Madhya Pradesh High Court
M/S Siddharath And Company vs The State Of Madhya Pradesh on 28 March, 2018
Equivalent citations: AIRONLINE 2018 MP 1440
THE HIGH COURT OF MADHYA PRADESH
WP-8514-2015
(M/S SIDDHARATH AND COMPANY Vs THE STATE OF MADHYA PRADESH)
Jabalpur, Dated : 28-03-2018
Petitioner by Shri Anil Khare, learned Senior Counsel assisted
by Shri Rajesh Maindiretta and Shri Gopal Jaiswal, Advocates and
Shri Naman Nagrath, learned senior counsel assisted by Shri Anvesh
Shrivastava, Advocate.
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Respondent Nos.1 to 3/State by Shri Sanjay Dwivedi, learned
Dy. A.G. e ad Smt. Indira Nair, learned Senior Counsel with Shri D.K. Paroha, Advocate for respondent No.4.
Pr Smt. Kanak Gaharwar, learned counsel for the respondent No.5.
a Shri Sanjay Agrawal, learned counsel for the intervener.
hy This petition has been filed under Article 226 of the Constitution ad of India seeking quashment of the orders impugned dated 7.4.2015 Annexure P/12, 4.4.2015 Annexure P/6, notice dated 15.4.2015 M Annexure A/14 and notice dated 8.6.2015 Annexure A/15 and also of seeking quashment of the communication dated 13.4.2016 Annexure P/26 by which while deciding the application for grant of trade rt license, the respondent Nos.4 and 5 have directed the petitioner to ou close the shop and imposed the amount of fine for the financial year C 2015-16 and 2016-17. However, the direction has also been sought that the respondent Nos.4 and 5 be directed to issue trade license for h ig FL-1 liquor shop granted to petitioner by the State Government. H
2. Separate reply to the petition has been filed by the State Government, Cantonment Board and the Station Commandant and the rejoinder has also been filed by the petitioner. Various applications have been filed by the petitioner as well as the respondents to take the documents on record.
3. On perusal of the pleadings of both the parties and on perusal of the documents, the moot question arise for consideration in the present case are that -
(i) Whether grant of the licence by the State Government for the retail sale of liquor without knowledge and consent of the Station Commandant is permissible or not ?
(ii) Whether a liquor licensee of the State can run his shop without trade license granted by the Cantonment Board ?
(iii) Whether the Cantonment Board can refuse or withhold the licence for an inordinate period and what may be its reason ?
4. After hearing learned counsel appearing on behalf of both the parties all these questions are taken for consideration analogously and to advert the arguments as advanced, Section 20 of the M.P. Excise Act (hereinafter referred to as "Excise Act") is relevant, which is reproduced as under :-
sh "20. Manufacture and sale of liquor in Military e ad Cantonments - Within the limits of any Military Cantonment, and within such distance from those limits as Pr the Central Government in any case may prescribe, no a licence for the retail sale of liquor shall be granted except hy with the knowledge and consent of the Commanding ad Officer."
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5. On perusal of it, it is apparent that within the limits of Military Cantonment and within the distance from those limits as of prescribed by the Central Government by a notification, licensee for rt the retail sale of the liquor shall not be granted except with the ou knowledge and consent of the Commanding Officer, meaning thereby either in the Military Cantonment area or within the limits of distance C as prescribed by the notification by the Central Government, grant of h ig licence without knowledge and consent may not be granted by the State Government.
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6. Learned Dy. A.G. appearing on behalf of the respondent Nos.1 and 3 has produced certain documents indicating that earlier in the year 1991 some objection was raised by Cantonment Board to which reply was submitted by the Excise Department to not to refuse consent otherwise they will have to check the grant of license even to the Military Canteens, thereafter, no objection was not required to be called or received and the State Government continued to grant the licence, perceiving it to be their consent and shop is running on the same place since last more than 25 years. Therefore, it can very well be presumed that the grant of license within the Military Cantonment area was in the knowledge of the Station Commandant which may be treated to be implied consent on their part, therefore, the objection raised by respondent No.5 of not granting the consent is not justified.
7. On the other hand, Smt. Indira Nair, learned senior counsel as well as Smt. Kanak Gaharwar, learned counsel submits that grant of license is not permissible without their consent and NOC, however, if such grant is made, it is void ab initio.
8. During course of hearing, nothing has been brought to the notice of this Court that after grant of licence, in case NOC has not sh been obtained what would be the effect of such grant of licence.
e Meaning thereby, the condition as enumerated under Section 20 of the ad Excise Act with respect to grant of the licence of retail sale of liquor Pr within the Military Cantonment area ought to be with the consent, which is obligatory procedural requirement, therefore, even on using a the word "shall", it may be treated to be directory but the said hy procedural requirement ought to be observed by the State Government ad prior to granting the licence asking NOC/consent from the Station M Commandant. But because its consequence has not been specified in the Excise Act, therefore, if licence is granted already it would not be of declared void, due to not obtaining the permission consent, in the facts of the case.
