BRIJ BHUSHAN CHAUDHARY Vs. STATE OF U P

JUDGEMENT

(1.) S. K. Sen, C. J. The writ petitioners in these writ petitioners are licensees for country liquor/foreign liquor and beers. Since common issues, namely, claiming renewal of their licences granted to them till 31-3-2002 for another period of one year from 1-4- 2002 and for quashing the notice dated 18-3-2002 published in daily news paper (Dainik Jagran, Gorakhpur) are involved in these writ petitions, they are being disposed of by this common judgment. That apart, a large number of writ petitions involving the same questions of facts and law have been instituted in this Court and they have been connected with these petitions. Therefore, all those connected writ petitions will be governed by the decision in these writ petitions and they are also disposed of by this common judgment.

(2.) THE case of the petitioners is that some of the licences were granted licences in the year 2000 and some of them in the year 2001 for a period of one year of part thereof, renewable on the conditions to be decided by the State Government. According to relevant Rules governing the grant of license in respect of country made liquor, foreign liquor and beer, to be discussed hereinafter the licence granted to the writ petitioners may be renewed for such period and on such terms and conditions as to be decided by the State Government, from time to time. THE State Government, however, had already issued advertisement on 18th March, 2002 in several newspapers inviting applications for grant of licence for retail outlet for sale of beer, country made liquor and foreign liquor. Some of the writ petitioners applied for renewal of their licences. THEir case has not been considered. However, advertisement has been issued for issuance of fresh licence.

(3.) AGAIN, the matter came up for hearing on 4th April, 2002 before a Division Bench consisting two of us, and it had passed the following orders : Shri S. C. Sinha, Joint Director Government Printing Press, Allahabad is present in the Court in pursuance of our order passed today before recess. He submits that Director, Government Printing Press has left for Lucknow today early morning for attending the meeting at Secretariat, Lucknow. He has produced the record and submits that the Gazette, which is produced today was printed yesterday night i. e. on 3-4-2002. He further submits that Shri G. S. Sethi, Director, Government Printing Press has instructed him to print the Gazette by any means by 3rd April night since the publication is very important. He further submits it was received on 14-3-2002 and was in the process of publication but it could not be printed. He further submits that no copy has been sold out to any member of the public as yet. Shri S. C. Sinha, Joint Director, Government Printing Press, voluntarily submits that he had received instruction that it must be published in view of the urgency by night of 3-4-2002 from Director, Government Printing Press. He further voluntarily says that the Director has instructed him specifically to publish the Gazette by 3-4-2002 from his office at Allahabad. Considering the statements made by Shri S. C. Sinha, Joint Director, Government Printing Press, it appears to us that the matter has taken a very serious turn. Shri P. P. Srivastava, learned Counsel for the petitioners in the presence of the Chief Standing Counsel made a comment on 3-4- 2002 that he apprehends that such printing of Gazetter shall take place by night as the printing of Gazette has not taken place as yet and as such the repealing Rules 2002 has not really come into force. In appears that to circumvent and to stifle the course of justice, such a process has been taken, so that the submission of the learned Counsel for the petitioner cannot have any effect when the Court is seized of the entire matter. It shall not be in the interest of the justice to take the matter lightly. Considering the gravity of the situation, we direct the Director, Government Printing Press, Shri G. S. Sethi, who instructed Shri S. C. Sinha, Joint Director, Government Printing Press to print the Gazette by any means by the night of 3-4-2002 to be present in the Court tomorrow i. e. , on 5-4- 2002 at 2. 00 p. m. The Secretary Department of Excise and the Commissioner of Excise, Uttar Pradesh, Allahabad shall also be present on 5-4-2002 at 2. 00 p. m. and explain on what basis the printing could be made only in the night of 3-4-2002. In the meantime no sale to public of this Gazette in question shall take place. It may be noted that by order dated 21-3-2002 and 23-3-2002 the Division Bench, inter alia, directed as follows : "be that as it may, we are not inclined to enter into the controversy. We are of the view that the interest of justice shall be best served if those petitioners who have already applied for renewal and those whose applications were not entertained apply within 23rd March, 2002, their cases for renewal is considered by the State Government in accordance with law and appropriate decision is taken by State Government by 24th March, 2002. In the event of refusal to grant renewal the State Government to record reasons for the same. Pursuant to the advertisement the draw of lots shall take place as fixed and the result shall be declared, but no contract shall be executed till 5-4-2002. It is made clear that this order is restricted to the case of writ petitioners, only. The question of renewal shall be decided by the Secretary, Excise Department, U. P. Government, Lucknow. " On 1-4-2002 the Division Bench passed an order directing the status quo as on 31-3-2002 to continue till 5-4-2002 in Writ Petition No. 504 of 2002 and Writ Petition No. 509 of 2002 and in large number of petitioners which came up for hearing. "we are prima facie satisfied that the said order was not followed in its true spirit. By one general order the applications for renewal of the applicants for renewal were rejected referring to Section 36-A of the U. P. Excise Act. It is well-settled that no body has a specific right to renewal, but each case has to be decided in its own perspective in view of Rules 5 for country and foreign liquor and 6 for Beer of U. P. Excise Rules, 2001. The said rules provide for renewal and the State Government has exclusive power to decide the terms and conditions of such renewal. The Rules of 2002 however provided that the consent of the licensee has to be obtained for the purposes of renewal, prima facie it appears to us that the said order rejecting the case for renewal was passed mechanically and without application of mind. The Chief Standing Counsel however pointed out on the last occasion i. e. on 3-4-2002 that Rules for the year 2001 have been repealed with regard to country liquor and, therefore, the petitioners cannot get the benefit. We have already noted that the repealing Act has not been published as required under Section 77 of the U. P. Excise Act, 1910 and as such the same has not come into force. In fact, the Secretary, Excise Department, Government of U. P. in his order dated 25th March, 2002, has not mentioned the said Rules of 2001 have been repealed and repealing rules have come into force by publication in the official Gazette. According, we are prima facie of the view that the interim order of status quo, which had continued upto 31-3-2002, shall continue upto 10-4-2002 subject to further order that may be passed tomorrow, since we have heard the case of all the petitioners today, all the petitioners shall be entitled to this interim relief. This interim order shall, however, continue subject to the condition that there is no arrears due against the petitioners. In the event, there is any arrear against any of the petitioners, they will not be permitted to run their shops. Since we are passing this order, by way of interim measure, the petitioners shall be granted licence on day to day basis. As an interim measure the petitioners may be permitted to run the spot on day today basis on the term and conditions as may be fixed by the State Government. It is expected that the supply of liquor shall be ensured provided the petitioners make payment of the amount due and payable upto 10-4-2002 at a time. The matter shall be listed on 5-4-2002 along with all connected matters, as part heard at 2. 00 p. m. for hearing. The office is directed to supply copy of this order to learned Chief Standing Counsel today for compliance of the order. "