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2019 DIGILAW 256 (UTT)

Manish Srivastav v. State of Uttarakhand

2019-03-29

LOK PAL SINGH

body2019
JUDGMENT : 1. Petitioner has approached this Court seeking the following reliefs: (i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 18.02.2019 passed by respondent no.3 (contained as Annexure no.6 to this writ petition) and consequential order dated 22.2.2019 passed by respondent no.2 (contained as Annexure no.8 to this writ petition) and further direct the respondents to forthwith grant renewal of the shop in question i.e. liquor shop at Siddhartha Mill Road Kashipur, District Udham Singh Nagar, in favour of the petitioner. (ii) Issue a writ, order or direction in the nature of certiorari quashing the impugned tender notice dated 26.02.2019 (Annexure no.10) to the extent of petitioner’s foreign liquor shop at Siddharth Mill Road, Kashipur is concerned and further direct the respondents not to proceed further with the tender notice insofar as the petitioner’s foreign liquor shop at Siddhartha Mill Road, Kashipur is concerned. (iii) Issue a writ, order or direction in the nature of mandamus directing the respondents not to allot the liquor shop in question i.e. liquor shop at Siddhartha Mill Road Kashipur, District Udham Singh Nagar. 2. Brief facts of the case are that the petitioner is running foreign liquor shop at Siddhartha Mill Road, Kashipur District Udham Singh Nagar in the financial year 2018-19. Respondents issued a Policy which provides for renewal of the liquor shop for the financial year 2019-2020 on enhancement of 20% in the revenue paid by the said shop in the previous financial year 2018-19. Petitioner desirous of renewal of his liquor shop at Siddhartha Mill Road applied in the prescribed format along with pay order of ` 2,26,800/- as renewal fees. Respondent vide impugned order dated 18.02.2019 has directed for renewal of the petitioner’s shop with the condition that the petitioner’s shop will now run from Hariyawala region in Jaspur near Siddhartha Mill. Being aggrieved with the condition that the petitioner shall run his shop from Hariyawala Jaspur, petitioner made a representation to the respondent authority on 20.02.2019 but instead of deciding petitioner’s representation, the respondent no.2 vide impugned order dated 22.02.2019 has cancelled the renewal of liquor shop for non-payment of license fee and has confiscated the renewal fee of Rs.2,26,800/-. 3. Being aggrieved with the condition that the petitioner shall run his shop from Hariyawala Jaspur, petitioner made a representation to the respondent authority on 20.02.2019 but instead of deciding petitioner’s representation, the respondent no.2 vide impugned order dated 22.02.2019 has cancelled the renewal of liquor shop for non-payment of license fee and has confiscated the renewal fee of Rs.2,26,800/-. 3. Earlier, the petitioner has approached this court by way of WPMS No.1899 of 2018 assailing the action of the respondents whereby the liquor shop allotted to the petitioner at Siddhartha Mill Road, Kashipur, was ordered to be closed. However, the Coordinate Bench dismissed writ petition on a technical ground whereagainst the petitioner preferred Special Appeal No.612 of 2018 before a Division Bench of this Court. The Division Bench of this Court, vide judgment and order dated 09.08.2018, set-aside the order of the Coordinate Bench and directed the respondents to open the liquor shop to permit the appellant to run his business in accordance with law. While doing so, the Division Bench observed that the petitioner was allotted liquor shop at Sidhartha Mill Road without specifying the particular place on this road and that the petitioner cannot be penalized for not specifying the particular place at Siddhartha Mill Road by the respondents. Feeling aggrieved, State/respondents preferred Special Leave Petition being SLP No.32379 of 2018 before Supreme Court, wherein the Hon’ble Supreme Court has issued notices to the petitioner. 4. Learned counsel for the petitioner would submit that in view the directions issued in SPA No.612 of 2018 by the Division Bench of this Court, the petitioner is running his liquor shop at Siddhartha Mill Road, Kashipur, and thereafter has applied for renewal thereby depositing requisite renewal fees but after depositing the amount for renewal of his shop, the respondents has changed his place of business from Siddhartha Mill Road, Kashipur to Hariyawala area Tehsil Jaspur near Siddhartha Mill Road. This according to learned counsel is illegal and arbitrary. Learned counsel for the petitioner would further submit that representation was submitted by the petitioner against this condition/rider but instead of deciding the same, the authorities have now rejected the renewal application of the petitioner. Learned counsel for the petitioner would further submit that entire exercise done by the respondents authorities is arbitrary and with mala fide intention and is also against the principle of natural justice and fair play. 5. Learned counsel for the petitioner would further submit that entire exercise done by the respondents authorities is arbitrary and with mala fide intention and is also against the principle of natural justice and fair play. 5. Per contra, learned Standing Counsel would submit that the petitioner was granted the license to run the foreign liquor shop for the year 2018-19 near Siddhartha Mill Road, Tehsil Jaspur while the petitioner himself shifted his shop to near Jaspur Bus Stand, Tehsil Kashipur. Learned Standing Counsel would further contend that with regard to the location dispute the matter is sub-judice before the Hon’ble Apex Court. Besides, learned Standing Counsel would submit that the petitioner has an alternative remedy of appeal before the Excise Commissioner in view of Section 11 of The United Provinces Excise Act, 1910 (for short, the Act). 