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2004 Supreme(All) 1845
HIGH COURT OF ALLAHABAD
R.K.Agrawal, Prakash Krishna
RAM KRIPAL
Versus
STATE OF U P
Decided On : 05 October 2004
C. M. W. P. No. 1156 of 2004
NAVIN SRIVASTAV, POOJA AGRAWAL, S.K.Shukla, S.P.KESARWANI, Shashi Nandan, SUNIL SINGH,
The State has the right to regulate or prohibit the sale of liquor, and when permitting trade, it must ensure fair competition and non-discrimination, adhering to the rules and guidelines.
Headnote:
Excise Rules - Retail Sale of Country Liquor - U. P. Number and Location of Excise Shop Rules, 1968, U. P. Excise (Settlement of Licences for Retail Sale of Country Liquor) Rules, 2002 - Rule 1-A (b), Rule 2 - Policy decision for establishment of sub-shops - Order dated 15-7-2004 quashed
Fact of the Case:
The petitioner sought to quash the order permitting the establishment of a sub-shop for retail sale of country liquor at a specific location, claiming exclusive rights to sell liquor in the area. The petitioner's application for a sub-shop had been pending, and the order granting permission to another licensee was challenged.
Finding of the Court:
The Court found that the Excise Commissioner's order permitting the sub-shop was arbitrary and did not adhere to the guidelines and policy decision formulated for granting such permissions. The Court set aside the order and directed the Excise Commissioner to consider both applications in accordance with the law and the observations made.
Issues: The issues involved the arbitrary grant of permission for a sub-shop and the failure to consider the petitioner's application in accordance with the guidelines and policy decision.
Ratio Decidendi: The State has the right to regulate or prohibit the sale of liquor, and a citizen has no fundamental right to carry on trade in liquor. However, when permitted, the citizen is entitled to equal rights, and the State must adhere to the rules and guidelines for fair competition and non-discrimination.
Final Decision: The Court quashed the order permitting the sub-shop and directed the Excise Commissioner to consider both applications in accordance with the law and the observations made. Each party was left to bear its own costs.
By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, Ran Kripal, seeks the following reliefs:
" (A) An order, direction or writ in the nature of certiorari quashing the order dated 15-7-2004 (Annexure 12 to the writ petition) passed by Excise Commissioner, U. P. Allahabad.
(B) An order, direction or writ in the nature of Mandamus restraining the respondents from establishing or opening a sub-shop for the retail sale of country liquor at Katghar in pursuance to the impugned order dated 15-7-2004 and to direct the Excise Commissioner U. P. to consider the application of the petitioner for establishment of a sub-shop at the aforesaid place in accordance with the provisions of U. P. Number and Location of Excise Shop Rules, 1968 and U. P. Excise (Settlement of Licenses for Retail Sale of Country Liquor) Rules, 2002.
(C) Such other and further order, direction or writ of suitable nature which this Honble Court may deem fit and proper in the circumstances of the case.
(D) An order awarding cost of this petition to the petitioner.
2. Briefly stated, the facts giving rise to the present writ petition are as follows:
According to the petitioner, he was granted a licence on 19-3- 2002 for retail sale of country liquor in Mutthiganj locality in the city of Allahabad for the excise year 2002-2003 which is the financial year also, in accordance with the provisions of me U. P. Excise (Settlement of Licences for Retail Sale of Country Liquor) Rules, 2002 (hereinafter referred to as "the 2002 Rules" ). The petitioner had paid the basic licence fee of Rs. 6,90,000/- During that year the minimum quantity fixed was 69,000 bulk litres of country liquor and the total licence fee payable was Rs. 56,58,000/ -. The licence was renewed for the excise year 2003-2004 and it has been renewed for the current excise year 2004-2005. However, the minimum quantity of the country liquor has been enhanced to 77,280 bulk litres. It is alleged by the petitioner that as per the terms and conditions of the licence and the policy of the State Government, he had the exclusive right to sell the country liquor within the entire locality of Mutthiganj and no other licensee could operate in the aforesaid area. The State Government has framed the rules for fixation of
number and location of the excise shops, known as the U. P. Number and Location of Excise Shop Rules, 1968 (hereinafter referred to as "the 1968 Rules" ). Rule 1-A (b) defines "sub-shop" to mean a retail shop for vend of country liquor to be opened by a grantee of exclusive privilege for retail sale of country liquor under Section 24 of the U. P. Excise Act, 1910 (hereinafter referred to as "the Act"), within the area and during the currency of the excise year of his contract. Under Rule 2 of the 1968 Rules, the Collector has been empowered to determine the distribution and location of shops and sub-shops. His powers have been made subject to the control of the State Government and the Excise Commissioner and to the limitations provided in the Rules.
On 1-11-2002 the State Government had issued a Government Order providing for opening of sub-shop within a licensed area with a condition that the business of any other existing shop and the revenue payable to the State Government should not be adversely affected, which decision was circulated to all the concerned authorities by the Excise Commissioner, U. P. , Allahabad vide letter dated 10-1-2003. The petitioner had made an application on 20-1-2003 before the District Excise Officer, Allahabad seeking permission to open a sub-shop at Katghar Chauraha in Mutthiganj locality, i. e. , within the area of his operation. Further, on coming to know that the excise licensees for retail vend of country liquor of the Baluaghat, Gaughat, Kydganj and Bai ka Bagh localities have made application for opening of sub-shop under their area of operation, the petitioner submitted his objection dated 10-1-2003
