JUDGMENT Sushil Harkauli and Vikram Nath, JJ.
1. We have heard learned Counsel for the petitioner.
2. This writ petition has been filed challenging the order of the Excise Commissioner, U.P., dated 17th March 2006 (Annexure-5) directing opening of a foreign liquor shop in the area known as Bandhawa Bazar in district Pratapgarh. It is alleged that this area where the shop is proposed to be opened is within 5 kilometers of the border of Pratapgarh and its adjoining district i.e., Jaunpur.
3. The challenge is based upon Rule 5(9) of the U.P. Number and Location of Excise Shops Rules, 1958. For ready reference the said sub-rule is reproduced below:
No licenses for the retail sale of liquor within 5 Km., of the border of another District shall be granted except when the Collector of both the District concur, if they failed to concur, the matter shall be referred to Excise Commissioner whose decision thereon, shall be final.
4. According to the petitioner's interpretation, the aforesaid sub-rule means that the Excise Commissioner can not exercise the power of ordering opening of a new retail shop unless the matter is referred to the Excise Commissioner, U.P., upon difference of opinion between the district Collectors of the two adjoining districts in respect of a shop proposed to be located within 5 kilometers of the border of the two districts.
5. Examination of the entire scheme of the Act and Rules indicate that the Excise Commissioner, U.P., is the highest authority to take decisions in such matters.
6. However, it is a rule of prudence that matters which can be sorted at lower levels should be sorted out at that level without over-burdening the higher authorities.
7. Therefore, according to our interpretation, Rule 5(9) contemplates that if the two district Collectors agree, the decision to open the excise shop within 5 kilometers of the border can be taken at that lower level. However, if the two district Collectors are unable to concur on the issue, only in such a situation, the disagreement goes to the Excise Commissioner, who has been given the power by the said Sub-rule 5(9) to over-ride the objections of the district Collectors.
8. Conferment of this power on the Excise Commissioner does not detract from his power as the supreme authority under the Act of ordering opening of a excise shop directly without such reference. It is obvious that such order passed by the Excise Commissioner either upon a reference or without a reference must be based upon relevant considerations.
9. In the present case, there is a recommendation of the Excise Inspector with which the district Excise Officer has agreed regarding opening of the new shop. The reasons mentioned in the letter of the district Excise Officer dated 13th March 2006, which has been written to the Excise Commissioner, U.P., can not be said to be irrelevant. Therefore, if the Excise Commissioner, U.P., has passed the order, for opening of the new shop, it would not be a fit case for interfering in the discretionary jurisdiction of this Court under Article 226 of the Constitution of India.
10. The writ petition is dismissed of as above.