Uttarakhand High Court

Pawan Singh vs State Of Uttarakhand And Others on 29 September, 2023

     IN THE HIGH COURT OF UTTARAKHAND
                AT NAINITAL

                 SRI JUSTICE RAKESH THAPLIYAL, J.

                     29TH SEPTEMBER, 2023
    WRIT PETITION (MS) No. 2767 OF 2023
Pawan Singh                    .......Petitioner.

                              Versus

State of Uttarakhand and others.                .......Respondents


Counsel for the petitioner     :   Mr. S.K. Shandilya.



Counsel for the respondents    :   Mr. Jagdish Singh Bisht, learned
                                   Standing Counsel for the State of
                                   Uttarakhand.




Upon hearing the learned Counsel, the Court
made the following

JUDGMENT :

By the present writ petition, the petitioner is

seeking the following reliefs:-

"1. Issue a writ, order in the nature of Certiorari quashing the impugned notice dated 20.09.2023 issued by the respondent no. 5 against the petitioner's shops (as contained in Annexure No.5 to this writ petition).

2. Issue and grant any other writ, order or direction as may be deemed fit and proper in the facts and circumstances of the case;

3. Also award the cost of this petition to the petitioner."

2. Brief facts of the case are that the Excise

Department of the State issued an Excise policy in the year 2013 for sale of foreign liquor in Malls/

Departmental stores. The petitioner applied for license

of FL-5DS (Departmental shop) and was granted two

licenses for the same on 16.08.2023 by respondent

No.3. Thereafter, the license fee was deposited for one

shop at the address of Shail Vihar, Dehradun Road,

Rishikesh, District Dehradun having License No.

59/2023-24, and for another shop at the address of

Nirmal Bag, Pashulok, Rishikesh, District Dehradun

having license No. 58/2023-24, both in the name of

"City Lite Grosry & Spirit Store". Copies of both the

licenses have also been appended to the writ petition

as Annexure-2.

3. Counsel for the petitioner submits that the

distance between both the shops of the petitioner is

approximately five kilometers.

4. It is contended in the writ petition that near the

petitioner's shop, which is situated at Nirmal Bag,

Pashulok, Rishikesh, there are three other Liquor Bars

running since last five-six years and there are two

other similar FL-5DS shops situated within 500 meters'

distance from the petitioner's shop. It is further

contended in the writ petition that when the petitioner

started to run the shop at Nirmal Bag, Pashulok,

Rishikesh, Dehradun, some of the local political persons

started to make undue demands and when he refused

to fulfill the same, they started creating nuisance and

protest outside the petitioner's shop with the help of

local administration. Subsequently, the petitioner filed

a suit for permanent injunction bearing Suit No. 41 of

2023 "City Lite Grosry & Spirit Store, FL-5DS vs. Hari

Singh Bhandari and 25 others". A copy of the plaint is

also appended to the writ petition as Annexure-3. The

reliefs, as sought in the Suit, read as under:-

"(d) LFkk;h fu"ks/kkKk dh vkKfIr ls izfroknhx.k] muds fgr&izfrfu/kh]

,tsUV o lg;ksfx;ksa dks fuf"k/k fd;k tk;s fd os okn i= dh lwph of.kZr

lEifRr esa oknh ds gks jgs dkjksckj@lkekU; dk;Z esa voS/k o fof/kfo:)

:i ls dksbZ gLr{ksi uk djs rFkk uk gh lwph of.kZr lEifRr ds lkeus

fof/kfo:) ?ksjko] /kjuk] izn'kZu] ukjs ckth djs rFkk uk gh okn i= dh

lwph of.kZr lEifRr @ nqdku ds 500 ehVj dh ifjf/k rd dksbZ

fof/kfo:) ?ksjko] /kjuk] izn'kZu] ukjs ckth djs rFkk uk gh lwph of.kZr

lEifRr@ nqdku esa vkus&tkus okys deZpkfj;ksa] vkxUrqdksa o xzkgdksa ds

vkus&tkus esa dksbZ vojks/k ;k ck/kk mRiUu djs rFkk uk gh nqdku dks cUn

djs rFkk uk gh nqdku esa dk;Z djus okys deZpkfj;ksa] vkxUrqdksa o xzkgdksa

dks dksbZ /kedh ns ;k muls dksbZ nqO;Zogkj djsA vU;Fkk oknh dh viw.kZuh;

gkfu gksxhA

([k) lEiw.kZ okn O;; oknh dks izfroknhx.k ls fnyk;k tk;sA

(x) vU; dksbZ vuqrks"k tks ekuuh; U;k;ky; okn dh fLFkfr o

ifjfLFkfr;ksa ds vuq:i mfpr le>s izfroknhx.k ds fo:) oknh dks

fnyk;k tk;sA"

