Avnish Chettri vs Excise Commissioner And Others

Ravindra Maithani, J

The challenge in this petition is made to order dated 31.05.2023, passed by the respondent no.2, District Magistrate/Collector, Dehradun (“the DM”), by which the petitioner was required to shift his liquor shop from the existing place. The challenge in this petition is also made to order dated 30.08.2023, passed by the respondent no.1, Excise Commissioner, Uttarakhand (“the Commissioner”). By it, the order dated 31.05.2023, passed by the DM, has been upheld.

Heard learned counsel for the parties and perused the record.

It is the case of the petitioner that he is allottee of a liquor shop in Dehradun. The place, where he was to run business, had been approved earlier by the authorities. When certain disturbances were made by some persons in the running of the business by the petitioner, he was compelled to file Writ Petition (Crl.) No. 530 of 2023, Avneesh Chhetri Vs. District Magistrate/Collector Dehradun and Others, in which certain directions were given by the Court.

Thereafter, on a complaint made by the respondent no.4, the DM, by the impugned order dated 31.05.2023, directed the petitioner to shift the shop without assigning any reason. It is also submitted that the Commissioner, by the impugned order dated 30.08.2023, affirmed the order without giving sufficient opportunity to the petitioner. It is argued that on 05.08.2023, the petitioner approached the Commissioner, to supply him the copy of the complaint and to give him some time for hearing, but his request was declined. In the appeal, hearing was not done by them and the order was passed on 30.08.2023. Reference has been made to various documents to argue that the grounds on which the order has been passed is bad because in the month of April, 2023, the same District Excise Officer had approved the shop of the petitioner, and, now, on a non-existent ground that there is some school nearby, the impugned order has been passed. It is argued that the restriction is with regard to the recognized schools only.

Learned counsel for the petitioner would also submit that, in fact, earlier, the shop was being run an adjacent shop from the existing place of the petitioner, but that owner had demanded exorbitant rent. Therefore, the petitioner has started his business in the existing place, which falls within the norms.

When the matter was taken up, the Court wanted to know as to why the petitioner may not file a revision under Section 11 of the U.P. Excise Act, 1910 (“the Act”) and why a writ petition be entertained? On it, learned counsel for the petitioner submits that the Commissioner and the Secretary, Excise, is one and the same person. Therefore, any revision, that may be preferred against the order of the Commissioner may be heard under the scheme by the same person.

When this argument was raised, on 15.09.2023, this Court has passed the following order:-

The Court requests the Chief Standing Counsel to get instructions on this subject. Under Section 11(1) of the Act, an appeal may be preferred to the Excise Commissioner and under Section 11(2) of the Act, State Government may either suo moto or may consider the orders etc, passed under the Act.

Learned Chief Standing Counsel also gives a statement that at present, when a revision is preferred under Section 11(2) of the Act, it is placed before a Secretary, who is not the Excise Commissioner.

If the Excise Commissioner and the Secretary, Excise is one and the same person, how could the provisions of Section 11(2) of the Act may be exercised?

Section 11(2) of the Act empowers the State Government either suo motu or on an application by an aggrieved person call for the records and examine it. It is a suo moto power as well.

If the Secretary and Excise Commissioner is one and the same person, perhaps, the option of suo moto exercise of power under Section 11(2) of the Act would be rendered redundant.

Learned Chief Standing Counsel to get clear instructions in the matter so that the provisions of the Act may not be rendered redundant by the State Government.

List this matter on 19.09.2023, just after fresh cases.

Today, an office order dated 19.09.2023 has been placed before this Court by learned Chief Standing Counsel passed by Dr. Sukhbir Singh Sandhu, the Chief Secretary, which reads that Shri. Dilip Jawalkar, Secretary Finance, Department of Finance, Government of Uttarakhand, has been nominated Secretary for hearing appeals/review petitions/ suo motu appeals under Section 11(2) of the Act.

Section 11 of the Act is as follows:-

“11. Appeals and revisions. - (1) The Collector and every other Excise Officer not being the Excise Commissioner shall, in respect of all proceedings under this Act, be subject to the control of the Excise Commissioner and all orders passed by Collector or such other officer under this Act, shall be appealable to Excise Commissioner in the manner prescribed by rules made by the State Government in this behalf :

Provided that no appeal shall be entertained under sub-section (1) unless it is preferred by the aggrieved person within thirty days from the date of communication of such order, and unless the appellant has furnished satisfactory proof of having paid a sum of not less than 25 per cent, of the disputed amount of tax, fee, penalty or other dues, if any, as the case may be :

Provided further that the appellate authority may, for special and adequate reasons to be recorded in writing waive or relax the requirements of the preceding proviso in respect of such disputed amount of tax, fees, penalty or other dues.

