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Manoj Sharma v. The State Of U.P. Thru' Principal Secretary & Others - WRIT TAX No. - 1210 of 2007 [2007] RD-AH 18026 (19 November 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Writ Petition (Tax) No. 1210 of 2007

Hon'ble Sushil Harkauli, J.

Hon'ble Rakesh Sharma, J.

We have heard learned counsel for the respondent No. 5 as well as the learned counsel for the petitioner and the standing counsel also.

The Additional Excise Commissioner had passed an order dated 30.5.2005 directing the sub-shop of the respondent No. 5 to be shifted. This order was passed allegedly without giving an opportunity of hearing to the respondent No. 5. Thereafter, the said order was reiterated, the last order in that series being an order dated 13.9.2005.

We had issued an interim mandamus by our order dated 26.10.2007 requiring the respondents No. 3 and 4 i.e. the Collector, Aligarh and the District Excise Officer, Aligarh to comply with the order of Additional Excise Commissioner dated 13.9.2005 by shifting the sub-shop of the respondent No. 5 running at Sasani Gate Crossing, to its original advertised/approved place at Mathura Road (Panchsheel Nagar) within three weeks of the date on which a certified copy of that order dated 26.10.2007 is presented before the respondent No. 3, or in the alternative to show cause by filing a counter affidavit within the same period explaining as to why the said sub-shop of the respondent No. 5 is not being shifted or is not liable to be shifted.

When that interim mandamus was issued, the respondent No. 5 had not put in appearance.

Now the respondent No. 5 has put in appearance and has raised an objection that the order of the Additional Excise Commissioner dated 13.9.2005 as well as the earlier orders including the main order dated 30.5.2005 were passed without affording an opportunity of hearing to the respondent No. 5.

Having regard to the nature of controversy as well as the consequences of shifting of the sub-shop, we are of the opinion that the respondent No. 5 should get an opportunity of defence. Since the respondent No. 5 is now aware of the full facts, therefore, we direct that the sub-shop of the respondent No. 5 will not be shifted till the Additional Excise Commissioner passes a fresh reasoned order in accordance with law, after examining the objections of the petitioner, which may be filed along with the certified copy of this order within three days from today. If no objection is filed within the aforesaid period, the respondents No. 3 and 4 will forthwith shift the shop of the respondent No. 5.

If an objection is filed within the said period of three days, the Additional Excise Commissioner will pass a fresh reasoned order either maintaining his earlier decision of shifting the shop or cancelling or modifying that order, as he may deem fit, within 48 hours of the receiving of the objections.

A copy of the order so passed will be supplied to the petitioner as well as the respondent No. 5 immediately by the Additional Excise Commissioner. The respondents No. 3 and 4 will abide the decision of the Additional Excise Commissioner.

This petition will be listed in the next cause list to enable the parties to file a copy of the order passed by the Additional Excise Commissioner along with a supplementary affidavit.

A certified copy of this order will be issued to the parties, on payment of requisite charges, within 24 hours.

Dated : November 19, 2007



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