VISION CLUB A DIVISION OF A M CONSTRUCTIONS v. COMMISSIONER OF EXCISE U P ALLAHABAD
2004-09-22
K.N.OJHA, R.K.AGRAWAL
body2004
DigiLaw.ai
R. K. AGRAWAL, J. By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner prays for the following relief: " (i) to issue a suitable writ, order or direction in the nature of certiorari and quash the order dated 20- 12-2001 passed by respondent No. 2 (Annexure 11 ). (ii) to issue a suitable writ, order or direction in the nature of mandamus commanding the respondent No. 2 to immediately issue a permit on Form FL - 7c in favour of the petitioner or in the alternative. (iii) to issue a suitable writ, order or direction and declare the provisions of Rule 2 of the U. P. Permit of Possession of Foreign Liquor by Club Rules, 1980 as ultra vires or may be read down to mean and include that a permit on FL - 7c may be issued to a club if the company of which it is a division registered under the Indian Companies Act. (iv) to award the costs of the petition to the petitioner. (v) to issue a suitable writ, order or direction as this Honble Court may be pleased to, in the facts and circumstances of the case. " 2. Briefly stated, the facts giving rise to the present writ petition are as follows: According to the petitioner, A. M. Constructions Private Limited (hereinafter referred to as "the Company"), is a private limited company incorporated on 7th September, 1994 under the provisions of the Companies Act, 1956. It has its Registered Office at 10/510, Khalasi Lines, Kanpur. In the Memorandum of Association, objects to be pursued by the Company have been specified. It is divided under the heading Main Objects, Objects incidental or ancillary to the attainment of Main Objects and Other Objects. Under "other Objects", Clause 56 provides for running of clubs amongst other things.
It has its Registered Office at 10/510, Khalasi Lines, Kanpur. In the Memorandum of Association, objects to be pursued by the Company have been specified. It is divided under the heading Main Objects, Objects incidental or ancillary to the attainment of Main Objects and Other Objects. Under "other Objects", Clause 56 provides for running of clubs amongst other things. Clause 56 of Other Objects is reproduced below : " (56) To carry on in India or elsewhere the business of hotels, restaurants, cafeteria, tavern, beer house, refreshment room and lodging house keepers, licensed victuallers, wine, beer & spirit merchants, importers, exporters of aerated, mineral & artificial water, alcoholic liquor & other drinks, purveyors, caterers for public generally, carriage, text motor car & motor lorry properties, dairymen, ice merchants, importers, exporters and brokers of food, live and dead stock and foreign produce of all description, hair dressers, perfumers, chemists, properties of restaurants, clubs, bath, dressing rooms, laundries, reading/writing & newspaper rooms, libraries, grounds and places of amusement and recreation, sports, entertainment and instruction of all kinds, agents for railways, shipping Companies and carriers, opera box proprietors and general agents, travel agents, poultry farmers, fruit farmers, ice cream manufacturer, milk sellers, tobacconists, butcher, baker, confectioners, butter sellers and to establish and provide all kinds of convenience and attractions for customers and in particular reading, writing, smoke rooms, lockers, safe deposits, clubs, stores and shop, conference halls, swimming pools, tourist car and coaches. " 3. According to the petitioner, the Company had passed a resolution in the Extra-ordinary General Meeting held on 20th September, 2000 to start a business/division to run a beer club at Kanpur, to be named as Vision Club. The club, namely, Vision Club, is a proprietary club, whereof the Company is the proprietor. The object of the Vision Club, inter alia, are stated to be - ". . . to provide a secular, non-political institution to promote different social, recreational, cultural and intellectual activities amongst the members of the Club; to support and provide sports facilities in-door and out-door, etc. comprising of judo-karate, maintaining a recreation room; further to promote and encourage such activities amongst its members which is conducive to the growth of social welfare and intellectual development. There are other actions and objects of the club including providing facility of club-bar for the benefit of the members only. " 4.
