# S.M.A. Abdi and another v. P.S. Brotherhood and another

- **Citation:** (2010) 2 ILRA 442
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-05-28
- **Case number:** Civil Misc. Writ Petition No. 673 of 2010
- **Bench:** Rajes Kumar, Bharati Sapru
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/s-m-a-abdi-and-another-v-p-s-brotherhood-and-another-41572
- **Pages:** 6

## Headnote

Retail/Sale of Bear) Rules 2001-Rules-6Renewal of licence-petition was running
bear shop with his name exclusively for
the year 2009-10-new policy introduced
for
the
year
2010-11-also
provides
renewal-co-licencee
has
already
separated himself much prior to grant of
licence held-action of Distt. Magistrate
settlement of licence through lottery
illegal-existing licensee had right of
renewal.

Held: Para 8 & 9

We find substance in the argument of
learned counsel for the petitioner. Rule 6
of the Uttar Pradesh Excise (Settlement
of Licences for Retail Sale of Beer) Rules,
2001
contemplates
the
renewal
of
licence for such period, and on such
terms and conditions as decided by the
State
Government.
The
State
Government has introduced the Excise
policy for the year 2010-11 which
provides for the renewal of existing
license. Therefore, there is no dispute
that the existing licensees had a right of
renewal of their licences for the year
2010-11. The question for consideration
is that on the date when the Excise
policy for the year 2010-11 has been
introduced giving right to the existing
licensees to get their licence renewed,
who was the licensee. Admittedly, the
licence dated 29.9.2009 for the year
2009-10 was issued in the name of the
petitioner only. Sri Sanjay Kumar Gupta
was not shown as co-licensee in the
licence and, therefore, we are of the
view that the petitioner, being the
existing licensee, had a right of renewal
and his licence should be renewed for
the year 2010-11.

We are further of the view that the pleas
of Sri Sanjay Kumar Gupta had no
substance. By the letter dated 15.5.2009,
Sri Sanjay Kumar Gupta, stated that he
wants to withdraw from the shop.
Therefore, while issuing the licence it
appears that the application of Sri
Sanjay Kumar Gupta for withdrawing
himself
as
a
co-allottee
had
been
accepted.
It
is
not
the
case
of
respondent nos. 2 and 3 that the alleged
letter dated 4.8.2009 filed along with an
affidavit and the alleged letter dated
17.8.2009 had been confronted to the
petitioner at any stage during the
subsistence of the licence. It is not their
case that they acted upon such letters
and affidavits and taken any action. It is
also surprising that after filing the
aforesaid
letters
and
affidavits,
Sri
Sanjay Kumar Gupta kept mum for more
than seven months and woke up on
10.3.2010 when the time for renewal of
the licence had come. Admittedly, the
licence dated 29.9.2009 issued only in
the name of the petitioner has not been
suspended or cancelled till date. We
2 All] S.M.A. Abdi and another V. P.S. Brotherhood and another
443
have gone through the letter dated
4.8.2009 filed along with an affidavit and
the
letter
dated
10.3.2010.
The
averments made in the letters are
contradictory.
In
the
letter
dated
10.3.2010
Sri
Sanjay
Kumar
Gupta
stated that for the year 2009-10 the
shop was running properly and for the
future years there might not be a proper
understanding and the principal allottee
had given threat several times that he
would misuse the licence in the coming
year and would involve him. In this letter
there is no reference about the earlier
letters dated 4.8.2009, affidavits and the
letter dated 17.8.2009. In the order
dated 12.3.2010 passed by the District
Magistrate, Firozabad also there is no
reference of the earlier letters. Photostat
copies of the original application dated
15.5.2009 of Sri Sanjay Kumar Gupta,
affidavit dated 28.4.2009, affidavit dated
4.8.2009
and
the
application
dated
10.3.2010 are as Annexures-C.A.-4, C.A.5
and C.A.7 to the counter affidavit. The
signature available on the applications
and the affidavits appear to be the same.
Therefore,
on
the
facts
and
circumstances, it appears that the plea
of Sri Sanjay Kumar Gupta that signature
on the application dated 15.5.2009 and
the affidavit dated 28.4.2009 are not his
signature and are forged, cannot be
accepted. It further appears that the
subsequent letter dated 4.8.2009 and
the
affidavits
are
the
subsequent
cr

## Text

442 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

19. The undertaking given before
this Court will be complied with within
two
months
from
the
date
of
communication of this order.

