Allahabad High Court
Sita Ram Sheoharey And Others vs State Of U.P. And Others on 20 January, 2000
Equivalent citations: 2000(2)AWC1022
JUDGMENT
Ravi S. Dhavan and Aloke Chakrabarti, JJ.
1. Insofar as the litigation is concerned, tt is terminal after the decision of the Supreme Court dated 17th September, 1996 when the appeals filed by the State of Uttar Pradesh against the Judgment and order of the Division Bench of the High Court at Allahabad dated 23rd November, 1983 were dismissed. The issue related to the grant of the licences for wholesale vend of the Indian made foreign liquor in Form FL 2 on payment of fixed fee in accordance with the U. P. Excise Manual so framed under the United Provinces Excise Act, 1910. The licences were effective from 1st April. 1993 to 31st March. 1994. Two and half months after the licences had been granted, i.e., a contract between the licencees and the State of Uttar Pradesh was complete, a notification dated 25th May. 1983 was issued required the licensees to pay. assessed fee. in addition to licence fee. The licence fee had already been paid and deposited. This action under the notification was resisted by the petitioners by several writ petitions. The writ petitions were allowed by the judgment dated 23rd November, 1983. The Division Bench held that :
"In the result, all the petitions succeed and are allowed. The respondents are directed not to realise any assessed fee from the petitioners who were granted licences in Form F.L. '2' prior to 25th of May, 1983 on the basis of the scale mentioned either in Paragraph '642' of the U. P. Excise Manual or that mentioned in the notification under Section 30 of the U. P. Excise Act Issued by the State Government on 25th 6f May. 1983. The security furnished by various petitioners in this regard under the interim orders passed by this Court are discharged. We direct the parties to bear their own costs."
2. The Division Bench, in effect, held that the licences granted to the petitioners will hold for the duration granted and that no assessed fee was to be realised. The State of Uttar Pradesh filed special leave petitions before the Supreme Court. The appeals of the State of Uttar Pradesh were dismissed by the Judgment of the Supreme Court dated 17th September. 1996. In between the assessee fee which had been realised. became the subject-matter of directions by the Supreme Court that this assessed fee would be refunded. The refund was to be made with interest at the rate of 18%.
3. The State of Uttar Pradesh did not accept the judgment on the special leave petitions being dismissed as final. A review application was filed. The review application of the State of Uttar Pradesh was rejected by the Supreme Court on 28th January, 1997. The refund which was ordered by the Supreme Court was not being honoured by the State of Uttar Pradesh with the result that the petitioners complained to the Supreme Court by a Contempt Petition (Civil) No. 450-451 of 1997, Bharat Kochar and another v. G. P. Verma and others, that after they had "succeeded before the Supreme Court and the Supreme Court dismissed the special leave petitions and yet another attempt to review the judgment did not succeed the direction of the Supreme Court to refund the amount is not being adhered to. Notices were issued to the State of Uttar Pradesh on this contempt petition. Notices were discharged on an undertaking given on behalf of the State. The order regarding this undertaking on behalf of the State of Uttar Pradesh Is dated 1st December. 1998. Not satisfied with the order of the Supreme Court dismissing the review application, the State of Uttar Pradesh also filed a clarification application dated 28th May. 1997. This clarification application was, in effect, a second review petition, not entertained and was consigned by a communication of the Supreme Court registry dated 28th July. 1997. For the State of Uttar Pradesh the controversy was not over even now.
4. The state of the record by thus : The special leave petitions had been dismissed. There were directions to refund the money which was not refunded and this gave rise to contempt proceedings before the Supreme Court. Notice of motion were issued on the contempt petition but was discharged when an undertaking was given by the Additional Advocate General, U. P. The directions to refund the amount was attempted to be thwarted by moving a review petition. This was rejected. Subsequently, a clarification application was moved which was not entertained. The State of Uttar Pradesh now resorted to negating the orders of the Supreme Court and the High Court by taking out an Ordinance (U. P. Excise (Amendment) Ordinance. 1998). which later became an Act (U. P. Excise (Amendment) Act. 1998) (hereinafter referred to as "the Act").
