Bapna, J. - (1.) THIS is a petition under Article 226 of the Constitution of India for issue of an order in the nature of a writ of mandamus, a writ of certiorari, and a writ of prohibition.
(2.) THE petitioner, Mr. Naraindas P. Advani, agreed to become a licensed vendor of country liquor at an auction sale held on the 13th of February, 1950, in respect of a shop at Jodhpur, regarding the description whereof there is some dispute. According to the petitioner, the successful bidder was free to ran the shop at any place in the Ratanada area, and he gave a bid of Rs. 14,000/- for one year from the 1st of April, 1950, on that basis, and paid into the Government Treasury certain sum of money as a deposit required under the Rules. It was alleged that the petitioner decided to run his liquor shop in Bhanwar Lal Sonar Building, where a Government shop existed previously, and on an enquiry by Mr. A. S. Bhatnagar, Inspector, Customs and Excise, respondent No. 2, the petitioner inform-ed him to that effect on the 3rd of April, 1950. It was stated that the licensed vendors of certain other shops in the adjoining areas complained that their sales had been affected by the petitioner's shop being located in Bhanwar Lal Sonar Building, and the officers of the Excise Department directed the petitioner by an order dated the 3rd of April, 1950, Ex. F. 1, to close the shop in Bhanwar Lal Sonar Building and to shift the same to some other place near the Police Lines. On the petitioner's declining to shift his shop, the Inspector reported to Mr. Jagannath N. Purohit, Deputy Commissioner of Customs and Excise, respondent No. 1, recommending that an order be passed to close the shop and to seize the stocks. It was alleged that the Deputy Commissioner directed Mr. B. D. Chopra, Collector of Jodhpur, respondent No. 3, to act accordingly, and the petitioner's request for permission to carry on the shop at Bhanwar Lal Sonar building, which he was entitled to do lawfully, was turned down, and that steps were in contemplation to seize his goods and to close the shop. It was contended that the order to close the shop and to seize the supplies or withhold further supplies was illegal and ultra vires. It was averred that the orders by the Excise Officers, respondents in this case, were not made in good faith but were mala fide, and made with the sole object of depriving the petitioner of his lawful profits in the trade and to put him to serious loss. It was prayed that an order in the nature of the writ of mandamus be issued restraining the respondents from enforcing or executing the order of 3rd April, 1950, which purported to close down the petitioner's shop and to seize his supplies. It was also prayed that the order complained of was- in the nature of a judicial or quasi judicial order, and a writ of certiorari be issued against the respondents calling for the records of the proceedings, and the said order of 3rd April be quashed. It was further prayed that a writ of prohibition be issued against the respondents preventing them from taking further steps in execution of the order. It was finally prayed that this Court should order the three respondents to permit the petitioner to run his country liquor shop at Bhanwar Lal Sonar building and to allow him the supplies. Notice was issued to the respondents who admitted that the petitioner was a licensee for Ratanada area liquor shop from the 1st of April, 1950, but it was contended that the petitioner had no right to open the shop at any place he liked, but on the contrary, he had to run the shop near the Police Lines where existed the shop of the previous licensee. It was alleged that at the time of the auction sale it was clearly mentioned to the intending bidders that the Government liquor shop in Bhanwar Lal Sonar building would be closed, and the Ratanada area liquor shop would have to be located near the Police Lines. It was admitted that on the complaint of the licensee of Rawton-Ka-Bas liquor shop that the running of the liquor shop by the petitioner in Bhanwar Lal Sonar building affected his sales, the petitioner was asked by Mr. Bhatnagar, respondent No. 2, under instructions of the Collector of Jodhpur, respondent No. 3, to shift his shop, but that at no time the petitioner was asked to close his shop or to hand over his stocks, or was refused fresh supplies of goods. It was contended that under the Excise law, the Excise Officers had power to shift any shop, and on failure to comply with the order, the respondents had power to cancel the licence under certain circumstances. It was alleged that the Collector of Jodhpur, respondent No. 3, had sent for the petitioner to hear his version in the matter before passing any final order in the matter, but the petitioner did not appear before him. The charge as to mala fides was denied The