Dharampal Singh vs State Of Uttarakhand & Others

Manoj Kumar Tiwari, J

Heard learned counsel for the parties through video conferencing.

Defects, as pointed out by the Registry is overruled.

Since common question of law and facts are involved in these writ petitions, therefore with the consent of parties these writ petitions are being

taken up together and are being adjudicated by this common judgment. However, for the sake of brevity, facts of WPMS No. 1467 of 2021 are being

considered.

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

“(i) Issue a writ order or direction in the nature of certiorari quashing the impugned recovery citation dated 05/07/2021 passed by the respondent

no. 6.

ii) Issue a writ or order in the nature of mandamus directing the respondents to stay the proceedings of recovery citation passed by the respondent no.

6.

iii) Issue a writ or order in the nature of mandamus directing the respondent no. 3/excise commissioner to decide the application filed by the petitioner

under Section 11 of the U.P. Excise act, 1910, for seeking relaxation of the condition regarding deposit of the twenty five percent of the outstanding

amount, as expeditiously as possible within time bound period as this Hon’ble court deem fit and proper.â€​

In sum and substance, case of the petitioner is that against the order passed by District Magistrate, petitioner has filed an appeal before Excise

Commissioner.

Since relevant statutory provision provides for pre-deposit of 25% of the amount of penalty as a condition for entertaining the appeal, which

however, can be waived off in appropriate cases, therefore, petitioner has moved an application for waiver off condition of pre-deposit of 25% of the

amount. According to him, the said application is pending consideration before the Appellate Authority and no order has been passed thereupon.

Since recovery citation has been issued against the petitioner, therefore it is the contention of the petitioner that in case the entire amount is

recovered from the petitioner in terms of the order passed by District Magistrate, then the very purpose of filing appeal before the Excise

Commissioner will be frustrated. Therefore, he submits that the Excise Commissioner may be directed to consider and decide petitioners application

seeking exemption from the condition of 25% and till then recovery proceedings be kept in abeyance.

The prayer made is innocuous, therefore is worth accepting.

Accordingly, the writ petition is disposed of with a direction to Excise Commissioner to consider and decide petitioner’s application under 3rd

proviso to Section 11 (2) of U.P. Excise Act and pass appropriate order, in accordance with law, as early as possible; but, not later than four

weeks’ from the date of production of certified copy of the order.

For a period of four weeks or till disposal of the said application by the Excise Commissioner, whichever is earlier, recovery proceedings initiated

against the petitioner shall be kept in abeyance.