ASHOK KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) Doubting correctness of the decision of a Division Bench of this Court in Prem Jeet Singh v. Excise Commissioner, 1983 UPTC 783, another Division Bench before which the instant petition came up for orders directed the petition to be laid before Hon'ble the Chief Justice for constituting a large Bench for deciding this case. The doubt was expressed on the basis of the decision of their Lordships of the Supreme Court in State of Orissa v. Harinarayan, AIR 1972 SC 1816. The doubt stands confirmed as the judgment of this Court in Prem Jeet Singh's case has been set aside in appeal by their Lordships whose judgment is reported in AIR 1983 SC 1056 : (1984) 1 SCC 270, Excise Commissioner v. Prem Jeet Singh. Since the entire petition has been referred to this Bench and the learned Counsel for the petitioner has raked certain points which require decision, a few facts, about which there is no dispute between the parties, may be stated.

(2.) The dispute in the petition pertains to sale by public auction of the exclusive privilege of selling country liquor and Bhang in the 29 specified shops in Pratapgarh district of Uttar Pradesh for the period from 1st April 1983 to 31st March, 1984. The auction was held on 17th March, 1983 for the year 1983-84. Some of the shops were clubbed together in groups while others were kept separate. The five petitioners along with others participated in the auction. Each petitioner gave his separate bid for an individual shop or group of shops (which) was the highest and was accepted by the Collector. Admittedly, this acceptance was provisional and was subject to confirmation by the Excise Commissioner, U.P. As required by the Rules each petitioner deposited 1/6th amount of his bid. Pending confirmation of the acceptance, the local Excise Authorities permitted the petitioners to lift the stock of country-liquor and Bhang and they started doing business from the shops for which they had offered their bids. The Excise Commissioner through his order dated 19th April, 1983, Annexure- 3, did not confirm the petitioner's bids and directed the Collector to re-auction the shops and as an interim measure to settle the shops on daily basis. He was of the opinion that the bids offered by the petitioners were inadequate. The petitioners were informed of the Excise Commissioner's order through notice dated 22nd April, 1983, issued by the District Excise Officer, Pratapgarh, Annexure- 2. In pursuance of the directions contained in the Excise Commissioner's order the District Excise Officer made settlement of the shops on daily basis and fixed 11th May, 1983 for holding the re-auction. The instant petition was filed in this Court on 10th May, 1983 along with an application for grant of interim relief. The petition was directed to be put up the next day i.e. 11th May, 1983.

(3.) On 11th May, 1983 when the petition came up before a Division Bench comprising U. G. Srivastava and K.N. Goyal, JJ. the learned counsel for the petitioners cited the decision of a Division Bench in Prem Jeet Singh's case (1983 UPTC 783) (supra) in support of his plea that even though the acceptance of petitioners' bids by the Collector was provisional, they were entitled to maintain the writ petition. The Division Bench, as observed earlier, doubted the correctness of the judgment as in its view it was not in conformity with the judgment of their Lordships in State of Orissa v. Harinarayan. The Division Bench accordingly, by its order of the same date, directed the papers to be laid before Hon'ble the Chief Justice for constituting a larger Bench to decide the entire case. This is how this case has come before this Bench. On the petitioners' application for interim relief the Division Bench passed the following order :