1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: Surendra Singh Vs. State of Rajasthan & Anr. S.B. CIVIL WRIT PETITION NO.10362/2010 Date of Order :: 9th November 2010. PRESENT HON’BLE MR.JUSTICE DINESH MAHESHWARI Mr.H.S.Sidhu for the petitioner Dr.Sachin Acharya for the respondent (caveator) BY THE COURT: The petitioner was granted a licence to sell country liquor at village Dhundara District Jodhpur for the year 2009-2010 and the said licence came to be renewed for the year 2010-2011. It had been the allegation on the part of the respondent-Excise Department that the Excise Inspector, Mr.Dana Ram conducted a raid upon the shop of the petitioner on 26.10.2010 and it was found that various articles and bottles containing illegal/illicit liquor were found at the shop and one Sher Singh son of Chhatar Singh was found working as salesman though he was not an authorised salesman. An FIR was registered for the offences under Sections 16/54 and 58 (C) of the Rajasthan Excise Act, 1950 ('the Act of 1950'). On the basis of said FIR, a show cause notice was issued to the petitioner on 27.10.2010 (Annex.P/5) requiring him to appear on 02.11.2010. The petitioner did appear and submitted his reply on 02.11.2010 through counsel. Essentially the contention of the petitioner had been that the alleged recovery was made at a place 2 different and not from his shop. It was also contended that the Excise Inspector, Mr.Dana Ram was unfavourably poised towards the petitioner and had, therefore, foisted this false case though at the time of alleged recovery, authorised sales-persons were available at the shop and that the petitioner had never violated the terms of licence. The District Excise Officer in his order dated 03.11.2010 (Annex.P/7) did not agree with the contentions as urged on behalf of the petitioner and found it to be a serious matter where illicit liquor was found at the authorised liquor shop of the petitioner. The District Excise Officer, therefore, proceeded to cancel the licence granted to the petitioner with immediate effect while forfeiting the security amount and licence fees. From the documents placed on record, it is also clear that on 03.11.2010 itself, the District Excise Officer proceeded to re-advertise the shop in question for the period 01.11.2010 to 31.03.2011 and the applications have been called until 3 O' clock today. By filing this writ petition, the petitioner seeks to challenge the action on the part of the respondents-authorities and essentially the order dated 03.11.2010 as passed by the District Excise Officer, Jodhpur. Counsel for the petitioner has strenuously argued that the authorities have proceeded in an illegal and arbitrary manner only in order to cancel the licence of the petitioner. It is submitted that no enquiry as contemplated by the enactment and the terms of licence was carried out nor the submissions of the petitioner were taken into account and, rather the licence has been cancelled merely on the bald allegation of the Excise Inspector. It is submitted that the respondents having failed to carry out the requisite enquiry, the 3 impugned order can only be said to have been passed in violation of the principles of natural justice and cannot be sustained. The respondents have appeared in caveat, and apart from justifying the impugned order dated 03.11.2010 and the action taken by them, have taken a preliminary objection of availability of alternative remedy of appeal per Section 9A of the Act of 1950. In relation to the objection about availability of alternative remedy, it is contended on behalf of the petitioner that the order impugned is directly against the basic requirements of principles of natural justice and existence of alternative remedy cannot be considered to be a bar on the maintainability of this petition. It is further submitted that the appeal cannot be said to be an efficacious remedy where the statute does not spell out the power in the authority concerned to grant interim order. It is also submitted that even if the appeal is available against the order passed by the Excise Officer to the Excise Commissioner, the said order is further subject to appeal/revision before the Board of Revenue and, thus, the order as passed in appeal would also not be conclusive. It is submitted that taking recourse to statutory remedy would not be fruitful as the term of licence is only upto 31.03.2011. The learned counsel has referred to and relied upon the decisions in M/s Samrat Bottlers Pvt. Ltd. Vs. State of Rajasthan & Ors.: 1988 (2) RLR 577, M/s. R.N.Products, Jodhpur Vs. State of Rajasthan & Ors.: 1989 (2) RLR 741 and Satwati Deswal Vs. State of Haryana & Ors.: (2010) 1 SCC 126. Having given a thoughtful consideration to the submissions made by the learned counsel for the petitioner, having perused the material placed on record and having gone through the decisions 4 cited and the statutory provisions, this Court is unable to agree with the submissions made on behalf of the petitioner for bypassing the regular remedy of