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2011 DIGILAW 1801 (RAJ)

Durgesh Kumar Deora v. State (Finance)

2011-08-25

DINESH MAHESHWARI

body2011
JUDGMENT 1. - Upon taking up this matter for admission after notice, an application (IA No. 13551/2011) for impleadment has been placed before the Court as moved on behalf of the applicants Laxmi Lal Soni and Madan Lal Soni alleging their rights in the property in question. 2. Looking to the subject-matter of this writ petition relating to the location of the liquor shop pursuant to the license said to have been extended by the respondent-Excise Department to the petitioner, so far the applicants of IA No.13551/2011 are concerned, merely for their suggesting the rights in the property in question or some dispute with regard to possession, they cannot be acceded the right to intervene in this matter essentially concerning the petitioner and the Excise Department. The application (IA No. 13551/2011) stands rejected. 3. The learned counsel for the parties have been heard on merits. 4. The petitioner has filed this writ petition on 02.08.2011 seeking the following reliefs:- "A) By an appropriate writ order or direction, the respondents may kindly be directed to allow the petitioner to continue with the liquor shop at Zone No. 1, Mallatalai, Udaipur which is the approved location of the licensee. B) By an appropriate writ, order or direction, if any order is passed by the respondents so as to restrain the petitioner to carry the liquor business at approved location then same order may kindly be treated as part and partial of the writ petition and same may be quashed and set aside. C) Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner. D) Writ petition filed by the petitioner may kindly be allowed with costs." 5. On 04.08.2011, this Court directed the learned counsel appearing for the Excise Department to take the notices. A preliminary reply to the writ petition has been filed on behalf of the respondents today. 6. Coming to the subject-matter of this writ petition, it appears that the petitioner had applied for and was granted a license for dealing with liquor in a shop at Zone No.1, Udaipur for the year 2011-12. A preliminary reply to the writ petition has been filed on behalf of the respondents today. 6. Coming to the subject-matter of this writ petition, it appears that the petitioner had applied for and was granted a license for dealing with liquor in a shop at Zone No.1, Udaipur for the year 2011-12. The petitioner has averred in the writ petition that he was required to submit the location for approval after grant of the license and that the respondents approved the location by putting the note at the bottom of the application that the petitioner would be permitted to run the liquor shop at the provided location. The averments in this regard, as taken in the paragraph-3 of the petition, are reproduced hereunder for ready reference: "3. That the petitioner after due allotment submitted the location for approval of the shop at Mallatalai Chouraha, Zone No.1, Ward No. 4, Udaipur. The location for approval has to be submitted between 7.4.2011 to 15.4.2011. The respondents approved the location by putting the note and at the bottom of the location application, the permission was granted to operate liquor shop at the provided location." 7. The petitioner has further averred that he acted in pursuance of the law as provided in the Rajasthan Excise Act, 1950 and the Rules made thereunder; and got the approval for appointing the servant at the liquor shop. According to the petitioner, he was peacefully carrying on the business at the approved location without any hindrance and then, the respondents renewed the location from 18.04.2011 to 18.05.2011, from 18.05.2011 to 18.06.2011, and from 18.06.2011 to 18.07.2011. The petitioner has stated the grievance that the respondents have refused to renew the location on 18.07.2011 without assigning any reason. 8. The petitioner has further averred that he was having a valid license to carry on the business of the liquor shop and that he was carrying on the business at the approved location and the liquor was being supplied to him through valid bills. In this regard, the copies of the invoices dated 27.07.2011 have collectively been placed on record as Annexure-3. According to the petitioner, he made a representation on 19.07.2011 for renewal of the location but no sufficient answer was given to him. In this regard, the copies of the invoices dated 27.07.2011 have collectively been placed on record as Annexure-3. According to the petitioner, he made a representation on 19.07.2011 for renewal of the location but no sufficient answer was given to him. The petitioner has reproduced Rule 75 of the Rajasthan Excise Rules, 1956 ('the Rules of 1956') and has taken the4 ground that the District Excise Officer has to record sufficient reasons if he desires to shift the shop from one place to another; and otherwise, the shifting could be done only at the desire of the licensee. According to the petitioner, he has never made any such desire for change of the location nor the respondents are entitled to shift the location of the liquor shop and, therefore, the denial of the renewal application was entirely illegal and arbitrary. It is submitted that the respondents are not justified in sitting tight over the matter and in not passing the appropriate orders for approval of the location further. 