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Allahabad High Court · body

2019 DIGILAW 980 (ALL)

Madan Mohan Gupta v. State Of U. P.

2019-04-17

ASHOK KUMAR

body2019
JUDGMENT : 1. Heard Shri Vishwa Swaroop Tiwari, learned counsel for the petitioner and Shri Avinash Chand Tripathi, learned counsel representing all the respondents. 2. By means of the present writ petition, the petitioner has challenged and prayed for quashing of the order dated 28.09.17 passed by the Collector/licensing authority, District Kushinagar and subsequent orders dated 20.2.18 and 19.07.18 passed by the Commissioner, Excise, U.P. at Allahabad and Secretary, Excise, U.P. Apart from the aforesaid prayer, the petitioner has also prayed to issue a direction to the respondents/licensing authority at Kushinagar to refund the security amount deposited by the petitioner with respect to Country Liquor Shop, Banakta No.1, District Kushinagar and the basic licence fee with respect to country liquor shop No.1, Banakta, District Kushinagar and to release a sum of Rs.11,020/-recovered from the shop of the petitioner at the time of survey conducted by the respondent authorities on 28.5.17. 3. Brief facts of the case are that the petitioner was granted/issued the licence to run the country liquor shop No., Baznakta No.1, District Kushinagar by the licencing authority for the period 2017-18. The petitioner has deposited the licence fee as well as the basic licence fee and the security demanded by the respondents. 4. A search was conducted by the excise authorities at the shop of the petitioner on 18.5.17 in which certain discrepancies were noticed and, therefore, the seizure order has been passed on 18.05.17. 5. The submission of the learned counsel for the petitioner is that no copy of seizure memo was provided to the petitioner and, in fact, it is for the first time is placed by means of the counter affidavit as Annexure C.A.-6. In the seizure memo, the authorities have given the details of the quantity and variety of liquor recovered from the petitioner's shop which are mentioned as 16 boxes of liquor manufactured "MR.LIME" brand, 9 boxes of liquor manufactured "LAILA BRAND", 2 boxes "KATREENA BRAND", 2 boxes "BANTI BABLI BRAND" and 4 boxes of ''LAILA BRAND". At the time of survey, one person was available and the seizure proceedings were commenced in his presence. The first information report was also lodged against the petitioner under Section 60 and 64 of the U.P. Excise Act, 1910 read with sections 272, 419, 420, 467, 468 and 471 IPC. At the time of survey, one person was available and the seizure proceedings were commenced in his presence. The first information report was also lodged against the petitioner under Section 60 and 64 of the U.P. Excise Act, 1910 read with sections 272, 419, 420, 467, 468 and 471 IPC. In pursuance of the seizure proceedings, a notice has been issued to the petitioner by the licensing authority on 20.5.17. 6. Learned counsel for the petitioner has submitted that in the show cause notice, the description of the Alcohol allegedly recovered from the petitioner's shop is mentioned as 16 boxes of illegally manufactured "MR. LIME" Brand, 9 boxes of illegally manufactured 'LAILA BRAND", 2 boxes of "KATREENA", 2 boxes of "BANTI BABLI", 4 boxes of ''LAILA BRAND" legally allotted and 67 caps of different brands and a sum of Rs.9,200/-in cash. Learned counsel for the petitioner submitted that in the seizure memo dated 18.5.17 a sum of Rs.11,020/-in cash is mentioned which was allegedly recovered. 7. By the show cause notice, the petitioner was directed by the licencing authority to submit its explanation/reply within a period of seven days failing which the licence fee and security money deposited/furnished by the revisionist will be forfeited. While asking his reply, the licencing authority has suspended the licence of the petitioner. 8. In pursuance of the show case notice dated 20.5.17, reply was submitted by the petitioner on 29.5.17, a copy of which is enclosed as Annexure-13. The licensing authority has proceeded in the matter and has passed an order of cancellation of license vide its order dated 31.5.2017 (Annexure-5 to the writ petition). 9. The contention of the learned counsel for the petitioner is that the description of liquor and the amount found at the time of seizure proceedings which is mentioned in the show cause notice and whatever is mentioned in the order of cancellation of licence is totally different. The licencing authority has mentioned in its order dated 31.5.17 that 36 boxes of "LAILA BRAND", 75 boxes of "MR.LIME BRAND and 7 boxes of country made liquor were recovered. Learned counsel for the petitioner has submitted that contents of the show cause notice and the order of cancellation of licence, so far as they relates to the recovery of the liquor at the time of seizure, are entirely different and are not matching with each other. 