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2023 DIGILAW 558 (UTT)

Pawan Singh v. State of Uttarakhand

2023-09-29

RAKESH THAPLIYAL

body2023
JUDGMENT : RAKESH THAPLIYAL, J. 1. By the present writ petition, the petitioner is seeking the following reliefs: “1. Issue a writ, order in the nature of Certiorari quashing the impugned notice dated 20.09.2023 issued by the respondent no. 5 against the petitioner’s shops (as contained in Annexure No. 5 to this writ petition). 2. Issue and grant any other writ, order or direction as may be deemed fit and proper in the facts and circumstances of the case. 3. Also award the cost of this petition to the petitioner.” 2. Brief facts of the case are that the Excise Department of the State issued an Excise policy in the year 2013 for sale of foreign liquor in Malls/Departmental stores. The petitioner applied for license of FL-5DS (Departmental shop) and was granted two licenses for the same on 16.08.2023 by respondent No. 3. Thereafter, the license fee was deposited for one shop at the address of Shail Vihar, Dehradun Road, Rishikesh, District Dehradun having License No. 59/2023-24, and for another shop at the address of Nirmal Bag, Pashulok, Rishikesh, District Dehradun having license No. 58/2023-24, both in the name of “City Lite Grosry and Spirit Store.” Copies of both the licenses have also been appended to the writ petition as Annexure-2. 3. Counsel for the petitioner submits that the distance between both the shops of the petitioner is approximately five kilometers. 4. It is contended in the writ petition that near the petitioner’s shop, which is situated at Nirmal Bag, Pashulok, Rishikesh, there are three other Liquor Bars running since last five-six years and there are two other similar FL-5DS shops situated within 500 meters’ distance from the petitioner’s shop. It is further contended in the writ petition that when the petitioner started to run the shop at Nirmal Bag, Pashulok, Rishikesh, Dehradun, some of the local political persons started to make undue demands and when he refused to fulfill the same, they started creating nuisance and protest outside the petitioner’s shop with the help of local administration. Subsequently, the petitioner filed a suit for permanent injunction bearing Suit No. 41 of 2023 City Lite Grosry and Spirit Store, FL-5DS vs. Hari Singh Bhandari and Others. A copy of the plaint is also appended to the writ petition as Annexure-3. Subsequently, the petitioner filed a suit for permanent injunction bearing Suit No. 41 of 2023 City Lite Grosry and Spirit Store, FL-5DS vs. Hari Singh Bhandari and Others. A copy of the plaint is also appended to the writ petition as Annexure-3. The reliefs, as sought in the Suit, read as under: ^^¼d½ LFkk;h fu"ks/kkKk dh vkKfIr ls Áfroknhx.k] muds fgr&Áfrfu/kh] ,tsUV o lg;ksfx;ksa dks fuf"k/k fd;k tk;s fd os okni= dh lwph of.kZr lEifRr esa oknh ds gks jgs dkjksckj@lkekU; dk;Z esa voS/k o fof/kfo:) :i ls dksbZ gLr{ksi uk djs rFkk uk gh lwph of.kZr lEifRr ds lkeus fof/kfo:) ?ksjko] /kjuk] Án'kZu] ukjsckth djs rFkk uk gh okn i= dh lwph of.kZr lEifRr@nqdku ds 500 ehVj dh ifjf/k rd dksbZ fof/kfo:) ?ksjko] /kjuk] Án'kZu] ukjs ckth djs rFkk uk gh lwph of.kZr lEifRr@nqdku esa vkus&tkus okys deZpkfj;ksa] vkxUrqdksa o xzkgdksa ds vkus&tkus esa dksbZ vojks/k ;k ck/kk mRiUu djs rFkk uk gh nqdku dks cUn djs rFkk uk gh nqdku esa dk;Z djus okys deZpkfj;ksa] vkxUrqdksa o xzkgdksa dks dksbZ /kedh ns ;k muls dksbZ nqO;Zogkj djsA vU;Fkk oknh dh viw.kZuh; gkfu gksxhA ¼[k½ lEiw.kZ okn O;; oknh dks Áfroknhx.k ls fnyk;k tk;sA ¼x½ vU; dksbZ vuqrks"k tks ekuuh; U;k;ky; okn dh fLFkfr o ifjfLFkfr;ksa ds vuq:i mfpr le>s Áfroknhx.k ds fo:) oknh dks fnyk;k tk;sA** 5. The description of the location of the shop is also mentioned at the foot of the plaint, which reads as under: “CITY LITE GROSRY & SPIRIT STORE, FL-5DS ¼fMikVZesUVy LVksj½ Áhfe;e eksgYyk&fueZy ckx] i'kqyksd] rglhy _f"kds’k] ftyk nsgjknwu] fd ftldh lhek,a fuEu Ádkj gSa%& mRrj esa & Hkwfe vU; nf{k.k esa & eq[; ohjHkæ ekxZ iwjc esa & Hkwfe Jherh cyek pkSgku if'pe esa & Hkwfe Jh Fkify;ky thA** 6. In this Suit, on 11.09.2023, the Civil Judge (Senior Division), Rishikesh passed a temporary injunction order against the defendants restraining them from making any agitation in and around upto 200 meters from the shop of the petitioner and from stopping the customers to visit his shop. This order is also enclosed in the writ petition as a part of Annexure-3. 7. This order is also enclosed in the writ petition as a part of Annexure-3. 7. Now in the instant writ petition, the petitioner is aggrieved by Notice dated 20.09.2023 issued by the Excise Inspector, Area-3, Rishikesh, whereby for the purpose of maintaining law and order, a show cause notice has been given to the petitioner giving seven days’ time to submit response why the FL-5DS license provided to him be not cancelled. This Notice further gives a reference that in case of not receiving satisfactory reply, recommendation for cancellation of FL-5DS license provided to the petitioner will be made to the higher officials. 