# Sandeep Singh v. State of U.P. & Ors

- **Citation:** (2021) 2 ILRA 843
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-21
- **Case number:** Writ Tax No. 278 of 2020
- **Bench:** Saumitra Dayal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sandeep-singh-v-state-of-u-p-ors-46822
- **Pages:** 11

## Headnote

Civil Law-Sec. 34- United Provinces Excise
Act,1910-Petitioner
had
two
country
liquor shop excise licenses-originally first
license was suspended over certain
violation
during
inspection-thereafter
both license cancelled-appeal dismissedWrit -licensing authority may cancel a
license for any violation of law so grave in
the interest of revenue-either u/s34(1) of
Act of Rule 21 Of Rules or terms and
conditions on Form 5-C-another license
may also be cancelled as one license of
same licensee has already been cancelledMatter remanded back to recommence
proceeding only after decission of the
Appealate authority.
844 INDIAN LAW REPORTS ALLAHABAD SERIES
Held, there is nothing in the plain language of
section 34(2) of the Act to oblige the licensing
authority to establish an independent violation
of clauses (a) to (e) of sub-section (1) of section
34 of the Act before proceeding to cancel any
other license of a licensee, under section 34(2)
of the Act. The only mandatory pre-condition
prescribed to exercise that power is the prior
cancellation of any other license of that licensee
under any of the first three clauses of Section
34(1) of the Act. That fact alone exposes the
licensee to further proceedings for cancellation
of his another/other license/s under Section
34(2) of the Act. (para 20)

In case a licensee commits separate violations
with respect to each or more than one license
held by him, he may stand exposed to
proceedings for cancellation of each such license
under section 34(1) of the Act, exclusively. If,
however, one out of more license held by a
licensee is cancelled, either under clause (a) or
(b) or (c) of section 34(1) of the Act, it would
expose such a licensee to cancellation of his
another/other
license/s,
irrespective
of
a
complete absence of any violation committed in
the operation of the another/other license/s.
That is the plain meaning of section 34(2) of the
Act. (para 22)

List of Cases cited:-

## Text

2 All. Sandeep Singh Vs. State of U.P. & Ors.
843
compelled, or knowing it to be likely that
she will be compelled, to marry any person
against her will, or in order that she may
be forced or seduced to illicit intercourse,
shall be punished with imprisonment of
either description for a term which may
extend to ten years, and shall also be liable
to fine; [and whoever, by means of criminal
intimidation as defined in this Code or of
abuse of authority or any other method of
compulsion, induces any woman to go from
any place with intent that she may be, or
knowing that it is likely that she will be,
forced or seduced to illicit intercourse with
another person shall be punishable as
aforesaid]."

In this case, can it be said that the
girl was kidnapped. When we sift the
evidence, the definition of kidnapping would
be kidnapped from lawful guardianship.
Minor under the age of 16 for male and 18
for female. We are concerned with female. In
this case, the medical evidence does not
prove that the girl was below the age of 18
years. It has come on record that no
certificate showing the age of the girl was
ever produced before the Investigating
Authority. We can safely rely on the evidence
of PW-8. The learned Judge has come to the
conclusion that she was 14 years of age. The
finding of the learned Judge is not in
consonance with the medical evidence
produced. The panchayat certificate showed
her age to be 21 years, therefore, there is a
doubt between this fact and the oral
testimony. The oral testimony cannot be said
to be so sterling that conviction could be
based on the same. Hence, no conviction
under Section 363 I.P.Code read with Section
366 I.P.Code can also be maintained. The
decision of this Court in Mataruwa @ Amar
(supra) would come to the aid of the accused.
Similar is the judgement of this Court in
Arvind Kumar (supra).

37. In view of the facts and evidence on
record, we are convinced that the accused has
been wrongly convicted, hence, the judgment
and order impugned is reversed and the
accused is acquitted. The accused appellant,
if not warranted in any other case, be set free
forthwith.

38. The appeal is, accordingly, allowed.
Records be sent back to trial court.
----------
(2021)02ILR A 843
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2021

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.

Writ Tax No. 278 of 2020

Sandeep Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Imtiyaj Ali, Sri Muatuza Ali, Sri V.K.
Singh

Counsel for the Respondent:
C.S.C.

