SPA/279/2021 of BALKAR SINGH Vs STATE OF UTTARAKHAND

IN THE HIGH COURT OF UTTARAKHANDAT NAINITAL

THE HON’BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN AND THE HON’BLE SRI JUSTICE ALOK KUMAR VERMA

16[TH] SEPTEMBER, 2021

SPECIAL APPEAL NO.279 OF 2021

Between:

Balkar Singh

…Appellant

and

State of Uttarakhand and others. …Respondents

Counsel for the appellant : Mr. M.C. Pant with Mr.

Vijay Singh.

Counsel for the respondent : Mr. C.S. Rawat, learned

Nos. 1 to 6.

Chief Standing Counsel for the State. for the State.

Counsel for the respondent : Mr. Bhavya Pratap no.7. Singh, holding brief of

Singh, holding brief of Mr. Sanpreet Singh Ajmani.

The Court made the following:

JUDGMENT:(per Hon’ble Sri Justice Alok Kumar Verma)

This special appeal arises from judgment and order dated 09.08.2021, passed by the learned Single Judge in Writ Petition (M/S) No.400 of 2021,

‘Balkar Singh vs. State of Uttarakhand and others’, filed under Article 226 of the Constitution of India. The learned Single Judge dismissed the writ petition.

2. The case of the appellant-writ petitioner, necessary to be noted for deciding the appeal, is that the petitioner is farmer. He had never applied for any allotment of any liquor shop. The documents relating to the allotment of the liquor shop in the name of the petitioner had been obtained and prepared fraudulently by Navneet Agarwal, the respondent no.7, in order to obtain the allotment. The respondent no.7 has obtained the allotment of liquor shop by impersonating the petitioner. The allotment letter was obtained in the name of the petitioner. On 23.03.2020, Liquor Shop FL Shop Pithoragarh No.1B was allotted in the name of the petitioner. The license fee was adjudged as Rs.8,47,22,295/-. However, the said allotment letter was never provided to the petitioner. The petitioner was served with letter dated 18.09.2020, issued by the office of the Excise Commissioner, Dehradun, the respondent no.6, whereby it was stated that an appeal in terms of Section 11 of the Uttarakhand (United Provinces Excise Act, 1910) (Adaptation and Modification Order, 2002) (hereinafter referred to as, “the Act, 1910”) has been filed and in terms of the provision of

Section 11 of the Act, 1910, the 25% of the disputed amount is to be deposited for the appeal to be heard. Again, on 23.01.2021, the petitioner was served with the impugned order, issued by the Sub-Divisional Magistrate/Assistant Collector, Haldwani, District Nainital, the respondent no.4, for recovery of an amount of Rs.4,08,71,002/-. The property of the petitioner, valued at Rs.2,21,70,000/- was attached in lieu of the said recovery. The petitioner has lodged an F.I.R. and submitted the representations to the police authorities. The respondent no.7 has also prepared writ petitions and special appeal in the name of the petitioner by forging the signatures and other particulars of the petitioner. The petitioner has also filed an application in the pending appeal, filed under Section 11 of the Act, 1910. The petitioner is victim of fraud. Hence, he filed the said writ petition with the following reliefs:-

(a)Issue writ, order or direction in the nature of certiorari quashing the order being Zamindari Abolition “Aakar Patra” No. 73- dated 23.01.2021, issued by the Respondent no.4 (annexure no.4), to the extent of realization of the amount mentioned in the citation from the property of the petitioner; of certiorari quashing the order being Zamindari Abolition “Aakar Patra” No. 73- dated 23.01.2021, issued by the Respondent no.4 (annexure no.4), to the extent of realization of the amount mentioned in the citation from the property of the petitioner;

(b)Issue writ, order or direction in the nature of mandamus directing the respondents not of mandamus directing the respondents not

to take any coercive steps/actions with respect to the property of the petitioner i.e. Khata No. 06 admeasuring 0.879 hectare; Khata No. 15 admeasuring 1.338 hectare, total admeasuring 2.217 hectare in village Haripur Thathola, Tehsil Haldwani, District Nainital, pursuant to the order dated 23.1.2021 (annexure no.4);

Issue writ, order or direction in the nature of mandamus directing for appropriate investigation, enquiry and action on the fraud and forgery committed by the private respondent i.e. respondent no. 07 by use of documents relating to the property of the petitioner such as solvency certificate, character certificate and other documents, to apply for the allotment proceedings of F.L. 5 shop Pithoragarh No.1B held on 23.03.2020.

