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Allahabad High Court · body

2011 DIGILAW 299 (ALL)

RAKESH SINGH v. STATE OF U. P.

2011-02-07

F.I.REBELLO

body2011
JUDGMENT Hon’ble F.I. Rebello, C.J.—There was a difference of opinion between the two learned Judges and, hence, the reference. 2. The learned Judges have not framed the question which is required to be answered. Yatindra Singh, J. was of the opinion that : The site of a model shop can be relocated during an excise year; Model shops upto 15 percent can be created during an excise year; The petitioner cannot object to the creation of new model shops (within the permissible limits) as he got his licence renewed with this knowledge; Model shop can be advertised in middle of the excise year in an area where a shop is in existence; and, therefore, came to the following conclusion : “54. My conclusions are as follows: (a) Subject to Rule 2-A and Rule 5 of the U.P. Number and Location of Excise Shop Rules, 1968, the Collector has got the power to relocate a liquor shop for cogent reasons; (b) A liquor shop can be created during an excise year in terms of policy and advertisement; (c) A model shop can be advertised in the middle of an excise year; (d) In the present case the model shop has been re-located and settled considering the interest of the revenue. There is no malice or fraud in exercising this power.” Rajes Kumar, J., on the other hand, after considering the relevant excise policy and the Rules, was of the opinion that the excise authorities have no power to transfer the model shop from one area to another area or to create a new model shop during the excise year. His conclusions are as under : “89. In view of the above, I am of the view that: (i) Under the excise policy for the year 2010-11 and rules framed thereunder the excise authorities have no power to transfer the Model Shop of one area to another area or to create a new Model Shop during the excise year; (ii) Under the relevant excise rules the creation of new Model Shop/transfer of Model Shop from one area to Shamshabad, Agra is against the excise policy of the State Government for the excise year 2010-2011; (iii) Under the relevant excise rule the newly created Model Shop/transferred Model Shop cannot be advertised during the excise year.” 3. In view of the aforesaid, the question which requires to be answered can be framed as under : “Whether a model shop can be relocated/created during an excise year in an area where another liquor shop is already in existence?” 4. The State Government notified an excise policy on 26.2.2010. This policy covered all kinds of shops including retail shop for sale of Indian Made Foreign Liquor (in short ‘IMFL’), model shops and other shops. Clause 7 (4) of the excise policy, the English translation of which is found in the judgment of Yatindra Singh, J., reads as under : “Creation of Model Shop for the year 2010-11: 15% of model shop can be created by Excise Commissioner. In case there is necessity to grant model shops more than 15% then it can be done with the approval of the State Government. 5. Pursuant to that policy, an advertisement for renewal as well as grant of liquor shops was issued, which is on record. The petitioner had applied for renewal of his licence based on the said advertisement. Clause 1 of the advertisement for the excise year 2010-2011 reads as under : Country made liquor, foreign liquor and model shops can be increased by 15%; and Beer shops can be increased by 25%. 6. A few facts may now be narrated. The petitioner had been granted a licence to run IMFL shop for the excise year 2009-2010 at Shamshabad, Agra. In that excise year, there was no model shop in that area. The State Government came out with an excise policy for renewal and settlement of different categories of liquor shops on 26.2.2010 and an advertisement was also published in the newspapers on 28.2.2010 about the same. The Excise Commissioner also circulated the policy by letter dated 3.3.2010. The petitioner applied for renewal of his IMFL shop licence in the same area as per the terms of the policy. At the relevant time, no model shop had been settled for the said area. An IMFL shop constitutes a different class or category from a model shop. In the excise year 2010-2010, 19 model shops were sanctioned in Agra district. Out of these 19 shops, 16 were settled, however, three shops at Diwani Chauraha, Supermarket Sanjay Place, and Maruti Estate Chauraha remained unsettled. There were other shops also in the State which could not be settled. In the excise year 2010-2010, 19 model shops were sanctioned in Agra district. Out of these 19 shops, 16 were settled, however, three shops at Diwani Chauraha, Supermarket Sanjay Place, and Maruti Estate Chauraha remained unsettled. There were other shops also in the State which could not