Rupendra Singh vs State of U.P. and Others

Satya Poot Mehrotra and Zaki Ullah Khan, JJ.—The present writ petition has been filed by the petitioner, inter alia, praying for quashing the Order dated 3rd November, 2012, whereby the licence issued to the petitioner under the relevant provisions of the U.P. Excise Act, 1910 read with the relevant provisions of the Uttar Pradesh Excise Settlement of Licences for Retail Sale of Foreign Liquor (Excluding Beer and Wine) Rules, 2001, has been cancelled. From the averments made in the writ petition, it appears that for the year 2012-13, the petitioner was having licence under the aforesaid provisions for retail sale of Foreign Liquor (excluding Beer and Wine). By the impugned order dated 3rd November, 2012, the said licence has been cancelled by the Collector/Licensing Authority, Firozabad in exercise of his powers u/s 34(2) of the U.P. Excise Act, 1910 read with the relevant provisions of the aforesaid Rules, particularly Rule 18(2) thereof.

We have heard Sri S.N. Yadav, learned counsel for the petitioner and the learned standing counsel appearing for the respondent Nos. 1, 2 and 3.

Learned standing counsel appearing for the respondent Nos. 1, 2 and 3 has raised a preliminary objection that against the impugned order cancelling the licence granted to the petitioner under the relevant provisions of the U.P. Excise Act, 1910 read with the relevant provisions of the aforesaid Rules, the petitioner has an alternative remedy of filing appeal under sub-section (1) of Section 11 of the U.P. Excise Act, 1910 before the U.P. Excise Commissioner.

In the circumstances, the submission proceeds, no interference is called for by this Court in exercise of its writ Jurisdiction under Article 226 of the Constitution of India.

Sri S.N. Yadav, learned counsel for the petitioner submits that existence of alternative remedy is not an absolute bar to the entertainment of writ petition under Article 226 of the Constitution of India, and the writ petition may be entertained despite existence of such alternative remedy.

We have considered the submissions made by the learned counsel for the parties.

Section 11 of the U.P. Excise Act, 1910 provides as under:

[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 the Excise Commissioner in the manner prescribed by rules made by the State Government in this behalf:

Provided that no appeal shall be entertained under this sub-section 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 percent 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) 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 to 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, have 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 percent 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 requirements of the preceding proviso in respect of such disputed amount of tax, fees. penalty or other dues.]

A perusal of the above-quoted Section 11 shows that against the orders passed by the Collector, Appeal lies to the Excise Commissioner under sub-section (1) of the said Section.

Sub-section (2) of Section 11 of the said Act gives power of revision to the State Government in respect of any order passed in any proceeding under the said Act.

Second Proviso to sub-section (2) of Section 11 lays down that no application under sub-section (2) shall be entertained unless the appeal, where it lies, has been filed and disposed of by the Excise Commissioner.

It is thus, evident that against the impugned order dated 3rd November, 2012, the petitioner has an alternative remedy of filing appeal before the Excise Commissioner, and thereafter, a further remedy of filing Revision before the State Government.

Having regard to the facts and circumstances of the case and having considered the submissions made by the learned counsel for the parties and keeping in view the nature of controversy involved in the present case, we are of the opinion that it will be appropriate that the petitioner be relegated to the alternative remedy available to the petitioner u/s 11 of the U.P. Excise Act, 1910. The writ petition is liable to be dismissed on the ground of availability of alternative remedy to the petitioner, and the same is dismissed on the said ground.