3. The learned Single Judge observed, “The present writ petition happens to be fifth set of proceedings in succession. There had been earlier four other writ petitions, which have been decided by the Coordinate Benches of this Court. The records of the writ petition, revealed that the sole contest of the petitioner as given in the writ petition is as against the issuance of Aakar Patra 73-D dated 23.01.2021, for the purposes of recovery of excise dues, he has taken defence that in fact:-

(i) He was not an allottee of the liquor shop.

(ii) He never applied for the shop being allotted to him.

(iii) He never managed or controlled the shop, which was being operated under the license granted.

(iv) That the other earlier writ petitions, which were preferred, they were not preferred by him, rather somebody else has fraudulently placed his signature and had filed the writ petition and had sought directions.

But the facts apparent from the records, are that as against the excise dues payable towards, by the Foreign Liquor Shops, which were allotted in the name of the petitioner by an act of respondent no.7, who has alleged to have impersonated him, there is already an appeal, pending, which has been preferred under Section 11 of the Excise Act, which is pending consideration before the Additional Commissioner. If at all there is any sanctity in the statement, made by the petitioner that he was not the beneficiary of the allotment, no excise dues would be payable by him the propriety demanded; that when the petitioner

was conscious of the fact that an appeal has been preferred, under Section 11 of the Act, by impersonating him, he ought to have approached the appellate court and brought this fact to the knowledge of the appellate authority, who could have better decided the matter by appreciating the facts of allotment, which is alleged to have been made by impersonation.

The writ petition as against the issuance of the recovery citation by way of Aakar Patra No.73 D, under this controversial backdrop and set of disputed facts, which entails an appreciation of fact and evidence would not be the appropriate remedy available to the petitioner”.

4. The learned Single Judge dismissed the writ petition, with liberty to the petitioner, to approach the appellate authority, where an impersonated appeal under Section 11 of the Act in his name is pending consideration and raise all his grievances against the impersonated allotment of shops, which he contends was made by respondent no.7, and the appellate court will consider all the aspects and will

decide the controversy after hearing the parties concerned.

5. Heard and perused the record.

6. Mr. M.C. Pant, the learned counsel for the appellant, submitted that the question involved in the writ petition cannot be decided in the appeal, filed under Section 11 of the Act, 1910, so far as the question of fraud can be looked into by the Court itself; while adjudicating the matter under Article 226 of the Constitution of India, the Writ Court has vast power to administer and check the veracity of the order which has been put to challenge before it; the learned Single Judge has overlooked the merits of the case; in appeal, the Excise Commissioner has not taken any action so far on the letter of the appellant.

7. Countering the above contentions, the learned counsel for the respondents have supported the impugned judgment.

8. Though the powers of the High Court under Article 226 are discretionary and no limits can be placed upon that discretion, it must be exercised along recognized lines and subject to self-imposed limitations.

Under Article 226, the High Court does not sit or act as an appellate authority.

9. In Pepsi Food Limited vs. Special Judicial

Magistrate and others, 1998 (36) ACC 20, the Hon’ble Supreme Court has observed that the power conferred on the High Court under Article 226 and 227 of the Constitution of India have no limits, but more the power more due care and caution is to be exercised in invoking these powers.

10. In Civil Appeal No. 1155 of 2021 ‘M/s

Radha Krishan Industries Versus State of Himachal Pradeshand others’ the Hon’ble Supreme Court held on 20.04.2021,

“27. The principles of law which emerge are that:

(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;

(ii) The High Court has the discretion not to entertain writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;

(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of fundamental right

protected by Part III of the Constitution; (b) there has been violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of legislation is challenged;

(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, writ petition should not be entertained when an efficacious alternate remedy is provided by law;

(v) When right is created by statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is rule of policy, convenience and discretion; and

(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such view would not readily be interfered with.

11. The Hon’ble Supreme Court further observed that these principles have been consistently upheld in Seth Chand Ratan vs. Pandit Durga Prasad, (2003) 5 SCC 399, Babubhai Muljibhai Patel vs. Nandlal

Khodidas Barot, (1974) 2 SCC 706 and Rajasthan SEB vs. Union of India, (2008) 5 SCC 632 among other decisions.

12. Admittedly, the appeal under Section 11 of the Act, 1910 is still pending before the Excise Commissioner and disputed questions of facts are involved in this matter, the appellant can press his application, filed before the Excise Commissioner. The right of appeal is created by the Act, 1910, which itself prescribes the remedy and procedure for enforcing the right and liability. In these backgrounds, the learned Single Judge rightly declined to exercise its jurisdiction under Article 226 of the Constitution of India. Therefore, we concur with the conclusion reached by the learned Single Judge.

13. In the result, this Court does not find any merit in the present Special Appeal. Therefore, it is dismissed. No costs.

_______________________________

RAGHVENDRA SINGH CHAUHAN, C.J.

_________________

ALOK KUMAR VERMA, J.