Civil Law-Sec. 34- United Provinces Excise
Act,1910-Petitioner
had
two
country
liquor shop excise licenses-originally first
license was suspended over certain
violation
during
inspection-thereafter
both license cancelled-appeal dismissedWrit -licensing authority may cancel a
license for any violation of law so grave in
the interest of revenue-either u/s34(1) of
Act of Rule 21 Of Rules or terms and
conditions on Form 5-C-another license
may also be cancelled as one license of
same licensee has already been cancelledMatter remanded back to recommence
proceeding only after decission of the
Appealate authority.
844 INDIAN LAW REPORTS ALLAHABAD SERIES
Held, there is nothing in the plain language of
section 34(2) of the Act to oblige the licensing
authority to establish an independent violation
of clauses (a) to (e) of sub-section (1) of section
34 of the Act before proceeding to cancel any
other license of a licensee, under section 34(2)
of the Act. The only mandatory pre-condition
prescribed to exercise that power is the prior
cancellation of any other license of that licensee
under any of the first three clauses of Section
34(1) of the Act. That fact alone exposes the
licensee to further proceedings for cancellation
of his another/other license/s under Section
34(2) of the Act. (para 20)

In case a licensee commits separate violations
with respect to each or more than one license
held by him, he may stand exposed to
proceedings for cancellation of each such license
under section 34(1) of the Act, exclusively. If,
however, one out of more license held by a
licensee is cancelled, either under clause (a) or
(b) or (c) of section 34(1) of the Act, it would
expose such a licensee to cancellation of his
another/other
license/s,
irrespective
of
a
complete absence of any violation committed in
the operation of the another/other license/s.
That is the plain meaning of section 34(2) of the
Act. (para 22)

List of Cases cited:-

1. Gorakhnath Vs St. of U.P. & ors.; (1996) 11
SCC 278 (distinguished)

2. Girishdutta Mishra Vs St. of U.P. & 4 ors.;
(distinguished)

3. Sri Basdeo Prasad Vs The St. of U.P. & anr.
1956 ALJ 81

4. Mahaluxmi Rice Mills Vs St. of U.P., (1998) 6
SCC 590

5. Rao Shiv Bahadur Singh Vs St. of U.P., AIR
1953 SC 394

(Delivered by Hon'ble Saumitra Dayal Singh, J.)

1. Heard Sri V.K. Singh, learned senior
counsel assisted by Sri Murtuza Ali, learned
counsel for the petitioner and Sri A.C.
Tripathi, learned standing counsel for the
State.

2. Originally, the present petition was
filed seeking quashing of the order dated
05.02.2020 passed by Additional Excise
Commissioner
(Administration)
Uttar
Pradesh, in Excise Appeal No. 95 of 2019
(Sandeep Singh Versus Collector/Licensing
Authority & Another) as well as the order
dated
30.10.2019
passed
by
the
Collector/Licensing
Authority
Fatehpur
cancelling the country liquor shop license
of the petitioner - at village Majhenpurwa,
District Fatehpur. Upon amendment, the
petitioner has also challenged another order
dated 17.06.2020 passed by Additional
Excise
Commissioner
(Administration)
Uttar Pradesh. At the outset, it may be
noted that the order dated 17.06.2020 was
passed with reference to the other country
liquor shop license of the petitioner at
Village Gehrukheda. That controversy has
been dealt with a separate order passed in
Writ-Tax No. 277 of 2020 decided on
19.01.2021. Therefore, the challenge raised
in the present petition to the aforesaid order
dated 17.06.2019, is misconceived. It is
accordingly rejected.

3. Undisputedly, for the Excise Year
2018-2019, the petitioner held two country
liquor shop excise licenses. One for his
shop at village Gehrukheda (hereinafter
referred to as the "Gehrukheda license) and
another
for
his
shop
at
village
Majhenpurwa (hereinafter referred to as the
"Majhenpurwa license"). Vide order dated
25.3.2019, the Gehrukheda license of the
petitioner was suspended, arising from the
facts noted during an inspection dated
23.3.2019.
Then,
vide
order
dated
28.05.2019,
the
licensing
authority
proceeded to cancel both the licenses of the
petitioner
without
any
prior
notice
2 All. Sandeep Singh Vs. State of U.P. & Ors.
845
proposing to cancel the Majhenpurwa
license. The order dated 28.05.2019 gave
rise to two separate appeals being Excise
Appeal No. 31 of 2019 (for Gehrukheda
license) and Excise Appeal No. 32 of 2019
(for Majhenpurwa license). By order dated
10.08.2019, the appeal authority allowed
the Excise Appeal no. 32 of 2019 and
remitted that matter to the licensing
authority after taking notice of the ground
of challenge that no show cause notice had
been issued to the petitioner before
cancelling that license. Yet, the appeal
authority left it open to the licensing
authority to issue a fresh show cause notice
in that regard. No challenge was raised to
that order. It attained finality.

