Jammu & Kashmir High Court - Srinagar Bench
Sandeep Chattoo vs Union Territory Of Jk & Ors on 16 April, 2021
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
Serial No. 297
Supplementary List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
{Through Virtual Mode}
CM No. 2174/2021in
WP(C) No. 739/2021
CM No. 2175/2021
Caveat No. 511/2021
Sandeep Chattoo
... Petitioner(s)
Through:
Mr Mohsin Qadri, Sr. Advocate with Mr. Tahseen,
Advocate
Versus
Union Territory of JK & Ors.
... Respondent(s)
Through:
Mr D. C. Raina, Advocate General with Mr. K. D. S.
Kotwal, Dy. AG and Mr. Sajad Ashraf, GA
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
(JUDGMENT)
16.04.2021
Oral
CM No.2174/2021:
01. This application, for the reasons stated and grounds urged
therein, is allowed. Since Court proposed to decide the writ petition at motion
hearing, therefore, no requirement of making good the deficiency of annexing
the requisite Court fee, stamp papers, notarization, etc.
02. CM disposed of as above.
Page 2 of 35
CM No. 2174/2021 in
WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
Caveat No.511/2021:
03. With the appearance of Mr. D. C. Raina, learned Advocate
General with Mr Sajad Ashraf, learned GA, appearing counsel for
caveators/respondents, Caveat No.511/2021, as lodged, shall stand
discharged, accordingly.
WP(C) No. 739/2021; CM No. 2175/2021
04. In the instant petition, challenge has been made to the Excise
Policy issued by respondent No. 1 vide S.O. 114 dated 31 st March, 2021 for
the year 2021-22, for e-Auction of Retail Liquor Vends to the extent of his
rights qua JKEL-2 at Batwara Srinagar, within the Badami Bagh, Cantonment
area, as per the Clauses prescribed in the Excise Policy 2021-22 and the
Provisions of J&K Excise Act, 1958, rules framed thereunder, being arbitrary,
irrational and contrary to the Act and the Liquor Rules on the grounds detailed
out in the writ petition.
05. The material facts leading to filing of the instant writ petition,
available from the perusal of the pleadings on record are that the petitioner on
fulfilment of the requirements under the provisions of Excise Act, Rules and
the policy, was granted license for auction of Retail Sale of Foreign Liquor
and Indian Made Foreign, Liquor, including (Beer) for consumption in the
premises and off the premises situated Near Broadway Cinema at Batawara,
Page 3 of 35
CM No. 2174/2021 in
WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
Srinagar, from 31.01.2001 for the year 2000-2001 and thereafter renewed
from time to time and valid for the year 2022-2023.
06. Petitioner while holding the license for running the Retail Sale
of Foreign Liquor and Indian Made Foreign, Liquor, including (Beer), came
to know about the Excise Policy for the year 2021-22, issued in terms of
S.O.114 dated 31st March, 2021, having its validity with effect from 1st April,
2021 till 31st March, 2022 with its objective as enshrined under Clause 1 of
the policy and believes it to be ultravirus to the parent Act, irrational, volatile
to the rights of the petitioner who claims to be facing extreme difficulties due
to insignificant, irrational and total ambiguity in the Excise Policy, challenges
the same on the following grounds:-
i. That the impugned policy is not in consonance with the direction/s
passed by the Division Bench of this Court in case titled Balbir Singh
and Ors. Vs. State of JK and Ors., the lead case being OWP No.
486/2017 and LPAOW Nos. 11/2017, 20/2017, 21/2017, 22,2017,
23/2017, 44/2017, decided on 28.12.2020, the judgment so far it relates
to the petitioner as an existing licensee, leaves no scope for renewal but
puts an end / unlawful determination to the already accrued rights of
the petitioner qua issuance of the liquor license issued & renewed by
the competent authority under the Excise Act, the provisions of the Act
& the notification issued under the Act leaves no scope for respondents
to come up with the impugn policy, taking away the rights of petitioner
when the same was not even the purport of the judgment rendered by
Page 4 of 35
CM No. 2174/2021 in
WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
the Division Bench of this court, subsequently clarified in the decision
rendered in bunch of Review petitions on 06.04.2021.
ii. That from the bare perusal of Clause 2.1 of the Excise Policy 2021-22,
it transpires that the License for Type-C i.e. JKEL-2 shall be issued by
as per the provisions of J&K Excise Act, 1958 and the Rules framed
thereunder i.e. SRO 679 J&K Liquor, License and Sale Rules 1984. The
very Notification dated 31st March, 2021 on the basis of which Excise
Policy has been issued, it has been categorically stated that it will come
into force from 1st April, 2021 and will continue to remain in force till
31st March, 2022 and as per Bid document, Clause 1.8, it has further
been stated that all licenses granted under the provisions of Excise
Policy 2021-22 shall determine on 31st March of the year following the
year of allotment irrespective of their date of allotment. If the aforesaid
Excise Policy is taken at its face value, as per clause 2.4.10, which
pertains to Minimum Guarantee Revenue (MGR) the licensee who
ultimately became successful in bid as H-1 has to deposit MGR for
twelve months.