be settled. The State Government granted approval on 14.4.2010 for settling all unsettled shops in the State on the terms and conditions mentioned therein. The conditions provided in case there were no applicants to reduce the licence fee to attract applicants. The Excise Commissioner also sent a letter on 19.5.2010 granting approval on the same terms. Out of four model shops in district Agra, one shop was settled but three shops, namely, the unsettled shops of excise year 2009-2010, could not be settled despite being advertised on 7.4.2010, 28.4.2010, 12.5.2010, 26.5.2010 and 4.6.2010 even on the reduced licence fee of 75% of the previous year. 7. One of the objects of the State in allowing trade in liquor is collection of revenue and in terms of the procedure, the Collector sent a letter on 17.7.2010 to the Excise Commissioner requesting him to grant approval for transfer of location of the three unsettled shops to Jeewan Mandi, Shamshabad, and Sadar Bazar Chauraha. In anticipation of the approval, an advertised was published for settlement of these model shops on 19.7.2010. The Excise Commissioner granted approval for transfer of location on 21.7.2010. 8. Respondent No. 4 applied for model shop at Shamshabad, Agra, which was settled in his favour on 23.7.2010 and, accordingly, he deposited the requisite amount. 9. Pursuant to the excise policy for the year 2010-2011, the Excise Commissioner, by his letter dated 3.3.2010, had provided the time schedule for the renewal and creation of new shops. The time schedule for acceptance of renewal application was till 16.3.2010 upto 3 O’ Clock. Clause 2 (i) of the Schedule provided the time schedule for the settlement of newly created shops of Country Liquor, Foreign Liquor, Beer Shops and Model Shops for the excise year 2010-2011. It provided that the advertisement must be issued on 16.3.2010 stating therein that the applications will be distributed between 17.3.2010 to 22.3.2010 upto 2 O’ Clock and be deposited by 5 O’ Clock. Clause 2(iv) provided the date of lottery on 25.3.2010 at 11.00 a.m. 10. It provided that the advertisement must be issued on 16.3.2010 stating therein that the applications will be distributed between 17.3.2010 to 22.3.2010 upto 2 O’ Clock and be deposited by 5 O’ Clock. Clause 2(iv) provided the date of lottery on 25.3.2010 at 11.00 a.m. 10. Yatindra Singh, J. had posed to himself the following questions : “(i) Whether there is any right to trade in liquor? (ii) Whether a model shop can be relocated? (iii) Whether a new model shop can be created during an excise year? (iv) Whether creation of a model shop can be objected by an existing licence? (v) Whether a model shop can be advertised and settled during an excise year? And, (vi) Whether there is any malice in fact or fraud in relocating/creating the disputed model shop at Shamshabad, Agra. Rajes Kumar, J. had posed the question as under : “Whether the excise authorities have a power to transfer the model shop of one area to another area or to create a new model shop in the area during the excise year” 11. I now propose to answer the question as formulated. On behalf of the petitioner, it is submitted that the State Government has no right to open/transfer the model shop from Supermarket Sanjay Place to Shamshabad during the currency of the excise year as they had to be settled by 31.3.2010. It is further submitted that the only provision for transfer of excise shops is provided under the U.P. Number and Location of Excise Shop Rules, 1968 (hereinafter referred to as the ‘Rules of 1968’). These Rules provide that the retail shops, which are in operation, can only be shifted during the currency of an excise year for very cogent reasons to be recorded in writing as per Rule 5 (2) of the Rules of 1968. The transfer is also without the consent of the State Government. Though, Rules 1968 may not apply to model shops, however, assuming that they would be applicable to model shops, even then the model shop in dispute was not a model shop in operation and, hence, the provisions of Rule 5 (2) of the Rules 1968 were not applicable for its shifting/transfer. It is next submitted that the excise shop in a particular area is created/opened and settled considering the consumption of liquor in a particular area. It is next submitted that the excise shop in a particular area is created/opened and settled considering the consumption of liquor in a particular area. Merely, because foreign liquor and model shops are existing in a particular area, it does not give right to the excise authorities to open as many shops as they want. Shops are opened/created taking into account the consumption in a particular area. Relying on Condition No. 3, it is pointed out that licence fee for a retail foreign liquor shop is fixed on the basis of consumption of foreign liquor in the previous