IMPORTANT POINTS
1. Where the State has the exclusive privilege and the citizen has no fundamental right to carry on business in liquor, the policy which would be applicable is the one which is prevalent on the date of grant and not the one, on which the application had been filed.
2. Article 14 of the Constitution of India carries with it a positive concept. Equality cannot be claimed in illegalities.

Headnote:Central Excise Act, 1944 — Constitution of India — Articles 14 and 47 — Grant of L-52 licences — Cancellation of excise policy permitting sale of Indian Made Foreign Liquor through private parties — Doctrine of “legitimate expectation” not applicable — Government of National Capital Territory of Delhi formulated an excise policy in 2002 permitting sale of IMFL through private parties upon issuance of L-52 licences — From 1979 to 2003, IMFL and Country Liquor were being sold exclusively through public sector undertakings — Pursuant to or in furtherance of the said purported policy, an advertisement was issued inviting applications for grant of L-52 licences for retail sale of IMFL for the licencing year 2004-05 — Appellants filed their respective applications for grant of licences — In view of the fact that large number of applications were filed, State issued a public notice on about 7-2-2005 notifying closure of the scheme — It was clarified that pending applications would be considered and that no new application would be accepted — On or about 9-3-2005, a decision was taken that no fresh licence would be issued by the Department — However, applications were processed on the purported ground that in the event, the State was to direct approval, the licences could be issued — Some licences had been granted even after March, 2005 — Whether a writ of mandamus could be granted for issuance of licence in favour of appellants — (No) — Article 14 of the Constitution carries with it a positive concept — In any event the period for which licences could be directed to be issued to the appellants has since expired.
       Held : In view of clear stipulation made in the advertisement therefor, the Appellants could not have had any legitimate expectation that they would invariably be granted a licence to deal in liquor. A date for grant of licence, however, was put in the case of Surinder Katiyal. The said date has been given evidently having regard to the time frame made in the advertisement. It must have been done under a misconception. Such a clear mistake on the part of the authorities would not clothe them with any legal right. His application was received on 10.12.2004 while acknowledging receipt of the said application, it was stated that the licence will be issued on 10.1.2005. The same, however, would not mean that the contents of his application were not required to be verified in the light of the statutory requirements. Furthermore, he withdrew his application so as to enable him to apply for another vend. He filed such an application only on 8.2.2005 which was acknowledged, as noticed hereinbefore, by the State in terms of its letter dated 6.5.2005. The said letter dated 6.5.2005 did not contain any promise that the licence would be granted by a particular date. Even otherwise, it was impermissible for the Respondents to specify a date on which the licence shall be granted keeping in view the fact that it was required to process a large number of applications. It is, thus, not a case where the doctrine of legitimate expectation would be attracted. The State issued a public notice on 7.2.2005. Even prior thereto, the State notified that only those applications which had been received by the Department would be considered and no more. The Appellant, Surinder Katiyal evidently filed his application on 8.2.2005. Still his application had been processed. Some correspondences had been entered into in relation thereto. It is not in dispute that the State received a large number of applications. It was required to process all the applications. While processing such applications, inspections of the proposed sites were to be carried out and the contents thereof were required to be verified. For the said purpose, the applications were required to be strictly scrutinized. [See Ashok Lenka (supra)] Unless, therefore, an accrued or vested right had been derived by the Appellants, the policy decision could have been changed. (Paras 27 to 30)
       In a case of this nature where the State has the exclusive privilege and the citizen has no fundamental right to carry on business in liquor, in our opinion, the policy which would be applicable is the one which is prevalent on the date of grant and not the one, on which the application had been filed. If a policy decision had been taken on 16.9.2005 not to grant L-52 licence, no licence could have been granted after the said date. In any event the period for which licences could be directed to the appellants has since expired. This Court, thus, cannot direct grant of licence for the next year only because some licences had been granted after 9th March, 2005. Article 14 of the Constitution of India carries with it a positive concept. Equality cannot be claimed in illegalities.(Paras 36 and 37)
       It is true that some licences had been granted, but the same cannot by itself be a ground to issue a writ of mandamus, particularly in view of the fact that the appellants have no legal right in respect thereof.(Para 38)

JUDGMENT

S.B. Sinha, J. — Leave granted.

2. The Government of National Capital Territory of Delhi formulated an excise policy in 2002 permitting sale of Indian Made Foreign Liquor (IMFL) through private parties upon issuance of L-52 licences.

3. Upto the year 1979, prohibition was in force in the State. From 1979 to 2003, IMFL and Country Liquor were being sold exclusively through public sector undertakings. Pursuant to or in furtherance of the said purported policy, however, an advertisement was issued inviting applications for grant of L-52 licences for retail sale of IMFL for the licencing year 2004-05 in commercial areas subject to the following conditions:

(i)No fresh L-52 licence in the private sector would be granted if the location of the proposed vend was within 250 meters of an existing retail vend.

(ii)The applicant should be in actual physical possession of a shop admeasuring 500 sq. ft. in an approved and recognized commercial complex.

(iii)Proposed vend should not be within 75 meters of : (a) major educational institutions; (b) religious places; and (c) hospitals with 50 beds and above.

(iv)The grant of L-52 licence shall be subject to the acceptance of the application by the competent authority who may accept or reject any application without assigning any reasons. Further, the licensing authority was under no obligation to grant any licence for which application had been made.

(v)The licence was to be subject to the general conditions in Rule 33 and special conditions in Rule 34 of the Delhi Liquor License Rules, 1976.

4. Relevant clauses of the L-52 licence may also be noticed. Clause 12 provides for actual physical possession of covered shop admeasuring 500 sq. ft. in an approved commercial complex/area recognized by the local bodies such as DDA, MCD, NDMC, etc. No licence was to be issued for a liquor vend within 75 meters of: (a) major educational institutions (b) religious places (c) hospitals with fifty beds and above. Major educational institutions were defined to mean "middle and higher secondary schools, colleges and other institution of higher learning recognized by the Government of NCT of Delhi or Government of India". No licence was to be issued where the proposed premises was located within 250 meters from an existing L-2/L-52 vend of foreign liquor. The licences were to be granted upon consideration of the applications on case to case basis. Such applications were subject to acceptance by the competent authority who may accept or reject any application without assigning any reason and that the licensing authority would be under no obligation to grant any licence for which an application has been made. A time schedule, however, was fixed therefor to the effect that the licence was to be granted within 30 days from the grant of approval therefor.

5. Pursuant to or in furtherance of the said advertisement, the Appellants herein filed their respective applications for grant of licences. In view of the fact that large number of applications were filed, the State issued a public notice on or about 7.2.2005 notifying closure of the scheme. It was, however, clarified that pending applications would be considered as per the rules and terms and conditions of the Scheme and no new application would be accepted.

6. Whereas in the case of Kuldeep Singh, his application was rejected, in the case of Surinder Katiyal, the Appellant withdrew his application so as to enable him to file another application at a different site.

7. Kuldeep Singh preferred an appeal against the order rejecting his application before the Excise Commissioner. It was allowed by an order dated 11.5.2005 and the matter was remitted to the Collector, Excise with a direction to conduct a fresh inspection to ascertain the facts on a finding that the earlier inspection had not been carried out properly. Pursuant thereto a fresh inspection of the premises was carried out in May, 2005.

8. The Appellants herein filed writ petitions before the High Cour

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2006 Supreme(SC) 583

Cases Referred (9)