Uttarakhand High Court
Rajendra Singh Rawat vs State Of Uttarakhand & Others on 1 April, 2019
Equivalent citations: AIRONLINE 2019 UTR 131
Author: Alok Singh
Bench: Alok Singh
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No.866 of 2019 (M/S)
Rajendra Singh Rawat ....Petitioner
vs.
State of Uttarakhand & others .....Respondents
Mr. Sandeep Kothari, Advocate for the petitioner.
Mr. M. S. Bisht, Brief Holder for the State of Uttarakhand.
Hon'ble Alok Singh, J.
1) By means of present writ petition, the petitioner seeks to issue a writ, order or direction in the nature of certiorari to quash the notice dated 23.10.2018 issued by the Collector, District Nainital and its consequential orders as well as the recovery citation dated 12.03.2019 issued by respondent authorities.
2) The State of Uttarakhand has promulgated the excise policy on 19.03.2018 and, as per the policy, the revenue target for District Nainital has been set as Rs.224 crores. Considering the revenue target for the settlement of shops, including country liquor and Indian-made liquor shops, the revenue was distributed amongst the shops and the revenue for the Indian- made liquor shop Mauna was fixed at the rate of Rs.73,70,000/- w.e.f. 01.05.2018 till 31.03.2019. Petitioner preferred online offer of Rs.1,21,63,273/- and being the highest bidder, he was allotted the shop for the total revenue of Rs.1,21,63,273/-, including licence fees. Later, it was realized that it was an inadvertent mistake to bid such high revenue for the shop in question, in as much as the sale in the said shop was not worth.
2Thereafter, the petitioner made a request to surrender of the licence. On 07th June, 2018, the shop was cancelled.
3) Learned counsel for the petitioner submits that the total revenue fixed by the Government for the shop was Rs.73,70,000/-; petitioner had deposited a sum of Rs.23,11,378/-; as against the total revenue of shop, there was a deficit of Rs.50,58,722/- as per the revenue target of Rs.73,70,000/-; and there is no provision of any recovery of the shortfall of the revenue. But, in support of his contention, learned counsel for the petitioner has not illustrated as to how and in what manner, the petitioner has calculated the amount of shortfall of the revenue and it would be very difficult to make out the exact shortfall of the revenue.
4) Learned Brief Holder for the State raised a preliminary objection and submits that since an efficacious alternative remedy is available to the petitioner under Section 11 of the U.P. Excise Act, 1910, hence, present petition under Section 226 of the Constitution of India is not maintainable.
5) It would be apt to reproduce the provisions of Section 11 of the U.P. Excise Act, 1910, which reads as follows:-
"11. Appeals and revisions. - (1) The Collector and every other Excise Officer (not being the Excise Commissioner) shall, in respect of all proceedings under this Act, be subject to the control of the Excise Commissioner and all orders passed by Collector or such other officer under this Act, shall be appealable to Excise Commissioner in the manner prescribed by rules made by the State Government in this behalf:
Provided that no appeal shall be entertained under sub-section (1) unless it is preferred by the aggrieved person within thirty days from the date of communication of such order, and unless the appellant has furnished satisfactory proof of having paid a sum of not less than 25 per cent of the disputed amount of tax, fee, penalty or other dues, if any, as the case may be:
Provided further that the appellate authority may, for special and adequate reasons to be recorded 3 in writing waive or relax the requirements of the preceding proviso in respect of such disputed amount of tax, fees, penalty or other dues.
(2) State Government may either suo motu or on an application by an aggrieved person call for and examine the records relating to any order passed in any proceedings under this Act, for the purposes of satisfying itself as to the correctness, legality or propriety of any such orders or as to the regularity of such proceedings; and, if in any case it appears to the State Government that such order or proceedings should be modified, annulled, reversed or remitted for reconsideration it may pass orders accordingly:
Provided that no order adversely affecting any party shall be passed under this section unless he has been given a reasonable opportunity of making his representation:
Provided further that no application under this sub-section shall be entertained unless it is preferred within thirty days from the date of the order of the Excise Commissioner and unless an appeal, where it lies, has been filed and disposed of by the Excise Commissioner:
Provided also that no application for revision shall be entertained unless the applicant has furnished satisfactory proof of having paid a sum of not less than 25 per cent of the disputed amount of tax, fee, penalty or other dues, if any, as the case may be:
Provided also that the State Government may, for reasons to be recorded in writing waive, or relax the requirement of preceding proviso in respect of such disputed amount of tax, fees, penalty or other dues."
[Emphasis supplied]
6) Perusal of the provisions of Section 11 of the U.P. Excise Act, 1910 manifests that the Collector and every other Excise Officer shall, in respect of all proceedings under the Act, be subject to the control of the Excise Commissioner and all orders passed by the Collector or such other officer under the Act, shall be appealable to the Excise Commissioner. A reading of Section 11 manifests that the word 'shall' is mandatory in nature.
Meaning thereby, the order passed by the Collector shall be appealable to the Excise Commissioner. It further provides that no appeal shall be entertained under sub-section (1) of Section 11 unless the aggrieved person / appellant has furnished satisfactory proof of having paid a sum of not less than 25 per cent of the disputed amount of tax, fee, penalty or other dues.
4Sub-section (2) of Section 11 provides that a representation against the orders of the Excise Commissioner can be presented to the State Government by whom the merits and demerits of the case would be examined.
7) Keeping in view the above discussions, this Court is of the considered view that the petitioner could not be permitted to abandon or by pass that remedy and invoke the jurisdiction of the High Court under Article 226 of the Constitution of India, when he had an efficacious and adequate remedy open to him by way of appeal/revision before the Excise Commissioner.
8) Consequently, the writ petition fails and is hereby dismissed. However, the petitioner is at liberty to seek appropriate remedy available under Section 11 of the U.P. Excise Act, 1990. No order as to costs.
(Alok Singh, J.) Dated Rawat 01st April, 2019