Rajes Kumar - (1.) -By way of present writ petition petitioner has challenged the appellate order dated 1.3.2004, Annexure-4 and order dated 8.10.2004, Annexure-5, passed by the respondent No. 1 and the citation dated 24.2.2003.
(2.) BRIEF facts of the case are that under the new Excise Rules namely U. P. Excise (Settlement of Licenses for Retail Sale of Country Liquor) Rules, 2002 (hereinafter referred to as "Rules, 2002"), Settlement of country liquor shops of the district Allahabad for the Excise Year 2002-03 took place under the supervision of the respondents No. 3 and 4. Under Rule, 2002 country liquor shop at Nawabganj, district Allahabad was settled by lottery in favour of the petitioner, in which Mahesh Chandra Pandey was also one of the co-licencee. The shop was allotted on the application of the petitioner and intimation in this regard was given on 26.3.2002. In pursuance of the aforesaid intimation, petitioner deposited basic licence fee at Rs. 78,000, security money at Rs. 63,960. The minimum guaranteed quota of the shop was 650 bulk litres per month, i.e., 7,800 bulk litres per month. The value of which had been fixed towards licence fee at Rs. 6,39,600. Petitioner could not lite the minimum guaranteed quota fixed for a month and accordingly, its licence had been cancelled on 19.2.2003 and recovery citation was issued on 24.2.2003 demanding a sum of Rs. 2,58,628. It appears that the petitioner has challenged the said recovery citation in Writ Petition No. 14117 of 2003, which was disposed of with the direction to the respondent No. 3 to decide the representation of the petitioner by a speaking order, Collector, Allahabad, vide his order dated 9.5.2003 rejected the representation of the petitioner and upheld the recovery citation. Petitioner filed appeal before the Excise Commissioner. Two main contentions have been raised in the appeal namely, (1) that the adjustment of the security should be allowed, (2) licence fee up to 19.2.2003 (date of cancellation of licence) should be demanded and not for the subsequent period. Excise Commissioner vide order dated 9.5.2003, allowed the appeal in part. Excise Commissioner has directed the adjustment of security amount of Rs. 63,960 but has upheld the demand of licence fee for the entire year. Being aggrieved by the order of the Excise Commissioner, petitioner filed revision before the State Government, which was dismissed by the impugned order dated 8.1.2004.
(3.) HEARD learned counsel for the parties. Learned counsel for the petitioner submitted that once the licence was cancelled on 19.2.2003, agreement between the petitioner and the respondents ceased to exist. He submitted that if the petitioner was not in a position to lift minimum guaranteed quota, it was open to the respondents to allow the petitioner to run the shop for the entire period upto 31.3.2003 and raise the demand for the entire licence fee or to cancel the licence and to proceed to re-settle the shop. He submitted that once licence has been cancelled on 19.2.2003, respondents cannot take the licence fee for the balance period. Learned standing counsel submitted that the agreement was for the entire year and therefore, petitioner was liable to pay the licence fee for the entire year even for the period after cancellation of the licence.;