8. Counsel for the petitioner placed reliance on Section 35 of the Uttarakhand Excise Act, 1910, and submits that the Excise Inspector has no authority to issue Show Cause Notice. It is necessary to extract Section 35 of the Uttarakhand Excise Act, 1910, which reads as under: “35. No compensation or refund claimable for cancellation or suspension of license, etc., under this section: (1) Further power to cancel licences - Whenever the authority granting a licence under this Act considers that such licence should be cancelled for any cause other than those specified in Section 34 it shall remit a sum equal to the amount of the fees payable in respect thereof for fifteen days, and may cancel the licence either: (a) on the expiration of fifteen days, notice in writing of its intention to do so. (b) forthwith, without notice. (2) Compensation in the case of cancellation - If any licence be cancelled under clause (b) of sub-section (1) in addition to the sum remitted as aforesaid there shall be paid to the licensee such further sum by way of compensation as the Excise Commissioner may direct. (3) Refund of fee or deposit - When a license is cancelled under this section, any fee paid in advance or deposit made by the licensee in respect thereof shall be refunded to him, less the amount (if any) due to the State Government.” 9. Counsel for the petitioner further submits that the petitioner’s case does not fall under Section 34 of the Act, and as it appears from the contents of the Show Cause Notice, the petitioner’s case falls under Section 35 of the Act, and in view of Section 35 of the Act, the Excise Inspector has no authority to give any Show Cause Notice. 10. 10. Counsel for the petitioner gives a reference of the Rules framed by Notification dated 26.12.2023 by invoking power conferred by Section 21 read with Section 40 of the Act, i.e. Uttarakhand Excise (Arrangement of Licenses of Premium Retail Vending Shopping Malls/Departmental Stores of Foreign Liquor) Rules, 2013 (hereinafter referred to as the ‘2013 Rules’). Under the said Rules, there is a definition clause, i.e. Rule 2. Rule 2(8), which defines “license authority” reads as under: ^^¼8½ ykbZlsUl Ákf/kdkjh ^^ykbZlsUl Ákf/kdkjh** ls lEcfU/kr ftys dk dysDVj vfHkÁsr gSA** 11. He further refers to the copies of both the licenses, which are annexed to the writ petition as Annexure-2 and submits that the same have been issued by the Collector of the concerned district. 12. After perusing the 2013 Rules and the copies of the licenses, which are also part of the writ petition, there is no doubt that the Collector of the concerned district is the Licensing Authority. 13. By giving reference of the aforesaid Rules, counsel for the petitioner submits that Excise Inspector has no authority to issue Show Cause Notice. Though the petitioner has given reply to the Show Cause Notice, but the reply was submitted to the Excise Inspector as the Show Cause Notice had been issued by him. 14. The State Counsel fairly submits that the Collector of the concerned district is only the Licensing Authority and therefore, the license can only be cancelled by the Licensing Authority, i.e. the Collector of the concerned district. 15. In this matter, the petitioner has already given his reply to the Show Cause Notice dated 20.09.2023, but the said reply was submitted to the Excise Inspector, as the show cause notice had been issued by the Excise Inspector. 16. According to Rule 2(8) of the 2013 Rules, which has not been disputed by the State counsel, the Collector of the concerned district is the Licensing Authority. 17. 16. According to Rule 2(8) of the 2013 Rules, which has not been disputed by the State counsel, the Collector of the concerned district is the Licensing Authority. 17. Therefore, in view of the discussions, as made above, it is directed that the District Magistrate/respondent No. 3, who is the Licensing Authority as per the 2013 Rules, shall take a decision on the response of the petitioner dated 23.09.2023 (Annexure-6 to the writ petition), which is submitted to the Excise Inspector in response to the Notice dated 20.09.2023 issued by the Excise Inspector, and before taking a decision on the response to the Show Cause Notice, the District Magistrate shall take a decision on the question whether the Excise Inspector was right in issuing the notice to the petitioner and shall further decide whether the Excise Inspector was competent authority to issue notice for cancelling the licenses. The District Magistrate, after taking decision whether the Excise Inspector was competent or not while issuing notice, shall take a further decision on the response of the petitioner to the Show Cause Notice issued by the Excise Inspector. The District Magistrate shall take decision on the response of the petitioner positively within a period of two weeks from the date of production of a certified copy of this order by a speaking and reasoned order strictly as per the mandate of the Uttarakhand Excise (Arrangement of Licenses of Premium Retail Vending Shopping Malls/Departmental Stores of Foreign Liquor) Rules, 2013. If the District Magistrate considers it appropriate, he may also give an opportunity of personal hearing to the petitioner before passing the order. 18. In view of the aforesaid observations and the directions, the writ petition is disposed of finally.