TMI Blog2017 (8) TMI 590X X X X Extracts X X X X X X X X Extracts X X X X ..... enses were essentially operable only for one year, i.e., for the year 2005-06 and with respect to 95 locations only identified by the Committee of officers constituted by the respondents in compliance of the directions of the Division Bench. Therefore, I think, it would be inconsequential to delve into the legality or otherwise of the impugned notices issued to the petitioners. Any discussion on the submissions made at the Bar would have only academic value. Furthermore, the temporary licenses in question were issued in favour of the petitioners in terms of the Excise Police promulgated in terms of Government, vide Order No. 99-F of 2003 dated 7.4.2003 read with Order No. 156-F of 2003 dated 22.7.2003. More than thirteen years have passed since then. The said policy recognized the need for restrictive and regulative trade in the liquor till the time it was considered appropriate to bring about a total prohibition. Since the matter has been pending in the Court since then and there had been an interim order operating in the matter, obviously, the Government and the official respondents have not been able to revise the liquor policy during these years. On the other hand, the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there cannot be any good in something that covers minds, induces ruin in the biological beings and economy of a people, and reduces most of the consumers to abject penury. 2. In four of these petitions OWP nos.822/2005, 826/2005, 827/2005 835/2005 the petitioners challenge communications dated 14.12.2005, styled as notice for cancellation of temporary licence addressed to them by the Excise Commissioner; in the other four writ petitions OWP nos. 802/2005, 817/2005, 972/2006 and 137/2010 mostly, the very same petitioners seek, inter alia, regularisation of the temporary licenses issued in their favour by the competent authority by draw of lots after they were subjected to the procedure formulated by the respondents; in writ petition, OWP no.326/2006, the petitioner has challenged Government order no.668-STS of 2005 dated 30.12.2005 insofar as the same directs opening of sub-vends at Palma Mendhar, Gujroo, Nagrota, and, at the same time, has raised his grievance against grant of licenses in favour of the private respondents 3 to 5 therein for sale of liquor as a sub-vendees and prayed or issue of command to the respondents to allot the sub-vends in his favour; in OWP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld through separate retail vends on a fixed annual licence fee whereas the Country Liquor was sold exclusively through identified vends with the privilege of trading granted in open auction conducted yearly and/or through departmental operations as per the provisions of J K Excise Act and the Rules made thereunder. 6. For opening of a vend for the purposes of sale of Indian Made Foreign Liquor (IMFL), a person desirous of trading in the commodity was required to apply to the Excise Commissioner, who had the competence/authority to grant a licence after the applicant fulfilled the requisite formalities and the Excise Commissioner satisfied himself about the need for the grant of licence to the person/premises. 7. During the year 1996 the grant of licences to liquor shops by the State Government became the subject matter of controversy which resulted in filing of certain writ petitions in Public Interest before this Court viz. PIL nos. 7/1999, 70/1999 and 136/1999. The said petitions were filed by residents of the areas where the liquor vends had been opened or were likely to be opened. The challenge in the said Public Interest Litigations was common to the effect that the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned here that, however, no licence was issued till 2003. On expiry of the policy for the year 2001-02, the Government, vide Order No. 99-F of 2003 dated 7.4.2003 read with Order No. 156-F of 2003 dated 22.7.2003, notified the Excise Policy for the year 2003. The policy recognized the need for restrictive and regulative trade in the liquor till the time it was considered appropriate to bring about a total prohibition. Under the policy it was decided that in processing the requests for grant of retail licences, consideration of un-serviced areas arresting the menace of bootlegging, the demand potential and the relevance from tourist point of view shall be of paramount importance. The Policy further provided that a clear precedence shall be drawn in processing the applications with priority consideration for educated unemployed youth and ex-servicemen. 12. In regard to the disposal of applications, which had already been received, the policy provided that such applications would be treated as a class and processed along with other new applications, as would be received by the Government within the time prescribed. In accordance with the policy decision, the department identi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate Legislature. The decision was formally communicated after the legislature accorded its approval to the budget proposals for the year 2004-05. 15. Because of the shift in the policy of sale of IMFL and country liquor, apart from 89 locations already notified, need was felt to issue licences for 170 erstwhile country-liquor vends also. Since 54 vends of country-liquor were already operating in 89 locations notified for grant of IMFL licences, the actual number of locations for which the IMFL licences were required to be issued came to 205. 16. As already indicated, in response to the notice issued for grant of licences for 89 locations, the Excise Commissioner received more than seven thousand applications. For the additional vends, numbering 116, the State decided to make selection out of the applicants who had already applied. 