R.S VERMA, J. - (1.) THE petitioner before us was granted a licence for establishment of a bonded were house on 6 -10 -1987 by the Excise Commissioner, Rajasthan Udaipur. This licence permitted the petitioner to establish and a run a bonded Ware -house for the receipt and storage of Indian made foreign liquor under bond, whether bottled or in bulk or both of Indian manufacture transported or imported into Rajasthan from any place within the Indian Union as approved by the Excise Commissioner, for refuse, bottling, transport or export in bond or on payment of duty Within or outside the State. The petitioner was required to establish a bonded Ware -house and a bottling plant in the city of Jodhpur as per the terms and conditions mentioned in the said licence. The licence was granted in pursuance of the provisions of s. 17(d) of the Rajasthan Excise Act, 1950 (Act No. 11 of 1950) here in after called 'the Act.' The licence, inter alia, stated that the bonded were house was to be established within one month of the grant of licence. This term of one month stood substituted by a term of six months, vide notification Ex. 3.
(2.) THE petitioner failed to establish a bonded Ware -house and a bottling plant within six months of the grant of licence. The case of the petitioner is that immediately after grant of licence, the petitioner made efforts to enter into colloboration agreements with various renewned distilleries. There was a delay in conversion of the petitioner's agricultural land at Boranada near Jodhpur City into industrial land because the district authorities were ousy with famine relief operations. Later on, they became busy with Panchayat elections. When the petitioner failed in getting his agricultural land converted into an industrial land, he eventually, obtained a plot from RIICO at Boranada vide letter dated 14 -7 -1988 (Ex 10). In the mean while, in pursuance of letter Ex. 5 of the Excise Commissioner. Udaipur, the petitioner deposited a sum Rs. 25,000/ being renewal fees of the licence for the year 1988 -89 vide challan Ex. 6 dated 27 -2 -1988. Immediately after acquiring the plot, the petitioner started construction of the bottling plant and he almost completed the construction of the plant by August, 1988. The petitioner kept the excise authorities informed about this progress from time to time as would be evident from letters Ex. 7/1, Ex. 7/2, Ex. 7/3, Ex. 7/4, and Ex 7/5. It was submitted that the excise authorities were aware of the progress made by the petitioner. The Inspector, Excise, Jodhpur, also informed the District Excise Officer, Jodhpur, of this progress vide letter Ex.P 6 dated 10 -5 -1988. By this letter, the Excise Inspector confirmed the truth of the progress report submitted by the petitioner to the District Excise Officer. The District Excise Officials were enquiring about the progress of the petitioner's work till as late as 16 -6 -1988 as would be evident from Ex. 8 and Ex 8A. The petitioner has averred that eventually he wrote to Commissioner of Excise, Rajasthan, Udaipur, to renew the licence. The petitioner is said to have enclosed with his letter Ex. 9A, the allotment letter Ex. 10. This request to the Excise Commissioner was repeated vide Ex. 12 dated 17 -9 -1988 wherein the petitioner mentioned that he had completed construction of the factory shed. It was intimated, inter alia, that water treatment plant and bottling line were lying ready with the manufactures are the collaborator was also ready to finalise the deal of supplying the spirit but for the renewal of the licence. It would be interesting here to mention that no renewal was granted during the year 1987 -88. The period for application for renewal for the year 1988 -89 was to expire on 28 -2 -1989 and, therefore, the petitioner submitted a new application to the Excise Commissioner, Udaipur, Ex. 15 dated 21 -2 -1989 requesting him to renew his licence for the period 4 -1989 to 31 -3 -1990 The petitioner submitted demand draft of Rs 25,000/ - as licence fee for renewal and prayed that the renewal may be granted for the years 1 -4 -1988 to 31 -3 -1989 and 1 -4 -1989 to 31 -3 -1990. In the meanwhile, the petitioner approached the Hon'ble Minister in the Excise Department vide Setter dated 8 -7 -1988; likewise, he approached Hon'ble the Chief Minister of Rajasthan vide Ex. 14 but to no avail. The case of the petitioner is that in repect of M/s Agro Alwar Mart, Alwar, M/s Shivalik -ka Nema, Jaipur and M/s Ajanta Chemicals, Alwar, the licences have been renewed even though the aforesaid licences had failed to start construction within six months from the date of issue of licence. Upon such averments, it was prayed that an order, direction or a writ including a writ in the nature of mandamus or any other writ be granted and respondents he ordered to renew the licence of the petitioner immediately.
(3.) THE respondents have opposed the writ petition on various counts. Certain preliminary submissions have also been made regarding the maintainability of the writ petition. It has been submitted that Under Section 9A of the Act, the petitioner could have filed an appeal to the Divisional Commissioner from the order passed by the Excise Commissioner and since the petitioner has not availed of this remedy, the writ petition deserves to be dismissed. It was next submitted that there is no fundamental right in a citizen to carry on trade or business in liquor. Section 37 of the Act provides that no one can claim renewal o licence as a matter of right and, therefore, the writ petition was barred by virtue of this provision. It was next pleaded that Excise Commissioner had full authority even to revoke, cancel or determine the licence in the event of infringement of any of the conditions of licence. In this case the petitioner infringed condition No. 13 of the licence by not establishing a bonded were house within the prescribed time nor did he get any plan approved from the Excise Commissioner for construction. It was pleaded that the Excise Commissioner had, infact, declined to renew the licence of the petitioner as back as 19 -7 -1988 vide Annex. R1 sent to District Excise Officer, Jodhpur, who in his turn, sent a copy of the same to the petitioner vide endorsement dated 23 -7 -1988 The Excise Inspector, Jodhpur, also brought this fact to the notice of the petitioner vide a registered letter sent to the petitioner vide Annex. Rule 3, dated 25 -8 -1988 the postal receipt whereof is Annex. Rule 3B.;