comprising of judo-karate, maintaining a recreation room; further to promote and encourage such activities amongst its members which is conducive to the growth of social welfare and intellectual development. There are other actions and objects of the club including providing facility of club-bar for the benefit of the members only. " 4. As one of the objectives was to provide facility of Club Bar including serving beer in the premises of the Club, a permit in Form FL - 7c was necessary to be obtained, under the provisions of the U. P. Excise Act, 1910 (hereinafter referred to as "the Act") read with the U. P. Permit of Possession of Foreign Liquor by Club Rules, 1980 (hereinafter referred to as "the Rules" ). Accordingly, the petitioner applied for the requisite permit on 14th November, 2000 in the prescribed Form G-28. In the application, it was prayed that the permit may be issued in the name and style in which the activity was proposed to be conducted by the petitioner being Vision Club, a division of the Company. The application was signed by Vishal Dixit, the Director of the Company, who is also the Secretary of the Club. It is alleged by the petitioner that the District Excise Officer, vide order dated 31st January, 2001 required the petitioner to furnish the Rules of the Club and the list of the office bearers, which was immediately supplied. The District Excise Officer after making a detailed and complete enquiry, submitted his report on 1st July, 2001 to the Excise Commissioner, U. P. , Allahabad recommending issuance of permit in Form FL-7c. The Excise Commissioner, vide order dated 16th August, 2001 granted approval for issuance of permit in Form FL - 7c in the name of the petitioner which order was communicated to the petitioner by the Additional Excise Commissioner vide letter dated 21st August, 2001. Thereafter, the petitioner deposited on 15th October, 2001 a sum of Rs. 55,000 being the fee for issuance of permit. As required by the authorities, the petitioner had also furnished the fixed deposit receipt of Rs. 5,000, but the permit in Form FL - 7c had not yet been issued.
Thereafter, the petitioner deposited on 15th October, 2001 a sum of Rs. 55,000 being the fee for issuance of permit. As required by the authorities, the petitioner had also furnished the fixed deposit receipt of Rs. 5,000, but the permit in Form FL - 7c had not yet been issued. The District Excise Officer, respondent No. 2, had issued an order dated 20th December, 2001 whereby he has intimated the petitioner that the permit in Form FL - 7c cannot be issued as the Club is not registered under the provisions of the Companies Act or the Societies Registration Act. However, licence in Form FL - 7 which is for restaurant bar can be issued for which the application may be made. The order dated 20th December, 2001 is under challenge in the present writ petition. 5. We have heard Sri S. P. Gupta, learned senior Counsel, assisted by Sri S. D. Singh, on behalf of the petitioner, and Sri S. P. Kesarwani, learned Standing Counsel appearing for the respondents. 6. At the out set, it may be mentioned here that the learned Counsel for the petitioner did not make any submission regarding the challenge to Rule 2 of the Rules as ultra vires and, therefore, the Court is not called upon to examine the validity of the provisions of Rule 2 of the aforesaid Rules. 7. Sri S. P. Gupta, learned senior Counsel, submitted that the Vision Club is a division of the Company which is incorporated under the provisions of the Companies Act, 1956 and the permit in Form FL - 7c is to be issued to an individual and, therefore, the petitioner is entitled and had rightly been granted approval by the Excise Commissioner for issuance of permit in Form FL - 7c, i. e. , a Club permit. He further submitted that a registered company and a club registered as a company are one and the same or at least the same class of person and, thus, denial of permit in Form FL - 7c on the ground that the club is not a registered company or a registered society, is wholly arbitrary.
