Uttarakhand High Court

'Balkar Singh vs State Of Uttarakhand And Others' on 16 September, 2021

    IN THE HIGH COURT OF UTTARAKHAND
              AT NAINITAL


THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
                             AND
         THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA



                16TH SEPTEMBER, 2021

         SPECIAL APPEAL NO.279 OF 2021


Between:

Balkar Singh                                        ...Appellant

                               and


State of Uttarakhand and others.                  ...Respondents

Counsel for the appellant : Mr. M.C. Pant with Mr. Vijay Singh.

Counsel for the respondent : Mr. C.S. Rawat, learned Nos. 1 to 6. Chief Standing Counsel for the State.

Counsel for the respondent : Mr. Bhavya      Pratap
no.7.                        Singh, holding brief of
                             Mr. Sanpreet     Singh
                             Ajmani.


The Court made the following:


JUDGMENT:    (per Hon'ble Sri Justice Alok Kumar Verma)

This special appeal arises from a judgment

and order dated 09.08.2021, passed by the learned

Single Judge in Writ Petition (M/S) No.400 of 2021,

'Balkar Singh vs. State of Uttarakhand and others', filed

under Article 226 of the Constitution of India. The

learned Single Judge dismissed the writ petition.

2. The case of the appellant-writ petitioner,

necessary to be noted for deciding the appeal, is that the

petitioner is a farmer. He had never applied for any

allotment of any liquor shop. The documents relating to

the allotment of the liquor shop in the name of the

petitioner had been obtained and prepared fraudulently

by Navneet Agarwal, the respondent no.7, in order to

obtain the allotment. The respondent no.7 has obtained

the allotment of a liquor shop by impersonating the

petitioner. The allotment letter was obtained in the name

of the petitioner. On 23.03.2020, a Liquor Shop FL Shop

Pithoragarh No.1B was allotted in the name of the

petitioner. The license fee was adjudged as

Rs.8,47,22,295/-. However, the said allotment letter was

never provided to the petitioner. The petitioner was

served with a letter dated 18.09.2020, issued by the

office of the Excise Commissioner, Dehradun, the

respondent no.6, whereby it was stated that an appeal

in terms of Section 11 of the Uttarakhand (United

Provinces Excise Act, 1910) (Adaptation and Modification

Order, 2002) (hereinafter referred to as, "the Act,

1910") has been filed and in terms of the provision of

Section 11 of the Act, 1910, the 25% of the disputed

amount is to be deposited for the appeal to be heard.

Again, on 23.01.2021, the petitioner was served with the

impugned order, issued by the Sub-Divisional

Magistrate/Assistant Collector, Haldwani, District

Nainital, the respondent no.4, for recovery of an amount

of Rs.4,08,71,002/-. The property of the petitioner,

valued at Rs.2,21,70,000/- was attached in lieu of the

said recovery. The petitioner has lodged an F.I.R. and

submitted the representations to the police authorities.

The respondent no.7 has also prepared writ petitions and

special appeal in the name of the petitioner by forging

the signatures and other particulars of the petitioner.

The petitioner has also filed an application in the pending

appeal, filed under Section 11 of the Act, 1910. The

petitioner is a victim of fraud. Hence, he filed the said

writ petition with the following reliefs:-

(a) Issue a writ, order or direction in the nature of certiorari quashing the order being Zamindari Abolition "Aakar Patra" No. 73- D dated 23.01.2021, issued by the Respondent no.4 (annexure no.4), to the extent of realization of the amount mentioned in the citation from the property of the petitioner;

(b) Issue a writ, order or direction in the nature of mandamus directing the respondents not

to take any coercive steps/actions with respect to the property of the petitioner i.e. Khata No. 06 admeasuring 0.879 hectare; Khata No. 15 admeasuring 1.338 hectare, total admeasuring 2.217 hectare in village Haripur Thathola, Tehsil Haldwani, District Nainital, pursuant to the order dated 23.1.2021 (annexure no.4);

(c) Issue a writ, order or direction in the nature of mandamus directing for appropriate investigation, enquiry and action on the fraud and forgery committed by the private respondent i.e. respondent no. 07 by use of documents relating to the property of the petitioner such as solvency certificate, character certificate and other documents, to apply for the allotment proceedings of F.L. 5 shop Pithoragarh No.1B held on 23.03.2020.

