R.K.Agrawal, J. - (1.) BY means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner prays for the following relief: "(i) to issue a suitable writ, order or direction in the nature of certiorari and quash the order dated 20- 12-2001 passed by respondent No. 2 (Annexure 11). (ii) to issue a suitable writ, order or direction in the nature of mandamus commanding the respondent No. 2 to immediately issue a permit on Form FL - 7C in favour of the petitioner or in the alternative. (iii) to issue a suitable writ, order or direction and declare the provisions of Rule 2 of the U.P. Permit of Possession of Foreign Liquor by Club Rules, 1980 as ultra vires or may be read down to mean and include that a permit on FL - 7C may be issued to a club if the company of which it is a division registered under the Indian Companies Act. (iv) to award the costs of the petition to the petitioner. (v) to issue a suitable writ, order or direction as this Hon'ble Court may be pleased to, in the facts and circumstances of the case."
(2.) BRIEFLY stated, the facts giving rise to the present writ petition are as follows: According to the petitioner, A.M. Constructions Private Limited (hereinafter referred to as "the Company"), is a private limited company incorporated on 7th September, 1994 under the provisions of the Companies Act, 1956. It has its Registered Office at 10/510, Khalasi Lines, Kanpur. In the Memorandum of Association, objects to be pursued by the Company have been specified. It is divided under the heading Main Objects, Objects incidental or ancillary to the attainment of Main Objects and Other Objects. Under "Other Objects", Clause 56 provides for running of clubs amongst other things. Clause 56 of Other Objects is reproduced below : "(56) To carry on in India or elsewhere the business of hotels, restaurants, cafeteria, tavern, beer house, refreshment room and lodging house keepers, licensed victuallers, wine, beer & spirit merchants, importers, exporters of aerated, mineral & artificial water, alcoholic liquor & other drinks, purveyors, caterers for public generally, carriage, text motor car & motor lorry properties, dairymen, ice merchants, importers, exporters and brokers of food, live and dead stock and foreign produce of all description, hair dressers, perfumers, chemists, properties of restaurants, clubs, bath, dressing rooms, laundries, reading/writing & newspaper rooms, libraries, grounds and places of amusement and recreation, sports, entertainment and instruction of all kinds, agents for railways, shipping Companies and carriers, opera box proprietors and general agents, travel agents, poultry farmers, fruit farmers, ice cream manufacturer, milk sellers, tobacconists, butcher, baker, confectioners, butter sellers and to establish and provide all kinds of convenience and attractions for customers and in particular reading, writing, smoke rooms, lockers, safe deposits, clubs, stores and shop, conference halls, swimming pools, tourist car and coaches." According to the petitioner, the Company had passed a resolution in the Extra-ordinary General Meeting held on 20th September, 2000 to start a business/division to run a beer club at Kanpur, to be named as Vision Club. The club, namely, Vision Club, is a proprietary club, whereof the Company is the proprietor. The object of the Vision Club, inter alia, are stated to be - "...to provide a secular, non-political institution to promote different social, recreational, cultural and intellectual activities amongst the members of the Club; to support and provide sports facilities in-door and out-door, etc. comprising of judo-karate, maintaining a recreation room; further to promote and encourage such activities amongst its members which is conducive to the growth of social welfare and intellectual development. There are other actions and objects of the club including providing facility of club-bar for the benefit of the members only." As one of the objectives was to provide facility of Club Bar including serving beer in the premises of the Club, a permit in Form FL - 7C was necessary to be obtained, under the provisions of the U.P. Excise Act, 1910 (hereinafter referred to as "the Act") read with the U.P. Permit of Possession of Foreign Liquor by Club Rules, 1980 (hereinafter referred to as "the Rules"). Accordingly, the petitioner applied for the requisite permit on 14th November, 2000 in the prescribed Form G-28. In the application, it was prayed that the permit may be issued in the name and style in which the activity was proposed to be conducted by the petitioner being Vision Club, a division of the Company. The application was signed by Vishal Dixit, the Director of the Company, who is also the Secretary of the Club. It is alleged by the petitioner that the District Excise Officer, vide order dated 31st January, 2001 required the petitioner to furnish the Rules of the Club and the list of the office bearers, which was immediately supplied. The District Excise Officer after making a detailed and complete enquiry, submitted his report on 1st July, 2001 to the Excise Commissioner, U.P., Allahabad recommending issuance of permit in Form FL-7C. The Excise Commissioner, vide order dated 16th August, 2001 granted approval for issuance of permit in Form FL - 7C in the name of the petitioner which order was communicated to the petitioner by the Additional Excise Commissioner vide letter dated 21st August, 2001. Thereafter, the petitioner deposited on 15th October, 2001 a sum of Rs. 55,000 being the fee for issuance of permit. As required by the authorities, the petitioner had also furnished the fixed deposit receipt of Rs. 5,000, but the permit in Form FL - 7C had not yet been issued. The District Excise Officer, respondent No. 2, had issued an order dated 20th December, 2001 whereby he has intimated the petitioner that the permit in Form FL - 7C cannot be issued as the Club is not registered under the provisions of the Companies Act or the Societies Registration Act. However, licence in Form FL - 7 which is for restaurant bar can be issued for which the application may be made. The order dated 20th December, 2001 is under challenge in the present writ petition.
(3.) WE have heard Sri S.P. Gupta, learned senior Counsel, assisted by Sri S.D. Singh, on behalf of the petitioner, and Sri S.P. Kesarwani, learned Standing Counsel appearing for the respondents. At the out set, it may be mentioned here that the learned Counsel for the petitioner did not make any submission regarding the challenge to Rule 2 of the Rules as ultra vires and, therefore, the Court is not called upon to examine the validity of the provisions of Rule 2 of the aforesaid Rules.;