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SMT. PUSHPA DEVI versus SECY., GOVT OF U.P., EXCISE & OTHERS

High Court of Judicature at Allahabad

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Smt. Pushpa Devi v. Secy., Govt Of U.P., Excise & Others - WRIT TAX No. 1554 of 2004 [2005] RD-AH 749 (15 March 2005)

 

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.55

Civil Misc. Writ Petition No.1554 of 2004.

Smt/ Pushpa Devi           Versus  Secretary, Govt of U.P. and others.

Hon'ble Rajes Kumar, J.

Present petition has been filed for quashing of the order dated 12th August, 2004 passed by the State Government in revision.

Brief facts of the case giving rise to the present petition are that the petitioner has been issued a licence for the year 2002-2003 under the Excise Act for the shop at Station Road, Naini, Allahabad. The licence was issued in the individual name. For the year 2003-2004, also it appears that the petitioner applied for the renewal of the licence of the said shop in the individual name, but subsequently, a letter dated 12th March, 2003 was written to the District Excise Officer, Allahabad for adding the name of Anupam Kumar Dubey S/o Dr. K.P. Dubey, Pannalal Road, Allahabad as a co-licensee. It is stated in the letter that for the renewal of the licence she had made Anupam Kumar Dubey as partner and the partnership deed dated 10th March, 2003 was signed by both the persons. It also appears that in pursuance of the said letter, name of Anupam Kumar Dubey has been added in the licence on 23rd February, 2004. It is alleged that the petitioner sent letter by registered post dated 5th March, 2004 to Anupam Kumar Dubey stating therein that an agreement has been entered to run the shop at Station Road, Naini, Allahabad for the year 2003-2004 and we were partners of the business as per the agreement, but the terms of the agreement could not be followed, therefore, the petitioner is free to get the licence renewed for the year 2004-2005.It is also stated that on 31st March, 2004, agreement made for the year 2003-2004 stand cancelled and with effect from the aforesaid date, there would be no business relationship between the parties, copy of letter is annexed as Annexure-3 . Thereafter letter dated 5th March, 2004 was also written by the petitioner to District Excise Officer, Allahabad requesting for the renewal of the licence and requesting for acceptance of the deposit of the renewal fee Rs. 1500/-. In the said letter, it was written that for the year 2003-2004, the shop was run with Anupam Kumar Dubey with certain share as per the agreement and such agreement was valid for the year 2003-2004 and she did not want to run the business for the year 2004-2005 under the said agreement and the agreement has been cancelled. It appears that no action was taken on the said application and the appeal/application was filed before the Excise Commissioner, Allahabad on 10th March, 2004 with the request that the District Excise Officer, Allahabad be directed to pass challan for depositing the renewal fee and to issue renewal licence. In the said application, reference of the letter dated 5th March, 2003 written to Sri Anupam Kumar Dubey and the letter dated 5th March, 2004 written  to District Excise Officer, Allahabad was also given and the copies  of both  the letter have been enclosed along with the application/appeal. The Additional Excise Commissioner ( Licensing and Industrial Development) U.P as the appellate authority deciding the said application. In the said order, it has been stated that since for the year 2003-2004, on the application of the petitioner, name of Anupam Kumar Dubey was added as co-licensee, therefore, for the year 2004-2005, it could not be possible to renew the licence in the name of one person. It has also been observed that the petitioner and Anupam Kumar Dubey both are co-licensee of the liquor shop situated at Naini, Station Road, Allahabad and are liable for profit and loss as partners. Against the aforesaid order dated 19th March, 2004  petitioner filed revision before the State. Said revision has been rejected vide order dated 12th August, 2004. Plea of the petitioner that the name of Anupam Kumar Dubey has been added by ante dating on 23rd February, 2004 has been rejected on the ground that the name of Anupam Kumar Dubey was added as co-licensee in the licence  on the application of the petitioner itself.

Heard learned counsel for the parties.