5. The purpose of the Ordinance was clear. The Slate of Uttar Pradesh was not accepting the decision of the Supreme Court. It was a foregone conclusion that this Ordinance would subsequently become an Act, which it has. By the time notices on the contempt petition were being discharged, the Supreme Court was aware of what the State of Uttar Pradesh had done in its attempt to nullify and negate the order of the High Court and the Supreme Court by resorting to its Ordinance making power. Notwithstanding the Ordinance, the Supreme Court gave directions that refund be made to the licensees of assessed fee which has been wrongly charged.
6. The Supreme Court observed that insofar as recovery of this amount is concerned, the State of Uttar Pradesh shall be entitled to take steps as are available to Jt under the law. Simultaneously, the Supreme Court observed that if the occasion so arises, the petitioners would be entitled to challenge such steps before the High Court. This was the order of the Supreme Court dated 10th November, 1998 discharging the contempt proceedings and accepting the undertaking to pay.
7. The State of Uttar Pradesh was not refunding the amount. Thus, the present writ petitions were filed. During the course of the writ petitions, bank draft were issued. But, while bank drafts were issued, simultaneously, the department concerned, i.e., the Excise Commissioner, issued instructions to the bankers to stop payment. On these pending writ petitions, the Court passed its order dated 29th September, 1999 Civil Misc. Writ Petition No. 370 of 1999, Sita Ram Sheoharey and others v. State of Uttar Pradesh and others. This order is a composite order and notices the entire facts. The only thing missing in that order is a fact which was not given to Court that time. This fact is also not mentioned in the Objects and Reasons of the Ordinance. The record as it stood noticed, whether the Objects and Reasons or the order of the High Court dated 29th September, 1999, relates to the dismissal of the special leave petitions filed by the State of Uttar Pradesh. the review petition filed by the State of Uttar Pradesh and discharge of the contempt proceedings upon which notices were issued to the State of Uttar Pradesh and consigned upon the undertaking of the State of Uttar Pradesh. There was a fourth attempt also made by the State of Uttar Pradesh in filing a clarification application dated 28th May. 1997 not entertained by the Supreme Court and so indicated to the State of Uttar Pradesh by the Registrar General by communication dated 24th July, 1997. The State of Uttar Pradesh was still reluctant to refund payment of assessed fee irregularly charged to the petitioners as licensees for wholesale vend of Indian made foreign liquor in Form FL 2. Refund was made by bank drafts but simultaneously the banks were advised not to make payment and proceedings were taken out to recover the amount as arrears of land revenue in cases where assessed fee had been paid. These aspects are noticed in the detailed order of the High Court dated 29th September. 1999. The facts and circumstances, as are noticed In this order, may be treated as a prelude to the proceedings now before the Court; In the order of 29 September. 1999. as a formality, the Court Issued notices to the learned Advocate General, U. P. The order of the High Court dated 29th September, 1999 has not been challenged by any party before the Supreme Court, as of date, though three and half months have passed since the order has been rendered.
8. In between the order of 29th September. 1999 and as of date, the petitioners contend and it is accepted by the learned chief standing counsel that the payments have been made to the petitioners again. If this in itself would have been the end of the matter, these matters would have ended. But the submission before the High Court has been that given the occasion the State of Uttar Pradesh will effect recoveries under the Act. If that be the case, then the matter has not ended. Clearly, the dismissal of the Special Leave Petitions, the review application, the clarification application and the discharge of contempt proceedings on an undertaking means nothing to the State of Uttar Pradesh.
9. It is on this that the petitioners have contended that the situation is dangerous as affecting the rule of law that the State of Uttar Pradesh not acknowledging the discipline of the Constitution of India after the decision of the highest Court of the land, the judgment of the High Court and several orders of the Supreme Court are of no value. On this, it is necessary for the Court to notice certain aspects of the record. For instance, in the clarification application, not referred to by the State of Uttar Pradesh in prior pleadings, the purpose of bringing in an Ordinance has been indicated. It is two fold. In the clarification application. It is mentioned that fa) the petitioners have taken advantage to unjustly enrich themselves on their licences by not paying additional assessed fee and (b) by the legislation which has been brought by the State of Uttar Pradesh, the purpose is to negate and nullify the order of the Division Bench. The relevant paragraph in the clarification application is reproduced so that there is no misunderstanding on the record on what the intention of the Ordinance, later to become the Act, was :