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2023 DIGILAW 543 (UTT)

Suraj Prakash v. State of Uttarakhand

2023-09-20

RAVINDRA MAITHANI

body2023
JUDGMENT : The challenge in this petition is made to an order dated 18.07.2023, passed by the respondent no.3, Excise Commissioner, State of Uttarakhand (“the Commissioner”), by which, an appeal preferred by the petitioner against the demand notice dated 09.05.2023 has been rejected. 2. Heard learned counsel for the parties and perused the record. 3. At the very outset, learned State counsel would submit that a revision may be preferred against the impugned order. 4. Learned counsel for the petitioner would submit that the Excise Commissioner and Secretary are one and the same person. Therefore, the same person may not hear the revision against the order passed by him in appeal. During the course of hearing, learned counsel would refer an order dated 19.09.2023 of the Government of Uttarakhand, by which, for the purpose of hearing appeal, review and suo motu appeal under Section 11(2) of the Excise Act, 1958 (“the Act”) a Secretary has been nominated. He would submit that the earlier order was revised by the State Government on the same date i.e. on 19.09.2023 and now, revisions may also be heard by the nominated Secretary, who is other than the Secretary Excise. 5. This Court refrains to make any comment on the order dated 19.09.2023 of the State of Uttarakhand and its corrigendum because it authorizes the Secretary to hear the appeal under Section 11(2) of the Act also. There is no appeal that is preferred under Section 11(2) of the Act. Section 11(2) of the Act speaks of revision. Why separate persons have not been appointed to decide the appeal and revision under Section 11 of the Act, it is not, in fact, clarified. The Court proceed to hear the petition. 6. It is the case of the petitioner that he was allotted a liquor shop for a period from 01.04.2021 to 31.03.2022 at Kashipur No.3, Near Awas Vikas. The liquor shop operated till 31.03.2021. Thereafter, due to COVID-19 Pandemic, it could not continue. According to the petition thereafter, a flyover was constructed, which blocked the road and it reduced the sale further. According to the petitioner, he made a request to the District Magistrate, Udham Singh Nagar (the respondent no.5) bringing his difficulty to his notice, but no action was taken on that communication. Thereafter, due to COVID-19 Pandemic, it could not continue. According to the petition thereafter, a flyover was constructed, which blocked the road and it reduced the sale further. According to the petitioner, he made a request to the District Magistrate, Udham Singh Nagar (the respondent no.5) bringing his difficulty to his notice, but no action was taken on that communication. Thereafter, a demand notice was issued on 09.05.2023 by the District Excise Officer, Udham Singh Nagar against the petitioner, which was challenged by the petitioner in the appeal before the Excise Commissioner, which has been rejected by the impugned order. 7. It is the case of the petitioner that the petitioner did receive a notice for hearing of the appeal on 22.07.2023, but suddenly, the appeal has been decided on 18.07.2023 on the ground that the petitioner telephonically agreed for the disposal of appeal on that date. Therefore, according to the petitioner, the impugned order is bad in the eyes of law. 8. Learned counsel appearing for the petitioner would submit that after allotment of the liquor shop, the petitioner run his business till 31.03.2021, but thereafter due to COVID-19 Pandemic, he could not run his business. Further, due to construction of a flyover near the location, according to the learned counsel for the petitioner, the sale has adversely been effected, which further dip his financial capacity. He could not pay dues to the department. Therefore, a demand notice was issued on 09.05.2023, which was challenged in the appeal. 9. Learned counsel for the petitioner has serious objections to the pre-poning of the appeal by the Excise Commissioner. Learned counsel would submit that the date fixed in the appeal was 22.07.2023 and without affording any opportunity of hearing, appeal has been decided, which is in violation of the principles of natural justice. The petitioner ought to have been given adequate opportunity of hearing in the appeal. He would submit that the petitioner never agreed for decision of the appeal on 18.07.2023, as recorded in para 4 of the impugned order. 10. The Court offered an opportunity to the learned counsel for the petitioner, as to what the petitioner has to say in support of his appeal. It is true that the principle of natural justice is a basic component of administration of justice. But, the principle of natural justice is not a mere formality. 11. 10. The Court offered an opportunity to the learned counsel for the petitioner, as to what the petitioner has to say in support of his appeal. It is true that the principle of natural justice is a basic component of administration of justice. But, the principle of natural justice is not a mere formality. 