propriety of the petitioner's moving this Court was challenged also on the ground that it was an executive action of the Excise Authorities, and an order by any of the respondents was open to appeal under the Excise law. One Lal Chand, the licensee of the Rawaton-Ka-Bas liquor shop, also put up a petition that the auction sale for grant of licenses for various country liquor shops at Jodhpur was called on the 13th of February, 1950, and it was notified by Mr. Adib, Assistant Commissioner, Excise and Salt, that the Government shop at Bhanwar Lal Sonar building would be closed and the Ratanada shop would be located near the Police Lines, and on that basis he gave bid for the Rawaton-Ka-Bas shop for Rs. 33,000/-, and that the location of the shop by the petitioner in Bhanwar Lal Sonar building would deprive him of the patronage of numerous customers, and was likely to affect his interests. The parties filed various affidavits and documents and elaborate arguments were advanced by counsel for the parties. At one stage it was argued for the respondents that the bids for the Ratanada area shop and Rawaton-Ka-Bas shop were called after an oral notification by Mr. Adib, the officer conducting the auction sale, that the Government shop at Bhanwar Lal Sonar Building would be closed and the Ratanada area stop would have to be located near the Police Lines. This fact was denied by the petitioner and the auction list, EX. X. 16, which contains the record of the proceedings on that day, does not contain any reference to the oral notification made by Mr. Adib. As the petition is not maintainable on other grounds, which will be discussed hereafter, it is not necessary to go into the question whether any oral notification was made in addition to the terms mentioned in the documents of proclamation or how far such oral notification can be of binding effect in the absence of any reference thereto in the auction list, EX. X. 16, which forms the basis of the contract for the grant of licence. The petitioner relied on a proclamation, EX. A, for the contention that each shop related to a particular area within which he was free to locate his shop anywhere. He also relied upon a letter, Ex. D. 1, by respondent No. 2, dated the 1st of April, 1950, by which he asked the petitioner to declare the place and the building where he proposed to run the country liquor shop in the Ratanada area. The proclamation, Ex. A, however, contains only a preliminary information that auction sales relating to excisable articles will be held on or after certain dates in each division, and that the Commissioners of each division will notify the dates in respect of each district and circle. Certain general terms to be complied with by the licensees were also mentioned therein. This notification, which was issued by the Commissioner, Customs and Excise Department of Rajasthan, did not purport to fix any circles or areas for the various shops. The notification by the Jodhpur Divisional Commissioner, under which the auction sale was held on the 13th of February, 1950, has been produced by the respondents and is Ex. X. 12. It was issued by Mr. Jagannath N. Purohit, Divisional Excise Commissioner for Jodhpur, respondent No. 1. It purported to notify the dates on which the sale was to take place in respect of shops in various districts, and contained a note at the bottom that the list of the shops in any district could be seen in the office of the Collector of the district. A copy of such list of shops in Jodhpur City, Ex. X. 13, has been produced. It seems to have been prepared in the year 1948-49, and it has been stated in the affidavit that the list is the same even now. The shop in dispute is mentioned at No. 9 of this list, and is named as Ratanada Road shop. A perusal of the list shows that the shops are mentioned with respect to their situation and not with respect to any area to be served by them. Certain documents have been produced by the respondents, viz. , Exs. X. 1, X. 3. X. 4 and X. 5 which showed that the shops were located at different places according to the discretion of the Excise authorities and on some occasions shops were shifted from one place to ano:her under their orders. The petitioner's contention that every shop had a particular area 10 serve and within which it can be located at the will of the licensee is not supported by any rule, regulation or order. The Inspector's letter, Ex. D. 1' only purports to show that the wishes of the licensee are also considered by the Excise authorities in fixing the location of the shop. The excise law in Rajasthan has not yet been unified, and the matters pertaining to Jodhpur Division are governed by the Marwar Excise, Opium and Drugs Law, 1922, Sec. 4 whereof empowered the Government to make sure relating to the possession and sells of excisable