- (1.) P. K. Jain, J. In both the petitions common question of law and facts are in volved, therefore, both the writ petitions are being decided by a common judgment.
(2.) PETITIONERS have filed this writ peti tion with the following prayers: (i) Issue writs, orders or direction in the nature of certiorari quashing- (a) order dated 17-8-91 of the Respon dent No. 3 (Annexure XI) rejecting the applica tion of the petitioners for the refund of Rs. 95,666. (b) order dated 22-7-92 of the Respon dent No. 2 (Annexure XIII) rejecting the appeal of the petitioners against the order dated 17-8-91 of Respondent No. 3. (c) order dated 28-11-92 of the Respon dent No. 1 (Annexure XIV) rejecting the revision petition of the petitioners against the order dated 28-7-92 of Respondent No. 2. (ii) issue a writ, order direction in the nature of mandamus directing the respondents to refund Rs. 95,666 to the petitioners. In the year 1982 the petitioners and one Smt. Shanti Devi had applied for FL7 licence for 'metro Hotel and Restaurant, Izatnagar, Bareilly in accordance with U. P. Excise (Licensing under the Surcharge Fee System) Rules, 1968. The Collector, Bareilly recommended to the Excise Com missioner the grant of the licence by his letter dated 20-1 -83. Excise Commissioner instead of himself sanctioning the licence made recommendations to the Govern ment of Uttar Pradesh by letter dated 6-10-83. The Government granted the licence in favour of 'metro Hotel and Restaurant' by order dated 22-10-83. However, before grant of licence by the State Government, Smt. Shanti Devi had withdrawn herself from the partnership and therefore, an application dated 25-10-83 was moved for grant of licence in the name of the petitioners. That despite application dated 25-10-83 the licence was issued to the Metro Hotel and Restaurant in the name of the petitioner Smt. Shanti Devi, On 28-10-83 the Collector, Bareilly recommended the Commissioner to modify the licence in the name of the petitioners. At the close of the year 1983-84 the petitioners applied for renewal of their licence in the name of the petitioners alone in view of the Rule 332 of the Excise Manual Volume I. The Collector renewed the licence in the names if the petitioners for 3 months only i. e. from 1-4-84 and thereafter from 1-7-84 to 31-8-1984 with endorsement "in anticipation of Govern ment Orders". Thereafter the Collector extended the period upto 30-8-1984. A recommendation was made by the Collec tor, Bareilly to the Excise Commissioner on 30-11-84 for deletion of the name of Smt. Shanti Devi from the licence. An other reference dated 11-12- 84 was also made. The period of licence was extended to 30-6-1985. Since no order of Excise Commissioner was received he refused to renew the licence any further. It is further averred that the Excise Commissioner on receipt of reference from the Collector referred the matter to the State Govern ment for approval by letter dated 24-2-1985. By letter dated 2-9-85 the State Government clarified that it was open to the Collector to find our and mention the names of the proprietors/partners of Metro Hotel and Restaurant correctly in the licence issued to it. Under paragraph 648 of the Excise Manual Volume I, the Collector is empowered to finalise the names with the approval of the Excise Commissioner. Despite above clarifica tion, the Collector Bareilly renewed the licence of the petitioners for the period till 30-6-1985 provisionally even though the petitioners had applied for renewal of the licence for whole of the year after deposit ing the renewal fee of Rs. 6,000. The Col lector sought approval of the Excise Com missioner by his letter dated 19-1-1986. The Excise Commissioner asked for copy of the partnership deed which was sent by the Collector to the Excise Commissioner with his letter dated 6-8-1986. When the Collector did not renew the licence the petitioner moved an application before the Excise Commissioner for renewal of FL 7 licence till year 1987-88. The said application was rejected by the Excise Commissioner by order dated 27-5-1988. The petitioners filed revision No. 6 of 1988 before the Commissioner challenging the* order of the Excise Commissioner. The order of the Commissioner was quashed by the Government by order dated 12-5-1989 and the matter was remanded to the Col lector, Bareilly, for taking appropriate ac tion under para No. 381 read with para 332 of the Excise Manual Volume I either to review the licence or refuse renewal