17. However, a question arose as to how should the Excise Commissioner make selection when there were large number of applications for the limited number of vends. The Excise Commissioner suggested the short listing of the applicants for any vend through the procedure of draw of lots. The Government considered the proposal of Excise Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho would figure in the waiting list of any location in the second draw, were to be included in the draw for each subsequent location as well. An applicant who figured in the waiting list of a particular location of the first draw and may subsequently be selected for another location in the second draw, was to forego the selection for the second draw in case he had been picked up from the waiting list because of the person already selected in the first draw for that specific location being dropped for any reason including non-fulfilment of formalities. It was also decided that if any computer error would occur during a draw for a particular location, lots would be redrawn for the said location immediately. Before actual grant of licences, applicants were to fulfil conditions under the rules. 21. Pursuant to a published by the Excise Commissioner in that behalf, the draw of lots took place on 27.2.2004 and immediately its results were announced. But before the process of formulation of the select list was concluded, some of the non-selectee-applicants filed writ petitions before this Court seeking quashing of selections made by way of draw of lots. In some of those writ petitions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 004-05. On 22.2.2004 the Government approved the suggestion of Excise Commissioner in regard to the short-listing of the applicants through the procedure of draw of lots. On 25.2.2004 proposal for draw of lots was notified. The draw of lots took place on 27.2.2004, which was not limited to only 89 locations already notified, but for additional 116 locations as well, which had not been notified. In this background, we find merit in the submission of Mr. R.K. Gupta, learned counsel appearing for some of the writ petitioners, that the decision of the Government with regard to putting of country liquor, to be branded as JK-Desi Whisky, on IMFL network was not given wide publicity, and for this reason not only the persons carrying on the trade of country liquor, but the new entrants, who may have been interested into the business of sale of IMFL-cum-country liquor, branded as JK-Desi Whisky, were shut out. In our view, the change in policy not only should have been made known to all concerned, but the appellants ought to have invited applications afresh in terms of the change brought out in the previous policy. The action of the appellants in restricting the selection amongst the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther SLP titled Vikas Jandial ors. v. State of J K ors. was also filed before the Supreme Court challenging the judgment of the Division Bench and the two SLPs were clubbed together. 24. Since the Supreme Court did not pass any stay order against the judgment of the Division Bench of this Court, the Excise Department was free to proceed ahead with implementation of the directions made by the Division Bench in its judgment. Resultantly, on 25.06.2006 a notice was issued by the Excise Commissioner which was published in the local dailies to the following effect: Whereas the Division Bench of Hon ble High Court J K Jammu in its judgment dated 21.12.2004 in LPA(OW) No.63/2004 titled State of J JK ors v/s Vikas Jandial ors. upheld the procedure of grant (of) licenses by draw of lots but quashed the result of draw of lots for grant of JKEL-2 licenses for 204 locations with the direction to initiate the exercise afresh for identification of the locations for grant of JKEL-2 licenses. Whereas Excise licenses are issued for a period of one year only and the 204 locations for which draw of lots was conducted have lost relevance as these pertained to the year 2004-05; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall not confer any right or claim for the grant of a license. Each selectee shall have to fulfill the formalities prescribed under the Jammu and Kashmir Excise Act, Jammu Kashmir Liquor License and Sales Rules, 1984 and the Policy framed under before the actual grant of a license. 25. In consequence of the process undertaken pursuant to the above notice, the Excise Department, under the supervision of Divisional Commissioner, Jammu, and in presence of respondent no.2, conducted the draw of lots. The result of the draw of lots was published vide notice no.EC/ST/207/2005-06/2889-92 dated 09.08.2005. Thereafter, respondent no.2 also informed the selectees, prospective licensees, about their selection and required them to fulfill the formalities under the J K Excise Act and the Rules framed thereunder requisite to the grant of licenses in question, which included deposit of non-refundable amount of ₹ 10,000/, execution of agreement, making necessary arrangements for operation of liquor vends at specified locations and furnishing of other documents such as undertaking, site plan of the proposed licensed premises, certificate from Deputy Director, Employment, and affidavits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ense and Sales Rules 1984; and 7. Whereas on receipt of information alleging irregularities in drawing of lots on 09.08.2005 for grant of said license, the State Vigilance Organization carried out a joint surprise check; and 8. Whereas the State Vigilance Organization vide its letter No.SVO/PE-SLK-2/05-11988-90 dated 16.09.2005 addressed to the Chief Secretary recommended to take appropriate remedial