DEEPAK GUPTA Vs. STATE OF U P

JUDGEMENT

(1.) By means of the present writ petition filed under Article 226/227 of the Constitution of India, the petitioner Deepak Gupta, seeks the following reliefs : "(a) issue a writ order or direction in the nature of certiorari to recall for the record and quash the impugned orders dated 18.8.2004, 18.9.2004, passed by the respondent No. 4 and 19.10.2004 & 3.11.2004 passed by the respondent No. 3 (contained in Annexures-7, 11, 19 and 21 respectively to the writ petition). (b) issue a writ, order or direction in the nature of mandamus commanding the respondents not to interfere with the business of country-made liquor carried on by the petitioner in his sub-shop 66 C, Jora, Nawabganj, Kanpur Nagar in any manner whatsoever till the date of expiry of the licence on 31.3.2005 and/or if renewed subsequent thereto. (c) issue any other writ, order or direction which this Hon'ble Court may deem fit and proper. (d) award costs to the petitioner."

(2.) Vide order dated 18th August, 2004, the District Excise Officer, Kanpur Nagar had directed the petitioner to shift his shop opened at 66-C, Jora, Nawabganj, Kanpur Nagar to a far off place from the Azad Nagar shop otherwise the sub-shop would be sealed. Vide order dated 18th September, 2004 the District Excise Officer, Kanpur Nagar had rejected the petitioner's representation and had reiterated the directions given in the earlier order dated 18th August, 2004. Vide order dated 19th October, 2004 the Additional Excise Commissioner had vacated the interim order dated 22nd September, 2004 and vide order dated 3rd November. 2004 the Deputy Additional Excise Commissioner had directed the District Magistrate/Licensing Officer, Kanpur Nagar to give an opportunity of hearing to the petitioner and Puneet Mutreja - respondent No. 5 and to ensure that the Jora, Nawabganj shop is in accordance with the terms and conditions contained in the order dated 9th July, 2004.

(3.) Briefly stated the facts giving rise to the present writ petition are as follows : According to the petitioner he is licensee of retail vend of country made liquor for Nawabganj area. Vide order dated 9th, July, 2004 he was permitted to open a sub-shop at 66C, Jora, Nawabganj. On some objection being raised by Puneet Mutreja respondent No. 5,' who is the licensee of country-made liquor shop for Azad Nagar area the District Excise Officer, Kanpur Nagar- respondent No. 3 passed an Order dated 18th August, 2004 directing him to remove the shop and open the sub-shop at a far off area from Azad Nagar. Feeling aggrieved by the said order the petitioner filed an objection on 21st August, 2004. It is alleged that when the respondent No, 3 did not pay any heed to the objection filed by him, he approached this Court by filing Writ Petition No. 1165 of 2004 which was disposed of vide judgment and Order dated 25th August, 2004 with the direction to the respondent No. 3 to decide the objection/representation within a week. Pursuant to the direction given by this Court, the respondent No. 3 vide order dated 18th September, 2004 had rejected the objection/representation and reiterated the earlier Order. Against the order dated 18th September, 2004 the petitioner preferred an appeal under Section 11 (1) of the U.P. Excise Act (hereinafter referred to as 'the Act'). The petitioner also filed an application for grant of interim relief. The Additional Excise Commissioner, before whom the appeal and the stay application came up for consideration, vide order dated 22nd September, 2004, stayed the operation of the order dated 18th September, 2004 while fixing the appeal for hearing on. 29th October, 2004. Puneet Mutreja -respondent No. 5 filed an application on 27th September, 2004 seeking his impleadment as also for vacating the interim order dated 22nd September, 2004. It is alleged by the petitioner that the Additional Excise Commissioner had fixed 5th October, 2004 for hearing in the applications. On 5th October, 2004, the petitioner submitted an application for seeking time for preparing and filing objection on which 14th October, 2004 was fixed. The petitioner filed his objection on 14th October, 2004 whereupon 16th October, 2004 was fixed as the date. On 16th October, 2004 it is alleged that the Additional Excise Commissioner fixed 29th October, 2004 for final disposal of the stay application along with the appeal. According to the petitioner no orders were passed on the application for impleadment on 28th September, 2004 and only the date was fixed but it appears that the Additional Excise Commissioner had allowed the impleadment application subsequently though by addition of the words in the order dated 28th September, 2004 itself. Another illegality in the exercise of power as pointed out by the petitioner is that when on 16th October, 2004, the Additional Excise Commissioner had fixed 29th October, 2004 there was no occasion to fix 18th October, 2004 on the stay vacation application. On the basis of these two illegalities it is alleged by the petitioner that the Additional Excise Commissioner had acted mala fidely and contrary to law. The petitioner further alleges that he had not received any notice in regard to the alleged subsequent preponing the date for disposal of the application as 18th October, 2004 and, therefore . could not appear and make his submission on the application for vacating the interim Order. The interim order has been vacated vide Order dated 19th October, 2004, which is illegal and liable to be set aside having been passed in gross violation of the principles of equity, fair play and natural justice. Subsequently, after hearing the parties, the Additional Excise Commissioner vide order dated 3rd November, 2004 had allowed the appeal and had directed the District Magistrate/Licensing Officer. Kanpur Nagar to decide the question of opening of sub-shop and its location in terms of the order dated 9th July, 2004.