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2007 DIGILAW 1815 (ALL)

RAM PRAKASH SINGH v. STATE OF UTTAR PRADESH

2007-07-06

R.K.AGRAWAL, VIKRAM NATH

body2007
JUDGMENT Hon’ble Vikram Nath, J.—This writ petition was originally filed with the prayer to quash the Notification dated 2.5.2006 issued by the Collector, Farrukhabad whereby applications were invited for opening of a retail out-let of country liquor shop at Alawalpur mentioned at serial No. 1 of the said Notification, a copy of which has been filed as Annexure-4 to the writ petition. Subsequently by an amendment the petitioner sought for quashing of the order dated 28.4.2006 passed by the Additional Commissioner Excise, U.P. whereby approval was granted for opening of the country liquor shop at Alawalpur and further for cancellation of the allotment of the country liquor shop, Alawalpur made pursuant to the order of the District Excise Officer dated 9.5.2006. 2. The facts giving rise to the present writ petition are that the petitioner is a licensee of country liquor shop Mohammadabad, district-Farrukhabad for the excise year 2005-06 carrying a minimum guaranteed quota (in short referred to as MGQ) of 87100 bulk litres. Subsequently for the excise year 2006-07 also the licence of the petitioner was renewed with MGQ as 93197 bulk litres. The total quota allotted for district-Farrukhabad was 2284900 bulk litres for the excise year 2006-07. An order was passed by the District Excise Officer mentioning that after settlement of all the shops a quantity of 6690 bulk litres falls short i.e. it remains unsettled and, therefore, to fulfil the said shortfall it would be appropriate to create two new shops so that the entire quota to the district is allotted. For the said purpose he directed the Excise Inspector, Region II and III to explore the availability of site in accordance with law and submit a report within three days. A report was submitted on 14.4.2006 by the Excise Inspector that Gram Panchayat Alawalpur does not have any distinct licence, residents have requested for opening of a shop, village Alawalpur does not fall within 3 Kms. radius of any existing shop of country liquor. Further that in the past years in the vicinity of village Alawalpur there has been several cases of illegal and spurious sale of country liquor and, therefore, if a shop is created at Alawalpur it will help in controlling the illegal and spurious sale of country liquor. radius of any existing shop of country liquor. Further that in the past years in the vicinity of village Alawalpur there has been several cases of illegal and spurious sale of country liquor and, therefore, if a shop is created at Alawalpur it will help in controlling the illegal and spurious sale of country liquor. Alongwith his report he also submitted a representation of the residents of the village Alawalpur and also of the Village Pradhan requesting for opening of a new shop at Alawalpur. A list of cases under Section 60 of the Excise Act of village Talipur which is adjoining to the village Alawalpur was also enclosed. Further report was submitted by the Excise Inspector Region-II with regard to opening of a second new shop at Bichauli. 3. Based upon the report and recommendation, a proposal was sent to the Excise Commissioner, who vide order dated 28.4.2006 granted permission for opening of two new shops and he also fixed that quota for Alawalpur to be 3350 bulk litres and 3340 bulk litres for village Bichauli. The said MGQ of both the new shops would fulfill the short fall of the MGQ allocated for district Farrukhabad which had not been settled. Pursuant to the permission granted by the Excise Commissioner shops were advertised and shop of Alawalpur has been allotted to Smt. Veenu Dube and Puja Dube vide order dated 9.5.2006. It is against this creation of new shop and allotment that present writ petition has been filed. 4. We have heard Sri S.C. Verma, learned Counsel for the petitioner and Sri S.P. Kesarwani, learned Standing Counsel representing the State respondents. We have also perused the pleadings on record. 5. It is against this creation of new shop and allotment that present writ petition has been filed. 4. We have heard Sri S.C. Verma, learned Counsel for the petitioner and Sri S.P. Kesarwani, learned Standing Counsel representing the State respondents. We have also perused the pleadings on record. 5. Learned Counsel for the petitioner had firstly submitted that at the time when the renewal to the petitioner was granted in March, 2006 he was nor communicated that any new shop was likely to be opened in the vicinity of his shop and, therefore, after grant of renewal, the opening of a new shop will adversely affect the sale of liquor from the petitioner’s shop and the petitioner may not be able to lift the entire MGQ which result into loss of revenue to him as under the law he is required to lift the entire MGQ and on failure to do so he would be liable to pay the duty on remaining amount of MGQ without lifting and selling the said quantity. The second submission made on behalf of the petitioner is that the new shop at Alawalpur is situate at a distance of only 1 km from his shop at Mohammadabad and such opening of a new shop in such close vicinity cannot be permitted and is against the law. He has further relied upon a decision in the case of Ram Kripal v. State of U.P. and others, 2005 (5) AWC 4681 in support of his contentions. 