20. The appeal is disposed of with
the above directions and observations,
however, without passing any order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.05.2010

BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE BHARATI SAPRU, J.

Civil Misc. Writ Petition No. 673 of 2010

Vishwakant Gupta

 ...Petitioner
Versus
The State of U.P. & others ...Respondents

Counsel for the Petitioner:
H.N. Singh
B.N. Singh

Counsel for the Respondents:
C.S.C.

U.P. Excise(Settlement of Licence for
Retail/Sale of Bear) Rules 2001-Rules-6Renewal of licence-petition was running
bear shop with his name exclusively for
the year 2009-10-new policy introduced
for
the
year
2010-11-also
provides
renewal-co-licencee
has
already
separated himself much prior to grant of
licence held-action of Distt. Magistrate
settlement of licence through lottery
illegal-existing licensee had right of
renewal.

Held: Para 8 & 9

We find substance in the argument of
learned counsel for the petitioner. Rule 6
of the Uttar Pradesh Excise (Settlement
of Licences for Retail Sale of Beer) Rules,
2001
contemplates
the
renewal
of
licence for such period, and on such
terms and conditions as decided by the
State
Government.
The
State
Government has introduced the Excise
policy for the year 2010-11 which
provides for the renewal of existing
license. Therefore, there is no dispute
that the existing licensees had a right of
renewal of their licences for the year
2010-11. The question for consideration
is that on the date when the Excise
policy for the year 2010-11 has been
introduced giving right to the existing
licensees to get their licence renewed,
who was the licensee. Admittedly, the
licence dated 29.9.2009 for the year
2009-10 was issued in the name of the
petitioner only. Sri Sanjay Kumar Gupta
was not shown as co-licensee in the
licence and, therefore, we are of the
view that the petitioner, being the
existing licensee, had a right of renewal
and his licence should be renewed for
the year 2010-11.

We are further of the view that the pleas
of Sri Sanjay Kumar Gupta had no
substance. By the letter dated 15.5.2009,
Sri Sanjay Kumar Gupta, stated that he
wants to withdraw from the shop.
Therefore, while issuing the licence it
appears that the application of Sri
Sanjay Kumar Gupta for withdrawing
himself
as
a
co-allottee
had
been
accepted.
It
is
not
the
case
of
respondent nos. 2 and 3 that the alleged
letter dated 4.8.2009 filed along with an
affidavit and the alleged letter dated
17.8.2009 had been confronted to the
petitioner at any stage during the
subsistence of the licence. It is not their
case that they acted upon such letters
and affidavits and taken any action. It is
also surprising that after filing the
aforesaid
letters
and
affidavits,
Sri
Sanjay Kumar Gupta kept mum for more
than seven months and woke up on
10.3.2010 when the time for renewal of
the licence had come. Admittedly, the
licence dated 29.9.2009 issued only in
the name of the petitioner has not been
suspended or cancelled till date. We
2 All] S.M.A. Abdi and another V. P.S. Brotherhood and another
443
have gone through the letter dated
4.8.2009 filed along with an affidavit and
the
letter
dated
10.3.2010.
The
averments made in the letters are
contradictory.
In
the
letter
dated
10.3.2010
Sri
Sanjay
Kumar
Gupta
stated that for the year 2009-10 the
shop was running properly and for the
future years there might not be a proper
understanding and the principal allottee
had given threat several times that he
would misuse the licence in the coming
year and would involve him. In this letter
there is no reference about the earlier
letters dated 4.8.2009, affidavits and the
letter dated 17.8.2009. In the order
dated 12.3.2010 passed by the District
Magistrate, Firozabad also there is no
reference of the earlier letters. Photostat
copies of the original application dated
15.5.2009 of Sri Sanjay Kumar Gupta,
affidavit dated 28.4.2009, affidavit dated
4.8.2009
and
the
application
dated
10.3.2010 are as Annexures-C.A.-4, C.A.5
and C.A.7 to the counter affidavit. The
signature available on the applications
and the affidavits appear to be the same.
Therefore,
on
the
facts
and
circumstances, it appears that the plea
of Sri Sanjay Kumar Gupta that signature
on the application dated 15.5.2009 and
the affidavit dated 28.4.2009 are not his
signature and are forged, cannot be
accepted. It further appears that the
subsequent letter dated 4.8.2009 and
the
affidavits
are
the
subsequent
creation to defeat the right of renewal of
the petitioner. The above position also
stand justified, as the date of letters is
dated 4.8.2009 and date of licence is
29.9.2009. If the said letter would be
available perhaps the licence in the
name of the petitioner would not be
granted.