iii. That while proposing to auction Retail Liquor Vend
JKEL-2 at different locations in terms of Annexure A attached to the
Policy and fixation of Minimum Guarantee Revenue and also receipt of
bid amount after auction, Clause 2.1 further empower the respondents
to grant license JKEL-7A i.e. License for Retail Vend of Beer (Bottled,
tinned, draught beer in bar). It is germane to mention here that License
Page 5 of 35
CM No. 2174/2021 in
WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
for JKEL-2 is given for sale of Indian Made Foreign Liquor, 3K Desi
Whisky and includes Beer also. The bidder has to bid for the area as
given in the Annexure-I and opening of another vend for beer in any
location, is contrary to itself and irrational also. Not only this, Clause
2.1 empowers the Excise Department to issue permission to serve liquor
on social occasions at private places even at the locations for which
retail liquor vend JKEL-2 has been proposed to be auctioned. On this
count also, the Excise Policy 2021-22 is arbitrary and liable to be
quashed.
iv. That as per Clause 2.4.5, the participation registration fee has been
fixed as Rs.25,000/ which is non-refundable and clause 2.4.6 deals
with Earnest Money Deposit of Rs.5.00 lacs for each vend. The Clause
2.4.9 reads as under:-
"Payment of bid amount"
The successful bidder will be required to deposit an amount equal to
50% of total bid amount under major head 0039 through GRAS/e-
collect portal within two days from the date of finalization of bid for a
vend and 100% of bid value within seven days of finalization of
bid.
If the successful bidder fails to comply with the aforesaid condition of
payment of bid money in the prescribed period, the earnest money shall
state forfeited. In such a case, the liability of the highest bidder will not
be limited only to the extent of earnest money tendered by him in the
Page 6 of 35
CM No. 2174/2021 in
WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
auction process for a particular location, but any other location in which
he is a stake holder shall also be cancelled and the respective deposits
made in the form of earnest money or security for such other bids also
shall be forfeited and he will not be allowed to participate as a
stake holder in any of future allotments."
Apart from it, it has further been stated in clause that in case the
successful bidder in one location fails to submit the Minimum
Guarantee Revenue, the Earnest Money Deposited for other locations
to participate in the bid shall also be forfeited. It is important to
mention here that as per law Earnest Money Deposited is always part
of the consideration which is to be finally settled inter-se parties and
ultimately adjustable with the total consideration. In the present
case, the respondent No. 1 stated that earnest money as received by the
respondents shall be adjustable as per the discretion of the respondents
in respect of any liabilities at the end of the license period, which is
contrary to law. Not only this, failure to deposit Minimum Guarantee
Revenue at one location by the successful bidder by no stretch of
imagination give a right to the respondents under any law to forfeit
earnest money in respect of other locations. The Excise Policy 2021-22
has not been framed as per the objective enshrined under Clause 1 of
the policy but only with a motive to collect huge amount by way of
earnest money or by any means whatsoever, as per
Page 7 of 35
CM No. 2174/2021 in
WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
the whims and wishes of the respondents that too against the spirit of
law. On this count also Excise Policy 2021-22 is contrary to J&K
Excise Act Svt 1958 and its Rules inasmuch as the conditions laid down
in the Policy itself and liable to be struck down.
v. That as per law even Administrative Authorities before taking any
adverse action against any person are required to at least give a chance
of hearing to the other person to explain his position
and this is the minimum requirement of law but while framing the
Excise Policy 2021-22 it has further been stated in the Clause 2.4.10
that in the event of failure on the part of successful bidder to deposit
monthly instalment on due date i.e. 1st day of the month, the Excise and
Taxation Officer has an absolute and unbridled power to
close the Vend even without giving any notice to the Retail Vendor. It
has further been stated that even if there is any exigency related to
nonoperation of the allotted Vend, the respondent No. 2 is within its
power to take any decision with regard to Vend which gives absolute
power to the respondent No. 2 to pass any order at the back of
the liquor vendor who became successful after participating in the
auction process. The clauses framed in the Excise Policy 2021-22 are
totally irrational, arbitrary and against public policy, as such, liable to
quashed.
Page 8 of 35
CM No. 2174/2021 in
WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
vi. That none of the action of the government should be a reason for
growth in the sale of liquor as per the directive principles enshrined in
the Constitution of India, however the sole aim and
objective leading in the Excise Policy impugned encouraged sale of
liquor which is completely prohibited under law and while framing the
Excise Policy and the consequential notifications issued
upon the policy is bad in law and requires to be stopped at its threshold
by way of judicial review of the act of state.
vii. That the sale profit margin attached with the sale of the liquor pursuant
to the impugned Excise Policy is not enough to run a business of liquor
in the peculiar circumstances of Kashmir Valley, owing to the escalated
transportation fair and the payment to the employees which is
considerably high in the area like Srinagar than that of Jammu
Region of UT, the reasonable classification is not made in the policy
which are essential ingredient for framing the excise policy qua the sale
of liquor in the Kashmir Valley, were the scope of
implementation of excise policy impugned is bleak, unrealistic and in
no stretch of imagination is susceptible to be implemented, when its
respondents have judicial notice of the fact that in holy month of
Ramadan all liquor vends remain shut in valley and also without any
sale in a stretch in all law & order circumstances valley is witnessing.
