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SARVESH KUMAR versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Sarvesh Kumar v. State Of U.P. & Others - WRIT TAX No. 1189 of 2005 [2005] RD-AH 5731 (14 November 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                                                                                                                   RESERVED

CIVIL MISC. WRIT PETITION NO.1189 OF 2005

Sarvesh Kumar. ....Petitioner

Versus

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

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

Hon'ble Rajes Kumar, J.

By means of the present writ petition under Article 226 of the Constitution of India, petitioner has challenged the order dated 27.07.2005 passed by Special Secretary , Government of U.P. in revision, filed by Gyan Prakash, respondent no.5.

Brief facts of the case are that the petitioner is a licensee of the I.M.F.L. shop situated at Ward No.12 in area of Sarai Meera Nagar Palika, district Kannauj for the period 2005-06. The petitioner has become the licensee of above shop on account of his participation in the lottery held on 24.03.2005 for the first time. Respondent nos.5 and 6 were the licensee for the year 2004-05 in respect of the shop situated at Ward No.12, Sarai Meera Bi-pass. In the year 2004-05 they opened the shop at Bajrang Hotel. In the year 2005-06, respondent nos.5 and 6 applied for the renewal of the licence. The last date for the renewal was 17.03.2005. On 16.03.2005, respondent nos.5 and 6 moved an application before the District Excise Officer for the shifting of their shop at the house of Shri Anil Kumar Vaishya in Sarai Meera, Ward No.12. In the application chauhadi of the proposed shop was also given. Application is annexure-3 to the writ petition. On the aforesaid application, report was given by Sri D.K.Gupta, Excise Inspector, Circle No.-I, Kannauj and on the basis of the said report on 17.03.2005 itself approval was granted by the District Excise Officer, which was also approved by the District Magistrate.  In pursuance thereof the respondent nos.5 and 6 deposited the licence fee and opened the shop at the house of Shri Anil Kumar Viashya in Sarai Meera Nagar Ward No.12. The licence fee for the shop of respondent nos.5 and 6 was Rs.2,64,500/-. Thereafter, petitioner moved an application before Excise Commissioner on 04.04.2005 objecting the shifting of the shop by the respondent nos.5 and 6. It has been stated that the present shop of respondent nos.5 and 6 was at about half kilometre from the petitioner's shop and is affecting the business of the petitioner while the petitioner licence fee was Rs.6,61,300/- about three times of the licence fee of the shop of respondent nos.5 and 6. It appears that  on the said application, report was sought from the Excise Inspector.  Excise Inspector on 12.04.2005 submitted his report, in which it was stated that in the year 2004-05 shop of the respondent nos.5 and 6 was situated at Sarai Meera Bi-pass, in front of Bajrang Hotel and after the renewal of the licence for the year 2005-06 shop has been opened at Tirva crossing tiraha. It has been stated that the distance between Sarai Meera English Shop and Tirva crossing is only 500 mtr. which is a gross violation of circular no.26487-557/10-LI-400/shops no.-02-03, dated 26.02.2002. In the circumstances, it is stated that in the interest of revenue the shop opened at Tirva crossing tiraha by the respondent nos.5 and 6 may be shifted at its original place. In pursuance thereof, District Excise Officer passed the order dated 14.04.2005 directing the respondent nos.5 and 6  to shift the shop to its earlier place in Ward No.12. Respondent nos.5 and 6  filed appeal before the Excise Commissioner with the request that the appellant may be permitted to carry on the business at Sarai Meera Bi-pass, Ward No.12. Meanwhile  District Excise Officer vide order dated 16.04.2005 stayed the operation of the its order dated 14.04.2005. Against the order of District Excise Officer  dated 16.04.2005 petitioner filed appeal under section 11 (1)  of the Excise Act before Additional Commissioner Excise (Licensing Industrial Development), U.P., who  vide order dated 27.05.2005 remanded back the matter to the Collector with the observation that there was no justification on the part of the District Excise Officer to pass the order dated 16.04.2005. It has also been observed that there is no justification for the respondent nos.5 and 6 to shift his shop. Thereafter, District Magistrate passed an order dated 08.06.2005 and directed the respondent nos.5 and 6 to settle their shop at the earlier place. Respondent nos.5 and 6 filed revision against the order dated 27.05.2005 passed by Additional Commissioner Excise (Licensing Industrial Development), U.P. The said revision has been allowed by the impugned order and the order of Additional Commissioner Excise (Licensing Industrial Development), U.P. has been set aside and direction was issued to the District Magistrate to allow both the shops to run at the present place. The result of the revisional court order is that the respondent nos.5 and 6 have been permitted to run the shop at the Tirva crossing tiraha. Being aggrieved, petitioner filed the present writ petition challenging the said order.

