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ANAND SWAROOP GANGWAR versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Anand Swaroop Gangwar v. State Of U.P. & Others - WRIT TAX No. 1234 of 2005 [2006] RD-AH 5359 (7 March 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED

CIVIL MISC. WRIT PETITION NO.1234 OF 2005

Anand Swaroop Gangwar.         ....Applicant

Versus

State of U.P. and others.      ...Respondents

***************

Hon'ble Rajes Kumar, J.

By means of the present writ petition, petitioner has challenged the order of the Special Secretary, Government of U.P. on the revision petition filed by the petitioner.

Following relief has been claimed :

(i) issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 5.8.2005, 22.4.2005 and 2.4.2005 passed by respondent no.1, 2 and 3 respectively (Annexure no.12, 10 and 9 to this writ petition).

(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to renewed the licence of the petitioner of liquor shop for the year of 2005-2006 within a stipulated period as may be fixed by this Hon'ble Court.

(iii) issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.

(iv) Award the cost of the petition to the petitioner.

The facts stated in the writ petition are that a excise shop situated in Mohammadpur was allotted in the excise year 2002-03 in the name of Smt.Kalawati, wife of Sri Siyaram Bhaskar, resident of Village and Post Raipur, P.S. Kayamganj, district Farrukhabad. The said shop was renewed  for the excise year 2003-04 in the partnership of the petitioner and Smt. Kalawati and renewed licence  has been issued on 07.06.2003. For the excise year 2004-05 petitioner moved renewal application with the affidavit of Smt. Kalawati stating therein that she will not do the business  and her partner wanted to do the business, thus, renewal may be made in favour of the petitioner.  The disputed shop was renewed on the basis of affidavit of Smt. Kalawati in favour of the petitioner for the excise year 2004-05 on 01.04.2004. The renewed licence dated 01.04.2004 for the excise year 2004-05 has been filed as annexure-4 to the writ petition. For the excise year 2005-06 petitioner applied  for the renewal of the licence and submitted Treasury Challan of Rs.2,000/- on 15.03.2005 and Rs.4,000/- for the excise year 2005-06. It is alleged that the petitioner was also advised to deposit the licence fee for the excise year 2005-06 at Rs.91,800/-. Petitioner has been issued a show cause notice on 17.03.2005 from the office of District Excise Officer  to show cause why the renewal application may not be rejected. Thereafter, vide order dated 02.04.2005 renewal application has been rejected by District Excise Officer. Against the order dated 02.04.2005 petitioner filed appeal before the Additional Commissioner. The said appeal was also rejected on 22.04.2005. Being aggrieved by the said order, petitioner filed revision before the State Government.  Revision has been dismissed by the impugned order. Renewal of the licence has been denied on the ground that  the petitioner is not the original licencee of the shop. The original licencee was Smt. Kalawati, wife of Sri Siyaram Bhaskar in the excise year 2002-03 and licence was renewed for the excise year 2003-04 in the partnership of the petitioner and Smt. Kalawati. It is claimed that the licence for the excise year 2004-05 has also been renewed in the partnership with Smt. Kalawati and since the petitioner was not the original licencee, the licence for the excise year 2005-06 in his individual name as sole licencee could not be issued.

The notice were issued to all the respondents. Respondent nos.1 to 4 are represented by the learned Standing Counsel. Counter affidavit and supplementary counter affidavits have been filed on their behalf. Petitioner has also filed the rejoinder affidavit. Despite the notice being served,  respondent no.5 has not put his appearance and has not filed any counter affidavit.