3. The learned Single Judge observed, "The

present writ petition happens to be fifth set of

proceedings in succession. There had been earlier four

other writ petitions, which have been decided by the

Coordinate Benches of this Court. The records of the

writ petition, revealed that the sole contest of the

petitioner as given in the writ petition is as against

the issuance of Aakar Patra 73-D dated 23.01.2021,

for the purposes of recovery of excise dues, he has

taken a defence that in fact:-

(i) He was not an allottee of the liquor shop.

(ii) He never applied for the shop being allotted

to him.

(iii) He never managed or controlled the shop,

which was being operated under the license

granted.

(iv) That the other earlier writ petitions, which

were preferred, they were not preferred by him,

rather somebody else has fraudulently placed his

signature and had filed the writ petition and had

sought directions.

But the facts apparent from the records, are

that as against the excise dues payable towards,

by the Foreign Liquor Shops, which were allotted

in the name of the petitioner by an act of

respondent no.7, who has alleged to have

impersonated him, there is already an appeal,

pending, which has been preferred under Section

11 of the Excise Act, which is pending

consideration before the Additional

Commissioner. If at all there is any sanctity in

the statement, made by the petitioner that he

was not the beneficiary of the allotment, no

excise dues would be payable by him the

propriety demanded; that when the petitioner

was conscious of the fact that an appeal has

been preferred, under Section 11 of the Act, by

impersonating him, he ought to have approached

the appellate court and brought this fact to the

knowledge of the appellate authority, who could

have better decided the matter by appreciating

the facts of allotment, which is alleged to have

been made by impersonation.

The writ petition as against the issuance of

the recovery citation by way of Aakar Patra

No.73 D, under this controversial backdrop and

set of disputed facts, which entails an

appreciation of fact and evidence would not be

the appropriate remedy available to the

petitioner".

4. The learned Single Judge dismissed the writ

petition, with a liberty to the petitioner, to approach

the appellate authority, where an impersonated

appeal under Section 11 of the Act in his name is

pending consideration and raise all his grievances

against the impersonated allotment of shops, which

he contends was made by respondent no.7, and the

appellate court will consider all the aspects and will

decide the controversy after hearing the parties

concerned.

5. Heard and perused the record.

6. Mr. M.C. Pant, the learned counsel for the

appellant, submitted that the question involved in the

writ petition cannot be decided in the appeal, filed under

Section 11 of the Act, 1910, so far as the question of

fraud can be looked into by the Court itself; while

adjudicating the matter under Article 226 of the

Constitution of India, the Writ Court has vast power to

administer and check the veracity of the order which has

been put to challenge before it; the learned Single Judge

has overlooked the merits of the case; in appeal, the

Excise Commissioner has not taken any action so far on

the letter of the appellant.

7. Countering the above contentions, the learned

counsel for the respondents have supported the

impugned judgment.

8. Though the powers of the High Court under

Article 226 are discretionary and no limits can be placed

upon that discretion, it must be exercised along

recognized lines and subject to self-imposed limitations.

Under Article 226, the High Court does not sit or act as

an appellate authority.

9. In Pepsi Food Limited vs. Special Judicial

Magistrate and others, 1998 (36) ACC 20, the

Hon'ble Supreme Court has observed that the power

conferred on the High Court under Article 226 and 227 of

the Constitution of India have no limits, but more the

power more due care and caution is to be exercised in

invoking these powers.

10. In Civil Appeal No. 1155 of 2021 'M/s

Radha Krishan Industries Versus State of Himachal

Pradesh and others' the Hon'ble Supreme Court held

on 20.04.2021,

"27. The principles of law which emerge are that:

(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;

(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;

(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right

protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;

(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;

(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and

(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.

11. The Hon'ble Supreme Court further observed

that these principles have been consistently upheld in

Seth Chand Ratan vs. Pandit Durga Prasad, (2003)

5 SCC 399, Babubhai Muljibhai Patel vs. Nandlal

Khodidas Barot, (1974) 2 SCC 706 and Rajasthan

SEB vs. Union of India, (2008) 5 SCC 632 among

other decisions.

12. Admittedly, the appeal under Section 11 of the

Act, 1910 is still pending before the Excise

Commissioner and disputed questions of facts are

involved in this matter, the appellant can press his

application, filed before the Excise Commissioner. The