F.I.Rebello, J. - (1.) THERE was a difference of opinion between the two learned Judges and, hence, the reference.
(2.) THE learned Judges have not framed the question which is required to be answered. Yatindra Singh, J. was of the opinion that: The site of a model shop can be relocated during an excise year; Model shops up to 15 percent can be created during an excise year; The petitioner cannot object to the creation of new model shops (within the permissible limits) as he got his licence renewed with this knowledge; Model shop can be advertised in middle of the excise year in an area where a shop is in existence; and, therefore, came to the following conclusion; "54. My conclusions are as follows; (a) Subject to Rule 2-A and Rule 5 of the U.P. Number and Location of Excise Shop Rules, 1968, the Collector has got the power to relocate a liquor shop for cogent reasons; (b) A liquor shop can be created during an excise year in terms of policy and advertisement; (c) A model shop can be advertised in the middle of an excise year; (d) In the present case the model shop has been re-located and settled considering the interest of the revenue. There is no malice or fraud in exercising this power." Rajes Kumar, J., on the other hand, after considering the relevant excise policy and the Rules, was of the opinion that the excise authorities have no power to transfer the model shop from one area to another area or to create a new model shop during the excise year. His conclusions are as under: "89. In view of the above, I am of the view that: (i) Under the excise policy for the year 2010-11 and rules framed thereunder the excise authorities have no power to transfer the Model Shop of one area to another area or to create a new Model Shop during the excise year; (ii) Under the relevant excise rules the creation of new Model Shop/transfer of Model Shop from one area to Shamshabad, Agra is against the excise policy of the State Government for the excise year 2010-2011; (iii) Under the relevant excise rule the newly created Model Shop/ transferred Model Shop cannot be advertised during the excise year." In view of the aforesaid, the question which requires to be answered can be framed as under: "Whether a model shop can be relocated/created during an excise year in an area where another liquor shop is already in existence?" The State Government notified an excise policy on 26.2.2010. This policy covered all kinds of shops including retail shop for sale of Indian Made Foreign Liquor (in short 'IMFL'), model shops and other shops. Clause 7 (4) of the excise policy, the English translation of which is found in the judgment of Yatindra Singh, J., reads as under: "Creation of Model Shop for the year 2010-11: 15% of model shop can be created by Excise Commissioner. In case there is necessity to grant model shops more than 15% then it can be done with the approval of the State Government.
(3.) PURSUANT to that policy, an advertisement for renewal as well as grant of liquor shops was issued, which is on record. The petitioner had applied for renewal of his licence based on the said advertisement. Clause 1 of the advertisement for the excise year 2010-2011 reads as under: Country made liquor, foreign liquor and model shops can be increased by 15%; and Beer shops can be increased by 25%. A few facts may now be narrated. The petitioner had been granted a licence to run IMFL shop for the excise year 2009-2010 at Shamshabad, Agra. In that excise year, there was no model shop in that area. The State Government came out with an excise policy for renewal and settlement of different categories of liquor shops on 26.2.2010 and an advertisement was also published in the newspapers on 28.2.2010 about the same. The Excise Commissioner also circulated the policy by letter dated 3.3.2010. The petitioner applied for renewal of his IMFL shop licence in the same area as per the terms of the policy. At the relevant time, no model shop had been settled for the said area. An IMFL shop constitutes a different class or category from a model shop. In the excise year 2010-2010,19 model shops were sanctioned in Agra district. Out of these 19 shops, 16 were settled, however, three shops at Diwani Chauraha, Supermarket Sanjay Place, and Maruti Estate Chauraha remained unsettled. There were other shops also in the State which could not be settled. The State Government granted approval on 14.4.2010 for settling all unsettled shops in the State on the terms and conditions mentioned therein. The conditions provided in case there were no applicants to reduce the licence fee to attract applicants. The Excise Commissioner also sent a letter on 19.5.2010 granting approval on the same terms. Out of four model shops in district Agra, one shop was settled but three shops, namely, the unsettled shops of excise year 2009-2010, could not be settled despite being advertised on 7.4.2010, 28.4.2010, 12.5.2010, 26.5.2010 and 4.6.2010 even on the reduced licence fee of 75% of the previous year.;