Point of law: petitioner succeeds in establishing that his Gehrukheda licence was not liable to be cancelled as he had not violated either section 34(1) (a) or (b) or (c) of the Act, the present proceedings to cancel the Majhenpurwa license would necessarily fall. However, if the Appeal Authority does reach a conclusion adverse to the petitioner (in that case), it would be for the Licensing Authority to then examine the existence or otherwise of an adequate reason or ground to exercise his extraordinary discretionary power to cancel the Majhenpurwa licence of the petitioner under Section 34(2) of the Act

Headnote:
Uttar Pradesh Excise Settlement of Licenses for Retail Sale of Country Liquor) Rules, 2020 – Rule 21 – United Provinces Excise Act, 1910 – Section 34 – Country Liquor Shop License – Cancellation of – Present petition was filed seeking quashing of the order passed by Additional Excise Commissioner (Administration) Uttar Pradesh, in Excise Appeal as well as the order passed by the Collector/Licensing Authority Fatehpur cancelling the country liquor shop license of the petitioner - at village Majhenpurwa, District Fatehpur. – Upon amendment, the petitioner has also challenged another order passed by Additional Excise Commissioner (Administration) Uttar Pradesh. – At the outset, it may be noted that the order was passed with reference to the other country liquor shop license of the petitioner at Village Gehrukheda. – That controversy has been dealt with a separate order passed in Writ- Tax decided – Therefore, the challenge raised in the present petition to the aforesaid order, is misconceived. – It is accordingly rejected.
Finding of the court: If the present writ proceedings were being finalized during the Excise Year of 2018-2019, the petitioner may have remained entitled to restoration of his Majhenpurwa license. However, since that year is long over, and the current Excise Year 2020-21 is at its end, it is provided that the orders dated 05.02.2020 and 30.10.2019 are set aside and the matter remitted to the licensing authority with a stipulation that such remanded proceedings may be recommenced, if required, only after the decision of the Appeal Authority with respect to the Gehrukheda license of the petitioner. – If no case is made out for cancellation of petitioner's Majhenpurwa license, under section 34(2) of the Act his claim for renewal of that license, if otherwise eligible, for the Excise Year 2021-22 may be considered by treating the petitioner to be a continuing licensee, on notional basis or (if the petitioner does not seek renewal, at that stage), to grant proportional refund to him in terms of section 35 of the Act, as in that case the cancellation of (17) the Majhenpurwa license would remain referable to that provision of law only. – Such proceedings be completed by 15.04.2021. – Ratio of those decisions is to the rights of the original licensee viz a viz his replacement licensee who came to be appointed after the license of the original licensee had been cancelled. – Once the license of the original licensee was restored, the replacement licensee was found to have no rights surviving with him to claim continuance of his license. – Such is not the case here. – As observed above, the Gehrukheda license stands cancelled and also, it is not clear if the Majhenpurwa license had ever been renewed for the Excise Year 2018-2019. – In any case, that Excise Year is long over. – Hence revival of that license is not warranted, at this stage.
Result: – Writ Petition Partly Allowed

JUDGMENT

1. Heard Sri V.K. Singh, learned senior counsel assisted by Sri Murtuza Ali, learned counsel for the petitioner and Sri A.C. Tripathi, learned standing counsel for the State.

2. Originally, the present petition was filed seeking quashing of the order dated 05.02.2020 passed by Additional Excise Commissioner (Administration) Uttar Pradesh, in Excise Appeal No. 95 of 2019 (Sandeep Singh Versus Collector/Licensing Authority & Another) as well as the order dated 30.10.2019 passed by the Collector/Licensing Authority Fatehpur cancelling the country liquor shop license of the petitioner - at village Majhenpurwa, District Fatehpur. Upon amendment, the petitioner has also challenged another order dated 17.06.2020 passed by Additional Excise Commissioner (Administration) Uttar Pradesh. At the outset, it may be noted that the order dated 17.06.2020 was passed with reference to the other country liquor shop license of the petitioner at Village Gehrukheda. That controversy has been dealt with a separate order passed in Writ- Tax No. 277 of 2020 decided on 19.01.2021. Therefore, the challenge raised in the present petition to the aforesaid order dated 17.06.2019, is misconceived. It is accordingly rejected.

3. Undisputedly, for the Excise Year 2018-2019, the petitioner held two country liquor shop excise licenses. One for his shop at village Gehrukheda (hereinafter referred to as the "Gehrukheda (2) license) and another for his shop at village Majhenpurwa (hereinafter referred to as the "Majhenpurwa license"). Vide order dated 25.3.2019, the Gehrukheda license of the petitioner was suspended, arising from the facts noted during an inspection dated 23.3.2019. Then, vide order dated 28.05.2019, the licensing authority proceeded to cancel both the licenses of the petitioner without any prior notice proposing to cancel the Majhenpurwa license. The order dated 28.05.2019 gave rise to two separate appeals being Excise Appeal No. 31 of 2019 (for Gehrukheda license) and Excise Appeal No. 32 of 2019 (for Majhenpurwa license). By order dated 10.08.2019, the appeal authority allowed the Excise Appeal no. 32 of 2019 and remitted that matter to the licensing authority after taking notice of the ground of challenge that no show cause notice had been issued to the petitioner before cancelling that license. Yet, the appeal authority left it open to the licensing authority to issue a fresh show cause notice in that regard. No challenge was raised to that order. It attained finality.

4. Thereafter, the licensing authority issued a show cause notice to the petitioner on 29.08.2019 proposing to cancel the petitioner's Majhenpurwa license. The notice reveals that it was issued on account of cancellation of the Gehrukheda license of the petitioner. It was consequently alleged- the petitioner's character was not good and he was guilty of violation of the Excise Act. The petitioner replied to the same vide his written reply dated 2.9.2019. Yet again, by his order dated 30.10.2019, the licensing authority cancelled the Majhenpurwa license. Against the order dated 30.10.2019, the petitioner filed Excise Appeal no. 95 of 2019. It has been dismissed vide order dated 05.02.2020 passed by Additional Excise Commissioner (Administration) Uttar Pradesh. That order is under challenge (3) here.

5. At the outset, a preliminary objection has been raised by the learned standing counsel as to the maintainability of the present petition. He submits that the order of the Additional Excise Commissioner (Administration) Uttar Pradesh is revisable before the State Government. Opposing that preliminary objection, the learned counsel for the petitioner would submit, there was neither any jurisdiction nor notice nor any legal basis to cancel the petitioner's Majhenpurwa license. Alternatively, upon the matter pertaining to Gahrukhera license being remanded, the appeal order in the present case cannot survive. The objection being raised is thus stated to be too technical to meri

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2021 Supreme(All) 178

Cases Referred (3)