Back
1970 Supreme(All) 150
Allahbad High Court
R.S.PATHAK,R.L.GULATI
Sushil Chandra - Appellant
Versus
The State of U.P. - Respondent
Decided On : 11/30/1970
V.P. Mishra and R.R. Agarwal, for Appellants; Standing Counsel, for Respondent.
Headnote:
EXCISE - Location of shop - Power of State Government - Principles of natural justice - Applicability.
Fact of the Case:
Appellants were the highest bidders for an excise shop in Lucknow. The District Excise Officer accepted their bid, and they purchased the necessary furniture and fittings and the remaining country liquor from the previous licensee. However, the State Government ordered the closure of the shop, and the appellants' license was not granted. The appellants filed writ petitions challenging the closure order and the refusal to grant the license.
Finding of the Court:
The court held that the State Government had the power to close the shop, even before a license had been granted, and that the appellants had no right to a hearing before the closure decision was made. The court also held that the principles of natural justice did not apply in this case, as the decision to close the shop was an administrative one.
Issues: 1. Whether the State Government had the power to close the excise shop before a license had been granted. 2. Whether the appellants had a right to a hearing before the closure decision was made. 3. Whether the principles of natural justice applied in this case.
Ratio Decidendi: 1. The court held that the State Government had the power to close the excise shop before a license had been granted, based on the following provisions of the U.P. Excise Act, 1910: - Section 10(2) gives the State Government the power to appoint an Excise Commissioner who has control over the administration of the Excise Department. - Section 35(1) allows the authority granting a license to cancel it for any cause other than those specified in Section 34, either with 15 days' notice or forthwith without notice. 2. The court held that the appellants had no right to a hearing before the closure decision was made, as the decision was an administrative one. The court noted that the principles of natural justice cannot override the effect of statutory provisions and rules, and that the statute may exclude the operation of one or the other principles of natural justice.
Final Decision: The court dismissed the appellants' appeals, holding that the State Government had the power to close the excise shop before a license had been granted, that the appellants had no right to a hearing before the closure decision was made, and that the principles of natural justice did not apply in this case.
GULATI, J. :- This and the connected Special Appeal arise out of Civil Misc. Writ Nos. 1370 and 1600 of 1970 decided by a learned Single Judge of this Court by a common judgment dated September 30, 1970, both filed by the appellants in these appeals.
2. Briefly stated the facts are these. Sometime in the month of February, 1970, the District Excise Officer, Lucknow, took a decision that the excise shop situated in Ganneywali Gali in the city of Lucknow shall continue to be at its old place and that shop along with others was auctioned on February 26, 1970. The appellants were the highest bidders, their bid being for a sum of Rs. 4,28,000/-. The bid was accepted by the District Excise Officer, Lucknow. The appellants complied with the conditions of the auction and on 31st March, 1970 purchased from the previous licensee all the furnitures and fittings of the shop and also the balance of the country liquor which remained unsold in the shop. Their licence was to start from April 1, 1970 and was to continue in force upto March 31, 1971. According to the appellants, Sushil Chander, appellant No. 1, went to the office of the District Excise Officer on April 1, 1970, to collect a provisional licence which is issued in accordance with the normal practice pending the final sanction of the bid by the Excise Commissioner. The provisional licence, however, was not granted to him because of certain instructions received from the Government. An order dated 31st March, 1970 was served upon the appellants to shift the shop by May 1, 1970, and in case that was not done, the shop was to be closed. Later on the same day another order was served upon the appellants requiring them to close the shop forth with. Thus the appellants' shop was not allowed to function.
3. Thereupon on April 7, 1970, the appellants filed Civil Misc. Writ No. 1370 or 1970, against the order of the District Excise Officer requiring the appellants to shift their shop to some other place. On April 13, 1970, a learned Single Judge of this Court passed the following ex parte interim stay order :
"Till further orders of this Court, the respondents are restrained from interfering with the petitioners selling country liquor in the existing shop, provided the petitioners are otherwise entitled to sell country liquor but without taking into account the order directing to shift their shop. The respondents will be at liberty to move this Court at any time for vacating this order, if necessary."
According to the petitioners' allegation when they received on April 21, 1970 a copy of the counter-affidavit filed on behalf of the Excise Department, they found a mention therein of an order of the State Government dated April 1, 1970, a copy whereof was annexed to the counter-affidavit as Annexure 'C-A.1', directing the District Magistrate, Lucknow, to close the appellants' shop forthwith. The appellants have alleged that this order of the State Government was not served upon them and they came to know of it for the first time on April 21, 1970, when a copy of the counter-affidavit was served upon them. This led to the filing of the second Writ Petition No. 1600 of 1970 which was filed on April 23, 1970 and was directed against the order of the State Government dated April 1, 1970 requiring the appellants to close their shop forthwith.
4. In the meantime the Excise Commissioner passed an order dated April 29, 1970, refusing to accept the appellants' bid on the ground that the Government having already closed the shop with effect from April 1, 1970, the question of the approval of the bid did not arise. Thereupon the appellants moved an application for amendment of the Writ Petition No. 1600 of 1970 and as a result of the amendment allowed by the Court on May 21, 1970, the order or the Excise Commissioner dated April 29, 1970 was also challenged and a prayer was added for quashing that order of the Excise Commissioner. The appellants also moved an application dated May 7, 1970 for an i
