Ram Nihore vs State of U.P.and Others

Tarun Agarwala, J.—Heard Sri Manoj Kumar Dwivedi, the learned counsel for the petitioner and Sri Vinod Kumar Yadav, the learned counsel for the opposite party No.6 and Sri Sanjeev Shankdhar, the Additional Chief Standing Counsel for the remaining respondents.

The petitioner and the respondent No.6 belongs to the Tarmali caste. The petitioner alleges that he was initially residing with his parents in village Ram Nagar in district Ambedkar Nagar but is now permanently residing with his family in village Chahorha Shahpur, Tehsil Alapur, district Ambedkar Nagar. Pursuant to an advertisement dated 22.12.06, the petitioner applied for a Tari shop licence at Moosepur Kalan, Tehsil Allapur, district Ambedkar Nagar. The opposite party No.6 also applied for grant of a Tari shop licence.

It transpires that the Excise Inspector prepared a list of eligible candidates and submitted his report. The District Excise Officer after scrutinizing the forms, recommended the name of the respondent No.6 for the grant of the licence. On the basis of this report, the Deputy Excise Commissioner placed certain queries with regard to the recommendation in favour of opposite party No.6. The District Excise Officer again clarified that the licence could be granted to the respondent No.6 as per the Rules. The District Excise Officer after considering the matter recommended the name of the petitioner to the District Excise Commissioner for the grant of a licence. The Deputy Commissioner in his report found that the petitioner had more experience and even though he was giving less revenue to the State Government, nonetheless, he was to be preferred for grant of licence in comparison with respondent No.6, who was unemployed and had no experience in the business of Tari. Based on the aforesaid recommendation, the licencing authority granted a licence in faovur of the petitioner.

The respondent No.6, being aggrieved by the aforesaid grant of licence in favour of the petitioner, filed a writ petition which was dismissed on the ground of an alternative remedy. Thereafter the respondent No.6 preferred an appeal under Section 11 of the U.P. Excise Act which was also dismissed, against which the opposite party preferred another writ petition which was again dismissed on the ground of an alternative remedy and eventually, the respondent No.6 filed a revision before the State Government which was allowed by an order dated 24.10.2007. The revisional authority found that the licence was granted only on the basis of the petitioner being more experienced, whereas the licencing authority had not considered that the petitioner was offering less revenue to the State Government. The revisional court further submitted that preferential treatment has to be given to a local resident and the question of honesty and integrity of the licensee was also required to be seen which was not considered. The revisional Court found that the respondent No.6 was unemployed and was entitled to be given a preferential treatment since he belonged to the same area, whereas the petitioner was not a resident of that area, and therefore, on these grounds, quashed the licence granted in favour of the petitioner. Further direction was issued to the licencing authority to grant licence in favour of the respondent No.6. Aggrieved, the petitioner has filed the present writ petition.

Before proceeding further, it would be appropriate, if the Rules are analysed. The Tari shop licence is granted under the U.P. EXCISE (LICENSING UNDER THE SURCHARGE FEE SYSTEM) (FIRST AMENDMENT) RULES, 1976, Ruels 2 and 3 are the relevant rules, which are quoted hereunder:

�(2). An application for grant of a licence shall be accompanied by a treasury receipt for twenty five rupees. Application not accompanied by such a treasury receipt shall not be considered.

The District Excise Officer shall scrutinize all the applications received by him and draw up a list of applicants whom he considers suitable. In preparing the list he may make or cause to be made such inquiries as he may considered necessary and shall be guided by the principles laid down in Rule 3. He shall also prepare a second list containing the names of those applicants whose names have not been included in the list of suitable candidates and record against each name his reasons for omitting it from the first list. Both these lists shall be forwarded by him to the Deputy Assistant Excise Commissioner concerned. The Deputy Assistant Excise Commissioner shall forward these lists to the Collector after recording his view in regard to the suitability of each of the applicants. The Collector may then make or cause to be made such further inquiries as he considers necessary, and may, for reasons to be corded, grant the licence to any applicant whom he considers suitable having regard to the principles laid down in Rule 3.

(b) The following procedure shall apply for the settlement of F.L. 7A (Beer bar) licences. Any person who is eligible under Rule 3(1) of these rules may apply to the District Excise Officer in Form G28 for a licence of the above enquiries as he may consider necessary, and shall forward the case to the Assistant/Deputy Excise Commissioner who will record his views before forwarding the case to the Collector. The Collector may after such enquiry as he may further consider necessary after taking into consideration the principles laid down in Rule 3, grant a licence to the applicant, if found suitable at a location fixed by him.

Note: An application for grant of a licence shall be accompanied by a treasury receipt for twenty five rupees, Applications not accompanied by such a treasury receipt shall not be considered.

The following general principles are laid down for the selection of licensees:

(1) The person eligible for the licence shall be

(i) Persons who pay a minimum of one hundred rupees as income tax, wealth tax or land revenue.