excise year. Thus, the licence fee is directly dependent on the consumption of foreign liquor and the licence fee is fixed taking into account the consumption of foreign liquor. Thus, in the area of operation of the petitioner’s shop, no new licence could have been granted during the currency of the excise year. It is also submitted that the dispute is in respect of transfer of a model shop and not in respect of creation of a model shop. Only if a model shop is created at the commencement of the excise year after proper notice, then no foreign liquor or model shop licensee can have any grievance since they will be free not to apply for a license. On the other hand, on behalf of the revenue, relying on the Act, Rules, policy and the advertisement, it is submitted that the right to trade in liquor is the exclusive privilege of the State Government. The State is free to part with this privilege for a consideration. In order to part with the privilege, the State does it relying on the Act, Rules and policy. The IMFL licence granted in favour of the petitioner constitutes a separate and distinct class from a model shop granted to respondent No. 4. A perusal of the Act and the Rules would show that there is no prohibition in settling IMFL shop in a place where a model shop exists or vice versa. The determination of the shops is fully within the jurisdiction of the authorities, who have been conferred the power under the Act and the Rules. None of the Rules sets out that in the area of operation of an IMFL licence, it is not open to the State to grant a model shop. The determination of the shops is fully within the jurisdiction of the authorities, who have been conferred the power under the Act and the Rules. None of the Rules sets out that in the area of operation of an IMFL licence, it is not open to the State to grant a model shop. On the contrary, on a correct reading of various Rules, it would be clear that in the same area, there can be an IMFL shop and model shop. The State, in the instant case, has followed the procedure for grant of the model shop in favour of respondent No. 4. The petition, therefore, is de void of merit and, consequently, ought to be dismissed. 12. To answer the issue, we may refer, firstly, to the provisions of the Act and the Rules. The Act is called the United Provinces Excise Act, 1910 (hereinafter referred to as the ‘Act’). The relevant provisions for consideration are Section 24-A and Section 24-B, which read as under : “24-A. Grant of exclusive or other privilege in respect of foreign liquor— (1) Subject to the provisions of Section 31, the Excise Commissioner may grant to any person a licence or licences for the exclusive or other privilege, (a) of manufacturing or of supply by wholesale, or of both; or (b) of manufacturing or of supplying by wholesale, or of both and selling any retail; or; (c) of selling by wholesale (to wholesale or retail vendors); or (d) of selling by retail at shops (for consumptions “off” the premises only; any foreign liquor in any locality. (2) The grant of licence or licences under clause (d) of sub-section (1) in relation to any locality shall be without prejudice to the grant of licences for the retail sale of foreign liquor in the same locality in hotels and restaurants for consumption on their premises. (3) Where more licences than one are proposed to be granted under clause (d) of sub-section (1) in relation to any locality for the same period, advance intimation of the proposal shall be given to the prospective applicant for every such licence. (4) ........................... (3) Where more licences than one are proposed to be granted under clause (d) of sub-section (1) in relation to any locality for the same period, advance intimation of the proposal shall be given to the prospective applicant for every such licence. (4) ........................... 24-B. Removal of doubts.—For the removal of doubts, it is hereby declared— (a) that the State Government has an exclusive right or privilege of manufacture and sale of country liquor and foreign liquor; (b) that the amount described as licence fee in clause (c) of Section 41 is in its essence the rental or consideration for the grant of such right or privilege by the State Government; (c) that the Excise Commissioner as the head of the Excise Department of the Sate shall be deemed, while determining or realising such fee, to act and on behalf of the State Government.” Section 41 of the Act is also relevant, which reads as under : “41. Power of Excise Commissioner to make rules.