(Delivered by Hon'ble Rajes Kumar, J.)

1. By means of the present writ
petition, the petitioner is seeking a writ of
certiorari quashing the orders dated
7/8.4.2010 and 12.4.2010 passed by the
District Magistrate, Firozabad, and a writ
of mandamus to the respondent to renew
the licence of the petitioner for the year
2010-11.

2. The brief facts of the case are that
for the settlement of the beer shop for the
area Sarabi Market to Gali Bohran Sadar
Bazar for the excise year 2009-10
applications were invited by the office of
the District Excise Officer, Firozabad.
Number
of
persons
moved
the
applications. The petitioner also moved
application showing Sri Sanjay Kumar
Gupta, son of Sri Sampat Ram Gupta, as a
co-applicant. In a lottery, held on
23.3.2009, the beer shop for the aforesaid
area had been settled in favour of the
petitioner along with Sri Sanjay Kumar
Gupta as a co-applicant. It is the case of
the petitioner that on 15.5.2009, Sri
Sanjay Kumar Gupta wrote a letter to the
District Magistrate, Firozabad to separate
himself from the shop as a co-allottee at
his own sweet will and without any fear
and pressure. He stated that he has
nothing to do with the said shop and Sri
Vishwakant
Gupta
would
be
only
responsible. He requested that he would
be excluded from the aforesaid shop. The
application was filed along with an
affidavit. A copy of the application and
the affidavit are annexed as Annexure-5
to the writ petition. The licence had been
issued by the Licensing Officer on
29.9.2009 only in the name of the
petitioner. The name of Sri Sanjay Kumar
Gupta had not been mentioned in the
licence. A Copy of the licence is annexed
as Annexure-6 to the writ petition. The
petitioner had run the said shop upto 31st
March, 2010. There is no dispute in this
regard. The petitioner being the sole
licensee for the year 2009-10, moved an
application before the District Excise
444 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Officer, Firozabad for renewal of the
licence on 11.3.2010. It appears that Sri
Sanjay Kumar Gupta wrote a letter dated
10.3.2010 to the District Excise Officer,
Firozabad, stating therein that the shop
had been settled by lottery system and he
was running the shop as a co-allottee and
now there was no proper understanding
between him and petitioner. Therefore,
the licence would not be renewed and the
shop be cancelled. On the application of
Sri Sanjay Kumar Gupta dated 10.3.2010,
the District Magistrate, Firozabad has
passed the order that the said beer licence
may not be renewed and be settled
through lottery system.