action; and 9. Whereas Commissioner of Vigilance, Jammu and Kashmir Srinagar vide is letter No.SVO/PE-SLK-2/05-15912-14 dated 23.11.2005 has again intimated the Government that the C. D. carrying the programme through which lots were draw on computer by the Excise Department was referred to Senior System Analyst, CBI whose findings have been summarised as follows: i. On inspection of the code, it was found that the logic to pop-up a particular random number was so designed that first a 5 digit number will appear and then 2 or 3 digit numbers and lastly 4 digit numbers will appear. There was no 5 digit numbers to be allotted. Therefore, the probability of appearing listed numbers are divided into two categories i.e. 50% to 2 and 3 digit numbers and 50% to 4 digit nu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the very same petitioners in collaboration with some other selectees (56 persons in all) filed another writ petition, OWP no.822/2005, questioning the legality of the said notice. Like-wise, six other selectees also filed a separate petition, being OWP no.817/2005, titled Ved Kumari ors. v. State of J K ors., questioning the legality of the notices issued to them. OWP no.802/2005 ultimately came up before the Court on 19.12.2005 and on that date the Court ordered the same to be listed alongwith OWP nos. 817/2005 and 822/2005 after vacation. Meanwhile, by way of interim measure, the Court directed that till next date before the Bench there shall be status quo as on that date with regard to the business in question. As already mentioned, some twenty of the common petitioners in OWP no.802/2005 and 822/2005 have also filed another writ petition, OWP no.972/2006, titled Sandya Devi ors. v. State of J K ors., challenging communication no.SVO/PE-SLK-2-2005/15912-14 dated 23.11.2005 which had been addressed by the Commissioner of Vigilance, J K, to the Chief Secretary of the State mention of which had already been made in the impugned notices. 28. In may be mentioned here tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilable to the appellants to argue before the High Court. The appeals are disposed of accordingly. 30. It is in the aforesaid background facts and circumstances that the appellants before the Supreme Court sought permission to be impleaded as party respondents in the lead case, OWP no.822/2005. Their prayer was allowed and they have been arraigned as respondents 4 to 53. These respondents have filed their objections to the claim of the writ petitioners made in their writ petitions. 31. The grievance of the writ petitioners in writ petition, OWP no.822/2005, which is the lead case herein, and the connected petitions filed on identical cause, principally relates to the notice dated 14.12.2005 issued to them wherein they were informed that the draw of lots has become doubtful and that the Government was of the view that the licenses merited to be terminated forthwith, though they have taken numerous other grounds claiming a right to be issued regular licenses in terms of Rule 30(7) of the J K Liquor License and Sales Rules, 1984, and renewal and continuation of the same year after year subject to their depositing the annual fee in accordance with the relevant provision(s) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of the Supreme Court, inter alia, the following things become axiomatic: i) that the appeals before the Supreme Court arose out of a challenge to the Liquor Policy for the year 2004-05 framed by the State of Jammu Kashmir; ii) that the Supreme Court found that as the liquor vends were operable only for a year, no relief could now be granted to the appellants therein with respect to the policy for the year 2004-05; iii) that the appellants before the Supreme Court had also some grievance with respect to the direction to the Department to initiate action afresh for identification of the locations/areas and notify the same in all leading newspapers of all the liquor vends including the 89 for which selection had been made earlier; iv) that the Supreme Court laid down that the above observations made by the Division Bench in its judgment shall be deemed to be confined only for the year 2004-05 and will not affect any allotment for subsequent years; v) that the aggrieved parties before the Supreme Court were also given liberty to intervene as parties in the Original Writ Petition No.822/2005 challenging the selection made in the year 2005 pending in the J K Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered appropriate to bring about a total prohibition. This would take care of the grievances of all the petitioners as well as private respondents. In that case, it would also be open to the respondents to undertake a denovo exercise to identify the locations for continuing or opening of such retail vends in accordance with any such policy as may be adopted. 36. These petitions are, accordingly, disposed of in terms of the above along with all connected CMPs. The official respondents shall undertake and complete the requisite exercise by the end of the current financial year, i.e., 31.03.2017, and issue fresh licenses to the selectees for the year 2017-2018 operative with effect from 01.04.2017. In case the present vendees have not paid the annual fee and other dues for the current or any other previous year, he shall deposit the same with the Excise Department before closure of the present financial year. If any petitioner has deposited his fee or other dues before the Registry of this Court pursuant to any Court order, the Registry shall release and pay the same along with interest in favour of the Excise Commissioner, J K Government, Excise and Taxation Complex, Rail Head, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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