2013 (9) TMI 653

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....ngement, to avoid recovery and prosecution. The writ petitions filed by retail vendors challenging the assessment were allowed by this Court, and by which Sri Pradeep Kumar and Sri Kashiram - respondent Nos. 5 and 6 became entitled for refund of the entire amount. Since the petitioner deposited the amount, on behalf of respondent Nos. 5 and 6, a Civil Suit No. 506 of 2000 was filed by him impleading Sri Pradeep Kumar and Sri Kashiram - respondent Nos. 5 and 6, as well as State of U.P., and Excise Commissioner, for decree to refund the amount to respondent Nos. 5 and 6. During the pendency of the suit, a compromise was arrived at on 30.09.2003, between the plaintiff Sri Ravindra Talwar (the petitioner in this writ petition) and Sri Pradeep Kumar and Sri Kashiram - respondent Nos. 5 and 6, in which they agreed that the amount deposited by the Excise Department as refund in the Civil Court will be released in the manner that Sri Pradeep Kumar - respondent No.5 will be entitled to receive Rs.5,67,000/-, and that remaining amount of Rs.6,56,464.86 will be released in favour of the plaintiff. It was agreed that whatever amount would be refunded in future by the Excise Department in conne....

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....Ram and Sri Pradeep Kumar, could not be taken into considered for the purpose of realisation of excise dues, which were made valid, retrospectively. Sri Pradeep Kumar and Sri Kashiram - respondent Nos. 5 and 6 have also withdrawn the refunded amount deposited by the Excise Department in the Civil Court, and thus the petitioner cannot be held liable for payment of such assessed amount. It is further submitted that the petitioner was not the retail licencee. The FL-2 licence was granted to Sri Pradeep Kumar and Sri Kashiram - respondent Nos. 5 and 6, and hence they alone can be made liable to pay the amount, when the levy was held to be valid retrospectively. 7. We find the argument to be attractive but on the admitted facts stated by the petitioner in the Civil Suit No. 506 of 2000 and the subsequent Suit No. 369 of 2013 (Ravindra Kumar Talwar Vs. State of U.P and others) filed by him, he is not entitled to any relief from this Court. Firstly, we may observe that the petitioner having failed to obtain interim order in Suit No. 369 of 2013, filed the present writ petition when the injunction application in the Suit is still pending. Secondly, we find that in view of the averments ....

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....cence benami in the name of respondent Nos. 5 and 6, for which power of attorney was executed in his favour. He also alleged that the arrangement entered into between him and respondent Nos. 5 and 6 was a private arrangement under which the money deposited was refunded, and thus he cannot be liable to repay the amount, after the levy was made valid with retrospective effect. 10. We are unable to appreciate as to how a licence granted under the U.P. Excise Act could be sub-let on the strength of power of attorney. A liquor licence is given to a person considering his financial status, and subject to good conduct. No one is entitled to get a licence in the name of third person, and thereafter to run the business benami through a power of attorney executed by the licencee. The entire arrangement was illegal. 11. In the present case, it is admitted that the petitioner, who is also Ex-chairman of Nagar Palika Parishad, was given licencee, for sale of liquor in whole sale in the entire district Saharanpur At the same time, he was also running the business of sale of liquor in retail benami in the name of respondent Nos. 5 and 6, for which entire licence fee, bank guarantee etc had ....

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2013 (9) TMI 653