1. Heard Sri V.K. Singh, learned senior counsel assisted by Sri Murtuza Ali, learned counsel for the petitioner and Sri A.C. Tripathi, learned standing counsel for the State.
2. Originally, the present writ petition was filed to challenge the order dated 19.02.2020, passed by the Special Secretary/Authorized Officer, Government of U.P., in Excise Revision No. 18 of 2019 (Sandeep Singh Versus Additional Excise Commissioner (Administration) Uttar Pradesh & others). That revision filed by the present petitioner, had been allowed and the matter remanded to the Additional Excise Commissioner (Administration) Uttar Pradesh, Prayagraj, in Excise Appeal no. 31 of 2019. It is also a fact, during the pendency of the present petition, the aforesaid direction of remand passed by the revising authority was given effect. Thus, the order dated 17.06.2020, came to be passed by the Additional Excise Commissioner (Administration) Uttar Pradesh. The same has been challenged by means of amendment to the writ petition.
3. The submission advanced on behalf of the petitioner is that in the Excise Year 2018-2019, the petitioner was licensed to operate the country liquor shop at village Gahrukheda, at Fatehpur. Though the term of license was expiring on 31.03.2019, barely a week before that, on 23.3.2018 an illegal inspection was carried out at the said licensed vend. Resultantly, allegations arose of tampered QR code and bottle caps used by the petitioner. Consequently, on 25.3.2019, the license of the petitioner was suspended by the licensing authority and a notice to show cause was issued, proposing to cancel that license of the petitioner. The petitioner filed his reply. Also, occasioned by the near commencement date of the new Excise Year, the petitioner also deposited the renewal fee, in advance. Thereafter, on 28.5.2019, the petitioner's license was cancelled by the licensing authority. That order became the subject matter of challenge in Excise Appeal No. 31 of 2019, filed by the petitioner before the Additional Excise Commissioner (Administration), Uttar Pradesh, Prayagraj. It was dismissed vide order dated 16.08.2019. That order was carried in Revision No. 18 of 2019, filed by the petitioner before the State Government. Perusal of that order reveals that the State Government allowed the revision and remanded the matter to the appeal authority. The State Government took note of the objections raised by the petitioner that the inspection had been carried out by way of a doubtful exercise of power, as the inspection was made at the end of the Excise Year and that no tampered QR code and caps had been used or found. The matter was required to be re-considered by the appeal authority. At the same time, another license of the petitioner for the other country liquor shop at village Majhenpurawa was also cancelled, solely on account of cancellation of the present license at Gahrukheda. The revising authority appears to have made certain observations with respect to same as well. It has been observed, though the cancellation of the license at Gahrukheda, may be a relevant factor to be considered in the proceedings for cancellation of the license at Majhenpurawa, however, there could not be an automatic cancellation of the other license.
4. However, it is an admitted position on record that there was no revision filed by the petitioner with respect to Majhenpurawa license in as much as in that case, the appeal authority, in Excise Appeal No. 32 of 2019, had itself set aside the cancellation order and remanded the matter to the licensing authority, by a separate order.That has given rise to W.P. No. 278 of 2020.
5. In such facts, while no stay order had been passed in this writ petition, the appeal authority appears to have passed the order dated 17.06.2020 that has been challenged by means of an amendment to the writ petition. Referring to the two orders dated 19.02.2020 and 17.06.2020, it has been submitted that the revising authority ought to have allowed the revision in entirety as the charge of violation was not made out. There was no evidence that the petitioner had procured or used any tampered QR code and caps on the liquor bottles dealt by him. Alternatively, it has been submitted that in any case the appeal authority has not recorded any independent reasoning to accept the allegations made against the petitioner. In fact, the defence set up by the petitioner that he had in his possession, only such liquor bottles as had been supplied to him by the licensed manufacturer (in terms of the binding contract between the parties), has not been considered to any extent. No independent application of mind has been made by the appeal authority to reach the conclusion that the QR code and caps were tampered.
