# Phool Chandra v. State of U.P. & Ors

- **Citation:** (2019) 4 ILRA 848
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-05
- **Case number:** Writ Tax No. 1288 of 2019
- **Bench:** Biswanath Somadder, Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/phool-chandra-v-state-of-u-p-ors-44960
- **Pages:** 3

## Headnote

A. Constitution of India: Article 226;
United
Provinces
Excise
Act,
1910:
Section 11(1) - Alternative remedy

S.11(1) provides statutory appeal in respect of
the impugned order in which petitioner‟s
licence to operate a country liquor shop has
been
cancelled.
In
absence
of
any
demonstration of palpable arbitrariness, mala
fides or procedural impropriety, Court cannot
exercise discretionary jurisdiction u/Art. 226.
(Para 5, 6, 7)

Writ Petition disposed of. (E-4)

Present writ petition is against order dated
25.10.2019,
issued
by
District
magistrate/LicensingAuthority, Prayagraj.

(Delivered
by
Hon'ble
Biswanath
Somadder,J. & Hon'ble Ajay Bhanot,J.)

## Text

848 INDIAN LAW REPORTS ALLAHABAD SERIES
that too
is possible
only
on the
recommendation of the Council.

8. If we are to assume that the
Commissioner
while
exercising
his
powers under Rule 120-A of the Uttar
Pradesh Goods & Services Tax Rules,
2017 can extend the time period for the
purpose of filing of a revised declaration
by a registered person in FORM G.S.T.
T.R.A.N-1 for an unlimited or an
indefinite period, it would simply mean
that any registered person can avail the
benefit of filing a revised declaration in
FORM G.S.T. T.R.A.N-1 for an unlimited
or
indefinite
period
of
time
after
submitting a declaration electronically in
FORM G.S.T. T.R.A.N-1 under Rule 117
of the Uttar Pradesh Goods & Services
Tax Rules, 2017. That surely could not
have been the purpose and intention of the
legislature. Rather, the legislature in its
wisdom has noticed Rule 117, Rule 118,
Rule 119 and Rule 120, while framing
Rule 120-A of the Uttar Pradesh Goods &
Services Tax Rules, 2017. The first
proviso attached to Rule 117 of the Uttar
Pradesh Goods & Services Tax Rules,
2017, reads as follows;-

"Provided that the Commissioner
may, on the recommendations of the Council,
extend the period of ninety days by a further
period not exceeding ninety days."

9. In such circumstances as stated
above, a writ in the nature of mandamus,
as prayed for, cannot be granted by this
Court. However, it is open to the Council
to take a decision in the matter in the light
of the writ petitioner's letter dated 28th
March, 2019.

10. The writ petition is accordingly,
disposed of.
----------
(2019)12 ILR A848

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.12.2019

BEFORE
THE HON'BLE BISWANATH SOMADDER, J.
THE HON'BLE AJAY BHANOT, J.

Writ Tax No. 1288 of 2019

Phool Chandra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rajesh Kumar Tiwari

Counsel for the Respondents:
C.S.C.

A. Constitution of India: Article 226;
United
Provinces
Excise
Act,
1910:
Section 11(1) - Alternative remedy

S.11(1) provides statutory appeal in respect of
the impugned order in which petitioner‟s
licence to operate a country liquor shop has
been
cancelled.
In
absence
of
any
demonstration of palpable arbitrariness, mala
fides or procedural impropriety, Court cannot
exercise discretionary jurisdiction u/Art. 226.
(Para 5, 6, 7)

Writ Petition disposed of. (E-4)

Present writ petition is against order dated
25.10.2019,
issued
by
District
magistrate/LicensingAuthority, Prayagraj.

(Delivered
by
Hon'ble
Biswanath
Somadder,J. & Hon'ble Ajay Bhanot,J.)

1. This writ petition has been taken
out by one Phool Chandra, seeking this
Court's interference in respect of an order
dated 25th October, 2019, issued by the
District Magistrate / Licensing Authority,
Prayagraj, whereby the petitioner's licence
4 All. Phool Chandra Vs. State of U.P. & Ors.
849
to operate a country liquor shop stood
cancelled. A further prayer has been made
by the writ petitioner to restore his license
so that he is allowed to run his country
liquor shop, which is situated in village -
Sithauli, Police Station - Utraon, District -
Prayagraj, till 31st March, 2020.

2. A report in the form of an
affidavit was called for in terms of our
order dated 25th November, 2019, from
the concerned respondent authority to
enable the said authority to respond to the
specific allegations as sought to be made
in the writ petition. Such report in the
form of an affidavit has been filed by the
District Excise Officer, Prayagraj, which
is on record.