10. Learned counsel for the petitioner has submitted that contents of the show cause notice and the order of cancellation of licence, so far as they relates to the recovery of the liquor at the time of seizure, are entirely different and are not matching with each other. 10. The order of cancellation of licence dated 31.5.17 was challenged by the petitioner by filing an appeal under Section 11(1) of U.P. Excise Act, 1910 before the Commissioner Excise (licencing and industrial development) U.P. Allahabad. The appeal was heard by the Additional Commissioner and after hearing the parties at length and after examining the issue raised by the petitioner, that no personal hearing was afforded to the petitioner, the appellate authority has concluded that the order of cancellation of licence passed by the licencing authority is not sustainable in the eyes of law as such has set aside the order of cancellation of licence. 11. The appellate authority has directed the Collector/licensing authority to re-examine the issue and to provide personal hearing to the petitioner and then pass an appropriate reasoned order in accordance with law within a period of one month from the date of the order passed by the Additional Commissioner dated 19.7.17. Without waiting the decision of licencing authority, the petitioner has approached this Court by means of Writ Tax No.534 of 2017. The petitioner has submitted that the petitioner is a licencee of country made liquor shop in the Excise year 2017-18 and the licence of the petitioner was illegally cancelled. Based on the pleadings of the writ petition, this Court has disposed of the writ petition by making the following observation. :- "In view of aforesaid facts and circumstances, one thing is clear that the order cancelling the licence of the petition is no longer in existence. Therefore, there is no justification on part of the respondents authorities not to permit the petitioner to carry on his business of liquor as per the licence granted to him. In view of the aforesaid facts and circumstances, the petition is disposed of with the direction to the licensing authority to consider and pass appropriate order on the aforesaid application of the petitioner dated 26.07.2017 as also the fresh order pursuant to the order of remand dated 19.07.2017 in accordance with law most expeditiously preferably within a month from the date of production of the certified copy of this order. The writ petition is disposed of. " 12. The said writ petition was disposed of by order dated 3.8.2017 and in pursuance of the order dated 3.8.2017 the licencing authority has proceeded in the matter and has passed the fresh order on 18.8.17. The licencing authority has twisted the matter and recorded the incorrect finding by saying that the order of cancellation dated 31.5.17 was neither set aside by the Additional Commissioner in the appellate proceeding nor the same has been quashed by the High Court in the Writ proceedings. Learned counsel for the petitioner has submitted that the order dated 31.5.17 cancelling the licence of the petitioner was set aside by the Additional Commissioner and the matter was remanded to the licencing authority to re-examine the issue and to provide personal hearing to the petitioner and pass appropriate order in accordance with law and that this Court has clearly observed that the order cancelling the licence of the petitioner is no longer in existence. 13. Prima facie, the contention of the learned counsel for the petitioner appears to be correct and the licencing authority, therefore, has clearly disobeyed the orders passed by the appellate authority as well as of this Court. 14. The licencing authority, District Magistrate, Kushinagar has reiterated its previous order of cancellation of licence while passing the order dated 18.8.17. The petitioner, again approached this Court by means of Writ Tax No.591 of 2017 by which he has brought to the notice of this Court that even after the order of the Additional Commissioner setting aside the order dated 31.5.17 and the order passed by this Court in Writ Tax No.534 of 2017, the District Magistrate has passed the order dated 18.8.17 by which he has reiterated his previous order of cancellation of licence dated 31.5.17. 15. This Court has examined the contention of the learned counsel for the petitioner and find that there was no justification on the part of licencing authority to reiterate his order dated 31.5.17. 