6. Learned standing counsel has opposed the writ petition and submitted that the revising authority had accepted the plea set up by the petitioner, in part. However, it is his submission that the proceedings were remanded only with respect to license at Majhenpurawa and not at Gahrukheda. Therefore, there was no proceeding to be held by the appeal authority with respect to cancellation of the license at Gahrukheda. That matter has attained finality. Alternatively, it has been submitted that the order dated 17.06.2020 passed by the appeal authority is revisable and therefore the present petition may not be entertained. Still alternatively, it has been submitted that there is no error in the order passed by the appeal authority, who has found the QR code and caps to be tampered.
7. Having heard the learned counsel for the parties and having perused the record, in the first place, it may be observed that there can be no doubt to the fact that the order dated 19.02.2020 passed by the revising authority was filed on Revision No. 18 of 2019 arising from the Excise Appeal No. 31 of 2019 decided on 16.08.2019. That recital is contained in the revision order itself and is also clear from the perusal of the orders dated 16.08.2019 and 19.2.2020 passed by the appeal authority in Excise Appeal No. 31 of 2019. Thus, the dispute arising from cancellation of the country liquor shop license for village Gehrukheda is alive. The objection raised by the State is unfounded.
8. In so far as the correctness of the order passed by the revision authority is concerned, perusal of the same reveals that revising authority has not reached any conclusion of fact. It has only found errors in the reasoning of the appeal authority, to the extent that authority had rejected the appeal filed by the petitioner. In the context of the factual allegations of use of tampered QR code and caps, the revision could not have succeeded merely on the finding that the inspection itself was carried out extremely late in the Excise Year. Assuming for the sake of reasoning that the basis of the inspection was mala fide in law, even then, only if it had been found that during such inspection, no tampered QR code and caps were discovered, then alone the petitioner would be entitled to any substantive relief. In absence of any definite finding recorded by the revision authority, on either of these issues the direction of remand is the only relief, that could be granted to the petitioner, in the facts found by the revision authority.
9. Coming to the preliminary objection as to maintainability of the writ petition against the order dated 17.06.2020, it appears, during the pendency of the present petition that order came to be passed. It has been challenged by way of amendment which has also been allowed. Then perusal of the order dated 17.06.2020 indicates that no reason has been given by the appeal authority and he has merely recorded his conclusions that the petitioner was found using tampered QR code and caps. In a serious allegation of the nature made against the petitioner and considering the directions issued by the revision authority, it was wholly desirable that the appeal authority should have dealt with the objections raised by the petitioner and recorded its own cogent findings based on the material on record.
10. In exercise of judicial review, unless reasons are disclosed in the order and they are shown to arise from the facts and circumstances found by the quasi-judicial authority, based on the material before it, it is always difficult to sustain the conclusion that may have been recorded by such authority. In absence of any reasons, the order dated 17.06.2020 is a non-speaking order. No useful purpose would be served in relegating the petitioner to the forum of alternative remedy against such an order, at this stage of the proceeding. The bar of alternative remedy is accordingly lifted.
11. Also, in view of the reasons given above, it is desirable that the order dated 17.06.2020 passed by the appeal authority in appeal no. 31 of 2019 be set aside and the matter be re-heard by the appeal authority. Accordingly, the writ petition is partly allowed. The order dated 19.02.2020 passed by the revision authority in Revision No. 18 of 2019 is upheld but, the consequential order dated 17.06.2020 passed by the appeal authority in Excise Appeal no. 31 of 2019 with respect to petitioner's license at Gahrukheda, is set aside and the matter required to be re-heard and decided again in accordance with law keeping in mind the observations made above. Such exercise may be completed by 15.03.2021, provided the petitioner does not seek any adjournment during that period and he cooperates in those proceedings.
12. The renewal fee deposited by the petitioner towards renewal of his license for the year 2019-2020 and his claim for refund thereon, will abide by final orders as may be passed in the present proceedings. The relevant authority shall also keep in mind the fact that the petitioner had not run the license for a single day during that period.
13. Allowed in part.
Order Date :- 19.1.2021 SA