Smt. Poonam Jaiswal [ Excise] vs State Of U.P. Thru. Prin. Secy. ...
2015 Latest Caselaw 5004 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 4
 

 
Case :- MISC. BENCH No. - 1741 of 2015
 
Petitioner :- Smt. Poonam Jaiswal [ Excise]
 
Respondent :- State Of U.P. Thru. Prin. Secy. Execise Deptt. & 4 Ors.
 
Counsel for Petitioner :- Ramesh Kumar Singh,Mohit Kumar Singh
 
Counsel for Respondent :- C.S.C.,Jitendra Mishra,Satya Prakash,Shikhar Srivastava
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Attau Rahman Masoodi,J.

Heard Sri R.K. Singh, learned counsel for the petitioner, Sri Jaspreet Singh for the respondent no.5 and the learned Additional Chief Standing Counsel for the respondents no.1 to 4.

This petition questions the correctness of the decision of the Excise Commissioner as well as the District Magistrate/Licensing Authority in relation to the reallocation and shifting of a liquor shop which the petitioner has challenged on the ground that it is contrary to the excise policy for the excise year in question as also is not in conformity with the provisions of the U.P. Excise Act read with the U.P. Number and Location of Excise Shop Rules, 1968 and the U.P. Excise (Settlement of Licence for Retail Sale of Country Liquor) Rules, 2002 and the circular issued in this regard. 

The petitioner came up before this court and the writ petition was entertained and the following interim order was passed on 6.5.2015 :-

"Heard Mr. Ramesh Kumar Singh, learned counsel for the petitioner as well as Mr. H.P. Srivastava, learned Additional Chief Standing Counsel and Mr. S.P. Srivastava, learned counsel for the respondent No.5.

Learned counsel for respondent has raised objection against the maintainability of the writ petition on the ground that the order impugned is appealable under Section 11 of the U.P. Excise Act, 1910 before Excise Commissioner and after the order passed by the Excise Commissioner, he has a remedy to file an Appeal before the State Government. However, since petitioner has raised the question of jurisdictional of licensing authority, we hereby entertain the writ petition and proceed to consider it on merit.

The petitioner as well respondent No.5 both are the licensee of country liquor shop. The petitioner was granted a licence to run country liquor shop at Triveni Nagar-3 Shivlok, whereas the respondent No.5 was granted licence for the country liquor shop at RBL Road New Hyderabad. Both of them had been running shops since three years at the notified places. However the shop of the respondent No.5 has been shifted within the area notified for the petitioner on 05 February 2015 due to high protest of local residents. Learned counsel for the petitioner has submitted that petitioner has paid the license fee as well as the fee to the privilege granted by the State Government, therefore no other shopkeeper can be permitted to interfere in the privilege of the petitioner.

On the other hand, Mr. S.P. Srivastava, learned counsel for respondent has shown the difficulty of the respondent No.5 in running the shop at its earlier place and also has alleged the circumstances which led the Excise Officer to transfer the shop.

The U.P. Number and Location of Excise Shop, Rules 1968 governs the field of location and number of shops. Under Rule 2-A of 1968 the licensing authority has been empowered to determine number and location of Exercise shops and sub shops being guided by the principles that no more shops or sub shops shall be allowed than are necessary to meet the normal requirements of the consuming classes. Rule 5 has laid down the principles for determination of location and sites for shops and sub shops. Sub rule 2 of Rule 5 provides that no change in the site of any shop or sub shop except for very cogent reason to be recorded in writing, shall be permitted during the currency of a settlement. The location of all shops and sub shops shall be clearly defined at settlement in order to prevent any shifting of sites. Sub rule 6 provides that if the location is found to be objectionable, such steps as are possible, shall be taken, to select a more suitable site and to arrange for its removal.

