- (1.) HEARD Shri Sushil Kumar Singh, learned counsel for the petitioner and learned Standing Counsel for the opposite parties.
(2.) THE petitioner has challenged the order dated 20th of June, 2003, passed by the Col­lector, Kheri, whereby a direction has been issued to recover the amount of Rs. 112,685/-due upon the petitioner against the licence fee and the order dated 21st of September, 2004, passed by the Appellate Authority as well as the order dated 6th of February, 2007, passed by the State Government in revision. The pe­titioner has challenged the orders impugned inter alia that the excise duty is not recover­able as arrears of land revenue, therefore, the recovery notice itself is bad in law. Briefly the facts of the case are that the petitioner was granted the licence for retail shop of country liquor in the excise year 2002-2003 by the opposite party No. 2 i.e. Collec­tor Kheri. Under the terms of licence, the pe­titioner was under obligation to deposit the li­cence fee as well as the security money. He deposited the security money amounting to Rs. 39,360/- and further a sum of Rs. 4.800/- to­wards licence fee. The petitioner run the shop till the month of October, 2002, but it appears that he could not deposit the licence fee amounting to Rs. 93,334/- till 26th of Octo­ber, 2002, rather he submitted the application for surrender of shop on 26th of October, 2002. The Licensing Authority in exercise of power provided under Section 34 of the U. P. Excise Act, 1910 read with Rule 21 of Uttar Pradesh Excise (Settlement of licences for Retail Sale of Country Liquor) Rules. 2002 (hereinafter referred to as the Rules, 2002) cancelled the petitioner's licence and issued direction to adjust the amount deposited against the security i.e. Rs. 39,360/- against the li­cence fee and to recover the remaining amount of licence fee i.e. Rs.53974/- as arrears of land revenue. Being aggrieved with which the peti­tioner preferred the appeal under Section 11(1) of the U. P. Excise Act, 1910 before the Ex­cise Commissioner, who dismissed the same. Thereafter he preferred a revision before the State Government. The State Government also rejected the revision by upholding the order passed by the appellate authority as well as the licensing authority.
(3.) THE learned counsel for the petitioner submitted that since after the date of cancella­tion i.e. 3-11-2002 the petitioner did not lift any quantity of liquor for the remaining period of licence, he is not liable to pay the balance amount of licence fee. In support of his contentions the learned counsel for the petitioner has relied upon some decisions, which are as under:- (1) Har Shankar and others v. The Dy.Excise and Taxation Commissioner and others (1975)1 SCC 737 : (AIR 1975 SC 1121). (2) State of Andhra Padesh v. Y. Prabhakara Reddy AIR 1987 Supreme Court 933. (3) State of Haryana and others v. Jage Ram and others AIR 1980 Supreme Court 2018. (4) State of Orissa and others v. Narain Prasad and others (1996) 5 SCC 740 : (AIR 1997 SC 1493). (5) Excise Commissioner U. P. Allahabad etc. etc. v. Ram Kumar etc. etc. AIR 1976 SC 2237. (6) Bimal Chandra Banerjee v. State of Madhya Pradesh etc. AIR 1971 SC 517.;