3. Being aggrieved by the said order,
the petitioner filed Writ Petition No. 420
of 2010. This Court vide order dated
22.3.2010 allowed the writ petition and
set aside the order dated 12.3.2010 and
directed the District Magistrate, Firozabad
to pass a fresh order relating to the
renewal of the licence after giving
opportunity of hearing to the petitioner
and Sri Sanjay Kumar Gupta or any other
concerned parties in accordance to law. In
pursuance thereof, the District Magistrate,
Firozabad has passed the impugned order
dated 7/8.4.2010. The District Magistrate,
Firozabad has held that there is serious
dispute between the two partners and both
the partners do not want to continue the
partnership and, therefore, in accordance
to paragraph-8 of the Rule, the application
of renewal, filed by the petitioner, has no
force and accordingly rejected. It has been
further directed to settle the shop by
public lottery. In the impugned order, it is
stated that Sri Sanjay Kumar Gupta filed
an application dated 4.8.2009 along with
an affidavit stating therein that the earlier
application dated 28.4.2009 (appears to be
incorrect
and
the
date
should
be
15.5.2009) is false and forged and further
an application was filed on 17.8.2009
before the District Magistrate with the
request to take legal action against
Vishwakant
Gupta,
and
he
has
fraudulently obtained a licence dated
29.9.2009 in his name, which is not in
accordance to law. It appears that after
passing the aforesaid impugned order, a
fresh lottery was held on 12.4.2010 and
the said shop has been settled in favour of
Sri Manish Kumar Sharma, son of
Banwari Lal, respondent no. 5.

4. The writ petition was reported on
28.4.2010. It has, however, been filed on
29.4.2010
which
came
up
for
consideration on 3.5.2010. On 3.5.2010,
this Court has directed the learned
Standing Counsel to seek instruction and,
if so advised, may file a counter affidavit.
The matter was listed on 11.5.2010 as
fresh. On 10.5.2010, notices were issued
to respondent nos. 4 & 5 and the
petitioner was directed to serve the
respondents by Dasti summon and to file
an affidavit of service. Further, the service
on respondent nos. 4 & 5 was also
directed to be affected through District
Excise Officer, Firozabad. Writ petition
was fixed on 18.5.2010. On 18.5.2010,
the date was again fixed on 19.5.2010. On
19.5.2010, Sri S.P. Kesarwani, learned
Additional Chief Standing, filed a counter
affidavit annexing therewith a copy of the
notices, served upon respondent nos. 4
and 5, and Sri H.N. Singh, learned
counsel for the petitioner filed a rejoinder
affidavit. He also filed an affidavit of
service in respect of service of notices on
respondent nos. 4 and 5. The matter has
been heard on 19.5.2010. Sri H.N. Singh,
Advocate, argued on behalf of the
petitioner and Sri S.P. Kesarwani, learned
Additional
Chief
Standing
Counsel,
2 All] Vishwakant Gupta V. The State of U.P. and others
445
argued on behalf of respondent nos, 1,2
and 3. Despite the service of notices,
respondent nos. 4 and 5 did not appear.

