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2010 DIGILAW 1841 (ALL)

Vishwa Kant Gupta v. State of U. P. and Others

2010-05-28

BHARATI SAPRU, RAJES KUMAR

body2010
Rajes Kumar, J. - By means of the present writ petition, the petitioner is seeking a writ of certiorari quashing the orders dated 7/8.4.2010 and 12.4.2010 passed by the District Magistrate, Firozabad, and a writ of mandamus to the respondent to renew the licence of the petitioner for the year 2010-11. 2. The brief facts of the case are that for the settlement of the beer shop for the area Sarabi Market to Gali Bohran Sadar Bazar for the excise year 2009-10 applications were invited by the office of the District Excise Officer, Firozabad. Number of persons moved the applications. The petitioner also moved application showing Sri Sanjay Kumar Gupta, son of Sri Sampat Ram Gupta, as a co-applicant. In a lottery, held on 23.3.2009, the beer shop for the aforesaid area had been settled in favour of the petitioner along with Sri Sanjay Kumar Gupta as a co-applicant. It is the case of the petitioner that on 15.5.2009, Sri Sanjay Kumar Gupta wrote a letter to the District Magistrate, Firozabad to separate himself from the shop as a co-allottee at his own sweet will and without any fear and pressure. He stated that he has nothing to do with the said shop and Sri Vishwakant Gupta would be only responsible. He requested that he would be excluded from the aforesaid shop. The application was filed along with an affidavit. A copy of the application and the affidavit are annexed as Annexure-5 to the writ petition. The licence had been issued by the Licensing Officer on 29.9.2009 only in the name of the petitioner. The name of Sri Sanjay Kumar Gupta had not been mentioned in the licence. A Copy of the licence is annexed as Annexure-6 to the writ petition. The petitioner had run the said shop upto 31st March, 2010. There is no dispute in this regard. The petitioner being the sole licensee for the year 2009-10, moved an application before the District Excise Officer, Firozabad for renewal of the licence on 11.3.2010. It appears that Sri Sanjay Kumar Gupta wrote a letter dated 10.3.2010 to the District Excise Officer, Firozabad, stating therein that the shop had been settled by lottery system and he was running the shop as a co-allottee and now there was no proper understanding between him and petitioner. Therefore, the licence would not be renewed and the shop be cancelled. Therefore, the licence would not be renewed and the shop be cancelled. On the application of Sri Sanjay Kumar Gupta dated 10.3.2010, the District Magistrate, Firozabad has passed the order that the said beer licence may not be renewed and be settled through lottery system. 3. Being aggrieved by the said order, the petitioner filed Writ Petition No. 420 of 2010. This Court vide order dated 22.3.2010 allowed the writ petition and set aside the order dated 12.3.2010 and directed the District Magistrate, Firozabad to pass a fresh order relating to the renewal of the licence after giving opportunity of hearing to the petitioner and Sri Sanjay Kumar Gupta or any other concerned parties in accordance to law. In pursuance thereof, the District Magistrate, Firozabad has passed the impugned order dated 7/8.4.2010. The District Magistrate, Firozabad has held that there is serious dispute between the two partners and both the partners do not want to continue the partnership and, therefore, in accordance to paragraph-8 of the Rule, the application of renewal, filed by the petitioner, has no force and accordingly rejected. It has been further directed to settle the shop by public lottery. In the impugned order, it is stated that Sri Sanjay Kumar Gupta filed an application dated 4.8.2009 along with an affidavit stating therein that the earlier application dated 28.4.2009 (appears to be incorrect and the date should be 15.5.2009) is false and forged and further an application was filed on 17.8.2009 before the District Magistrate with the request to take legal action against Vishwakant Gupta, and he has fraudulently obtained a licence dated 29.9.2009 in his name, which is not in accordance to law. It appears that after passing the aforesaid impugned order, a fresh lottery was held on 12.4.2010 and the said shop has been settled in favour of Sri Manish Kumar Sharma, son of Banwari Lal, respondent No. 5. 4. The writ petition was reported on 28.4.2010. It has, however, been filed on 29.4.2010 which came up for consideration on 3.5.2010. On 3.5.2010, this Court has directed the learned Standing Counsel to seek instruction and, if so advised, may file a counter affidavit. The matter was listed on 11.5.2010 as fresh. On 10.5.2010, notices were issued to respondent nos. 4 & 5 and the petitioner was directed to serve the respondents by Dasti summon and to file an affidavit of service. On 3.5.2010, this Court has directed the learned Standing Counsel to seek instruction and, if so advised, may file a counter affidavit. The matter was listed on 11.5.2010 as fresh. On 10.5.2010, notices were issued to respondent nos. 4 & 5 and the petitioner was directed to serve the respondents by Dasti summon and to file an affidavit of service. Further, the service on respondent nos. 4 & 5 was also directed to be affected through District Excise Officer, Firozabad. Writ petition was fixed on 18.5.2010. On 18.5.2010, the date was again fixed on 19.5.2010. On 19.5.2010, Sri S.P. Kesarwani, learned Additional Chief Standing, filed a counter affidavit annexing therewith a copy of the notices, served upon respondent nos. 4 and 5, and Sri H.N. Singh, learned counsel for the petitioner filed a rejoinder affidavit. He also filed an affidavit of service in respect of service of notices on respondent nos. 4 and 5. The matter has been heard on 19.5.2010. Sri H.N. Singh, Advocate, argued on behalf of the petitioner and Sri S.P. Kesarwani, learned Additional Chief Standing Counsel, argued on behalf of respondent nos, 1,2 and 3. Despite the service of notices, respondent nos. 4 and 5 did not appear. 