(2) State Government may either suo motu or on an application by an aggrieved person call for and examine the records relating to any order passed in any proceedings under this Act, for the purposes of satisfying itself as to the correctness, legality or propriety of any such orders or as to the regularity of such proceedings; and, if in any case it appears to the State Government that such order or proceedings should be modified, annulled, reversed or remitted for reconsideration, it may pass orders accordingly :

Provided that no order adversely affecting any party shall be passed under this section unless he has been given a reasonable opportunity of making his representation :

Provided further that no application under this sub-section shall be entertained unless it is preferred within thirty days from the date of the order of the Excise Commissioner and unless an appeal, where it lies, has been filed and disposed of by the Excise Commissioner :

Provided also that no application for revision shall be entertained unless the applicant has furnished satisfactory proof of having paid a sum of not less than 25 per cent, of the disputed amount of tax, fee, penalty or other dues, if any, as the case may be :

Provided also that the State Government may, for reasons to be recorded in writing waive, or relax the requirement of preceding proviso in respect of such disputed amount of tax, fees, penalty or other dues].”

A bare perusal of Section 11 of the Act reveals that against an order of the Collector passed under the Act, an appeal may be preferred under Section 11(1) of the Act to the Excise Commissioner. There is no reference to suo motu appeal under Section 11(2) of the Act.

It appears that the State Government has tried to grossly mislead the Court. The Scheme of the Act is as follows:-

As per scheme set up by the State Government, the provisions of revision under Section 11 (2) of the Act is practically non-existent. Same person acts as Commissioner and Secretary to the department. He cannot hear revision against his order passed as Commissioner.

Having considered, this Court is of the view that the matter requires deliberation.

Admit.

Learned C.S.C. takes notice for the respondent nos. 1 to 3.

Issue notices to the respondent no.4 returnable within three weeks.

Steps to be taken within a week.

Respondents may file counter affidavit within three weeks.

Two weeks thereafter, rejoinder affidavit, if any, be filed.

List this matter for final hearing on 02.11.2023.

Having considered the entirety of facts, as an interim measure, till the next date of listing, the operation of the impugned order shall remain in abeyance. Interim relief application is decided accordingly.

In the instant matter, on 15.09.2023, this Court had asked learned Chief Standing Counsel as to how the same person may entertain a revision under Section 11(2) of the Act, who had passed an order in appeal, under Section 11(1) of the Act? This question is still unanswered. Even otherwise, the scheme of the Act, perhaps, stipulates different persons at different levels, so as to infuse efficiency or, perhaps, transparency in the application of the Act.

If it is a power of the revision that is vested in the State Government under Section 11(2) of the Act, the revision may be done to any order passed under the Act. It may not be restricted to any particular act.

The order dated 19.09.2023, which has been placed at the time of hearing, does not clarify any situation. It, in fact, reflects the attitude of the State Government, to make the provisions of the Act redundant; to make all attempts so that the Act may not be made applicable in its true letter and spirit. The mechanism has not been corrected. The streams are polluted. Same person may not hear revision against his own order.

But the State claims that it may be done. The Chief Secretary passed an order as on 19.09.2023, which has no meaning; it does not make any sense. By this order, a Secretary has been nominated to hear appeals/review petition/ suo motu appeals under Section 11 (2) of the Act. Under Section 11 (2) of the Act, appeals are not filed; there is no provision of suo motu appeal. Law on Review petition needs no clarification; review petitions, as far as possible, are placed before the same authority, whose order is sought to be reviewed. Is it a JOKE that has been made by the Chief Secretary, of the Court’s order dated 15.09.2023 (order dated 15.09.2023 is already quoted hereinabove)?

The Scheme of the Act, as dictated hereinbefore, makes a three tier system under Section 11 of the Act. But, it appears for some reasons, best known to the State Government, the State Government is trying to FAIL THE PROVISION OF THE ACT. The State Government is reluctant in not making three tier independent functioning under Section 11 of the Act.

Should the Court pass specific orders directing The Chief Secretary to appoint different persons at different levels for making Section 11 of the Act functional? This Court may consider this aspect so as to maintain RULE OF LAW; so as to ensure that the provisions of the Act are implemented in the letter and spirit; so as to ensure that the scheme of law is unpolluted, clean and uninfluenced by any other consideration, except the RULE OF LAW. But before passing such an order, this Court deems it fit to give an opportunity to the Chief Secretary, to introspect on the aspects, as narrated hereinbefore.

This Court leaves it at it for the present, without making any further comment. But, it compels this Court to require Dr. Sukhbir Singh Sandhu, the Chief Secretary of the State to file a personal affidavit as to why the State Government is adamant to make the provision of Section 11(2) of the Act a nullity by not appointing a person (other than the appellate authority under Section 11(1) of the Act), who may act as per the business rules, on behalf of the State, to take up revisions against order passed in any proceeding under the provisions of the Act. This affidavit shall be filed within the next three weeks. Thereafter, this Court shall proceed to hear on this aspect.

List this matter on 02.11.2023, at 2:00 PM. The Court also requests the Chief Secretary to assist the Court in the matter and join the proceedings through video conferencing.