4. Thereafter, the licensing authority
issued a show cause notice to the petitioner
on 29.08.2019 proposing to cancel the
petitioner's Majhenpurwa license. The
notice reveals that it was issued on account
of cancellation of the Gehrukheda license
of the petitioner. It was consequently
alleged- the petitioner's character was not
good and he was guilty of violation of the
Excise Act. The petitioner replied to the
same vide his written reply dated 2.9.2019.
Yet again, by his order dated 30.10.2019,
the licensing authority cancelled the
Majhenpurwa license. Against the order
dated 30.10.2019, the petitioner filed
Excise Appeal no. 95 of 2019. It has been
dismissed vide order dated 05.02.2020
passed by Additional Excise Commissioner
(Administration) Uttar Pradesh. That order
is under challenge here.

5. At the outset, a preliminary
objection has been raised by the learned
standing counsel as to the maintainability
of the present petition. He submits that the
order
of
the
Additional
Excise
Commissioner
(Administration)
Uttar
Pradesh is revisable before the State
Government. Opposing that preliminary
objection, the learned counsel for the
petitioner would submit, there was neither
any jurisdiction nor notice nor any legal
basis
to
cancel
the
petitioner's
Majhenpurwa license. Alternatively, upon
the matter pertaining to Gahrukhera license
being remanded, the appeal order in the
present case cannot survive. The objection
being raised is thus stated to be too
technical to merit acceptance by the Court.

6. On merits, learned Senior Advocate
for the petitioner would submit that the
orders passed by the licensing authority and
the appeal authority arise from the
proceedings
that
are
wholly
without
jurisdiction in as much as no violation had
been
noted
with
respect
to
the
Majhenpurwa
license.
Another
jurisdictional defect has been cited as no
notice had been issued before cancelling
the petitioner's Majhenpurwa license vide
order dated 28.05.2019. That jurisdictional
defect did not stand cured by the
observations made in the appeal order
dated 16.08.2019. Then referring to Section
34 of the United Provinces Excise Act,
1910 (hereinafter referred to as the "Act")
and Rule 21 of the Uttar Pradesh Excise
Settlement of Licenses for Retail Sale of
Country Liquor) Rules, 2020 (hereinafter
referred to as the "Rules"), he would
submit, unless a specific violation had been
noted
as
to
the
operation
of
the
Majhenpurwa license, that license could
never be cancelled merely because any
other violation may have been alleged
against the petitioner with respect to the
Gehrukheda license. Alternatively, it has
been submitted, the allegations made in the
notice even if accepted on their face value,
are vague and such as may never fall within
the scope of Section 34 of the Act or Rule
846 INDIAN LAW REPORTS ALLAHABAD SERIES
21 of the Rules or any of the terms and
conditions of the license on Form 5-C. In
such facts, it has been submitted, the orders
passed by the licensing authority and the
appeal authority are liable to be quashed
and the Majhenpurwa license liable to be
restored. He has relied on a decision of the
Supreme Court in Gorakhnath Vs. State
of U.P. & Ors.; (1996) 11 SCC 278 and a
decision of this Court in Girishdutta
Mishra Vs. State of U.P. & 4 Ors.;
decided on 5.9.2014.

7. On the other hand, the learned
standing counsel would submit once the
appeal authority had allowed the licensing
authority to issue a fresh notice and that
proceeding was undertaken without any let
or objection at the appropriate stage, that
challenge may no longer arise. Also, the
licensing authority was right to cancel the
Majhenpurwa license of the petitioner as it
stood established that the petitioner had
made violations in the operation of the
Gehrukheda license. Since the petitioner
was found to have committed violations of
use of tampered QR code and caps against
his Gehrukheda license referable to Section
34 (1) (b) of the Act, no other independent
violation was required to be established
with
respect
to
operation
of
the
Majhenpurwa
license.
Any
other
construction given to the statute would
render
redundant
or
superfluous
the
provisions of Section 34 (2) of the Act.
Also relevant of Rule 21(3) of the Rules
read with the terms and conditions of the
license, it has been submitted that once the
Gehrukheda license stood cancelled, by
way of a necessary consequence, the
Majhenpurwa license also became liable to
cancellation. Alternatively, it has been
submitted that in any case the proceedings
arising from the cancellation of the
Gehrukheda license having been remanded,
the same fate must meet the present
Majhenpurwa license as well.

