1-Heard Sri Yashwant Varma, learned Senior Counsel assisted by Sri Om Prakash Tripathi for the petitioner, Sri Nimai Das, learned Standing Counsel for respondent Nos. 1to 4 and Sri R.R. Agrawal assisted by Sri Murtaza Ali for respondent no.5.
2-By this writ petition, the petitioner has prayed for the following reliefs :
"i] to issue a suitable writ, order or direction calling for the records and quashing the impugned order dated 15.7.2014 passed by the respondent no.2 (Annexure-11) ;
ii] to issue a suitable writ, order or direction declaring that the order dated 15.7.2014 does not impinge upon the license granted to the petitioner for the Excise Year 2014-15;
iii] to issue a suitable writ, order or direction in the nature of mandamus restraining the respondents from interfering and/or causing any hindrance in the business of the petitioner being carried thereon pursuant to the licence for the retail sale of country liquor granted to it for the Excise Year 2014-15 ;
iv] Any other relief which this Hon'ble Court deem just and proper in the circumstances of the case may also be awarded to the petitioner;
v] award the cost of the writ petitioner to the petitioner."
3-Briefly stated the facts of the present case are that in the year 2009-10 a retail country liquor license of the shop ''Sarai Meer Azamgarh' was settled in favour of the respondent no.5 as per provisions of ''Uttar Pradesh Excise (Settlement of License for Retail Sale of Country Liquor ) Rules, 2002 (hereinafter referred to as the ''Rules'). Her license was renewed from year to year in terms of Rule 5 of the Rules and the relevant Government Policy for the years 2010-11, 2011-12, 2012-13 and 2013-14. On 2.4.2013 an inspection of her country liquor shop was conducted by the Officers of the Excise Department. On the basis of certain alleged discrepancies/irregularities found in the aforesaid inspection a show cause notice dated 16.4.2013 for cancellation of license was issued by the licensing 2 authority/District Magistrate, Azamgarh and the license was suspended. By an order dated 13.6.2013 the license of respondent no.5 was cancelled by the licensing authority.
4-The respondent no.5 filed an Appeal No.23 of 2013 challenging the order of the licensing authority dated 13.6.2013. The appeal was allowed by the Additional Excise Commissioner (Administration), U.P., vide order dated 15.7.2013 and the matter was remanded to the licensing authority vide order dated 15.7.2013.
5-Aggrieved with the order dated 15.7.2013 passed by the appellate authority, the respondent no.5 preferred a Revision No.2 of 2013, under Section 11(2) of the U.P. Excise Act, 1910 (hereinafter referred to as the ''Act'), which was disposed of by the State Government vide order dated 8.8.2013 directing the licensing authority, Azamgarh to decide the matter on merit within a week.
6-Thereafter, the licensing authority passed the order dated 17.8.2013 holding that there is no need to interfere with the earlier order dated 13.6.2013.
7-Aggrieved with this order, the respondent no.5 preferred Excise Appeal No.43 of 2013, under Section 11(1) of the Act, before the Additional Excise Commissioner ( Administration ), U.P., Allahabad, which was dismissed vide order dated 24.3.2014.
8-Aggrieved with this order, the respondent no.5 preferred a Revision No.1323 of 2014 before the State Government under Section 11(2) of the Act, which was allowed by the impugned order dated 15.7.2014 and the order dated 13.6.2013 and 17/18.8.2013 passed by the District Magistrate/Licensing Authority, Azamgarh, were set aside.
9-It is relevant to mention here that after the license of respondent no.5 was cancelled by an order dated 13.6.2013, the licensing authority issued an advertisement dated 17.6.2013 for settlement of the license subject to the condition that the settlement shall be subject to the decision in writ petition/appeal before the competent Court. A copy of the advertisement has been filed as Annexure-6 to the writ petition. Knowing that well the settlement proposed under the advertisement dated 17.6.2013 is subject to the decision in a writ or appeal, the petitioner applied for license of the country liquor shop in question. The license was settled in favour of the petitioner on 21.6.2013 and the license dated 23.7.2013 was issued to him.
10- For the Excise year 2013-14, the State Government took a decision to settle the license by way of renewal and as such the applications were invited. The petitioner applied. The license was renewed vide endorsement dated 31.1.2014. Subsequently, revision of the respondent no.5 was allowed by the State Government vide order dated 15.7.2014 and as such the respondent no.5 sought the renewal of her license contending that the license of the petitioner itself was subject to the decision in appeal/writ petition, as it was made clear in the advertisement dated 17.6.2013 pursuant to which the petitioner applied and obtained the license.
