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Judgment
By way of this writ petition under Article 226 of the Constitution of India, the petitioner has approached this Court for challenging the order
(Annexure-4) dated 27.02.2018 whereby, the country-made liquor vend licnece for the shop at Gogameri was awarded to the respondent No.4. The
petitioner was already operating the said vend in the year 2017-18. Upon the period of licence coming to an end, the Excise Department issued an
advertisement on 30.01.2018 inviting applications from aspiring licence holders for renewal of the licence for the financial year 2018-19 (It may be
stated here that the petitioner has conveniently omitted to annex this advertisement with the writ petition). Though not admitted in so many words in
the writ petition the petitioner did not avail this opportunity of getting the licence renewed in terms of the advertisement Annexure-R/4. Thereafter and
as no application for renewal was received, the Excise Department issued the fresh advertisement (Annexure-2) dated 10.02.2018 inviting applications
from aspiring candidates for excise vend licences of liquor country-made as well as foreign except for those shops whose licence had been renewed.
The petitioner, who admittedly did not go for renewal, chose to apply for two country-made liquor vends i.e. Gogameri and Nethrana. Condition No.5
of the advertisement dated 10.02.2018 is relevant and germane for deciding the controversy at hand and is thus being reproduced herein below for the
sake of ready reference:
“5- ,d O;fDr dks ,d ls vf/kd nqdku@nqdku lewg vkoafVr ugha fd;s tk;saxsA ;fn dksbZ O;fDr ,d ls vf/kd nqdkuksa@nqdku lewgksa gsrq vkosnu
djrk gS rFkk ,d ls vf/kd nqdku@nqdku lewg gsrq mldk p;u gks tkrk gS rks mls og nqdku@nqdku lewg vkoafVr fd;s tk;sxs ftlds fy, lcls de vkosnu izkIr
gq, gksA nqdku@nqdku lewg gsrq leku la[;k esa vkosnu izkIr gksus ij ,sls vkosnd dks og nqdkus@nqdku lewg vkaofVr fd;s tk;sxs ftldh okf’kZd
jkfâ€k vf/kd gksAâ€.
The petitioner’s bids succeeded for both the shops and thus, keeping with the above mentioned condition, the petitioner was awarded the lience for
excise vend shop at Nethrana for which lesser number of applications had been received. However, rather than accepting the said excise vend
licence of the shop at Netrana, the petitioner has approached this Court by way of this writ petition challenging the action of the respondents in
introducing the above mentioned condition alleging the same to be in violation of the excise policy and claiming that he has been discriminated
thereby. The petitioner stakes a claim for the Gogameri shop.
The respondent Excise Department as well as the respondent No.4 to whom the excise vend licence of Gogameri shop has been awarded, have filed
replies to the writ petition. In the reply filed by the Excise Department, it is categorically mentioned that the condition No.5, referred to supra, was
consistently followed in the preceding years and is a part of the Department’s policy. The condition is essential where multiple applications are
received for the same vend; as per the condition, licence of the shop for which lesser number of applications is received, is awarded to the person who
succeeds in the lottery at more than one place.
Shri Punia, learned Sr. Counsel assisted by Shri Rajendra Prasad learned counsel representing the respondent No.4 has placed on record, copies of
the orders passed for various excise shops in the previous years whereby, in identical factual scenario where the applicant’s bid succeeded for
more than one shops, the licence was awarded for the shop which received the lesser number of applications.
Shri Ravi Bhansali, learned Sr. Counsel assisted by Shri Kshamendra Mathur, learned counsel representing the petitioner vehemently urged that the
respondents were not authorised to introduce the above mentioned condition which, as per Shri Bhansali, is absolutely arbitrary, unjust and contrary to
the excise policy. He urged that this condition has been unjustly introduced in the procurement process for the first time and should be struck down.
He thus implored the Court to exercise its extraordinary writ jurisdiction and quash the impugned order and direct the respondents to award the excise
vend licence for the countrymade shop at Gogameri to the petitioner.
Per contra, Mr. Sridhar Mehta, associate to Dr. Sachin Acharya, learned counsel representing the Excise Department, has placed reliance on the
Supreme Court decision in the case of State of Kerala & Ors. vs. Kandath Distilleries, reported in (2013)6 SCC 573 and urges that right to trade in
liquor is neither a fundamental right nor is a statutory right and contends that a writ cannot be issued in such circumstances. Petinent objection is also
raised that the petitioner is estopped from challenging the condition No.5 of the advertisement as he could have challenged the said condition only
before participating in the lottery process. They thus urged that the petitioner is not entitled to challenge the condition of the advertisement referred to
supra in reference whereof, the licence for excise vend of Gogameri was awarded to the respondent No.4.
I have given my thoughtful consideration to the arguments advanced at Bar and have gone through the material on record.