5. Sri H.N. Singh, learned counsel for the petitioner submitted that Rule 6 of the Uttar Pradesh Excise (Settlement of Licences for Retail Sale of Beer) Rules, 2001 provides for renewal of the licence. It says that the licence granted under these rules may be renewed for such period, and on such terms and conditions as decided by the State Government from time to time. He submitted that under the excise policy, for the year 2010-11, the licensee of the year 2009-10 are entitled for renewal of their licence. There is no dispute in this regard. He submitted that undisputedly, the petitioner was the sole licensee under the licence dated 29.9.2009 for the year 2009-10, upto 31st March, 2010. The said licence has neither been suspended nor cancelled till date. Therefore, on the date of introduction of the new policy, for the year 2010-11, introduced in the month of March, 2010 the petitioner being the existing licensee was entitled to get his licence renewed. Therefore, the petitioner had a right to get his licence renewed being the licensee for the year 2009-10 and accordingly the petitioner applied for renewal of the licence on 11.3.2010. Therefore, the petitioner had a right to get his licence renewed being the licensee for the year 2009-10 and accordingly the petitioner applied for renewal of the licence on 11.3.2010. He submitted that the licence was issued on 29.9.2009 only in the name of the petitioner when Sri Sanjay Kumar Gupta, a co-allottee, withdrew himself. If such letter from Sri Sanjay Kumar Gupta would not have been there, the licence for the year 2009-10 would not have been issued in the sole name of the petitioner on 29.9.2009. It means that the application of Sri Sanjay Kumar Gupta dated 15.5.2009 withdrawing himself from the shop as a co-allottee had been accepted by the excise authorities. He submitted that the alleged letter dated 4.8.2009 and further letter dated 17.8.2009 had never been confronted to the petitioner during the subsistence of the licence and no action on the said letters had been taken. He submitted that these evidences had been created subsequently against the petitioner to deny the right of the petitioner for renewal of licence. He further submitted that the averments made in the letter dated 4.8.2009 and the affidavit are contradictory to the letter dated 10.3.2010 filed by Sri Sanjay Kumar Gupta. He submitted that in the alleged letter dated 4.8.2009 and the affidavit filed along with the said letter, which are part of the counter affidavit, it has been averred that the earlier letter dated 15.5.2009 was forged. While in the letter dated 10.3.2010, it is stated that he was running the shop as a co-owner properly. If Sri Sanjay Kumar Gupta raised the dispute and made various allegations against the petitioner, in the letter dated 4.8.2009 and the affidavit and requested the District Magistrate, Firozabad vide letter dated 17.8.2009 to take legal action against the petitioner, then there was no occasion to state that he was running the shop as a co-owner properly on 10.3.2010. He submitted that for the purposes of renewal of the licence the only relevant consideration is that who was the licensee under the licence on the day when a new policy for the renewal was introduced which provides right of renewal. He submitted that only the petitioner has a right of renewal being the sole licensee under the licence dated 29.9.2009. 6. He submitted that only the petitioner has a right of renewal being the sole licensee under the licence dated 29.9.2009. 6. Sri S.P. Kesarwani, learned Additional Chief Standing Counsel submitted that the shop was allotted to the petitioner and Sri Sanjay Kumar Gupta was a co-allottee. He submitted that, in fact, the licence should also be issued in the name of the petitioner showing Sri Sanjay Kumar Gupta as a co-licensee but inadvertently the licence was issued only in the name of the petitioner. He submitted that Sri Sanjay Kumar Gupta filed a letter dated 4.8.2009 along with an affidavit before the District Excise Officer and the further letter dated 17.8.2009 reveals that there was a serious dispute between the petitioner and Sri Sanjay Kumar Gupta. Therefore, in the interest of justice, the District Magistrate has rightly rejected the application for renewal and directed for the settlement of the shop by fresh lottery system. He submitted that the shop has been settled in favour of respondent No. 5 in a fresh lottery held on 14.4.2010. 7. Having heard learned counsel for the parties, we have given our anxious consideration to the rival submissions and perused the record. 