N.D.Ojha, J. - (1.) FOUR country liquor shops in the district of Meerut situate at Anaj Mandi, Delhi Road, Sabun Godam and Mohiuddinpur were auctioned on 29th March, 1978. The petitioners were the highest bidders, their bid being for a sum of Rs. 20,00,000. As would be shown later the location of the fourth shop was at Rethani and while holding the aforesaid auction it was shifted to Mohiuddinpur. By an order dated 19th April, 1978, a copy whereof has been filed as Annexure-11 to the writ petition, the Excise Commissioner required the District Magistrate, Meerut either to shift the Mohiuddinpur shop to a distance of 8 kms. from the border of Ghaziabad or to auction this group of shops afresh. This order states that the shop located at Rethani had without prior sanction been shifted to Mohiuddinpur and auctioned which was not in accordance with the rules. This could not be done without the concurrence of the District Magistrate of both the districts inasmuch as Mohiuddinpur was situate within 3 kms. of the border of Ghaziabad. It is this order of the Excise Commissioner which is sought to be quashed in the present writ petition.
(2.) THE writ petition has been contested both on behalf of the State of Uttar Pradesh and the Excise Commissioner on the one hand and also on behalf of one Krishan Lal who has been impleaded as respondent No. 6 in the writ petition on an application made by him for this purpose. An application was made on behalf of the State Government and the Excise Commissioner by their standing Counsel for dismissal of the writ petition on the ground that the petitioners had an alternative remedy of filing a revision before the State Government. When that application came up for hearing it was considered expedient to hear the writ petition itself on merits. Having heard counsel for the parties we are of opinion that the writ petition is not maintainable. From Annexure-CA 2 to the counter-affidavit of H.C. Dwivedi, Excise Inspector, it appears that the three shops situate at Anajmandi, Delhi Road and Sabun Godam were auctioned on 29th March, 1978, for a sum of Rs. 21,40,000/- whereas a fourth shop which was situate at Rethani was auctioned for a sum of Rs. 1,00,000/-. Thus the total auction money for all the four shops came to Rs. 22 40,000/-. From the said annexure it further appears that the petitioner No. 1 Shri Krishna made an application that in case the shop situate at Rethani was shifted to Mohiuddinpur and if the three shops referred to above and the shop so shifted at Mohiuddinpur were auctioned afresh in one group he was prepared to make a higher bid. The District Magistrate on the basis of the said application decided to shift the Rethani shop to Mohiuddinpur and to auction all the four shops afresh. On these four shops being re-auctioned the petitioners bid for Rs. 26,00,000/-. It is further apparent from the said annexure-CA 2 that the Collector shifted the shop from Rethani to Mohiuddinpur with the specific condition that the permission of the Excise Commissioner will be taken in this behalf later on. Annexure-CA 2 is the copy of a letter dated 10th April, 1978, and it is addressed to the Excise Commissioner. A complaint was also made in this behalf by respondent No. 6 to the Excise Commissioner. It appears that the impugned order was passed by the Excise Commissioner on the basis of letter dated 10th April, 1978, aforesaid and presumably also on the basis of the complaint made by respondent No. 6. By Excise Commissioner's Notification No. 10758 dated March, 10, 1976, Rule 373 of the U.P. Excise Rules has been substituted, Sub-rule (2) of R.373 reads :- "The final acceptance of any bid is subject to the sanction of the Excise Commissioner which in its turn, is subject to decision by the Government in appeal or revision, if any." According to the petitioners they were given possession over the four shops after their auction on 29th March, 1978. It is however, not their case that their bid had been accepted by the Excise Commissioner on any date prior to 19th April, 1978, when the impugned order was passed. On the other hand it is the specific case of the respondents that the petitioner's bid had not been accepted till 19th April, 1978, when the impugned order was passed. It is in this context that we have to consider the grievance made by the petitioners in the present writ petition.
