# Gavendra Pal Singh v. Commissioner, U.P. Excise and others

- **Citation:** (2003) 1 ILRA 44
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003
- **Case number:** Civil Misc. Writ Petition No. 2989 of 2002
- **Bench:** M. Katju, Yatindra Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gavendra-pal-singh-v-commissioner-u-p-excise-and-others-39995
- **Pages:** 4

## Text

http://www.allahabadhighcourt.nic.in
44 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
taken into account, as quoted above, it is
found that the petitioner in the first
sentence stressed the fact that there were
irregularities in counting the votes. In the
second sentence, she stated that, in fact,
the number of votes polled in her favour
have been shown to be less in the
counting, and in case of recounting, she
would be declared winner. Thereafter she
stated that she is presenting paper (3ga)
which is the election petition. After this
statement, she proceeded to state that the
entire foundation of her case is correct
counting of votes, and that she does not
want to press the point of manipulation in
counting and the persons who committed
it. The cumulative effect of her entire
statement is that she pressed the election
petition and claimed that actual number of
votes polled in her favour have both been
reflected in the counting. She has founded
her entire claim of correct counting of
votes and not with regard to manipulation
in the counting and the persons who did
it. It cannot be said that by this statement,
she has given up the pleas of corrupt
practices in the election,. The last part of
her statement may have been given in an
anxiety of recounting without specifying
the particulars or allegations and naming
the persons. The statement, however,
cannot be taken to mean that she has
given up the pleas in the election petition
with regard to corrupt practices. A close
reading of the election petition shows that
material particulars have been given ,
both with regard to booth capturing,
procedure in counting, manipulations
made during process of counting of votes
in favour of the winning candidate. These
material particulars are still to be proved
by evidence to be adduced by her .

11. Without expressing any opinion,
whether the statement given by her does
or does not entitle her for recount of
votes, it cannot be said that the statement
destroys or takes away the effect of
allegations or irregularities made in her
statement. A misplaced anxiety of the
election petitioner to press her claim and
expediency of recount, will not take away,
abridge or destroy the effect of pleadings
giving her cause of action to file, and
pursue the election petition. A statement
given under order 10 Rule 2 has to be
read as a whole. A part of it cannot be
torn out of content to be used against her.
The petitioner may have a right to file an
application under Order 7 Rule 11, CPC.
before filing a written statement, but that
her statement under Order 10 Rule 2 CPC
could not have been taken into account to
make the entire pleadings in election
petition ineffective. The petitioner has a
right to challenge the same on all grounds
available to her, and that her challenge
cannot be thrown on technical grounds,
before she is given an opportunity to
substantiate the same on record.

In the facts and circumstances of the
case, the writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 6th JANUARY, 2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE YATINDRA SINGH, J.

Civil Misc. Writ Petition No. 2989 of 2002

Gavendra Pal Singh and others

 ...Petitioners
Versus
Commissioner, U.P. Excise and others

 ...Respondents

U.P. Excise (Settlement of Licences for
Retail Sale of country liquors) Rules
http://www.allahabadhighcourt.nic.in
1 All] Gavendra Pal Singh Vs. Commissioner, U.P. Excise and others
45
2002- Lifting of minimum guaranteed
quantity of country liquor- Petitioner
aggrieved
with
minimum
prescribed
quota-
approached
to
High
Court-
claiming arbitraries by fixing licnece fee
on
minimum
quota-
held-
proper-
Petitioner made offer with their eye wide
open going through the terms and
conditions- court declined to interfere.
Held- para 10
The Petitioners voluntarily entered into
the contract after knowing about the
terms and conditions and hence they
cannot now challenge the same as held
in Hari Shanker's case ( supra).
1996 (5) SCC 740
1994 Supp. SCC-8
AIR 1971 SC-517
AIR 1976 SC-2237
AIR 1975 SC-1121
AIR 1975 SC-2008
JT 2001 (iii) SC-100

(Delivered by Hon'ble M. Katju, J.)

