Sanjay Kumar and Others vs State of Rajasthan and Others

Govind Mathur, J.—By order dated 29.7.2010, the District Excise Officer, Sriganganagar while exercising powers u/s 34 of the Rajasthan Excise Act, 1950 (for short ''the Act of 1950'' hereinafter) read with Rule 76 of the Rajasthan Excise Rules, 1956 (for short ''the Rules of 1956'' hereinafter) cancelled the licence of the Petitioners to sell the country liquor. Being aggrieved by the order aforesaid, the instant petition for writ is preferred.

This Court on 4.8.2010 passed an ex-parte interim order staying the operation of order aforseaid dated 29.7.2010 and also restrained the Respondent Excise department from making fresh auction of the shop-in-question.

An application is preferred under Article 226(3) of the Constitution of India seeking vacation of ad-interim order dated 4.8.2010. It is contended by the learned Counsel for the Respondents that the order impugned is appealable and as such, this petition for writ should not be entertained without getting the alternative remedy exhausted. Learned Counsel for the Respondents also pointed out the averments made in para No. 9 of the writ petition wherein a reason is given by the Petitioners for not availing the remedy provided under the Excise Act. As per the Petitioners, they visited the office of Commissioner (Excise) at Udaipur on 2.8.2010 whereupon an information was given that the Commissioner (Excise) was not sitting. Learned Counsel for the Respondent submits that the averments contained in para No. 9 are absolutely false, inasmuch as, the Excise Commissioner was very much available at Udiapur on the day concerned and was discharging his regular duties.

In rejoinder, the Petitioners have submitted that they alongwith their counsel visited the office of Commissioner (Excise) on 2.8.2010 whereupon they received information about non-availability of the Commissioner (Excise).

Be that as it may, without entering into the question as to whether on the day concerned, the Commissioner (Excise) was available at Udaipur or not or whether he was discharging his regular duties or not and whether the Petitioners approached any one in the office of Commissioner (Excise), Udaipur on the day concerned, I consider it appropriate to disposed of this petition for writ with a direction to the Petitioners that now avail alternative remedy available to them as per Section 9A of the Act of 1950.

Accordingly, this petition for writ is disposed of with a direction to the Commissioner (Excise), Udaipur that if the Petitioners prefer an appeal challenging the order dated 29.7.2010 passed by the District Excise Officer, Sriganganagar on or before 3.11.2010, then the same shall be considered on merits in accordance with law and shall be disposed of on or before 15.11.2010. Till then, the Respondents shall not grant licence to any one by making auction of the shop concerned in pursuant to the notice dated 29.7.2010 (Annex.-P/6).