8. Having heard the learned counsel for
the parties and having perused the record, in
the first place, the preliminary objection
raised as to maintainability of the present
petition is found not acceptable as a question
of law does appear to exist as to the true
meaning to be given to section 34(2) of the
Act. Also, the proceeding for cancellation of
the Gehrukheda license that occasioned the
present proceeding has been remitted to the
appeal authority by a separate order passed in
Writ Tax No. 227 of 2020 on 19.01.2021. As,
stated by both sides, the fate of the present
petition hangs, at least partly, on the fate of
the Gehrukheda license. Then affidavits have
already been exchanged. No useful purpose
may be served in requiring the petitioner to
approach the revising authority at this stage,
in such facts.

9. As to inherent lack of jurisdiction,
claimed by the petitioner, it appears that the
same may not be entirely correct, in the face
of the proceedings as they stand today.
Though it is true, no prior notice had been
issued to the petitioner to cancel his
Majhenpurwa license before the order dated
28.05.2019 came to be passed, two different
appeals were filed by the petitioner against
that order- one against the cancellation of the
Gehrukheda license (Excise Appeal no. 31 of
2019) and the other against the cancellation
of the Majhenpurwa license (Excise Appeal
no. 32 of 2019). While allowing appeal no.
32 of 2019 on 10.08.2019, the appeal
authority specifically observed that the
licensing authority may issue a fresh notice to
the petitioner to cancel the Majhenpurwa
license. That order has attained finality.

10.

After
the
remand
made,
undisputedly, a notice dated 29.08.2019
2 All. Sandeep Singh Vs. State of U.P. & Ors.
847
was issued to the petitioner by the licensing
authority requiring the petitioner to show
cause why Majhenpurwa license may not
be cancelled. The petitioner replied vide his
reply dated 2.9.2019. The subsequent order
dated 30.10.2019 was passed by the
licensing
authority
cancelling
the
petitioner's Majhenpurwa license on that
proceeding. It was challenged in appeal
being Excise Appeal no. 95 of 2019 which
came to be decided by the impugned order
dated 05.02.2020.

11. The ground of patent lack of
jurisdiction to cancel the Majhenpurwa
license
may
have
existed
with
the
petitioner, when that license came to be
cancelled first, on 28.05.2019. Upon order
dated 10.08.2019 passed in Excise Appeal
No. 32 of 2019, the licensing authority
issued the notice dated 29.08.2019. On that
date the Gehrukheda license of the
petitioner stood cancelled. As further
discussed later, the jurisdictional fact to
proceed against the Majhenpurwa license,
under section 34(2) of the Act, thus arose
on 28.05.2019 and it existed on 29.08.2019.
The present proceedings arise solely from
that notice. Hence, the challenge raised as
to lack of jurisdiction does not survive for
consideration in this writ petition. At
present, the proceedings instituted after
issuance of the notice dated 29.08.2019
alone are to be tested, on their merits. That
notice was within jurisdiction.

12.

Next,
in
the
context
of
proceedings to cancel the Majhenpurwa
license, it is difficult to accept the
submission advanced by the learned Senior
Advocate for the petitioner that an
independent ground of violation must be
made out (under section 34(1) of the Act
read with Rule 21 of the Rules and terms
and conditions of license on Form 5-C).
That submission runs contrary to the
statutory
scheme.
Relevant
to
our
discussion, the provisions of Section 34 and
35 of the Act and 21 (3) of the Rules, may
be quoted as below:

"34. Power to cancel or suspend
licences, etc. - (1) Subject to such
restrictions, as the State Government may
prescribe, the authority granting any
licence, permit or pass under this Act may
cancel or suspend it-

(a) if any duty or fee payable by
the holder thereof be not duly paid; or

(b) in the event of any breach by
the holder of such licence, permit or pass
or by his servants, or by any one acting on
his behalf with his express or implied
permission of any of the terms or
conditions of such licence, permit or pass;
or

(c) if the holder thereof is
convicted of any offence punishable under
this Act or any other law for the time being
in force relating to revenue, or of any
cognizable and non-bailable offence, or of
any
offence
punishable
under
the
[Dangerous Drugs Act, 1930,] or under the
Merchandise Marks Act, 1889, or of any
offence punishable under Sections 482 to
489 (both inclusive) of the Indian Penal
Code; or

(d) where a licence, permit or
pass has been granted on the application of
the grantee of an exclusive privilege under
this Act, on the requisition in writing of
such grantee; or

(e) if the conditions of the licence
or permit provide for such cancellations or
suspension at will.
848 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) When a licence, permit and
pass held by any person is cancelled under
clauses (a), (b) or (c) of sub-section (1), the
authority aforesaid may cancel any other
licence, permit or pass granted to such
person by, or by the authority of the State
Government under this Act or under any
other law for the time being in force relating
to excise revenue or under the [Opium Act,
1878.]