In the case of State of Kerala & Ors. vs. Kandath Distilleries (supra), Hon’ble the Supreme Court has elaborately discussed and expounded the
law regarding issue of writ in matters involving award of excise trading licence and held as below :-
“23. We may, before examining the scope of the above mentioned provisions and the nature of jurisdiction or the powers to be exercised by the
Commissioner and the State Government, examine the general purport of the Act in the light of Article 19(1)(g) of the Constitution of India.
RIGHT TO CARRY ON TRADE OR BUSINESS IN LIQUOR
Article 47 is one of the Directive Principles of State Policy which is fundamental in the governance of the country and the State has the power to
completely prohibit the manufacture, sale, possession, distribution and consumption of liquor as a beverage because it is inherently dangerous to the
human health. Consequently, it is the privilege of the State and it is for the State to decide whether it should part with that privilege, which depends
upon the liquor policy of the State. State has, therefore, the exclusive right or privilege in respect of potable liquor. A citizen has, therefore, no
fundamental right to trade or business in liquor as a beverage and the activities, which are res extra commercium, cannot be carried on by any citizen
and the State can prohibit completely trade or business in potable liquor and the State can also create a monopoly in itself for the trade or business in
such liquor. This legal position is well settled. State can also impose restrictions and limitations on the trade or business in liquor as a beverage, which
restrictions are in nature different from those imposed on trade or business in legitimate activities and goods and articles which are res commercium.
Reference may be made to the judgments of this Court in Vithal Dattatraya Kulkarni and Others v. Shamrao Tukaram Power SMT and Others
(1979) 3 SCC 212, P. N. Kaushal & Others v. Union of India & Others (1978) 3 SCC 558, Krishna Kumar Narulaetc. v. State of Jammu & Kashmir
& Others AIR 1967 SC 1368, Nashirwar and Others v. State of Madhya Pradesh & Others (1975) 1 SCC 29, State of A. P. & Others v. McDowell
& Co and Others (1996) 3 SCC 709 and Khoday Distilleries Ltd. & Others v. State of Karnataka & Others (1995) 1 SCC 574.â€
Manifestly thus, the matter has to be assessed in light of the above referred mandate of Hon’ble the Supreme Court. It is virtually an admitted
condition as emerging from record that the petitioner, who was already holding the excise vend licence for the Gogameri shop in the preceding
financial year, had an opportunity to get the licence renewed on the terms and conditions stipulated by the Excise Department vide advertisement
dated 30.01.2018 which the petitioner has conveniently omitted to annex with the writ petition. Needless to say that for extension of licence, the
petitioner would have to cough up additional licence fee which is perfectly justified in view of the fact that the extension is sought for trading in liquor
which is a lucrative growing business. Thus, the State is well within its right to seek enhanced licence fees in case a licence holder seeks renewal of
licence without participating in the open procurement.
Be that as it may. The petitioner did not go for renewal, took a chance and chose to apply through lottery for the fresh excise vend in terms of the
advertisement dated 10.02.2018. The unambiguous condition No.5 of the advertisement Annex.2 Clearly stipulates that whenever a person applies
for more than one shop/ group of shops and is selected for such shops/ group of shops then, he would be awarded licence of the shop/ group of shops
which receives the lesser number of applications. Manifestly and if at all, the petitioner was aggrieved of the said condition of advertisement, he should
have challenged the same before participating in the lottery process. Having participated in the lottery process and having failed to get excise vend
shop at Gogameri on account of the fact that the applications for that shop were more in numbers, the department rightly relegated to the petitioner to
opt for the shop for which lesser number of applications have been received in accordance with the condition No.5. The petitioner is estopped from his
own conduct by challenging the said condition of the advertisement. That apart, the respondents have clearly demonstrated in their reply that the same
condition was stipulated and successfully applied in the in the previous years’ excise vend licence proceedings. This fact is duly verified from
the various orders placed on record by Shri Punia alongwith his reply, which clearly establish that in the previous years also, the same condition was
unexceptionally applied.
In view of the above discussion and keeping in view the law laid down by Hon’ble the Supreme Court in the case of State of Kerala & Ors. vs.
Kandath Distilleries (supra), this Court is duly satisfied that neither any fundamental nor any statutory right of the petitioner stands infringed by the
impugned action so as to call for exercise of this Court’s extraordinary writ jurisdiction.
The petitioner has been selected for the Nethrana excise vend shop and, as stated by Shri Bhansali, the petitioner is ready to carry on the trade in the
said shop. Thus, the Excise Department is directed to grant licence for the said country-made liquor excise vend to the petitioner as per law after
accepting the requisite licence fee, etc. The amount of Rs.10,00,000/- deposited by the petitioner towards the excise vend shop Gogameri shall be
adjusted in the licence fee for excise vend shop of Nethrana.
The writ petition is dismissed with the above observations.