ABHINEET MANI TRIPATHI Vs. STATE OF U P

JUDGEMENT

(1.) The dispute pertains to the grant of license for retail vend of Foreign liquor at Asuram Chowk and Kusmahi Bazar in the district of Gorakhpur. The petitioner was granted a license by the District Magistrate, Gorakhpur, to vend Foreign liquor from aforesaid two shops for the excise year 2002- 03 In the next Excise year i.e. 2003- 04 the policy of the State Government to grant excise license was changed. The State Government now decided to grant excise shop by way of renewal to the existing licensees of the excise year 2002- 03. The petitioner in pursuance of the aforesaid excise policy applied for and was granted renewal of the license for the excise year 2003- 04. The grant of said renewal of license in favour of the petitioner was challenged by respondent No. 4 Sri Rakesh Shukla, by filing Civil Misc. Writ Petition No. 528 of 2003 in this Court, which was disposed of by order dated 4-4-2003 with a direction to the authority concerned to decide the representation of the petitioner therein namely Sri Rakesh Shukla, who is respondent No. 4 in the present petition. The matter was ultimately reached to the licensing authority namely the Collector, Gorakhpur, who by his order dated 23-4-2004 held that the present petitioner had obtained a license for the excise year 2002- 03 by concealing material facts and in violation of the rules namely ' The U.P. Excise (Settlement of License for Retail Sale of Foreign liquor) (Excluding Beer and Wine) Rules, 2002 (for short called as Rules, 2002), as amended from time to time. He found that the present petitioner was benamidar of Sri Rakesh Shukla and Sri Rakesh Shukla is the ultimate beneficiary of the license and such transaction is not permissible under the aforesaid Rules. He, therefore, by the said order dated 23-4-2004, besides canceling the license of the petitioner also ordered that these shops may be settled by draw of lottery by inviting applications from the open market. Feeling aggrieved against the aforesaid order only the present petition preferred Excise appeal No. 38 of 2001 before the Additional Excise Commissioner, U.P., Allahabad under Section 11(1) of U.P. Excise Act, 1910. During the pendency of aforesaid appeal, the Excise department through publication in the news-paper invited applications for the grant of license from public at large. Two persons namely Sri Navin Jaiswal and Sri Subhash Chandra respondents No. 5 and 6 herein, referred hereinafter as the contesting respondents were granted license to run the aforesaid two shops for the remaining part of the excise year 2003- 04. It is also not in dispute that the licenses of the contesting respondents were renewed for the next excise year i.e. 2004- 05, 2005- 06 and 200607

(2.) In the aforesaid departmental appeal No. 38 of 2001 the contesting respondents besides Sri Rakesh Shukla were impleaded as respondents No. 4 and 5 as parties. The Additional Excise Commissioner by order dated 1-4-2005 allowed the appeal and set aside the order passed by the Collector, cancelling the license of the petitioner for the aforesaid two shops with the further direction that the license of the petitioner shall be deemed to continue for the excise year 2000506 on the enhanced license fees as per policy of the State Government.

(3.) The aforesaid order was ultimately challenged on merits by way of revision under Section 11(2) of U.P. Excise Act, 1910 before the State Government. Three revisions were preferred. Revision No. 20 of 2005 was filed by Sri Navin Jaiswal , respondent No. 5, the revision No. 21 of 2005 was filed by Sri Suresh Chandra, respondent No. 6 and Sri Rakesh Shukla, who was instrumental in getting the proceedings initiated against the petitioner claiming himself to be the real license holder also filed being revision No. 34 of 2005. All the three revisions were heard and initially disposed of by order dated 10-5-2005. The State Government allowed the revisions filed by the contesting respondents and it dismissed the revision filed by Sri Rakesh Shukla. This led filing of the two writ petitions in this Court being Civil Misc. Writ Petition No. 942 of 2005 Abhineet Mani Tripathi v. Secretary, Excise department, U.P. Shasan Lucknow and Ors. and Writ Petition No. 958 of 2005 Rakesh Shukla v. State of U.P. and Ors.. This Court by judgment dated 1-7-2005 disposed of both the writ petitions quashed the order dated 10-5-2005 on the finding that the State Government has justified the order canceling the license on the basis of the claim of Sri Rakesh Shukla, whereas the revision filed by Sri Rakesh Shukla has been dismissed. This Court also observed that so far as the contesting respondents namely Sri Navin Chandra and Sri Subhash Chandra are concerned the grant of licenses to them clearly depends on the decision / outcome of the appeal. The Court also doubted the right of Sri Rakesh Shukla to maintain revision before the State Government as he did not challenge the order passed by the Collector, Gorakhpur Cancelling the license granted in favour of the petitioner and holding that neither the petitioner nor Sri Rakesh Shukla were entitled for grant of excise license. Consequently the matter was restored back before the State Government to decide the controversy afresh