JUDGMENT By the Court.—Heard Sri Tarun Verma, learned Counsel for the petitioners, learned Standing Counsel and Sri S.D. Dubey on behalf of the respondents/opposite parties. 2. Bhanu Jaiswal and Vimal Kumar Goenka, the two petitioners have approached this Court by means of present writ petition under Article 226 of the Constitution of India claiming writ, order or direction in the nature of certiorari to quash the impugned notice dated 19-2-2006 issued by the Excise Officer, Varanasi, respondent No. 4 (copy filed as Annexure-8 to the writ petition) and also a similar writ commanding the respondents (mainly Executive Officer Cantonment Board, Varanasi) to issue a trade licence/no objection certificate to the petitioners under Section 210 of the Cantonment Act, 1924 (hereinafter called as ‘the Act’). 3. The aforesaid impugned order/notice dated 17/19th February, 2006 (Annexure-8 to the writ petition) refers to a notice dated 31-1-2006 received by the Cantonment Board (Annexure-7 to writ petition). Admittedly the petitioners have granted licence under the U.P. Excise Act by the Licensing Authority under the said Act for selling foreign liquor for opening foreign liquor model shop within the premises No. 52/82 Mint House, Nadesar Road, Varanasi Cantt. The said licence issued by the District Excise Officer was for the period 15-6-2004 to 31-3-2006 (copy of the licence dated 19-6-2004 is Annexure-1 to the writ petition). In the said licence there is no indication that the premises/shop in question was in the cantonment area of Varanasi. Copy of the application etc. on the basis of which said licence under the U.P. Excise Act was issued is not on record and there is nothing to show that the petitioners intended to sell foreign liquor within Varanasi Cantonment Limits. There is every likely possibility that the District Excise Officer was not aware while issuing Licence under the U.P. Excise Act that the shop was within Cantonment Limits and hence said authority took no steps to obtain consent under Cantonment Act, before issuing licence for the aforesaid premises as required under Rule 325 of the U.P. Excise Rules which reads : “325. Determination of the distribution and location of shops.—Subject to the control of the State Government and of the Excise Commissioner and to the limitations expressed in these rules, the distribution and general location of retail shops shall be determined by the Collector provided that in military cantonments the Collector shall exercise this power only with the consent of the Officer Commanding the station.” 4. Petitioners had applied for obtaining licence under Cantonment Act from the Cantonment Board on 19-6-2004 itself (i.e. the date when the licence itself was issued). This fact is mentioned by the plaintiffs in para 2 of the plaint (copy of which has been filed as Annexure-5 to the writ petition). 5. The permission sought by the petitioner from the Cantonment Board was rejected by means of Cantonment Board Resolution No. 9, dated 31-8-2004. The said fact finds mention in the letter dated 17-1-2005 written by the Executive Officer Cantonment Board, Varanasi (Annexure-4 to the writ petition). 6. It is also found on record that there was some objection in considering the foreign liquor to be sold in the premises in question even before ‘licence’ was granted by the District Excise Officer and spot inspection was done by the excise authorities and the excise officer recommended for opening foreign liquor shop with the endorsement of recommendation from the Tehsildar, Varanasi dated 4-6-2004 (Annexure-3 to the writ petition) refers to the said inspection report in para 9 of the writ petition, wherein it has been pleaded that spot inspection was done under Rule 325 of the Excise Rules as noted earlier. The Cantonment Board raised objection vide its notice dated 17-1-2005 (filed as Annexure-4 to the writ petition) referring to Section 210 (2) of the Cantonment Act for convenience Section 210 of the Act reads : “210. Licences required for carrying on of certain occupations.—(1) No person of any of the following classes, namely : (a)..... (b)..... (c)..... (d)..... (e)..... (f)..... (g)..... (h)..... (i)..... (ia) vendors of spirituous liquor; (j)..... (k)..... (l)..... (m)..... (n)..... (o)..... (p)..... (q)..... (r)..... (s)..... Licences required for carrying on of certain occupations.