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Non Refund Of Licence Fee For Model Shop, Unused Due To Covid Prohibitions: Allahabad High Court Asks Dept To Explain

Mariya Paliwala
8 Aug 2022 12:30 PM GMT
Allahabad High Court, Issues, Contempt Notice, State Principal Secretary, Failure, Decide, representations, Inclusion, Rajbhar Community, ST List,  Principal Secretary, Social Welfare Department, Justice J. J. Munir,

The Allahabad High Court has held that the department has practically refused to comply with the directions of the Court and has shown misconduct and a flagrant breach of the principles of judicial discipline and propriety.

The division bench of Justice Surya Prakash Kesarwani and Justice Jayant Banerji has observed that the conduct of the department may require the imposition of an exemplary cost and the initiation of appropriate proceedings. However, one opportunity is afforded to the department to file the personal affidavit within one week and show cause as to why an exemplary cost may not be imposed upon them for showing misconduct.

The petitioner had applied for a licence for a model shop within the limits of Civil Lines, Fatehpur for the Excise Year 2020–21 and the allotment letter dated 16.03.2020 was issued to the petitioner by the competent authority. The petitioner deposited the licence fees for the whole year of Rs.30,55,000 and Rs.2,00,000 towards catering of liquor in the canteen. Thus, a total amount of Rs. 32,55,000 was deposited by the petitioner through RTGS.

The petitioner also submitted security of Rs.3,05,500 in the form of an FDR dated 07/04/2020 prepared in favour of the District Excise Officer, Fatehpur. For the issuance of a licence for a model shop, the petitioner submitted the boundaries of the proposed shop and the seller's name. On inspection of the proposed place for the model shop, it was found to be located within the limits of Ward No.2 and not within the limits of Civil Lines.

Therefore, the District Excise Officer asked the petitioner to submit the boundaries of a new place for running the model shop for approval. According to the respondents, instead of submitting the boundaries of a new place, the petitioner filed a writ which was disposed of by an order dated 15.07.2021. The Writ Tax was filed by the petitioner in the month of June, 2020, and after an exchange of affidavits, it was disposed of. The court held that there was a complete lockdown from 01.04.2020 to 03.05.2020. The petitioner had, at the earliest stage itself, offered to surrender her licence, though that application had not been formally made before the Excise Commissioner. At the same time, there is no material on record to doubt that the petitioner did not intend to surrender her licence, inasmuch as no quantity of liquor has been dealt with or sold by the petitioner. The court said that while exercising discretion, the Excise Commissioner shall remain mindful of the observations made in the order and allow for a refund if the petitioner is found entitled to the amount of the licence fee and additional fee. However, the petitioner will not be entitled to any refund of the processing fee of Rs.30,000/- that has been paid.

The Allahabad High Court on 21.7.2022 has held that respondents have completely and deliberately ignored the period of complete lock-down. In model shops, consumption on the premises is allowed along with the facility of taking snacks, and the government has completely prohibited the activity of running restaurants etc. for a major period of the financial year 2020–21 on account of Pandemic COVID-19. The order rejecting the refund appeared to be arbitrary and illegal. However, following the principles of natural justice, one more opportunity was afforded to the respondents to file a counter affidavit.

The court found that the counter affidavit shows that respondents have attempted to sit in appeal over the judgement of the court. By the impugned order and the counter affidavit, they have practically refused to comply with the directions of the Court given in the judgement dated 15.07.2021.

The court, while listing the matter on 10.08.2022, said, "On the next date fixed, the deponent of the counter affidavit dated 02.08.2022 filed on behalf of the respondents shall also remain personally present and shall show cause as to why exemplary cost may not be imposed upon him and appropriate proceedings may not be initiated."

Case Title: Nidhi Agarhari Versus State Of U.P. And 3 Others

Citation: WRIT TAX No. - 966 of 2022

Dated: 3.8.2022

Counsel For Petitioner: Advocate Avanish Mishra, Anurag Sharma

Counsel For Respondent: C.S.C.

Click Here To Read/Download Order

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