—(1) The Excise Commissioner subject to the previous sanction of the State Government may make Rules— (a) ........................... (b) ........................... (c) prescribing the scale of fees or manner of fixing the fees payable for any licence, permit or pass including any consideration for the grant of any exclusive or other privilege granted under Section 24 of Section 24-A or for storing of any intoxicant; Provided that nothing contained in this clause shall be construed to prevent the State Government from levying by notification made from time to time, any fee, including vend fee, as part of consideration for the granting of any such privilege. Explanation.—(1) Fees may be prescribed under this sub-clause at different classes of licences, permits, passes of storage and for different areas. (2) ...........................” 13. The next relevant provision is the Uttar Pradesh Number and Location of Excise Shops Rules, 1968. Under Rule 2 (a), ‘shop’ has been defined to mean ‘a retail shop for vend of country liquor, foreign liquor, beer and Bhang’. To better understand the issue, we may now gainfully reproduce Rule 2A, Rule 3, Rule 5 and Rule 6 of the Rules of 1968, which read as under : “2A. Under Rule 2 (a), ‘shop’ has been defined to mean ‘a retail shop for vend of country liquor, foreign liquor, beer and Bhang’. To better understand the issue, we may now gainfully reproduce Rule 2A, Rule 3, Rule 5 and Rule 6 of the Rules of 1968, which read as under : “2A. Determination of the distribution and location of shops and sub-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 shops and sub-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. 3. Principles to be observed in fixing the number of shops and sub-shops.—In determining the number of shops and sub-shops to be licensed the Collector shall, as far as possible, be guided by the principle that no more shops or sub-shops shall be allowed than are necessary to meet the normal requirements of the consuming classes. 4. ... ... 5. The following principles shall be observed in determining the location and the sites for shops/sub-shops: (1) The location and the sites of all shops and sub-shops shall be decided by the Collector. (2) No change in the site of any shop or -sub-shop shall, except for very cogent reasons to be recorded in writing, shall be permitted during the currency of a settlement. The location of all shops and sub-shops shall be clearly defined at settlement in order to prevent any shifting of sites. (3) The sites of all shops and sub-shops shall be selected with regard to police control especially in case of cities, towns and large village and traffic regulation needs. ........................... (6) In the case of the existing shops, periodical enquiry shall be made as to whether their position is in conformity with policy under these rules. If their location is found to be objectionable, such steps as are possible, shall be taken, to select a more suitable site and to arrange for its removal. (7) ........................... 6. The sub-shops shall remain in operation for the period up to March 31 of the excise year in which such sub-shop is opened on the payment of licence fees in advance as may be determined by the Excise Commissioner from time to time.” 14. (7) ........................... 6. The sub-shops shall remain in operation for the period up to March 31 of the excise year in which such sub-shop is opened on the payment of licence fees in advance as may be determined by the Excise Commissioner from time to time.” 14. Also relevant are the Uttar Pradesh Excise Settlement of Licences for Retail Sale of Foreign Liquor (Excluding Beer and Wine) Rules, 2001 (in short ‘Rules of 2001’). ‘Licence fee’ is defined under Section 2(g), which reads as under : “2. Definitions.—In these rules, unless there is anything repugnant in the subject or context,— (a) ........................... (g) “Licence fee” means a sum fixed in consideration of the grant of the Licence for exclusive privilege for selling of foreign liquor in a retail shop under Section 24-A of the Act as fixed by the Excise Commissioner in consultation with the State Government from time to time for the whole excise year or part thereof.” The next relevant Rule is Rule 4, which reads as under : “4. Power of fix the number and location of retail shops.—Number of shops shall be fixed by the licensing authority under general or specific instructions issued by the State Government or by the Excise Commissioner from time to time. Location of shop shall be as per the provisions of “Uttar Pradesh Number and Location of Excise Shop Rules, 1968” as amended form time time : Provided that the State Government or Excise Commissioner may create new shops during an excise year on demand of the Licencing Authority of the district.” In the same Rules, i.e. Rules of 2001, under the heading ‘F.L.-5D’, the Form has been given for grant of Licence for the Retail Sale of Foreign Liquor (Except Beer) (including Wine & LAB) in sealed Bottles for consumption “off” the premises. In the General and Special Conditions contained in Rules of 2001, Condition No. 4 would be relevant, which reads as under : “4. Sale at the licenced premises shall be made only for consumption “off” the premises. No liquor shall be consumed/drunk “on” the premises.” 