- (1.) By means of the present writ petition, the Petitioner is seeking a writ of certiorari quashing the orders dated 7/8.4.2010 and 12.4.2010, passed by the District Magistrate, Firozabad, and a writ of mandamus to the Respondent to renew the licence of the Petitioner for the year 2010-11. The brief facts of the case are that for the settlement of the beer shop for the area Sarabi Market to Gall Bohran Sadar Bazar for the excise year 2009-10 applications were invited by the office of the District Excise Officer, Firozabad. Number of persons moved the applications. The Petitioner also moved application showing Sri Sanjay Kumar Gupta, son of Sri Sampat Ram Gupta, as a co-applicant. In a lottery, held on 23.3.2009, the beer shop for the aforesaid area had been settled in favour of the Petitioner alongwith Sri Sanjay Kumar Gupta as a co-applicant. It is the case of the Petitioner that on 15.5.2009, Sri Sanjay Kumar Gupta wrote a letter to the District Magistrate, Firozabad to separate himself from the shop as a co-allottee at his own sweet will and without any fear and pressure. He stated that he has nothing to do with the said shop and Sri Vishwakant Gupta would be only responsible. He requested that he would be excluded from the aforesaid shop. The application was filed alongwith an affidavit. A copy of the application and the affidavit are annexed as Annexure-5 to the writ petition. The licence had been issued by the Licensing Officer on 29.9.2009 only in the name of the Petitioner. The name of Sri Sanjay Kumar Gupta had not been mentioned in the licence. A Copy of the licence is annexed as Annexure-6 to the writ petition. The Petitioner had run the said shop upto 31st March, 2010. There is no dispute in this regard. The Petitioner being the sole licensee for the year 2009-10, moved an application before the District Excise Officer, Firozabad for renewal of the licence on 11.3.2010. It appears that Sri Sanjay Kumar Gupta wrote a letter dated 10.3.2010 to the District Excise Officer, Firozabad, stating therein that the shop had been settled by lottery system and he was running the shop as a co-allottee and now there was no proper understanding between him and Petitioner. Therefore, the licence would not be renewed and the shop be cancelled. On the application of Sri Sanjay Kumar Gupta dated 10.3.2010, the District Magistrate, Firozabad has passed the order that the said beer licence may not he renewed and be settled through lottery system.
(2.) Being aggrieved by the said order, the Petitioner filed Writ Petition No. 420 of 2010. This Court vide order dated 22.3.2010 allowed the writ petition and set aside the order dated 12.3.2010 and directed the District Magistrate, Firozabad to pass a fresh order relating to the renewal of the licence after giving opportunity of hearing to the Petitioner and Sri Sanjay Kumar Gupta or any other concerned parties in accordance to law. In pursuance thereof, the District Magistrate, Firozabad has passed the impugned order dated 7/8.4.2010. The District Magistrate, Firozabad has held that there is serious dispute between the two partners and both the partners do not want to continue the partnership and, therefore, in accordance to paragraph-8 of the Rule, the application of renewal, filed by the Petitioner, has no force and accordingly rejected. It has been further directed to settle the shop by public lottery. In the impugned order, it is stated that Sri Sanjay Kumar Gupta filed an application dated 4.8.2009 alongwith an affidavit stating therein that the earlier application dated 28.4.2009 (appears to be incorrect and the date should be 15.5.2009) is false and forged and further an application was filed on 17.8.2009 before the District Magistrate with the request to take legal action against Vishwakant Gupta, and he has fraudulently obtained a licence dated 29.9.2009 in his name, which is not in accordance to law. It appears that after passing the aforesaid impugned order, a fresh lottery was held on 12.4.2010 and the said shop has been settled in favour of Sri Manish Kumar Sharma, son of Banwari Lal, Respondent No. 5.
(3.) The writ petition was reported on 28.4.2010. It has, however, been filed on 29.4.2010 which came up for consideration on 3.5.2010. On 3.5.2010, this Court has directed the learned standing counsel to seek instruction and, if so advised, may file a counter-affidavit. The matter was listed on 11.5.2010 as fresh. On 10.5.2010, notices were issued to Respondent Nos. 4 and 5 and the Petitioner was directed to serve the Respondents by dasti summon and to file an affidavit of service. Further, the service on Respondent Nos. 4 and 5 was also directed to be affected through District Excise Officer, Firozabad. Writ petition was fixed on 18.5.2010. On 18.5.2010, the date was again fixed on 19.5.2010. On 19.5.2010, Sri S.P. Kesarwani, learned Additional Chief Standing Counsel, filed a counter-affidavit annexing therewith a copy of the notices, served upon Respondent Nos. 4 and 5, and Sri H.N. Singh, learned Counsel for the Petitioner filed a rejoinder-affidavit. He also filed an affidavit of service in respect of service of notices on Respondent Nos. 4 and 5. The matter has been heard on 19.5.2010. Sri H.N. Singh, advocate, argued on behalf of the Petitioner and Sri S.P. Kesarwani, learned Additional Chief Standing Counsel, argued on behalf of Respondent Nos. 1, 2 and 3. Despite the service of notices, Respondent Nos. 4 and 5 did not appear.;