Mahesh Narain Singh vs State of U.P. and Others

M. Katju and Onkareshwar Bhatt, JJ.—Heard Sri Vineet Saran, learned Counsel for the Petitioner and Sri V.B. Upadhyaya, learned senior advocate as well as learned Chief Standing Counsel for the Respondents.

The Petitioner has challenged the impugned order of the Excise Commissioner, U.P. dated 7.2.2001, Annexure-4 to the petition. Without going into the merits of the controversy, we are of the opinion that u/s 11(2) of the U.P. Excise Act (hereinafter referred to as (''the Act'') the Petitioner has an alternative remedy to approach the State Government against the impugned order. A perusal of Section 11(2) of the Act shows that it is very widely worded. Section 11(2) of the Act states as under:

The 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 proceeding 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 proceeding 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.

A perusal of this provision shows that the State Government may examine the record relating to any order passed in any proceeding under this Act, for the purposes of satisfying itself as to the correctness, legality or propriety of any such order and may thereafter modify, annul, reverse or remit such order for reconsideration of such order.

Learned Counsel for the Petitioner submitted that the order dated 7.7.2001 is infact an order of the State Government or on the direction of the State Government. We do not agree. The learned Counsel for the Petitioner has himself submitted that he is not challenging any policy of the State Government. If the Petitioner is not challenging the policy of the State Government, it is difficult to understand how we can say that the Impugned order has been passed by the State Government or on the direction of the State Government. In fact it is nowhere mentioned in the writ petition that the impugned order has been passed by or on the direction of the State Government. There is no such averment in the writ petition.

Even assuming that the impugned order was passed by, or on the direction of the State Government, we are of the opinion that the Petitioner can still approach the State Government u/s 11(2) of the Act against that order.

In Kesar Enterprises Ltd. v. State of U.P. W.P. No. 323 of 2000, decided on 22.5.2000. a Division Bench of this Court held that u/s 11(2), the State Government can reconsider its own order. The Bench observed:

A perusal of Section 11(2) shows that the State Government, can examine the record relating to any order passed in any proceeding under this Act for the purposes of satisfying itself as to the correctness, legality or propriety of any such order. This power of the State Government u/s 11(2) is thus not limited to examining orders of authorities subordinate to the State Government: it can, examine and correct or modify/annul even its own order. Since Section 11(2) states that the State Government can examine records relating to any order passed in any proceedings under this Act this obviously means that it can examine even its own order for satisfying itself as to the correctness, legality or propriety of any such order 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, or reversed it can do so.

In our opinion Section 11(2) enables the State Government to modify or annul its own order and its power is not limited to considering orders of subordinate authorities.

In Titaghur Paper Mills Co. Ltd. and Another Vs. State of Orissa and Others, and Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. and Others, The Supreme Court observed that, particularly in tax matters, there should be no short-circuiting of the alternative remedy. Hence we dismiss the writ petition on the ground of alternative remedy to the Petitioner u/s 11(2) of the U.P. Excise Act. However, if the Petitioner files, such representation u/s 11(2) to the State Government within 10 days from today the same will be entertained without any objection as to limitation and the same shall be decided preferably within three weeks thereafter after hearing the parties concerned in accordance with law by a speaking order.