6. I have considered the submissions made by learned counsel for the parties and have perused the material available on file. 7. It is necessary to reproduce Section 11 of the Act, which reads as under:- “11. Appeals and revisions.- (1) The Collector, and every other Excise Officer (not being the Excise Commissioner) shall, in respect of all proceedings under this Act, be subject to the control of the Excise Commissioner and all orders passed by Collector or such other officer under this Act, shall be appealable to the Excise Commissioner in the manner prescribed by rules made by the State government in this behalf: Provided that no appeal shall be entertained under this sub-section unless it is preferred by the aggrieved person within thirty days from the date of communication of such order, and unless the appellant has furnished satisfactory proof of having paid a sum of not less than 25 per cent of the disputed amount of tax, fee, penalty or other dues, if any, as the case may be; Provided further that the appellate authority may, for special and adequate reasons to be recorded in writing, waive or relax the requirements of the preceding proviso in respect of such disputed amount of tax, fees, penalty or other dues.” 8. Although a remedy of appeal has been provided against the every order of the District Excise Officer before the Excise Commissioner under Section 11 (1) of the Act but that would be in the case where the amount of tax, fee, penalty or other dues, is disputed, but in the instant case, petitioner is not aggrieved by imposition of any tax, fee, penalty or other dues, rather the petitioner has challenged the actions of respondent nos.2 and 3 in changing the location of the liquor shop of the petitioner and in cancelling the renewal application of the petitioner by forfeiting the renewal fees deposited by the petition in favour of the State Government. 9. In view of the facts of the present case, the remedy of appeal is not available to the petitioner. Thus, the submission of learned counsel for the State is misconceived. If, for the sake of arguments, it is assumed that the petitioner has a remedy of appeal under Section 11 of the Act, in that eventuality also, there is no bar of filing the present writ petition under Article 226 of Constitution of India on the allegations of arbitrariness. Hon’ble Apex Court in ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd. (2004) 3 SCC 553 has laid down the law in the following terms: “28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks 1998 (8) SCC 1 ) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction.” 10. Insofar as the contention raised by the learned Standing Counsel that the petitioner was granted license to run the foreign liquor shop for the year 2018-19 near Siddhartha Mill Road, Tehsil Jaspur but the petitioner shifted his shop to near Jaspur Bus Stand, Tehsil Kashipur, reply has been given by the petitioner in rejoinder affidavit that the respondent have renewed petitioner’s foreign liquor shop for Siddhartha Mill Road and petitioner had got the shop demarcated by respondent and as such there is no question of any transfer/shifting of shop as illegally being alleged by respondent no.3. Petitioner has also annexed the copy of demarcation done by the Excise Inspector alongwith the rejoinder affidavit, which is marked as Annexure No.RA-2, which discloses that in the east there is a shop of Car Nikhar, in west there is Sukhdev Auto Mobiles, in the North there is Aaraji Deepak Sharma and in South there is Siddhartha Mill Moradabad Road. 11. Now, as regards the contention that the matter related to location of shop of the petitioner, is sub-judice before the Hon’ble Apex court, this Court finds that the Hon’ble Apex Court has not granted any stay order in favour of the respondents and simply notices have been issued to the petitioner. Pendency of SLP before the Hon’ble Apex Court has no embargo on this Court in deciding the matter. The decision of this Court shall be subject to the final adjudication of the Hon’ble Apex Court. 12. In the light of aforesaid, this Court arrives to the conclusion that the petitioner is running the shop at the place earmarked by the respondents and as per directions issued by Division Bench of this Court, and that with respect to that place demarcation was also done by the Excise Inspector. As per the Policy of State Government, the petitioner applied for renewal by depositing requisite fees of 2,26,800/- but the respondents thereafter changed the location of petitioner’s shop from Siddhartha Mill Road, Kashipur to Hariyawala area Tehsil Jaspur. This has been done without affording any opportunity of hearing to the petitioner. In the opinion of the Court, the respondent authorities have failed to act fairly and reasonably in the matter and have passed the orders impugned which are against the principle of natural justice. Petitioner cannot be made to suffer for the wrong-doing of respondents. This has been done without affording any opportunity of hearing to the petitioner. In the opinion of the Court, the respondent authorities have failed to act fairly and reasonably in the matter and have passed the orders impugned which are against the principle of natural justice. Petitioner cannot be made to suffer for the wrong-doing of respondents. On these grounds, impugned orders passed by the respondents are liable to be set aside. 13. Accordingly, writ petition is allowed. Impugned orders dated 18.02.2019 passed by respondent no.3 as well as the order dated 22.02.2019 passed by respondent no.2 are set aside. Respondents are directed to renew the license of the petitioner. As by interim order dated 11.03.2019, respondents were permitted to proceed with the tender process subject to final decision in the writ petition, impugned tender notice stands quashed and the tender process initiated by the respondents, has no implication as now the writ petition has been decided in favour of the petitioner. 14. No order as to costs.