JUDGMENT

Gopalji Mehrotra, J. - The Petitioner is a medical practitioner and holds a licence for foreign liquor. The terms of the opium licence granted to the opposite party No. 2 Gaya Prasad was to expire on 31-3-1957. He was also a licensee of Ganja shop at Orai. The term of this licence was to expire on the same day. Applications were invited by the District Magistrate, Jalaun for the shops for the year 1957-58 sometimes in March 1957 and the Petitioner also applied for a few shops and the opposite party No. 2 was also an applicant for some of the shops. The applications were put up before the District Excise Advisory Committee along with the applications of certain other applicants and the Committee recommended to the Collector the names of the Petitioner, opposite party No. 2 and one other person. The Collector selected the Petitioner out of these names and granted licence to them by his order dated 6-4-1957. An appeal was then filed by the opposite party No. 2 before the Excise Commisioner, U. P. The main ground urged in appeal before the Excise Commissioner was that the Collector did not consult the Orai Municipal Excise Advisory Committee and has granted licence to the Petitioner mainly on the advice, of the Jalaun District Excise Advisory Committee. The appeal was heard without any notice to the Petitioner and was allowed by the Excise Commissioner. The order of the Collector granting licence to the Petitioner was set aside on 25-5-1957 and the matter was sent back to the Collector for disposal after complying with the provisions of the rules framed under the Excise Act. The municipal elections in the town of Orai were held on 26-10-53 and no Municipnl Excise Advisory Committee for the town of Orai was ever formed and consequently the Collector could only consult the District Excise Advisory Committee. The present petition has been filed challenging the order of the Excise Commissioner.

2. It has been contended by Mr. Dwivedi for the Petitioner that the Municipal Advisory Committee had to convene its meeting before the 31st of October and if the Advisory Committee failed to convene its meeting by the 31st of October the Collector had a right to grant licence even without consulting the Advisory Committee. In the present case the Collector therefore if he considered a wrong Advisory Committee can be taken to have exercised his own power to grant licence and the order could not be set aside by the Excise Commissioner in appeal. It is not denied that the grant of a licence within the municipal limit can only be done by the advice of the Municipal Excise Advisory Committee and the Collector was not right in acting upon the recommendation made by the District Advisory Committee. Para 384 (l)of the Excise Manual lays down the duties of an Excise Advisory Committee. Clause (1) of para 384 is as follows:

384. The duties of an Excise Advisory Committee are:

(1) to meet once in the excise year, not later than October 31, or in the case of the settlement of tari shop under the tree-tax system, not later than July 31 each year to consider (1) the number and location of excise shops in the municipality or district, and (ii) any representation made in connection with excise by the inhabitants of the municipality or district, to record resolutions thereon and to communicate them to the Collector not later than November 30;

3. Then Clause (3) of Para 384 is as follows:

384. The duties of an Excise Advisory Committee are:

(3) to meet when convened by the Collector for the purpose of giving him advice (i) regarding the selection of licensees for shops under the surcharge system falling vacant during the course of the year, (ii) on any matters connected with excise, and (iii) regarding arrangements to be made by him for carrying on the business of a shop which has been subjected to picketing for political purposes or for changing the sites of shops, or for temporary creation of new shops to take place of, or to be started in addition to, exist