—(1) No person of any of the following classes, namely : (a)..... (b)..... (c)..... (d)..... (e)..... (f)..... (g)..... (h)..... (i)..... (ia) vendors of spirituous liquor; (j)..... (k)..... (l)..... (m)..... (n)..... (o)..... (p)..... (q)..... (r)..... (s)..... (2) A licence granted under sub-section (1) shall be valid (until the end of the year in which it is issued) and the grant of such licence shall not be withheld by the (Board) unless it has reason to believe that the business which it is intended to establish or maintain would be offensive or dangerous to the public (or that the premises in which the business is intended to be established or maintained (are unfit or unsuitable) of the purpose; (3) Notwithstanding anything contained in sub-section (1)— (a) no person who was at the commencement of this Act, carrying on his trade, calling or occupation in any part of a cantonment shall be bound to supply for a licence for carrying on such trade or occupation in that part until he has received from the (Board) not less than three months’ notice in writing of his obligation to do so, and if the (Board) refuses to grant him a licence, it shall pay compensation for any loss incurred by reason of such refusal; (b) no person shall be required to take out a licence for the sale or storage of petroleum or for the sale or possession for sale of poisons or white arsenic in any case in which he is required to take out a licence for such sale, storage, or possession for sale by or under the (Petroleum Act, 1934 (30 of 1934) or the Poisons Act, 1919 (12 of 1919). (4) The (Board) may charge for the grant of licences, under this section (such reasonable fees), as it may fix with the previous sanction of the (Central Government).” 7. It is admitted case of the petitioner that no prior sanction was obtained from the Cantonment Board as required under Section 210 (1) and sanction/approval or licence was issued by the Board to sell spirituous liquor within Cantonment Limits nor requisite fee (if any) was deposited by the petitioner as contemplated under Section 210 (4) of Cantonment Act (quoted above). 8. 8. On receiving the said notice dated 17-1-2005 issued by the Cantonment Board, (requiring the petitioner to stop selling ‘foreign liquor’ from the premises in question within Cantonment Limits), the petitioners filed Original Suit No. 75 of 2005 in the Court of Civil Judge (Senior Division), Varanasi claiming decree for permanent prohibitory injunction against the Cantonment Board and its officers restraining them not to implement the letter dated 17-1-2005 and afford reasonable opportunity of hearing and further to be provided reasonable opportunity of hearing on the application of the petitioners for grant of licence, dated 19-6-2004 before their application for seeking licence under Section 210 of the Cantonment Act was disposed of and further to restrain the Board not to interfere in any way in day to day business of selling foreign liquor in their business premises No. 52/82 Mint House, Varanasi Cantt (copy of the plaint is filed as Annexure-5 to the writ petition). It is to be seen that in the said plaint the petitioner has not pleaded the facts as required under Section 273 (1) read with Section 273 (4) of the Cantonment Act, which reads : “273. Notice to be given of suits.—(1) No suit shall be instituted against any (Board) or against any member of a Board, or against any officer or servant of a (Board) in respect of any act done, or purporting to have been done, in pursuance of this Act or of any rule or bye-law made thereunder, until the expiration of two months after notice in writing has been left at the office of the (Board), and, in the case of such member, officer or servant, unless notice in writing has also been delivered to him or left at his office or place of abode, and unless such notice sates explicitly the case of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of abode of the intending plaintiff, and unless the plaint contains a statement that such notice has been so delivered or left. (2) .................................... (3) .................................... (4) Nothing in sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit or proceeding.” 9. (2) .................................... (3) .................................... (4) Nothing in sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit or proceeding.” 9. Even otherwise from perusing the impugned order there is no basis to allege that the loss in the facts of the present case would have been irreparable inasmuch as the plaintiffs could have claimed damages if their business has been unauthorisedly interfered with, the interim injunction application paper No. 6ga supported with affidavit, Paper No. 7ga was considered and ad interim ex parte order has been granted by the trial Court, vide its judgment and order dated 24-1-2005 (Annexure-6 to the writ petition), we are surprised as to how the trial Court could not pass the stay order by adverting to the Code of Civil Procedure, particularly, under Order XXIX, Rule 3, C.P.C. which reads : "3. Before granting injunction, Court to direct notice to opposite party.