JUDGMENT
1. Heard Sri Shashi Kant Gupta, learned counsel for the petitioner and Sri S.P. Kesharwani, learned Standing Counsel for the respondents.
2. The Club Orient Resorts is a Unit of Orient Orchards Pvt. Ltd. (A company incorporated under the Companies Act, 1956). It applied for grant of licence in Form FL-7C under the U.P. Permit for Possession of Foreign Liquor by Club Rules, 1980.
3. By the impugned order dated 31.12.2004 (Annexure 8 to the writ petition) the District Excise Officer, Kanpur Nagar, U.P. Allahabad has cancelled the licence in view of judgement of this High Court delivered in Writ Petition no. 393 of 2002 - Vision Club a Division of A.M. Constructions v. Commissioner of Excise U.P., Allahabad and Ors. decided on 22nd September, 2004, where in it has been held that such licence cannot be granted as the applicant is not registered either under the Companies Act, 1956 or the U.P. Co- operative Societies Act, 1965 or under the Societies Registration Act, 1860.
4. Aggrieved against the aforesaid order the petitioner filed representation before authority concerned, which too has been dismissed vide order dated 4th March, 2005, Annexure 10 to the writ petition.
5. Challenging aforesaid two orders dated 31.12.2004/ Annexure 8 to the writ petition and dated 4.3.2005/ Annexure 10 to the writ petition, present writ petition has been filed with some delay. After perusing supplementary affidavit (sworn on 4.12.2005 by Ravindra Swaroop Srivastava) and hearing learned counsel for the parties, we find sufficient cause for condoning the delay.
6. Heard learned counsel for the parties on the merits of the case.
7. Sri S.K. Gupta, learned counsel for the petitioner, tried to distinguish aforesaid judgement of this Court and submitted that in similar circumstances Lucknow Bench of this Court has passed an interim order in writ petition No. 755(M/B) of 2005 dated 31st March, 2005. He further submitted that in the case of M/s Vision Club which has been relied upon in the impugned order, the application for grant of licence was filed in the individual name. Elaborating the arguments it was submitted in the case in hands application was filed in the name of the petitioner i.e. The Club Orient Resorts. The learned Standing Counsel, on the other hand tried to justify the impugned order.
8. We have carefully considered to the respective submissions of the learned counsel for the parties.
9. Rule 2, of aforesaid Rules 1980, which is the only relevant Rule for the purposes of the instant case is reproduced below :-
Grant of -The Collectorwith the previous approval of the Excise Commissioner, may grant a permit in accordance with the provisions of Sub-sections (a), (b) and (c) of Section 31 of the said Act, to a Club registered under the Indian Companies Act, 1956 or U.P. Co-operative Societies Act, 1965 or Societies Registration Act, 1860 to possess foreign liquor in excess of the limit of possession laid down in Section 20 of the said Act for the purpose of supplying/serving to its members including their bona fide guests for consumption "on" the premises of the Club only.
10. The aforesaid rule had come up for consideration before this Court, in the case of M/s Vision Club, wherein it was held that permit in Form FL-7C can be granted on the fulfilment of the following two conditions :-
(i) The applicant for grant of permit has to be either registered under the provisions of the Indian Companies Act, 1965 or the Societies Registration Act, 1860 or the U.P. Co-operative Societies Act 1965; and
(ii) The Club can supply/ serve foreign liquor only to its members of the club as defined under Section 41 of the Companies Act.
11. It may be noted that the petitioner here claims itself a unit of Orient Orchards Pvt. Ltd. a company incorporated under the Companies Act, 1956. Advancing the arguments it was submitted by the learned counsel for the petitioner that since the petitioner namely, "The Club Orient Resorts" is a unit of Orient Orchards Pvt. Ltd., company incorporated under the Companies Act, it fulfils the first condition of Rule 2 of the Rules framed under U.P. Permit for Possession of Foreign Liquor by Club Rules, 1980.
12. It is difficult to agree with the aforesaid submission. This Court in the case of M/s Vision Club referred to above, has held that the Club itself should be registered either under the Companies Act 1956 or under the Societies Registration Act or under the U.P. Cooperative Societies Act. As the petitioner is not registered under any of the aforesaid Acts, it does not fulfil the requirement of Rule 2 of the Rules and, therefore, the permit in Form FL-7C has been rightly refused.
