Uttarakhand High Court
WPMS/1663/2021 on 21 August, 2021
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WPMS No.1663 of 2021
Hon'ble Sharad Kumar Sharma, J.
(Via video conferencing).
Mr. K.P. Upadhayay, Senior Advocate,
for the petitioner.
Mr. T.S. Fartiyal, Additional CSC, for
the State of Uttarakhand/respondent Nos.1 to 6.
The contention of the petitioner in the
present writ petition is that under the terms of
the Excise Policy, as notified by the State
Government on 22.02.2020, he had participated
in the tendering process, and ultimately he was
allotted an "Indian Made Foreign Liquor
Shop", at Kashipur No.1 (MpChowk to Cheema
Chowk) District Udham Singh Nagar. He was
successfull in the lottery system, which was
resorted to for the purpose of an allocation of
the liquor shop. The said licence was supposed
to be operated for a period from 01.04.2020 till
31.03.2021.
The grievance of the petitioner is that on
account of the prevalent Covid-19 pandemic
situation, he was not able to effectively operate
the shop, due to which, it had resulted into the
financial loss, and he was unable to deposit the
minimum monthly guarantee amount, which he
was otherwise suppose to deposit, in terms of
the allotment. Consequent thereto, in an event
of default which has been alleged to have been
caused by the petitioner, a recovery
proceedings was initiated by the respondents by
issuing an recovery citation, making a demand
of Rs.71,09,228/-, which was to be paid by him
as an amount due to be paid for the said period,
towards the minimum monthly guarantee
amount.
Being aggrieved against the said process
of the recovery, as well as the demand made by
the respondents due to the alleged default, the
petitioner has already approached the Appellate
Forum by invoking the provisions contained
under Section 11 of the U.P. Excise Act, 1910.
However, his appeal is not being entertained for
the embargo created by the second proviso to
Section 11 of the U.P. Excise Act, 1910, which
provides that the appeal would be entertained
by the Excise Commissioner, the Appellate
Authority, under the U.P. Excise Act, 1910,
only subject to the condition that the petitioner
deposits 25% of the amount sought to be
recovered, as a mandatory deposit for the
purposes of the entertainment of an appeal.
The contention of the learned Senior
Counsel for the petitioner is that the condition
of the deposit contemplated under Section 11 of
the U.P. Excise Act, 1910, is not exclusively a
mandate, which is not relaxable for the reason
being that, if the 2nd proviso itself to Section 11
of the U.P. Excise Act, 1910, is taken into
consideration, it grants the power to the
Appellate Authority to provide a relaxation or a
waiver from depositing the 25% of the amount
of the demand for the purposes of the
entertainment of an appeal, under Section 11 of
the Act.
Initially when the petitioner's claim for
waiver under the 2nd proviso to Section 11 of
the U.P. Excise Act, 1910, was not considered,
he approached this Court, and the Coordinate
Bench of this Court, by the judgment as
rendered on 22.03.2021, had disposed of the
writ petition, directing the respondents to
consider the impact of the 2nd proviso to
Section 11 of the U.P. Excise Act, 1910, and
rationally consider the aspect of the petitioner
claim of waiver, as raised by him before the
Appellate Authority. In pursuance to the said
judgment of 22.03.2021, the respondents had
rejected the petitioner's application under the
2nd proviso to Section 11 (1) of the U.P. Excise
Act, 1910, and had directed the petitioner to
deposit the mandatory 25% of the amount for
the purposes of the entertainment of an appeal.
From the various grounds, which are
raised by the learned counsel for the petitioner
in the present writ petition, with regards to the
implications, which was emanating because of
an untoward situation, which has arisen on
account of the declaration of "Lockdown" due
to which, he was unable to operate the liquor
shop allotted to him, which has resulted into an
extreme financial crisis, and due to which, he
was unable to deposit the minimum monthly
guarantee amount, which he was otherwise
suppose to deposit as per the terms of the
allotment. However, while considering the
petitioner's application for waiver, the Excise
Commissioner, had passed an order that since
despite of the fact that the petitioner is said to
have operated the shop for a certain period, as
referred in the impugned order, but still he has
not deposited the requisite amount of minimum
monthly guarantee, which is being refuted by
the learned Senior Counsel for the petitioner
contending thereof, that though he might have
operated the shop after the permission was
granted by the Government of India in May,
2020, but still the revenue generated therein
was not sufficient enough to meet his liability
which was payable towards the minimum
monthly guarantee amount payable by him.
Considering the aforesaid situation,
which was being suffered invariably almost by
all the licence holders, to whom the excise
shops were allotted, this Court is of the view
that though the relaxation, which has been
sought by the petitioner is being vehemently
opposed by the learned Additional CSC for the
State, but while exercising my discretionary
powers under Article 226 of the Constitution of
India, and in order to pave-out a way for
deciding the appeal on its own merit, this Court
is of the view that it would meet the ends of
justice if the petitioner deposits approximately
50% of the 25% of the mandatory deposit
contemplated under proviso to Section 11, i.e.
12.5 % of the total amount which has been
sought to be recovered, before the Excise
Commissioner within a period of two weeks'
from today, and if he deposits the said amount
thus directed within the aforesaid period, the
appeal preferred by the petitioner under Section
11 (1) of the U.P. Excise Act, 1910, would be
entertained and decided on its own merit.
Subject to the above observations, the
impugned order which is under challenge
would stand modified to that extent only.
(Sharad Kumar Sharma, J.)
21.08.2021
NR/
