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2011 Supreme(All) 356
[2011(2) ADJ 854]
ALLAHABAD HIGH COURT
BEFORE : F.I. REBELLO, C.J.
RAKESH SINGH …..Petitioner
Versus
STATE OF U.P. AND OTHERS ….Respondents
(Civil Misc. Writ Petition No. 1043 of 2010, decided on 7th February, 2011)
Counsel :
Mukesh Prasad for the Petitioner; S.P. Kesharwani, Neeraj Sharma, C.S.C. for the Respondents.
Headnote:U.P. Number and Location of Excise Shop Rules, 1968—Rule 5(2), 2-A, 3, 4 and 6—U.P. Excise Act, 1910—Sections 24-A, 24-B and 41—U.P. Excise (Settlement of Licences for Model shop of Foreign Liquors) Rules, 2003—Rule 3(c), 4, 5 and 9—Model Liquor Shop—Situated—Whether a model shop can be re-located/created during an excise year in an area where another liquor shop is already in existence—Under Rules of 1968, for cogent reasons to be recorded in writing a shop can be shifted from one site to another site—Considering that object of State in parting with its exclusive priviledge in dealing with liquor, which is a trade, res extra commercium, is to raise revenue, it will not be possible to hold, considering Excise Act and Rules, that there is an embargo on State parting with its privilege to grant different licences in same area, where a shop is already in existence, even though I.M.F.L.retail shop and a model shop, to an extent, may cover same product, namely, Indian Made Foreign Liquor—Therefore, there is no bar in transferring, or setting up of a new shop in a locality where there is an existing I.M.F.L. shop. [Paras 3, 24 to 27]
Hon’ble F.I. Rebello, C.J.—There was a difference of opinion between the two learned Judges and, hence, the reference.
2. The learned Judges have not framed the question which is required to be answered.
Yatindra Singh, J. was of the opinion that :
The site of a model shop can be relocated during an excise year;
Model shops upto 15 percent can be created during an excise year;
The petitioner cannot object to the creation of new model shops (within the permissible limits) as he got his licence renewed with this knowledge;
Model shop can be advertised in middle of the excise year in an area where a shop is in existence;
and, therefore, came to the following conclusion :
“54. My conclusions are as follows:
(a) Subject to Rule 2-A and Rule 5 of the U.P. Number and Location of Excise Shop Rules, 1968, the Collector has got the power to relocate a liquor shop for cogent reasons;
(b) A liquor shop can be created during an excise year in terms of policy and advertisement;
(c) A model shop can be advertised in the middle of an excise year;
(d) In the present case the model shop has been re-located and settled considering the interest of the revenue. There is no malice or fraud in exercising this power.”
Rajes Kumar, J., on the other hand, after considering the relevant excise policy and the Rules, was of the opinion that the excise authorities have no power to transfer the model shop from one area to another area or to create a new model shop during the excise year. His conclusions are as under :
“89. In view of the above, I am of the view that:
(i) Under the excise policy for the year 2010-11 and rules framed thereunder the excise authorities have no power to transfer the Model Shop of one area to another area or to create a new Model Shop during the excise year;
(ii) Under the relevant excise rules the creation of new Model Shop/transfer of Model Shop from one area to Shamshabad, Agra is against the excise policy of the State Government for the excise year 2010-2011;
(iii) Under the relevant excise rule the newly created Model Shop/transferred Model Shop cannot be advertised during the excise year.”
3. In view of the aforesaid, the question which requires to be answered can be framed as under :
“Whether a model shop can be relocated/created during an excise year in an area where another liquor shop is already in existence?”
4. The State Government notified an excise policy on 26.2.2010. This policy covered all kinds of shops including retail shop for sale of Indian Made Foreign Liquor (in short ‘IMFL’), model shops and other shops. Clause 7 (4) of the excise policy, the English translation of which is found in the judgment of Yatindra Singh, J., reads as under :
“Creation of Model Shop for the year 2010-11:
15% of model shop can be created by Excise Commissioner. In case there is necessity to grant model shops more than 15% then it can be done with the approval of the State Government.
5. Pursuant to that policy, an advertisement for renewal as well as grant of liquor shops was issued, which is on record. The petitioner had applied for renewal of his licence based on the said advertisement. Clause 1 of the advertisement for the excise year 2010-2011 reads as under :
Country made liquor, foreign liquor and model shops can be increased by 15%; and
Beer shops can be increased by 25%.
6. A few facts may now be narrated. The petitioner had been granted a licence to run IMFL shop for the excise year 2009-2010 at Shamshabad, Agra. In that excise year, there was no model shop in that area. The State Government came out with an excise policy for renewal and settlement of different categories of liquor shops on 26.2.2010 and an advertisement was also published in the newspapers on 28.2.2010 about the same. The Excise Commissioner also circulated the policy by letter dated 3.3.2010. The petitioner applied for renewal of his IMFL shop licence in the same area as per the terms of the policy. At the relevant time, no model shop had been se