15. This Court has examined the contention of the learned counsel for the petitioner and find that there was no justification on the part of licencing authority to reiterate his order dated 31.5.17. The writ petition was allowed and the order dated 18.8.17 was quashed with a direction to the licencing authority to pass a fresh order on each and every issue of the matter in accordance with law without being influenced by any outside pressure as expeditiously as possible, preferably, within a period of six weeks from the date of production of an authentic copy of the order dated 24.08.2017. 16. Learned counsel for the petitioner submitted that after the order dated 24.8.2017, the petitioner has approached the licencing authority/District Magistrate, Kushinagar but he has refused to meet him and has directed him to meet his subordinates. Having no way, the petitioner again approached this Court by means of Writ Tax No.656 of 2017. This Court has passed an order on 20.9.17 clearly holding that there appears to be no order in existence cancelling the liquor shop licence of the petitioner. This Court has further issued an interim direction to the respondents not to interfere in the running of the liquor shop of the petitioner or to show cause by filing a counter affidavit by the next date fixed. This Court has fixed a date in the said writ petition as 10.10.17. 17. Learned counsel for the petitioner has submitted that the licencing authority had issued a notice dated 18.9.17 for providing the personal hearing by fixing the date as 23rd of September, 2017. The petitioner appeared before the licencing authority and has submitted his reply. No personal hearing was provided by the licencing authority on the date fixed, i.e., on 23.09.2017. 18. An amendment application was filed by the petitioner by which the petitioner has challenged the order of cancellation of licence passed by the licencing authority dated 28.9.17. 19. The contention of the learned counsel for the petitioner is that now different grounds are taken by the licencing authority to cancel the licence of the petitioner. 20. This Court has permitted the petitioner to incorporate necessary amendments in the body of the writ petition and also directed the learned Standing Counsel to file the counter affidavit to the amended petition by the next date fixed. 21. 20. This Court has permitted the petitioner to incorporate necessary amendments in the body of the writ petition and also directed the learned Standing Counsel to file the counter affidavit to the amended petition by the next date fixed. 21. The said writ petition No.656 of 2017, however, was dismissed by this Court on the ground of availability of alternative remedy and the petitioner was relegated to file an appeal under Section 11(1) of the U.P. Excise Act. An appeal was filed by the petitioner before the Commissioner, Excise, U.P. Allahabad, which was registered as Appeal No.6 of 2018. The Commissioner-Excise has dismissed the appeal filed by the petitioner. The Commissioner has taken into consideration the survey and seizure report as well as orders passed by the licencing authority from time to time. The Commissioner, Excise has also noted in its order that in case if the petitioner will be permitted to run the shop the State will only get a sum of Rs. 40,58,670/-whereas after allotment of the shop in favour of the new licensee, the State has received a sum of Rs.1,46,65,000/-. 22. Learned counsel for the petitioner has submitted that the reason recorded by the Commissioner cannot be a ground to uphold the order of cancellation of licence. 23. Against the order passed by the Commissioner Excise, a revision under Section 11(2) of the U.P. Excise Act, 1910 was filed before the Special Secretary, State of U.P. The revision filed by the petitioner was heard by the Special Secretary, Government of U.P., who vide his order dated 19.7.18 has dismissed the revision and has upheld the order passed by the Commissioner, Excise. The present writ petition is against the order dated 19.7.18 passed by the Special Secretary, State of U.P. 24. Heard learned counsel for the parties. 25. Admittedly, the petitioner was a licensee to run a country liquor shop being Country Liquor Shop No.1, District Kushinagar. By means of this writ petition, the petitioner has prayed to refund the basic licence fee as well as security money deposited by the petitioner. The seizure proceedings was carried out and during the course of seizure proceedings, certain material was found which was not matching with the books of accounts maintained by the petitioner. By means of this writ petition, the petitioner has prayed to refund the basic licence fee as well as security money deposited by the petitioner. The seizure proceedings was carried out and during the course of seizure proceedings, certain material was found which was not matching with the books of accounts maintained by the petitioner. The