- (1.) BY this petition under Article 226 of the Constitution, the petitioner challenges the citation dated 20-4- 1982, a copy of which is Annexure-7 to the writ petition, issued by the Tehsildar, Kanpur, demanding a sum of Rs. 21,500/-from the petitioner without disclosing on what account the demand was being made. The petitioner also seeks a writ of mandamus directing the respondents to drop the recovery proceedings for the aforesaid sum.
(2.) THE petitioner's case is that he offered a bid for the grant of licence to run a Bhang shop for the year 1981-82 and his bid for Rs. 50,000/- was provisionally ac cepted and he deposited Rs. 8,500/- in advance. THE bid was subject to approval by the Excise Commissioner who did not approve the bid. Consequently, the petitioner was granted temporary licence and he deposited a sum of Rs. 102. 50/- on 3-4-1981. THE Excise Officer vide letter dated 3-5-1981 offered to the petitioner to run the said shop on temporary daily licence fee basis which was not accepted by the petitioner. Despite non-acceptance of the offer by the petitioner, the District Excise Officer unilaterally granted tem porary licence to the petitioner for the period 3-5-1981 to 9- 5-1981 on a licence fee of Rs. 959/ -. THE District Excise Officer also threatened the petitioner that in the event of his failure to run the shop and he would have to face the consequences. THE petitioner's case is that no notice was given to him before issuing the recovery certifi cate and the same has been issued ar bitrarily. In the counter-affidavit that has been filed by the respondents, it is ad mitted that the petitioner's bid was highest and he deposited an amount of Rs. 8,500/-in advance being 1 /6th of the bid amount. It is also admitted that the Excise Commis sioner, did not except the bid. It is claimed that as the bids were not approved by the Excise Commissioner, the petitioner Ram Pal Singh moved the District Excise Of ficer, Kanpur agreeing to run the Rooma Bhang Shop on daily basis at annual fee of Rs. 50,000/- and he ran the shop till 16-6-1981 and defaulted to pay the due licence fee. The shop was, therefore, again settled with one Rajendra Prasad Misra for Rs. 50,000/ -. In para 9 of the counter-affidavit it is stated that the petitioner ran the shop in April and May, 1981 and closed the shop after that and made an application to that effect to the Distt. Excise Officer, Kanpur on 1-6-1981. The counter-affidavit does not disclose for what amount the recovery certificate was issued against the petitioner and how the amount of demand was determined. No document whatsoever has been annexed to the counter-affidavit. We have heard Sri N. L. Srivastava, learned Counsel for the petitioner and Sri C. S. Singh, learned Standing Counsel. As is evident, there is factual dispute between the parties as to whether and if so, for what period the petitioner was under temporary licence to run the said Bhang shop. It is admitted in para 3 of the writ petition that the petitioner was allowed to carry on the said shop and in para 4 it is admitted that he deposited Rs. 102. 50 on 3-4-1981. The petitioner's contention is that the recovery certificate has been arbitrarily issued. The counter-affidavit does not negative the charge of arbitrariness because it is not clear for what amount the recovery certifi cate has been issued and how the said amount has been determined. It is also not stated that any show cause notice was served by the excise authorities on the petitioner before issuing the recovery cer tificate. In para 11 of the counter-affidavit it is stated that the petitioner had agreed to run the shop on his actual bid of Rs. 50,000/- but failed to deposit the dues and the shop was resettled to the loss of revenue and this amount was to be recovered from the petitioner. In para 8 it has been stated that the shop was resettled with Rajendra Prasad Misra for Rs. 50,000/ -. Therefore, so far as the bid money is concerned, there was no actual loss to the Government. Therefore, the respon dents have not been able to justify the issuance of recovery certificate which has patently been issued without giving the petitioner any notice of demand etc. In our view, the issue of recovery certificate was not justified and consequently the citation (Annexure-7 to the petition) is also without any valid ground.
(3.) WE, therefore, allow this petition and quash the demand of Rs. 21,500/- as mentioned in the citation dated 20-4-1982. It would be open to the respondents to take fresh appropriate proceeding after issuing a fresh notice of demand to the legal representative of the petitioner, the petitioner having died, giving necessary details and after hearing their Objections, if any. Petition allowed. .;