WPMS/1863/2007
2021 Latest Caselaw 4559 UK

IN THE HIGH COURT OF UTTARAKHAND
                   AT NAINITAL
     ON THE 15TH DAY OF NOVEMBER, 2021
                        BEFORE:
 HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI


     WRIT PETITION (M/S) No. 1863 of 2007

BETWEEN:

Amit Sajwan.                                    ...Petitioner
     (By Mr. Dharmendra Barthwal, Advocate)

AND:
Excise Commissioner & others.                ...Respondents
     (By Mr. T.S. Phartiyal, Additional Chief Standing Counsel
     for the State of Uttarakhand)


                      JUDGMENT

By means of this writ petition, petitioner has sought the following reliefs:-

"1- A writ, order or direction in the nature of certiorari to quash the order dated 18-08- 2006 passed by Respondent No.1 and order dated 29-11-2005 passed by Respondent No.

2- A writ, order or direction in the nature of mandamus commanding the Respondents to remit Rs. 20,33,339.00 which have been deposited by the Petitioner before Respondents baring the period for which the Petitioner was actually allowed to run the country liquor shop i.e. one month. 3- A writ, order or direction in the nature of mandamus commanding the Respondents to suitably compensate the petitioner for financial loss incurred by the petitioner. 4- A writ, order or direction in the nature of mandamus commanding the Respondents not to initiate any recovery proceedings against the petitioner."

2. According to the petitioner, in the year 2005, he was permitted to open a country liquor shop at Zero Point, Kempty Road, Mussoorie, District

Dehradun and the shop was opened by him on 06.06.2005, but after nine days, Competent Authority asked petitioner to close the shop and shift it to some other location. It is further, the case of the petitioner that he complied with the direction of Competent Authority and opened the shop at other location on 23.06.2005, but vide order dated 14.07.2005, he was again asked to close the shop and shift it to new location. Thus, according to him, he could run the shop only for about one month, therefore, he is entitled to refund of the amount paid by him as license fees/excise duty.

3.          Since    a     certificate        for   recovery    of
`     11,89,477/-    was     issued        against    petitioner,

therefore, he filed Writ Petition (M/B) No. 1200 of 2005, which was disposed of vide order dated 27.10.2005 with liberty to him to approach the Competent Authority for seeking remission/refund or compensation as the case may be, with a direction to the Competent Authority to decide petitioner's application within one month.

4. Pursuant to the direction issued in Writ Petition (M/B) No. 1200 of 2005, petitioner made an application to the District Magistrate, Dehradun claiming remission and refund of the amount deposited by him. The said application was rejected by District Magistrate, Dehradun vide order dated 29.11.2005 and petitioner was directed to deposit a sum of ` 11,89,477/-. Petitioner again filed Writ Petition (M/B) No. 1372 of 2005 challenging the order passed by District Magistrate on 29.11.2005, which was disposed of with a direction to the Appellate Authority to consider and decide petitioner's appeal

expeditiously, if filed within statutory period. Petitioner filed appeal, which was dismissed by Excise Commissioner, Uttaranchal vide order dated 18.08.2006. Thus feeling aggrieved, petitioner has filed this writ petition challenging the order passed by District Magistrate as well as Excise Commissioner.

5. A counter-affidavit has been filed on behalf of respondent no.4. In the counter-affidavit, it is stated that petitioner was allotted a country liquor shop, on daily basis at Landour-1, Mussorie and on his application, he was permitted to transfer the shop to Kempty Road, Mussorie. Petitioner's application is on record, in which it is stated that if permitted to shift the shop to Kempty Road, Mussorie, he is ready to deposit ` 41,32,455/-. It is stated that since petitioner could not arrange for suitable accommodation, therefore, he was permitted to sell country liquor through a mobile van.

6. Annexure No.3 to counter-affidavit is petitioner's application, whereby he requested Additional District Magistrate to grant him time till 21.06.2005 for depositing the balance amount of license fees and security; and petitioner had undertaken that he will deposit the said amount with interest upto 21.06.2005. Annexure No. 4 to the counter-affidavit is the order dated 23.06.2005 passed by Additional District Magistrate, whereby the accommodation proposed by petitioner for sale of country liquor, was approved. It is stated in the counter-affidavit that in view of agitation by local people, petitioner was asked to arrange for accommodation at some other place, however, despite notices, petitioner failed to arrange. It is

stated in para no. 7 that against the bank guarantee of ` 3,52,411/-, petitioner is yet to deposit ` 1,32,244/-. In para no. 8 of the counter-affidavit, it is stated that on petitioner's application, shop was allotted to him on 06.06.2005 for total revenue of ` 41,32,455/- for financial year 2005-06 and further that in his application, petitioner had undertaken to deposit the aforesaid amount, if the shop is allotted to him for the remaining period.