15. The other relevant Rules are the Uttar Pradesh Excise (Settlement of Licences for Model Shop of Foreign Liquor) Rules, 2003 (hereinafter referred to as the ‘Rules of 2003’). Sale at the licenced premises shall be made only for consumption “off” the premises. No liquor shall be consumed/drunk “on” the premises.” 15. The other relevant Rules are the Uttar Pradesh Excise (Settlement of Licences for Model Shop of Foreign Liquor) Rules, 2003 (hereinafter referred to as the ‘Rules of 2003’). ‘Licence fee’ is defined under Section 2(g) to mean ‘a sum fixed in consideration of the grant of the licence for exclusive privilege for selling of foreign liquor in a model shop and for giving facility of bar, additional licence fee fixed from time to time’. Under Rule 3 (c) of the Rules of 2003, the power is conferred on the Excise Commissioner in consultation with the State Government to fix the licence fee from time to time under Section 24-A of the Act for the whole excise year or part thereof. The proviso to said Rule sets out that if such shop is settled after 30th of September, the licence fee shall be half of the amount so fixed as licence fee for the year. Rule 4 of the Rules of 2003, as it existed before its amendment and the Rule as now existing, read as under : Rule 5 of the Rules of 2003 sets out that the premises of model shop shall be in the commercial area of the city and in other areas which have developed like Local Bodies Area; provided that other requirements for model shops are fulfilled. Rule 6 thereof provides that the period of licence shall be for an excise year or part thereof. The provision of Rule 9 of the Rules of 2003, which are relevant for my discussion, reads as under : “9. Selection of licensee.—The Collector Licensing Authority shall identify areas for model shops and after prior approval from Excise Commissioner invite applications after giving wide publicity through newspapers having circulation in the State and such other means which he may deem fit. ...” In Schedule B appended to Rules of 2003, under the heading F.L.-4 (A), are prescribed the general and special conditions for grant of licence for the retail sale of foreign liquor for consumption “on” and “off” the premises. Condition No. 4, which is relevant, reads as under : “4. Sale at the licensed premises shall be made for consumption “off” and “on” the premises.” 16. Condition No. 4, which is relevant, reads as under : “4. Sale at the licensed premises shall be made for consumption “off” and “on” the premises.” 16. Considering the provisions of the Act and the Rules, referred to above, it would be clear that there is a marked distinction between an IMFL licence and a model shop. They are governed by different Rules. A person holding an IMFL shop can only sell liquor for consumption “off” the premises whereas insofar as model shop is concerned, sale can be both for consumption “off” and “on” the premises. Rule 9 of the Rules of 2003, confers power on the Collector, Licensing Authority to identify the areas for model shops and after prior approval from the Excise Commissioner, to invite applications after giving wide publicity through newspapers having circulation in the State and such other means which he may deem fit. Under the Rules of 2001, areas for location of IMFL shops has to be done under the Rules of 1968. Thus, it would be clear that Rules of 1968 apply for selection and determination of the location of IMFL shops, whereas for model shops it is Rule 9 of the Rules of 2003 which apply. It may be accidental that the authority to identify the locations in both cases is the Collector but under different Rules. 17. In the policy of the State Government for the excise year 2010-2011 and the advertisement which was issued for the excise year 2010-2011, it is clearly set out that 15 percent of model shops can be created by the Excise Commissioner and in the event, there was necessity for grant model shops more than 15 percent, then it can be done with the approval of the State Government. This, if read with the Rules of 2003 which permits settling of a shop after 30th September for which license fee shall be half of the amount so fixed, would indicate that the shops can be created and settled even after the commencement of the excise year. The power to create would include ancillary power to relocate. 18. We then consider the Rules of 1968 to find out whether a shop could be relocated. The power to create would include ancillary power to relocate. 