IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRTIETH DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION NO : 5484 of 2005 Between: Jaspal Singh, S/o. Nanak Singh, R/o. 8-3-676/2/2, Sreenagar Colony, Hyderabad. ..... PETITIONER AND 1 The Prohibition and Excise Superintendent, Hyderabad. 2 The Prohibition and Excise Inspector, Golconda Cirlce, Hyderabad. 3 Government of Andhra Pradesh, Rep. by its Secretary, Prohibition and Excise Department, Secretariat, Hyderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue a Writ orderor direction more particularly onein the nature of Writ of Mandamus by setting-aside the impugned notice dt. 18-09-2002 issued to the Petitioner by the 1st respondent for recovery of excise arrears by declaring it as ilelgal and violative of Article 21 of Constitution of India and pass such other order/s Counsel for the Petitioner:MR.B.CHANDRASEN REDDY Counsel for the Respondents: GP FOR PROHIBITION & EXCISE The Court made the following Order: THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.5484 of 2005 ORDER: The petitioner impugns the notice dated 18.09.2002 issued by ﬁrst respondent calling upon him to avail one time settlement (OTS) facility given by the Government for payment of excise arrears without penal interest by 31.08.2003 otherwise to pay penal interest of Rs.1,83,600/-. A perusal of the aﬃdavit accompanying the writ petition and the counter-aﬃdavit ﬁled by the Prohibition and Excise Superintendent, Hyderabad, disclose peculiar case for judicial review, if it is permissible. The District Collector, Hyderabad, issued a Gazette notiﬁcation for auctioning IML shops in Hyderabad for the year 1997- 1998. The respondents categorically stated that the petitioner ﬁled a tender along with a notarized aﬃdavit in Form A2 showing an extent of 1600 sq. yards vacant land at Bowenpally worth of Rs.16,00,000/- as belonging to him. This was one of the mandatory conditions for ﬁling tenders. Be that as it is the petitioner was successful bidder/auction purchaser. He accordingly paid Rs.6,00,300/- being half of the bid amount of Rs.12,00,600/-. He did not pay other half within 90 days as stipulated. Therefore, the Assistant Commissioner of Prohibition and Excise, Hyderabad, re-auctioned IML shop on 26.09.1997. This caused loss to the Government to a tune of Rs.2,65,000/-. Therefore, the Assistant Commissioner ordered on 22.10.1997 for recovery of said amount from the petitioner. Enquiries revealed that the petitioner gave false Form A2 aﬃdavit showing 1600 sq. yards as belonging to him, which found to be ﬁctitious and false. Therefore, a case of cheating was ﬁled in the Court of IV Metropolitan Magistrate, Hyderabad. By judgment dated 28.11.2000 in C.C.No.50 of 2000 the petitioner was acquitted observing that the prosecution failed to prove the case beyond all reasonable doubt. Nonetheless the respondents assert that it is only the petitioner who participated in the auction duly aﬃxing his passport size photographs on the licence in Form IL 24. The eﬀorts to recover the amount failed and therefore, the impugned notice was issued advising the petitioner to avail OTS. The petitioner contends that he never participated in the auction and that third party submitted the bid documents on his (petitioner’s) behalf including the aﬃdavit in Form A2 showing 1600 sq. yards as belonging to him (petitioner). The entire case is based on acquittal order passed by IV Metropolitan Magistrate, Hyderabad. The petitioner also contends that as some unknown third party mislead excise department by submitting tender documents in his (petitioner) name, the impugned notice advising him (petitioner) to accept OTS and pay excise arrears is unsustainable. Whether the petitioner submitted the bid documents on 26.05.1997 for IML shop? Whether the petitioner submitted an aﬃdavit/declaration of property in Form A2 showing 1600 sq.yards as belonging to him, by himself or third party ﬁled such aﬃdavit impersonating the petitioner? Whether the judgment of the criminal Court acquitting the petitioner clinches the issue? These are the vital questions, which are thrown up by the background of the case. First two questions, however, cannot be answered in a writ petition. Furthermore in the counter-aﬃdavit ﬁled by ﬁrst respondent, reference was made to the photos submitted by the petitioner along with the application for tender, but the same has not been denied by filing reply-affidavit. The statement made by ﬁrst respondent that the petitioner himself participated in the auction and paid half of the bid amount of Rs.6,00,300/- has also not been denied. In the absence of such denials, a writ Court has to apply the principle of non traverse. It is settled proposition of law that the unrebutted pleadings in the counter aﬃdavit are deemed to have been admitted. (See C.S.Rowjee v State of A.P. [1], Bharat Singh v. State of Haryana[2], Naseem Bhanu v State of U.P. [3] and Lohia Properties v Atmaraman Kumar[4]). Therefore, in view of the counter averments which remained unrebutted, this Court has to draw an inference that the petitioner ﬁled the writ petition making all false allegations. The judgment of the criminal Court in C.C.No.50 of 2000 dated 28.11.2000 is also of no assistance to the petitioner. The charge sheet ﬁled by the Sub-Inspector of Police made allegation that the petitioner ﬁled Form A2 aﬃdavit making false declaration and thereby cheated the department of excise. On this the ﬁnding of the criminal Court is that the prosecution failed to prove the case as per the standard of proof applicable to criminal cases. Secondly while dismissing C.C.No.50 of 2000 the criminal Court made the following observations. As can be culled out from the cross examination of the witnesses P.Ws. 1 to 5 the defence sought to be set-up on behalf of the accused and that the prosecution did not take the hand writings on the accused to compare the same with the signature available in Ex.P4 and that the prosecution has also failed to examine the notary before whom the Ex.P4 aﬃdavit was notarized. Further the prosecution has failed to place registers and other documentary evidence to show that the accused was the person who submitted the tender along with Form Nos A1 and A2 exhibited as Ex.P3 & P4 and therefore the prosecution has failed to place suﬃcient evidence to connect the accused with submissions of the tender for participating in the auction. But I am of the view that the defence sought to be set-up on behalf of the accused is demolished by his subsequent conduct of his voluntarily surrender before PW5. Unless he was the person who had submitted the tender along with Ex.P3 & P4 there was no necessity for him to surrender before PW5. Therefore, I am of the view that the defence – defence sought to be set-up on behalf of the accused is weak and without any substance. But however I am of the view that the prosecution has failed to place convincing and credible evidence before the Court to satisfy the Point Nos (i) to (iv) as per the discussion made in the foregoing paras, beyond all reasonable doubt. …(emphasis supplied) It is no doubt true that the ﬁnding of fact by the criminal Court does not operate as res judicata. But having regard to the reasoning given by the learned Metropolitan Magistrate, this Court does not ﬁnd any strong reasons to deviate from the same. The writ petition is ﬁled making all perjurable statements. Therefore, this Court is not inclined to excise any discretion in favour of the petitioner. Therefore, the writ petition is dismissed with costs. _____________ (V.V.S.RAO, J) 30th October, 2008 GHN To 1 The Prohibition and Excise Superintendent, Hyderabad. 2 The Prohibition and Excise Inspector, Golconda Cirlce, Hyderabad. 3 Government of Andhra Pradesh, Rep. by its Secretary, Prohibition and Excise Department, Secretariat, Hyderabad. 4 2CCs to 5 2CD copies Form-NIC-OGS/WP{SPJS} [1] AIR 1964 SC 962 [2] AIR 1988 SC 2181 [3] 1993 Supp(4) SCC 46 [4] (1993) 4 SCC 6