13. Learned counsel for the petitioner has failed to show that petitioner is registered as such under any of the aforesaid Acts.
14. We further find that the Club itself has filed Rules and Regulation for regulating the membership (as Annexure 4 to the writ petition) which contains terms and conditions of membership; meaning thereby members of the Club are not necessarily the members of the company and the vice versa.
"Terms and conditions" of membership is reproduced below :-
TERMS & CONDITIONS OF MEMBERSHIP:-
(1) It is clarified that it is and shall be the sole discretion of the Owners, in conjunction with an Advisory Board of respectable persons of society to be nominated by the Owners and subject to change by the Owners from time to time (hereinafter jointly referred to as the "Screening Committee"), to decide whether or not to admit a person as a Member of the Cub in any of the classifications, even without assigning any reason, though such person may fulfil the eligibility criterion. The Screening Committee reserves to itself the right to accept/decline any person to the membership without assigning any reason and the refusal to admit a person to membership of the Club shall not cast any aspersions nor shall it be a reflection on such person to his eligibility or otherwise.
2. The Owners may appoint a Management Committee to manage the day to day affairs of the Club and the Owners may modify the Committee from time to time, whenever they so desire or deem fit and proper.
3. It is paramount intention of the owners and a condition bind upon members that :
a) the ownership of the title to or interest in the said property and the Club and of the assets thereof belongs to and shall continue to belong to the Owners.
b) There is no intention or desire on the part of the Owners to share or part with any interest into the said property and/or the Club and/or its assets in favour of or to a member or any person claiming through or under the membership.
c) Neither the member nor his heir or his successor, as the case may be, shall have or claim any share, right, title or interest of any short or nature whatsoever, in or to the said property or in or to the Club and/or its assets, on any account whatsoever.
d) It shall be the discretion/option of the Owners to manage and run the Club themselves through their own executives/employees or entrust the management of the Club to any other person, concern, firm, body or authority but on the basis and on condition that the ownership of the title to the said Club, its property and assets shall, even in such contingency, continue to belong to the Owners(which would include the assignee or successors in title of the Owners).
15. We find controversy raised in the present writ petition is squarely covered by the aforesaid decision of this Court in the case of M/s Vision Club India and the petitioner does not fulfil any of the conditions as prescribed by Rule 2.
16. The argument of the learned counsel for the petitioner that in similar circumstances a Division Bench of Lucknow Bench has granted interim stay order and that this Court should also grant interim order, does not impress us.
17. Learned counsel for the petitioner submitted that the interim order was passed by the Lucknow Bench of this Court taking into account the judgement of this Court given in the case of M/s Vision Club India. At least, it does not reflect from the order of the Lucknow Bench that judgement of M/s Vision Club India was brought to its notice while hearing the matter. It is difficult to follow the said interim order for two reasons; firstly that by passing interim order, Lucknow Bench by granting interim relief has granted the full relief to the petitioner at the admission stage itself. Such a practice has not been approved by the Supreme Court in the case Union of India and Ors. v. Modiluft Ltd. AIR 2003 SC 2218. Hon'ble Supreme Court in U.P. Junior Doctors' Action Committee v. Dr. B. Sheetal Nawani JT. 1992(1) SC 571 has held as follows:
It is well known rule of practice and procedure that at interlocutory stage a relief which is asked for and is available at the disposal of the matter is not granted unless there is any special reason to be indicated in clear terms.
18. The above case has been followed by this Court in State of U.P. v. Committee of Management, Jan Sewa Uchachattar Madhyamik Vidyalaya (1194)2 E.S.C. 639. In the case of Empire Industries Ltd. and Ors. v. Union of India and Ors. reported in AIR 1986 SC 662 the Apex Court has held that interim orders passed by Court are not precedents. Secondly; in the face of final adjudication by this Court it is not proper to follow interim order.
19. In view of the above, we find no merit in the case of the petitioner.
20. Writ petition is, accordingly, dismissed in limine.
21. A copy of this order may be sent to the Lucknow Bench to be placed on the record of the writ petition No. 755(M/B) of 2005 and the Registrar of Lucknow Bench shall ensure that the matter is also brought to the notice of Hon'ble Judges of the Bench.