Shri Sachin Kumar Shahi vs State Of Uttarakhand And Others
2021 Latest Caselaw 3762 UK

        HIGH COURT OF UTTARAKHAND AT NAINITAL

                    Writ Petition (M/S) No. 1938 of 2021

Shri Sachin Kumar Shahi                                      .....Petitioner

                                        Versus
State of Uttarakhand and others                              .... Respondents
Present :-
Mr. Shobhit Saharia, Advocate for the petitioner.
Mr. M.S. Bisht, Brief Holder for the State of Uttarakhand.

                                                   Dated: 21st September, 2021

                                JUDGEMENT

Hon'ble Sharad Kumar Sharma, J.

The brief facts, which are involved consideration in the present Writ Petition, are that the petitioner was an allottee of a liquor shop IMFL-5, at Tuni, District Dehradun, as a consequence of the allotment, which was made in his favour on 29th February, 2020.

2. Under the terms of the allotment order, the petitioner was supposed to remit the excise dues, as it has been defined under the Act, particularly as that as contained, under Sub-section (1) of Section 3 of the U.P. Excise Act. Those were defaulted to be paid, and the reason assigned for the default committed by the petitioner was, that on account of the prevalent pandemic situation, he could not remit the amount due towards excise dues from 1st April, 2020, on account of the complete lock down and till the re-opening of the liquor shop on 3rd May, 2020.

3. The petitioner contends that the entire process of the demand raised of the excise revenue by the respondents, was without determining the actual liability payable by the petitioner, in consonance to the provisions contained under the U.P. Excise Act, and as such, the entire process of recovery right from its inception of

raising a demand for depositing the excise revenue, without its actual determination, would run contrary to the provisions contained under the Act. However, record shows that it was, on 15th December, 2020, that the notices were issued to the petitioner calling upon him to deposit the deficient amount of Rs.1,19,57,654/- As per the advise extended to him, as against the demand raised, the petitioner had admittedly invoked the appellate remedy which was statutorily available to him under Sub-section (1) of Section 11 of the Act.

4. There, the argument, which was taken in defence in order to override the implications of the pre-condition, which had been provided under the proviso to Section 11 of depositing the 25% of the amount, the petitioner, in fact, has argued before this Court, that before the Appellate Forum itself, he has submitted, that in the absence of there being an actual determination of liability payable to him, as per the procedure provided under the Excise Act, in fact, the Appellate Authority, ought to have at the first instance should have determined the same, and should have, in turn, informed the petitioner, as to what would be the 25% of the amount, due to be paid by him, qua the demand, which was expected to be raised against the petitioner. He had expressed his inability to comply with the condition of the 1st proviso to Section 11 (1), in the absence of there being a prior determination of the amount of excise revenue, payable by the petitioner. He submits that he was rendered incapacitated to comply with the provision of the first proviso, because despite of his request made, since the excise liability, as was required to be fastened on the petitioner, since was not determined, he could not have complied the condition of the first proviso.

5. Hence, in the absence of there being a compliance of the provisions of pre-deposit, his appeal was dismissed by one of the impugned orders, which is under challenge, i.e. dated 7th August, 2021.

6. Even if the order of 7th August, 2021, is taken into consideration, in fact, the principal reasons for rejecting the appeal was none compliance of the proviso to Section 11 (1) of Act of 1910.

7. The petitioner attempts to carve out an exception and confesses, that the advise extended to the petitioner to prefer an Appeal, against the principal demand, itself was not a rightful advise, in fact, he ought to have challenged the principal demand, in the writ jurisdiction, because until and unless an actual determination was made of the payable excise dues, there could not have been a compliance of provisions contained under Sub-section (1) of Section 11 of the Act, in its first proviso.

8. Hence, he submits that in the light of the aforesaid anomaly, since there was no principal determination by the respondents, the availability of a statutory remedy under Section 11, would not be treated, as an efficacious remedy, which would be at all made available to the petitioner for the redressal of his grievance, as against the demand, which has been raised by the respondents.

