OWP No. 822/2005, MP Nos. 330/2011, 1586/2011, 1834/2011, 1854/2011, 395/2012, 428/2012, 431/2012, 505/2012, 1682/2012, 1920/2012, 2301/2012, 2311/2012, 2395/2012, 2477/2012, 633/2013, 2/2016, 3/2016, 4/2016, 7/2016, 8/2016, 9/2016, 10/2016, OWP No. 524/2005, M.P. No. 684/2005; OWP No. 536/2005, M.P. No. 703/2005; OWP No. 802/2005, M.P. No. 371.... Case: Sandya Devi and Ors. Vs State of J&K and Ors.. Jammu and Kashmir High Court

Case Number:OWP No. 822/2005, MP Nos. 330/2011, 1586/2011, 1834/2011, 1854/2011, 395/2012, 428/2012, 431/2012, 505/2012, 1682/2012, 1920/2012, 2301/2012, 2311/2012, 2395/2012, 2477/2012, 633/2013, 2/2016, 3/2016, 4/2016, 7/2016, 8/2016, 9/2016, 10/2016, OWP No. 524/2005, M.P. No. 684/2005; OWP No. 536/2005, M.P. No. 703/2005; OWP No. 802/2005, M.P. No. 371...
Party Name:Sandya Devi and Ors. Vs State of J&K and Ors.
Counsel:For Appellant: Z.A. Shah, R.K. Gupta, Sr. Advocates, Vipin Gandotra, Riteesh Mahajan, Abhinav Sharma and S.K. Shukla, Advocates and For Respondents: J.I. Ganai, Advocate General, Ehsan Mirza and Faraz Iqbal, Dy. A.Gs.
Judges:Ali Mohd. Magrey, J.
Issue:Commercial Law
Judgement Date:February 06, 2017
Court:Jammu and Kashmir High Court
 
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Judgment:

Ali Mohd. Magrey, J.

  1. These eleven writ petitions relate to licences for retail sale of Indian Made Foreign Liquor (IMFL), popularly termed as JKEL-2 license, and I wish to commence this judgment recording my conviction about the universal truth that gross loss of unimaginable magnitude in intoxicants overweighs the little benefits in them, and that 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 No. 536/2005, the petitioner therein is aggrieved of an order issued by Excise Commissioner debarring the petitioner - a women of 45 years of age - from obtaining the off-license for retail sale of IMFL; in OWP No. 524/2005, the petitioner is aggrieved of selection of respondents 3 for allotment of license in his favour and of placement of respondent No. 4 in the waitlist. In all these petitions, the petitioners have also prayed for other and/or consequential reliefs.

  3. I heard learned counsel for the parties and considered the matter.

  4. The grievance of the petitioners in these writ petitions, barring OWP No. 524/2005, OWP No. 536/2005 and OWP No. 326/2006, mostly seems to be surrounding the legality or otherwise of the action of the official respondents to cancel the temporary licenses and/or notice dated 14.12.2005 issued by the Excise Commissioner in his capacity as the Licensing Authority, but there is something more to be dealt with, in that in the lead case, OWP No. 822/2005, private respondents 4 to 53 have been impleaded as such in terms of orders dated 03.06.2011 and 18.08.2011 passed in various CMPs moved by the these respondents in that behalf after they were allowed to do so by the Supreme Court. The matter, therefore, calls for a resume of its genesis of the controversy and of the circumstances in which the above private respondents had been allowed to seek impleadment in these writ petitions as also of their case. The backdrop of facts of the matter is elaborately drawn by a Division Bench of this Court in its judgment in State of J & K v. Vikas Jandial, 2005 (2) JKJ 451. In fact, private respondents 4 to 53 impleaded in OWP No. 822/2005 had gone to the Supreme Court feeling aggrieved of the judgment of the Division Bench of this Court in the aforesaid case. The petitioners in OWP No. 822/2005 have also stated these facts in their writ petition. Therefore, I feel that narration of some of these background facts from the said judgment herein becomes imperative, and I lift such facts from the aforesaid judgment and proceed to reproduce them hereunder.

  5. The trade of liquor and intoxicating drugs in the State is governed by the Jammu and Kashmir Excise Act, 1958 and the Rules, known as J & K Liquor Licence & Sales Rules, 1984. Earlier, there was a dual system adopted by the State to regulate the trade of liquor: the Indian Made Foreign Liquor was sold 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 State was under an obligation under Article 47 of the Constitution of India to impose prohibition for consumption of liquor. It was averred that the State was bound to impose prohibition and discourage the policy of grant of licences for opening of liquor vends in the State of Jammu & Kashmir but, instead of doing so, the State was proliferating the trade of liquor by granting fresh licences to liquor vends.

  8. The aforesaid writ petitions filed in public interest were disposed of by a Division Bench by a common order, whereby directions were issued to the State respondents to declare the policy in regard to licensing of liquor vends.

  9. Consequent upon the directions of the Court, the Government took a policy decision and issued Government Order No. 112-F of 2001 dated 3.4.2001, laying down the following policy for the year 2001-2002:

    "i. The Government does not recognize sale of liquor as a normal trade activity but one which requires to be kept under restriction and strictly confined within the parameters of laws and rules framed on the subject.

    ii. Requests for issuing of licences for manufacturing, stocking, sales (wholesale, retail, bars etc.) shall be generally denied and any fresh licences issued only if justified by exceptional circumstances.

    iii. Even when such exceptions are made, fresh licences shall strictly conform to the provisions of the Act and the Rules which govern issue of such licences and due regard shall also be given to the public sensitivities as also to the factors like public nuisance, environmental pollution etc."

  10. The State Government after formulating the aforementioned Policy, placed it on the record of LPA No. 145/99, titled 'Residents of Kunjwani v. State of Jammu & Kashmir'. However, before fresh licences could be issued under the Policy for the year 2001-02, another writ petition in public interest, being PIL No. 803/2001, titled, "Vaid Vishnu Dutt v. State of J & K" came to be filed. That petition was disposed of by the Court on 30.5.2003, observing that the grievance made in the petition stood already redressed in terms of the directions of the Court passed in the earlier writ petitions filed in public interest directing the Government to formulate a policy, pursuant to which the Government, vide Order No. 112-F of 2001 dated 3.4.2001, had, in fact, formulated the above quoted policy.

  11. It may be 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 identified the locations for which it could consider grant of licences. In this regard the Excise Department issued a public notice on 22.7.2003 notifying a tentative list of areas/places. Simultaneously, a Committee was constituted to make survey of un-served/under-served areas and also the areas requiring the facility from tourist point of view. Based on the recommendations of Committee, 89 locations were finally put to notice by the department vide No. EC/STS/207/2003-04/1027-31 dated 22.9.2003 inviting applications from individuals, societies/partnerships for such locations. It was specifically made clear in the notice that the applicants, who had previously applied to the department, should also submit their bio-data with documentary proof of having applied earlier.

  13. In consequence of the above notices, the department received 7781 applications for aforesaid 89 locations.

  14. Before the applications for issuance of licenses for the aforesaid 89...

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