(3) The holder shall not be entitled
to any compensation for the cancellation or
suspension of his licence, permit or pass
under this section nor to a refund of any fee
paid or deposit made in respect thereof.

35. No compensation or refund
claimable for cancellation or suspension of
licence, etc., under this section. - (1) Further
power to cancel licences. - Whenever the
authority granting a licence under this Act
considers that such licence should be
cancelled for any cause other than those
specified in Section 34 it shall remit a sum
equal to the amount of the fees payable in
respect thereof for fifteen days, and may
cancel the licence either-

(a) on the expiration of fifteen days,
notice in writing of its intention to do so, or

(b) forthwith, without notice.

(2) Compensation in the case of
cancellation. - If any licence be cancelled
under clause (b) of sub-section (1) in addition
to the sum remitted as aforesaid there shall
be paid to the licensee such further sum by
way
of
compensation
as
the
Excise
Commissioner may direct.

(3) Refund of fee or deposit. -
When a licence is cancelled under this
section, any fee paid in advance or deposit
made by the licensee in respect thereof
shall be refunded to him, less the amount (if
any) due to the State Government.

RULE

21 (3) In case the license is
cancelled the basic license fee, license fee
and security amount deposited by him shall
stand forfeited in favour of the Government
and the licensee shall not be entitled to
claim any compensation or refund. Such
licensee may also be blacklisted and
debarred from holding any other excise
license."

13. In the first place, by virtue of
section 34(1) of the Act, if the licensing
authority proposes to cancel a license, he
may do so for any violation of the law
noticed by him either in the context of
section 34(1) of the Act or Rule 21 of the
Rules or the terms and conditions of the
license issued on Form 5-C. He may do so
by making specific allegation/s with respect
thereto. That condition applied to the
Gehrukheda license as proceedings to
cancel that license were initiated first,
upon alleged violations noted during the
inspection dated 23.3.2019.

14. Under section 34(2) of the Act,
after, the licensing authority has cancelled
an existing license under section 34(1) of
the Act, he may, occasioned by that action
choose to cancel another/other license of
the same licensee. A question does arise
whether another/other license/s of the same
licensee may be cancelled only if similar or
any other violations, as specified under
section 34(1) read with Rule 21 of the
Rules and terms and conditions mentioned
on Form 5-C is/are established with respect
to another/other license/s or another/other
license/s may be cancelled merely because
2 All. Sandeep Singh Vs. State of U.P. & Ors.
849
the
licensing
authority
has
already
cancelled one license of the same licensee.

15. It may also be noticed, under
section 35 of the Act, the licensing
authority has been given a further power to
cancel an existing license, for any cause
other than those specified under section 34
of the Act. However, that power may be
exercised accompanied with proportional
remission of license fee. In Sri Basdeo
Prasad Vs The State of Uttar Pradesh and
another 1956 ALJ 81, the power under
Section 35 of the Act was held to be
administrative but, discretionary. A key
difference between cancellation of license
made under Sections 34 and 35 of the Act
is- upon a cancellation made under Section
35 of the Act, the licensee may retain a
right to proportionate refund of deposits
made by him (towards license fees etc.),
whereas forfeiture of such deposits follows
the canellation of a license made under
Section 34 of the Act.

16. Under section 34(1) of the Act, an
existing license may be cancelled in face of
any of the eventualities mentioned under
clauses (a) to (e) of sub-section section 34 of
the Act being found to exist. The legislature
has used the word 'may' in section 34 (1) &
(2) and section 35 of the Act. At the same
time, it has used the word 'shall' in Chapter X
of the Act while providing for impost of
penalties
prescribed
for
different
infringements of law, including possession of
any intoxicant in contravention of the Act or
Rule or Order or license or permit or pass.

17. Thus, the legislature has used both
words - 'may' and 'shall', in the same
enactment, while dealing with two different
consequences of cancellation of license/s and
penalties, that may arise from a same or
single fact situation, namely, violation of the
Act, Rule or license. In Mahaluxmi Rice
Mills v. State of U.P., (1998) 6 SCC 590, a
question arose to the meaning of the words
'may' and 'shall' used in section 17 of the U.P.
Krishi Utpadan Mandi Adhiniyam, 1964
while dealing with the nature of liability of
the purchaser to pay an amount towards
market fees while buying goods inside a
'mandi' (word used 'may') and the liability of
the seller to pay market fees (word used
'shall').
Though,
in
that
case
both
consequences arose from a single transaction
and were governed by a single provision of
that Act, yet the ratio of that decision is
attracted to the facts of the present case. In
the present case also, both consequences of
penalty and cancellation of license (covered
under clauses (a), (b) and (c) of Section 34(1)
of the Act) arise from a common/similar
violation/fact.