(ii) Persons to the following categories who have the capacity to invest capital to the satisfaction of the Collector:

(a) Members of the family of such persons as has been filled (sickilled) in the wars fought for the nation after independence.

(b) Military personal who have become invalid in the war fought for the nation after independence.

(c) Members of Scheduled Castes/Schedule Tribes.

(d) Members of the family of freedomfighters who are wholly dependent upon him;

(e) Educated unemployed persons whose character has been verified by the Collector of the district to be good;

Provided that for licence of Tari shops under the surcharge system, only members of Pasi, Beldar, Bhar, Tarmali and other Schedule Castes and Scheduled Tribes communities who are engaged in tapping the Tari producing trees shall be eligible whether or not they fulfil the above conditions and licences to other persons shall be granted only if members of the said communities are not available.

(2) Honesty and ability to supervise the shop personally are the principal qualifications of a licensee. Preference should generally be given to a local resident. Education alone is not sufficient nor does the possession of a large capital make a man suitable vendor. Capitals who leave the work to managers and salesman should be excluded as far as possible.

(3) As far as possible no licensee should be given more than one shop.

(4) Partnership in shop shall be allowed only under the following conditions:

(a) Where an existing licensee applies voluntarily to take a person into partnership and the Collector considers such persons suitable to hold a licence and is further of opinion that the shop cannot be managed well by a single licensee to transfer their shops to their nominees under the cloak of partnership should be severely discountenanced. Ordinarily, a man who cannot devote enough time to his shop should be asked to resign instead of being allowed to take in a partner. Only if he cannot manage the shop in spite of devoting all his time, to it, should a partner be allowed.

(b) Where at or before the time of making applications for shops two persons jointly apply for a licence in partnership, and the Collector finds both of them to be suitable persons for placing on the aforesaid list, their names shall be treated as one only.

(c) In no case shall more than two persons be permitted to hold a licence jointly.�

Under Rule 2, the District Excise Officer is required to scrutinise all the applications and prepare a list in accordance with the principles laid down in Rule 3.

In Rule 3, the general principles are laid down for the selection of a licensee. Subclause (1) of Rule 3 prescribes that persons who are eligible for a grant of a licence for a Tari shop under the surcharge system, apart from the other members of the Pasi, Beldar, Bhar, Tarmali and other Scheduled Castes and Schedule Tribes communities, who are engaged in tapping the Tari producing trees, would be eligible and shall be granted the licence. Subclause (2) of the Rules 3 provides that honesty and ability to supervise the shop personally would be the principal qualifications of a licensee and that preference would be given to a local resident.

The learned counsel for the petitioner submitted that the petitioner belongs to the Tarmali caste and was also engaged in tapping of Tari for several years, and therefore, in view of the proviso to subclause (1) of Rule 3, the petitioner was entitled for preferential treatment for the grant of a licence. The petitioner further submitted that even otherwise under Subclause (2) of Rule 3 of the Rules of 1976, the petitioner was also a local resident of village Chahorha Shahpur, Tehsil Alapur, district Ambedkar Nagar and was again entitled for preferential treatment.

On the other hand, the learned counsel for the opposite party submitted that the mere fact that the petitioner was experienced in tapping the Tari would not entitle him for any preferential treatment and that preferential treatment would only be given to a local resident under subclause (2) of Rule 3 of the Rules. The learned counsel contended that the respondent No.6 alone was a resident of the village in question, for which the licence was granted and that the petitioner was a resident of village Ram Nagar, where his brother was holding another Tari licence.

The learned counsel for the petitioner has invited the attention of the Court to the Supplementary Affidavit that was filed before this Court indicating the name of the applicant in the family register of village Chahorha Shahpur and also placed on record a domicile certificate issued by the competent authority showing him to be a resident of village Chahorha Shahpur and contended that the finding of the State Government that he was not a resident of village Chahorha Shahpur is patently illegal and against the material on record.

Having considered the submissions of the learned counsel for the petitioner, this Court is of the opinion that the finding of fact arrived at by the State Government, namely, that the petitioner is not a local resident of village Chahorha Shahpur, Tehsil Alapur, district Ambedkar Nagar does not require any interference from the Writ Court. The Writ Court cannot consider the domicile certificate of petitioner which has been annexed as Annexure No. 2 to the supplementary affidavit on the simple ground that the said certificate is dated 5.11.07, whereas the order of the State Government was passed on 24.10.2007. It is a clear that the applicant in order to get over the findings of the State Government has now procured a domicile certificate. It is apparent that this certificate was not placed before the State Government. There is no document to indicate that the applicant was a resident of village Chahorha Shahpur.

In view of the provisions of Subclause (2) of Rule 3 of the Rules of 1976, it is apparent that preferential treatment has to be given to a local resident. In view of the aforesaid, this Court does not find any merit in this petition and is dismissed. In the circumstances of the case, there shall be no order as to cost.

(Petition dismissed)