8. We find substance in the argument of learned counsel for the petitioner. Rule 6 of the Uttar Pradesh Excise (Settlement of Licences for Retail Sale of Beer) Rules, 2001 contemplates the renewal of licence for such period, and on such terms and conditions as decided by the State Government. The State Government has introduced the Excise policy for the year 2010-11 which provides for the renewal of existing license. Therefore, there is no dispute that the existing licensees had a right of renewal of their licences for the year 2010-11. The question for consideration is that on the date when the Excise policy for the year 2010-11 has been introduced giving right to the existing licensees to get their licence renewed, who was the licensee. Admittedly, the licence dated 29.9.2009 for the year 2009-10 was issued in the name of the petitioner only. Sri Sanjay Kumar Gupta was not shown as co-licensee in the licence and, therefore, we are of the view that the petitioner, being the existing licensee, had a right of renewal and his licence should be renewed for the year 2010-11. 9. We are further of the view that the pleas of Sri Sanjay Kumar Gupta had no substance. Sri Sanjay Kumar Gupta was not shown as co-licensee in the licence and, therefore, we are of the view that the petitioner, being the existing licensee, had a right of renewal and his licence should be renewed for the year 2010-11. 9. We are further of the view that the pleas of Sri Sanjay Kumar Gupta had no substance. By the letter dated 15.5.2009, Sri Sanjay Kumar Gupta, stated that he wants to withdraw from the shop. Therefore, while issuing the licence it appears that the application of Sri Sanjay Kumar Gupta for withdrawing himself as a co-allottee had been accepted. It is not the case of respondent nos. 2 and 3 that the alleged letter dated 4.8.2009 filed along with an affidavit and the alleged letter dated 17.8.2009 had been confronted to the petitioner at any stage during the subsistence of the licence. It is not their case that they acted upon such letters and affidavits and taken any action. It is also surprising that after filing the aforesaid letters and affidavits, Sri Sanjay Kumar Gupta kept mum for more than seven months and woke up on 10.3.2010 when the time for renewal of the licence had come. Admittedly, the licence dated 29.9.2009 issued only in the name of the petitioner has not been suspended or cancelled till date. We have gone through the letter dated 4.8.2009 filed along with an affidavit and the letter dated 10.3.2010. The averments made in the letters are contradictory. In the letter dated 10.3.2010 Sri Sanjay Kumar Gupta stated that for the year 2009-10 the shop was running properly and for the future years there might not be a proper understanding and the principal allottee had given threat several times that he would misuse the licence in the coming year and would involve him. In this letter there is no reference about the earlier letters dated 4.8.2009, affidavits and the letter dated 17.8.2009. In the order dated 12.3.2010 passed by the District Magistrate, Firozabad also there is no reference of the earlier letters. Photostat copies of the original application dated 15.5.2009 of Sri Sanjay Kumar Gupta, affidavit dated 28.4.2009, affidavit dated 4.8.2009 and the application dated 10.3.2010 are as Annexures-C.A.-4, C.A.5 and C.A.7 to the counter affidavit. The signature available on the applications and the affidavits appear to be the same. Photostat copies of the original application dated 15.5.2009 of Sri Sanjay Kumar Gupta, affidavit dated 28.4.2009, affidavit dated 4.8.2009 and the application dated 10.3.2010 are as Annexures-C.A.-4, C.A.5 and C.A.7 to the counter affidavit. The signature available on the applications and the affidavits appear to be the same. Therefore, on the facts and circumstances, it appears that the plea of Sri Sanjay Kumar Gupta that signature on the application dated 15.5.2009 and the affidavit dated 28.4.2009 are not his signature and are forged, cannot be accepted. It further appears that the subsequent letter dated 4.8.2009 and the affidavits are the subsequent creation to defeat the right of renewal of the petitioner. The above position also stand justified, as the date of letters is dated 4.8.2009 and date of licence is 29.9.2009. If the said letter would be available perhaps the licence in the name of the petitioner would not be granted. 10. For the reasons stated above, we are of the view that the petitioner's application for the renewal has been illegally rejected by the District Magistrate, Firozabad. On the facts and circumstances, the petitioner is entitled for the renewal of the licence of the shop for the year 2010-11 in respect of the shop for which the petitioner had a licence for the year 2009-10. The subsequent settlement of the shop by lottery system in favour of respondent No. 5 is also liable to be set aside. The respondent is directed to return the amount, if any, taken from respondent No. 5 along with interest @ 10% within a period of one week. 11. In the result, the writ petition is allowed with cost. The order dated 7/8.4.2010, Annexure-14 to the writ petition, is hereby set aside and the District Magistrate, Firozabad is directed to pass an appropriate order on the renewal application of the petitioner in the light of the direction given above within a period of one week from the date of presentation of a certified copy of this order. Cost is awarded at Rs. 2,500/-.