18. We then consider the Rules of 1968 to find out whether a shop could be relocated. Rule 5 (2) of the Rules of 1968 itself would indicate that though the location of all shops has to be defined at settlement so as to prevent any shifting of sites but, for cogent reasons to be recorded in writing, change of the site is permitted during the currency of a settlement. Further under Rule 5(6), it is provided that if the authority comes to the conclusion that an existing shop is not in conformity with the policy and the location is found to be objectionable, such steps as are possible shall be taken to select a more suitable site and to arrange for its removal. As the licence fee is charged for the excise year, the period of settlement would be the period of the excise year. 19. Having considered the scheme of the Rules, we may now proceed to consider some of the judgments referred to at the bar. On behalf of the petitioner, learned counsel has drawn my attention, amongst others, to the judgment in the case of State of U.P. and others v. K.P. Sui and another, AIR 1977 All 279 , for the proposition that a direction cannot be issued by an authority under the Act or the Rules, which is not in conformity with the Act and the Rules and that the terms and conditions of a licence can only be prescribed by making rules under Section 41. Reference was next made to the judgment in Jawahar Lal Jaiswal v. State of Uttar Pradesh and others, AIR 1981 All 292 (FB), for the proposition that directions issued must be under the excise laws or as contained in the Rules lawfully made under the excise laws. There can be no quarrel with the above propositions, however, the question is whether the excise policy or the advertisement is violative of any of the provisions of the Act or the Rules. 20. We may now refer to some of the judgments relied upon on behalf of the revenue. Reliance is placed on an unreported judgment of this Court in the case of Anil Kumar Tyagi v. State of U.P. and others, Civil Misc. Writ Petition No. 1169 of 2003, decided on 17.10.2003. 20. We may now refer to some of the judgments relied upon on behalf of the revenue. Reliance is placed on an unreported judgment of this Court in the case of Anil Kumar Tyagi v. State of U.P. and others, Civil Misc. Writ Petition No. 1169 of 2003, decided on 17.10.2003. The issue for consideration before the learned Division Bench was ‘whether the petitioner, who had been granted a licence for exclusive privilege for the retail sale of foreign liquor, could contend that no additional licence could be granted in that area? The learned Division Bench while considering the issue in the context of the earlier Rules, noted that the State Government had decided that the licence be renewed, keeping the privilege with the Commissioner/State that during the period, any number of additional shops could be opened in the area as per need or requirement. In the said judgment, reference was also made to the judgment of the Supreme Court in State of Punjab v. M/s. Dial Chand Gian CHAND & Co., (1983) 2 SCC 503 . The learned Bench then proceeded to hold that considering the policy and the advertisement, the petitioner was aware that more than one shop could be granted for the same period, i.e. same excise year in any locality and, therefore, the petitioner could not challenge it on the ground that he would suffer financial loss or loss of his business. The petitioner therein was the holder of F.L.5D licence and applications were invited for FL4 (a) licence. 21. In the instant case, we have already referred to the Rules involved herein. F.L.-4 (A) pertains to a model shop and F.L.-5(d) pertains to IMFL retail shop. The ratio decidendi of Dial Chand Gian CHAND & Co. (supra) was considered by the Supreme Court in the case of State of Punjab and another v. M/s. Devans Modern Brewaries Ltd. and another, JT 2003 (10) SC 485, wherein, in the majority judgment of Dr. F.L.-4 (A) pertains to a model shop and F.L.-5(d) pertains to IMFL retail shop. The ratio decidendi of Dial Chand Gian CHAND & Co. (supra) was considered by the Supreme Court in the case of State of Punjab and another v. M/s. Devans Modern Brewaries Ltd. and another, JT 2003 (10) SC 485, wherein, in the majority judgment of Dr. A.R. Lakshmanan, J., it was culled out in paragraph 336.3 as under : “336.3 In the case of State of Punjab v. M/s Dial Chand Gian Chand and Company (supra), this Court held that a licensee who participates in the auction voluntarily and with full knowledge is bound by the bargain and the writ petition filed under Article 226 by such licensee in an attempt to dictate terms of the licence without paying the licence fee must fail. The Highest bidder after acceptance of his bid cannot challenge the second auction on ground of adverse effect on his business.” 