The flexibility of natural justice as a tool in reaching justice and the need for valid grounds to question official notices and decisions.

JUDGMENT :

The challenge in this petition is made to an order dated 18.07.2023, passed by the respondent no.3, Excise Commissioner, State of Uttarakhand (“the Commissioner”), by which, an appeal preferred by the petitioner against the demand notice dated 09.05.2023 has been rejected.

2. Heard learned counsel for the parties and perused the record.

3. At the very outset, learned State counsel would submit that a revision may be preferred against the impugned order.

4. Learned counsel for the petitioner would submit that the Excise Commissioner and Secretary are one and the same person. Therefore, the same person may not hear the revision against the order passed by him in appeal. During the course of hearing, learned counsel would refer an order dated 19.09.2023 of the Government of Uttarakhand, by which, for the purpose of hearing appeal, review and suo motu appeal under Section 11(2) of the Excise Act, 1958 (“the Act”) a Secretary has been nominated. He would submit that the earlier order was revised by the State Government on the same date i.e. on 19.09.2023 and now, revisions may also be heard by the nominated Secretary, who is other than the Secretary Excise.

5. This Court refrains to make any comment on the order dated 19.09.2023 of the State of Uttarakhand and its corrigendum because it authorizes the Secretary to hear the appeal under Section 11(2) of the Act also. There is no appeal that is preferred under Section 11(2) of the Act. Section 11(2) of the Act speaks of revision. Why separate persons have not been appointed to decide the appeal and revision under Section 11 of the Act, it is not, in fact, clarified. The Court proceed to hear the petition.

6. It is the case of the petitioner that he was allotted a liquor shop for a period from 01.04.2021 to 31.03.2022 at Kashipur No.3, Near Awas Vikas. The liquor shop operated till 31.03.2021. Thereafter, due to COVID-19 Pandemic, it could not continue. According to the petition thereafter, a flyover was constructed, which blocked the road and it reduced the sale further. According to the petitioner, he made a request to the District Magistrate, Udham Singh Nagar (the respondent no.5) bringing his difficulty to his notice, but no action was taken on that communication. Thereafter, a demand notice was issued on 09.05.2023 by the District Excise Officer, Udham Singh Nagar against the petitioner, which was challenged by the petitioner in the appeal before the Excise Commissioner, which has been rejected by the impugned order.

7. It is the case of the petitioner that the petitioner did receive a notice for hearing of the appeal on 22.07.2023, but suddenly, the appeal has been decided on 18.07.2023 on the ground that the petitioner telephonically agreed for the disposal of appeal on that date. Therefore, according to the petitioner, the impugned order is bad in the eyes of law.

8. Learned counsel appearing for the petitioner would submit that after allotment of the liquor shop, the petitioner run his business till 31.03.2021, but thereafter due to COVID-19 Pandemic, he could not run his business. Further, due to construction of a flyover near the location, according to the learned counsel for the petitioner, the sale has adversely been effected, which further dip his financial capacity. He could not pay dues to the department. Therefore, a demand notice was issued on 09.05.2023, which was challenged in the appeal.

9. Learned counsel for the petitioner has serious objections to the pre-poning of the appeal by the Excise Commissioner. Learned counsel would submit that the date fixed in the appeal was 22.07.2023 and without affording any opportunity of hearing, appeal has been decided, which is in violation of the principles of natural justice. The petitioner ought to have been given adequate opportunity of hearing in the appeal. He would submit that the petitioner never agreed for decision of the appeal on 18.07.2023, as recorded in para 4 of the impugned order.

10. The Court offered an opp