CHINGALAL YADAV Vs. STATE OF M P

JUDGEMENT

(1.) S. R. Alam,C. J. :-The Division Bench having found difficulty in agreeing with the view taken by another Division Bench of this Court in Madan Mohan Chaturvedi Vs. State of Madhya Pradesh(ILR 2008 MP 2778) has referred the following questibns for the opinion of the Larger Bench :- (l)Whether in the language of Rule 8(1)(a) of the M.P. -Foreign Liquor Rules, 1996 and Rule 9 of the M.P. Country Spirit Rules the Government has power to renew the licence or it has to invite applications for- each and every shop, every year? (2) Whether the judgment in the matter of Madan Mohan(supra) decides the law correctly when it reads"or in any such other manner as the State Government may direct from time to time " will qualify the powers of the Government in granting the licence or the above referred phrase has to be read in relation to disposing of the applications which cannot be disposed of by draw of lottery? (3) Whether 2010-2011 Liquor Policy which relates to renewal is a valid policy and whether such policy is likely to create monopoly in favour of all such persons who are ready and willing to give 20% extra on the existing basic licence fee and licence fee and such persons are providing 80% of the revenue? (4) Whether the policy is a valid policy when it says that the applications for grant of the licence shall not be invited but an application for renewal shall only be entertained while Rule 8(l)(a) provides that the licence in Form FL-1 shall be granted individually on fixed basic licence fee and licence fee, by inviting applications for each shop? (5) Whether the judgment in the matter of Madan Mohan Chaturvedi referred to above decides the question of vires of the policy and if no, whether this Court has jurisdiction to consider the constitutional validity/statutory validity of the policy?

(2.) In order to appreciate the questions referred and to resolve the controversy, it would be appropriate to state few necessary facts which briefly stated, are that the Excise Commissioner announced Excise Policy for grant of licence in respect of country/foreign liquor retail shops for the year 20.10-2011(hereinafter referred to as the 'New Policy').The New Policy was published in Madhya Pradesh Gazette dated 28.1.2010. It provides that the applications are to be invited at the first instance from the existing licensees for allotment of shops of country/foreign liquor by way of renewal provided they offer 20% extra licence fees on the reserved price of previous year,i.e., 2009-10. Clause 5 of the policy provides that reserved bid approved for 2010-2011 would be 20% over and above, the reserved bid approved for 2009-2010. Thus, if the existing licence holder applies for renewal of his licence stating that he is ready and willing to pay 20% extra, on the reserved bid approved for the 2009-2010, his licence shall be renewed. Clause 9 provides that renewal will take place only when the said renewal will generate more than 80% of the estimated revenue for the year 2010-2011 at the district level. Under the New Policy left over shops are to be allotted by way of tender.

(3.) Salient feature of new policy is that renewal of licence is dependent on fulfillment of twin conditions, namely, an existing licensee applies for renewal with the offer that he is ready and willing to pay 20% over and above on the reserved bid approved for previous year and the renewal shall take place only when the said renewal will generate more than 80% of the estimated revenue at the district level.