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Civil Miscellaneous Petition No. 488 of 1954, decided on 22nd November, 1954, under section 223‑A of Government of India Act, 1935, to issue a writ of mandamus and Prohibition.

Punjab Excise Act (1 of 1914),

S. 43 read with Punjab Liquor License Rules, Rule 5'12‑Refusal to renew license ‑Licensee's objections not heard‑Whether writ of mandamus could be issued‑Government of India Act, 1935, S. 223‑A.

No licensee can as of right claim to have his license renewed and consequently rule 5'12 on which reliance was placed on behalf of the petitioner, must be regarded merely in the nature of a direction to the subordinate officers of the Government while dealing with such cases and did not do away with the discretion of Government in with holding renewal of any particular license at their will. If there is any conflict between the rules framed under the Act and the statutory provisions themselves it is obvious that the statute must prevail and the rules must give way to it.

In this case the Government intimated its decision not to renew the license, without first issuing notice to licensee as directed by rule 5'12.

Held, under section 43, Excise Act, Government had dis cretion not to renew the license and rule 5'12 being of the nature of a direction, no case was made out for issue of mandamus.

Mohsin Shah, for Petitioner.

C. M. Sharif, Assistant Advocate‑General, for Respondent.

S. A. RAHMAN, C. J.‑

This order will dispose of a petition by Muhammad Asghar praying for the issue of a writ of mandamus under section 223‑A of the Constitution Act against the Excise and Taxation Commissioner, Punjab, Lahore A rule nisi was issued by me in this case sitting in Single Bench, but the case has now come up before a Division Bench consisting of Kaikaus J. and myself.

The petitioner's case as laid in the petition is that he along with one, Sikandar Khan, was granted a liquor licence for the vend of foreign liquor at Sargodha in form L2. This was a temporary licence issued by the Excise and Taxation Commis sioner, Punjab, with effect from the 1st August, 1954, and was to terminate on the 30th September, 1954. On the 20th of August, 1954, the Commissioner, Excise and Taxation, Punjab, wrote to the petitioner informing him that Government had decided not to renew his license beyond the date of termina tion of the previous license. It is contended that though the intimation talked of a Government decision, yet it was the Excise and Taxation Commissioner himself who passed the order to the prejudice of the petitioner and that in doing so he had violated the express provisions of rule 5.12 of the Punjab Liquor License Rules framed by the Financial Commissioner, Punjab, by virtue of the powers conferred on him under section 59 of the Punjab Excise Act, 1914. This rule is in the following terms :‑

"Whenever it is proposed not to renew a license granted on a fixed or assessed fee, the authority competent to renew it shall give notice to the holder of such license, record objections, if any, put forward by the licensee and pass a definite order in writing. The licensee may be given on application an authenticated copy of such order. Except with the special sanction of the Financial Commissioner no such order for renewal or non‑renewal shall be made after January 20th in respect of the licenses for the following financial year."

There is a note below this rule which provides that the Excise Inspector is responsible for laying before the Collector, by the 7th January, a list of all licenses requiring renewal, in order that the Collector may decide whether to consider the question of non‑renewal of any license. The list shall be accompanied (a) in the case of licenses on assessed fee, by the certificate of sales required by rule 5.30 and (b) in the case of bottling licenses by a similar certificate showing the gallons (London Proof) bottled up to December 31st. It is asserted that no notice was issued to the petitioner before the decision not to renew his license was taken and he was not given an oppor tunity to urge any objections against such non‑renewal.

In the first place it is necessary to clear ' the ground by saying that the impugned order was not really passed by the Excise and Taxation Commissioner, Punjab, as has been attempted to be made out on behalf of the petitioner. It is conceded by Mr. Mohsin Shah that the letter which was received by the petitioner mentioned that the decision had been taken by Government not to renew the license in question. Mr. C. M. Sharif on behalf of the respondent has shown us from the official file, the original letter issued by the Deputy Secretary Revenue to the Excise and Taxation Commissioner, Punjab, intimating the decision of Government in this respect. The allegation, therefore, that the challenged decision was taken by the Excise and Taxation Commissioner is baseless. The decision clearly was of the Punjab Govern ment.

.

The main question that falls for decision in this case is whether rule 5.12 of the Punjab Liquor License Rules creates a legal obligation on the authorities to give a notice and hear the objections, if any, of the licensee before passing an order refusing to renew his license. If there is such a legal obliga tion it would connote a corresponding legal right inherent in the petitioner to a hearing before an order can be passed to his prejudice. Mr. Mohsin Shah has urged that the rule being a statutory one, creates such a right in favour of his client and the decision not to renew his license could not have been taken without affording an opportunity to the petitioner to put forward his point of view. On the contrary, Mr. C. M. Sharif on behalf of the respondent has drawn our attention to section 43 of the Punjab Excise Act 1914, the provisions of which may be set out in extenso with advantage :‑

"43. No person to whom a license, permit or pass may have been granted shall be entitled to claim any renewal thereof, and no claim shall lie for damages or otherwise in consequence of any refusal to renew a license, permit or pass on the expiry of the period for which it remains in force."

He contends that the statute makes it clear beyond all doubt that no licensee can as of right claim to have his license renewed and consequently the rule on which reliance has been placed on behalf of the petitioner, must be regarded merely in the nature of a direction to the subordinate officers of the Government while dealing with such cases and does not do away with the discretion of Government in withholding renewal of any particular license at their will. This position seems to us to be unassailable in law. If there is any conflict between the rules framed under the Act and the statutory provisions themselves it is obvious that the statute must prevail and the rules must give way to it. It is unnecessary for us to say whether the rule in question is ultra vires the statute, for it is enough for our purposes to hold that even if the rule is allowed to stand, it should be interpreted as a mere direction which does not create legal obligation on the part of the Government, to hear a licensee before deciding against the renewal of his license and correspondingly no right has been created of getting a hearing by the licensee. '

On this view it is unnecessary to consider the other contention raised on behalf of the respondent that rule 5.12 of the Punjab Liquor License Rules does not apply to a temporary permit such as the one that had issued in favour of the petitioner. Assuming that the rule did apply, it does not take away the discretion of the Government to withhold renewal if they so think fit in any particular case, when the rule is read with the provisions of section 43 of the Act. It would be merely an act of supererogation to require the Government to hear the petitioner if in the end the Government would still be at liberty to refuse a license.

Indeed the petitioner has not made Government a party to these proceedings as such, and even on this ground the petition is defective. Mr. Mohsin Shah prayed that he may be allowed to implead Government as a party at this stage. We do not consider that any useful purpose would be served by allowing that prayer in the circumstances of this case. From the legal point of view it is plain that the petitioner is not entitled to any redress as against Government. We, therefore, discharge the rule nisi that had been issued in this case, but in view of the circumstances of the case make no order as to costs.

A. H. Petition dismissed

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