Learned counsel for the respondent No.5 has sought protection of this clause and submitted that due to circumstances as had been arisen against the answering respondent, on his request the Excise Officer has shifted his shop at the new place in which there is no error. It has further been submitted that before shifting such shops the District Magistrate had constituted a committee for spot inspection. The committee had submitted report on the basis of the report submitted by the Officer the shop has been shifted. However, we do not find any consent of the petitioner in shifting the shop of respondent. Therefore, we are of the view that shifting of the respondent No.5 shop in the notified area of petitioner is interference in the privilege of the petitioner which requires interference of this Court.

Accordingly, we hereby stay the operation of the order impugned dated 03 February 2015 passed by the Additional Excise Commissioner, State of U.P. till further order of this Court. The Excise Officer/Licensing Authority is at liberty to search a place within the area notified for the respondent No.5 to run the shop with aid and assistance of respondent No.5 so that no loss of revenue may be cause.

A weeks time as prayed for by learned Additional Chief Standing Counsel is allowed to file counter affidavit.

List on 14 May 2015."

Sri Jaspreet Singh for the respondent no.5 while making a mention earlier relied on a decision in the case of Rakesh Singh Vs. State of U.P. & others (2011) 2 AWC Page 1733 and considering his submission we had passed the following order on 23.11.2015 :-

"Sri Ajit Kumar Dwivedi who appears for the private respondent has invited attention of the Court to the judgement in the case of Rakesh Singh v. State of U.P. & ors. (2011) 2 AWC 1733 to urge that transferring or setting up of a new shop in the locality where there is already an existing shop of the same status, is permissible under the rules.

Learned counsel submits that it is on account of the interim order passed in the present writ petition that the answering respondent is unable to operate the shop and the learned Addl. Chief Standing Counsel submits that this is also resulting in loss of State revenue.

Sri Virendra Singh, learned counsel holding brief of Sri R. K. Singh, for the petitioner, submits that the matter may be adjourned for today to enable him to assist the Court on some other day.

List this matter on 3.12.2015."

Today, we have heard the full scale arguments of both sides and we find that the judgments which have been relied upon by the learned counsel for the petitioner in the case of Ashish Vs. State of U.P. and others, 2007 (3) AWC Page 2451 and the decision in the case of Anil Kumar Tyagi Vs. State of U.P. & others, Writ Petition No.1169 of 2003, decided on 17.10.2003 unequivocally lay down the principle that in such matters if any such power is available with the Excise Commissioner and can be invoked then in that event the same would require cogent reasons to be recorded in writing for passing such an order of shifting.  The same position of law has been reiterated in the case of Rakesh Singh (supra).

The prime question before us is as to whether the Excise Commissioner, who is the competent authority to do so or otherwise, has passed the order dated 3.2.2015 in accordance with the law and the ratio of the decisions aforesaid or not.

Having heard the learned counsel for the parties including the learned Additional Chief Standing Counsel, there is no escape from the conclusion on the basis of the affidavits exchanged as also the material on record that the Excise Commissioner while passing the order dated 3.2.2015 has not recorded any reason whatsoever in writing in order to issue the directions for the said reallocation of the shop.

Learned counsel for the petitioner contends that even otherwise he did not have the authority to do so.  We are not inclined to enter into this question at this stage as we find that the order impugned dated 3.2.2015 deserves to be set aside on the aforesaid ground relating to the non-recording of reasons by the Excise Commissioner in writing. 

Consequently, the order dated 3.2.2015 is hereby quashed.  All consequential orders also stand quashed. 

The matter shall be looked into by the Excise Commissioner in the light of what has been raised before us by the learned counsel for the petitioner and may also look into the objections of the contesting respondent no.5 as well as the comments of the District Magistrate and the material on record for the purpose of taking a decision in relation to any exercise of power for reallocation of the shop and consequential action thereto.  Needless to say that he shall also consider the decisions referred to hereinabove or relied upon by the parties.

The writ petition is therefore allowed.  The Excise Commissioner may pass appropriate orders within six weeks from the date of production of a certified copy of this order before him.

Order Date :- 3.12.2015

Anand Sri./-