- (1.) R. A. Sharma. j. For the year 1995-96 the Excise Commissioner U. P. invited tenders, vide notice dated 29-12-1994 for allotment of districts to the distilleries for supply of country liquor to the bonded warehouses. The peti tioner submitted its tender for a number of districts including the district of Raebareli. The respondent No. 3 also submitted his tenders but he did not submit any tender for district Raibareli. Respondents Nos. 1 and 2 have, however, rejected the tender of the petitioner for district Raebareli and !n its plaee allotted the said district to the respondent No. 3, although it has not submitted tender for it. Being aggrieved petitioners have filed this writ petition.
(2.) ALL the respondents have filed counter-affidavits and petitioners have filed rejoinder-affidavit in reply thereto. On behalf of respondents Nos. 1 and 2 supplementary affidavit has also been filed and in reply thereto petitioners have filed supplementary rejoinder-affidavit. We have heard learned counsel for the parties. Learned counsel for the petitioners has attacked the impugned order on five grounds, viz. (1) respondents Nos. 1 and 2 could not have allotted district Raebareli to the respondent No, 3 as it has not submitted any tender for that district; (2) the order has been passed in violation of principle of natural justice ; (3) the respondents have acted in unfair and arbitrary manner and had passed the order without applying mind to the facts of the case ; (4) the district Raebareli could not have been allotted to the respondent No. 3 without comparative evaluation of merit of both the petitioners and the respondent No. 3 ; and (5) under the conditions of tender defect, if any, could have been the factor forgiving preference, but tender could not have been rejected on those grounds. Learned Advocate-General, appearing for the respondents Nos. 1 and 2, apart from disputing the above contentions of the petitioners, has raised the following objections:- (a) A citizen does not have fundamental right to trade or business in liquor and the contract/licence granted for such a business is nothing but privilege granted by the State regarding which the State has absolute power to grant or not to grant. (b) Grant of such a privilege is a matter of policy of the Government which cannot be subject-matter of judicial scrutiny, specially when what is challenged is the refusal to grant such a privilege/licence and not their non-renewal. (c) Petitioners have given undertaking in form of declaration to the Excise Department to the effect that they will accept any rates granted and any area or areas allotted to them by the Excise Commissioner for wholesale supply of country liquor even in respect of the areas for which they have not given any tenders and, therefore, it is not open to them to challenge the impugned order. (d) Petitioners have no locus standi to file the writ petition under Article 226 of the Constitution to challenge the impugned order.
(3.) SRI S. C. Budhwar, learned counsel for the respondent No. 3 has, apart from supporting the submissions raised by learned Advocate-General, made two further submissions, viz. (i) grant of licence is based on subjective satisfaction of the Government and it cannot be challenged except on limited grounds which have not been made in the instant case ; and (ii) on the basis of material on record rejection of the claim of the petitioners for district Raebareli and its allotment to respondent No. 3 is fully justified. Before dealing with the pleas raised on behalf of the petitioners it is appropriate to decide the objections raised on behalf of the State and the respondent No. 3.;