He further submitted that a registered company and a club registered as a company are one and the same or at least the same class of person and, thus, denial of permit in Form FL - 7c on the ground that the club is not a registered company or a registered society, is wholly arbitrary. According to him, a club cannot be registered under the provisions of the Companies Act, 1956 whereunder only a company can be registered and, therefore, the interpretation of Rule 2 of the Rules that the club should be registered under the Companies Act, 1956 is absurd and is impossible to be complied with. No one can be expected to comply with a thing which is not possible under law. Moreover, the order dated 20th December, 2001 has been passed without giving any show cause notice or opportunity of being heard to the petitioner. Thus, it violates the principles of equity, fair play and natural justice. He further submitted that the respondents had issued permit in Form FL - 7c to the Clubs run by the Companies incorporated under the Companies Act, 1956 without there being specific and separate incorporation of the Club under the Companies Act, 1956 or registration under the Societies Registration Act, 1860 or the U. P. Co-operative Societies Act, 1965. He referred to such instances, namely, Citi Club as proprietorship concern of M/s. Sakchhi Hotels Private Limited and Status Club run as proprietorship firm of M/s. Cross Road Hotel and Resorts Private Limited and submitted that similar treatment should be given by the respondents to the petitioner also. 8. He referred to certain passages in Pages 56 to 63 of Vol. 6 given in Halsburys Laws of England, IV Edition, which deals with the constitution, management, property and dissolution of Clubs. According to him, the Halsbury Laws of England has dealt with various kinds of Clubs which are governed according to the nature of their constitution by different rules of law and can be conveniently divided as follows: (i) Members Club; (ii) Proprietary Club; (iii) Working Mens Club; (iv) Shop Club; and (v) Investment Club. 9. Even the Members Club can be of two types, namely, Unincorporated Members Club and Corporated Members Club. Similar is the situation in respect of the Proprietary Club.
9. Even the Members Club can be of two types, namely, Unincorporated Members Club and Corporated Members Club. Similar is the situation in respect of the Proprietary Club. He, thus, submitted that the Company being the proprietor of the Vision Club, as the said Club is a division of the Company, it would be a Proprietary Club and, therefore, entitled to issuance of permit in Form FL - 7c. 10. He also referred to a decision of the Apex Court in the case of Ashok Transport Agency v. Avadhesh Kumar and another, 1999 (1) JCLR 153 (SC) : (1998) 5 SCC 567 , wherein the Apex Court has held that a proprietary concern is only the business name in which the proprietor of the business carries on the business. According to him, the respondents have been treating a proprietary club under the Rules to be entitled to issuance of permit in Form FL - 7c and the interpretation placed by the respondents should be given full effect and meaning. He relied upon the two decisions of the Apex Court in the case of Indian Metals and Ferro Alloys Limited, Cuttack v. Collector of Central Excise, AIR 1991 SC 1028 and Raymond Synthetics Limited and others v. Union of India, AIR 1992 SC 847 , wherein the Apex Court has held that the contemporaneous construction placed upon an ambiguous section by the administrators entrusted with the task of executing the statute is extremely significant. 11. Sri S. P. Kesarwani, learned Standing Counsel, however, submitted that the petitioner has no fundamental right to carry on the trade in intoxicant. He relied upon a decision of the Apex Court in the case of Har Shanker and others v. The Deputy Excise and Taxation Commissioner and others, AIR 1975 SC 1121 . He submitted that it is a privilege of the State Government and the State Government has decided to part this privilege by granting a Club permit in Form FL -7c by framing the U. P. Permit for Possession of Foreign Liquor by Club Rules, 1980.
He submitted that it is a privilege of the State Government and the State Government has decided to part this privilege by granting a Club permit in Form FL -7c by framing the U. P. Permit for Possession of Foreign Liquor by Club Rules, 1980. According to him, under Rule 2, the Collector has been empowered to grant a permit under the provisions of sub-sections (a), (b) and (c) of Section 31 of the Act with the previous approval of the Excise Commissioner to only such Clubs which are registered either under the Companies Act, 1956 or the U. P. Co-operatives Act, 1965 or the Societies Registration Act, 1860. According to him, the permit only empowers such a Club to possess foreign liquor in excess of the limit of possession laid down in Section 20 of the Act for the purposes of supplying/serving to its members including their bona fide guests for consumption on the premises of the Club only. According to him, if the Club is not registered as required under Rule 2 of the Rules, it cannot be issued a Club permit in Form FL - 7c. In the case of Proprietary Club, he submitted that the proprietor alone can use foreign liquor for himself and where the company is a proprietor of a Club, in the event a permit in Form FL - 7c is issued to the Proprietary Club, the foreign liquor can be supplied/served to its members, i. e. , share holders of the Company and not to any body else. He further submitted that the petitioner cannot take any advantage of any illegality or wrong action of the authorities in granting the permit to unincorporated/unregistered Proprietary Clubs owned by the Private Limited Companies, the specific instances of which have been referred to by the petitioner and the provision of Article 14 of the Constitution of India does not at all give any benefit. He relied upon the following decisions: (i) Faridabad C. T. Scan Centre v. D. G. Health Services, 1997 Vol. 5 ELT 161 (SC); and (ii) Distributors (Baroda) Pvt. Ltd. v. Union of India and others, AIR 1985 SC 1585 . 12. He further submitted that in a taxation statute one has to look merely as to what is clearly said and there is no room for any intendment. There is no equality and presumption about a tax.