appeal as provided under the statute. The submission that the order impugned has been passed in violation of principles of natural justice and, therefore, availability of alternative remedy may not come in the way of the petitioner, has its fundamental shortcomings when it is noticed that the petitioner was indeed issued a show cause notice on 27.10.2010 and then he did submit reply to the said notice through counsel. It is also noticed from the order impugned that the learned District Excise Officer did consider the entire record and so also the reply filed by the petitioner and also considered the submissions made by the counsel for the petitioner. The District Excise Officer thereafter found baseless the submissions on the face of material available on record and found it seriously questionable that illicit liquor was found at the licence shop and unauthorised person was found working as salesman apart from want of maintaining the daily stock register too. The detailed order as passed by the District Excise Officer prima facie does not appear violative of any of the requirements of the principles of natural justice. So far the decisions cited at Bar are concerned, there is no quarrel with the proposition that existence of alternative remedy is not an absolute bar in maintaining of the petition for writ but then, on the very principles as reiterated by the Hon'ble Supreme Court in Satwati Deswal (supra), the present case is neither of inherent lack of jurisdiction of District Excise Officer nor the petition could be said to be for enforcement of any fundamental right nor there is a case of violation of principles of natural justice nor vires of the Act are in 5 challenge. Whether in the given facts and circumstances, the order impugned is justified on merits or not is a matter entirely different and examination of merit of the case would essentially require consideration of various factual aspects of the matter too and for such an enquiry, the authority empowered to hear the appeal under the statute appears to be correct and proper forum. The Division Bench decisions of this Court as referred by the learned counsel for the petitioner have got hardly any relevance to the question at hands. Essentially in both the aforesaid cases, the action of the Government was found as arbitrary and discriminatory particularly when licences of the petitioner were refused to be renewed whereas the licences of similarly placed persons were renewed. A clear case of discrimination obviously stands at entirely different footings. So far the procedure and powers of the appellate authority are concerned, not much comments appear requisite in this matter for the petitioner having not even filed an appeal and having not asked for any interim order before the appellate authority. It is not the case that the petitioner filed the appeal and asked for interim order that was declined by the appellate authority. Without the petitioner having taken recourse to the remedy provided in law, the arguments as suggested in this petition, at this juncture, cannot be countenanced. The argument that the order passed by the Excise Commissioner is further subject to appeal/revision before the Board of Revenue, in the opinion of this Court, does not make out a case that the remedy provided by the statute is not an efficacious one. The inference, if at all, available from the scheme of the enactment is that the enactment has provided substantial safeguards against the 6 orders passed by the Excise Authorities. So far the respondents proceeding in so-called haste is concerned, suffice is to notice that the matter relates to the liquor licence and the Excise Department is obviously required to take care of proper management of sale of liquor in the area in question and at the same time to take safeguards towards State revenue too. Issuance of notice inviting applications afresh cannot be said to be anything calculated at over- reaching the process of law. Having regard to the circumstances of the case and the questions sought to be posed by the petitioner and looking to the order passed by the District Excise Officer, this Court is clearly of opinion that there has not been any justification for the petitioner not taking recourse to the statutory remedy of appeal under the Act of 1950. The present one is not a case where the writ jurisdiction of this Court be exercised in favour of the petitioner while permitting him to bypass the statutory alternative remedy under the Act of 1950. In view of what has been discussed above, this writ petition is required to be dismissed while relegating the petitioner to the alternative remedy of appeal. In the interest of justice, it is made clear that any observations made herein shall otherwise not operate to the prejudice of the petitioner so far merit of the case is concerned, if at all, the petitioner chooses to take recourse to the alternative remedy of appeal. With the aforesaid observations, this writ petition fails and is, therefore, dismissed. (DINESH MAHESHWARI), J. MK