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2018 DIGILAW 203 (MP)

Gwalior Distilleries Pvt. Ltd. v. State of M. P.

2018-02-20

VIVEK AGARWAL

body2018
ORDER 1. Petitioner has filed this writ petition being aggrieved by the inaction on the part of respondent No. 2 in not considering the fact that the petitioner is holder of a D1 licence and, therefore, mandatorily a Letter of Intent has to be issued by respondent No. 2 in favour of the petitioner, which ultimately leads to issuance of CS1-B licence for bottling. 2. Petitioner through this writ petition after submitting that the application for issuance of Letter of Intent after completion of all the necessary formalities is pending since November, 2017, has prayed for the relief that for submission of tender CS1-A and CS1-B licences are necessary and the last date for submission of tender under the policy dated 3.2.2018 is 20.2.2018 and in most humble submission of the petitioner, the respondents may kindly be directed to issue CS1-A and CS1-B licences to the petitioner prior to 20.2.2018 as the same are pending with respondent No. 1. 3. In view of such prayer, it is submitted by the learned counsel for the petitioner that in fact, in terms of the provisions contained in rule 3-B (3) of the M.P. Country Spirit Rules, 1995 (for short rules), it is mandatory for the Excise Commissioner to have issued a Letter of Intent as the applicant-petitioner is in possession of a D-1 licence. He submits that once this Letter of Intent is issued, which is a precursor to issuance of licence in the form of CS1-B for bottling of the country liquor, he would have been entitled to participate in the tender, for which today is the last date. 4. Rule 3-B (3) of the M.P. Country Spirit Rules, 1995 reads as under : “(3) The State Government may, if satisfied about the bona fides of the proposed scheme of the applicant, accord sanction and issue a “Letter of Intent” which shall be valid for six months from the date of communication, unless its validity is extended. If the applicant is a D-1 licence holder of Madhya Pradesh, the Letter of Intent shall be issued by the Excise Commissioner, Madhya Pradesh.” 5. If the applicant is a D-1 licence holder of Madhya Pradesh, the Letter of Intent shall be issued by the Excise Commissioner, Madhya Pradesh.” 5. Learned counsel for the petitioner referring to such provisions of the Rules has placed reliance on a Division Bench decision of this Court dated 15.2.2018 passed at Principal Seat in Writ Petition No. 3729/2018 : DCR Distillery Pvt. Ltd. v. State of Madhya Pradesh and Another and WP No. 3738/2018 : Gulshan Polyols Ltd. v. State of Madhya Pradesh and Another and submits that the ratio of the judgment has been culled out in para 19, which is not applicable to the facts and circumstances of the present case and in terms of sub-rule (3) of rule 3-B, it was mandatory for the Excise Commissioner to have issued a Letter of Intent because there is use of word “shall” in the latter part of sub-rule (3). 6. On the other hand, the learned Additional Advocate General submits that the judgment in hand passed by the Division Bench on 15.2.2018 is squarely applicable to the facts and circumstances of the case and he has drawn attention to the provisions contained in rule 3-A of the Rules, which deals with “Manufacture of Country Spirit for Export.” By placing reliance on sub-rule (2) of rule 3-A of the rules, he submits that the Country Spirit shall be manufactured and bottled in a separate bottling hall within the distillery premises as mentioned in the Schedule appended to CS1-A licence. Therefore, placing reliance on this provision, he submits that the petitioner's contention that since he is holder of a D-1 licence and bottling is to be established in the same distillery premises, therefore, it was mandatory for the Excise Commissioner to have issued a Letter of Intent, is not correct. He prays for dismissal of the writ petition in the light of the ratio of the law laid down in the case of DCR Distillery Pvt. Ltd. (supra). 7. He prays for dismissal of the writ petition in the light of the ratio of the law laid down in the case of DCR Distillery Pvt. Ltd. (supra). 7. As far as the petitioner's first contention that since the petitioner is holder of a D-1 licence, therefore, it was mandatory for the Excise Commissioner to have issued a Letter of Intent is concerned, this Court is of the opinion that it is not mandatory for the Excise Commissioner to issue a Letter of Intent to a holder of D-1 licence inasmuch as the word “shall” has been used for the authority and not for the purpose of issuance of a Letter of Intent. In fact, the meaning and import of sub-rule (3) of rule 3-B of the Rules is that in case of a D-1 licence holder, the authority for issuance of a Letter of Intent will be Excise Commissioner instead of the State Government. However, the other terms and conditions of sub-rule (3), i.e., satisfaction of the authority about the bonafides of the proposed scheme of the applicant, are to be examined by the authority before any Letter of Intent is to be issued. Therefore, similarly, the petitioner holding a D-1 licence does not automatically make eligible for issuance of a Letter of Intent in the opinion of the Excise Commissioner in terms of the provisions contained in Rule 3-B of the rules. 8. As far as the petitioner's contention that if such Letter of Intent would have been issued, they would have been eligible for participating in the tender process is concerned, that is also not correct inasmuch as it is apparent from prayer Clause (ii) that for submission of tender the necessary condition is that an intending tenderer must have CS1-A and CS1-B licence. Thus, even if a Letter of Intent is issued, the petitioner would not have become eligible to participate in the tender without possessing CS1-A and CS1-B licence. 9. In para 5 of the impugned judgment of the Division Bench, the facts were that the license in form CS1-B includes licence of manufacture; bottling and for wholesale supply. 10. In para 6, it was submitted on behalf of the petitioner that the State may be mandated to grant a Letter of Intent to the petitioner in terms of sub-rule (3) of Rule 3-B so that the petitioner may make the bottle plant operational forthwith. 10. In para 6, it was submitted on behalf of the petitioner that the State may be mandated to grant a Letter of Intent to the petitioner in terms of sub-rule (3) of Rule 3-B so that the petitioner may make the bottle plant operational forthwith. 11. This has been inferred in para 19 of the impugned judgment, wherein the Division Bench has been pleased to hold that the argument that license in Form CS1-B is a formality in case a distiller has a license in form D-1 is again does not merit any further consideration. License in form D-1 is relevant only for the purpose of grant of Letter of Intent. The other condition in rule 3-B are still to be complied with. It is the first step which may not be necessary for a manufacturer who has a license in Form D-1, but the other conditions contained in statutory rule 3-B are required to be satisfied by the distiller, so as to be granted licence to bottle the country made liquor. 12. In para 21, the prayer of the petitioner to direct the respondents-State to consider the grant of license in Form CS1-B in a time bound manner has been rejected and it has been held that the license in Form CS1-B is to be granted after approval or no objection is granted by different bodies like Local Municipal Bodies, Town and Country Planning Department, Madhya Pradesh Pollution Control Board or any other office, therefore, there cannot be any direction to grant license to the petitioner de-hors the compliance of statutory requirement more so in the absence of such bodies in the writ petitions. 13. In the present case though the learned counsel for the petitioner has orally submitted that he has NOCs from all the concerned bodies, but the fact of the matter is that those NOCs are to be examined by respondent No. 2 before issuance of a Letter of Intent and in such a matter, there cannot be any direction to the Excise Commissioner, Moti Mahal to expedite the issuance of CS1-A and CS1-B licence as has been sought by the petitioner in the Relief Clause (ii) in the light of the judgment of the Division Bench of this Court. 14. 14. In view of such facts, this petition seeking such direction for issuance of licence is not maintainable and no such directions can be issued in favour of the petitioner. Thus, the petition fails and is dismissed.