9. The learned counsel for the petitioner has strenuously pressed for consideration the submissions that the respondents have acted wholly illegally in not approving the location after 18.07.2011 without assigning sufficient reasons. It is contended that the liquor shop cannot be shifted at the whims and wishes of the respondents and the petitioner having not offered for shifting of the liquor shop, there is no reason that the respondents are not approving the location. The learned counsel has particularly referred to Rule 75 of the Rules of 1956. 10. During the course of consideration of this matter and looking to the stand as taken by the respondents in their reply that the initial approval of location was itself a conditional one, this Court posed the question about the document relating to approval of location and the reason for not filing of the same with this petition. To this, the learned counsel for the petitioner submitted that only for the bona fide mistake, such document has not been filed and else, the relevant averments in this regard have duly been taken in the petition. Having regard to the circumstances, the copy of the location approval, as placed for perusal by the learned counsel for the respondents before the Court, is taken on record. 11. Having regard to the circumstances, the copy of the location approval, as placed for perusal by the learned counsel for the respondents before the Court, is taken on record. 11. After having given a thoughtful consideration to the submissions made and after having examined the material placed on record and that placed for perusal during the course of arguments, this Court is clearly of the opinion that this writ petition deserves to be dismissed and for that matter, with costs. 12. In the first place, this Court is not at all satisfied with the conduct of the petitioner who has concealed a material fact and the material document from the Court and has not taken the averments with forthrightness. The contents of the petition, particularly in paragraph-3 as reproduced above, suggest that the respondents approved the location and the petitioner was granted permission to run the liquor shop at the provided location. However, the petitioner has never stated in the petition that the approval was period-specific and a conditional one. It is noticed that the Department had put the following condition on the approval of the location:- " vuqKk/kkjh ds 'kiFk i= o vkcdkjh fujh{kd o`Rr mn;iqj if'pe dk ekSdk uD'kk fnukad 18-4-2011 ds fy;s vLFkkbZ :i ls Lohd`r fd;k tkrk gSA ;fn Hkfo"; esa yksds'ku dks ysdj fdlh izdkj dh dksbZ f'kdk;r izkIr gksus fookn gksus ij yksds'ku cnyuk vko';d gqvk rks vuqKk/kkjh Lo;a ds [kpZ ls vkns'k izkIr gksrs gh yksds'ku ifjorZu dj Lohd`r LFkku ij LFkkukUrfjr djsxk ftlesa fdlh izdkj dk gtkZuk@{kfriw.kZ ns; ugha gksxkA " 13. It is but apparent that the Department had provisionally approved the location with clear stipulation that in case of receiving any complaint or any dispute, if the change of location would be necessary, the licensee shall get the changed location approved and shift the shop without any entitlement for damages or compensation. It is clear that the petitioner has not been forthright while seeking to invoke the writ jurisdiction of this Court and has concealed the aforesaid material facts and the material document. 14. The petitioner has, of course, taken the averment that the location was renewed from 18.04.2011 to 18.05.2011, from 18.05.2011 to 18.06.2011 and then, from 18.06.2011 to 18.07.2011 but such orders of renewal have also not been placed on record. 14. The petitioner has, of course, taken the averment that the location was renewed from 18.04.2011 to 18.05.2011, from 18.05.2011 to 18.06.2011 and then, from 18.06.2011 to 18.07.2011 but such orders of renewal have also not been placed on record. In any case, it is but apparent that the petitioner was having the approval of location upto 18.07.2011 and not beyond. The petitioner was aware of the fact that he would not be able to carry on the business at the earlier provisionally approved location beyond 18.07.2011 and, quite conscious of this position, he made a representation on 19.07.2011 (Annex.4). However, even in this representation, the petitioner did not suggest that the earlier location itself be renewed nor suggested any other location to run the liquor shop but made a cryptic suggestion that the Department may provide him the location at the earliest. The contents of the representation (Annex. 4) read as under:- " fuosnu gS fd mijksDr fo"k; ds vUrxZr esjh nqdku tksu ua0 1 ykblsalh nqxsZ'k nsoM+k S/o psujketh yksds'ku dh vof/k 18-7-2011 lekIr gks pqdh gSA d`I;k dj eq>s vkt fnukad 19-7-2011 dks yksds'ku dh vof/k cMkdj ugha nh xbZ gSA ftlls eq>s nqdku lapkyu esa ck/kk mRiUu gksus dh laHkkouk gSA d`I;k dj eq>s yksds'ku 'kh?kz nsus dk Je djk;sA " 15. It is apparent that the petitioner has consciously avoided to state the facts with clarity and in specific terms at every step; and did never put his case in a forthright manner. 16. During the course of submissions, it has also been suggested that there had been filed a civil suit regarding the location in question and an application for temporary injunction was moved by the private individuals but the prayer for temporary injunction has been declined by the Court concerned. However, for the reasons best known to him, the petitioner has not made any such averment in the petition nor has placed the relevant documents in that regard before the Court. 