5 ELT 161 (SC); and (ii) Distributors (Baroda) Pvt. Ltd. v. Union of India and others, AIR 1985 SC 1585 . 12. He further submitted that in a taxation statute one has to look merely as to what is clearly said and there is no room for any intendment. There is no equality and presumption about a tax. Nothing is to be read in and nothing is to be implied and one is to look fairly at the language used. He relied upon a decision of the Apex Court in the case of The Federation of Andhra Pradesh Chambers of Commerce & Industries and others v. State of Andhra Pradesh and others, JT 2000 (8) SC 516. 13. Having heard the learned Counsel for the parties, we find that the petitioner which is the Vision Club, is the Proprietary Club. It is an unincorporated Club as it has not been registered either under the provisions of the Companies Act, 1956 or the Societies Registration Act, 1860 or under the U. P. Co- operative Societies Act, 1965 or under any other relevant statute. The members of the Club may or may not be the members of the proprietor, herein the Company. 14. It may be mentioned here that in the Rules and Regulations Book of Club filed as Annexure 7 to the writ petition, detailed procedure for admission to membership has been given. On a perusal of these Rules/regulations we find that there is no such requirement that a person who wants to become a member of the Club should also become a member of the Company or vice versa. The last page of the application in Form G-28 has been made by the Vision Club and has been signed for Vision Club by Sri Vishal Dixit as Director/secretary. However, at page 38 of the paper book of the writ petition, we find that in the column "name of the Applicant" the name of Vishal Dixit has been mentioned. The application does not appear to have been made by the Company as its name does not figure anywhere in the application made in the prescribed Form G-28. 15. In Halsbury Law of England, IV Edition, Vol. 6, in paras 205, 206, 208 and 209, Members Club and Proprietary Club, both unincorporated and corporated, have been stated as follows: "205.
The application does not appear to have been made by the Company as its name does not figure anywhere in the application made in the prescribed Form G-28. 15. In Halsbury Law of England, IV Edition, Vol. 6, in paras 205, 206, 208 and 209, Members Club and Proprietary Club, both unincorporated and corporated, have been stated as follows: "205. Unincorporated members clubs.- An unincorporated members club is a society of persons each of whom contributes to the funds out of which the expenses of conducting the society are paid. The contribution is generally made by means of entrance fees or subscriptions, or both. The society is not a partnership, because the members are not associated with a view to profit, nor, for the same reason, is it an association requiring registration as a company. It is not recognized as having any legal existence apart from the members of which it is composed. Subject to any rule to the contrary, the property and funds of the club belong to the members of the time being jointly in equal shares; and if provisions are supplied to a member, at a given price, this does not constitute a sale, but is in effect a release by the other members of their interest in the goods supplied. The transaction is not of a commercial nature and, consequently, is not controlled by the provisions of the Trade Descriptions Act, 1968. The peculiar nature of the transaction is of particular significance in relation to the supply of intoxicating liquor. " "206. Incorporated members club.- A members club incorporated under the Companies Act, 1948, or earlier Companies Acts, enjoys the advantages incidental to incorporation as a company, especially that of suing and being sued as a legal entity. The company may be limited by shares or by guarantee, and in either case the liability may be merely nominal in amount. The most convenient method, when a members club is incorporated, is to register it as a company limited by guarantee, the members of the club for the time being constituting the company. If a members club is incorporated as a company limited by shares, the articles of association to some extent take the place of club rules, and may be supplemented by bye-laws.
