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2017 DIGILAW 924 (ALL)

NIRMALA DEVI v. STATE OF U. P.

2017-04-04

ASHWANI KUMAR MISHRA

body2017
JUDGMENT Hon’ble Ashwani Kumar Mishra, J.—Dispute in the present petition relates to a licence issued in form FL-6 for retail vend of foreign liquor to respondent No. 5, under the directions issued by the appellate authority, which has been confirmed with dismissal of revision filed against it. 2. It transpires that a foreign liquor bar was being operated at Hotel President by one late Durga Prasad Yadav. The licencee Durga Prasad Yadav died on 16.3.2013. Wife of the licencee, who is petitioner herein, moved an application for licence to be continued in her name in terms of clause (1) of the Government order dated 19.7.1988. Upon such application, other heirs i.e. son of late Durga Prasad Yadav, except respondent No. 5, submitted no objection before the authority in the matter of continuance of licence in the name of petitioner. The licencing authority i.e. Collector, Gorakhpur, considered the issue after an objection was filed by respondent No. 5. The Collector noticed that there was a factual dispute between the petitioner and respondent No. 5 with regard to their right to manage the premises in which situated the bar. Noticing such dispute, Collector rejected petitioner’s application. The Collector also took note of the fact that a civil suit with regard to right of respective parties to manage the premises was also pending. During pendency of suit, it appears that an injunction order came to be granted in favour of respondent No. 5 and it is admitted that he was managing the premises in which situated the bar. A First Appeal From Order was filed before this Court against the order of injunction, in which an order of stay was granted, and issue was referred to Mediation Centre. Aggrieved by this order dated 16.7.2015, passed in F.A.F.O. No. 1251 of 2014, respondent No. 5 filed a Special Leave to Appeal (Civil) No. 21216 of 2015, before the Apex Court, wherein on 3.8.2015 the interim order of High Court has been stayed. As a consequence, injunction order passed by the trial Court stands revived which authorized respondent No. 5 to manage the hotel. As a consequence, injunction order passed by the trial Court stands revived which authorized respondent No. 5 to manage the hotel. Appellate authority, in such circumstances, came to a conclusion that bar is to be operated with reference to the premises itself, and once respondent No. 5 was held entitled to manage the premises, it would be appropriate for protection of public revenue to allow licence to be continued in the name of respondent No. 5. It is this order passed in appeal, which got challenged in revision, rejected vide order dated 29.12.2016. Aggrieved by the two orders, the petitioner has filed the present writ petition 3. Learned counsel for the petitioner submits that licence was granted to the husband of the present petitioner and as no objection by other members of the partnership firm was filed, as such, licence is liable to be continued in the name of present petitioner. Learned counsel submits that by virtue of provisions contained under Section 78 of the United Provinces Excise Act, 1910, the civil suit itself is barred and therefore any order passed therein would have no consequence. It is stated that even if respondent No. 5 is managing the premises, the authorities ought to have allowed licence in favour of present petitioner and she could run the bar from any other premises. 4. Sri Neeraj Sharma, learned counsel appearing for the respondent No. 5 submits that licence under form FL-6 is issued with reference to the premises and once it was established on record that lawful authority to manage the premises was with respondent No. 5, the appellate authority rightly continued licence in favour of respondent No. 5 subject to further order of Civil Court and no exception can be taken to it. 5. I have heard learned counsel for the parties and have perused the materials brought on record. 6. Dispute herein pertains to continuance of licence in form FL-6, meant to vend foreign liquor in bar. Form FL-6 is a licence for retail vend of foreign liquor, other than denatured spirit, for consumption in the premises to residents or travellers in unstarred hotels or 1, 2 and 3 starred hotels. Rule 8 is the relevant rule relating to vend of foreign liquor. Form FL-6 is a licence for retail vend of foreign liquor, other than denatured spirit, for consumption in the premises to residents or travellers in unstarred hotels or 1, 2 and 3 starred hotels. Rule 8 is the relevant rule relating to vend of foreign liquor. Sub-rule (2) of Rule 8 provides that hotel and staging of dak-bungalow licence in form FL-6 may be granted with the previous sanction of Excise Commissioner to the proprietors or lessees of premises, which are bona fide places for lodging and entertainment of travellers and the persons in-charge of staging or dak-bungalows. Language of the rule as well as form FL-6 is categorical, inasmuch as licence is granted to retail vend of foreign liquor in a particular premises. The licence be issued to the proprietors or lessees of the premises. Foreign liquor retail vend licence is issued in respect of the premises, to the person who is its proprietor or lessee. Special conditions attached to form FL-6 further clarifies the position stating that sale shall be made only at the licenced premises, and liquor can be consumed at such premises only. Learned counsel for the petitioner has referred to and relied upon Section 78 of the United Provinces Excise Act, 1910, which reads as under : “78. Bar of certain suits.—(1) No suit shall lie in any Civil Court against the [Government] or any officer or person for damages for any act in good faith done, or ordered to be done, in pursuance of this Act or of any other law for the time being in force relating to the excise revenue. (2) Limitation of suits. - No Civil Court shall try any suit which may lawfully be brought against the [Government] in respect of anything done, or alleged to have been done, in pursuance of this Act, unless the suit is instituted within six months after the date of the act complained of.” Although a suit would not lie in any Civil Court against the Government or any officer or person for damages or for any act upon failure but this provision would have no applicability in a case where dispute arise inter se between two individuals regarding their respective claim/right to manage the premises. 7. It is not in dispute that licence was granted to run a bar at Hotel President in form FL-6. 7. It is not in dispute that licence was granted to run a bar at Hotel President in form FL-6. There is a civil suit pending after the death of previous licencee with regard to respective right of the parties to manage the hotel premises. Civil Court admittedly had granted injunction in favour of respondent No. 5. Although grant of injunction was stayed by this Court, but in view of the subsequent order passed by the Hon’ble Supreme Court, the injunction order has revived and continues to exist in favour of respondent No. 5. In such circumstances, the person legally entitled to manage the premises is respondent No. 5, unless any order to the contrary is passed by the Civil Court. The licence to run bar is granted in favour of respondent No. 5 to secure protection of State revenue. In such circumstances, if the appellate authority has protected the interest of revenue by directing bar to be run through the person, who is entitled to manage the hotel, by virtue of injunction order passed by the Civil Court, no exception can be taken to it. 8. The dominant criteria for the purposes of grant of licence is the premises, and not the person under the statutory scheme. It is the premises at which foreign liquor could be sold and consumed, and licence is issued to the person lawfully entitled to manage such premises. The argument of petitioner that licence be granted to her and she would operate it from any other premises proceeds on an erroneous construction of statutory scheme. Since dominant criteria is the premises, as such, decision taken by the appellate authority to allow person entitled to manage the premises to run bar, therefore, calls for no interference. Such licence, however, would be subject to the ultimate orders passed by the appropriate Court in pending suit. 9. Accordingly, writ petition lacks merit and is dismissed.