RAM KRIPAL Vs. STATE OF U P

JUDGEMENT

(1.) R. K. Agrawal, J. By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, Ran Kripal, seeks the following reliefs: " (A) An order, direction or writ in the nature of certiorari quashing the order dated 15-7-2004 (Annexure 12 to the writ petition) passed by Excise Commissioner, U. P. Allahabad. (B) An order, direction or writ in the nature of Mandamus restraining the respondents from establishing or opening a sub-shop for the retail sale of country liquor at Katghar in pursuance to the impugned order dated 15-7-2004 and to direct the Excise Commissioner U. P. to consider the application of the petitioner for establishment of a sub-shop at the aforesaid place in accordance with the provisions of U. P. Number and Location of Excise Shop Rules, 1968 and U. P. Excise (Settlement of Licenses for Retail Sale of Country Liquor) Rules, 2002. (C) Such other and further order, direction or writ of suitable nature which this Hon'ble Court may deem fit and proper in the circumstances of the case. (D) An order awarding cost of this petition to the petitioner.

(2.) BRIEFLY stated, the facts giving rise to the present writ petition are as follows: According to the petitioner, he was granted a licence on 19-3- 2002 for retail sale of country liquor in Mutthiganj locality in the city of Allahabad for the excise year 2002-2003 which is the financial year also, in accordance with the provisions of me U. P. Excise (Settlement of Licences for Retail Sale of Country Liquor) Rules, 2002 (hereinafter referred to as "the 2002 Rules" ). The petitioner had paid the basic licence fee of Rs. 6,90,000/- During that year the minimum quantity fixed was 69,000 bulk litres of country liquor and the total licence fee payable was Rs. 56,58,000/ -. The licence was renewed for the excise year 2003-2004 and it has been renewed for the current excise year 2004-2005. However, the minimum quantity of the country liquor has been enhanced to 77,280 bulk litres. It is alleged by the petitioner that as per the terms and conditions of the licence and the policy of the State Government, he had the exclusive right to sell the country liquor within the entire locality of Mutthiganj and no other licensee could operate in the aforesaid area. The State Government has framed the rules for fixation of number and location of the excise shops, known as the U. P. Number and Location of Excise Shop Rules, 1968 (hereinafter referred to as "the 1968 Rules" ). Rule 1-A (b) defines "sub-shop" to mean a retail shop for vend of country liquor to be opened by a grantee of exclusive privilege for retail sale of country liquor under Section 24 of the U. P. Excise Act, 1910 (hereinafter referred to as "the Act"), within the area and during the currency of the excise year of his contract. Under Rule 2 of the 1968 Rules, the Collector has been empowered to determine the distribution and location of shops and sub-shops. His powers have been made subject to the control of the State Government and the Excise Commissioner and to the limitations provided in the Rules. On 1-11-2002 the State Government had issued a Government Order providing for opening of sub-shop within a licensed area with a condition that the business of any other existing shop and the revenue payable to the State Government should not be adversely affected, which decision was circulated to all the concerned authorities by the Excise Commissioner, U. P. , Allahabad vide letter dated 10-1-2003. The petitioner had made an application on 20-1-2003 before the District Excise Officer, Allahabad seeking permission to open a sub-shop at Katghar Chauraha in Mutthiganj locality, i. e. , within the area of his operation. Further, on coming to know that the excise licensees for retail vend of country liquor of the Baluaghat, Gaughat, Kydganj and Bai ka Bagh localities have made application for opening of sub-shop under their area of operation, the petitioner submitted his objection dated 10-1-2003. The Joint Secretary, U. P. Government, Lucknow vide letter dated 28-1-2003 directed the Excise Commissioner, U. P. , Allahabad to take proper action on the application made by the petitioner and one Ram Sewak, excise licensee for retail vend of country liquor in respect of Bairahana locality. After the licence was renewed for the excise year 2004-2005, the petitioner again made an application on 17-4-2004 seeking permission for opening a sub-shop at Katghar Chauraha or Mutthiganj Sabzi Mandi upon which the Joint Excise Commissioner, vide letter dated 19-4-2004, had asked for a report from the District Excise Officer, Allahabad. It appears that the respondent No. 6, Renu Jaiswal who is the licensee for retail vend of country liquor for Baluaghat locality, has also made an application for opening of a sub-shop at Katghar. The Deputy Excise Commissioner, Allahabad after making spot inspection, submitted a report stating therein that if the sub-shop of Baluaghat country liquor licensee is sanctioned, it can very well be opened at a distance of about 400 meters from the existing Mutthiganj shop licensee which would create a dispute and thereafter recommended against the opening of sub- shop. It may be mentioned here that on some proposal made by the Excise Commissioner, U. P. , Allahabad on 6-5-2004 to the State Government relating to establishment of sub-shops in the entire State of U. P. , a high level meeting was held on 29-6-2004 under the Chairmanship of the Secretary, Excise Department, Government of Uttar Pradesh, in which the following decision has been taken: " (1) AABKARI AYUKTA KE ANUM-ODAN SE UP DUKAN MUKHYA DUKAN KE VIKRAYA PARIDHI ME HI KHOLI JAYEGI TATHA KJSI BHI ANYA DUKAN SE UP DUKAN KI DOORI APNI MUKHYA DUKAN KI TULANA ME ADHIK HOGI. (2) UP DUKAN TULNATMAK RUP SE BARE M. G. Q. WALI DUKANO JINKA M. G. Q. 20 HAJAR BULK LITRE SE KAM NAHI HOGI KE LIYE HI APARIHARYA PARISTHITI ME MATRA EK UP DUKAN HETU HOGI ARTHAT JYADA M. G. Q. WALI DUKAN KO UP DUKAN HETU PRATHAM VARIYATA RAHEGI. (3) UP DUKAN KE M. G. Q. USKI NIKAY VISHESH KI PRASTHITI KE ANUSAR HOGI. JO USKI MOOL DUKAN KE M. G. Q. KE ATIRIKT HOGA JO IS PRAKAR HOGI: KA-NAGAR Nlgam HETU 4000 B. L. KHA - NAGAR PALIKA KE LIYE 2500 B. L. GA - NAGAR PANCHAYAT KE LIYE 2000 B. L. GHA - GRAMIN KSHETRA KE LIYE 1500 B. L. (4) UP DUKAN KE NIKATSTHA KISI BI ANYA DUKAN SE USKI DOORI KE MADHYA KENDRA VINDU SE MUKHYA DUKAN (JISKI UP DUKAN HOGI) KI OR UP DUKAN KI PRASTHITI USKI PARIDHl KE ANDAR HOGI TAKI VIVAD UTPANN NA HONE PAYE. (5) UTTAR PRADESH AABKARI DUKANO KE SANKHYA EVAM STHITI NIYAMAWALI 1968 KE PRAVIDHAN BHI PRABHAWI HOGI. " The Excise Commissioner, U. P. , Allahabad had passed an order on 15-7-2004 permitting the respondent No. 6 who is the licensee of Baluaghat area to open a sub-shop at Katghar. The order dated 15- 7-2004 is under challenge in the present writ petition.

