- (1.) M. C. Agarwal, J. This writ petition under Article 226 of the Constitu tion of India challenges an order dated 1st January, 1986, passed by the State of U. P. and a further writ directing the Excise Commissioner to refund the licence-fee of Rs. 50,000 with interest.
(2.) I have heard the learned counsel for the petitioner and the learned standing counsel. The case of the petitioner is that he was granted the licences for the whole-sale vend of foreign liquor, called FL-2 licences, for the excise year 1983-84 on 6th April, 1983 to sell the products of M/s. Medowell & Company and M/s. Central Breweries & Distillary. The vends were to be operated at Haldwani in the district of Nainital. The petitioner deposited Rs. 25,000 as a fixed licence fee for each of the two licences and also Rs. 15,000 each as security. After the grant of the said licences, on reaching Nainital the peti tioner came to know that his partners hive included his name as a licensee in one of the shops for retail vend of foreign liquor. According to the Excise Rules person cannot be held both the licences i. e. FL-2 and FL-5, and, there fore, the petitioner immediately rushed back to Allahabad, and moved an application before the Excise Commissioner on 13th April, 1983, requesting that the FL-2 licences aforesaid be granted in the name of his wife as he was not entitled to hold the FL-2 liceuces in view of Para-639 (2) of the U. P. Excise Manual. The petitioner also moved an application for the refund of the fixed fee and security amounts. It is also contended that the whole-sale licence (FL-2) granted to the petitioner was not worked even for a day. The Excise Commissioner by an order dated 5th May, 1983, refunded the security of Rs. 30,000 for the two licence but no order for the refund of the licence fee of Rs. 50,000 was passed. The petitioner then filed a writ petition No. 5658 of 1983, for a writ of mandamus to the Excise Commissioner to decide the application of the petitioner for the refund of Rs. 50,000. The writ petition was allowed on 6th January, 1984 and in pursuance of the orders passed there in the petitioner moved a fresh application before the Excise Commissioner on 6th March, 1984. Still no orders were passed and the petitioner again filed writ petition No. 1698 of 1984 which was decided vide order dated 20th May, 1985 and this Court directed the Excise Commissioner to dispose of the representation of the petitioner on merits within six weeks of the peti tioner placing a copy of the order before him. Thereafter, by an order dated 24th September, 1985, the Excise Commissioner rejected the petitioner's application. Against the order of the Excise Commissioner dated 24th September, 1985, the petitioner filed a revision petition before the State Government that has been dismissed vide order dated 1st October, 1986. The petitioner's con tention is that there was no breach of any term of the licence and, therefore, the amount of licence fee could not be forfeited under Section 34 (1) (b) of the Act. It is contended that the licence could have been cancelled under Sec tion 35 of the U. P. Excise Act, and in that event the petitioner was entitled to the refund of the amount of licence fee.
(3.) THE respondents have filed a counter affidavit. THE petitioner's contention that it was only after the grant of FL-2 licence that he came to know that his partners have included his name in FL-5 licence, has not been denied by the respondents. THEir case is that neither Section 34 nor Section 35 of the Excise Act, will apply because the Excise Commissioner did not cancel the licence and, in fact, the petitioner surrendered the licence himself and it was consequently determined. It is contended that Section 36 of the U. P Excise Act clearly bars the right of the petitioner to claim compensation and there is no provision for the refund of the licence fee. It is common case of the parties that FL-2 licence could not be granted to a person holding FL-5 licence. The petitioner's case was that when he applied for FL-2 licence and till it was granted to him, he did not know that he has been granted FL-5 licence alongwith his business associates and that it was later on reaching Nainital that he came to know that his name has been got included by his partners as FL-5 licensee. These allegations are contained in paragraph-3 of the petition and vide paragraph 3 of the counter-affidavit they have not been denied. It, therefore, stands established that while applying for the FL-2 licence and till it was granted to him, the petitioner was unaware of the grant of the FL-5 licence.;