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KM. PRACHI KARNWAL versus THE STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Km. Prachi Karnwal v. The State Of U.P. & Others - WRIT TAX No. 1257 of 2006 [2007] RD-AH 3068 (23 February 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).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court no. 22

Civil Misc. Writ Petition no.  1257 of  2006.

Km. Prachi Karnwal, Meerut.  ... Petitioner. Vs

State of U. P. and others. ... Respondents.

Hon'ble Rajes Kumar, J.

By means of the present writ petition under Article 226 of the Constitution of India, the petitioner prays the following reliefs:-

(a) to issue a writ, order or direction in the nature of certiorari quashing the impugned judgment and order dated 02.03.2006, passed by the respondent no. 1 in Excise Revision no. 98 of 2005 (Annexure 1 to this writ petition).

(b) to issue a writ, order or direction in the nature of certiorari quashing the communication order/demand notice dated 20.6.2006, issued by the District Excise Officer.

(C) to issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.

The brief facts of the case are that on 23.3.2002 petitioner applied for grant of a license for retail vend of country liquor for a Shop known as Abdullahpur Meerut for the excise year 2002-03 under the provisions of the Uttar Pradesh Excise (Settlement of Licenses for Retail Sale of Country Liquor) Rules, 2002 (hereinafter referred to as the Country Liquor Rules).  The aforesaid shop was settled in favour of the petitioner by lottery as provided under rule 10 (b) of the Country Liquor Rules, but instead of granting a permanent license, the respondents have settled the shop on daily basis from 01.4.2002 till 19.4.2002.  Thereafter, from 20.4.2002 till 25.04.2002, a temporary license on daily basis was granted.  Thereafter, the temporary license was extended sixteen times and the last extension was granted on daily basis from 15.7.2002 to 21.07.2002.  Neither the temporary license of the petitioner was extended nor petitioner was granted a permanent license.  The petitioner moved an application on 15.7.2002 before the District Excise Officer, Meerut showing her inability to run the shop on daily basis.  On the receipt of the aforesaid application, petitioner received a notice dated 17.7.2002 issued by the District Excise Officer, Meerut informing the petitioner that since she was selected as licensee for the Abdullahpur country liquor shop by draw of lottery, hence she should deposit the basic license fee and the security amount as mentioned in the notice within a period of three days and 20 days respectively, otherwise, the earnest money deposited by the petitioner shall be forfeited and in future she would be back listed.  The petitioner could not deposit the basic license fee and the security amount.  Thereafter, petitioner received a demand notice no. 5665 dated 28.8.2002 issued by the District Excise Officer, Meerut directing the petitioner to deposit Rs.2,74,513/- as basic license fee and Rs.22,17,968/- as license fee, otherwise, the same would be recovered as arrears of land revenue.  Thereafter, the District Excise Officer, Meerut issued a revised notice dated 04.8.2004 demanding a sum of Rs.12,57,765/- as basic license fee and license fee for the excise year 2002-03.  Against the said  notice, petitioner filed Appeal no. 90 of 2004 on 30.10.2004.  The aforesaid Appeal no. 90 of 2004 was dismissed vide order dated 30.9.2005.  Being aggrieved by the aforesaid order, petitioner filed a Revision no. 98 of 2005.  The respondent no. 1 has dismissed the revision vide order dated 18.11.2005.  Against the said order, petitioner filed a Writ Petition no. 6035 of 2005.  The said writ petition was finally disposed of on 15.12.2005 and the order dated 18.11.2005 passed in revision no. 98 of 2005 was set aside and the matter was remanded back to the State Government to consider and decide the same in terms of the order passed in revision no. 9 of 2003 and revision no. 70 of 2004 by the State Government.  The respondent no. 1 again vide order dated 02.03.2006 rejected the revisionno. 98 of 2006 which is impugned in the present writ petition.

Heard Counsel for the parties.

Learned Counsel for the petitioner submitted that the petitioner has not deposited the basic license fee and the security amount which is a condition precedent for issue of license.  In the absence of non deposit of the amount, license has not been issued and can never be issued, therefore, demand of basic license fee and the license fee for the entire period, is wholly illegal and contrary to the provisions of  the Act and the law laid down by this Court in Civil Misc. Writ Petition no. 1132 of 2004 Rajendra Singh Chauhan versus State of U. P. and others and Civil Misc. Writ Petition no. 31 of 2006 Anil Kumar and others Versus State of U. P. and others reported in 2006 (10) ADJ page 366.

Learned Standing Counsel has not disputed the fact of the present case stated hereinabove.

The issue involved in the present writ petition is squarely covered by the decision of this Court in  Civil Misc. Writ Petition no. 1132 of 2004 Rajendra Singh Chauhan versus State of U. P. and others and Civil Misc. Writ Petition no. 31 of 2006 Anil Kumar and others Versus State of U. P. and others (supra).

Respectfully following the aforesaid two decisions of this Court, the writ petition is allowed.  The recovery order is set aside and the petitioner held not liable for the impugned demand which is fastened on account of non lifting of the minimum guaranteed quota or for the payment of the excise duty relating to the minimum guaranteed quota as no license was ever granted to the petitioners, nor could be granted to the petitioners in the eyes of law except the dues which arising for the period during which the petitioners has run the shop.  The Principal Secretary is directed to conduct an enquiry as directed in Civil Misc. Writ Petition no. 1132 of 2004 Rajendra Singh Chauhan versus State of U. P. and others and Civil Misc. Writ Petition no. 31 of 2006 Anil Kumar and others Versus State of U. P. and others (supra).  Similar directions are being issued as follows:-

In the opinion of the Court the loss, which has been caused to the State Government is only be caused of the deliberate inaction of the Excise Authorities of District Meerut in not acting in accordance with the requirement of Rule 12 of the Rules of 2002 and thereby, jeopardizing the interest of the  public exchequer.  The loss caused to the State Government, in these circumstances, cannot be permitted to go uncared for.  This Court is of the firm opinion that the loss caused because of negligence on the part of the Excise Authorities, which apparently appears to be in collusion with the petitioner, must necessarily to be redeemed and the persons responsible for such an act must be brought to book.  Therefore, this Court directs the Principal Secretary, Government of U. P. Excise Department, U. P. Lucknow (respondent no.1) to take all appropriate action against the concerned Excise Officers of District Meerut for not performing their statutory duty as required under Rule 12 at the relevant time and thereby causing loss caused to the State Government.  The Principal Secretary (respondent no. 1) after conducting an enquiry shall not only direct that the suitable departmental proceedings to be initiated against the official.  He shall also ensure the recovery of the loss caused from the salary or other dues payable to the Excise Officials.  Such exercise must be completed by the Principal Secretary within two months from the date a certified copy of this order is filed before him.

A certified copy of this order shall be issued to the learned Standing Counsel free of cost for being forwarded to the Principal Secretary for necessary actions within 15 (fifteen) days and a compliance report be submitted  to the Registrar General of this Court immediately on the expiry of the time granted above.

Dt:23.02.2007.

MZ/-


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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