7. The order passed by Additional District Magistrate, Administration, Dehradun on 14.07.2005 is on record as Annexure No. 2 to the rejoinder- affidavit, whereby the liquor shop of the petitioner at Kempty Road was ordered to be closed till further order for maintaining law and order, with direction to petitioner to establish the shop at some other place.

8. The order passed by District Magistrate, on petitioner's representation is on record as Annexure No.3 to the writ petition. District Magistrate has observed in the order that on petitioner's offer of ` 41,32,455/- as revenue, he was permitted to shift the country liquor shop from Landour to Kempty Road, Mussorie and subsequently, on his application, he was permitted to sell country liquor in a mobile van till 14.06.2005, but, in view of opposition by social organizations, permission to sell country liquor from mobile van was withdrawn and petitioner was asked to arrange for a shop. It is further observed that the shop arranged by the petitioner at Kempty was approved with the condition that in case of opposition by members of public, petitioner will have to shift the shop to some other place. It further goes on to say that in view of agitation by members of

public, petitioner was asked to close the shop at Kempty till further orders and to run the shop from some other location. It goes on to say that number of letters/ notices were issued to petitioner to open the shop at some other place, but petitioner made no efforts for opening the shop. It further stated that by the order dated 14.07.2005, shop of the petitioner was not closed forever, but it was temporarily closed for some time, in view of public agitation. District Magistrate has commented on the conduct of the petitioner by observing that he has not made any effort for running the shop at other place, although, half of the financial year still remains, which shows that he is not interested in running the shop. It further observed that petitioner had neither proposed sale of country liquor from some other place, nor he had given option of sale through mobile van and further that District Administration is ready to extend all possible help to petitioner. It was stated that provision contained in Section 59 of the Excise Act, 1910 is not attracted to the present case, therefore, the judgment rendered by Hon'ble Allahabad High Court, in the case of Jagjeet Singh and others Vs. State of U.P. does not apply to the facts of the case.

9. The appeal filed by the petitioner too has been dismissed by the Excise Commissioner vide order dated 18.08.2006. Excise Commissioner has observed in the order that as per Rule 16 of Uttaranchal Excise (Settlement of license for retail sale of country liquor) Rules, 2001, petitioner was required to deposit Minimum Monthly Guarantee Duty on or before 20th day of each calendar month. Since petitioner did not deposit the same, as such, recovery certificate was issued by the District Magistrate. The

appeal filed by petitioner was dismissed by Excise Commissioner, on the ground that petitioner was permitted to transfer the shop from Landour to Kempty Road with the condition that in case of opposition, he will have to shift the shop to some other place, however despite letters/notices petitioner did not make any arrangement for running the shop from some other place. Excise Commissioner has further observed that petitioner has experience of running liquor shop, therefore, it cannot be said that he is ignorant about the applicable rules. Excise Commissioner has referred to Rule 9 (d) of the aforesaid Rules and held that under the said Rules, it was the duty of the petitioner to run the shop. It has further been held that petitioner had not surrendered the license in terms of Rule 19 of the aforesaid Rules.

10. Learned counsel for the petitioner submits that since petitioner could run the shop only for about a month, therefore, he is entitled for refund/remission of the amount deposited by him as license fee/excise duty and the District Magistrate as well as the Excise Commissioner erred in law in not considering the import of Rules 179 and 190 of the Excise Manual. He further submitted that in the order passed by District Magistrate, petitioner's total liability was mentioned as ` 11,89,477/-, while in the order passed by Excise Commissioner, petitioner's liability has been shown as ` 41,32,555/-. Thus, according to him, the Excise Commissioner could not have passed an order to petitioner's detriment, in his appeal.

11. Learned State counsel points out that Rule 179 and 190 relied upon by petitioner are not statutory rules, but these are executive instruction

issued by State Government for guidance of Subordinate Excise Officers, which are compiled in a compendium known as Excise Manual. Thus, according to State Counsel, Rule 179 and 190 do not confer any right upon the petitioner. Para nos. 179 and 190 of Excise Manual are extracted below for ready reference:-

"179. Remission in special cases.- Proposals for remissions other than of irrecoverable balance must be reported to the Excise Commissioner who if he supports them, will forward them for the orders of the State Government.