3. A plain reading of the report
reveals the following facts which appear
at paragraphs 4, 5, 6, 7 and 8 therein :-

"4. That on 12.08.2019, a surprise
inspection of the country liquor shop Sitholi
was done. During the inspection 33 duplicate
quarters of Windies Lime brand were
recovered from the shop in the presence of the
Salesman of the Shop Hariom Pal S/o Ram
Sumer Pal but his relative Kamlesh Pal is
supplying this duplicate liquor. The Salesman
of the shop was taken in the custody and an
F.I.R. was lodged in Police Station Utraon,
Prayagraj. Sample of the recovered spurious
liquor were drawn and sent to Assistant
Excise
Commissioner,
Radico
Khetan
Distillery, Rampur for laboratory testing.

5. That by an order of District
Magistrate / Licencing Authority dated
14.08.2019 the license of the Country
Liquor Shop Sitholi was suspended and
Show Cause Notice was served to
petitioner. In the interest of the revenue
the shop was resettled on temporary daily
basis by tender offer method.

6. That the laboratory testing
report proves that the liquor recovered
from Country Liquor Shop Sitholi was
duplicate liquor as Liquor, Bottle, Cap
seal, Label, QR Code all were found
duplicate. A copy of lab report is being
filed herewith and marked as Annexure
No. 1 to this affidavit.

7. That by selling Spurious
Liquor, the petitioner was not causing loss
to Government Revenue but was also
putting health hazards to consumers of his
shop. This may kindly noted that in many
districts of Uttar Pradesh more that 150
people have died by consuming spurious
liquor in recent months.

8.
That
the
representation
20.08.2019 filed by the petitioner was found
unsatisfactory and after receipt of Laboratory
Report, in the interest of public health and life
safety as also for the protection of the
government revenue, the Licencing Authority
cancelled licence of the petitioner's shop by
Order dated 25.10.2019."

4. Apart from the above statements
made by the District Excise Officer,
Prayagraj, we find from a reading of the
impugned order dated 25th October,
2019, that the writ petitioner was, in fact,
given an opportunity of hearing by the
District Magistrate / Licensing Authority,
Prayagraj, and he participated in the
adjudicatory process by responding to the
said notice. The following sentence in the
impugned order dated 25th October,
2019, is a clear pointer in this direction:-

"उक्त नोचटस के
प्रचतउत्तर में
850 INDIAN LAW REPORTS ALLAHABAD SERIES
अनुज्ञापी द्वारा अपना
उत्तर उपलब्ध कराया

गया।
"

 English translation:-

"In response to the said notice,
reply was made available by the licensee.

5. Section 11(1) of the United
Provinces Excise Act, 1910, provides for
statutory appeal
in respect
of the
impugned order dated 25th October,
2019.

6. In the facts and circumstances of
the instant case, the writ petitioner - in the
absence of any demonstration of palpable
arbitrariness or mala fides or perversities
(all of which could have vitiated the due
process of law being followed) and
particularly in the absence of any
procedural impropriety, ought to have
approached
the
statutory
appellate
authority instead of rushing to the writ
Court.

7. We are, therefore, not inclined to
exercise our discretionary jurisdiction
under Article 226 of the Constitution of
India and leave it open to the writ
petitioner to proceed in accordance with
law.

8. However, we wish to observe that
in the event, statutory appeal is filed
within a period of fortnight from date, the
appellate authority is requested to dispose
of the appeal as expeditiously as possible.

9. The writ petition stands disposed
of accordingly.
----------
(2019)12 ILR A850

REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.12.2019

BEFORE
THE HON'BLE VIVEK CHAUDHARY, J.

Civil Revision Defective No. 67 of 2019

Syed Mehdi Hasan Nizami ...Revisionist
Versus
Syed Mahfooz Hasan Nizami & Ors.
 ...Opposite Parties

Counsel for the Revisionist:
Najam Zafar

Counsel for the Opposite Parties:
Q.H. Rizvi

A. Civil Law - Code of Civil Procedure,
1908 - Waqf Act, 1995 - Section 83(9) &
Limitation Act, 1963 - Article 137 - The
petition is an application falling within
the scope of Article 137 of the 1963
Limitation Act - The alteration of the
division as well as the change in the
collocation of words in Article 137 of the
Limitation Act, 1963 compared with
Article 181 of the 1908 Limitation Act
shows that applications contemplated
under Article 137 are not applications
confined to the Code of Civil ProcedureArticle 137 of the Limitation Act is
applicable on proceedings held under
any Special Act for which no period of
limitation is provided.

In the present case, the revision is filed under
Section 83(9) of the Waqf Act for which no
period of limitation is provided in the said Act.
Article 137 of the Limitation Act would be
applicable to such revisions filed under Section
83(9) of the Waqf Act, 1995 and, therefore,
limitation for filing such revision is three years
and not three months.

Civil Revision allowed. (E-6)

List of cases cited: -

1. Ganesan represented by its Power Agent G.
Rukmani Ganeshn Vs. Commissioner, Tamil