SIVANAND DAMAHE Vs. STATE OF M P

JUDGEMENT

(1.) THE petitioner by way of present writ petition filed under Article 226/227 of the Constitution of India, besides calling in question the legal validity of the orders dated 8-1-2007 (Annexure R-4-4) and the consequential orders passed thereof and as contained in Annexures R-4-5, R-4-6, R-4-7, R-4-8 and R-4-11 is seeking a mandamus that a liquor licence granted in favour of respondent No. 5 be cancelled and may not be extended for the years 2008 and 2009 for the Partala block of District Chhindwara. Further direction is also sought to the effect that the respondents be directed to allow the petitioner to take possession of the shops and commence the sale of liquor as per the contract.

(2.) THE facts briefly noted are that with the advent of new excise policy in the year 2005-06 small contractors got the opportunity to take part in the contract of country liquor and foreign liquor. The petitioner, in response to his participation in the bidding of liquor license was allotted the Partala Country liquor, Partala Foreign Liquor and Indian Liquor Shops in Chhindwara District for the excise year 2005-06. The said contract was renewed by depositing 20% extra over the previous years sale for the excise year 2006-07 and this was in accordance with the Clause 16 of the Liquor Policy 2005-06. Clause 20 of the excise Policy 2006-07 provides for that during the subsistence of the license, the licensee with prior permission can transfer his right under the license and on transfer such transferee shall be bound by all the conditions of the license. Invoking Clause 20, the petitioner on 16-12-2006 moved an application to respondent No. 3-Collector stating his desire to transfer the running of the shops to respondent No. 4 for the remaining period of contract 2006-07. The contract of retail sale was accordingly transferred in favour of the respondent no. 4. It is a matter of record that for subsequent year, i. e. , excise year 2007-08, respondent No. 4 was granted renewal by invocation of renewal clause and during the subsistence of license for the year 2007-08, respondent No. 4 transferred the same in favour of respondent No. 5 which was effected vide order dated 27-12-2007 and while so operating, the" respondent No. 5 got the license renewed for the excise year 2008-09 by invoking renewal clause and presently it is the respondent No. 5 who has in his favour the license to sell country/foreign liquor in Partala Block.

(3.) IT is in the backdrop of the aforesaid fact the learned Senior counsel for the petitioner states that the licensee for trade in liquor being a personal privilege, the transfer effected by the petitioner in favour of respondent No. 4 was a transfer of personal privilege and not the license and the endorsement of transfer in his favour thereof on the license of the petitioner did not clothe the respondent No. 4 as a licensee but only had the privilege to operate the retail sale of country and foreign liquors. It is accordingly urged that on the expiry of term of license the option of the renewal clause was available to the petitioner and not to respondent No. 4, a transferee of privilege. Thus, the action of the respondents in creating a privilege in favour of respondent No. 4 by allowing him to opt for the renewal of license in his favour was perse illegal and the renewal if any ought to have been in favour of the petitioner. The learned senior Court, therefore, states that the subsequent transfer in favour of respondent No. 5 and a license in his favour for the excise year 2008-09 is non est in the eyes of law. Substantiating his arguments the learned Senior Counsel relied upon Clauses I, VI and XI of General License Conditions (referred to as 'glc') framed by the State Government in exercise of its powers under Section 62 (2), (g), (h) and (j ). It is contended, inter alia, under Clause I, every license is granted personally by name and is thus a personal privilege and this aspect, as submitted, is evident from sub-clause (2) of Clause I of GLC, which stipulates that if any license holder dies before or during the currency of license such license would cease to be in force. Further more, while placing reliance on clause VI, learned Senior Counsel submits that a proper construction of the clause reveals that the only right which transferee enjoys is to enter into a partnership and that too with a prior written permission of a Collector. In the alternate it is urged that the Collector at the time of drawing a lot in favour of more selectee after selecting a license in accordance with Clause 7-5 of the liquor policy and in case the option is not exercised by the original licensee the right devolves upon such selectee but not in favour of the transferee of privilege. It is accordingly contended that the action of respondent in renewing the license in favour of the respondent No. 4 and thereafter granting the same in favour of respondent No. 5 is perse illegal and deserves to be quashed and the license be reverted back in favour of the petitioner.