Chaturvedi, J. - (1.) THIS is a petition under Article 226 of the Constitution.
(2.) THE Petitioner along with one Ram Swarup took the licence for running a Country Liquor Shop at Mumfordganj, Allahabad for the year 1948 -49 for a sum of Rs. 54,500/ - . The licensees wanted to continue the shop in the building in which it was being previously (sic). But the Improvement Trust, Allahabad raised objections to the continuance of the shop there. Inspite of these objections however, the licensees succeeded in getting post session of the shop and started running it. Subsequently the licensees received a notice from the Collector, Allahabad asking them to vacate the shop within fifteen days. It is said that the licensees made every effort to secure a suitable accommodation but their efforts did not succeed. They were subsequently able to get a house in Mohalla Katra and they wanted to shift the shop to that house but the licencing Board did not agree to the location of the shop in Katra. The licensees then wrote to the Collector on the 30th April, 1948 submitting their resignation with effect from the 1st May, 1948. In this application they also prayed that the instalment of the license fee due for the month of April be deducted from their earnest money and the balance of the earnest money be refunded to them. The shop in Mumfordganj was actually vacated on or about the 12th May, 1948. In August, 1948, the Town Rationing Officer allotted a shop in Mumfordganj to the license s but the licensees did not succeed in obtaining possession of the shop. The application dated the 30th April, 1948 sent by the licensees to the District Excise Officer tendering their resignation was decided by the Excise Commissioner, U.P. on the 31st December, 1948. He treated the application as a surrender of the license under Section 36 of the U.P. Excise Act, He calculated the amount that was due on this date and remitted the proportionate licence fee for the months of January, February and March, 1949. The amount due from the licence s till the 31st December, 1948 was held to be a sum of Rs. 40,875/ - . From this he deducted the sum of Rs. 9,100/ - which was in deposit with the Government as earnest money and passed orders for the recovery of the balance i.e. Rs. 31,775/ - . The Excise Commissioner requested the Collector of Allahabad to recover this amount from the licensees and on the 4th September, 1952. the Collector of Allahabad wrote to the Collector of Meerut to realise the said amount from the licensees as land revenue. The present petition was filed on the 11th November, 1952 and the prayer contained in the petition is that a writ in the nature of Mandamus be issued directing the Excise Commissioner (Respondent No. 3) to pass an order remitting the entire licence fee under Section 36. In the alternative it is prayed that a writ in the nature of Certiorari be issued calling for the record of the case and quashing the order directing recovery of Rs. 31,775/ - . In the affidavit filed along with the petition an attempt has been made to show that the Excise authorities were under an obligation to provide proper accommodation to the licensees to run the liquor shop and the licensees were released of their obligation to pay the licence fee because they were not provided with suitable accommodation. At the time of the argument, however, this case was given up and the only point urged by the Learned Counsel for the Petitioner is that the Excise Commissioner should have dealt with the application of the licensees dated the 30th April, 1948 soon after it was filed and he should have passed an order remitting the proportionate licence fee from the 1st May, 1948 to the 31st March, 1949. Reliance for the submission is placed on the proviso to Section 36 of the U.P. Excise Act. Section 36 is in the following words: Any holder of a licence to sell by retail under this Act may surrender his licence on the expiration of one month's notice in writing given by him to the Collector of his intention to surrender the same and on payment of the fee payable for the licence for the whole period for which it would have been current but for such surrender. Provided that, if the Excise Commissioner is satisfied that there is sufficient reason for surrendering such a licence, he may remit to the holder thereof the sum so payable on surrender, or any portion thereof.
(3.) A reading of the main section shows that a licensee may surrender his licence but before doing so he must give one month's notice in writing to the Collector of his intention to surrender the licence and he must also pay the fee that was payable for the licence for the whole period for which it was granted. In the present case there was no notice in writing given by the licensees and all that they did was to file the application saying that they had resigned. Strictly speaking, therefore, the application dated the 30th April, 1918 cannot be said to be a valid surrender of the licence as contemplated by Section 36 of the U.P. Excise Act. But it was possible to treat the application itself as a notice and it could have been allowed after the expiry of a month. There is however another condition also imposed by Section 36 and that condition is that the surrender must be on payment of the fee for the entire period of the licence. The licensees in the present case did not pay the fee for the entire period. On the other hand, they claimed a refund of a part of the earnest money that they had deposited with the Excise department. The condition of depositing the entire fee not having been fulfilled, the application dated the 30th April, 1918 cannot be treated as a valid surrender under Section 36 of the U.P. Excise Act. The Excise Commissioner under this section had been given no authority to waive the performance of this condition and the wording of the statute is such that a surrender cannot be held to be one unless there has been a payment of the entire amount of fee also. I am, therefore, constrained to hold that there was no valid surrender by the licence fee under Section 36 of the Act.;