The Excise policy on this count is totally irrational & volatile of Article
Page 9 of 35
CM No. 2174/2021 in
WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
14, the condition of trade & related stipulations in Jammu,
Ladakh and Kashmir are different including the threat attached with the
conduction of liquor trade in Kashmir. It may be a comfortable source
of earning in region Jammu but records bears testimony of the fact that
in Kashmir those who conducts the liquor business are declared as
protected persons by the security agencies as being a soft target to the
anti-national elements.
viii. That as per Excise Policy 2021-22, different location to be auctioned
for retail vend .JKEL-2 has been mentioned in Annexure-A attached to
the Policy and it has further been stated that Minimum Guarantee
Revenue (MGR) has to be paid by the vendor as fixed in the Policy
itself. Apart from it, Minimum Guaranteed quantity of JK
Desi Whisky is also required to be taken by the vendor as prescribed in
the Excise Policy for the Vend of a particular location. However, the
potential of the area of each vend to be auctioned has been mentioned
in the Excise Policy. The parameters of evaluating the Minimum
Guarantee Revenue and Minimum Guarantee Quantity has been fixed
for each Vend to be auctioned has not been made known to the bidders
nor any reasonable basis for evaluating the parameters
stands to have been complied which could make the policy a reasonable
one. In-fact, the Excise Policy 2021-22 has been issued in utter haste
manner and is totally arbitrary and irrational without even taking into
Page 10 of 35
CM No. 2174/2021 in
WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
consideration the minimum interest of successful bidder of the
location, so as to give a chance to the bidder to access the on spot
position with regard to a particular Vend for which a bid by way of
auction process is ultimately to be submitted. No one can submit a bid
for a particular Vend unless a detailed data with regard to the potential
of a particular Vend in a particular area is made known
to the public at large, so as to make every bidder vigilant about his
chances of regular deposit of Minimum Guaranteed Revenue as well as
Minimum Guaranteed Quantity to be taken as per the Policy. In absence
of any data having been made available or the same becoming available
to the petitioner even if he were to make any effort, would result in the
class of persons who are or have held JKEL-2 license, they alone will
have the data available, as such making them competent to
assess the potentiality of a vend and exclude petitioner as an intending
bidder from even predicating any bid amount that would be a
competitive bid to be offered. The impugned policy to that extent as
such is violative of Article 14 as it is creating a class who had access to
the data relating to revenue potentiality of a vend. The classification
thus so which gets made is arbitrary, illegal and unconstitutional as the
policy when implemented would only result in such classification, thus
violating petitioner's right of equality as is guaranteed under Article 14.
In fact, the policy when it is put to execution by reference
to other provisions and instances as having been quoted earlier and will
Page 11 of 35
CM No. 2174/2021 in
WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
be quoted here after would be a policy hit by vice of arbitrariness and
thus unconstitutionality. On this ground as well the
impugned policy is liable to be quashed. It is also worthwhile to
mention here that as per Annexure-A of the aforesaid Excise Policy,
only areas are mentioned where licenses by way of auctions are to be
given and after the license, power is given to the respondents to make
verifications of the site of the license. Neither any mode nor any
method has been prescribed by the respondents about the verification
of the site on which license is to be operated. No time bound
verification is made as per the Excise Policy 2021-22 It is
further submitted that under the J&K Excise Act 1958 and its Rules
License is issued to a particular place and site plan has to be submitted
along with completion of all formalities as envisaged under
SRO 679 i.e. J&K Liquor, License and Sale Rules, 1984 but while
framing the Excise Policy for the year 2021-22 the respondent have
stated that after the auction of the liquor vend, the licensee has to
arrange the particular place which is ultimately to be verified by the
Committee formulated by the respondent No.2. The total
discretion given to the respondents to accept or
deny a particular location without having any say to the successful
bidder even after the deposit of Minimum Guaranteed Revenue within
seven days from the date of bid will not protect the bidder to
start the Vend. The Excise Policy framed is totally irrational and
Page 12 of 35
CM No. 2174/2021 in
WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
arbitrary. The petitioner is put to totally at the mercy of Excise
Department and even if for any reason whatsoever, the Vend as
proposed by the bidder is not made functional, the vendor is supposed
to deposit the Minimum Guaranteed Revenue within three days for
making arrangement for another place and if another
location is not arranged within thirty days, the license shall be cancelled
and entire amount deposited shall be forfeited. This Excise Policy
framed for the year 2021-22 is contrary to J&K Liquor, License and
Sales Rules, 1984 and also statutory provisions of J&K Excise Act, Svt
1958 as such, liable to be quashed.
ix. That as per Rule 30 of J&K Liquor License and Sale Rules, 1984, the
procedure has to be followed before the license for Retail Liquor Vend
is to be granted. Rule 4 of the said Rules, further states that Retail
Liquor Vend can be granted by way of fixed fee or by auction or by
private contract. The Excise Policy 2021-22 proposed to
auction Retail Liquor Vend by way of auction and it has further been
stated that provisions of Excise Act, Svt 1958 and its Rules shall apply
fully. Rule 30(5) of J&K Liquor, License and Sale Rules 1984 states
that if the site of the proposed license is near the Railway Station,
Educational institution, Hospital area or any large factory or workshop,
the Deputy Excise Commissioner shall ask for the opinion of said
authorities. Apart from it, other procedure is also prescribed in Rule 30
Page 13 of 35
CM No. 2174/2021 in
WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
for grant of license and also the licenses near the religious
places but as per Excise Policy 2021-22, it has been stated that the site
of license if is near public institutions and if objections are raised by
local public or public institution, the vendor has to arrange alternative
site in the same area. This clause 2.4.11 run contrary to Rule 30 of J&K
Liquor, License and Sale Rules, 1984 and total arbitrary, powers given
to the respondent No.2 to forfeit the Minimum Guaranteed Revenue
even if the liquor vend remain un-operational without the
fault on part of bidder. This Excise Policy in outcome of total
arbitrariness and contrary to J&K Excise Act, 1958 and its Rules.