contention of learned counsel for the petitioner is that in the show cause notice, the discrepancy and description mentioned by the seizing authority was entirely different than what has been mentioned in the order of cancellation. According to learned counsel for the petitioner, once description of seized liquor itself was found to be incorrect, the authority ought to have initiated fresh proceedings with reference to the alleged seized material and it was not open for the respondents to have cancelled the licence of the petitioner. Learned counsel for the petitioner has submitted that the seized material was otherwise not produced by the respondents before any of the higher authorities. Learned counsel for the petitioner has also submitted that the description of the money recovered from the petitioner's cash counter at the time of seizure proceedings was different than what has been mentioned by the licencing authority in his order. He has, therefore, submitted that there are serious variation in the description of goods as well as in the description of money recovered at the time of seizure proceedings. 26. Learned counsel for the petitioner has also submitted that the licensing authority was malice with the petitioner as from the very first day he has taken harsh steps against the petitioner by passing the order of suspension, thereafter, the orders of cancellation of licence. He has also submitted that the act of the licencing authority clearly establishes that he has clearly disobeyed the order of the higher authorities as well as the orders of this Court by which he was clearly directed to proceed in the matter treating the petitioner as a licensee. 27. Learned Standing Counsel although tried to justify the order of the respondents, but accepted that no personal hearing was provided to the petitioner and there appears some difference in the description of the goods which was recovered at the time of seizer proceedings and whatever is mentioned in the order of cancellation of licence. 28. 27. Learned Standing Counsel although tried to justify the order of the respondents, but accepted that no personal hearing was provided to the petitioner and there appears some difference in the description of the goods which was recovered at the time of seizer proceedings and whatever is mentioned in the order of cancellation of licence. 28. From the facts placed, it is the admitted fact that the show cause notice issued to the petitioner contained different description of the seized liquor and money. The record clearly reveals that the description of the seized liquor and other materials as mentioned in the seizure memo is different which has been mentioned by the licensing authority in his orders of cancellation of licence of the petitioner. 29. In the opinion of the Court, once such inconsistency was noticed and is found, the proper course was available with the licencing authority to issue fresh show cause notice and to seek petitioner's response before taking a fresh decision. 30. It is not in dispute that the Excise licence year is over/expired and fresh licence are issued for the year 2018-19 and 2019-20, hence petitioner cannot claim that his licence be restored. The only submission of the counsel for the petitioner remains that the basic licence fee and the security money deposited by the petitioner be refunded to him. 31. Admittedly, the petitioner was allotted the country made liquor shop for the Excise year 2017-18 and for a period w.e.f. 1.4.17 till the seizure proceedings were carried out i.e., till 18.5.17 he runs the country made liquor shop. 32. In view of the aforesaid, the petitioner was liable to pay the licence fee (for the period with effect from 1.4.2017 till 18.5.17) and, therefore, the licence fee for the remaining period and the total security money deposited by the petitioner has to be refunded to the petitioner. 33. The licencing authority, therefore, is directed to refund the basic license fee as well as security money deposited by the petitioner after deducting the basic licence fee for the period w.e.f. 1.4.2017 to 18.5.2017, after due calculation within a period of one month from the date of production of a certified copy of this order by the petitioner/learned Standing counsel. Admittedly, the petitioner has been harassed by the licensing authority, this Court is imposing the cost of Rs.20,000/-upon the respondents. Admittedly, the petitioner has been harassed by the licensing authority, this Court is imposing the cost of Rs.20,000/-upon the respondents. The respondents will pay sum of Rs.20,000/-to the petitioner apart from the basic licence fee and security money in pursuance of this order within a period as indicated herein above. The writ petition succeeds and is allowed.