High Court · 2025 on 06 Aug 2025

Judgment

1. Heard Ms. Utkarshni Singh, learned counsel for the petitioner, and Sri R.S. Pandey, learned Additional Chief Standing Counsel for the State-respondents.

2. By means of this writ petition, the following prayer has been made: “1. Issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 09.06.2023 (Annexure No.1) passed by the respondent no.3 as well as the order dated 11.09.2023 (Annexure No.2) passed by the respondent no.2 and the impugned order dated 27.02.2024 (Annexure No.3) passed by the respondent no.2;

2. Issue a writ, order or direction in the nature of certiorari quashing the order of blacklisting of the petitioner by the respondent authorities.

3. Issue a writ, order of direction in the nature of mandamus, commanding the respondents to release the basic licence fee and security amount of the petitioner.

4. Issue a writ, order of direction in the nature of mandamus commanding the respondent no.3 to restore the country liquor shop licence of the petitioner.

5. …………..

6. …………..;”

Learned counsel for the petitioner submits that the licence of the petitioner has been cancelled vide order dated 09.06.2023 without any authority of law; whereby the security and basic licence fee deposited by the petitioner has been forfeited.

4. She further submits that the facts of the case are that the petitioner 2 was given licence of country made liquor shop, Mohana for 2023- 24 since 01.04.2023, but on 10.04.2023, the petitioner was served with a show cause notice issued by the respondent no.3, as a consequence of report of Dy. S.P., Jalaun wherein it has been alleged that a first information report has been lodged against Veer Singh @ Virendra Singh, who is the son of the petitioner, at Police Station- Dabar, District- Jalaun, which was registered as Case Crime No. 05 of 2019, under Sections 60/72 of Excise Act and under Sections 419, 420, 467, 468, 417, 471 IPC, and another first information report was lodged at Police Station- Kuthond, District- Jalaun against the son of the petitioner, which was registered as Case Crime No.215 of 2020, under the aforesaid sections, and on the basis of aforesaid two FIRs, a case has been registered under Section 2/3 of the Gangster Act, Case Crime No. 68/2022, Police Station- Kuthon, Distrit- Jalaun of Excise Act and under Sections 419, 420,467, 468, 417 and 472 IPC. To the show cause notice, a detailed reply was submitted by the petitioner, but not being satisfied with the same, the impugned order has been passed on

09.06.2023. In the meantime, the character certificate dated

11.02.2023 has also been cancelled/nullified vide order dated

13.02.2023.

5. She further submits that on the basis of aforesaid criminal cases pending against the son of the petitioner, and on alleged faulty affidavit being filed, treated the case of the petitioner a clear cut violation of Section 34 (1) (b) of the Excise Act, 1910 has been made. Being aggrieved by the said order, the petitioner filed an appeal No. 15/1990, but on 16.06.2023, the said appeal was dismissed vide order dated 11.09.2023, against which the petitioner 3 filed a revision under Selection 11(2) of the U.P. Excise Act, 1910 but by the impugned order dated 27.02.2024, the same was also rejected without considering the material available on record.

6. Learned counsel for the petitioner submits that none of the provisions of the U.P. Excise Act, 1910 or the Rules framed thereunder has been violated and therefore, the impugned orders are bad,

7. She further submits that neither the any liquor or intoxicating materials has been found from the possession of the petitioner nor any false affidavit has been filed.

8. She further submits that the Rule 2(1) (c) (d) (9) is not at all applicable in the facts of the present case, and therefore, the order passed are wholly bad. She further submits that Rule 2 (h) of the Act defines that family is also not applicable in the present case as the son of the petitioner is not dependent upon the petitioner, nor any specific finding or material has been brought on record before this Court on behalf of the State. She further submits that action of the State is arbitrary and is liable to be set aside.

