DOONGAJI & CO. Vs. STATE OF M.P.

JUDGEMENT

(1.) IN this writ petition under Art. 32 of the Constitution, the petitioner, a partnership firm seeks reliefs of mandamus to direct the State Government and the Commissioner of Excise of M.P. to allow the petitioner to set up a distillery pursuant to the Cabinet policy dated December 30, 1984 and to grant D -2 licence; to declare the letter dated February 8, 1982 as unconstitutional, illegal and of no effect in law and to direct the respondent Nos. 1 and 2 to grant a licence to manufacture potable Alcohol within the State of Madhya Pradesh and to grant D -1 licence to supply country made liquor, etc. This case has behind it chequered history which is necessary to adumbrate.

(2.) IN The State of M.P. v. Nandlal Jaiswal and Ors. this Court considered the legality of the policy, the subject matter in the writ petition. It was held therein that nine distilleries in the State of Madhya Pradesh including the one at Ujjain were set up on the lands and buildings belonging to the Government. The plants and machinery therein initially were of the Government, but in course of time the licensees installed or replaced the plants and machinery and became the owners. The petitioner and its predecessors had licence for the distillery at Ujjain for well over 40 years to manufacture rectified spirit. The last of the licences held by the petitioner was for the years April 1, 1976 to March 31, 1981. The period of licence was at that time for five years. The practice as per the provisions of the M.P. Excise Act 1915 for short 'the Act' and M.P. Distilleries, Breweries and Warehouses Rules for short 'the rules' issued in exercise of the powers under section 62 was to call for the tenders to manufacture and supply the rectified spirit or denatured spirit to the retail vendors within the area attached to the distillery. Rajdhani Distillers Corporation, for short 'RDC' became the successful tenderer for the licensing period starting from April 1, 1981 to March 31, 1986. The petitioner challenged in Misc. Petition No. 701/81 in the M.P. High Court under Art. 226. Initially stay was granted, but later it was vacated on August 20, 1981. Licence was granted for the period starting from August 25, 1981 to March 31, 1986 to RDC and the distillery, plant and machinery at Ujjain was handed over to RDC on August 27, 1981. Thereafter the petitioner filed another writ petition No. 169/82 on March 16, 1982 for redelivery of the plants and machinery and the warehouses and other consequential reliefs. That writ petition was dismissed by the High Court against which Civil Appeal No. 5483/83 was filed, which is just now disposed of. The petitioner had applied for grant of licence on February 19, 1982 and he reiterated his request in number of reminders including one on November 3, 1986. In the interregnum the Govt. changed the policy by a Cabinet Sub Committee policy decision dated December 30, 1984 under which they decided to grant licence to the existing licensees of the distilleries and that they should construct the factories at their expenses on the land allotted by the State Govt. or acquired and allotted by the State Govt. and that shift the business to new factories and the licence would be for a period of five years. Calling in question of that policy several writ petitions including the one by the petitioner were filed in the M.P. High Court. The Division Bench, partly allowed the writ petition and quashed part of the policy decision. Against it appeals and special leave petitions were filed by the State and the unsuccessful petitioners including the petitioner. It was disposed of by this Court reported in Jaiswal's case. During the hearing of the writ petition, the Attorney General of India conceded that if the petitioner makes any application for grant of licence it would be considered by the State Govt. and be disposed of quickly. That concession was noted and the argument was founded thereon to be held that the Govt. did not intend to create any monopoly in favour of the existing licensees. This Court upheld the policy of the Govt. and allowed the appeals and dismissed the special leave petitions of the petitioner and other. Pursuant thereto the petitioner made an application on December 25, 1987 followed by several reminders. Ultimately the State Govt. rejected the petition by letter dated February 8, 1988, which is impugned in this writ petition.

(3.) THE contention of Shri Nariman, the learned counsel for the petitioner, is that the State Govt. having made solemn undertaking before this Court and the arguments were heard in Nandlal Jaiswal's case on the basis that the application of the petitioner would be considered and disposed of, it was with an intention to grant licence to the petitioner, but rejection is contrary to the undertaking given to this Court. It was also contended that the petitioner have a long, clean and commendable history of 40 years in manufacturing country made liquor in the distillery and supply thereof within the area attached to Ujjain Distillery. The State Government's non grant of licence thereto is only a rouse to defeat the fundamental rights of the petitioner to establish and trade in the manufacture and distribution of the liquor in terms of the provisions of the Act and the rules and the instructions of the Govt. in that regard. Having given the licence to the other distilleries, the petitioner being similarly placed, non -grant thereto is arbitrary, discriminatory and violating Art. 14 of the Constitution. It was also further contended that the petitioner if for any reason cannot be granted D -2 licence at Ujjain, D -2 licence may be granted on Government distillery at Ratlam and supply area attached to it under D -1(S) so as to do complete justice to the petitioner. It was resisted by Shri Ganpule, learned senior counsel for the State contending that pursuant to the undertaking given to this Court, the application was considered and found not feasible to grant the licence to the petitioner due to grounds stated in the impugned order which are relevant and existent being in conformity with the change of the policy, and so this Court cannot interfere and may not issue the writ as prayed for.