11-Aggrieved with the order dated 15.7.2014 and the intended action of the State-respondent the petitioner has filed the present writ petition.
12-Shri Yashwant Varma submits that the judgment of Hon'ble Supreme Court in the Case of Gorakh Nath v. State of U.P. and others, 1996(11) SCC278 relied upon by the Revising Authority in the impugned order dated 15/17.7.2014 does not support the case of the respondent no.5 and the said judgment is distinguishable on facts of the present case. He submits that since the grant of license for the Excise Year 2014-15 was a fresh grant by way of renewal in terms of Rule 5 of the Rules read with government policy and as such the settlement of Excise license for the country liquor shop in question in favour of the petitioner for the excise year 2014-15 cannot be disturbed or interfered with on account of the decision dated 15/17.7.2014 passed by the State government in the revision in favour of respondent no.5.
13-Shri R.R.Agrawal, learned Senior Counsel submits that the State Government, from year to year has adopted the policy of settlement of license by way of renewal in terms of Rule 5 of the Rules.
14-The respondent no.5 was falsely implicated and her license was cancelled by the District Magistrate, Azamgarh vide order dated 15.7.2013 and 17.8.2013, which were subjected to appeal and revision by the respondent no.5 before the statutory authorities. The advertisement issued in the meantime on 17.6.2013 for settlement of license of the country liquor shop in question clearly mentions that the settlement of the license is being done subject to the decision in writ petition/appeal. The petitioner, with eyes wide open and after well knowing the consequences had obtained the license. Therefore, by the impugned revisional order, the order of cancellation of her license has been set aside, the necessary consequences that followed is that she became entitled for license and her right of 4 license shall relate back to the date on which it was cancelled. He further submits that the petitioner has no locusstandi to challenge the impugned order which was passed in the revision filed by respondent no.5.
15- I have carefully considered the submissions of learned counsel for the parties.
16-The facts as noted above are not in dispute. The petitioner had obtained the license pursuant to the advertisement dated 17.6.2013 in which it was clearly mentioned that the license is being settled subject to the decision in writ/appeal. The respondent o.5 has challenge the order of cancellation before the statutory authorities. After two rounds of litigation she succeeded. The order of cancellation of her license has been set aside by the revising authority under section 11(2) of the Act by order dated 15/17.7.2014 which is impugned in the present writ petition.
17-As per memo of revision filed as Annexure-10, the petitioner was not a party to the said revision in which the impugned order has been passed. It is not the case of the petitioner that he was not aware of the said revision or the appeal filed by respondent no.5.
18-On the contrary, it is evident from the advertisement dated 17.6.2013, that the settlement of the country liquor shop in question is being made on cancellation of license of the respondent no.5 subject to the decision in writ/appeal.
19-Under the circumstances, the necessary consequences that follows is that on setting aside of the order of cancellation dated 11.6.2013 and 178.2013, the license of respondent no.5 automatically revived and in terms of advertisement dated 176.2013, the license of the petitioner came to an end.
20-The petitioner obtained the license knowing it well that the license is subject to the decision in statutory proceedings being carried by the respondent no.5. The order passed by the State Government in the revision has not been challenged by the departmental authorities. The petitioner cannot be said to be aggrieved with the said decision.
21-In the case of Maru Ram and others v. Union of India and others, 1981(1) SCC 107 (Paragraph 56), Hon'ble Supreme Court held that the appellate conviction must relate back to the date of trial court's verdict and substitute it. An appeal is a continuation of an appellate judgment as a replacement of the original judgment. Hon'ble Supreme Court observed as under :
"We are mindful of one anomaly and must provide for its elimination. If the trial court acquits and the higher court convicts and it so happens that the acquittal is before Section 433-A came into force and the conviction after it, could it be that the convicted person would be denied the benefit of prospectivity and consequential non-application of Section 433-A merely because he had the band luck to be initially acquitted ? We think not. When a person is convicted in appeal, it follows that the appellate court has exercised its power in the place of the original court and the guilt, conviction and sentence must be substituted for and shall have retrospective effect from the date of judgment of the trial court. The appellate conviction must relate back to the date of the trial court's verdict and substitute it. In this view, even if the appellate court reverses an earlier acquittal rendered before Section 433-A came into force but allows the appeal and convicts the accused, after Section 433-A came into force, such persons will also be entitled to the benefit of the remission system prevailing prior to Section 433-A on the basis we have explained. An appeal is a continuation of an appellate judgment as a replacement of the original judgment."