X. That while framing the Excise Policy 2021-22, the provisions of Excise
Act 1958 and 3&K Liquor, License and Sale Rules 1984 have been also
made applicable. The Rule 35 of the J&K Liquor, License
and Sale Rules 1984 deals with determination of fee by auction and
Rule 37 prescribed the procedure for auction of licenses. However as
per Excise Policy 2021-22, the entire procedure as laid down under the
Rules have been given goodbye and the Excise Policy is totally contrary
to the Rules framed in the year 1984 and also contrary
to Section 62 of the J&K Excise Act 1958, as such, arbitrary irrational
and liable to be quashed.
xi. That as per a lawful practice, whenever an auction is made in respect is
liquor vend, the successful bidder is given a right to fix the Maximum
Page 14 of 35
CM No. 2174/2021 in
WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
Price of the liquor for its sale, however, only minimum
sale price is fixed by the Excise Department in case of auction of liquor
vend but as per Excise Policy 2021-22, the respondents are given
absolute power to fix Maximum Retail Price of the liquor to be sold in
the vend. The margin of profit as per Excise Policy is fixed on purchase
price and no purchase value of the product of any liquor has been shown
under the Excise Policy. The vendor has to arrange the shop, other
infrastructure, necessary salesman as to be approved by the
Excise Department if necessary for running the liquor vend. The
fixation of Minimum Guaranteed Revenue, Minimum Guaranteed
Quantity of JK Desi Whisky and giving a power to Excise
Department to license other areas for sale of beer as per JKEL-7A
leaves no room for the petitioner to assess the approximate sale to be
generated in the Vend, for the purposes of making a bid. The
Excise Policy is silent about the previous data of the potential of the
area, as such, totally arbitrary, irrational and contrary to statutory
provisions of Excise Act.
xii. That while framing the Excise Policy 2021-22, it has been laid down in
Clause 3 of the bid document that any person who is not debarred
from holding license for the sale of any intoxicants in J&K, Punjab,
Delhi, Haryana, UT of Chandigarh or Himachal Pradesh is free to
participate in the auction person provided other conditions, as
Page 15 of 35
CM No. 2174/2021 in
WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
envisaged in the said clause are fulfilled. There is no reasonable nexus
for treating a person to participate in the auction process in the event of
his commission of no default for the areas mentioned above and the
other areas of the country. A defaulter is a defaulter and as per law any
person who is defaulter in any of the State or Union Territory of India,
has no right to participate in the auction process. The selective areas
chosen by the respondents for the purposes of defaulter in respect of
intoxicants itself render the policy irrational, arbitrary and contrary to
settled law, as such, liable to be quashed.
xiii. That as per Clause 2.4.12 of Excise Policy 2021-22 pertains to
provision for opening of Liquor Vends at Tourist places and the same
has been separately incorporated. The Excise Department is
empowered to setup liquor vends at Tourist locations irrespective of the
fact that as per Annexure-A of the aforesaid Excise Policy, different
vends have tourist potential and opening of separate liquor vends in
addition to auction of liquor vend in respective areas run contrary to the
very provisions of the Excise Policy, as well as Excise Act and its
Rules. It is further submitted that in the aforesaid Clause, the Excise
Department is given power to even open liquor vends at 3K Cable Car
Corporation place, which leads to religious place "Moh Maya Temple'.
The policy framed by the respondent No.1 is totally arbitrary, irrational
and against settled statutory provisions of law. It is further submitted
Page 16 of 35
CM No. 2174/2021 in
WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
that opening of further vends at tourist areas or opening of vends for
sale of beer JKEL-7A amounts to directly affecting the Minimum
Guaranteed Revenue as payable by the successful bidder in the location
as mentioned in Annexure-A of the Excise Policy and same run
contrary to said clauses of the Excise Policy. On one hand Minimum
Guaranteed Revenue and Minimum Guaranteed Quantity is fixed for
the proposed auctioned vend and simultaneously power is retained to
open liquor vends in the same area, as such, Excise Policy is contrary
in itself and totally arbitrary as well as irrational liable to be quashed.
Xiv That as per Clause 4.4 of the Excise Policy 2021- 22, if any
manufacturer or wholesaler fails or refuses to provide supply of liquor
to Type C License i.e. JKEL-2, he shall be liable for fine for each day
of delay and in case liquor is not provided beyond three days, the
license of the defaulting licensee shall be liable for suspension. As per
this clause, no protection to the JKEL-2 licensee who in-fact will be
sufferer on account of wilful or other acts of manufacturer or
wholesaler, has been given rendering the petitioner license to be
without liquor to be sold in his Vend despite the fact that Minimum
Guaranteed Revenue has been deposited by the vendor.
xv. That as per Clause 1.2 of the Excise Policy 2021- 22, the License fee
has been assessed for a year as per bid received in e-Auction and the
Page 17 of 35
CM No. 2174/2021 in
WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
license will be granted for eleven months with effect from 1st May 2021
to 31st March, 2022. This itself is contrary to Excise Act and its Rules.
