also found mentioned that the villagers were not interested to the opening of the vends at Khera and they were not providing the place despite the efforts being made by the licensee, therefore, the necessary negotiations may be arranged and the licensee be informed before issuing any licence. Copies of the said communication were also addressed to Respondents 2 to 4. The Excise and Taxation Officer, Nalagarh vide letter No. 2084 dated 13.10.1995 (Annexure P-6) informed the licensee that necessary permission had been obtained for opening the proposed country liquor and English Wine Shops at village Khera and the licences for the said shops had also been issued. The licensee was also informed to be present in his office on 18.10.1995 to get the licences and copy of the permission to open the vends on Government land and start the vends without any further delay. The matter remained under correspondence till November 23, 1995 when the Respondent No. 4 vide registered letter No. 4-3/95-EXN-SLN-Ex-12981 (Annexure P-7) directed the licensee to deposit the outstanding licence fee of Rs. 7,30,575 in respect of licences of L-2 and L-14 vends of village Khera till the month of Octobver, 1995 on or by 31.11.1995 positively and in default thereof licences held by the licensee shall be recomended for cancellation of the vends and subsequent re-sale shall be at the risk and responsibility of the company, by taking recourse to Section 36(c) of the Punjab Excise Act, 1914. The Advocate of the licensee sent a reply dated November 28, 1995 (Annexure P-8) to the notice dated November 23, 1995 sent by Respondent No. 4 requesting to refund back the security deposited by the licensee and to pay compensation of 15 days licence fee as the Department had withdrawn the proposal of opening the liquor vends at Manpura. In this reply it was also stated that the notice dated November 23, 1995 issued by the Respondent No. 4 was not sustainable at all as it was against the Punjab Excise Act and the Himachal Pradesh Liquor Licence Rules, 1986 as well as against Annual Auction Announcements made by the Department and request to withdraw the said notice/memo and to refund the amount of licence fee of Rs. 9.55 lakhs to the licensee of L-2 and L-14 licences of Manpura within 15 days from the receipt of the legal notice was also made failing which legal action shall be taken by the licensee against the Respondents in accordance with law.
15. In order to appreciate the contentions of the learned Counsel for the parties, the terms and conditions of the Annual Auction Announcements are noted. Para 20(1) of the Annual Auction Announcements provides that the highest bidders at the auctions should deposit by way of security an amount equivalent to 15% of the highest bid and the amount is to be paid as prescribed under Sub-clauses (a), (b) and (c). As per para 20(H), the deposits of 13.5% of the amount of 15% security shall be adjusted against the payment of licence fee with the prior approval of the Collector (Excise). The learned Senior Counsel for the licensee contended that the liquor vends auction for Manpura could not be �shifted� by the Respondents to some other place, namely, �Mastanpura� or �Khera� as under para 22 of the Annual Auction Announcements the vends could be �shifted� only in the localities for which particular licence was sanctioned and not to any other new place therefore, the �shifting� of the vends from Manpura to Mastanpura or Khera was in violation of para 22 of the terms and conditions of the Annual Auction Announcements. I have considered the submission but not persuaded to accept it. Para 22 makes it obligatory on the licensees to make their own arrangements for procuring liquor and also for suitable vends (shops) to carry on their business in the localities for which particular licences are sanctioned. The licences are required to get the premises and the names of the salesman approved along with photographs before starting the shops. This para also provides that the licences cannot claim that the new premises should remain restricted within the area and the premises for which the shops had been functioning previously.