6. On the other hand Sri S.P. Kesarwani, learned Standing Counsel has submitted that the shop has been opened in accordance with law. The Excise Commissioner under law is empowered to create a new shop and he has granted the approval based upon the recommendation of the District Excise Officer and Collector of the district in order to fulfil the allotment of MGQ reserved for the district. He has further submitted that the shop at Alawalpur is situate at a distance of more than 3 kms. from the shop at Mohammadabad where the petitioner is functionin0g, which is in accordance with the Rules. It is further submitted that this writ petition has been filed with mala fide intention as the petitioner wants to have a monopoly of selling the liquor in the area, for which he has no right. from the shop at Mohammadabad where the petitioner is functionin0g, which is in accordance with the Rules. It is further submitted that this writ petition has been filed with mala fide intention as the petitioner wants to have a monopoly of selling the liquor in the area, for which he has no right. Sri Kesarwani also submitted that the petitioner has failed to show that there has been any short fall in his lifting of the MGQ and in the absence of the same the petitioner cannot have any grievance and his sale is not adversely affected as alleged. It was also submitted that MGQ. of the newly created shop is only 3350 bulk litres as compared to the MGQ. of the petitioner which is 93197 bulk litres, i.e. it is less than 4% of the MGQ of the petitioner. It may also be noted that the petitioner has not impleaded that allottee of the country liquor shop at Alawalpur. 7. We have heard Sri S.C. Verma, learned Counsel for the petitioner and Sri S.P. Kesarwani, learned Standing Counsel representing the respondent and have also perused the pleadings on record. 8. The first point urged by the learned Counsel for the petitioner with regard to no notice having been given to him at the time of opening of the shop at Alawalpur, is without merit for the reason that in the terms of the licence it was clearly mentioned that the Excise Commissioner/State Government may create the country liquor shop at any time during the year. The renewal of the petitioner’s licence had been made subject to the said condition and it was well within the knowledge of the petitioner. A copy of the advertisement inviting applications for renewal has been filed as Annexure-1 to the counter-affidavit in which in the very beginning itself clause-(Ka) clearly speaks of opening of new liquor shop, beer shop during the year by the Excise Commissioner or the State Government. As such the first point is without merit and fails. 9. The second point urged was with regard to the distance being very close to the existing shop of the petitioner which was alleged to be only 1-1/2 Kms. This assertion of fact has been made in paragraphs 8 and 9 of the petition. As such the first point is without merit and fails. 9. The second point urged was with regard to the distance being very close to the existing shop of the petitioner which was alleged to be only 1-1/2 Kms. This assertion of fact has been made in paragraphs 8 and 9 of the petition. In the counter-affidavit filed by the State Government this fact has been specifically denied and has been stated that the distance between the two shops was 3 Kms. and the same is within the permissible limit under the Rules. This fact has been mentioned in paragraph 3 (G) and paragraph 5 of the Counter-affidavit. Since the distance between the two shops is being disputed, and it being a question of fact which can be ascertained on the basis of evidence, and further that the petitioner has not placed any reliable evidence to support his statement, this Court cannot go into this controversy and there is no reason to disbelieve or dispute the statement given by the respondents in their counter-affidavit. This point, therefore, also fails. 10. The third point urged is that the petitioner’s business was adversely being affected as opening of a new shop would mean division of business and as the law provides lifting of the MGQ necessarily, the petitioner would end up in paying the licence fee without actually lifting the quota and selling the same. This contention cannot be accepted for two reasons. Firstly, that the petitioner has not alleged anywhere that he has failed to lift his MGQ in any month or at any time during the year, therefore, the presumption would be that the petitioner has successfully lifted the MGQ. It cannot be said that there was any financial loss on account of non-lifting of MGQ. The second reason is that MGQ of the petitioner is 93197 bulk litres whereas MGQ of the newly created country liquor shop at Alawalpur was only 3350 bulk litres which is less than 4% of the total MGQ of the petitioner. Opening of such a small licence shop cannot be said to adversely affect a licensee of the magnitude of the petitioner. 11. From perusal of the counter-affidavit it appears that before opening of a liquor shop an inquiry has been made and the two locations had been identified and selected for the opening of the shop for justifiable reason. Opening of such a small licence shop cannot be said to adversely affect a licensee of the magnitude of the petitioner. 11. From perusal of the counter-affidavit it appears that before opening of a liquor shop an inquiry has been made and the two locations had been identified and selected for the opening of the shop for justifiable reason. We do not find any infirmity in the opening of the new shop and the procedure adopted for the same. 12. The decision in the case of Ram Kripal (supra) relied upon by the petitioner has no relevance to the facts of the present case and is clearly distinguishable. In the said case the application of the petitioner therein for opening a new sub-shop was kept pending and at the same time the Excise Commissioner granted permission to respondent 6 to open a new sub-shop contrary to the rules. This was held to be illegal. In the present case we have recorded that there is no illegality. 13. The writ petition appears to be only an attempt to frustrate the licence created in Alawalpur village. The petitioner does not want any competition in the area and wants to monopolize the business, may be by selling liquor at a premium or rate higher than what is determined by the State Government. Since we have found that the petitioner has filed this writ petition with mala fide intention and it has resulted into loss of revenue not only to the allottees but also to the State Government, the petition is liable to be dismissed with costs. 14. In view of the foregoing discussion there does not appear any merit in this writ petition and it is accordingly dismissed with costs which is quantified at Rs. 10,000/- to be deposited within one month with the Registrar General of this Court to be transmitted to the Allahahad High Court Mediation and Conciliation Centre. ————