17. Coming to the submissions as made with regard to Rule 75 of the Rules of 1956, the said Rule reads as under,- "75. Location of shops- (1) A licensee for the retail sale of Country Liquor, Foreign or Indian Made Foreign Liquor or hemp drugs shall have his shop only at a place approved by the District Excise Officer concerned. Coming to the submissions as made with regard to Rule 75 of the Rules of 1956, the said Rule reads as under,- "75. Location of shops- (1) A licensee for the retail sale of Country Liquor, Foreign or Indian Made Foreign Liquor or hemp drugs shall have his shop only at a place approved by the District Excise Officer concerned. (2) A shop for the retail sale of Country Liquors or Foreign or Indian Made Foreign Liquor shall not be located within a distance of 200 metres of Collegiate Educational Institution, Senior Higher Secondary School, Girls schools of any standard, Hospital, Place of Worship or Place of Public Entertainment, a Factory or a Labour or Harijan Colony. (3) A retail shop shall not be shifted from one place to another but if a licensee desires to change already approved location of the shop, same may be allowed by the District Excise Officer concerned on such conditions and fees as determined by the Excise Commissioner from time to time. (4) The District Excise Officer, with sufficient reasons to be recorded in writing shall have the powers to shift a shop from one place to another and no compensation shall be given to the licensee for such shifting of a shop. Provided that the Excise Commissioner may grant relaxation in the above conditions of location of a Liquor shop in exceptional circumstances after recording sufficient reasons in writing for doing so. (5) A shop for the retail sale of country liquor, Foreign liquor and Indian Made Foreign Liquor, beer or Hemp Drugs shall not be located within a distance of 150 meters on both sides from the Centre of National or State High ways, But this condition shall not apply in areas falling within the jurisdiction of Municipal Corporation/Municipal Council/Municipality or where a developed market at a distance specified by Public Works Department is located." 18. It is difficult to appreciate in the fact situation of the present case as to what is sought to be derived out of the Rule aforesaid by the petitioner? Earlier, the provisional approval of the location was extended from time to time by the Excise Department but was not extended beyond 18.07.2011, seemingly for the dispute regarding entitlement of the petitioner to remain in possession. Earlier, the provisional approval of the location was extended from time to time by the Excise Department but was not extended beyond 18.07.2011, seemingly for the dispute regarding entitlement of the petitioner to remain in possession. The Department cannot be considered obliged to compromise on its position while approving the location for conduct of the business in liquor. It appears that the Department was aware about the likelihood of the dispute regarding the location in question and hence, made it clear to the petitioner right at the beginning while approving the location that in case of any complaint or dispute, if the change of location shall be necessary, the licensee would get the changed location approved. The petitioner chose to file this writ petition on 02.08.2011 but has failed to show if at all he made any attempt for getting any other location approved or even made a suggestion for alternative location. The petitioner cannot force the Department to continue with the location in question, particularly in view of the stipulation made right at the beginning. In the given set of facts and circumstances of the case, it cannot be said that the Department has acted illegally or mala fide. On the contrary, the conduct of the petitioner leaves very many things to be answered. 19. It has strenuously been argued that the Department has consciously made the supplies of the liquor to the petitioner under the invoices Annexure-3. During the course of arguments, it has further been submitted that under the invoice dated 24.08.2011, yet further supplies have been made to the petitioner. In the opinion of this Court, such assertions further operate against the petitioner rather than making out a case in his favour. 20. Obviously, such supplies had been made by the Rajasthan State Beverages Corporation Limited at the request of the petitioner and only upon specific payment of fees and charges as stated in the invoices. The said Corporation would not have thrusted the supplies on its own upon the petitioner. The petitioner, who was aware of the fact that the location had not been approved beyond 18.07.2011, had acted rather illegally in seeking and taking the supplies of the liquor from the Beverages Corporation. For that matter, the Department would definitely be free to consider taking appropriate proceedings against the petitioner in accordance with law. The petitioner, who was aware of the fact that the location had not been approved beyond 18.07.2011, had acted rather illegally in seeking and taking the supplies of the liquor from the Beverages Corporation. For that matter, the Department would definitely be free to consider taking appropriate proceedings against the petitioner in accordance with law. Obtaining of such supplies does not, in any event, enure to the benefit of the petitioner and that by itself cannot be said to be approval of the location in dispute. 21. In the totality of the facts and circumstances, this Court is clearly of the view that the petitioner is not entitled to any relief in writ jurisdiction; and for all the reasons foregoing, this writ petition is required to be dismissed with costs.The petition is, therefore, dismissed with costs quantified at Rs. 11,000/- (Rupees Eleven Thousand).Petition dismissed. *******