after following the procedure laid down in Rule 381 (IV ). It is further stated in the writ petition that the petitioners did not com mit any breach of conditions of the licence FL 7. The licence was not renewed by the Collector for no fault of the petitioners. Still the Collector demanded by order dated 14-7-89 a sum of Rs. 1,62,000 for renewal of licence which was the fee pay able for the years 1987-87 to 1989-90. The petitioners deposited the said amount under the protest. A representation dated 24-7-89 was made. The petitioners were allowed to run the licence up to 30-6-85. Thereafter, they were arbitrarily not al lowed to run the licence and ultimately the petitioners were permitted to run the licence from 1-4-89. They were thus not liable to pay licence fee for the period from 1-7- 85 to 17-7-89 and a sum of Rs. 95,666 were liable to be refunded to the petitioners. It was stated that under Sec tion 24-B of the UP. Excise Act, 1910 the State has the exclusive privilege of sale and supply of liquor and the State parts with such privilege on payment of considera tion. The licence fee paid is the considera tion for sale of liquor and when the Collec tor stopped the petitioners from selling liquor without any fault on the part of the petitioners, the Government is not en titled to have the licence fee unlawfully for the period between 1- 7-85 to 17-7-89. The refund application dated 24-5-91 was rejected by the Collector, Respondent No. 3 on 17-8-91. An appeal was filed against the said order which was dismissed by the Excise Commissioner vide order dated 22-7-92. Against the order of the Excise Com missioner revision was filed before the State Government which was dismissed vide order dated 28-11-92 and the same was communicated to the petitioners on December 5, 1992. On the above stated facts and grounds the prayers mentioned above were made by the petitioners in both the writ petitions. The respondents filed counter-af fidavit of Sri M. L. Verma, District Excise Officer, Bareilly. The making of the ap plication for the grant of licence was ad mitted by the respondents. It was stated that the Collector, Bareilly issued licence as per sanction of the State Government and it was beyond the competence of the Collector to issue licence in the names of the petitioners only without prior permis sion of the Government. The Collector, Bareilly recommended the matter to the Excise Commissioner for mutation of the names sunder Rule 648 (2) of the Excise Manual Vol. I. The renewal of the licence is not a matter of right. The Government did not make it clear that the licence should be issued in the names of the petitioners only excluding the name of one of the partners. Without approval of the State Govern ment for renewal of the licence in the names of the petitioners only he Collector was not legally competent to renew the licence. The petitioners deposited the licence fee for the years 1986-87 to 1989-90 amounting to Rs. 1,62,000 without any oral and written protest. Annexure 5 to the writ petition seems to have been prepared by the petitioners after the order of the Collector passed on 17-8-89. The person receiving the so-called protest letter can not be identified and the petitioners had not submitted any such protest letter at the time of depositing of the licence fee. Genuineness of Annexure 5 to the writ petition is not beyond doubt. The licence of the petitioners was not terminated or suspended after 30-6-85 and was pending for renewal process. A sum of Rs. 1,62,000 was directed to be deposited to maintain the continuity of the licence of the petitioners and they had deposited the amount. There fore, the amount of Rs. 95,666 was not liable to be refunded and the petitioners are not entitled for the refund of the same. The order dated 17-8-91 passed by the Collector and the subsequent orders passed by the Com missioner of Excise and the State Govern ment were passed on consideration of all the relevant facts and circumstances of the case.
(3.) THE petitioners filed rejoinder-af fidavit reiterating the facts stated in the petition and further asserting that the amount of Rs. 1,62,000 pursuant to the order dated 17-7-89 passed by the Respon dent No. 3 was deposited under protest. THE amount of Rs. 1,62,000 was not deposited by the petitioners voluntarily. Sri Arun Kumar Tandon, assisted by Sri C. P. Dwivedi, learned Counsel for the petitioners and Sri Arvind Kumar brief holder for the State/opposite parties have been heard.;