In the counter affidavit, respondent nos.1 to 4 has set out its case as follows:

"That the brief facts of the case are that initially the license for the aforesaid country liquor shop was settled for the year 2002-03 in favour of one Smt. Kalawati W/o Shri Siya Ram R/o 399 Raipur Khas, P.S. Kayamganj District Farrukhabad as per provisions of Rule 7, 8, 9, 10, 11 and 12 of the Uttar Pradesh Excise (Settlement of Licenses for Retail sale of Country Liquor) Rules, 2002 (hereinafter refers to as ''Rules'). The aforesaid licensee run the aforesaid shop for the year 2002-03 in terms government policy for settlement of licenses by renewal for the year 2003-04 she opted for renewal of her license and accordingly license was renewed for the year 2003-04. In themed of the year 2003-04 she admitted the petitioner as partner in her business. For the year 2004-05 the State Government again took policy decision for grant of license by renewal and the license was renewed in favour of Smt. Kalawati indicating the petitioner as partner in the business of Smt. Kalawati. It shall not be out of place to mention that for the aforesaid year 2004-05 the petitioner applied for renewal of license in his individual name mentioning the security etc., deposited by Smt. Kalawati. But since the petitioner was not the licensee, rather Smt. Kalawati was the licensee under the Rules and as such the license was renewed in favour of Smt. Kalawati indicating the petitioner as partner in his business and the petitioner accepted the aforesaid renewal of license and the business was run under the aforesaid renewed license for the year 2004-05. For the year 2005-06 the State Government again took policy decision for settlement of license on retail sale of country liquor by renewal on certain terms and conditions and the petitioner applied for renewal in his individual name mentioning in the application form the security deposit of Smt. Kalawati. Since the petitioner was not the licensee as per scheme of the Rules particularly the provisions of Rule 7, 9 and 10 of the Rules rather Smt. Kalawati was licensee and as such as per policy decision of the State Government the license could have renewed only in favour of the licensee and not in favour of the petitioner and therefore, a notice dated 17.3.2005 (Annexure No.8 to the writ petition) was issued to Smt. Kalawati in view of law settled by this Hon'ble Court vide judgment dated 21.5.2004 passed in Civil Misc. Writ Petition No.585 of 2004 Ram Dulare Tiwari V/s State of U.P. and others."

In the supplementary counter affidavit, filed by Sri Ram Autar, District Excise Officer, Farrukhabad, following has been stated:

"That the licence for the year 2004-2005 was renewed in favour of the original licensee Smt. Kalawati alongwith the petitioner as partner which fact is evident from the copy of the renewal application already filed as Annexure-CA-3 to the counter affidavit filed on 9.9.2005. In the year 2005-06 the petitioner applied for renewal of licence in his individual name and as such under the facts and circumstances already stated in paragraph 3 and its sub-paragraphs of the counter affidavit and paragraphs no.5, 7 and 8 of the counter affidavit.  The licence was not renewed in favour of the petitioner and the bank draft of Rs.91,800/- voluntarily submitted by him towards basic licence fees as defined under Rule 2 (d) of the U.P. Excise (Settlement of Licence for Retail Sale of Country Liquor) Rules 2002 (hereinafter referred to as the Rules) was communicated to be collected from the office of the District Excise Officer, Farrukhabad. This communication for return of the bank draft to the petitioner was made by the District Excise Officer, Farrukhabad vide letter dated 25.06.05, a true copy of the which has already been filed as Annexure-CA-4 to the main counter affidavit.  Licence fees is defined in rule 2 (m) of the Rules. No licence fees for the year 2005-06 was ever paid by the petitioner nor any question to deposit the licence fees ever arose as the petitioner was not granted the licence for the year 2005-06. Neither the basic licence fees nor the licence fee has defined under rule 2 (d) and rule 2 (m) of the Rules was ever realised from the petitioner. Even in respect of the bank draft of Rs.91,800/- voluntarily submitted by the petitioner was directed to be returned to the petitioner and the petitioner was requested to receive the bank draft vide letter of the District Excise Officer, Farrukhabad dated 25.06.05. But the petitioner has not appeared so far before the District Excise Officer, Farrukhabad to received/collect the aforesaid bank draft of Rs.91,800/- and as such the same is still lying in the office of the respondent no.3. It shall not be out of place to mention that the validity period of the said bank draft dated 16.3.2005 has also expired since long and as such the said bank draft cannot been cashed by any body except the petitioner. It is merely for the purpose of litigation that the petitioner has not collected the aforesaid bank draft in spite of communication to him by the District Excise Officer, Farrukhabad vide letter dated 25.6.2005."