18. In the language of section 17 of
the U.P. Krishi Utpadan Mandi Adhiniyam,
1964, the Supreme Court had reasoned:

"9. It is significant to note that
the word used for the seller to realise
market fee from his purchaser is "may"
while the word used for the seller to pay the
market fee to the Committee is "shall".
Employment of the said two monosyllables
of great jurisprudential import in the same
clause dealing with two rights regarding
the same burden must have two different
imports. The legislative intendment can
easily be discerned from the frame of the
sub-clause that what is conferred on the
seller is only an option to collect market fee
from his purchaser, but the seller has no
such option and it is imperative for him to
remit the fee to the Committee. In other
words, the Market Committee is entitled to
collect
market
fee
from
the
seller
irrespective of whether the seller has
realised it from the purchaser or not".
850 INDIAN LAW REPORTS ALLAHABAD SERIES

19. Similarly, necessarily, an implied
discretion is vested in the licensing
authority to cancel or to not cancel an
existing license even if any condition under
section 34(1) (a) to (i) or 34 (2) or 35
exists. In Sri Basdeo Prasad Vs The State
of Uttar Pradesh and another (supra), a
division bench of this Court had clearly
held the power to cancel a license under
section 35 of the Act to be discretionary.
There is no reason to hold Section 34(2) of
the Act to be mandatory, as suggested by
the learned Standing Counsel. It is a
discretionary power.

20. Then, though it is necessary to
establish violation of any of the stipulations
contained in clauses (a) to (e) of subsection (1) of section 34 of the Act to
cancel an existing license, under that
provision, there is nothing in the plain
language of section 34(2) of the Act to
oblige the licensing authority to establish
an independent violation of clauses (a) to
(e) of sub-section (1) of section 34 of the
Act before proceeding to cancel any other
license of a licensee, under section 34(2) of
the Act. The only mandatory pre-condition
prescribed to exercise that power is the
prior cancellation of any other license of
that licensee under any of the first three
clauses of Section 34(1) of the Act. That
fact alone exposes the licensee to further
proceedings
for
cancellation
of
his
another/other license/s under Section 34(2)
of the Act.

21. To read the fulfilment of clauses
(a) to (e) of sub-section (1) of section 34,
into sub-section (2) of section 34 of the Act
would be to read into the statute something
that is plainly not there. It would also
render superfluous, Section 34(2) of the
Act. If the conditions enumerated under
section 34(1) of the Act are necessary to be
satisfied in a proceeding under 34(2) of the
Act, there would be no eventuality when
sub-section (2) of section 34 would ever
have an application. In that case, in every
situation, all proceedings to cancel a license
would continue to arise under section 34(1)
of the Act. An interpretation that renders
any part of a legislation superfluous is to be
avoided. In Rao Shiv Bahadur Singh v.
State of V.P., AIR 1953 SC 394 an early
Constitution bench of the Supreme Court
observed:

"5. Learned
counsel
strongly
relied
on Attorney-General v. Herman
James Sillem [10 House of Lords Cases
704 : 11 ER 1200] to show that a provision
such as the above was meant only to
regulate the proceedings in a case within
the four walls or limits of the court. The
statutory provision which came up for
construction in that case was however very
differently worded, and was meant to
regulate "the process, practice, and mode
of pleading" i.e. the procedure in the court
and not "the proceedings" of the court.
While, no doubt, it is not permissible to
supply a clear and obvious lacuna in a
statute and imply a right of appeal, it is
incumbent on the court to avoid a
construction, if reasonably permissible on
the language, which would render a part of
the statute devoid of any meaning or
application. The construction urged for the
appellant renders Section 6 futile and
leaves even a convicted person without
appeal. We have no hesitation in rejecting
it".

