Allahabad High Court
M/S Mcdowell & Company Limited Thru ... vs State Of U.P. Thru Secy. Excise & 3 Ors. on 6 November, 2019
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 3 Case :- MISC. BENCH No. - 4493 of 2006 Petitioner :- M/S Mcdowell & Company Limited Thru Executive Legal A.K.Gupt Respondent :- State Of U.P. Thru Secy. Excise & 3 Ors. Counsel for Petitioner :- Alok Mathur,Ishita Yadu,Niraj Gupta Counsel for Respondent :- C.S.C. Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
Heard Sri Anil Tewari, learned Senior Advocate, assisted by Sri Niraj Gupta, learned counsel for the petitioner and Sri H.P. Srivastava, learned Addl. Chief Standing Counsel for the opposite party No. 2.
Facts, in brief, of the present case are to the effect that the petitioner approached this Court by filing the instant Writ petition No. 4993 (MB) of 2006 with the following main reliefs:-
"(i) Issue a writ, order or direction in the nature of Certiorari calling for the records and quashing the impugned order dated 11th July, 2006 passed by the Excise Commissioner, U.P. and letter dated 17th July, 2006 of the District Magistrate Shahjahanpur, U.P. demanding Rupees 6,39,32,449.44 contained in Annexure No. 19 and 20 to this writ petition.
(ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents not to recover any amount from the petitioner towards the alleged demand with regards to the quantity of Indian made Foreign Liquor destroyed due to fire accident at Shahjahanpur on 10th April, 2003.
(iii) Issue a writ/order or directions in the nature of mandamus declaring Rule 7(11) of the U.P. Bottling of Indian Made Foreign Liquor Rules, 1969 as null and void and ultra vires of the U.P. Excise Act.
(iv) Issue a writ, order or direction in the nature of Certiorari calling for the records and quashing the impugned order of the State Government which was conveyed through letter dated 17.02.2004 of the Principal Secretary (Excise), Government of UP to Excise Commissioner."
On 25.07.2006, an interim order was passed by this Court, which reads as under:-
"A short counter-affidavit filed by the State is placed on record.
We have heard Sri Rakesh Dwivedi, Senior Advocate, for the petitioner, assisted by Sri Alok Mathur and Sri Gaurav Bhatia and Sri J.N. Mathur, Additional Advocate General for the State.
Sri J.N. Mathur's plea that the petitioner has a remedy to approach the State Govt. in revision, has been responded to, by the counsel for the petitioner by urging that firstly, the State Govt. has itself issued the directive for levying and realizing the duty and, secondly, the petitioner has also challenged the applicability of the Rule for realization of the duty and, therefore, once the State Govt. has issued the directive and order has been passed accordingly, approaching the Govt. would be a mere formality.
Considering the pleadings of the parties and the questions involved in the writ petition, viz. whether in a case of fire, the stock, which was destroyed in the Bonded Warehouse after manufacture and bottling, could be liable to any imposition of duty or it would be a case of loss to the Govt. which realization can be made by the Govt. if the petitioner fails to prove that he was not negligent or it is a case of realization of duty of wastage as per rule 7(11) (2) of the Bottling Rules.
We are of the view that under the circumstances, relegating the petitioner to the forum of alternative remedy is not required in the instant case, we, therefore, overrule the aforesaid objection.
Admit.
Since the notice has already been accepted by the Chief Standing Counsel and the State has also filed a short counter-affidavit, Sri J.N. Mathur says that he may be given liberty to file a detailed counter-affidavit.
Since the petition has been admitted, three weeks time is granted, as prayed for the purpose, two weeks thereafter is granted to the counsel for the petitioner to file rejoinder-affidavit.
In the meantime, in case the petitioner deposits a sum of three crores rupees, within four weeks with the Excise Commissioner, further recovery shall not be made, till further order of the Court.
List the matter on 19th September, 2006 for hearing, as prayed."
Thereafter, vide judgment and order dated 10.04.2017, the instant writ petition was allowed, with the following observations:-
"30. On the contrary, various authorities from time to time, who have visited site, have clearly reported that there was no apparent negligence on the part of petitioner. The incident was nothing but an act of God. When a fiscal liability is founded on certain condition precedent, i.e. "negligent" on the part of the person whom we have to hold responsible, then no responsibility can be fixed unless such negligence is shown to be founded on the basis of some material. Factum that building was old or the wirings were old have pointed out to be dangerous or prone to fire either by Electricity Department or Fire Department or even by Excise Authorities, who were Incharge of bonded Distillery, storage and godown.
31. Further, electrical equipments installed at the Distillery were not of good quality is also conjectures and surmises as no material was shown to fortify the same. In absence of any material to show that loss was caused on account of any negligence on the part of petitioner, we find that demand made in this writ petition is wholly illegal and cannot sustain."
As the money, which was deposited by the petitioner in compliance of the interim order dated 25.07.2006, has not been refunded by the respondents despite of the fact that the writ petition was allowed by this Court vide judgment and order dated 10.04.2017, the present application (C.M. Application No. 90936 of 2019 on behalf of the petitioner for appropriate directions) has been moved. The said application has been pressed on following points:-
"6. That in view of the fact that the order passed by the Excise Commissioner and consequential order passed by the District Magistrate Shahjahanpur have already been set aside and quashed by the Hon'ble Court there remain no justification on the part of the respondent to withhold the amount deposited by the petitioner in compliance of the interim order passed by this Hon'ble Court.
7. That it is submitted that this Hon'ble Court was pleased to direct the Petitioner to deposit Rs. 3 crore with the Respondents while granting interim relief in its favour to secure the interest of the respondents in the event the respondents succeed in the writ petition.
8. That admittedly it is the Petitioner, who has succeeded in the writ petition and the impugned demand has been held illegal and unjustified by this Hon'ble Court. However, the Respondents did not refund/adjust the said money. Thus, the Petitioner herein had filed an application being Civil Miscellaneous Application No. 89845 of 2017 on 30.08.2017 thereby seeking similar reliefs.
9. That the prayer clause of the aforementioned application suffers from some defects therefore the petitioner has been advised to not press the said application, with liberty to move a fresh application and file a fresh application."
Sri Anil Tewari, learned Senior Advocate submits that once the writ petition has been allowed, then there is no justification and reason on the part of the respondents to withhold the money, which was deposited by the petitioner in compliance of the interim order passed by this Court.
Sri H.P. Srivastava, learned A.C.S.C., on the basis of the instructions received to him, submits that the grievances of the petitioner, as raised in the present application would be decided by the opposite parties.
After hearing learned counsel for the parties and going through the record, we are of the considered opinion that the interest of justice will suffice, in the present case, if the Competent Authority/Respondent No. 2 is directed to consider and decide the application moved by the petitioner on 22.10.2019.
For the foregoing reasons, the application (C.M. Application No. 90936 of 2019 on behalf of the petitioner for appropriate directions) is allowed. The Competent Authority/Respondent No. 2 is directed to decide the application moved by the petitioner on 22.10.2019, keeping in view the fact that the money deposited by the petitioner in pursuance of the interim order dated 25.07.2006 passed by this Court and subsequently, the writ petition was allowed by this Court vide judgment and order dated 10.04.2017, thereby setting-aside the impugned demand.
The aforesaid exercise be carried out by way of a reasoned and speaking order expeditiously, say within a period of four weeks positively from the date of receipt of certified copy of this order.
In the event, if any adverse order is passed against the petitioner, it will be open to the petitioner to approach the appropriate Court.
Office is directed to consign the matter to record.
Order Date :- 6.11.2019 Arun/-