Heard learned counsel for the parties. With the consent of both the parties, present writ petition is being disposed of at this stage.

Learned counsel for the petitioner submitted that though the shop was originally allotted to Smt. Kalawati, wife of Sri Siyaram Bhaskar in the excise year 2002-03 but petitioner became co-licencee alongwith Smt. Kalawati in the excise year 2003-04 and in the excise year 2004-05 petitioner applied for the renewal of the licence individually as sole licencee alongwith an affidavit of Smt. Kalawati in which she has shown her willingness not to carry on the business and requested to renew the licence in favour of the petitiioner and the licence for the excise year 2004-05 has been issued in the sole name of the petitioner showing the petitioner as sole licencee. He submitted that once petitioner has been recognised as sole licencee in the excise year 2004-05, petitioner was vested with the right to get the said licence renewed for the excise year 2005-06 as sole licencee and the rejection of the renewal application was unjustified. Respondent nos.1 to 4 have filed counter affidavit.  The case of the respondents in short is that the shop in dispute was originally allotted to Smt. Kalawati in the excise year 2002-03 and for the excise year 2003-04 petitioner has been treated as partner of the licence alongwith licencee, Smt. Kalawati. It is submitted that for the excise year 2004-05 though the application was moved by the petitioner in its individual name but the licencing authority has renewed the licence treating the petitioner as partner alongwith Smt. Kalawati. Copy of the application and the order passed by licencing authority on the said application is filed as annexure CA-3 to the counter affidavit.  It is further submitted that licence could be renewed only in favour of the licencee under U.P. Excise Settlement of Licence for Retail Sale of Foreign Liquor (Excluding Beer and Wine) Rules, 2001 and not in favour of the partner of the original licencee. He submitted that the petitioner was never the original licencee of the shop in past and the renewal of licence for the excise year 2005-06 sought by the petitioner in his individual name can not be accepted and has rightly been rejected.

The question for consideration is whether the petitioner, who joined as partner with Smt. Kalawati, licencee in the excise year  2003-04 acquired the right to get the licence renewed in his individual name in the excise year 2005-06. It is useful to refer the relevant rules:

"Rule 5. The period of licence shall be for an excise year part thereof for which the licence has been granted, licence may be renewed or extended with consent of licensee for another excise year or part thereof on such terms and conditions as may be decided by the State Government."

Rules of the said Rules reads as follows:

"Eligibility conditions for applicant. Eligible applicants for licence of a retail foreign liquor shop must fulfill following conditions namely:

(a) be a citizen of India

or

a partnership firm having not more than two partners and their partners are not partners in more than four such firms. Both being citizens of India. No change in partnership shall be allowed after allotment of shop (s).

Provided that if a licence is held by an individual to the event of his death, his legal heir (s) if otherwise eligible may continue to hold the licence for the remaining period of the licence.

Provided further that if a licence is jointly held by two partners, in the event of death of either of them, the survivor along with the legal heir(s), of deceased, if otherwise eligible, may continue to hold the licence or in case of death of both partners their legal heir(s), if otherwise eligible, may continue to hold the licence. No distinction will be made between the legal liabilities of the two partners who will be jointly and severally responsible.

(b) ...............

(c) ...............

(d) ...............

(e) ...............

(f) If any licensee wants to have partnership in his foreign liquor shop with any person or persons, he shall apply to the licensing authority with the detail of the person or persons with whom he wants partnership. Such partner or partners have to fulfill the conditions laid down in clause (a), (b), and (c) and submit affidavit duly verified by a notary as proof of sub-clauses (ii), (iii), (iv), (v), (vi) and (vii) of clause (d). The licensing authority may allow the person or persons as partner of the shop if sum equal to 1% of the licence fee of the shop is deposited by such person or persons as the case may be in the Government treasury."