9. Per contra, learned Standing Counsel supports the impugned order by submitting that the petitioner’s son was involved in two criminal cases, and therefore, the proceedings have rightly been justified. He further submits that the son of the petitioner was looking after the affairs of the shop, which clearly shows that the son is dependent upon the petitioner and therefore, the case of the of the petitioner is entirely covered under the definition of Section 2 (h) of the Excise Act and Rules.

10. After hearing the parties, the Court has perused the record.

11. Perusal of the orders impugned shows that the impugned orders have been passed on the basis that the son of the petitioner was 4 involved in two criminal cases and is alleged to be looking after the affairs of the shop .

12. The record further shows that the son of the petitioner has neither been convicted in any of the aforesaid criminal cases as on date, nor the petitioner nor her servant nor her agent have ever been convicted in any criminal case, nor any material has been brought on record. Once neither any material has been brought on record, and therefore, sections and the rules of the excise act are not attracted at all.

13. Further, the authorities have not recorded any finding showing that the son of the petitioner is dependent upon the petitioner, as contemplated under Section 2 (g) of the Rules.

14. It is argued by the petitioner that merely because the son of the petitioner is involved in an offence, none of the ingredients of Section 34 of the Act or Rule 21 of the Rules, 2020 are attracted so as to exercise power of cancellation as has been done by the department. He argues that Section 34(1)(b) of the Act provides that in the event of breach of any condition of the license either by the licensee, or by his servant or by any person acting on his behalf in respect of the conditions of the license, steps can be taken for cancellation, whereas in the present case, the son of the petitioner does not fall in any of the said three categories and even otherwise, there is no allegation of breach of any condition of the license granted to the petitioner.

15. It is also argued that in terms of Section 34(1)(c) of the Act, the powers can be invoked by the Licensing Authority only if the holder of the license is convicted of an offence, whereas admittedly in the present case, the petitioner has never been convicted of any offence, thus, it is argued that none of the conditions prescribed under Section 34(1)(a) to (e) are attracted. 5

16. It is further argued that even in terms of Rule 21 of the Rules, 2020, steps for cancellation can be taken only when the licensee is convicted of an offence punishable and specified in Rule 21(1)(g) of the Rules, 2020, whereas in the present case the petitioner being the license holder has not been convicted in any of the offences.

17. In the counter affidavit filed by the State it has been reiterated that the husband of the petitioner was involved in an offence, which is the foundation for passing of the order. It is further sought to be argued that at the time of obtaining license, the petitioner had given an affidavit that neither herself nor any of the family members are involved in any crime, whereas a criminal case was admittedly registered against the husband of the petitioner.

18. In the light of the said submission and on perusal of the cancellation order, it transpires that it has been cancelled because the son of the petitioner is accused for an offence. None of the ingredients of Section 34(1) of the Act or Rule 21 of the Rules, 2020 get attracted so as to enable the Licensing Authority to cancel the license on these grounds as has been done in the present case.

19. The controversy in hand is covered by the judgment and order in the case of Kanpuriya Jaiswal Vs. State of U.P. and 5 others passed in (Writ Tax No.623 of 2022), decided on 29.03.2023 by this Court.

20. In view of the facts as stated above and in the light of the judgment of this Court passed in Kanpuriya Jaiswal (supra), there is no authority vested in the authorities to take steps for cancellation either under Section 34 of the Act or under the Rules only on the ground that son of the petitioner is an accused, the impugned orders are liable to be set aside and is accordingly, set aside.

21. In the result, the writ petition is allowed. 6

22. The amount of security forfeited shall be refunded to the petitioner in accordance with law and her application for renewal of the shop license for the period 2023-24 shall be considered afresh and fresh orders thereupon shall be passed within a period of three weeks from the production of a certified copy of this order in accordance with law.

23. It is further clarified that pendency of the criminal case against the son of the petitioner would not be a ground available to the respondents in deciding the application for renewal of the license, as directed above. Order Date :- 06.08.2025 Pravesh Mishra/- (PIYUSH AGRAWAL, J.) PRAVESH KUMAR MISHRA High Court of Judicature at Allahabad