- (1.) THIS is an appeal under sec. 9A (1) (b) of the Rajasthan Excise Act against the orders of the learned Commissioner, Rajasthan, Udaipur dated 3-11-1972. An application under order 1, Rule 10 C. P. C. was mover on behalf of the Manager, Adarsh Vidyalaya Ajmer. A copy of this application was given to the appellant and arguments on this application were heard. It has been contended on behalf of the Manager, Adarsh Vidyalaya that the location proposed by the appellant was in the portion of a hotel premises and that the learned Excise Commissioner on 3-11-72 has asked the appellant to suggest some other site. It was further contended that the Adarsh Vidyalaya Girls School is situated in the close vicinity and that under such circumstances he has a right to object. On behalf of the appellant it was contended that the Manager, Adarsh Vidyalay should not be added as a party as his presence would not enable this Hon'ble Court to completely and finally adjudicate upon the points in dispute.
(2.) THE respective contentions of the learned counsel for the parties have been considered. Adarsh Vidyalay Girls School is said to be situated near the site where the liquor shop is to be located. THEre is no harm if the neighbour's are heard. Under such circumstances permission was given to the learned counsel for the Manager, Adarsh Vidyalaya to partake in the arguments on the appeal. It is conteded on behalf of the appellant that the orders of the learned Excise Commissioner dated 3-11-72 are arbitrary and capricious in nature. It is further contended that the learned Excise Commissioner has wrongly usurped the powers of the District Excise Officer. It was therefore contended that the learned Excise Commissioner should not have passed any orders in this connection. It was further contended that the District Excise Officer had recommended the grant of permission for locating the shop. It was also contended that there were large number of objections against the opening of the liquor shop in the Sartaj Hotel just opposite to the proposed shop of the appellant there were no representations but the permission was granted in the case of Sartaj Hotel despite objections and the permission in the appellant's case was refused despite the fact that there were no objections. It was also contended that the District Excise Officer had recommended that the permission be accorded to locate the shop at the proposed site and that the Excise Commissioner has improperly interfered in the jurisdiction of the District Excise Officer. On behalf of the department it was contended that the proposed shop is located in Khalsa Hotel and for administrative reasons a liquor shop cannot be permitted to be located in a Hotel It was also contended that no harm will be caused to the appellant if some other site is proposed by him. It was further contended that the Excise Commissioner has full jurisdiction to pass the order under appeal. On behalf of the Manager, Adarsh Vidyalaya it was contended that the proposed shop would be near the Adarsh Vidyalaya which is a Girls School. It was also contended that the Hotel is being run by the father and that the licence for the liquor shop has been obtained by the son and as such the orders of the learned Excise Commissioner were perfectly justified. In rejoinder the learned counsel for the appellant submitted that the premises in which the liquor shop is to be opened have been separated from the main hotel by constructing pacca walls of lime and bricks. It was also contended that no discrimination should be made against the appellant when the licence to Sartaj Hotel has been issued which is just opposite to the premises in which the appellant wants to locate his liquor shop. ,
(3.) THE respective contentions of the learned counsel for the parties have been considered and the record of the case perused. In sec. 3(19) of the Excise Act place has been defined to include a house, building, shop, room, booth, tent, vessel, boat, raft and enclosure. Rule 49 of the Rajasthan Excise Rules lays down that shop licences for the retail sale of foreign liquor shall be of two classes i. e. one for the retail sale for consumption on the premises and the other for retail sale for consumption off the premises. From the perusal of the file it appears that on 25-10-72 the District Excise Officer worte to the Excise Commissioner that there are no disqualifications as enumerated in rule 3(7) of the Foreign Liquor Rules, 1972 and as such necessary orders may be passed. On 27-10-72 sanction was accorded for the issue of licence. THE office note dated 3-11-72 reads as under : - - "Here again is a case of the type of Sartaj Hotel. Here the shop is proposed in the building where Khalsa Hotel is run. Decision of this case depends on decision in case of shop in the building of Sartaj Hotel. THEre is however no representation from public in this case." The learned Excise Commissioner however on 3-11-72 passed an order stating that the applicant be asked to suggest another site. The District Excise Officer however in his letter dated 27-10 72 had stated that the site has to be rejected judiciously and no arbitrary order can be passed, otherwise legal complications would arise. He was also of the view that no rule or any norm has been laid down regarding the loca-tion of Indian made foreign liquor shops. Vide order-sheet dated 17-11-72 it was stated that in a hotel no liquor can be consumed under the law vide Govt. notification dated 22-1 69. It was therefore suggested that in view of these administrative reasons the permission to open the liquor shop in the premises suggested by the appellant be refused. Considering the position as a whole it appears that the learned Excise Commissioner has interfered at a stage where there was no valid justification. The location of a. shop for the sale of country made foreign liquor is to be decided by the District Excise Officer. The Excise Commissioner shall interfere only when there are some exceptional circumstances. In the present case no such exceptional circumstances have been pointed out. As a matter of fact there is the report of the Excise Inspector that the present premises have been separated from the Hotel by the construction walls of bricks and stones.The District Excise Officer has recommended the opening of the foreign liquor shop in these premises. The office note also says that sanction may be accorded. The learned Excise Commissioner has, however, asked the applicant to propose some other site. The learned Excise Commissioner has not written a speaking and a reasoned order. The order does not state why the liquor shop should not be located here when the Excise Inspector and the District Excise Officer have recommended the same. The peculiar position is that permission was granted to Sartaj Hotel for opening a foreign liquor shop which is just opposite to the proposed shop. The objections raised by the counsel for the Manager, Adarsh Vidyalaya apply with full force in the case of Sartaj Hotel also. The learned Excise Commissioner approved the site in the case of Sartaj Hotel despite representations and rejected the appellant's request despite the fact that the Excise Inspector and the District Excise Officer had approved the same. The learned Excise Commissioner could have passed any reasoned order with judicious approach. We have given our most anxious consideration to the various aspects of the case and we have no hesitation in holding that the learned Excise Commissioner has erred in not according permission to the appellant for opening the foreign liquor shop in the premises of the Khalsa Hotel. For the reasons stated above the appeal is allowed. The orders of the learned Excise Commissioner dated 3 11-72 are hereby set aside. Permission is hereby accorded to the appellant to locate the shop for the sale of Indian made foreign liquor in the premises of the Khalsa Hotel as shown in the plan submitted by him. ;