M M JANARDANAN Vs. STATE

JUDGEMENT

(1.) This is a petition under Art.226 of the Constitution by a foreign liquor wholesale licensee questioning the validity of an order passed by the 1st respondent State directing the transfer of his shop from its original location for the purpose of accommodating the 2nd respondent, foreign liquor retail licensee.

(2.) The petitioner obtained sanction on 19.3.1955 for a license to vend foreign liquor in wholesale at a particular shop site in the Post Office road near the bus stand at Trichur. In due course he remitted the license fee of Rs. 3000/- and got license issued in his favour on 31.3.1955 for conducting his shop for the year 1955-56. The 2nd respondent got retail license for sale of foreign liquor for the same year 1955-56 on 30.3.1955 and started vending liquor near the private bus stand, Trichur, on 1.4.1955. It would appear that for the previous year the retail shop had been located in the very site taken by the petitioner for his wholesale shop as above mentioned and there was further no wholesale vending of foreign liquor nearby. The second respondent being afraid of severe competition from the wholesale shop of the petitioner complained by telegram dated 1.4.1955 and later by two petitions dated 4th and 25th April 1955 respectively to the First Member of the Board of Revenue, who functioned as the Excise Commissioner under the Abkari Act that the wholesale license may not be issued for that site or anywhere within its prohibited area. The Excise Commissioner refused to interfere and merely recorded his petition on 4.7.1955. The 2nd respondent thereafter took the matter before Government who by their order dated 27.9.1955 directed the shifting of the petitioners shop to any other site in Trichur town at least half a mile away from the present site. This order of 27.9.1955 is filed as Ext. B and it is this order that is sought to be quashed herein by issue of proper writ.

(3.) Before proceeding to discuss the various grounds of challenge raised by the petitioner it will be useful to briefly set out the relevant rules governing the matter. These rules are framed by Government in exercise of the powers conferred on them by Ss.10, 24 and 25 of the Cochin Abkari Act, I of 1077 as subsequently amended and continued in force and are published at page 54 of the Statutory Rules and Notifications for 1953, Vol. 1. R.13 provided for the issue of licenses for sale of foreign liquor. There are six categories of these licenses and we are concerned with No. (1) and No. (2) under the rule. No. (1) is described as foreign liquor 1. Wholesale license which is to be issued by the Excise Commissioner for an annual fee of Rs. 3000/- subject to such instructions as may be issued by Government from time to time. Under this license the sale of liquor in any quantity less than one gallon at a time to one person is prohibited and liquor sold under this license shall not be consumed on the premises. This is the kind of license issued in favour of the petitioner under Ext. A. Then comes the foreign liquor 2 Retail (Tavern) license. The privilege of sale under this license is sold in public auction subject to the conditions of the sale notification published by Government from time to time. It is this kind of license that was issued to the 2nd respondent. R.16 provides that no premises shall be used for the sale of liquor unless they have been approved by the Excise Commissioner and R.24 says:-