If a members club is incorporated as a company limited by shares, the articles of association to some extent take the place of club rules, and may be supplemented by bye-laws. If it is registered as an association limited by guarantee, the rules governing the relations of the members inter se are generally appended to the memorandum of association, and they together form the regulations of the company. In either case the objects of the club are set forth in the memorandum of association. The company is quite distinct from the club, the company merely being the proprietor; the relations of the members of the club inter se are governed by club rules or bye-laws, as in the case of an unincorporated members club, and the rights and liabilities of the share-holders in the company depend upon the memorandum and articles of association, as in the case of an ordinary trading company. " "208. Unincorporated proprietary clubs.- A proprietary club is of an entirely different nature from a members club. The property and funds of the club belong to the proprietor, who usually conducts it with a view to profit. The members, in consideration of the payment by them to the proprietor of entrance fees and subscriptions, are entitled to make such use of the premises and property, and to exercise such other rights and privileges, as the contract between them and the proprietor justifies. The management of a proprietary club is usually given wholly or in part to a committee of the members. " "209. Incorporated proprietary clubs.- In the case of an incorporated proprietary club, the relations between the members of the club and the company are governed by the same rules as those which govern the relations between the members and proprietor of an unincorporated proprietary club. An incorporated proprietary club, provided it is able to comply with the statutory requirements, may be registered as a limited liability company without use of the word "limited". 16. It is not correct to say that a Club cannot be incorporated under the Companies Act, 1956. Under Section 12 of the Companies Act, 1956, mode of forming incorporated company has been given. It does not exclude a Club from being incorporated. The Court takes judicial notice of the fact that there exist a large number of Clubs which have been incorporated under the provisions of the Companies Act, 1956.
Under Section 12 of the Companies Act, 1956, mode of forming incorporated company has been given. It does not exclude a Club from being incorporated. The Court takes judicial notice of the fact that there exist a large number of Clubs which have been incorporated under the provisions of the Companies Act, 1956. To name a few, Wheeler Club Ltd. , Meerut, Delhi Gymkhana Club Ltd. , Delhi, Royal Western India Turf Club Ltd. , Bankipur Club Ltd. , Ranchi Club Ltd. , Chelmsford Club Ltd. , etc. Thus, for the present case, the Vision Club would be treated as unincorporated Proprietary Club. 17. It is well-settled by the numerous decisions of the Apex Court that there is no fundamental right to do trade or business in intoxicants and the State, under its regulatory powers, has the right to prohibit absolutely every form of activity in relation to intoxicants, its manufacture, storage, export, import, sale and possession. In all their manifestations, these rights are vested in the State and indeed without such vesting there can be no effective regulation of various forms of activities in relation to intoxicants. See, The State of Bombay v. F. N. Balsara, AIR 1951 SC 318 ; Cooverjee B. Bharucha v. Excise Commissioner and Chief Commissioner, Ajmer, AIR 1954 SC 220 ; State of Assam v. A. N. Kidwai, AIR 1957 SC 414 ; Nagendra Nath v. Commissioner of Hills Division, AIR 1958 SC 398 ; Aman Chandra Chakraborti v. Collector of Excise, Government of Tripura, AIR 1972 SC 1863 ; State of Orissa v. Hari Narayan Jaiswal, AIR 1972 SC 1816 ; Nashirwar etc. v. State of Madhya Pradesh, AIR 1975 SC 360 ; Har Shanker and others (supra); Lakhanlal v. State of Orissa, (1976) 4 SCC 660 ; Sat Pal & Co. v. Lt. Governor of Delhi, (1979) 4 SCC 232 ; Southern Pharmaceuticals and Chemicals v. State of Kerala, (1981) 4 SCC 391 ; State of M. P. v. Nandlal Jaiswal, (1986) 4 SCC 566 ; Doongaji & Co. (I) v. State of M. P. , 1991 Supp (2) SCC 313; Khoday Distilleries Ltd. and others v. State of Karnataka and others, (1995) 1 SCC 574 ; Rajendra Singh v. State of M. P. and others, (1996) 5 SCC 460 and Yadar Shafi and others v. State of J & K and others, (1996) 5 SCC 740 . 18.