1. This writ petition has been filed
for a mandamus directing the respondents
not to compel the petitioners to lift the
minimum guaranteed quantity of the
country liquor from the month of
December, 2002 to 31.3.2003 and to
charge licence fee only on the amount of
quantity which is lifted for sale by the
petitioners for these months.

We have heard learned counsel for
the parties.

2. The petitioners are licencees for
retail sale of country liquor under the U.P.
Excise (Settlement of licences for Retail
Sale of country liquor) Rules, 2002 in
district Aligarh. Copies of their licneses
have been annexed as Annexure-1 to the
writ petition. These licenses have been
granted for the period from 1.4.2002 to
31.3.2003.

3. In paragraph 12 of the writ
petition the petitioners have given various
reasons for not lifting the minimum
guaranteed quantity of country liquor. It is
alleged in paragraph 13 and 14 of the
writ petition that the fixation of minimum
guaranteed quantity and the licence fee
for the same is arbitrary and illegal.

4. The respondents have filed a
counter affidavit. In paragraph 3 (b) of the
same it is mentioned that in pursuance of
the advertisement dated 18.3.2002 for
settlement of retail country liquor shops in
district Aligarh the petitioners voluntarily
made offers with their eyes wide open and
looking into the terms and conditions of
the licence and minimum guaranteed
quantity etc. and their offers were
accepted by the respondents resulting in a
concluded
contract.
The
petitioners
started running the shops in question in
terms of the licence/contract but now they
want to withdraw from their contractual
obligations.

5. In paragraph 3 C of the counter
affidavit it is stated that the annual
minimum guaranteed quantity is defined
as the quantity of country liquor as fixed
by the licensing authority in accordance
with the general or specific instructions
issued by the Excise Commissioner and
guaranteed by the licencee to be lifted by
him for his retail shop during an excise
year for the purpose of retail sale. In
paragraph 3 (d) of the counter affidavit it
is stated that the minimum guaranteed
quantity
as
fixed
by
the
Excise
Commissioner has been taken to be the
basis for calculation of the licence fee
which is the consideration for parting with
the exclusive privilege in favour of the
petitioners.
http://www.allahabadhighcourt.nic.in
46 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
6. The respondents have relied on
the decisions of the Supreme Court in
State of Orissa and others v. Narain
Prasad (1996) 5 SCC 740. They have
also relied on the decision in State of
UP v. Sheopat Rai 1994 supp. (1) SCC
8 where it was held that the licnece fee or
fixed fee can not partake the character of
either regulatory fee or compensatory fee.
In paragraph 5 of the counter affidavit it is
stated that the minimum guaranteed
quantity has been fixed by the Excise
Commissioner on the basis of the report
submitted by the Excise Authorities
concerned in response to the letter dated
15.2.2002 . A copy of the said letter has
been annexed as Annexure CA-1 to the
counter affidavit. It is stated that the
Excise Commissioner, U.P. has got power
under Section 41 C for prescribing the
scale of fee or manner of fixing the fee
payable for any licence, permit or pass
including any consideration for grant of
any exclusive or other privilege.

7.

Learned
counsel
for
the
petitioners have relied on the Supreme
Court decisions in Bimal Chandra
Banerjee v. State of Madhya Pradesh
AIR
1971
SC
517
and
Excise
Commissioner UP Allahabad v. Ram
Kumar etc. AIR 1976 SC 2237. It was
held in these decisions that even if the
minimum quantity of liquor has not been
lifted no excise duty can be charged and
the legal provisions which permits it
would
be
invalid.
However,
these
decisions have been considered and
distinguished by the Supreme Court in
State of Orissa and others v. Narain
Prasad and others (supra).