22. The law as settled is that there is no fundamental right to trade in liquor, though the minority opinion in M/s. Devans Modern Brewaries Ltd. and another (supra) has taken a view that right to trade in liquor would be a part of the fundamental right of carrying on trade or business. This Court is, however, bound by the majority view. The other aspect of the matter is that the object of excise laws is two - fold viz., to raise revenue and regulate the trade in liquor which is noxious substance. (See Rajendra Sigh v. State of Madhya Pradesh and others, AIR 1996 SC 2736 ). It is also settled law that right, which a licensee has, is to seek the enforcement of the terms of the contract which is statutory in character and the statutory provisions governing the contract. 23. It would be clear from a reading of Section 24-A of the Act, that the privilege of selling by retail at shops for consumptions “off” the premises in relation to any locality is qualified by sub-section (3) under which the only requirement is that if more than one licence is proposed to be granted under Clause (d) of sub-section (1) in relation to any locality for the same period, advance intimation of the proposal shall be given to the prospective applicant for every such licence. The policy of the State and the advertisement would clearly reflect that it was notified that more than one retail shop licence would be granted. 24. Under the Rules of 1968, referred to earlier, as we have noted, for cogent reasons to be recorded in writing, a shop can be shifted from one site to another site. Under Rule 3 in fixing the number of shops, all that has to be considered is the normal requirement of the consuming classes. Under the proviso to Rule 4 of the Rules of 2001, it is provided that even if the number of shops is fixed, there is power in the State Government or Excise Commissioner to create new shops during an excise year on demand of the Licensing Authority of the district. A licensee, who does not desire to carry on business, can surrender his licence. Under the Rules of 2003, we have noted Rule 4, which was existing earlier and as substituted by Rules of 2006 and 2008. Under Rule 4, as it existed earlier, applications would have been invited in the beginning of the excise year for model shops. Subsequent to its amendment, applications can be invited from ‘time to time’ with the approval of the State Government after giving wide publicity through daily news papers having circulation in that area. This would indicate that applications can be invited not only at the beginning of the excise year but also in the course of the excise year. This coupled with Rule 9 of the Rules of 2003 conferring power on the Collector-Licensing Authority, to identify areas for model shop, must necessarily mean that in the course of the excise year, other areas can also be notified for model shop. If a new model shop can be set up in a place where there is an existing IMFL retail shop without notice to such holder of the licence, there is no difficulty in holding that a model shop can also be transferred. 25. In my opinion, on a construction of these Rules, it would be clear that identifying areas and grant of licences of model shop and IMFL shop are governed by two distinct sets of Rules. The Rules of 2001 do not contain any provision that the model shop cannot be set up in an area where an IMFL licence has been granted. The Rules of 2001 do not contain any provision that the model shop cannot be set up in an area where an IMFL licence has been granted. The licences are also different, as the IMFL licence is for consumption ‘off’ the premises, whereas a model shop licence is both ‘off’ and ‘on’ the premises. The only test if at all to be applied is the number of consumers. The only other requirement in case of IMFL shop as can be seen under Section 24-A (3), is that in case of sale by retail at shops for consumption ‘off’ the premises, advance intimation of new proposal has to be given to the prospective applicants. The Section does not deal with such notice in case of model shop, for consumption ‘off’ the premises and and ‘on’ the premises. 26. Considering that the object of the State in parting with its exclusive privilege in dealing with liquor, which is a trade, res extra commercium, is to raise the revenue, it will not be possible to hold, considering the Excise Act and the Rules as discussed, that there is an embargo on the State parting with its privilege to grant different licences in the same area, where a shop is already in existence, even though IMFL retail shop and a model shop, to an extent, may cover the same product, namely, Indian Made Foreign Liquor. 27. Once I so hold, there is no bar in transferring or setting up of a new shop in a locality where there is an existing IMFL shop. In view of the view as stated, I am in agreement with the view taken by Yatindra Singh, J. 28. In view of what has been stated above, the petition fails and is hereby dismissed. All interim orders stand vacated. —————