articles including country liquor. Rule 17 permits a licensed retail vendor to possess at the premises covered by the licence or in direct transit thereto any quantity of liquor lawfully obtained by him from a warehouse. The rule obviously means that the licensed vendor must obtain a licence in respect of the premises wherein he wants to conduct his trade. The proclamation, Ex. A, also contains a term, No. 15, declaring the existing rules to be binding on the licensees. The petitioner's contention that he is authorised to store and sell liquor at any place within the Ratanada area according to his choice is, therefore, not correct. The auction sale, no doubt, related to a shop on the Ratanada Road or Ratanada area, but the actual situation of the shop was to receive the approval of the Excise authorities, and was to be mentioned in the licence for which purpose a communication, Ex. D. 1, appears to have been addressed by the Inspector of Excise to the petitioner on the 1st of April, 1950. In approving the premises, the Excise authorities have naturally to take into consideration several factors, besides the convenience of the petitioner, one of them being the convenience of the other licensees in the town. A liquor shop may not be desirable in certain locality, as for example, a school. The contention for the Excise Department that the shop is to be located at the same place as the earlier shop is also not founded on a sound reasoning, since it may be that the owner of the particular building may not allow the new licensee to run his shop at the old place. In a matter like this, the rule would appear to be that while a licensee has a certain amount of choice in locating the shop, the final approval of the premises lies with the Excise authorities. Any arbitrary refusal of the approval by the Excise officers can be set right by an appeal to the superior officers. Section 30 of the Marwar Excise Law, referred to above, provides for appeal against the orders of the various Excise Officers to higher officers, and an ultimate appeal to the Government, or the controlling authority. In the present case, the Inspector, Respondent No. 2 no doubt, asked the petitioner to shift his shop on the 3rd of April, 1950, under instructions of the Collector of Jodhpur, but the Collector later on decided to hear the petitioner against the complaint of the Inspector that the petitioner had failed to comply with the order. The notice Ex. X. 15 fixed the 6th of April for hearing the petitioner. This date was adjourned owing to the absence of the Collector from his headquarters, and later on because the present proceedings were started. The petitioner came to court without availing of the opportunity to place his point of view before the Collector. In case he was dissatisfied with the orders of the Collector, he could approach the higher authorities by way of appeal under Section 30 of the Marwar Law. It is argued that the remedy provided by the Excise Law was neither speedy nor adequate. The contention has no forte, since the Excise authorities are expected to be in possession of all facts and circums-tances to enable them to take a quick decision in the case. If the petitioner had a good case, the Excise Authorities had power to pass orders which could give him full satisfaction, and no lack of jurisdiction to grant him an adequate remedy is suggested. The allegation that the order of the Inspector dated the 3rd of April, 1950, was mala fide has not at all been proved. As regards the allegation that an order has been passed to close the shop of the petitioner and to withhold his supplies, the respondents have denied the same by an affidavit. The petitioner has not been able to produce the orders complained of, and the allegation is entirely groundless. These allegations seem to have been made in order to invoke the assistance of this Court without approaching the Excise Authorities, but, as stated above, have been made without any foundation. The proceedings before the Excise Officers are neither judicial nor of a quasi-judicial nature, and there is no ground for the issue of a writ of certiorari or prohibition, and in view of the fact that the matter is still pending before the Collector, and the petitioner will have a right of appeal, the issue of a writ of mandamus would also be improper in this case.
(3.) AS stated above, the approval of the premises where sale of liquor can take place is in the discretion of the Excise Authorities and this Court cannot compel such authorities to exercise that discretion in a particular way unless it clearly appears that there has been an abuse of discretion. In the present case, the matter in still under consideration of the Collector. The petition has no force and is dismissed. The petitioner will pay Rs. 200/- as costs to the respondents. .;