22. Thus, giving full play to the
provisions of section 34(1) and (2) of the
Act, in case a licensee commits separate
violations with respect to each or more than
one license held by him, he may stand
exposed to proceedings for cancellation of
2 All. Sandeep Singh Vs. State of U.P. & Ors.
851
each such license under section 34(1) of the
Act, exclusively. If, however, one out of
more license held by a licensee is
cancelled, either under clause (a) or (b) or
(c) of section 34(1) of the Act, it would
expose such a licensee to cancellation of
his another/other license/s, irrespective of a
complete
absence
of
any
violation
committed
in
the
operation
of
the
another/other license/s. That is the plain
meaning of section 34(2) of the Act.

23.
 Other
than
excluding
the
contingencies specified under clauses (d) &
(e) of section 34(1) from the scope of
applicability to the power conferred under
section 34(2) of the Act, the legislature has
vested a wide discretion on the licensing
authority, in that regard. Thus, the
legislative intent, is to confine the power
under section 34(2) of the Act to situations
involving specified violations - as to
payment of fee, breach of any express or
implied
terms
and
conditions
and
conviction for any of the specified
offences. Unless a license of a licensee is
first cancelled for any such ground,
another/other license/s of that licensee
cannot be cancelled under section 34(2) of
the Act.

24. At the same time, by very nature,
the power under section 34(2) of the Act is
harsher than that vested under section 34(1)
of the Act. Though akin to the residuary
power vested under section 35 of the Act-to
cancel any existing license, that power is
purely administrative, not involving any
punitive consequence. Upon cancellation of
a license under section 35, the affected
licensee may remain entitled to refund of
license
fee,
deposit
etc.
and
also
compensation. However, by virtue of subsection (3) of section 34 of the Act, such
claims are barred if the cancellation of a
license is made under section 34(1) or
section 34(2) of the Act. That consequence
is mandatory.

25. Thus, upon cancellation of one
license of a licensee under Section 34(1)(a)
or 34(1)(b) or 34(1)(c) of the Act, the
licensing authority may in its discretion
choose to cancel another/other license/s of
that licensee, whether issued under the Act
or under any other law relating to excise
revenue or under the Opium Act, 1878.

26. Without attempting to define the
grounds on which such a license may be
cancelled under section 34(2) of the Act, a
few statutory pointers may be discerned
from the language of the Act itself. First,
the jurisdiction to exercise that power
arises after and not during or before the
exercise of power under section 34(1) of
the Act with respect to another license.
Second, by virtue of its linkage to clause
(a), (b) and (c) of section 34(1) of the Act,
that power may come to be exercised only
if another license of the same licensee has
been cancelled (prior in time), either upon a
default in payment of license fees etc. or
breach of any of the terms and conditions
of his license, permit or pass or upon his
conviction for any of the specified
offences. Third, exercise of the power
under section 34(2) visits the licensee with
a very harsh consequence since he would
suffer the consequence of cancellation of
his (other) license/s without allegation of
any express violation with respect to the
same. Fourth, contrasted with the power
vested under section 35, the power has
heavy civil consequence as it deprives the
licensee of any right to compensation and it
also involves forfeiture of fees, deposits
etc. Fifth, the power to cancel the other
license/s extends not only to any other
license granted under this Act but to any
852 INDIAN LAW REPORTS ALLAHABAD SERIES
other license issued under "any other law",
"relating to excise revenue" or under the
"Opium Act, 1878".

27. In that view, the submission
advanced by the learned Standing Counsel
that cancellation of the other license
follows as an automatic consequence of the
first cancellation proceeding also does not
merit acceptance. The provisions of Section
34(2) of the Act are discretionary and not
mandatory as suggested by the learned
Standing Counsel. Also it's application can
never be an automatic consequence of
cancellation of another excise license of a
licensee. Being a power exercisable only in
the interest of revenue against a licensee
who has already suffered cancellation of
one license u/s 34(1) of the Act; such a
power would have to be exercised with
extreme caution only in cases where upon
facts proven in the earlier proceedings it
appears to the licensing authority that
continuance of another/other license/s of a
licensee would be detrimental to the
interest of revenue. It is this fact that would
have to be proven in such proceeding
initiated under Section 34(2) of the Act.

28. Thus, the proceedings under
section 34(2) may arise purely in the core
interests of revenue, owing to the deliberate
violation committed by the licensee, as may
have been found/proven in an earlier
proceeding of cancellation of any other
license issued under the Act. Yet, no
further and other violation may exist as a
pre-condition to be satisfied or proven
before action may be taken under section
34(2) of the Act to cancel any other license
of that licensee. Therefore, the proceedings
for cancellation of an earlier license must
itself bring out existence of reason/s so
grave and serious as may give rise to a
satisfaction with the licensing authority,
that all or any other license of that licensee
be also cancelled in the interest of revenue.
Illustratively,
but
not
in
any
way
exhaustively, those may be cases of large
scale or organized evasion or avoidance of
excise duty; breach of terms and conditions
made by way of a regular business practice
adopted by the licensee; disentitlement
earned to hold any excise license, due to
any of the specified convictions or
operation
of
law
or
any
other
reason/ground that may spring form the
facts
already
proven
in
the
earlier
proceeding, to cancel one or more licence
of the same licensee, under section 34(1)(a)
or (b) or (c) of the Act.

