Hon’ble Yatindra Singh J.—The main question involved in this writ petition is :

‘Whether a model shop can be relocated/ created during an excise year in an area where there is another liquor shop in existence.’

THE FACTS

2. The petitioner was granted a licence of Indian made foreign liquor (IMFL) shop for the excise year 2009-10 at Shamshabad, Agra. He was an existing licensee for the excise year 2010-11.

3. The State Government came out with the excise policy for renewal and settlement of different categories of liquor shops on 26.2.2010. An advertisement was also published in the news papers on 28.2.2010 informing about the same. Later, it was also circulated by the Excise Commissioner by his letter dated 3.3.2010.

4. The petitioner applied for renewal of his IMFL shop licence. It was renewed for the same area on the terms of the policy.

5. In the excise year 2009-10, 19 model shops were also sanctioned in District Agra. Out of these 19 shops, 16 were settled but 3 shops at Diwani Chauraha, super market Sanjay Place, and Maruti Estate Chauraha remained unsettled.

6. In the excise year 2010-11, out of these 19 shops, 4 shops (including the 3 unsettled shops for the excise year 2009-10) remained unsettled. There were other shops in the State that could not be settled. The State Government granted approval on 14.5.2010 for settling all unsettled shops in the State on the terms and conditions mentioned therein. It included settling the shops at reduced licence fee. The Excise Commissioner also sent a letter on 19.5.2010 granting approval on the same terms.

7. It appears that out of four model shops in district Agra, one shop was settled but three shops—namely, the unsettled shops of excise year 2009-10—could not be settled despite being advertised on 7.4.2010, 28.4.2010, 12.5.2010, 26.5.2010 and 4.6.2010, even on the reduced licence fee of 75% of the previous year.

8. Considering the interest of revenue, the collector sent a letter on 17.7.2010 to the Excise Commissioner requesting him to grant approval to transfer of location of the three unsettled shops to Jeewan Mandi, Shamshabad, and Sadar Bazar Chauraha. In anticipation of the approval, he also published an advertisement for settlement of these model shop on 19.7.2010. The approval to transfer the location was granted by the Excise Commissioner on 21.7.2010.

9. Sri Ravi Sharma (Respondent-4) applied for model shop at Shamshabad, Agra (the disputed model shop). It was settled in his favour on 23.7.2010. He deposited the requisite amount.

10. By the time, the disputed model shop was settled in favour of Respondent-4, at Shamshabad, the IMFL licence of the petitioner at Shamshabad was renewed for the excise year 2010-11. The petitioner, anticipating the loss of income, filed the present writ petition challenging the transfer of location of the disputed model shop to Shamshabad, Agra as well as settlement of the same in favour of respondent-4.

POINTS FOR DETERMINATION

11. We have heard Sri Ashok Mehta, Sri KK Arora holding brief of Sri Mukesh Prasad, counsel for the petitioner; Sri SP Kesarwani counsel for respondents-1 to 3 and Sri Niraj Sharma counsel for respondent-4.1 The following points arise for determination in the case:

(i) Whether there is any right to trade in liquor?

(ii) Whether a model shop can be relocated;

(iii) Whether a new model shop can be created during an excise year;

(iv) Whether creation of a model shop be objected by an existing licence;

(v) Whether a model shop can be advertised and settled during an excise year;

(vi) Whether there is any malice in fact or fraud in relocating/ creating the disputed model shop at Shamshabad, Agra.

1st POINT: LIQUOR TRADERS HAVE ONLY STATUORY RIGHTS

12. The constitution guarantees rights regarding commerce at two places:

Firstly, Article 19(1)(g), apart from other rights, guarantees the right to carry on any occupation, trade or business;

Secondly, Part-XIII of the Constitution. It is titled as ‘Trade, commerce a