Uttarakhand High Court
WPMS/1468/2021 on 30 July, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 30TH DAY OF JULY, 2021
BEFORE:
HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
WRIT PETITION (M/S) No. 1467 of 2021
BETWEEN:
Dharampal Singh. ...Petitioner
AND:
State of Uttarakhand & others. ....Respondents
WITH
WRIT PETITION (M/S) No. 1468 of 2021
BETWEEN:
Dharampal Singh. ...Petitioner
(By Mr. Shubham Chhabra, Advocate)
AND:
State of Uttarakhand & others. ....Respondents
(By Mr. T.S. Phartiyal, Addl. C.S.C. for the State of
Uttarakhand)
JUDGMENT
Heard learned counsel for the parties
through video conferencing.
2. Defects, as pointed out by the Registry
is overruled.
3. Since common question of law and facts
are involved in these writ petitions, therefore with
the consent of parties these writ petitions are
being taken up together and are being adjudicated
by this common judgment. However, for the sake
of brevity, facts of WPMS No. 1467 of 2021 are
being considered.
4. By means of this writ petition, petitioner
has sought following reliefs:
"(i) Issue a writ order or direction in the nature of
certiorari quashing the impugned recovery citation
dated 05/07/2021 passed by the respondent no. 6.
ii) Issue a writ or order in the nature of mandamus
directing the respondents to stay the proceedings
of recovery citation passed by the respondent no.
6.
iii) Issue a writ or order in the nature of mandamus
directing the respondent no. 3/excise commissioner
to decide the application filed by the petitioner
under Section 11 of the U.P. Excise act, 1910, for
seeking relaxation of the condition regarding
deposit of the twenty five percent of the
outstanding amount, as expeditiously as possible
within time bound period as this Hon'ble court
deem fit and proper."
5. In sum and substance, case of the
petitioner is that against the order passed by
District Magistrate, petitioner has filed an appeal
before Excise Commissioner.
6. Since relevant statutory provision
provides for pre-deposit of 25% of the amount of
penalty as a condition for entertaining the appeal,
which however, can be waived off in appropriate
cases, therefore, petitioner has moved an
application for waiver off condition of pre-deposit
of 25% of the amount. According to him, the said
application is pending consideration before the
Appellate Authority and no order has been passed
thereupon.
7. Since recovery citation has been issued
against the petitioner, therefore it is the
contention of the petitioner that in case the entire
amount is recovered from the petitioner in terms
of the order passed by District Magistrate, then
the very purpose of filing appeal before the Excise
Commissioner will be frustrated. Therefore, he
submits that the Excise Commissioner may be
directed to consider and decide petitioners
application seeking exemption from the condition
of 25% and till then recovery proceedings be kept
in abeyance.
8. The prayer made is innocuous, therefore
is worth accepting.
9. Accordingly, the writ petition is disposed
of with a direction to Excise Commissioner to
consider and decide petitioner's application under
3rd proviso to Section 11 (2) of U.P. Excise Act and
pass appropriate order, in accordance with law, as
early as possible; but, not later than four weeks'
from the date of production of certified copy of the
order.
10. For a period of four weeks or till disposal
of the said application by the Excise
Commissioner, whichever is earlier, recovery
proceedings initiated against the petitioner shall
be kept in abeyance.
(MANOJ KUMAR TIWARI, J.)
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