11. In the case of State of U.P. vs. Sudhir Kumar Singh and others, 2020 SCC OnLine SC 847, the Hon’ble Supreme Court discussed this concept further and in para 39 observed as hereunder:- “39. An analysis of the aforesaid judgments thus reveals: (1) Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused. (2) Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest. (3) No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice. (4) In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person. (5) The “prejudice” exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non-observance of natural justice.” 12. (5) The “prejudice” exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non-observance of natural justice.” 12. In para 4 of the impugned order, the Excise Commissioner has recorded that he talked to the petitioner on his mobile number, which is noted in the impugned order. The impugned order further records that telephonically the petitioner sought six months’ time to pay the revenue and also sought exemption from paying 25% of it. 13. Learned counsel for the petitioner would submit that the petitioner has only two claims that he could not run his business due to COVID-19 Pandemic after 31.03.2021; and thereafter, due to construction of flyover his business affected further. He made a representation bringing these facts to the notice of the District Magistrate, Udham Singh Nagar, but no action was taken. 14. Learned counsel for the petitioner would refer to para 27.4 of the Uttarakhand Excise Policy Rules, 2021-22 (“the Rules”). According to which, the District Magistrate may take a decision for shifting the liquor shop. There are instructions on paras 27.4(a) and 27.4(b) of the Rules. The communication that the petitioner allegedly made to the District Magistrate is Annexure No.3 to the petition. By this communication, the petitioner has simply stated that there is a construction of road near the liquor shop allotted to the petitioner, due to which, the sale has reduced to a low and the petitioner is facing financial crises. He also writes that there is no other place where the petitioner could shift his shop because there is another shop in Jaspur Khurd, Kashipur. He requested the District Magistrate, Udham Singh Nagar that the problem may be resolved. The communication that the petitioner allegedly made to the District Magistrate, Udham Singh Nagar does not speak that the petitioner sought shifting of his shop. In fact, he expressed the agony of the situation that even he cannot shift his shop. 15. Rule 27.4 of the Rules further provides that in case, any person is aggrieved by the order of the District Magistrate under the Rules, he may file an appeal under Section 11 of it. As stated, the petitioner did not seek shifting of his shop. 15. Rule 27.4 of the Rules further provides that in case, any person is aggrieved by the order of the District Magistrate under the Rules, he may file an appeal under Section 11 of it. As stated, the petitioner did not seek shifting of his shop. It is not the case of the petitioner that his shop was closed ever. 16. The impugned order records that in order to meet the difficulty that had arisen due to COVID-19 Pandemic, exemptions were granted to the liquor shops. This is so stated in para 3 of the impugned order. How the petitioner can take more exemption, it is not even told to this Court. In so far as the reduction in sale is concerned, no material has been brought before this Court, which may allow this Court to evaluate the reasons for reduction in sale. The petitioner did not pay his dues. He was issued a demand notice. 17. There is no reason to doubt the demand notice. It has even been not shown as to why the demand notice is bad. In the impugned order at para 4, it is recorded that the petitioner has sought time to deposit the revenue. The impugned order records the reasons for pre-ponement of the hearing of the appeal. It is not the case of the petitioner that he was not contacted with regard to hearing of the appeal, as recorded in the impugned order. Mere assertion of the petitioner that the appeal was suo-motu pre-poned by the Excise Commissioner may not falsify the averments made in the impugned order that the petitioner was contacted for hearing of the appeal on 18.07.2023. 18. Assuming for the sake of argument that the petitioner did not get adequate opportunity of hearing, this Court has afforded opportunity of hearing to the learned counsel for the petitioner that as to why the demand notice dated 09.05.2023 is bad in the eyes of law. Learned counsel for the petitioner has two points, which have been discussed by the Court hereinbefore. This Court is of the view that the ground namely COVID-19 Pandemic as well as construction of a flyover are no grounds to question the demand notice. The demand notice has been rightly issued. 19. In view of the foregoing discussion, this Court is of the view that there is no reason to make any interference in the instant petition. This Court is of the view that the ground namely COVID-19 Pandemic as well as construction of a flyover are no grounds to question the demand notice. The demand notice has been rightly issued. 19. In view of the foregoing discussion, this Court is of the view that there is no reason to make any interference in the instant petition. Accordingly, the petition deserves to be dismissed at the stage of admission itself. 20. The petition is dismissed in limine.