"190. Miscellaneous directions.-The following miscellaneous directions regarding the classification and payment of charges are noted for observance:

(1) Payment on account of compensation for closing shops under Section 59 of the Act or for closing country spirit shops settled under the auction system during the passage of troops includes-

(a) the refund of an amount originally credited to excise; and (b) 10 per cent. calculated on the amount of licence fees for the period during which the shop was closed, on account of loss of profits. The latter charge only should be debited to Contract Contingencies. The former will be treated as a refund and adjusted against the separate grant for refund and drawbacks. (2) Compensation may be paid by the Collector on his own authority"

12. This Court finds substance in the submission made by learned State counsel. Rules 179 and 190 relied upon by petitioner appear to be executive instructions issued for guidance of Subordinate Excise Officers. Even otherwise also, these Rules do not create any right in favour of an excise licensee.

13. Learned counsel for the petitioner could not demonstrate how Rule 179 and 190 of the Excise Manual support his case. Rule 179 enables the District Level Officer to submit a proposal for remission, other than of irrecoverable balance, to the Excise

Commissioner and Excise Commissioner if concurs with the proposal, then he may forward the same for decision to the State Government. Rule 190 provides for a different contingency altogether, therefore, reliance placed by petitioner upon these provisions for claiming refund of license fee/excise duty is unacceptable.

14. It is not in dispute that initially petitioner was permitted to run liquor shop at Landour, Mussorie, thereafter on his request, he was permitted to shift his shop to Kempty Road, Mussorie on his offer of ` 41,32,455/-. It is also not in dispute that due to his inability to find a shop at Kempty Road, he was permitted to sell country liquor in a mobile van and subsequently, when petitioner arranged for accommodation at Kempty Road, Mussorie, he was permitted to run liquor shop from the said place with the condition that in case of opposition from members of public, he will be required to shift the shop to some other place. Due to agitation by people, petitioner was asked to temporarily close the shop at Kempty Road, Mussorie with direction to shift the shop to some other place. Despite repeated letters, petitioner made no effort to open the shop elsewhere, therefore, petitioner himself is to be blamed for closing the shop without notice or information to the Competent Authority. There is no averment in the writ petition that he surrendered the license granted to him by the Competent Authority. Since petitioner was given license in view of his offer of revenue of `41,32,455/-, therefore, petitioner cannot be permitted to escape from his liability by shifting the blame to the Authorities.

15. Regarding the second submission that the amount mentioned by Excise Commissioner's order is more than what was indicated in District Magistrate's order, learned State counsel submitted that in the recovery certificate issued on 26.09.2005, the amount of minimum monthly guarantee duty of ` 11,89,477/- payable for three months namely, July, August and September, 2005 was mentioned. He further submitted that license given to the petitioner was for the financial year 2005-06, therefore, the excess amount indicated in Excise Commissioner's order, refers to the amount of minimum monthly guarantee duty for the remaining months of financial year 2005-

06.

16. This Court finds force in the submission made by learned State counsel. The date of order passed by District Magistrate is 29.11.2005, which indicates the amount due from petitioner for the second quarter of financial year 2005-06, while Excise Commissioner's order is dated 18.08.2006, therefore, the entire amount recoverable from the petitioner for financial year 2005-06 has been mentioned in the said order. Thus no fault can be found with the order of Excise Commissioner, on account of difference in the amount.

17. Learned counsel for the petitioner has placed reliance upon a judgment rendered by Hon'ble Allahabad High Court, in the case of CMWP No. 137 of 1994, Jagjeet Singh and others Vs. State of U.P. through Special Secretary (Excise) and others.

18. In the said case, country liquor shop was ordered to be closed by exercising power under

Section 59 of U.P. Excise Act, 1910. In the present case, there is nothing to show that order under Section 59 of U.P. Excise Act, 1910 was passed for closure of shop of the petitioner. In fact, petitioner was asked to shift his shop to some other place in view of opposition from public. Even otherwise also, in the aforesaid judgment relied upon by petitioner, all excise shops were directed to be closed under Section 59 of Excise Act, 1910, in view of curfew imposed by the District Administration; other similarly situated Excise licensee were given remission and awarded compensation, however petitioner in the said case was singled out for denial of remission/compensation, therefore, Hon'ble Allahabad High Court held that denial of equal treatment to petitioner in said case is violative of Article 14.

19. In such view of the matter, this Court does not find any reason to interfere with the orders passed by District Magistrate and Excise Commissioner, impugned in the writ petition.

20. Accordingly, the writ petition fails and is dismissed. No order as to costs.

(MANOJ KUMAR TIWARI, J.) Navin