29. Before such discretionary power
may be exercised, two requirements would
have to be fulfilled. One, there must be
shown to exist an order cancelling another
license (issued under the Act) of the
licensee, under Section 34(1)(a) or (b) or
(c) of the Act. Two, a notice would have to
be issued to the licensee requiring him to
show cause why another/other license/s
standing in his name may not be cancelled.
The notice would state how/why in the
proven facts of the other case/s, any other
license is to be cancelled. No other
allegation of a fresh violation is to be made
or proved in those proceedings.

30. Coming to the facts of the present
case, it would be wholly pre-mature to
reach a conclusion that the ground
specified in the showcause notice is wholly
insufficient or is sufficient for the purposes
of examining the correctness or otherwise
of the cancellation of the Majhenpurwa
licence. It is so because the basic facts
giving rise to the cancellation of the
Gehrukheda licence, have yet not attained
finality. By the order passed in Writ Tax
No. 277 of 2020, decided on 19.01.2021,
2 All. M/s Anandeshwar Traders, Kanpur Nagar Vs. The State of U.P. & Ors.
853
those proceedings have been remanded to
the Appeal Authority to examine the same
afresh and to record it's conclusions
whether the petitioner was in possession of
tampered QR Code and Caps. Till the
Appeal Authority reaches a firm conclusion
as to that, in the facts of the present case,
the cancellation of Majhenpurwa licence
may not be examined, simultaneously.

31. Thus, for the purpose of clarification,
it is stated that in case the petitioner succeeds in
establishing that his Gehrukheda licence was
not liable to be cancelled as he had not violated
either section 34(1) (a) or (b) or (c) of the Act,
the
present
proceedings
to
cancel
the
Majhenpurwa license would necessarily fall.
However, if the Appeal Authority does reach a
conclusion adverse to the petitioner (in that
case), it would be for the Licensing Authority to
then examine the existence or otherwise of an
adequate reason or ground to exercise his extraordinary discretionary power to cancel the
Majhenpurwa licence of the petitioner under
Section 34(2) of the Act, keeping in mind the
observations made above.

32. Ordinarily, if the present writ
proceedings were being finalized during the
Excise Year of 2018-2019, the petitioner may
have remained entitled to restoration of his
Majhenpurwa license. However, since that year
is long over, and the current Excise Year 202021 is at its end, it is provided that the orders
dated 05.02.2020 and 30.10.2019 are set aside
and the matter remitted to the licensing
authority with a stipulation that such remanded
proceedings may be recommenced, if required,
only after the decision of the Appeal Authority
with respect to the Gehrukheda license of the
petitioner. If no case is made out for
cancellation
of
petitioner's
Majhenpurwa
license, under section 34(2) of the Act (as
discussed above), his claim for renewal of that
license, if otherwise eligible, for the Excise
Year 2021-22 may be considered by treating
the petitioner to be a continuing licensee, on
notional basis or (if the petitioner does not seek
renewal, at that stage), to grant proportional
refund to him in terms of section 35 of the Act,
as in that case the cancellation of the
Majhenpurwa license would remain referable to
that provision of law only. Such proceedings be
completed by 15.04.2021.

33. The ratio of Gorakhnath (supra)
and Girishdutta Mishra (supra) is found
inapposite. The ratio of those decisions is to the
rights of the original licensee viz a viz his
replacement licensee who came to be appointed
after the license of the original licensee had
been cancelled. Once the license of the original
licensee was restored, the replacement licensee
was found to have no rights surviving with him
to claim continuance of his license. Such is not
the case here. As observed above, the
Gehrukheda license stands cancelled and also, it
is not clear if the Majhenpurwa license had ever
been renewed for the Excise Year 2018-2019.
In any case, that Excise Year is long over.
Hence revival of that license is not warranted, at
this stage.

34. Accordingly, the writ petition is partly
allowed.
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(2021)02ILR A 853
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.01.2021

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.

Writ Tax No. 503 of 2020

M/s Anandeshwar Traders, Kanpur Nagar
 ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents