IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3032 of 2009 Sachchidanand Yadav son of Shri Gorakh Choudhary, Resident of village Barari Jagdish, P.S. Uchkagaon, P.O. Thawey, District Gopalganj… Petitioner Versus 1. The State of Bihar through the Principal Secretary, Department of Registration, Excise and Government of Bihar, 2. The Member, Board of Revenue, Government of Bihar, 3. The Excise Commissioner, Government of Bihar, 4. The Collector, District of Gopalganj… Respondents For the Petitioner: Mr. Y.V. Giri, Sr. Advocate With M/s Rajendra Kumar Giri and Ashish Giri, Advocates. For the Respondents: Mr. P.K. Shahi, Advocate General, (State) with Mr. Vikas Kumar, Advocate, Assistant Counsel to A.G. … 3 24.03.2009 Heard learned counsel for both the sides. The petitioner approached this Court for quashing Clause 4(Ka) of the Sale Notification No. 365 dated 28.02.2009, issued by the Collector, Gopalganj, contained in annexure 1 to this writ application. In the above notification, certain shops were advertised for settlement in groups. It is the case of the petitioner that in other districts of Bihar, the sale notification is being made for single shop and not for a group of shops. It is the further case of the petitioner that in view of the advertisement small businessman cannot 2 apply for the settlement of the liquor shop. It is also submitted that the above notification is violative of Article 14 of the Constitution of India. It is further submitted that the provisions of law while advertising the sale notice for settlement of the liquor shops are not being followed in the District of Gopalganj. A counter affidavit has been filed on behalf of the State stating therein that as per sale notification the excise shops are to be settled in various groups in other districts of Bihar. It is further submitted that certain shops have been clubbed together in the interest of revenue. It is also submitted that many shops were settled singly and in other districts of the State such practice is prevalent. Learned counsel for the petitioner has placed reliance on a decision of a Division Bench of this Court in the case of Balbir Singh v. The State of Bihar and others(2003(2) Patna Law Journal Reports, 508) and in paragraph 6 it was held that the Collector cannot put any condition contrary to the terms of the notification. There is a provision in the Bihar & Orissa Excise Act, 1915 in relation to settlement of liquor shops and the said Act was amended vide notification dated 3 07.03.2008 by the Bihar Excise(settlement of licences for retail sale of country/spiced country liquor, foreign liquor/beer, and composite liquor shop) Rules, 2007(hereinafter to be referred to as “Rules”), which is as follows:- “Clause (b) “Lottery” means grant of licence through shopwise settlement of retail shops of country liquor/spiced country liquor, foreign liquor and composite liquor shop publicly through draw of lottery amongst more than once applicant in general, and which also includes lottery of shops in lots of upto 3(three) shops, if necessary, tagged in such a manner as to group comparatively more profitable shop of liquor with comparatively less profitable ones, and in such a case not more than 3(three) lots(groups) in a district can be settled with one person, and, further, in case of settlement of a single shop, that shop shall be deemed to be the said lot(group) of shops.” The aforesaid amended Rules enables the State to grant licence through shopwise or groupwise settlement of retail liquor shops publicly through draw of lottery amongst more than one applicant in general. Rules contains the policy of the State and it is not correct to state that only in Gopalganj District alone, shops are settled in groups. Policy of the State cannot be questioned before the 4 Court unless there is violation of fundamental rights or violation of law. The Apex Court in Maharashtra State Board of Secondary and Higher Secondary Education and another v. Paritosh Bhupesh Kumarsheth(AIR 1984 SC, 1543) has held that Court should not examine merits and demerits of a policy laid down by a regulation. Any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires. Even if the policy is a foolish one, Court has no power to set aside the same. Court need only three aspects: (i) Whether the provisions of the regulations fall within the scope and ambit of the power conferred by the Statute; (ii) Whether the regulations/rules framed by the delegate are to any extent inconsistent with the provisions of the parent enactment; and (iii) Whether they infringe any of the fundamental rights or other restrictions imposed by the Constitution. After introduction of the Rule that upto three shops can be clubbed together, the shops to be clubbed together were also mentioned in the notification and advertisement. Therefore, dicta in Balbir Singh’s case has no application in this case as there is no conflict between 5 Rules and Notification and according to the above decision settlement cannot be made against the terms of the notification. Since by the impugned notification certain shops are mentioned to be sold in groups such shops now cannot be sold single. It cannot be said that there is fundamental right for sale of liquor. Manufacture and sale of liquor is exclusive privilege of the State as held by the Supreme Court in Cooverji B. Barucha v. Excise Commissioner, Ajmer(AIR 1954 SC, 220) and in Lakhanpal v. State of Orissa(1976) 4 SCC, 660). Of course, State cannot violate the provisions of Article 14 of the Constitution of India and discriminate between citizens. The petitioner failed to show how the above provisions violate Article 14 of the Constitution. It is the case of a policy of the State to club uneconomical shops with profitable shops. Such policy was made to protect the interest of the revenue. All shops are not clubbed together, only certain shops were clubbed together considering the economic feasibility as well as the Rules. It cannot be stated that there is malafide. Pertitioner failed to show that such a provision is violative of the provisions of Article 14 of the Constitution. Fetching more 6 revenue while granting exclusive privilege to State to sell liquor to citizens cannot be stated violative of the Constitutional provision or discriminatory as held by the Supreme Court in State of Haryana v. Jage Ram(AIR 1983 SC, 1207). In any event, the petitioner has not challenged the Rules. Learned counsel for the petitioner further submitted that in case of settlement of a single shop, the case of the petitioner may be considered. In view of the amended Rules, as stated hereinabove, someone applies for the settlement of a single shop and if that shop can be sold only along with another in a group such application can be deemed to be an application for settlement of group of shops, as advertised. But the petitioner did not apply for any of the shops and if he applies for any one of small shops it cannot be sold singly, but only in group. Such an application can be considered as an application for settlement of group shops as mentioned in the Notification and if he is selected by lottery system he is bound to take all the shops in the group. The petitioner is also free to apply for a single shop as except a few shops most of the shops in the District itself were advertised for selling as 7 single shops. Since the petitioner has not challenged the Rules and even otherwise no shops can be sold except otherwise than in terms of the Notification no shops can be sold, there is no merit in the writ application. With the aforesaid direction, this application is dismissed. (J.B. Koshy, CJ) SC ( Dr. Ravi Ranjan, J.)