- (1.) The petitioner has come up to this Court on second round for quashing of order dated 21-2-93 (27-2-93 is said to be wrongly typed), Annexure-5 to the petition. When the petitioner came up to this Court on the first round then his grievance was that he made an application claiming remission, to respondent No. 3 on the ground that his shops remained closed on account of curfew and that the said application was not deceased of by the respondents but they were pressing for recovery of the licence fee of the whole amount for the months of December 1992, January 1993 (sic)stead. Then by order dated 20th January, 1993 (Annexure-4 to the petition), this Court disposed of the petitioner's writ petition directing respondent No. 3 to decide the remission-application of the petitioner within one month from the date of filing of a certified copy of that order before the said authority.
(2.) Pursuant to order (Annexure-4 to the writ petition) respondent No. 3 has passed the impugned order (Annexure-5 to the petition) obtaining that some of the shops of the petitioner were not under curfew and in regard to the remaining shops the petitioner can not claim any remission as there is no provision under the law to grant any remission.
(3.) Section 59 of the U.P. Excise Act reads as under: 59. Power to close shops for the sake of public peace.--The District Magistrate by notice in writing to the license may require that any shop in which any (intoxicant) is sold shall be closed at such times or for such period as he may think necessary for the preservation of the public peace. If a riot or unlawful assembly is apprehended or occurs in the vicinity of any such shop a Magistrate of any class or any police officer above the rank of constable who is present may require such shop to be kept closed for such period as he may think necessary: Provided that where any such riot or unlawful assembly occurs the licensee shall, in the absence of such Magistrate or police officer,' close his shop without any order. Para 190 of the U.P. Excise Manual Vol. I is reproduced below: 190. Miscellaneous directions.--The following miscellaneous directions regarding the classification and payment of charges are noted for observance. (1) Payment on account of compensation for closing shops under Section 59 of the Act or for closing country spirit shops settled under the auction system during the passage of troops includes (a) the refund of an amount originally "credited to Excise and (b) 10 percent calculated on the amount of licence fee for the period during which the shop was closed, on account of loss of profits: The latter charge only should be debited to Contract Contingencies. The former will be treated as a refund and adjusted against the separate grant for refund and drawbacks. (2) Compensation may be paid by the Collector on his own authority. From Section 59, it is clear that the District Magistrate or any police officer above the rank of constable may direct the licensee to close the shops, if necessary, for the prevention of public peace and under the proviso to Section 59 the licensee may himself close his shops without any order from the Magistrate or the police officer if a riot or unlawful assembly occurs to him. Para 190 of the U.P. Excise Manual, Vol. I provides for refund or allowing compensation for the closure of the shops.;