BHANU JAISWAL Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri Tarun Verma, learned Counsel for the petitioners, learned Standing Counsel and Sri S.D. Dubey on behalf of the respondents/opposite parties.

(2.) Bhanu Jaiswal and Vimal Kumar Goeinka, the two petitioners have approached this Court by means of present writ petition under Article 226 of the Constitution of India claiming writ, order or direction in the nature of certiorari to quash the impugned notice dated 19.2.2006 issued by the Excise Officer, Varanasi, respondent no. 4 (copy filed as Annexure-8 to the writ petition) and also a similar writ commanding the respondents (mainly Executive Officer Cantonment Board, Varanasi) to issue a trade licence/no objection certificate to the petitioners under Section 210 of the Cantonment Act; 1924 (hereinafter called as the Act).

(3.) The aforesaid impugned order/notice dated 17719th February, 2006 (Annexure-8 to the writ petition) refers to a notice dated 31.1.2006 received by the Cantonment Board (Annexure-7 of the writ petition). Admittedly the petitioners have granted licence under the U.P. Excise Act by the Licensing Authority under the said Act for selling foreign liquor for opening foreign liquor model shop within the premises no. 52/82, Moint House, Nadesar Road, Varanasi Cantt. The said licence issued by the District Excise Officer was for the period 15.6.2004 to 31.3.2006 (copy of the licence dated 19.6.2004 is Annexure-1 to the writ petition). In the said licence there is no indication that the premises/shop in question was in the cantonment area of Varanasi. Copy of the application etc. on the basis of which said licence under the U.P. Excise Act was issued is not on record and there is nothing to show that the petitioners intended to sell foreign liquor within Varanasi Cantonment Limits. There is every likely possibility that a the District Excise Officer was not aware while issuing Licence under U.P. Excise Act that the shop was within Cantonment Limits and hence said authority took no steps to obtain consent under Cantonment Act, before issuing licence for the aforesaid premises as required under Rule 325 of the U.P. Excise Rules which reads :325. Determination of the distribution and location of shops- Subject to the control of the State Government and of the Excise Commissioner and to the limitations expressed in these rules, the distribution and general location of retail shops shall be determined by the Collector provided that In military cantonments the Collector shall exercise this power only with the consent of the Officer Commanding the station.