(3.) SRI S. P. Kesarwani, the learned Standing Counsel, submitted that the petitioner is a competitor and a trade rival and, therefore, has no locus standi to maintain this petition. He also raised the plea of alternative remedy and submitted that against the order dated 15-7-2004 passed by the Excise Commissioner, U. P. , Allahabad as the petitioner can approach the State Government under Section 11 of the Act, the Court should not execise its discretion and decline to exercise its jurisdiction under Article 226 of the Constitution of India. He further submitted that in the advertisement published on 27-2- 2004 in Dainik Jagran inviting applications for grant of licence for retail vend of country liquor for the year 2004-2005, it was specifically mentioned that the Excise Commissioner/the State Government can create new shops of country liquor at any time according to the requirement and, therefore, if the sub- shop has been created/opened at Katghar, the petitioner cannot have any grievance. He also submitted that the petitioner has applied for opening of a sub-shop at Katghar Chauraha/mutthiganj Sabzi Mandi and, therefore, he cannot be said to have any grievance if the respondent No. 6 has been permitted to open a sub-shop in Katghar locality apart from disputing the distance of the sub-shop and that of the petitioner's main shop as given by the petitioner. In any event, he submitted that the decision taken by the Secretary, Excise, in the meeting on 29-6-2004, cannot be enforced in a Court of law as it is not binding. In support of his aforesaid submissions, he has relied upon the following decisions: (i) Mahesh Narain Singh v. State of U. P. and others, Civil Misc. Writ Petition No. 261 of 2001, decided on 26-2-2003; (ii) Raju v. State of U. P. and others, Civil Misc. Writ Petition No. 491 of 2003, decided on 1-4-2003; reported at 2003 (2) JCLR 180 (All); and (iii) Anil Kumar Tyagi v. State of U. P. and others, Civil Misc. Writ Petition No. 1169 of 2003, decided on 17-10- 2003.