(I) v. State of M. P. , 1991 Supp (2) SCC 313; Khoday Distilleries Ltd. and others v. State of Karnataka and others, (1995) 1 SCC 574 ; Rajendra Singh v. State of M. P. and others, (1996) 5 SCC 460 and Yadar Shafi and others v. State of J & K and others, (1996) 5 SCC 740 . 18. The Apex Court in the case of Government of Maharashtra and others v. Deokars Distillery, (2003) 5 SCC 669 , has once again reiterated the above principle. Paragraphs 43 to 45 of the report is reproduced below: " (43) Concededly, a citizen of India in view of a catena of decisions of this Court has no fundamental right to carry on trade or business in potable liquor. The State indisputably has a right to regulate or prohibit business in potable liquor as a beverage or otherwise keeping in view the fact that the same is dangerous and injurious to health and is, therefore, an article which is res extra commercium being inherently harmful. The State is, therefore, entitled to completely prohibit a trade or business in liquor and create monopoly either in itself or in an agency created by it or take over such activities itself. For the purpose of selling the licence it can adopt any mode with a view to maximize its revenue so long as the method adopted is not discriminatory. (44) However, when the State permits trade or business in potable liquor, the citizen has the right to carry on trade or business subject to the limitations, if any, and the State cannot make discrimination between the citizens who are qualified to carry on the trade or business (See Khoday Distilleries Ltd. (supra) ). (45) Although a citizen has no fundamental right to carry on trade or business in potable liquor, but when he is permitted to carry on such business, he would be entitled to claim equal right as against other citizens. In absence of the State imposing any prohibition or monopolizing the business, the same may be carried on by the licensee without being subjected to any discrimination. Such a right although may not be elevated to the status of a fundamental right but all the same it is a right. " 19.
In absence of the State imposing any prohibition or monopolizing the business, the same may be carried on by the licensee without being subjected to any discrimination. Such a right although may not be elevated to the status of a fundamental right but all the same it is a right. " 19. In "american Jurisprudence", Volume 30, it has been stated at page 538-541 that while engaging in liquor traffic is not inherently unlawful, nevertheless it is a privilege and not a right, subject to Government control. This power of control is an incident of the societys right to self-protection and it rests upon the right of the State to care for the health, morals and welfare of the people. Liquor traffic is a source of pauperism and crime. 0 20. Thus, the petitioner which is a Proprietary Unincorporated Club, has no fundamental right to carry on trade in foreign liquor or intoxicant except under a permit to be issued in accordance with the Rules. The petitioner has to fulfill the requirement of Rule 2 of the Rules which reads as under: "2. Grant of permit.- The Collector, with the previous approval of the Excise Commissioner, may grant a permit in accordance with the provisions of sub-sections (a), (b) and (c) of Section 31 of the said Act, to a Club registered under the Indian Companies Act, 1956 or U. P. Co-operative Societies Act, 1965 or Societies Registration Act, 1860 to possess foreign liquor in excess of the limit of possession laid down in Section 20 of the said Act for the purpose of supplying/serving to its members including their bona fide guests for consumption "on" the premises of the Club only. " 21. It has to be either registered under the provisions of the Indian Companies Act, 1956 or the U. P. Co- operative Societies Act, 1965 or the Societies Registration Act, 1860 in order to obtain permit in Form FL - 7c. As the petitioner is not registered under any of the aforementioned Act, it does not fulfill the requirement of Rule 2 of the Rules and, therefore, the permit in Form FL - 7c has rightly been refused. 22.
As the petitioner is not registered under any of the aforementioned Act, it does not fulfill the requirement of Rule 2 of the Rules and, therefore, the permit in Form FL - 7c has rightly been refused. 22. No advantage can be derived from the name of the permit holder required to be mentioned in Form FL - 7c as an unincorporated and unregistered Club being an artificial body like the present petitioner has to act through some natural person. Even if for a moment it is taken that the Company which owns the Club is registered under the provisions of the Companies Act, 1956 and is entitled for issuance of permit in Form FL-7c, it may be mentioned here that it can supply/serve foreign liquor only to its members as defined under Section 41of the Companies Act, 1956 and not to all the members of the Club who are not the members of the Company. 23. So far as the submission that the respondents have issued permits in Form FL-7c to the two other Proprietary Unincorporated Clubs, namely, Citi Club as proprietorship concern of M/s. Sakchhi Hotels Private Limited and Status Club run as a proprietorship club of M/s. Cross Road Hotel and Resorts Private Limited, respectively is concerned, suffice it to mention that the protection of Article 14 of the Constitution of India, i. e. , hostile discrimination, is not available in a case where the benefit of a wrong order or a wrong action is being claimed. 24. The Honble Supreme Court in the case of Chandigarh Administration and another v. Jagjit Singh and another, (1995) 1 SCC 745 , has held as follows: 1 " (8) We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come across many such instances, we think it necessary to deal with such pleas at a little length. Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case or another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be.
Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case or another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extra-ordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed an illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law - indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law - but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioners case is similar to the other persons case. But then why examine another persons case in his absence rather than examining the case of the petitioner who is present before the Court and seeking the relief.
But then why examine another persons case in his absence rather than examining the case of the petitioner who is present before the Court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the Court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another persons case, which other person is not before the Court nor is his case. In our considered opinion, such a course - barring exceptional situations - would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and the High Courts nor can they be elevated to the level of the precedent, as understood in the judicial world. (What is the position in the case of orders passed by the authorities in exercise of theirs quasi-judicial powers, we express no opinion. That can be dealt with when a proper case arise ). " 25. The aforesaid decision has been followed subsequently in the case of Yadu Nandan Garg v. State of Rajasthan and others, (1996) 1 SCC 334 ; Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal 2 Jain and others, 1998 (2) JCLR 129 (SC) : (1997) 1 SCC 35 ; State of Haryana and others v. Ram Kumar Mann, (1997) 3 SCC 321 ; Style (Dress Land) v. Union Territory, Chandigarh and another, (1999) 7 SCC 89 ; CSIR and others v. Dr. Ajay Kumar Jain, (2000) 4 SCC 186 and Narpat Singh and others v. Jaipur Development Authority and another, (2002) 4 SCC 666 . 26. In the case of Union of India and another v. International Trading Co.
Ajay Kumar Jain, (2000) 4 SCC 186 and Narpat Singh and others v. Jaipur Development Authority and another, (2002) 4 SCC 666 . 26. In the case of Union of India and another v. International Trading Co. and another, (2003) 5 SCC 437 , the Honble Supreme Court has held that a party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India (in short "the Constitution" cannot be pressed into service in such cases. What the concept of equal treatment pre- supposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality. 27. Thus, the submission made by the learned Counsel for the petitioner claiming parity is also devoid of any substance. 28. So far as the question of violation of the principle of natural justice is concerned, it may be mentioned here that this Court had considered all the pleas raised by the petitioner in challenging the order dated 20th December, 2001 and, therefore, this Court is not inclined to set aside the said order only on the ground of it being in violation of the principle of natural justice. 29. The decision relied upon by the learned Counsel for the petitioner regarding contemporaneous construction placed upon an ambiguous section by the administrators entrusted with the task of executing the statute is extremely significant, would not be applicable in the present case as there is no ambiguity in the language of Rule 2 of the Rules. 30. Thus, we are of the considered opinion that the petitioner who is an unincorporated Proprietary Club, was not entitled for issuance of permit in Form FL - 7c as it had not fulfilled the conditions mentioned in Rule 2 of the Rules.
30. Thus, we are of the considered opinion that the petitioner who is an unincorporated Proprietary Club, was not entitled for issuance of permit in Form FL - 7c as it had not fulfilled the conditions mentioned in Rule 2 of the Rules. The order dated 20th December, 2001 does not suffer from any legal infirmity. 3 31. In view of the foregoing discussions, we do not find any merit in this writ petition. The writ petition fails and is hereby dismissed. However, the parties shall bear their own costs. 32. Before parting with the case, the Court feels that it would be failing in its duty if a direction is not issued to the respondents to take appropriate proceedings in accordance with law against all such Clubs including the Citi Club, a proprietorship concern of M/s. Sakchhi Hotels Private Limited, and Status Club, a proprietorship concern of M/s. Cross Road Hotel and Resorts Private Limited, for cancellation of the Club licence/permit issued in Form FL - 7-C in case the Club in whose name permits have been issued are unincorporated/unregistered and do not conform to the provisions of Rule 2 of the Rules. Let a copy of this judgment be sent to the Chief Secretary, Government of Uttar Pradesh, Lucknow, for taking appropriate action within a period of three months. Petition dismissed. .