TMI Blog2013 (4) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... o accepted. The report of November, 2012 is not a proof that quantity of sale of liquor has been decreased from the sale of the previous year. The petitioners have deliberately not filed the report relating to the actual quantity of sale for the previous year as well as for the year 2012-13. Excise policy merely authorise the Excise Commissioner to increase new shops up to 15% and with the approval of the Government more than 15%. The actual number of new shops are increased on the basis of the report of the Collector of the district and not at the level of Excise Commissioner. Petitioner contention - there is a violation in the excise policy, it has been advertised that new shops will be increased up to 15% of the existing shops, but 40 new shops have been opened - held that - arguments that number of shops cannot be increased more than 15% is not liable to be accepted. In addition, a reading of the excise policy would show that the limit of 15% increase is not district wise but is applicable to whole State of U.P. Petitioner contention - the new shops have been located within a radius of 500 meters from the existing shops in violation of the provisions of Rules – held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liquor shops. 3. Wine Shop Owners Association (petitioner-1) is a registered society formed by the wine shop owners of district Kanpur Nagar, for watching their interests and Smt. Asha Setia (petitioner-2) was granted licence of foreign liquor retail shop, situated at Karrahi Sabji Mandi, Kanpur Nagar, Smt. Prerna Tiwari (petitioner-3) was granted licence of foreign liquor retail shop, situated at Sutarkhana, Kanpur Nagar and Smt. Savitri Jaiswal (petitioner-4) was granted licence of foreign liquor retail shop, situated at Harsh Nagar, Kanpur Nagar, in the excise year 2012-13. For excise year 2013-14, Excise Commissioner, U.P. with the approval of State Government has framed excise policy. In this excise policy, Excise Commissioner U.P. was authorized to open new shops increasing it's number up to 15% of the existing shop and more than 15% with the approval of State Government. It has been stated that the respondents decided to open 40 new retail shops of foreign liquor and 2 model shops in district Kanpur Nagar. The petitioners were not given any previous information regarding opening of 40 new retail foreign liquor shops and model shops in district Kanpur Nagar, till the submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng shops. The number of the new shops in district Kanpur Nagar is highest in comparison of other districts of the State of U.P. 4. On behalf of respondents-1 to 4, Counter Affidavit has been filed stating therein that before framing the excise policy for the year 2013-14, Excise Commissioner by letter dated 12.12.2012 had requisitioned reports from the Collectors of all the districts in U.P. about the suitability of opening new liquor shops, i.e. country made liquor shop, foreign liquor shop, model shop and beer shop. The letter dated 12.12.2012 was received by District Excise Officer Kanpur on 20.12.2012, accordingly, he directed the Excise Inspectors of different areas to submit their reports, examining the consumption of liquor of different brands in different localities and suitability of the places for opening the new liquor shops. The Excise Inspectors of different areas have made extensive survey and after examining all the factors, submitted reports for opening new retail shops. The reports of Excise Inspectors have been considered by the District Excise Officer and the Collector and after considering all the factors, the Collector Kanpur Nagar by letter dated 25.02.2013, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were received for new shop of Brahm Nagar. Lottery was drawn on 19.03.2013 in which new shop of Harbansh Mohal has been allotted to Smt. Rekha Trivedi (respondent-6), new shop of Chhapera Sabji Mandi was allotted to Sadanand Dubey (respondent-5) and one H.P. Jaiswal and new shop of Brahm Nagar was allotted to Satendra Singh (respondent-7) and one Tilak Raj Sharma. It is submitted that as the shops were already allotted in favour of the allottees, as such, relief (i) of the writ petition has become infructuous. It is further submitted that as petitioner-2 through her son and petitioner-3 herself have participated in the allotment proceedings of new shops, as such, they are not entitled to challenge it's allotment. New shops were opened according to the provisions of law and no illegality has been committed in it. Actual place of business is still to be located of these new shops as such allegations that the new shops are opened within a radius of 500 meter of the existing shops of the petitioners was incorrect. It is submitted that prior notice of opening new shops of foreign liquor and model shops has been given through the notification dated 01.11.2013 and all the information in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toxicants can be prevented also by limiting and controlling its production, supply and consumption. The State can do so also by creating in itself the monopoly of the production and supply of the liquor. When the State does so, it does not carry on business in illegal products. It carries on business in products which are not declared illegal by completely prohibiting their production but in products the manufacture, possession and supply of which is regulated in the interests of the health, morals and welfare of the people. It does so also in the interests of the general public under Article 19(6) of the Constitution. 60 (h).The State can adopt any mode of selling the licences for trade or business with a view to maximise its revenue so long as the method adopted is not discriminatory." Another Constitutional Bench of Supreme Court in State of Punjab v. Devans Modern Breweries Ltd., (2004) 11 SCC 26, at page 97 held as follows : "It is well settled by a catena of decisions that trade in liquor is not a fundamental right. It is a privilege of the State. The State parts with this privilege for revenue consideration." In view of law laid down by the Supreme Court, the argumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong with Counter Affidavit it is proved that proceedings for increase the number of liquor shop has been started in December, 2012. The reports in this respect have been obtained from district level. The reports based on actual consumption has been submitted after extensive survey by the Excise Inspectors which has been duly forwarded by the Collectors of the districts. Excise policy merely authorise the Excise Commissioner to increase new shops up to 15% and with the approval of the Government more than 15%. The actual number of new shops are increased on the basis of the report of the Collector of the district and not at the level of Excise Commissioner. 8. Next argument of the counsel for the petitioner was that although in the excise policy, it has been advertised that new shops will be increased up to 15% of the existing shops, but in violation of the excise policy, 40 new shops of foreign liquor have been opened in district Kanpur Nagar, in addition of existing 156 shops, which is about 25%, as such, the excise policy has not been violated. A perusal of the excise policy shows that increase in number of shops of foreign liquor and model shop can be made by the Excise Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers. In reply, the Standing Counsel submitted that the Excise Commissioner vide letter dated 12.12.2012 has directed the Collectors of all the districts of U.P. to submit the reports for opening new shops. In pursuance of the aforesaid letter, extensive survey was made by the Excise Inspectors of different localities and they submitted their reports on 20.2.2013 for opening 40 new foreign liquor shops in district Kanpur Nagar. The petitioners are in the excise business and all these facts were through out in their knowledge. In any case, the policy has been published by Excise Commissioner, U.P. in the newspaper on 01.03.2013 making it clear that new shops up to the extent of 15% of the existing shops can be opened and more than 15% can be opened with the approval of the Government. The entire policy was available on the website as well as in the Office of the Excise Commissioner, U.P. In this policy itself, three phases of the renewal /allotment have been prescribed, fixing their time schedule. Accordingly, the argument of counsel for the petitioner that the existing licence holders were not given any notice about the opening of new shops, is not liable to be accepted. 11. The a ..... 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