(3.) FOR the respondents it has been urged that the writ petition is not maintainable (1) because the petitioners had no legal right on 19th April, 1978, when the impugned order was passed to institute the present writ petition, and (2) at all events, the petitioners had an alternative remedy of filing a revision before the State Government under S.11(2) of the U.P. Excise Act read with Rules 138 and 373(2) of the Rules framed under the said Act. In our opinion both these contentions are well founded. In Civil Misc. Writ Petn. No. 1139 of 1965 Munni Lal and another v. The Excise Minister and others, decided on 9th Dec., 1965 (All), a Division Bench of this Court held :- "As the shop must remain open every day the Excise Commissioner empowers the Collectors to issue 'provisional' licences to persons whose bids have been accepted by them, when the acceptance of a bid of the holder of a provisional licence is sanctioned the licence becomes final; otherwise the licence comes to an end. A licence that is called provisional is the only licence that is dealt with in the rules; it is provisional in the sense that without its being cancelled or surrendered it is liable to cease to be operative on the acceptance of the bid not being sanctioned; since it was granted without the sanction and since there cannot be a valid licence without the sanction it is liable to become inoperative on the Excise Commissioner's deciding to withhold the sanction. In the case of a licence granted after the sanction it can cease to be operative only on cancellation or surrender. A licence granted without the sanction is also liable to become inoperative on the sanction being refused and this is the only difference between what is called a provisional licence and a final licence, otherwise a provisional licence is as effective as a final licence. A provisional licence is operative so long as the Excise Commissioner does not decide whether to grant or refuse the sanction, if he grants sanction it remains operative for the rest of the year otherwise it ceases to be operative from the date of the refusal. There are no rules regarding a provisional licence, it is granted only as a matter of favour by the Excise Commissioner and no person whose bid had been accepted by the officer conducting an auction has a right to it. As I said earlier the only right of such a person is to a licence and that only when the acceptance of his bid is sanctioned by the Excise Commissioner. The grant of a provisional licence simply validates the possession and sale of the intoxicant by the person and does not confer any other right upon him. So long as the provisional licence is in operation he can go on possessing and selling the intoxicant but since he has no right to the sanction of the acceptance of his bid he has no right to the continuation of the provisional licence beyond the date for which it is granted. It is granted only for the period during which the question whether the acceptance should be sanctioned or not remains pending with the Excise Commissioner; as soon as he decides it the provisional licence ceases to be operative and what right its holder gets for the future depends upon what the Excise Commissioner's decision on the question is. So there is no infringement or deprivation of any right of the holder of a provisional licence by the Excise Commissioner's refusing to sanction the acceptance of his bid." In Virendra Kumar v. State (1978 All LJ 108) another Division Bench of this Court has held (at Pp. 109-10) :- "Rule 373(2) provides that the final acceptance of any bid is subject to the sanction of the Excise Commissioner, which in its turn, is subject to decision by the Government, in appeal or revision, if any. The manner in which the settlement is to be made is laid down in R.373. The rule, among other things, provides that the treasurer of the district, or one of his recognised assistants, shall be required to attend the sales to receive the advance fees paid by bidders provisionally accepted. Sub-rule (8) states that when a final decision is arrived at, the amounts so held in deposit should be at once credited or refunded, as the case may be. It would thus appear that the mere provisional acceptance of the bid does not confer any right upon the bidder unless the bid is accepted by a recognised authority. Under the rules, no concluded contract between the bidder and the State Government comes into existence." It is thus apparent that on 19th April, 1978 when the impugned order was passed the petitioners did not have any enforceable legal right. It was open to the Excise Commissioner either to sanction or not to sanction the acceptance of the petitioner's bid. For the petitioners it was urged that the order dated 19th April 1978, did not amount to refusal of the petitioner's bid. We find it difficult to accept this contention. The contents of the said order have been quoted above and on its perusal we are satisfied that the Excise Commissioner did not sanction the bid of the petitioners finding it to be contrary to rules and asked the Collector either to remove the shop, shifted as aforesaid to Mohiuddinpur, to a distance of eight kms. from Ghaziabad or to auction the group of the four shops afresh. Such a direction does not convey any other meaning except that the petitioner's bid had not been sanctioned.;