The above Rule 5 provides for the renewal of the licence with the consent of the licencee for the another excise year or part thereof.  Rule 8 (f)  provides that if any licencee wants to have partnership in his foreign liquor shop with any person or persons, he shall apply to the licensing authority with the details of the person or persons with whom he wants partnership and the licensing authority may allow the person or persons as partner of the shop on the deposit of a sum equal to 1% of the licence fee. The aforesaid rules came up for consideration before learned Single Judge in Civil Misc. Writ Petition No.585 of 2004, Ram Dularey Tiwari Vs. State of U.P. and others, decided on 21.05.2004. Learned Single Judge of this Court held as follows:

"On a close reading clause (f) of Rule 8 it is clear that the licensing authority may allow the person or persons "as partner of the shop". To my mind these words to indicate that such person may acquire status of partner of the shop alone. Admission of a person as a partner in the business subsequent to the grant of the license will make such person only a partner of the shop and will not make such person a "co-licensee".

It has been further held as follows:

"To my mind clause (f) of Rule 8 is only an enable provision. It enables a licensee to run the business in partnership upon certain terms and conditions as mentioned therein after obtaining the license I his individual name.  The licensing authority may allow such person or persons to be taken as partners of the shop provided the terms and conditions of the said clause are fulfilled. It follows, therefore, that no right in the license is created in favour of such person by taking such person as a partner. A right, if any, is created in favour of such person is qua the licensee under the partnership Act and not in the license."

Full Bench of this Court in the case of Brij Bhushan Chaudhary and others Vs. State of U.P. and others, reported in 2003 UPTC, 53 held as follows:

"The grant of licence being an exclusive privilege of the State Government under the Rules, the State Government has been conferred powers to renew the licence on such terms and conditions, it deems fit and proper.  A bare perusal of the provisions contained in the Rules make it clear that the State Government has the privilege to deal with cases of licenses. The rules, in effect, have to be read in consonance with Section 36-A. In our view, the Rules do not provide for any right on the petitioners to claim renewal as a matter of right or course."

As held above, the petitioner status was only partner of the shop. He could not acquire the status of licencee or co-licencee. The status of licencee or co-licencee can be acquired only under the Rule and can not be provided by the consent of licencee or by the act of any authority. Rule 5 only provides the renewal of the licence in favour of licencee with the consent of such licencee. None of the provisions provides renewal of the licence in favour of the partner. Partner can only has right in the shop qua licencee. If the original licencee has not applied for the renewal of the licence, the petitioner, who was the partner of the shop in the earlier year had no right to get the licence renewed in his individual name. The claim of the petitioner that in the excise year 2004-05 the licence has been granted in his individual name can not be accepted. The perusal of the application and the order passed therein, which is Annexure CA-3 shows that the licence has been renewed with Smt. Kalawati. Even if in the licence the name of the petitioner has only been mentioned in the column of the licencee, petitioner could not be treated as the sole licencee. Licence has to be read alongwith the order passed by the licensing authority. Even assuming that for the excise year 2004-05 in the licence, petitioner's name has been shown as sole licencee, petitioner could not be entitled to seek the renewal in his individual name for the excise year 2005-06, in as much as the petitioner was not the licenee and was only partner of the shop and had no right  of renewal in his individual name under the Rule. Apex Court in the case of Jalandhar Improvement Trust  Vs,. Sampuran Singh, reported in AIR 1999 SC, 1347 held that the principal of estoppel /equitable estoppel can not be invoked to illegal act.

For the reasons stated above, writ petition is devoid of any merit and is liable to be dismissed.

In the result, writ petition is dismissed.

Dt.07.03.2006

R./


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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