Judgment · High Court · 2010

25/05/2010 HON'BLE MR. JUSTICE AJAY RASTOGI *** Mrs. Naina Saraf, for petitioner. Mr. RB Mathur, for respondents Instant petition has been filed assailing the order passed by the District Excise Officer, Alwar dt. 18/05/2010 (Anx.6) whereby, after issuing notice, the licence issued to the petitioner for running country made liquor shop for the year 2010-11 has been cancelled on account of challan being filed on 06/05/2010 under Section 19/54 of the Rajasthan Excise Act, 1950. Counsel for petitioner submits that the reasonable opportunity of hearing was not afforded to the petitioner for submitting reply to the notice served dt. 06/05/2010 and at the same time, while passing the order impugned dt. 18/05/2010, a short term advertisement dt. 18/05/2010 (Anx.7) has been issued inviting tenders for the remaining period of the year 2010-11 and if that is finalized, the right available to the petitioner of filing appeal would be seriously jeopardized and in such circumstances, the remedy of appeal, which is 2 CWP-7620/2010 available to the petitioner under the statute, would remain an empty formality.

Counsel for petitioner further tried to pursuade this Court that even on merits, the notice served upon the petitioner, was not supported with the material on record and it is because of ill-will of the respondents that the notice was served and the licence has been cancelled. Reply to writ petition has been filed on behalf of the respondents, who entered as caveator and it has been averred that immediately after the notice was served dt. 06/05/2010, the petitioner filed a civil suit before the learned Civil Judge, Alwar on 10/05/2010 in which although notices were issued but since no injunction was granted by the learned Trial Judge, the petitioner, immediately on passing of the order dated 18/05/2010, has approached this Court by filing the instant writ petition. Apart from it, counsel for respondents submits that decision was taken to serve notice upon the petitioner only after the challan was filed against him.

Counsel further submits that the incident relates to 06/05/2009 but without being prejudiced by the alleged incident, the licence of the petitioner was renewed for the year 2010-11 but after the challan was filed, 3 CWP-7620/2010 obviously after investigation, the action has been taken by the respondents after serving notice and affording reasonable opportunity of hearing, the District Excise Officer passed a reasoned order cancelling the licence of the petitioner vide order impugned dt. 18/05/2010. Counsel further submits that when alternative remedy of appeal is available under the statute to the petitioner, this Court would not like to interfere in the instant petition under its limited scope of judicial review available under Article 226 of the Constitution of India. There cannot be any dispute that the order under challenge passed by the District Exercise Officer, Alwar is an appealable order under Section 9A of the Rajasthan Excise Act, 1950 and in view of alternative statutory remedy of appeal available to the petitioner, this Court would not like to entertain the instant writ petition in exercise of its powers under Article 226 o the Constitution of India but at the same time, if the auction proceedings initiated by the respondents attain finality, before the time is afforded to the petitioner in filing appeal as provided under the statute and for seeking interim relief, that will certainly cause prejudice to the petitioner.

Taking note thereof, this Court considers it appropriate to direct that if the appeal is 4 CWP-7620/2010 preferred by the petitioner within 10 days from today along with an application for interim relief, the competent authority may consider and pass appropriate orders in accordance with law and till passing of the order on the application for interim relief, the open auction notice dt. 18/05/2010 (Anx.7) shall not be finalized. With these directions/observations, the