Heard Sri A.K.Srivastava, learned counsel for the petitioner,  Sri Neeraj Sharma, learned counsel for the respondent nos.5 and 6 and learned Standing Counsel.

Learned counsel for the petitioner submitted that the respondent no.1 has illegally allowed the respondent nos.5 and 6 to run the shop at Tirva crossing while in the year 2004-05 they were the licencee of the shop at Bajrang Hotel and their licence for the year 2005-06 should be renewed only for that place and they were not authorised to shift their shop to any other place. He submitted that shifted shop is at the distance of 500 mtr. only, which is in violation of circular no.26487-557/10-LI-400/shops no.-02-03, dated 26.02.2002. Sir Neeraj Sharma, learned counsel for the respondent nos.5 and 6 submitted that  the allegation of the petitioner is absolutely wrong. He submitted that circular no.26487-557/10-LI-400/shops no.-02-03, dated 26.02.2002 does not apply in the present case. He submitted that the aforesaid circular is applicable in a case where the shifting is permitted during the excise year, while in the present case before the renewal of the licence, respondent nos.5 and 6 moved an application on 16.04.2005 for permission of shifting of the shop at the house of Anil Kumar Vaishya, which has been allowed on 17.04.2005 and in pursuance thereof licence fee was deposited. He submitted that the petitioner shop has been settled by way of lottery on 24.03.2005 in pursuance of the publication in the news paper much after the settlement of respondents shop at the present place and therefore, the petitioner was aware about the location of the shop of respondent nos.5 and 6 and with the open eyes, he participated in the lottery. He submitted that the present is not the case of the shifting of the shop during the running of the excise period causing harm to the petitioner  but it is the case where the shop of respondent nos.5 and 6 has been settled before the renewal of the licence on 17.03.2005 much before the settlement of the petitioner's shop and therefore, the objection raised by the petitioner is wholly unjustified. In support his contention he relied upon the decision of this Court in Writ Petition No.826 of 2005, Vijay Kumar Singhal Vs. The State of Uttar Pradesh and others decided on 24.05.2005.

I have considered the rival submissions of the parties and given my anxious consideration. On the facts of the present case, I am of the view that petition has no force.

From the above fact, it is evident that claim of respondent nos.5 and 6 for shifting the shop has been accepted before the renewal of the licence on 17.03.2005 while the petitioner shop was settled on 24.03.2005 by way of lottery in pursuance of publication in newspaper dated 18.03.2005 much thereafter. Thus, it was very well known to the petitioner that the licence of the respondent nos.5 and 6 was renewed for the excise year 2005-06 for the shop at Tirva crossing tiraha at the house of Anil Kumar Vaishya and petitioner has applied and participated in the lottery with the open eyes and full knowledge of the fact. I may take judicial notice of the fact that all the persons in the trade of liquor are well aware about every thing that is going on in the Excise Department in the State of U.P.

