ANIL KUMAR,SAURABH LAVANIA,J. - (1.) Heard Sri Anil Tewari, learned Senior Advocate, assisted by Sri Niraj Gupta, learned counsel for the petitioner and Sri H.P. Srivastava, learned Addl. Chief Standing Counsel for the opposite party No. 2.
(2.) Facts, in brief, of the present case are to the effect that the petitioner approached this Court by filing the instant Writ petition No. 4993 (MB) of 2006 with the following main reliefs:- "(i) Issue a writ, order or direction in the nature of Certiorari calling for the records and quashing the impugned order dated 11th July, 2006 passed by the Excise Commissioner, U.P. and letter dated 17th July, 2006 of the District Magistrate Shahjahanpur, U.P. demanding Rupees 6,39,32,449.44 contained in Annexure No. 19 and 20 to this writ petition. (ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents not to recover any amount from the petitioner towards the alleged demand with regards to the quantity of Indian made Foreign Liquor destroyed due to fire accident at Shahjahanpur on 10th April, 2003. (iii) Issue a writ/order or directions in the nature of mandamus declaring Rule 7(11) of the U.P. Bottling of Indian Made Foreign Liquor Rules, 1969 as null and void and ultra vires of the U.P. Excise Act. (iv) Issue a writ, order or direction in the nature of Certiorari calling for the records and quashing the impugned order of the State Government which was conveyed through letter dated 17.02.2004 of the Principal Secretary (Excise), Government of UP to Excise Commissioner."
(3.) On 25.07.2006, an interim order was passed by this Court, which reads as under:- "A short counter-affidavit filed by the State is placed on record. We have heard Sri Rakesh Dwivedi, Senior Advocate, for the petitioner, assisted by Sri Alok Mathur and Sri Gaurav Bhatia and Sri J.N. Mathur, Additional Advocate General for the State. Sri J.N. Mathur's plea that the petitioner has a remedy to approach the State Govt. in revision, has been responded to, by the counsel for the petitioner by urging that firstly, the State Govt. has itself issued the directive for levying and realizing the duty and, secondly, the petitioner has also challenged the applicability of the Rule for realization of the duty and, therefore, once the State Govt. has issued the directive and order has been passed accordingly, approaching the Govt. would be a mere formality. Considering the pleadings of the parties and the questions involved in the writ petition, viz. whether in a case of fire, the stock, which was destroyed in the Bonded Warehouse after manufacture and bottling, could be liable to any imposition of duty or it would be a case of loss to the Govt. which realization can be made by the Govt. if the petitioner fails to prove that he was not negligent or it is a case of realization of duty of wastage as per rule 7(11) (2) of the Bottling Rules. We are of the view that under the circumstances, relegating the petitioner to the forum of alternative remedy is not required in the instant case, we, therefore, overrule the aforesaid objection. Since the notice has already been accepted by the Chief Standing Counsel and the State has also filed a short counter-affidavit, Sri J.N. Mathur says that he may be given liberty to file a detailed counter-affidavit. Since the petition has been admitted, three weeks time is granted, as prayed for the purpose, two weeks thereafter is granted to the counsel for the petitioner to file rejoinder-affidavit. In the meantime, in case the petitioner deposits a sum of three crores rupees, within four weeks with the Excise Commissioner, further recovery shall not be made, till further order of the Court. List the matter on 19th September, 2006 for hearing, as prayed." ;