Vikram Nath, J. - (1.) -This writ petition was originally filed with the prayer to quash the Notification dated 2.5.2006 issued by the Collector, Farrukhabad whereby applications were invited for opening of a retail out-let of country liquor shop at Alawalpur mentioned at Serial No. 1 of the said notification, a copy of which has been filed as Annexure 4 to the writ petition. Subsequently by an amendment the petitioner sought for quashing of the order dated 28.4.2006 passed by the Additional Commissioner Excise, U. P. whereby approval was granted for opening of the country liquor shop at Alawalpur and further for cancellation of the allotment of the country liquor shop, Alawalpur made pursuant to the order of the District Excise Officer dated 9.5.2006.
(2.) THE facts giving rise to the present writ petition are that the petitioner is a licensee of country liquor shop Mohammadabad, District Farrukhabad for the excise year 2005-06 carrying a minimum guaranteed quota (in short referred to as MGQ) of 87100 bulk litres. Subsequently for the Excise Year 2006-07 also the licence of the petitioner was renewed with MGQ as 93197 bulk litres. THE total quota allotted for district Farrukhabad was 2284900 bulk litres for the excise year 2007-07. An order was passed by the District Excise Officer mentioning that after settlement of all the shops a quantity of 6690 bulk litres falls short, i.e., it remains unsettled and therefore, to fulfil the said shortfall it would be appropriate to create two new shops so that the entire quota of the district is allotted. For the said purpose he directed the Excise Inspector, Region II and III to explore the availability of site in accordance with law and submit a report within three days. A report was submitted on 14.4.2006 by the Excise Inspector that Gram Panchayat Alawalpur does not have any distinct licence, residents have requested for opening of a shop, village Alawalpur does not fall within 3 kms. radius of any existing shop of country liquor. Further that in the past years in the vicinity of village Alawalpur there has been several cases of illegal and spurious sale of country liquor and therefore, if a shop is created at Alawalpur it will help in controlling the illegal and spurious sale of country liquor. Alongwith his report he also submitted a representation of the residents of the village Alawalpur and also of the village Pradhan requesting for opening of a new shop at Alawalpur. A list of cases under Section 60 of the Excise Act of village Talipur which is adjoining to the village Alawalpur was also enclosed. Further report was submitted by the Excise Inspector Region-II, with regard to opening of a second new shop at Bichauli. Based upon the report and recommendation, a proposal was sent to the Excise Commissioner, who vide order dated 28.4.2006 granted permission for opening of two new shops and he also fixed the quota for Alawalpur to be 3350 bulk litres and 3340 bulk litres for village Bichauli. The said MGQ of both the new shops would fulfil the shortfall of the MGQ allocated for district Farrukhabad which had not been settled. Pursuant to the permission granted by the Excise Commissioner shops were advertised and shop of Alawalpur has been allotted to Smt. Veenu Dube and Puja Dube vide order dated 9.5.2006. It is against this creation of new shop and allotment that present writ petition has been filed. We have heard Sri S. C. Verma, learned counsel for the petitioner and Sri S. P. Kesarwani, learned standing counsel representing the State respondents. We have also perused the pleadings on record.
(3.) LEARNED counsel for the petitioner has firstly submitted that at the time when the renewal to the petitioner was granted in March, 2006 he was not communicated that any new shop was likely to be opened in the vicinity of his shop and therefore, after grant of renewal, the opening of a new shop will adversely affect the sale of liquor from the petitioner's shop and the petitioner may not be able to lift the entire MGQ which would result into loss of revenue to him as under the law he is required to lift the entire MGQ and on failure to do so he would be liable to pay the duty on remaining amount of MGQ without lifting and selling the said quantity. The second submission made on behalf of the petitioner is that the new shop at Alawalpur is situate at a distance of only 1 km from his shop at Mohammadabad and such opening of a new shop in such close vicinity cannot be permitted and is against the law. He has further relied upon a decision in the case of Ram Kripal v. State of U. P. and others, 2005 (5) AWC 4681, in support of his contentions. On the other hand Sri S. P. Kesarwani, learned standing counsel has submitted that the shop has been opened in accordance with law. The Excise Commissioner under law is empowered to create a new shop and he has granted the approval based upon the recommendation of the District Excise Officer and Collector of the district in order to fulfil the allotment of MGQ reserved for the district. He has further submitted that the shop at Alawalpur is situate at a distance of more than 3 kms. from the shop at Mohammadabad where the petitioner is functioning, which is in accordance with the rules. It is further submitted that this writ petition has been filed with mala fide intention as the petitioner wants to have a monopoly of selling the liquor in the area, for which he has no right. Sri Kesarwani also submitted that the petitioner has failed to show that there has been any short fall in his lifting of the MGQ and in the absence of the same the petitioner cannot have any grievance and his sale is not adversely affected as alleged. It was also submitted that MGQ of the newly created shop is only 3350 bulk litres as compared to the MGQ of the petitioner which is 93197 bulk litres, i.e., it is less than 4% of the MGQ of the petitioner. It may also be noted that the petitioner has not impleaded the allottee of the country liquor shop at Alawalpur.;