5. Sri H.N. Singh, learned counsel
for the petitioner submitted that Rule 6 of
the Uttar Pradesh Excise (Settlement of
Licences for Retail Sale of Beer) Rules,
2001 provides for renewal of the licence.
It says that the licence granted under these
rules may be renewed for such period, and
on such terms and conditions as decided
by the State Government from time to
time. He submitted that under the excise
policy, for the year 2010-11, the licensee
of the year 2009-10 are entitled for
renewal of their licence. There is no
dispute in this regard. He submitted that
undisputedly, the petitioner was the sole
licensee under the licence dated 29.9.2009
for the year 2009-10, upto 31st March,
2010. The said licence has neither been
suspended
nor
cancelled
till
date.
Therefore, on the date of introduction of
the new policy, for the year 2010-11,
introduced in the month of March, 2010
the petitioner being the existing licensee
was entitled to get his licence renewed.
Therefore, the petitioner had a right to get
his licence renewed being the licensee for
the year 2009-10 and accordingly the
petitioner applied for renewal of the
licence on 11.3.2010. He submitted that
the licence was issued on 29.9.2009 only
in the name of the petitioner when Sri
Sanjay Kumar Gupta, a co-allottee,
withdrew himself. If such letter from Sri
Sanjay Kumar Gupta would not have been
there, the licence for the year 2009-10
would not have been issued in the sole
name of the petitioner on 29.9.2009. It
means that the application of Sri Sanjay
Kumar
Gupta
dated
15.5.2009
withdrawing himself from the shop as a
co-allottee had been accepted by the
excise authorities. He submitted that the
alleged letter dated 4.8.2009 and further
letter dated 17.8.2009 had never been
confronted to the petitioner during the
subsistence of the licence and no action
on the said letters had been taken. He
submitted that these evidences had been
created subsequently against the petitioner
to deny the right of the petitioner for
renewal of licence. He further submitted
that the averments made in the letter dated
4.8.2009
and
the
affidavit
are
contradictory to the letter dated 10.3.2010
filed by Sri Sanjay Kumar Gupta. He
submitted that in the alleged letter dated
4.8.2009 and the affidavit filed along with
the said letter, which are part of the
counter affidavit, it has been averred that
the earlier letter dated 15.5.2009 was
forged.
While
in
the
letter
dated
10.3.2010, it is stated that he was running
the shop as a co-owner properly. If Sri
Sanjay Kumar Gupta raised the dispute
and made various allegations against the
petitioner, in the letter dated 4.8.2009 and
the affidavit and requested the District
Magistrate, Firozabad vide letter dated
17.8.2009 to take legal action against the
petitioner, then there was no occasion to
state that he was running the shop as a coowner
properly
on
10.3.2010.
He
submitted that for the purposes of renewal
of
the
licence
the
only
relevant
consideration is that who was the licensee
under the licence on the day when a new
policy for the renewal was introduced
which provides right of renewal. He
submitted that only the petitioner has a
right of renewal being the sole licensee
under the licence dated 29.9.2009.

6. Sri S.P. Kesarwani, learned
Additional
Chief
Standing
Counsel
submitted that the shop was allotted to the
petitioner and Sri Sanjay Kumar Gupta
446 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
was a co-allottee. He submitted that, in
fact, the licence should also be issued in
the name of the petitioner showing Sri
Sanjay Kumar Gupta as a co-licensee but
inadvertently the licence was issued only
in the name of the petitioner. He submitted
that Sri Sanjay Kumar Gupta filed a letter
dated 4.8.2009 along with an affidavit
before the District Excise Officer and the
further letter dated 17.8.2009 reveals that
there was a serious dispute between the
petitioner and Sri Sanjay Kumar Gupta.
Therefore, in the interest of justice, the
District Magistrate has rightly rejected the
application for renewal and directed for the
settlement of the shop by fresh lottery
system. He submitted that the shop has
been settled in favour of respondent no. 5
in a fresh lottery held on 14.4.2010.

7. Having heard learned counsel for
the parties, we have given our anxious
consideration to the rival submissions and
perused the record.

8. We find substance in the argument
of learned counsel for the petitioner. Rule
6 of the Uttar Pradesh Excise (Settlement
of Licences for Retail Sale of Beer) Rules,
2001 contemplates the renewal of licence
for such period, and on such terms and
conditions as decided by the State
Government. The State Government has
introduced the Excise policy for the year
2010-11 which provides for the renewal of
existing license. Therefore, there is no
dispute that the existing licensees had a
right of renewal of their licences for the
year
2010-11.
The
question
for
consideration is that on the date when the
Excise policy for the year 2010-11 has
been introduced giving right to the existing
licensees to get their licence renewed, who
was the licensee. Admittedly, the licence
dated 29.9.2009 for the year 2009-10 was
issued in the name of the petitioner only.
Sri Sanjay Kumar Gupta was not shown as
co-licensee in the licence and, therefore,
we are of the view that the petitioner, being
the existing licensee, had a right of renewal
and his licence should be renewed for the
year 2010-11.