22-In the case of Gorakh Nath v. State of U.P. and others, 1996(11) SCC 278 (Paragraph 8), Hon'ble Supreme Court held as under :
"Coming to the third ground of Shri Dhaon, it would be seen that the fifth respondent was agitating against the cancellation of his licence (by order dated 3.7.1993) throughout. It was during the pendency of the proceedings taken by him that a notification was issued calling for application for a fresh grant and licence was granted to the appellant. The said exercise was on the supposition that by virtue of the cancellation of the fifth respondent's licence, a vacancy has arisen. Once the said supposition is not true- in the sense that the said cancellation was found to be illegal-- the grant of licence to the appellant must be deemed to be provisional and a temporary arrangement, as rightly held by the High Court, notwithstanding the fact that it may have been described as a permanent license. Once the fifth respondent's licence is restored, the licence granted to the appellant comes to an end by operation of law. It is not really a case of 'cancellation' within the meaning of Section 34 of the U.P. Excise Act. No notice was also necessary to be given to the appellant."
(Emphasis supplied by me ) 23-Considering similar circumstances a Division Bench of this Court in the case of Sudhir Singh and others v. Additional Commissioner, Excise (Admn.) and others v. State of U.P. and others passed in Writ Tax No.927 of 2011, decided on 19.7.2011 held as under :
"The District Magistrate has relied upon the judgment of the Supreme Court in Civil Appeal No.13103 of 1996, Gorakh Nath Vs. State decided on 11.10.1996 in which it was held that once the cancelled license restored, license granted to fresh allottee comes to an end by operation of law.
In the present case the license in favour of Shri Pradeep Kumar Jaiswal has been restored on which the fresh allottee to which the license has been given after the cancellation of the license of respondent No.4 would by itself come to an end.
Learned counsel for the petitioner submits that Smt. Sushma Jaiswal is daughter-in-law of the brother of Shri Pradeep Kumar Jaiswal and that illicit liquor was recovered from her residence.
Be that as it may. In these matters there cannot be any lis between the person of whom license was cancelled and restored and the fresh allottee, who has been allotted the shop after the cancellation.
The writ petition is dismissed."
(Emphasis supplied by me ) 6 24-In the case of Smt. Babita Rai v. State of U.P. and others, Writ Tax No.1622 of 2010, decided on 2.12.2010 this Court held as under :
"By means of the present writ petition, the petitioner has challenged the order of the Additional Excise Commissioner (Licensing & Industrial Development), U.P., Allahabad dated 16.11.2010 on the ground that the said order has been passed without giving opportunity of hearing to the petitioner.
It appears that licence of Sri Hari Shankar Mishra has been cancelled by the District Magistrate, Jhansi. Against the said order, Sri Hari Shankar Mishra filed an appeal before the Additional Excise Commissioner (Licensing & Industrial Development), U.P., Allahabad, which has been decided by the impugned order.
Learned counsel for the petitioner submitted that the petitioner has been granted licence after issuing the advertisement and, therefore, the petitioner should be heard by the appellate authority while deciding the appeal of Sri Hari Shankar Mishra.
I do not find any substance in the argument of learned counsel for the petitioner. Sri Hari Shankar Mishra has filed an appeal against the order of the District Magistrate cancelling the licence. The petitioner was not at all in picture and was not the party in the matter, therefore, there was no question of giving him opportunity of hearing in the appeal filed by Sri Hari Shankar Mishra. The grievance of Sri Hari Shankar Mishra was against the licensing authority, who has cancelled the licence.
In view of the above, the writ petition has no merit and is accordingly dismissed."
25- In the case of Smt. Babita Rai v. State of U.P. and others in Writ Petition No.280 of 2011, decided on 28.2.2011 a Division Bench of this Court held as under :
याचिनी को उक्त दुकान का लाइसेंस विपक्षी संख्या ५ का लाइसेंस निरस्त हो जाने के पश्चात उसी क्षेत्र में मिला। विपक्षी संख्या ५ के विरुद्ध पारित आदेश दिनांक १-८-२०१० आदेश दिनांक १६-११-२०१० के द्वारा अपास्त किया जा चुका है एवं इसके विरूद्ध याचिनी द्वारा दाखिल की गयी याचिका भी निरस्त कर दी गयी है। इसलिए याचिनी को उस जगह पर दुकान चलाने का अधिकार नहीं है।
26-In view of the above discussions and the law laid down by Hon'ble Supreme Court as well as this Court, I find no merit in the present writ petition. The writ petition is wholly misconceived and is, therefore, dismissed. However, there shall be no order as to costs.
Order Date :- September 5, 2014 Ak/