Not only this as per Clause 1.1, additional license fee has been payable
for Type C license also, which amounts to double license fee to be paid
by the licensee who remained successful in the auction process that too
against the spirit of law. Not only this, as per clause 2.4 of the Policy,
it has further been stated that to promote ease of doing business, each
license has to make necessary provision for IT and non-IT
infrastructure for online service for management system of production,
import, trade / sale of liquor. It is submitted that JKEL-2 is a license
which was initially known as OFF license and as per this clause 2.4,
online sale of liquor is made permissible which run contrary to
provisions of Excise Act and its Rules, as such, policy is totally
arbitrary, irrational and in-fact, against the objectives as shown in
clause 1 of the policy and liable to be quashed.
xvi That while framing the Excise Policy 2021-22, the respondent No.1 has
totally failed to consider unprecedented situation like COVID-19 or any
other act of God, which render the liquor vend non-functional, so as to
protect the petitioner but on the other hand it has been stated that for
whatsoever reasons the liquor vend become non-functional or closed,
the bidder shall be bound to pay the Minimum Guaranteed Revenue
and all amount deposited shall be forfeited. This Excise Policy in-fact
Page 18 of 35
CM No. 2174/2021 in
WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
is against Article 47 of the Constitution of India inasmuch as the
provisions of Excise Act and its Rules, as such, liable to be quashed
out-rightly.
xvii. That the Excite Policy 2021-22 is totally silent about the manner and
mode of getting the No Objection Certificates from the District
Magistrate in respect of premises as arranged by the successful bidder
for a particular location. No time has been fixed for issuance of No
Objection Certificate by the concerned District Magistrate and even no
criteria has been laid down. If any delay on the part of District
Magistrate in issuance of No Objection Certificate for a particular
location, the adverse financial impact on the successful bidder has not
been taken care of under the Excise Policy, as such the Excise Policy
deserves to be quashed.
07. Mr. Mohsin Qadri, learned senior counsel submits that Rule 14 of the
Rules provides that licensee has a right to get his license renewed, as far as
the issue regarding right of any person to trade in liquor is concerned, the
submission is that though it would not be a matter of right to get the license
renewed but in Jammu and Kashmir, as a matter of course, all licenses for
liquor vends are being renewed from time to time, which is provided under
Rule 14 of the Liquor license and Sale Rules, 1984. It is further submitted that
the policies being in the form of Statutory Rules and Orders (SRO) has been
framed in exercise of powers derived under the Act and the Rules. Referring
Page 19 of 35
CM No. 2174/2021 in
WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
to various clauses of the policy, it was submitted that these run totally contrary
to the provisions of the Rules and as the policy is arbitrary, irrational and
volatile to the rights of the petitioner. No policy, which is subordinate to the
Rules, in case the power is derived therefrom, can run contrary to the
provisions contained therein. Once the Rules provide for grant of license for
one year, the clause in the policy that it shall not be renewed, cannot be legally
sustained. Once the rules provide for grant of license for one year and also for
renewal subsequent thereto, there cannot be any deviation from such rules.
{
08. Mr. Mohsin Qadri, learned senior counsel appearing for the petitioner
submits that certain vends which are continuing for last 50-60 years and their
licenses have been renewed on fulfilment of certain conditions from time to
time, therefore, same procedure is to be followed in case of petitioner who
though having no absolute right to claim renewal but same cannot be taken
away by insertion of clauses in the policy, contrary to the rules. Learned senior
counsel further submits that the impugned policy being inconsonance with the
directions passed by the Division Bench of this Court in batch of
petition/LPAs, the lead case being OWP No. 486/2017, leaves no scope for
renewal including rights of petitioner qua issuance of liquor license issued and
renewed by the competent authority under the Excise Act. It is submitted that
the provisions of the Act and rules leaves no scope for the respondents to come
up with the impugned policy, which goes against the purport of the Judgment
rendered by this Court.
Page 20 of 35
CM No. 2174/2021 in
WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
09. Mr. Mohsin Qadri, learned senior counsel submits that various existing
license holders have approached this Court by way of review petitions,
seeking review of Judgment dated 28.12.2020 rendered in the case (supra),
who were never the parties in the litigation and during the pendency of the
review petition, when the same was heard and reserved for Judgment, the
Government came with the impugned Excise Policy, which is against the
judicial propriety. He further submits that the Division Bench, while disposing
of the review petition in terms of Judgment dated 06.04.2021, has specifically
dealt with the cases of the applicants in paragraph 29 to 33 , qua renewal of
the cases of the already existing licensees. It is submitted that the policy is
against the directions of the Division Bench, qua existing licensees, seeking
renewal as permissible under rules.
10. Mr. Mohsin Qadri, learned senior counsel submits that petitioner is only
person, permitted to run the trade of liquor in Badami Bagh Cantonment area
by the Cantonment Board, therefore, there is no scope for auction of the vend
for this area.