It may be mentioned here that the State Government has exclusive right and privilege to deal in intoxicants. It is well settled by the numerous decisions  of the Apex Court that there is  no fundamental right to do trade or business in intoxicants and the State, under its regulatory powers, has the right to prohibit absolutely every form of activity in relation to intoxicants, its manufacture, storage, export, import, sale and possession. In all their manifestations, these rights are vested in the State and indeed without such vesting there can be no effective regulation of various forms of activities in relation to intoxicants. See, The State of Bombay v. F.N.Balsara, AIR 1951 SC 318; Cooverjee B.Bharucha v. Excise Commissioner and Chief Commissioner, Ajmer, AIR 1954 SC 220; State of Assam v. A.N.Kidwai, AIR 1957 SC 414; Nagendra Nath v. Commissioner of Hill Division, AIR 1958 SC 398; Aman Chandra Chakraborti c. Collector of Excise, Government of Tripura, AIR 1972 SC 1863; State of Orissa v. Hari Narayan Jaiswal, AIR 1972 SC 1816; Nashirwar etc. v. State of Madhya Pradesh, AIR 1975 SC 360, Har Shanker and others (supra); Lakhanlal v. State of Orissa, (1976) 4 SCC 660; Sat Pal & Co. v. Lt. Governor of Delhi, (1979) 4 SCC 232; Southern Pharmaceuticals and Chemicals v. state of Kerala, (1981) 4 SCC 391; State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566; Doongaji & Co. (I) v. State of M.P., 1991 Supp (2) SCC 313; Khoday Distilleries Ltd. And others v. State of Karnataka and others, (1955) 1 SCC 574; Rajendra Singh v. State of M.P. and others, (1996) 5 SCC 460 and Yadar Shafi and others v. State of J & K and others, (1996) 5 SCC 740.

The Apex Court in the case of Government of Maharashtra and  others vs. Deokar's Distillery, (2003) 5 SCC 669 has once again reiterated the above principle. Paragraphs 43 to 45 of the report is reproduced below:-

"43. Concededly, a citizen of India in view of a cantena of decisions of this Court has no fundamental right to carry on trade or business in potable liquor. The State indisputably has a right to regular or prohibit business in potable liquor as average or otherwise keeping in view the  fact that the same is dangerous and injurious to health and it, therefore, an article which is res extra commercium being inherently harmful. The State is, therefore, entitled to completely prohibit a trade or business in liquor and create monopoly either in itself or in an agency created by it or take over such activities itself. For the purpose of selling the licence it can adopt any mode with a view to maximize its revenue so long as the method adopted is not discriminatory.

44. However, when the State permits trade or business in potable liquor, the citizen has the right  to carry on trade or business subject to the limitations, if any, and the State cannot make discrimination between the citizens who are qualified to carry on the trade or business (See Khoday Distilleries Ltd (supra).

45. Although a citizen has no fundamental right to carry on trade or business in potable liquor, but when he is permitted to carry on such business, he would be entitled to claim equal right as against other citizens. In absence of the State imposing any prohibition or monopolizing the business, the same may be carried on by the licensee without being subjected to any discrimination. Such a right although may not be elevated to the status of a fundamental right but all the same it is a right."

In "American Jurisprudence", Volume 30, it has been stated at page 538-541 that while engaging in liquor traffic is not inherently unl awful, nevertheless it is a privilege and not a right, subject to government control. This power of control is an incident of the society's right to self-protection and it rests upon the right of the State to care for the health, morals and welfare of the people. Liquor traffic is a source of pauperism and crime.

Thus a person has no fundamental right to carry on trade or business in potable liquor, but when he is permitted to carry on such business he is entitled to claim equal rights granted to other similarly situated persons and can challenge any arbitrary or actions not support by law.

                                                                                                                  It appears that the shop of respondent nos.5 and 6 has been shifted in exercise of power under Rule 2A of 1968, which reads as follows:

"2-A. Determination of the distribution of 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 local 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."

In the present case, circular no.26487-557/X-LI-400/Shops no.N.O.-02-03 dated 26.02.2003 does not apply. The perusal of circular shows that it is applicable in the case of shifting of shop during the currency of exercise year. In the present case as stated above change in the site has not been done during the currency of exercise year but before the removal of licence of shop itself.

For the reasons stated above, the writ petition has no force and is accordingly, dismissed with costs, which I assessed at Rs.2,500/-

Dt.14.11.2005

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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