8. In paragraph 19 of the aforesaid
decisions it was held that in Bimal
Chandra Banerjee's case (supra), Ram
Kumar's case (supra) the decisions
approached the question from the point of
view of levy of excise duty, but no
argument appears to have been put
forward that the State is merely seeking to
recover the consideration for grant of
exclusive privilege/licence as per the
terms
and
conditions
of,
and
as
undertaken
in,
the
agreement.
In
paragraph 33 of the same decision it was
observed ' A review of the decided cases
of this court on the subject indicates a
clear shift in the way this matter has been
looked at. Initially, the matter was looked
at from the point of view of the levy of
excise
duty.
But
then
a
different
viewpoint emerged with the Constitution
Bench decision in Har Shanker vs. Dy.
Excise Commissioner AIR 1975 SC
1121 which was carried forward in Paana
Lal v. State of Rajasthan AIR 1975 SC
2008
and
other
decisions
which
approached the matter from the point of
view of grant of privilege.'

9. In Solomon Antony and others
vs. State of Karela and others JT 2001
(3)SC 100 a similar view was taken by
the Supreme Court and it was held that
the kist amounts have to be paid by the
contractors as the contractors with their
eye wide open have accepted the terms of
payment of consideration of the kist.

10. The petitioners voluntarily
entered into the contract after knowing
about the terms and conditions and hence
they cannot now challenge the same as
held in Hari Shanker's case (supra).

11. There is no merit in this petition
and it is dismissed. Interim order if any is
vacated.
---------
http://www.allahabadhighcourt.nic.in
1 All] Harihar Man Singh Vs. The Chairman, U.P. State Electricity Board U.P. and another
47
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.12.2002

BEFORE
THE HON'BLE G.P. MATHUR, A.C.J.
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 18926 of 1998

Harihar Man Singh
 ...Petitioners
Versus
The Chairman, U.P. State Electricity
Board U.P. and another ...Oppo. Parties

Counsel for the Petitioner:
Sri S.N. Verma

Counsel for the Respondents:
Sri Sudhir Agarwal

Constitution of India, Article 226- Mode
of charging electric tariff-- Tube well
operators in rural areas- connection
given
for
agriculture
purpose
by
charging as per schedule L.M.V. 5- w.e.f.
16.7.94 the Board started charging as
per LMV 6- despite of offer given by the
board they continued with rural feeder-
can not be permitted to challenge on the
ground of duration of supply hours-
However if such representation made -
counsel for board assured to decide the
same in accordance with law.

Held- para 7

The petitioners have admittedly entered
into agreements for supply of electricity
and the respondents are charging them
as per the agreed terms and rates. They
were given an option for change from
urban feeder to rural feeder, which they
did not avail and are continuing to get
their power supplies from the urban
feeders. Having opted for the same, they
cannot now complain that they be
charged at the rate schedule as for those
getting supplies from rural feeders.

(Delivered by Hon'ble Vineet Saran, J.)

1. This is a bunch of writ petitions
involving common questions of fact and
law and hence they are being decided by a
common judgment. In most of the writ
petitions counter and rejoinder affidavits
have been exchanged. The writ petition
no. 18926 of 1998 (Harihar Man Singh v.
Chairman, UPSEB and others) is being
taken up as the leading petition.

2. We have heard learned counsel
for the petitioners as well as Sri Sudhir
Agarwal for the respondent U.P. State
Electricity Board (supra).

3. It is the case of the petitioners that
they operate their tube well pumps in
semi urban and rural areas and for that
purpose they have taken electricity
connections from the respondent UPSEB.
It is the contention of the petitioners that
since they are running the tube well
pumps for agricultural purposes i.e. for
irrigating their agricultural fields, rate
schedule applicable to them should be the
schedule for private tube well pumps in
rural areas, as given in schedule LMV-5.
The
petitioners
contend
that
w.e.f.
16.7.1994, the respondent U.P. State
Electricity Board has started charging the
petitioners under rate schedule of LMV-6
which is for those getting electricity
supplies from non rural urban feeders.

4. By means of this writ petition, the
petitioners have challenged the electricity
bills issued to them on the basis of the
revised traffic rates placing them in LMV6 category. The main grounds of
challenge are that prior to the change in
schedule of rates, the petitioners were
never given any opportunity of hearing. It
has been contended by the learned