2009 Supreme(All) 2825

[2009(7) ADJ 628 (DB)]
ALLAHABAD HIGH COURT
BEFORE : AMITAVA LALA AND RAJES KUMAR, JJ.
RAJESH GUPTA ........Petitioner
Versus
STATE OF U.P. AND OTHERS ........Respondents
(Civil Misc. Writ Petition (Tax) Nos. 815, 487, 464, 465, 466, 467, 483, 488, 489, 492, 497, 500, 501, 502, 503, 504, 507, 508, 509, 514, 515, 516, 525, 526, 532, 533, 535, 536, 537, 538, 539, 540, 541, 572, 573, 575, 576, 577, 578, 579, 580, 581, 585, 586, 587, 589, 590, 591, 592, 593, 594, 596, 597, 598, 603 , 604, 606, 607, 608, 609, 610, 611, 613, 614, 617, 622, 628, 629, 630, 634, 635, 637, 638, 639, 640, 641, 642, 643, 644, 648, 652, 653, 654, 655, 656, 657, 658, 659, 660, 671, 672, 673, 676, 681, 682, 686, 687, 688, 691, 692, 705, 715, 717, 718, 720, 721, 722, 723, 727, 738, 739, 740, 742, 744, 745, 746, 747, 750, 751, 752, 753, 754, 755, 757, 760, 764, 767, 771, 772, 773, 775, 802, 821, 827, 828, 829, 830, 837, 838, 841, 848, 861, 866, 911, 915, 916, 917, 918, 919, 920, 961, 967, 968, 971, 974, 975, 973, 983, 984, 985, 994, 995, 1003, 1004, 1006, 1008, 1009, 1011, 1014, 1015, 1021, 1022, 1024, 1031, 1032, 1033, 1034, 1035, 1046, 1047, 1048, 1049, 1051, 1061, 1066, 1070, 1072, 1075, 1076, 1077, 1080, 1083, 1084, 1088, 1091, 1092, 1093, 1094, 1095, 1096, 1097, 1098, 1099, 1100, 1101, 1103, 1104, 1105, 1107, 1108, 1109, 1110, 1111, 1112, 1113, 1114, 1116, 1117, 1121, 1122, 1123, 1124, 1130, 1135, 1138, 1142, 1146, 1147, 1170, 1175 , 1183 and 1188 of 2009, decided on 7th August, 2009)

Headnote:(A) U.P. Excise (Settlement of Licences for Retail Sale of Country Liquor) (Fourth Amendment) Rules, 2009—Rule 5—Constitution of India—Articles 14, 19(1)(g) and 226—U.P. Excise Act, 1910—Section 36-A—Renewal of licence for retail liquor shops—Claim for—Grant of relief for renewal is dependent on facts and circumstances of each case and is discretion of State Government—Cannot be granted "in rem"—Extension or renewal of period of licence—Cannot be claimed as a matter of right—Several other aspects related therewith—Thoroughly examined by Court—State Government can make policy in this regard—To run liquor shop—Cannot be treated to be "business" within the meaning of Article 19(1)(a)—As such, question of discrimination—Has no role to play—Doctrine of "res extra commercium"—Applies to allotment of liquor shops by State Government—Word "may" used in Rule 5—Cannot be construed as "must" or "shall"—Petitioners, having licence for retail liquor shop—Cannot claim renewal of their licence as a matter of right or on any other legal right or even of equitable grounds under Article 226—High Court cannot give direction for renewal—Grant of such direction would amount to substituting itself in place of authority competent for grant of such relief—Section 36-A also forbids renewal—Legal aspects related therewith—Discussed and elaborated. [Paras 28 to 31, 49, 64, 75 and 94]

       (B) U.P. Excise (Settlement of Licences for Model Shop of Foreign Liquor) Rules, 2003—Rules 3 to 6—Allotment—Model Shops for sale of Foreign Liquor—Rules 3 to 6 are applicable to such allotment—Model shop cannot be equated with Bar—It is a retail shop unlike a Bar with facility of consumption of liquor in that shop—Its allotment through lottery—Not illegal or non-transparent. [Para 40]

       (C) U.P. Demarcation and Regulation of Special Zones for Exclusive Privilege of Excise Shops Rules, 2009—Rules 2(c) and 5—U.P. Excise Act, 1910—Sections 26, 27 and 30—Constitution of India—Articles 226, 19(1)(g) and 14—Decision of State Government to have joint venture partnership with apex Co-operative Society—Is a policy matter—It can make its business partner, without parting with control and management—It is its priviledge—As such, Article 19(1)(g) or 14 cannot be attracted—Creation of such joint venture is permissible by virtue of Rule 2(c)—State Government is guardian of finances of State and is expected to protect financial interest—As such, its action of creation of joint venture partnership with apex Co-operative Society—Is not open to challenge by persons applying for licence of liquor shops—Several other relevant aspects and features related with this topic—Examined and clarified—It does not create monopoly—Policy matter—Scope of interference—Focussed. [Paras 40, 41, 45 to 48, 51, 54, 55, 57, 68, 63, 74, 75 and 82]

       (D) Constitution of India—Article 14—Ambit of—It forbids class legislation and not reasonable classification—Its object—Clarified. [Paras 53 and 56]

       (E) Allotment—Liquor shop—Tender for—Conditions in—Charge of—Permissible, as fixation of value is entirely within purview of executive—Court has no role to play, unless fixation of value is found to be arbitrary or unreasonable. [Para 59]

       (F) Doctrine of colourable legislation—Applicability—Motive which impels enactment of law is to be examined—Grant of licence for liquor shop for a special zone—Unless shown to be mala fide exercise of power—Doctrine not applicable—In the instant case legislation concerned was not enacted with any mala fide intention—Thus, cannot be said to be 'colourable'—State Government was competent to legislate. [Paras 60 and 63]

       (G) Legislation—Substitution of new legislation—But, subsequently, if substituted legislation is found invalid and struck down—Effect—Considered and found it old law will not revive. [Para 66]

       (H) Legislative function—Legislation of Liquor shops and its business—Question of competency, discrimination public policy and several other related factors—Considered and found that State Government has competence to legislate and make its policy in that regard. [Paras 69 to 73, 75 and 82]

       (I) Allotment—Liquor shop—Activities of State Government—How to be examined—Law and other relevant features—Enumerated. [Paras 87 and 93]

       (J) Legislation—Purpose of—Court cannot prop into reasons of its reasonableness if it deals with policy matters of State. [Paras 96 and 97]

       (K) Allotment—Liquor shops—Policy relating to it, framed by State Government and sharing with apex co-operative body in that matter—Court cannot enter into such matters and no body else has locus standi to challenge it. [Paras 98 and 99]

       (L) Constitution of India—Article 19(1)(g)—Applicability—Scope of—Does not apply to matters of exclusive privilege of State—Such privilege cannot be attacked even on ground of monopoly. [Para 106]