11. Mr. D. C. Raina, learned Advocate General, appearing counsel for the
respondents-caveators has vehemently resisted the maintainability of the writ
petition for the reliefs claimed, as amounting to seeking reversal of the
Division Bench Judgment in the writ petition before the Single Bench, as the
issues qua framing of Excise policy stands settled by the Division Bench of
Page 21 of 35
CM No. 2174/2021 in
WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
this Court, arising out of the Judgment passed by the Single Bench in Sandya
Devi's case. Learned Advocate General further submits that the Excise Policy
2021-22 impugned in the writ petition has been framed in exercise of powers
derived under the Act and the Rules and the same is in conformity with the
provisions of the rules and made in compliance with the Judgment of the
Division Bench, having earned finality after dismissal of the SLP Diary No(s)
3698/2021. He further submits that there cannot be automatic renewal of the
license as the provisions of the Rules do not envisage that situation. He further
submits that the Excise policy 2021-22 is in tune with the provisions of the
Act and rules and as per Scheme of law laid down by the Division Bench in
the Judgment in case titled Balbir Singh and Ors. Vs. State of JK and Ors.,
dated 28.12.2020. He further submits that the normal validity of a regular
license is one year and though provisions of Rules 4 and 14 of the Rules
provide for renewal of the license, however, the same is not as a matter of
right, but is to be seen in the light of the provisions of Rule 16, 26, 27 thereof.
Mr. Raina, learned Advocate General further submits that as per the scheme
of law, and the Judgments of the Hon'ble Apex Court and this Court no person
has a fundamental right to do trade or business in intoxicants and can claim
renewal as a matter of right. He further submits that the Hon'ble Apex Court
has time and again opined that there is no fundamental rights to do trade or
business in liquor but conferred by the State.
12. Heard learned counsel for the parties, perused the records and
considered the matter.
Page 22 of 35
CM No. 2174/2021 in
WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
13. The trade of liquor and intoxicating drugs in the Union Territory of
J&K, is governed by the Jammu and Kashmir Excise Act, Svt. 1958 and the
Rules, known as J&K Liquor Licence and 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 made 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.
14. 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 license after the applicant fulfilled the requisite formalities and the
Excise Commissioner satisfied himself about the need for the grant of license
to the person/premises. But with the intervention of Courts, the respondents
regulated the trade by notifying policies from time to time which became
further subject matter of this Court in various writ petitions/LPAs finally
decided on 28.12.2020, the lead case being OWP No. 486/2017 and LPAOW
No. 11/2017, along with clubbed matters, respondent No. 1, in compliance of
Judgment of Division Bench of this Court notified the Excise Policy 2021-22,
impugned in the instant writ petition.
Page 23 of 35
CM No. 2174/2021 in
WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
15. Whether petitioner's right stands violated by formulation of the Excise
policy 2021-22, providing him a chance of competing the process of e-
Auction for grant of license to run Retail Sale of Foreign Liquor and Indian
Made Foreign, Liquor, including (Beer) at Batwara, Srinagar, within the
Badami Bagh Cantonment, Board, instead of allow him to run such trade
under the already renewed license till 2023, or to get his license renewed as
per past policy, is the question to be replied.
16. Admittedly, in terms of the Judgment of the Division Bench, passed in
case titled Balbir Singh and Ors., Vs. State of JK and Ors., the clauses of
Excise policy for the year 2017-18, 2018-19 and 2019-20, providing for
renewal upto five years stands struck down, therefore, the contention of the
petitioner that he has a right to run the business under the license, valid till
2023 has no substance. The contention of the petitioner that renewal of license
for trade in liquor is permissible in terms of Rule 14 of Liquor license and
Sale Rules, 1984, read with provisions of the Act and rules, is to be examined
by taking note of the relevant provisions of the Act:
14. Every license issued under the provisions of the Jammu and Kashmir
Excise Act and the rules framed thereunder shall be renewed before the
expiry of its period of validity if the Licensing Authority approved the
continuation of license through the same licensee and in respect of the
same premises. A new license shall, however, be required where a
license has determined by reasons of surrender, cancellation or
/ order of non-renewal or for any other reason or where it is proposed
that a license in respect of premises or persons not
previously licensed, should be issued;
Page 24 of 35
CM No. 2174/2021 in
WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
Provided that no license shall be deemed to have been renewed on its
expiry unless the Licensing Authority issues the express orders for its
continuation;
Provided further that:
(a) a new license is not required on account of the
addition or removal of a partner, on the application of all the
partners or the change of representative of a company or
society;
(b) a license continue in favour of the legal licensee for the remaining
period of the licensee shall not be deemed to be a new license;
(c) If the premises of a license are changed during the period of its
currency the license may be continued for the remaining period of
the term on existing fee on the direction of the authority competent
to grant such license.
(d) the authority competent to grant the license can for
good and sufficient reasons, transfer the license in favour of
a legal heir of the licensee for remaining period of the term.
15. All applications, for the grant or renewal of licences,
which require, the orders of the Excise Commissioner under
these rules, should be received through the proper channel in
the Excise Commissioner's Office before the end of October in
each year:
Provided that applications for the grant of licenses in Form
JKEL 3 or JKEL 4 may in urgent case, where they do not
adversely affect any existing licence, be submitted at any time
during the year.