16. As noticed above, L-2 and L-14 licences were granted to the licensee for Manpura but the vends could not be opened there because of the stay order passed by this Court in CWP No. 64/1995. The State Government was left with no option but to decide to change the name of liquor vends of Manpura to Mastanpura outside the area of Manpura Punchayat by decision dated 15th April, 1995 (Annexure P-2). The Respondent No. 4 informed the licensee by communication dated May 4, 1995 (Annexure (P-4) to start functioning of L-2 and L-14 vends of Manpura at Mastanpura immediately. The licensee kept quite till he was again informed by the Excise and Taxation Officer, Tehsil Nalagarh by letter dated 15.9.1995 (Annexure P-4) directing him to get all the formalities completed and get a site plan of the vend premises approved from the competent authority for running the shops of L-2 and L-14 at village Khera. The licensee has not expressed his unwillingness to start the functioning of L-2 and L-14 vends at Mastanpura or at Khera from 4th May, 1995 till 15.9.1995 nor the licensee has explained any reason of his silence for long period of about four months. It was only on 18.9.1995 that vide Annexure P-5, the licensee expressed his willingness to co-operate with the department upon new vend at Khera provided suitable place for vends be made available and the proportionate licence fee be settled by way of negotiation. The State Government approved the arranged premises for the licensee from the Collector, Solan and conveyed its decision through Excise and Taxation Officer, Nalagarh vide communication dated 13.10.1995 (Annexure P-6) directing the licensee to open the vends on Government land and start the vends without any delay at village Khera as licences for those shops had also been issued to him. When the licensee failed to comply with the direction of the Respondents, Respondent No. 4 had no other option but to issue notice dated November 23, 1995 (Annexure P-7) directing him to deposit the amount outstanding licence fee in respect of L-2 and L-14 vends of Manpura which were iateron shifted to village Khera. By virtue of para 25(iii) of the Annual Auction Announcements the Excise and Taxation Commissioner, Himachal Pradesh is competent to order the shifting or change the name of any liquor vends during the year 1995-96 with the prior approval of the Government. On plain reading of this para, the Excise and Taxation Commissioner, Himachal Pradesh can exercise independent power to shift or change the name of any liquor vend with the prior approval of the Government outside the premises of Manpura and, therfore, this para cannot be read conjunctively with para 22 as contended by the learned Counsel for the licensee. The provision of Clause 22 will apply if the premises is to be shifted within the same locality from the location for which such licenses are auctioned/ sanctioned. Under para 27 no remission of licence fee realizable from the licensees can be allowed except in acordance with the provision of law. The provisions of Section 41 of the Punjab Excise Act relied upon by the licensee are not applicable in the case on hand as in the present case the licensees in forms L-2 and L-14 shops of Manpura were not withdrawn by the State Government but they were ordered to be shifted to village Khera in the circumstances not created by the State Government but because of the implementation of the stay order of this Court. In the facts and circumstances of the case, it was the licensee who was at fault and had chosen not to give any reply to the letter dated May 4, 1995 (Annexure P-3) sent by Respondent No. 4 till subsequent letter dated 15.9.1995 (Annexure P-4) was sent to the licensee by Excise and Taxation Officer, Nalagarh. The Collector (Excise) South Zone, Himachal Pradesh granted licences of L-2 and L-14 (Annexures P-11 and P-12 of Nalagarh Unit to the licensee for village Khera but despite the grant of the said licenses, the licensee had not started the vends at Khera. On consideration of the entire material on record, the licensee cannot be held entitled to get the refund of the licence fee of L-2 and L-14 vends proposed to be opened at Manpura as the new place of vends at Khera had been approved by the State Government to accommodate the licensee to start the liquor vends and the decision of the Respondents, was in accordance with the Annual Auction Announcements and other relevant provisions of law and therefore, unassailable.
17. The main argument of the learned Senior Advocate for the licensee that the contract (Annexure P-1) was frustrated to the extent that the licensee could not open the liquor vends at Manpura because of the stay drder of this Court to which the licensee was not a party cannot be accepted in this writ petition. In the case on hand the basic issue whether the contract (Annexure P-l) has become frustrated or not u/s 56 of the Contract Act is complicated question of law and fact depending on the evidence and cannot be decided in the absence of adequate factual foundation. The decisions on the doctrine of frustration of contract relied upon by the licensee in the cases of
18. In the present case, the issue of frustration of contract u/s 56 of the Contract Act, in my view, cannot be determined and decided by this Court in this writ petition in exercise of the extra ordinary jurisdiction under Article 226 of the Constitution of India. In
19. The issue whether the contract (Annexure P-1) has frustrated u/s 56 of the Contract Act or not to the extent that the L-2 and L-14 liquor vends could not be opened and started by the licensee at Manpura because of supervening events of stay order is a question of fact and law depending upon the evidence and this Court is not the proper forum for seeking that relief. The licensee if so advised can file suit in civil Court for seeking the said relief.
20. No other point was urged by the learned Counsel for the parties before this Court.
21. In the result, for the above said reasons, there is no merit in this writ petition and it is accordingly dismissed. However, the parteis are left to bear their own costs. Stay order shall stand vacated.
