D. N. Jha, J. - (1.) THIS petition was presented on 10th July, 1984 when we directed the State Counsel to obtain instructions and inform the Court about the latest position.
(2.) IN this writ petition the petitioner has expressed his grievance with respect to the order passed by the Collector, which obviously purports to be one in exercise of jurisdiction under sub-clause (2) of Rule 328 of the U. P. Excise Manual Volume I. We would not like to express any opinion on the merits of the petition as it transpires that the petitioner had already preferred a revision before the State Government in pursuance of sub-clause (2) of Section 11 of the U. P. Excise Act (hereinafter referred to as the Act). IN this writ petition a prayer has been made for issue of a writ, order or direction in the nature of mandamus directing the opposite parties to dispose of the revision petition as contained in Annexure 7 to this writ petition. We have heard the learned counsel for the parties and gone through the petition. Learned counsel for the respondents pointed out that in Section 11 of the Act the petitioner had an opportunity to prefer an appeal before the Excise Commissioner and thereafter he could approach the State Government if he was aggrieved by the order passed by the Excise Commissioner. Rule 6 of the Rules framed under the Act reads as follows ; "Any person aggrieved by an order of the Excise Commissioner or the Collector, may make an application to the State Government for revision of such order. The application for revision shall be made to the State Government within six months of the order of the Collector or Excise Commissioner, as the case may be, provided that no application for revision against the order of the Collector will be entertained unless an appeal where one lay had been filed, and disposed of by the Excise Commissioner." Learned counsel for the petitioner vehemently urged that under subclause (2) he had preferred a revision and the State Government was ceased of it and it ought to have expeditiously disposed it of as it was hampering his business. Sub-clause (2) of Section 11 reads as under ;- "The State Government may either suo motu or on an application by an aggrieved person call for and examine the records relating to any order passed in any proceedings under this Act for the purposes of satisfying itself as to the correctness, legality or propriety of any such orders or as to the regularity of such proceedings; and, if in any case it appears to the State Government that such order or proceeding should be modified, annulled, reversed or remitted for reconsideration, it may pass orders accordingly; Provided that no order adversely affecting any party shall be passed under this section unless he has been given a reasonable opportunity of making his representation : Provided further that no application under this sub-section shall be entertained unless it is preferred within thirty days from the date of the order of the Excise Commissioner and unless an appeal, where it lies, have been filed and disposed of by the Excise Commissioner".
(3.) IT may be mentioned that the impugned order is subject to appeal as per sub-clause (1) of Section 11 of the Act which reads as under :- "The Collector and, every other Excise Officer (not being the Excise Commissioner) shall, in respect of all proceedings under this Act, be subject to the control of the Excise Commissioner and all orders passed by Collector or such other officer under this Act, shall be appealable to the Excise Commissioner in the manner prescribed by rules made by the State Government in this behalf". Learned counsel vehemently urged that direction should be issued to the State Government to dispose of the revision because it had suo motu powers to interfere with the jurisdictional error. We are unable to subscribe to this submission. The petitioner has approached the State Government through an application and the State Government has not exercised its suo motu powers. On account of provision provided under Rule 6 as quoted above the proper channel for entertaining a revision is against the order passed by the Excise Commissioner in appeal. We would, therefore, direct the State Government to return the revision petition to the petitioner forthwith on the request of the petitioner for presenting it in the form of an appeal before the Excise Commissioner who will dispose it of as expeditiously as possible within fifteen days from the date of its presentation after due notice to the parties. IT is also pointed out that the Excise Commissioner will not reject the appeal on the ground of limitation of thirty days. With these observations the petition is dismissed in limine. Petition dismissed.;