16. No person to whom a license has been granted shall
be entitled to claim as a matter of right any renewal thereof and
no claim shall lie for damages for otherwise in consequence of
any refusal to renew a licence on the expiry of the period for
which it remains in force.
The Excise and Taxation Officer Incharge of Excise
Range shall lay before the Deputy Excise Commissioner by the
10th of January each year a list of all licences requiring
renewal. The list shall be accompanied in the case of licences
granted on assessed fee, by a certificate of sales, in the case of
Page 25 of 35
CM No. 2174/2021 in
WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
bottling licenses by a similar certificate showing litres (London
proof) bottled upto December 31.
x x x x
26. Licenses for the vend by wholesale and retail of any liquor
may only be given for a period of one year from the 1st of April, to the
31st of March following, provided that:
(a) a license may be given from any date to the 31st March, following
(b) the Excise Commissioner may sanction for shorter periods such
licenses or classes as he thinks fit
(c) The excise commissioner may by order, direct that
the subject to such conditions and limitations as may be
mentioned in such order, the .period of any class of licenses
shall be extended for a period not exceeding one month.
27. All licences shall unless it is otherwise provided
st
determine on the 31 of March, next following the grant.
x x x x
30. Procedure to be followed and matters to be
ascertained before any licence is granted for the retail vend of
liquor, for consumption on the premises and off the premises in
case of fixed fee leviable licences.
1. When it is proposed to grant a licence for the retail
vend of liquor for consumption on/off any premises, which
were not licensed in the preceding year, the Deputy Excise
Commissioner of the Province shall take all reasonable
steps to ascertain the opinion of persons, who reside or have
property in the neighbourhood and are likely to be affected
by the proposal.
2. The Deputy Excise Commissioner shall cause a
notice posted of the proposal at or near the site proposed for
the new licence.
3. If the proposed premises are in a municipal area or a
town area, or notified area, the Deputy Excise
Commissioner shall lay the proposal, in writing before the
committee of the Municipality, Town area or Notified area.
Page 26 of 35
CM No. 2174/2021 in
WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
4. The Deputy Excise Commissioner shall also ask for
the opinion of District Magistrate.
5. If the site of the proposed licence is near a Railway Station
educational institution, hospital area or any large factory, mill or
workshop, the Deputy Excise Commissioner shall ask for the opinion of
the Railways, educational or hospital authorities or commercial firms
concerned.
6. If any objection is preferred to the proposal within
two month from the date of, the notice and reference,
referred to in sub rule 2 of this rule, the Deputy Excise
Commissioner or a gazetted officer deputed by him shall
enquire into it. The inquiry shall, if possible, be made on the
spot. If it is not possible to make an inquiry on the spot, an
inquiry shall be made in a formal proceeding at which
evidence tendered for or against the proposal shall be
recorded. The date and place of the inquiry shall be
published in the notice prescribed above.
7. The final report, together with the opinion of the
Commissioner of the Local Bodies concerned and the
District Magistrate (provided this opinion is furnished
within two months and in respect of licence JKEL-413
within two weeks from the date of the reference mentioned
in sub-rule (3) and (4) of this rule, shall be forwarded by the
Deputy Excise Commissioner to the Excise Commissioner.
8. Pending completion of the procedure, here-in-above, the Excise
Commissioner, may if the situation so warrants in the interest of
Government revenue, grant a temporary licence for retail vending of
liquor at a premises, previously notified by the department, for a period
not exceeding four months, to be followed either by grant of a regular
licence, licence under the rules on completion of the procedure or
termination of the temporary licence in the event of non-completion of
the procedure."
17. As per the Scheme of the rules, a set procedure is required to be
followed and certain formalities completed before any license is granted for
retail vend of liquor for consumption on and off the premises, which is
detailed out further in Sub Rule 8 of Rule 30, which was inserted in the Rules
Page 27 of 35
CM No. 2174/2021 in
WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
w.e.f. 26.02.2004, provides that pending completion of the formalities, the
Excise Commissioner, in the interest of Government revenue, can grant
temporary licence for retail vending of liquor for a period not exceeding four
months. Rule 14 of the rules provides for renewal of the licenses before the
expiry of period of validity. No license is deemed to be renewed unless the
Licensing Authority issues express order in that regard. Rule 15, provides for
procedure for filing application for grant or renewal of license. To further deal
with the claim of the petitioner, it has become necessary to take note of already
settled position of law, as to whether right to trade in liquor is fundamental
rights. The Hon'ble Supreme Court in Har Shanker and Ors. etc. v. The
Deputy Excise and Taxation Commissioner and others etc., reported as AIR
1975 Supreme Court 1121. The relevant paras therefrom are extracted below:-
53. In our opinion, the true position governing dealings
in intoxicants is as stated and reflected in the Constitution Bench
decisions of this Court in Balsara's case, 1951 SCR 682 : (AIR
1951 Supreme Court 318); cooverjee's case, 1954 5CR 873
(AIR 1954 Supreme Court 220); Kidwai's case, 1957 SCR 295:
(AIR 1957 Supreme Court 414); Nagendra Nath's case; 1958
5CR 1240 : (AIR 1958 Supreme Court 398); Amar
Chokraborty's. case, (1973)] 5CR 533 : ( AIR 1972 Supreme
Court 1863) and the RMDC case, 1957 5CR 874 =(41R 1957
Supreme Court 699) as interpreted •in Harinärayan Jaiswal's
case, (1972)3 SCR 784 : '( AIR 1972 Supreme Court 1816) and
Nashirwar's case, (AIR 1975. Supreme Court 360). There is no
fundamental right to do trade or business in intoxicants. The State,
under its regulatory powers, has the right to prohibit absolutely
every form of activity in relation to intoxicants - its manufacture,
storage, export, import, sale and possession. In all their
manifestations, these rights are vested in the State and indeed
without such vesting there can be no effective regulation of
various forms of activities in relation to intoxicants."