9. In support of his contention, and in order to elaborate his argument, pertaining to the scope of interference under Article 226 of the Constitution of India, the petitioner had made reference to a judgment which had been rendered by the Hon'ble Apex Court in Civil Appeal No. 1155 of 2021, M/s Radha Krishan Industries Vs. State of Himachal Pradesh and others. Though this was a case, which was emanating from the provisions of the Himachal Pradesh Good and Service Tax Act, which carried an akin appellate provisions, under Section 107 of the said Act, of providing of a remedy of an appeal, which was an aspect dealt with by the Hon'ble Supreme Court, carving out an exception, under which, the inherent powers under Article 226 of the Constitution of India, could have been exercised and particularly, the reference has been made by the

petitioner to para 27 of the said judgment, which is extracted hereunder :-

"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."

10. If the exception clauses, which are given therein in the aforesaid judgment and are taken into consideration and made applicable in the light and the circumstances of the present case, where the petitioner has been provided with a statutory remedy under Sub-section (2) of Section 11 of the Act, of preferring a Revision before the State, I am of the view that the exception clauses, which

has been given therein, for the exercise of the extraordinary jurisdiction and for the purposes of overriding an effect or argument of respondents of an alternative remedy, none of the exceptions, given therein, deals with the aspect; that when the principle controversy, which was raised by the petitioner before the Appellate Forum, was not decided on its own merit, whether still the bar or availability of determining, the factual dispute of the quantification of the excise amount due to be paid by the petitioner would, still fall to be within the scope of a revisional jurisdiction under Sub-section (2) of Section 11, because there is no apparent anomaly, which could be scrutinized without appreciating the facts for the purposes of fixation of the liability on the petitioner for the payment of excise revenue, which was claimed from him and which was a subject matter of consideration in an appeal, which has not yet been decided on merits, due to non compliance of the pre-conditions of the proviso to the appellate provisions.

11. Hence, in an eventuality, where even if a writ jurisdiction is permissible to be invoked under the legal contingencies laid down by the Hon'ble Apex Court, irrespective of the availability of an alternative statutory remedy, I am of the view that the implications of para 27 of the judgment, would not be made applicable, particularly, when the invocation of jurisdiction, itself would entail a meticulous arithmetical determination of the excise liability, which would be payable by the petitioner.

12. In that eventuality, the nature of dispute as it engages consideration herein in the present Writ Petition will not fall within the exceptions provided in para 27, of the judgement of the Hon'ble Apex Court in the matter of M/s Radha Krishan Industries (Supra), because the grievance of the petitioner could not be redressed by this Court by factually appreciating the matter on its merit and assessing the tax liability by calculating it, which could be only done by the statutory forum provided under Sub-section (2) of Section 11 of the

Act, by preferring a revision; before the State and it would be rather the appropriate revisional forum, which could better scrutinize the apparent anomaly, which has been committed by raising the demand by not determining the amount of excise revenue, which was to be made payable by the petitioner.

13. Hence, since the adjudication of the controversy itself, requires a re-appreciation of the entire facts on merits, de novo, from the date of the inception of the proceedings against the petitioner, it will not be amenable to a writ jurisdiction, even by invoking para 27 of the aforesaid judgment, the exceptions, which had been carved out by the Hon'ble Apex Court.

14. Hence, I am of the view that the petitioner's case would not fall under any of the exceptions clauses provided under para 27, as it requires a de novo factual determination entailing mathematical calculation. Hence, the petitioner is relegated to approach the revisional forum under Sub-section (2) of Section 11 of the Act, in order to determine the controversy of fixation of his actual liability of excise revenue.

15. Hence, on that count itself, this Court declines to entertain the Writ Petition. The Writ Petition is accordingly dismissed subject to the aforesaid liberty.

(Sharad Kumar Sharma, J.) 21.09.2021 Shiv