SURINDER KAUR Vs. COLLECTOR DISTRICT MAGISTRATE FATEHPUR

JUDGEMENT

(1.) Present petition and connected Writ Petition No. 20151 of 1998 enwomb challenge to recovery of excise dues amounting to Rs. 1,52,65,232 sought to be recovered from the petitioner as arrears of land revenue. Recovery certificates dated 26.5.97 which are phrased in identical words have been issued by the Collector, Fatehpur to Collector, Allahabad, for recovery of the afore stated amount with interest accruing on the amount at the rate of 18% with effect from 1.4.1994 from the petitioners, who were believed to be stationed at Allahabad and to be owning property consisting of movable and immovables at Allahabad. Since both the petitions stem from the same cause of action and are founded on common questions of law and fact, we knit them together for convenient disposal by a common Judgment.

(2.) The telescopic view of the necessary facts is that for the year 1993-94 a public auction was to be held on 30.3.1993 for grant of licence for retail vend of country liquor in the district of Fatehpur. The entire district was split up in three groups, namely, Sadar Group, Khaga Group and Bindki Group. The bid of Anil Singh, son of Girwar Singh resident of Kalpana Bhawan. Collector Ganj. Fatehpur, was accepted for Sadar Group of Shops. Likewise, the bids of Rajeev Bansal, son of Bechan Lal and Jageshwar Gupta, son of S. M. P. Gupta, both residents of Kalpana Bhawan, Collector Ganj, Fatehpur, were accepted for Khaga Group of Shops. In respect of Bindki Group of shops, the bid of Manoj Singh, son of Sri K. P. Singh resident of Kalpana Bhawan was accepted. Then followed the execution of agreement and grant of licences after the settlement of bids in favour of respective bidders. It would transpire that the aforesaid four persons deposited the amount as they were exacted to deposit at the time of the fall of hammer same of the initial installments were also deposited by them. Subsequently, the persons afore stated defaulted in payment of excise dues and a sum of Rs. 1,52,65,332 fell due to the credit of the aforesaid persons. The Collector, Fatehpur, It would appear, made some enquiry through Excise Officer which, it is alleged, divulged that the petitioner Smt. Surindra Kaur and one Jagjeet Singh, had actually run the business by proxy in the name of aforesaid tour persons. Accordingly, a show cause notice dated 7/8.4.1997 was issued to Smt. Surindra Kaur and Jagjeet Singh spelling out therein that they were the actual licensees and hence, liable to repay the excise dues amounting to Rs. 1.52.65.332 in respect of the contract for the year 1993-94. They were accordingly called upon to show cause within the period stipulated in the notice as to why the dues be not recovered as arrears of land revenue from their movable and immovable properties. On receipt of the notices each of the petitioners submitted reply to the show cause notice. The petitioner-Smt. Surindra Kaur in her reply submitted that she was neither the licensee nor a surety in respect of the contract for retail vend of country liquor in Fatehpur district for the year 1993-94 and as such, question of any outstanding excise dues against her did not and could not arise. Request was accordingly made to withdraw/ recall the show cause notice. A similar reply was submitted by the petitioner-Jagjeet Slngh to the show cause notice issued to him. The District Magistrate, Fatehpur by his order dated 26.5.1997 rejected the objections filed by the petitioners holding that on the basis of documents and evidence on record, it was evident that the petitioners had, in fact, financed and managed the country liquor shops of the year 1993-94 and persons aforestated in whose names the licenses were granted, were simply their 'Sahayak Karamchari and Naukar'. Consequent upon the rejection of the objection filed by the petitioners, impugned recovery certificates dated 26.5.1997 were issued by the Collector as aforestated.

(3.) Sri S. S. Ray, learned senior advocate, appearing for the petitioners canvassed that licence under the Act is "personal" and obligation to pay all dues in respect of the licence is the personal obligation as undertaken by the licensee in the 'counter part agreement executed in Form G. 44A and, therefore, it is the licensee to whom the licence has been granted who is 'primarily liable' to pay the dues within the meaning of Section 39 of the U. P. Excise Act and the Summary procedure for recovery of excise dues as arrears of land revenue has been made applicable by Section 39 of only those who are 'primarily liable' to pay i.e., the person who by the terms of the licence are absolutely required to pay the dues. The learned counsel urged that it would be beyond the purview of Section 39 of the Act to recover any excise dues as arrears of land revenue from any one who is not 'primarily liable' at all ; and that the law of 'undisclosed principals' is extrinsic to the scheme of the Act and the rules framed there under. The learned counsel emphasized that it would open a pandora box of confusion, chaos and corruption if an enquiry is held permissible into the question that the person in whose name a licence has been granted is not the actual licensee but the "undisclosed principal' is the actual licensee. Sri Yatindra Singh, learned Additional Advocate General, appearing for the respondents submitted that the petitioners were the 'undisclosed principals' of the original licensees and therefore, liable in the same manner as they, i.e., the ostensible licensees who were simply name lenders. The state was therefore. justified, urged the learned Additional Advocate General, in initiating recovery proceedings against the petitioners.