RAM DULAREY TIWARI Vs. STATE OF U P

JUDGEMENT

(1.) The petitioner Ram Dularey Tiwari has prayed for a writ. order or direction in the nature of certiorari for quashing the order dated 22.3.2004 of the Excise Commissioner, U. P. Allahabad and the order dated 22.4.2004 of the State Government and also the order dated 20.4.2004 passed by District Excise Officer, Annexures-4, 6 and 8 to the writ petition. A writ in the nature of mandamus directing the respondent to renew the licence of the petitioner for foreign liquor shop Jajmau, District Kanpur Nagar and to restrain the respondents from interfering in the running of the business in any manner has also been prayed for.

(2.) The petitioner was granted a licence of foreign liquor shop for the financial year 2002-03 at Jajmau, District Kanpur Nagar. The said licence was renewed for the financial year 2003-2004. The petitioner applied for and was granted permission to take respondent No. 5 Sudeep Shukla as partner of the retail shop after depositing the necessary fee as provided by the U. P. Excise Settlement of Licence for Retail Sale of Foreign Liquor (Excluding Beer and Wine) Rules, 2001 (hereinafter referred to as "the Rules"). It appears that shortly after taking the respondent No. 5 in the business a dispute has arisen in between the petitioner and the respondent No. 5 and the said dispute is still continuing in between them. However. after the close of the financial year, the petitioner alone applied for renewal of the licence in accordance with the aforesaid Rules, 2001, vide Annexure-7 to the writ petition. The petitioner has also deposited a sum of Rs. Nine lacs twenty thousand for renewal of the licence for the excise year 2004-2005 as per aforesaid Rules. The Excise Commissioner vide its order dated 22.3.2004 has refused to renew the licence in the name of the petitioner solely, on the ground that in view of Rule 8 (f) of the aforesaid Rules, Sri Sudeep Shukla, respondent No. 5 has acquired the partner's status right and as such without his consent it would not be proper to renew the licence for the financial year 2004-05 without his consent. This order has been confirmed by the State Government vide order dated 22.4.2004 filed as Annexure-6 to the writ petition. On account of the dispute in between the petitioner and the respondent No. 5 shop remained close. The District Excise Officer issued a show cause notice dated 20.4.2004 vide Annexure-8 for taking an action against the petitioner and the respondent No. 5 for keeping the shop closed unnecessarily. Challenging the aforesaid orders this writ petition has been filed.

(3.) Heard the counsel for the parties and perused the record. The respondent No. 5 had filed a caveat and was granted time to file the counter-affidavit. He has filed the counter-affidavit and the petitioner has filed the rejoinder-affidavit. The respondent Nos. 1, 2, 3 and 4, officials of the Excise Department, have chosen not to file any counter-affidavit for the reason best known to them. Copy of the writ petition was served in the office of the learned standing counsel to file counter-affidavit on 28.4.2004 before the hearing of the writ petition for admission. The writ petition was taken up for admission on 30.4.2004. The time was again granted to the learned standing counsel to file counter-affidavit with the clear stipulation that if no counter-affidavit is filed by the department no further time shall be granted to the learned standing counsel. The office of the department is situate at Allahabad itself and the learned standing counsel has submitted that in spite of the communication sent by him to the department, the officials of department have not taken care to file a counter-affidavit and as such he can only argue the matter on the basis of the material already existing on the record. Looking to the urgency of the matter, petitioner as well as respondent No. 5, both express desire for early disposal of the writ petition. Consequently the writ petition was finally heard as only a limited question of law regarding interpretation of the aforesaid Rules, 2001 is involved.