Learned counsel for the petitioner submitted that the dispute is not relating to the period 2003-2004. He submitted that the dispute relates to the period 2004-2005 and for subsequent period. He submitted that vide letter dated 5th March, 2004 written to Anupam Kumar Dubey, partnership has been cancelled and vide letter dated 5th March, 2004 she has also informed the District Excise Officer about the cancellation of the partnership and stated that she did not want to run the business in the partnership for the year 2004-2005 and requested for the renew of the licence in her name. He submitted that this aspect of the matter has not been considered by the Additional Excise Commissioner , Allahabad in its order dated 19th March, 2004 nor by the State Government in its revisional order though this plea has been raised in the grounds of appeal in ground nos. 6, 7 and 8 which has been produced before the court for perusal. He submitted that the order of the revisional authority is vitiated inasmuch as it has not considered the real issue involved in the revision petition. He submitted that the right of the petitioner for the year 2005-2006 also depends upon the decision in the year 2004-2005 and therefore, the real issue  is required to be adjudicated upon.

Learned Standing Counsel has also been heard on behalf of opposite party nos. 1,2,3 and 4 and supported the order passed by the authorities below. Sri Ashok Kumar appears on behalf of opposite party no.5. He submitted that the opposite party no.5 has become co-licensee on the request of the petitioner in pursuance of the partnership deed executed between the petitioner and opposite party no.5. He further submitted that the entire investment of the business has been made by opposite party no.5. He also submitted that the partnership deed continued even for the period 2004-2005 and still continuing and, therefore, for the renewal of the licence for the year 2004-2005, application was moved to renew the licence in the joint name and on the basis of the said application, licence was renewed in the joint name. Plea of the petitioner is not acceptable. He also stated that the shop in which the business is being carried on is rented to him and he had every right to carry on the business in the said shop.

I have perused the order of the authorities below.

In my opinion, the impugned order of the revisional authority dated 12.08.2004 is vitiated and cannot be sustained. The real controversy in the present case was whether the partnership between the petitioner and Anupam Kumar Dubey continued in the year 2004-2005 or not. Admittedly, the partnership deed was not registered. It has to be examined that when the petitioner vide letter dated 5th March, 2004 written to the opposite party no.5  and cancelled the partnership and vide letter dated 5th March, 2004 also informed the said fact to the District Excise Officer and stated that the partnership after the period 2003-2004 stood cancelled and she did not want to carry on the business  of partnership and requested for the renewal of the licence in her name whether any valid partnership existed and continued in the year 2004-2005. It also appears that the application for the renewal which was moved by Anupam Kumar Dubey for the year 2004-2005 was by his signature alone, there is no signature of the petitioner on the application and on the basis of the said application, it appears that the licence for the year 2004-2005 has been renewed in the joint name. Therefore, the question for consideration whether the valid partnership existed in the year 2004-2005 and the renewal in the joint name was valid or not. The result of the aforesaid issue will settle the right of the parties for the year 2005-2006 also.

In the circumstances, matter requires reconsideration by the revisional authority afresh . Revisional authority is directed to decide the revision afresh within a period of 15 days from the date of receipt of certified copy of this order after hearing the petitioner as well as Anupam Kumar Dubey, respondent no.5. Petitioner may file the copy of the order on 18th March, 2005. On that date, either revisional authority may hear the matter on the same day or fix any other date for hearing. Opposite party no.5 may also appear before the revisional authority on 18th March, 2005.

Learned counsel for the petitioner states that for the renewal of the licence for the year 2005-2006, last date for deposit of the licence fee is 17th March, 2005 and the excise authorities are not accepting the licence fee of the petitioner, in view of the decision taken for the year 2004-2005. Petitioner requested that the renewal licence fee for the year 2004-2005 may be accepted otherwise the petitioner shall suffer irreparable loss. In the circumstances, I direct the authorities concerned to accept the renewal licence fee which will be subject to the decision of the revisional authority or any authority on the issue.

In the result, petition is allowed. Order of the revisional authority dated 12th August, 2004 is set aside and the authority concerned is directed to decide the revision a fresh in the light of the observations made above.

Dated. 15.03.2005.

VS.


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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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