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9. Thus, it is to be held that the compliance of Section 20 is ou directory and ought to be observed by the State authorities obtaining C consent from the Commanding Officer of the Station of military h cantonment where grant of the licence of retail sale of liquor is ig required. In case, the Government sought consent for grant of licence, H it may be consented by the Commanding Officer as far as possible within a week from the date of request made by the State Government.
10. As per Section 277 of the Cantonments Act, 2006 (hereinafter referred to as "Cantonment Act"), it is prescribed that a person of any of the following class as specified in Section (1)(a) to (t) shall not be allowed to carry out certain occupations in any part of the cantonment unless he has applied and obtained a trade licence in this behalf from the Cantonment Board. The constitution of the Board has been specified in Section 12 of the Act wherein the Station Commandant is the Chairman of the Cantonment Board. However, after grant of the license by the State Government to licensee, he is supposed to take a trade licence from the Board to carry out the business or occupation within the part of the military cantonment area on in the precincts of that area as notified by the Central Government.
11. On perusal of language of sub section (2) of Section 277 makes it clear that when a person has applied for trade licence, ordinarily it ought to be granted and its refusal or its withholding by the Cantonment Board is only for the reasons to believe that such sh business which is intended to establish or maintain would be offensive e or dangerous to the public or that the premises in which the business is ad intended to be established or maintained are unfit or unsuitable for the Pr purpose, meaning thereby, in case a person applies for grant of trade licence, it ought to be granted by the Board or otherwise for the said a two reasons, i.e. offensive or dangerous to the public or the premises hy in which the business is to be done is unfit or unsuitable, the grant of ad the trade licence may be refused by the Board, and not for any other M reason.
12. Indeed, it is true that consumption of alcohol may be of dangerous to the human life but its sale is permissible under the provisions of the M.P. Excise Act to the individual by licence.
rt However, after obtaining the licence from the State Government, the ou licensee may apply to the Cantonment Board for obtaining the trade C licence. However, it is explained here that after grant of licence by the h Government to licensee, primarily, the said occupation would not ig come within the purview of offensive or dangerous to the public H subject to establishing additional circumstances prevalent to take a view by the Board to deny the grant of trade licence being offensive and dangerous. In this context, it cannot be ignored that even in the military run canteens in the cantonment areas, liquor license are being granted under the provisions of the Excise Act to which the license is required to be taken by the management of the cantonment area from the State Government to run the liquor shops. However, for this reason also, running of the shop by a licensee, by way of a trade in the cantonment area itself would not be offensive or dangerous until circumstances have been established for refusal of the grant of the said license or otherwise the premises may be declared as unfit or unsuitable to run the said license shop. In such circumstances, it is to be held that taking of the trade licence by a licensee of liquor shop from the Cantonment Board is an essential requirement which ought to be followed but simultaneously, the refusal by the Board can be only within the strict parameters as specified in Section 277 (2) of the Cantonment Act.
13. In the present case, no document is available on record to indicate that the petitioner who applied for grant of the trade licence in sh the financial year 2015-16 and 2016-17 has been refused for the e reasons as specified in Section 277(2) of the Cantonment Act by the ad Board. In absence of having such refusal, imposition of the damages Pr and the amount of fine is not permissible, hence these orders are liable to be quashed. In view of the discussion made hereinabove, the a questions posed for are hereby answered accordingly in the context of hy provisions of Section 20 of the Excise Act and Section 277 of the ad Cantonment Act. In consequence of answering the said questions, this M Court hope and trust that the State Government and the Cantonment Board shall take appropriate steps prior to grant of the licence to the of individual and thereafter, if any application is filed by the licensee for grant of trade licence, it may be granted subject to the exceptions rt carved out in the Cantonment Act. If the State Government approaches ou for consent to the Cantonment Board to seek consent then such a C application ought to be disposed of as far as possible within a week. It h is also expected from the Cantonment Board that when a licensee ig applies for grant of trade licence, such application must be disposed of H expeditiously within a week from the date of submission of the application on depositing of requisite fees.
14. It is relevant to note that this Court, after grant of licence in favour of the petitioner granted interim relief on 23.6.2015. Thereafter, on 15.7.2015 and 27.4.2016, the said interim relief continued, which is still operational. In addition to the aforesaid, as per discussion made hereinabove, it is a procedural requirement which is to be observed by both the authorities and the trade licence ought to be obtained by the petitioner which may not be refused, therefore, in the said peculiar circumstances, the orders dated 7.4.2015 (Annexure P/12), 4.4.2015 (Annexure P/6), notice dated 15.4.2015 (Annexure A/14) and notice dated 8.6.2015 (Annexure A/15) and also communication dated 13.4.2016 (Annexure P/26) are hereby quashed. Accordingly, this petition stands allowed and disposed of with the aforesaid observations. In the facts, parties to bear their own costs.
(J.K. MAHESHWARI) JUDGE sh PK e ad Digitally signed by PARITOSH KUMAR Pr Date: 2018.04.09 11:33:03 +05'30' a hy ad M of rt ou C h ig H