Gopalji Mehrotra, J. - (1.) The petitioner is a medical practitioner and holds a licence for foreign liquor. The terms of the opium licence granted to the opposite party No. 2 Gaya Prasad was to expire on the 31st of March 1957. He was also a licensee of Ganja shop at Orai. The term of this licence was to expire on the same day. Applications were invited by the District Magistrate, Jalaun for the shops for the year 1957-58 sometimes in March 1957 and the petitioner also applied for a few shops and the opposite party No. 2 was also an applicant for some of the shops. The applications were put up before the District Excise Advisory Committee along with the applications of certain other applicants and the Committee recommended to the Collector the names of the Petitioner, opposite party No. 2 and one other person. The Collector selected the petitioner out of these names and granted licence to them by his order dated the 6th of April 1957. An appeal was then filed by the opposite party No. 2 before the Excise Commissioner, U. P. The main ground urged in appeal before the Excise Commissioner was that the Collector did not consult the Orai Municipal Excise Advisory Committee and has granted licence to the petitioner mainly on the advice, of the Jalaun District Excise Advisory Committee. The appeal was heard without any notice to the petitioner and was allowed by the Excise Commissioner. The order of the Collector granting licence to the petitioner was set aside on the 25th May 1957 and the matter was sent back to the Collector for disposal after complying with the provisions of the rules framed under the Excise Act. The municipal elections in the town of Orai were held on the 26th of October 1953 and no Municipal Excise Advisory Committee for the town of Orai was ever formed and consequently the Collector could only consult the District Excise Advisory Committee. The present petition has been filed challenging the order of the Excise Commissioner.
(2.) It has been contended by Mr. Dwivedi for the Petitioner that the Municipal Advisory Committee had to convene its meeting before the 31st of October and if the Advisory Committee failed to convene its meeting by the 31st of October the Collector had a right to grant licence even without consulting the Advisory Committee. In the present case the Collector therefore if he considered a wrong Advisory Committee can be taken to have exercised his own power to grant licence and the order could not be set aside by the Excise Commissioner in appeal. It is not denied that the grant of a licence within the municipal limit can only be done by the advice of the Municipal Excise Advisory Committee and the Collector was not right in acting upon the recommendation made by the District Advisory Committee. Paragraph 384 (l)of the Excise Manual lays down the duties of an Excise Advisory Committee. Clause (1) of paragraph 384 is as follows:- "384. The duties of an Excise Advisory Committee are : (1) to meet once in the excise year, not later than October 31, or in the case of the settlement of tari shop under the tree-tax system, not later than July 31 each year to consider (1) the number and location of excise shops in the municipality or district, and (ii) any representation made in connection with excise by the inhabitants of the municipality or district, to record resolutions thereon and to communicate them to the Collector not later than November 30;" Then Clause (3) of Paragraph 384 is as follows:- "384. The duties of an Excise Advisory Committee are : (3) to meet when convened by the Collector for the purpose of giving him advice (i) regarding the selection of licensees for shops under the surcharge system falling vacant during the course of the year, (ii) on any matters connected with excise, and (iii) regarding arrangements to be made by him for carrying on the business of a shop which has been subjected to picketing for political purposes or for changing the sites of shops, or for temporary creation of new shops to take place of, or to be started in addition to, existing shops which have been subjected to picketing for political purposes;" Paragraph 585 then lays down the procedure to be followed by the Excise Advisory Committee and the Collector has to choose the one whom he considers must suitable out of the three persons recommended by the Advisory Committee and has to settle the shop with the person selected by him. The Collector in this present case purported to act under Para 385 and thought that in view of the fact that there was no properly constituted Municipal Advisory Committee he was entitled to act on the recommendation made by the District Advisory Committee. It is not a case where the District Magistrate purported to exercise his own right to grant a licence. Paragraph 384(1) of the Excise Manual authorises the Excise Advisory Committee to hold its meeting by the 31st of October. In case the Advisory Committee fails to convene the meeting within that time it may be said that two options are open to the District Magistrate. He may either convene a meeting of the Excise Advisory Committee under Clause (3) of Paragraph 384 of the Excise Manual and then act on its recommendation under Paragraph 385 or to exercise his own powers and grant a licence. In the present case the District Magistrate having exercised his option to convene a meeting of the Advisory Committee cannot now say that the proceedings of the District Advisory Committee should be treated as a nullity and the order granting the licence should be considered not one under Paragraph 385 but one in the exercise of his independent right. There is therefore no force in this contention.
(3.) The next point which was urged was that the Excise Commissioner gave no notice to the Petitioner and considered the matter ex parte. Section 11 of the U. P. Excise Act provides that the Collector shall in all proceedings under the Excise Act be subject to the control of the Excise Commissioner and all orders passed by the Collector under this Act shall be appealable to the Excise Commissioner in the manner provided by such rule as the Local Government may frame in this behalf. No rule has been pointed out to me under which the petitioner was entitled to any notice. More over, nothing has been pointed out how the Petitioner has been prejudiced by the order of the Excise Commissioner, It is admitted, as I have said earlier, that the Collector acted on the recommendation of the District Advisory Committee which had no power to do so in the case of the shops situated within the municipal limits. The Collector acted on a wrong conception of law inasmuch as he thought that in the absence of properly constituted Municipal Advisory Committee the provisions of the regulations have been complied with by getting the recommendation of the District Advisory Committee. On those admitted facts it cannot be said that the Excise Commissioner's order is illegal or in any way prejudiced the case of the petitioner.;