9. We are further of the view that the
pleas of Sri Sanjay Kumar Gupta had no
substance. By the letter dated 15.5.2009,
Sri Sanjay Kumar Gupta, stated that he
wants to withdraw from the shop.
Therefore, while issuing the licence it
appears that the application of Sri Sanjay
Kumar Gupta for withdrawing himself as a
co-allottee had been accepted. It is not the
case of respondent nos. 2 and 3 that the
alleged letter dated 4.8.2009 filed along
with an affidavit and the alleged letter
dated 17.8.2009 had been confronted to the
petitioner
at
any
stage
during
the
subsistence of the licence. It is not their
case that they acted upon such letters and
affidavits and taken any action. It is also
surprising that after filing the aforesaid
letters and affidavits, Sri Sanjay Kumar
Gupta kept mum for more than seven
months and woke up on 10.3.2010 when
the time for renewal of the licence had
come. Admittedly, the licence dated
29.9.2009 issued only in the name of the
petitioner has not been suspended or
cancelled till date. We have gone through
the letter dated 4.8.2009 filed along with an
affidavit and the letter dated 10.3.2010. The
averments
made
in
the
letters
are
contradictory. In the letter dated 10.3.2010
Sri Sanjay Kumar Gupta stated that for the
year 2009-10 the shop was running properly
and for the future years there might not be a
proper understanding and the principal
allottee had given threat several times that
he would misuse the licence in the coming
2 All] Vishwakant Gupta V. The State of U.P. and others
447
year and would involve him. In this letter
there is no reference about the earlier letters
dated 4.8.2009, affidavits and the letter
dated 17.8.2009. In the order dated
12.3.2010 passed by the District Magistrate,
Firozabad also there is no reference of the
earlier letters. Photostat copies of the
original application dated 15.5.2009 of Sri
Sanjay Kumar Gupta, affidavit dated
28.4.2009, affidavit dated 4.8.2009 and the
application
dated
10.3.2010
are
as
Annexures-C.A.-4, C.A.5 and C.A.7 to the
counter affidavit. The signature available on
the applications and the affidavits appear to
be the same. Therefore, on the facts and
circumstances, it appears that the plea of Sri
Sanjay Kumar Gupta that signature on the
application
dated
15.5.2009
and
the
affidavit dated 28.4.2009 are not his
signature and are forged, cannot be
accepted. It further appears that the
subsequent letter dated 4.8.2009 and the
affidavits are the subsequent creation to
defeat the right of renewal of the petitioner.
The above position also stand justified, as
the date of letters is dated 4.8.2009 and date
of licence is 29.9.2009. If the said letter
would be available perhaps the licence in
the name of the petitioner would not be
granted.

10. For the reasons stated above, we
are of the view that the petitioner's
application for the renewal has been
illegally rejected by the District Magistrate,
Firozabad. On the facts and circumstances,
the petitioner is entitled for the renewal of
the licence of the shop for the year 2010-11
in respect of the shop for which the
petitioner had a licence for the year 200910. The subsequent settlement of the shop
by lottery system in favour of respondent
no. 5 is also liable to be set aside. The
respondent is directed to return the amount,
if any, taken from respondent no. 5 along
with interest @ 10% within a period of one
week.

11. In the result, the writ petition is
allowed with cost. The order dated
7/8.4.2010, Annexure-14 to the writ
petition, is hereby set aside and the District
Magistrate, Firozabad is directed to pass an
appropriate order on the renewal application
of the petitioner in the light of the direction
given above within a period of one week
from the date of presentation of a certified
copy of this order. Cost is awarded at
Rs.2,500/-.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.05.2010

BEFORE
THE HON'BLE ABDUL MATEEN, J.
THE HON'BLE V.K. DIXIT, J.

Criminal Appeal No. 752 of 2009

Lala @ Abdul Gaffar

 ...Petitioner
Versus
State of U.P.

 ...Respondent

Counsel for the Petitioner:
Sri S.H. Ibrahim
Sri Neeraj Sahu
Sri S.A. Abbas Zaidi

Counsel for the Respondent:
G.A.
Sri Amitabh Tripathi

Code of Criminal Procedure-Bail Pending
Appeal-conviction of life imprisonment
with fine-offense under Section 302/34
IPC read with 25 Arms Act-deceased
being history-sheeter encountered by
Police-informant not an eyewitness the
person who narrated the story deniedbody of deceased dragged from court to
a considerable length but no dragging
marks found-appellants were already on