—The Court shall in all cases except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party: Provided that where it is proposed to grant an injunction with giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant— (a) to deliver to the party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with— (i) a copy of the affidavit filed in support of the application; (ii) a copy of the plaint; and (iii) copies of documents on which the applicant relies; and (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent." 10. Further trial Court has made certain observations on the aspect of the parity alleged by the petitioner of India Hotel and Clark Hotel etc. Further trial Court has made certain observations on the aspect of the parity alleged by the petitioner of India Hotel and Clark Hotel etc. The petitioners did not show that those persons were impleaded as party before the Court or any officer to show that the case of the petitioner was similar and identical to those in respect of those persons. The trial Court also mentioned in its ex parte interim order that the business of selling foreign liquor in the premises in question is only source of livelihood of the plaintiff. We find no such allegation in the plaint. In that view of the matter we find that the learned Trial Judge has made perverse observations. It refers to Article 21 of the Constitution of India. The impugned order of the trial Court is also misconceived and misplaced as the rights under Article 21 of the Constitution are subject to control and limitations prescribed through the statutory provisions, no person can sell the liquor in the cantonment premises even the licence accorded by the District Excise Officer, but applying the provisions of Rule 325 of Excise Rules and Section 210 of the Cantonment Act. The trial Court has no business to issue ad interim injunction when there was no compliance of Section 210 of Cantonment Act. 11. As far as the question of validity of impugned notice/order dated 19th February, 2006 (Annexure-8 to the writ petition) is concerned we find that the District Excise Officer has rightly issued the said notice after its intimation through legal notice given by the Cantonment Board to it. (Copy of such notice of intimation dated 31-1-2006 is filed as Annexure-7 to the writ petition). It is admitted position that the Cantonment Board has not accorded approval/sanction for carrying on the business of selling foreign liquor in favour of the petitioners, the question of ad interim injunction and finding fault in the order does not arise. The petitioners have not filed copy of the Board Resolution No. 9 dated 31-7-2004 and we find no endeavour being made by the petitioners before this Court or before the Civil Court, challenging the said resolution of the Board. 12. The petitioners have not filed copy of the Board Resolution No. 9 dated 31-7-2004 and we find no endeavour being made by the petitioners before this Court or before the Civil Court, challenging the said resolution of the Board. 12. In view of the above, while exercising our writ jurisdiction under Article 226 of the Constitution of India and considering the sensitivity of the issue, particularly when the matter relates to the Cantonment Area and there is flagrant violation of the statutory provisions as a consequence whereof the petitioners cannot carry on the shop of foreign liquor, we suspend the ad interim injunction order granted by the trial Court dated 24-1-2005 in O.S. No. 75 of 2005, referred to above, filed as Annexure-6 to the writ petition and direct the plaintiff/defendants (who are represented through their Counsel) to appear before the trial Court on 20th March, 2006. Before that date the Cantonment Board may file its objection. The trial Court shall decide ad interim injunction application on merit after hearing both the parties. The Trial Judge while hearing the injunction application should bear in mind Section 95, C.P.C. if it comes to the conclusion that the plaintiff obtained the ex parte injunction order on insufficient grounds, or there was "no reasonable or probable ground” for instituting the suit. Considering glaring facts of the case, we direct that a copy of this order be sent to the Hon’ble Administrative Judge of the concerned District Judgeship and also place a copy of this judgment on the service record of the concerned Officer, the then Civil Judge (S.D.), Varanasi. 13. We find no manifest error apparent on the face of record in the impugned order dated 19-2-2006 passed by District Excise Officer, Varanasi (Annexure-8 to the writ petition). 14. In view of the above discussion, the writ petition fails and is hereby dismissed in limine. No order as to costs. Petition Dismissed. ————