5. The description of the location of the shop is also

mentioned at the foot of the plaint, which reads as

under:-

"CITY LITE GROSRY & SPIRIT STORE, FL-5DS

(fMikVZesUVy LVksj) izhfe;e ekSgYyk&fueZy ckx] i'kqyksd] rglhy _f"kds'k]

ftyk nsgjknwu] fd ftldh lhek,a fuEu izdkj gSa%&

mRrj esa & Hkwfe vU;]

nf{k.k esa& eq[; ohjHknz ekxZ]

iwjc ea& Hkwfe Jherh cyek pkSgku]

if'pe esa& Hkwfe Jh Fkify;ky th]"

6. In this Suit, on 11.09.2023, the Civil Judge

(Senior Division), Rishikesh passed a temporary

injunction order against the defendants restraining

them from making any agitation in and around upto

200 meters from the shop of the petitioner and from

stopping the customers to visit his shop. This order is

also enclosed in the writ petition as a part of Annexure-

7. Now in the instant writ petition, the petitioner

is aggrieved by Notice dated 20.09.2023 issued by the

Excise Inspector, Area-3, Rishikesh, whereby for the

purpose of maintaining law and order, a show cause

notice has been given to the petitioner giving seven

days' time to submit response why the FL-5DS license

provided to him be not cancelled. This Notice further

gives a reference that in case of not receiving

satisfactory reply, recommendation for cancellation of

FL-5DS license provided to the petitioner will be made

to the higher officials.

8. Counsel for the petitioner placed reliance on

Section 35 of the Uttarakhand Excise Act, 1910, and

submits that the Excise Inspector has no authority to

issue Show Cause Notice. It is necessary to extract

Section 35 of the Uttarakhand Excise Act, 1910, which

reads as under:-

"35. No compensation or refund claimable for cancellation or suspension of license, etc., under this section.-(1) Further power to cancel licences.--Whenever the authority granting a licence under this Act considers that such licence should be cancelled for any cause other than those specified in Section 34 it shall remit a sum equal to the amount of the fees payable in respect thereof for fifteen days, and may cancel the licence either-

(a) on the expiration of fifteen days, notice in writing of its intention to do so, or

(b) forthwith, without notice.

(2) Compensation in the case of cancellation.--If any licence be cancelled under clause (b) of sub- section (1) in addition to the sum remitted as aforesaid there shall be paid to the licensee such further sum by way of compensation as the Excise Commissioner may direct.

(3) Refund of fee or deposit.--When a license is cancelled under this section, any fee paid in advance or deposit made by the licensee in respect thereof shall be refunded to him, less the amount (if any) due to the State Government."

9. Counsel for the petitioner further submits

that the petitioner's case does not fall under Section 34

of the Act, and as it appears from the contents of the

Show Cause Notice, the petitioner's case falls under

Section 35 of the Act, and in view of Section 35 of the

Act, the Excise Inspector has no authority to give any

Show Cause Notice.

10. Counsel for the petitioner gives a reference

of the Rules framed by Notification dated 26.12.2023

by invoking power conferred by Section 21 read with

Section 40 of the Act, i.e. Uttarakhand Excise

(Arrangement of Licenses of Premium Retail Vending

Shopping Malls / Departmental Stores of Foreign

Liquor) Rules, 2013 (hereinafter referred to as the

'2013 Rules'). Under the said Rules, there is a definition

clause, i.e. Rule 2. Rule 2(8), which defines "license

authority", reads as under:-

"(8) ykbZlsal izkf/kdkjh&

"ykbZlasl izkf/kdkjh" ls lEcfU/kr ftys dk dysDVj vfHkizsr gS;"

11. He further refers to the copies of both the

licenses, which are annexed to the writ petition as

Annexure-2, and submits that the same have been

issued by the Collector of the concerned district.

12. After perusing the 2013 Rules and the copies

of the licenses, which are also part of the writ petition,

there is no doubt that the Collector of the concerned

district is the Licensing Authority.

13. By giving reference of the aforesaid Rules,

counsel for the petitioner submits that Excise Inspector

has no authority to issue Show Cause Notice. Though

the petitioner has given reply to the Show Cause

Notice, but the reply was submitted to the Excise

Inspector as the Show Cause Notice had been issued by

him.

14. The State Counsel fairly submits that the

Collector of the concerned district is only the Licensing

Authority and therefore, the license can only be

cancelled by the Licensing Authority, i.e. the Collector

of the concerned district.

15. In this matter, the petitioner has already

given his reply to the Show Cause Notice dated

20.09.2023, but the said reply was submitted to the

Excise Inspector, as the show cause notice had been

issued by the Excise Inspector.

16. According to Rule 2(8) of the 2013 Rules, which has not been disputed by kthe State counsel, the Collector of the concerned district is the Licensing Authority.

17. Therefore, in view of the discussions, as

made above, it is directed that the District

Magistrate/respondent No. 3, who is the Licensing

Authority as per the 2013 Rules, shall take a decision

on the response of the petitioner dated 23.09.2023

(Annexure-6 to the writ petition), which is submitted to

the Excise Inspector in response to the Notice dated

20.09.2023 issued by the Excise Inspector, and before

taking a decision on the response to the Show Cause

Notice, the District Magistrate shall take a decision on

the question whether the Excise Inspector was right in

issuing the notice to the petitioner and shall further