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2004 DIGILAW 9 (PNJ)

Jagwasaya v. State Of Haryana

2004-01-07

HARJIT SINGH BEDI

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Judgment H.S.Bedi, J. 1. This judgment will dispose of Civil Writ Petition Nos.205 of 1983, 625 and 626 of 1982. 2. The facts have been taken from Civil Writ Petition No. 205 of 1983. 3. The petitioner was allotted a L-2 License at Shahbad for the period 1.4.1980 to 31.3.1981. A sample of Knight King whisky was taken from the vend on 8.12.1980. It is the case of the petitioner that he had come to Chandigarh on 26.12.1980 in connection with some personal work and on visiting the office of the Collector, he was informed that the sample of whisky, taken from his vend, had been found to be adulterated. The petitioner returned to Shahbad on the same day but was arrested by the police for being in possession of adulterated whisky. It is the petitioners case that he had remained in custody till his release on bail by this Court in the month of January, 1981. It is the petitioners case that he was served with a show cause notice, Annexure P1, dated 28.12.1980 while in jail. It was stipulated in the notice that he was required to show case within seven days as to why his licence be not cancelled under Section 36(c) of the Punjab Excise Act (1 of 1914) and the amount of security forfeited under Rule 37(36) of the Haryana Liquor License Rules, 1970 . The petitioner was also advised that in case he wished to appear in person or through his legal representative, he could do so and on his failure to appear, it would be presumed that he had nothing to say against the proposed action. The petitioner while in custody replied to the show cause notice, vide Annexure P2 dated 30.12.1980 and requested that the sample of whisky be got retested. The Collector-cum-Deputy Excise & Taxation Commissioner (Hqr.) Haryana, however, by his order, Annexure P3 dated 31.12.1980, after considering the reply to the show cause notice cancelled the L-2 licence of the petitioner and also forfeited the security as per rules. The Collector-cum-Deputy Excise & Taxation Commissioner (Hqr.) Haryana, however, by his order, Annexure P3 dated 31.12.1980, after considering the reply to the show cause notice cancelled the L-2 licence of the petitioner and also forfeited the security as per rules. An appeal, Annexure P4, was thereafter filed before the Excise and Taxation Commissioner, Haryana and amongst the various issues raised, it was argued that the petitioner had not been granted an opportunity of a personal hearing by the Deputy Excise and Taxation Commissioner as the order had been passed by him on 31.12.1980, which was within the period of seven days envisaged in the notice, Annexure P1. The Excise and Taxation Commissioner, however, vide his order dated 16.1.1981, Annexure P5, dismissed the appeal holding that the period of seven days was the maximum period envisaged in the notice and as the reply filed by the petitioner had been received by the Deputy Excise and Taxation Commissioner wjthin seven days, the order dated 31.12.1980 was correct in law. A revision petition was thereafter filed before the Financial Commissioner, which too was dismissed vide order dated 6.10.1982, Annexure P6. 4. The orders, Annexures P3, P5 and P6 have been impugned in these writ petitions. 5. Mr. Ashish Kapoor, the learned counsel appearing for the petitioners in all the writ petitions, has raised two arguments during the course of hearing. He has first contended that as per the notice, Annexure P1, the petitioner was called upon to show cause in writing within seven days and also to appear before the Deputy Excise and Taxation Commissioner within that period either through his legal representative or in person and in case the above exercise was not carried out, it would be presumed that the petitioner had nothing to say in the matter but despite the aforesaid time limit granted to the petitioner, the order had been made on 31.12.1980, which was well within seven days. In this connection, it has been highlighted that the petitioner had been arrested on 26.12.1980 and he had been released on bail by this Court in the month of January, 1981 and he was thus, in any case, precluded from attending the hearing himself. In this connection, it has been highlighted that the petitioner had been arrested on 26.12.1980 and he had been released on bail by this Court in the month of January, 1981 and he was thus, in any case, precluded from attending the hearing himself. The learned counsel has secondly urged that the petitioner had requested for the re-testing of the sample in his reply to the show cause notice but the same has not been acceded to, which too prejudiced his case, 6. The learned State counsel has, however, urged that the orders of the authorities were perfectly in accordance with law. 7. I have considered the arguments advanced by the learned counsel for the parties and have gone through the record. 8. Admittedly, the sample had been taken on 8.12.1980 and the petitioner had been arrested on 26.12.1980. The fact that seven days time had been granted to the petitioner to file a reply to the show cause notice, Annexure P1, dated 26.12.1980 is also clearly proved on record. To my mind, therefore, it was not open to the Deputy Excise and Taxation Commissioner to have made the order dated 31.12.1980 i.e. within the period of seven days envisaged in the notice, Annexure P1. As already mentioned above, the notice envisaged two matters qua the petitioner, (i) to give a reply in writing and (ii) to appear in person or through his legal representative, if so advised, before the Deputy excise and Taxation Commissioner. It is true that a written reply was filed by the petitioner on 30.12.1980 but the petitioner was clearly within his rights to argue that the Deputy Excise and Taxation Commissioner ought to have waited till the expiry of seven days for the appearance of the petitioner either in person or through counsel before making the order against him. I am, therefore, of the opinion that the order, Annexure dated 31.12.1980, and ipso facto the orders, Annexures P5 and P6, which proceed on the same reasoning must be quashed. 9. In this view of the matter, the second argument of the learned counsel for the petitioner need not be gone into. 10. The writ petitions are accordingly allowed, the orders, Annexures P3, P5 and P6 are quashed and a direction is issued that the security amount shall be refunded to the petitioners forthwith. There will, however, be no order as to costs.