Page 28 of 35
CM No. 2174/2021 in
WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
37. The issue was further considered in AIR 1987 SC 251, wherein
while reiterating the law laid down in Har Shanker's case (supra), it was
observed that when the State decides to grant such right or privilege to
others, it cannot escape the rigour of Article 14 of the Constitution of India.
It cannot act arbitrarily or at its sweet will. Grant of licenses to
manufacture or sale of liquor would essentially be a matter of economic
policy wherein the Courts normally do not to be plainly arbitrary,
irrational or extracted below :-
32.......Now it is true and it is well settled by several decisions of this
Court including the decision in Har Shanker v.
Deputy Excise & Taxation Commr., (1975) 3 SCR 254: (AIR
1975 Supreme Court 1121), that there is no fundamental right in a
citizen to carry on trade or business in liquor. The State under its
regulatory power has the power to prohibit absolutely every form
of activity in relation to intoxicants - its manufacture, storage,
export., import, sale and possession. No one can claim as against
the State the right to carry on trade or business in liquor and the
State cannot be compelled to part with its exclusive right or
privilege of manufacturing and selling liquor. But when the State
decides to grant such right or privilege to others, the State cannot
escape the rigour of Article 14. It cannot act arbitrarily or at its
sweet will. It must comply with the equality clause while granting
the exclusive right or privilege manufacturing or selling liquor. It
is, therefore, not possible to uphold the contention of the State
Government and respondents Nos. 5-11 that Article 14 can have
no application in a case where The license to manufacture or sell
liquor is being granted by the State Government. The State cannot
ride roughshod over the requirement of that Article.
33. But, while considering the applicability of Article 14
in such a case, we must bear in mind that, having regard to the
nature of the trade or business, the Court would be slow to
interfere with the policy laid down by the State Government for
grant of licenses for manufacture and sale of liquor. The Court
would, in view of the inherently perniciousnature of the
commodity, allow a large measure of latitude to the State
Government in determining its policy of regulating manufacture
and trade in liquor. Moreover, the grant of licenses for
manufacture and, sale of liquor would essentially be a matter of
economic policy where the Court would hesitate to intervene and
strike down what the State Government had done, unless it
appears to be plainly arbitrary, irrational or mala fide. We had
occasion to consider the scope of interference by the Court under
Article 14 while dealing with laws relating to economic activities
Page 29 of 35
CM No. 2174/2021 in
WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
in R.K. Garg V. Union of India, (1982) 1 SCR 947: (AIR 1981
Supreme Court 2138). We pointed out in that case that laws
relating to economic activities should be viewed with greater
latitude than laws touching civil rights such as freedom of speech,
religion, etc. We observed that the legislature should be allowed
some play in the joints because it has to deal with complex
problems which do not admit of solution through any doctrinaire
which do not admit of solution through any doctrinaire or strait
jacket formula and this is particularly true in case or legislation
dealing with economic matters, where having regard to the nature
of the problems required to be dealt with, greater play in the joints
has to be allowed to the legislature. We quoted with approval the
followed admonition given by Frankfurter, J. in Morey v. Doub,
(1957) 354 US 457:
-In the utilities, tax and economic regulation cases,
there are good reasons for judicial self-restraint if not
judicial deference to legislative judgment. The
legislature after all has the affirmative responsibility.
The Courts have only the power to destroy, not to
reconstruct. When these are added to the complexity
of economic regulation, the uncertainty, the liability
to error, the bewildering conflict of the experts, and
the number of times the judges have been overruled
by events self-limitation can be seen to be path to
-
judicial wisdom and institutional prestige and
stability.
What we said in that case in regard to legislation
relating to economic matters must apply equally in regard to executive action in the field of economic activities, though the executive decision may not be placed on as high and pedestal as legislative judgment in so far as judicial deference is concerned. We must not forget that in complex economic matters every decision is necessarily empiric and it is based on experimentation or what may call trial and error method and, therefore, its validity cannot be tested on any rigid a priori consideration or on the application of any straitjacket formula. The Court must while adjudging the constitutional validity of an executive decision relating to economic matters grant a certain measure of freedom or play' in the -joints to the executive. -The problem of Government as pointed out by the Supreme Court of the United States in Metropolis Theatre Company v. State of Chicago, (1912)57L Ed 730. "are practical ones and may, justify, if they do not require, rough accommodations, illogical, it may be, and unscientific. But even such criticism should not be hastily Page 30 of 35 CM No. 2174/2021 in WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021 expressed. What is pest is not discernible, the wisdom of any choice may be disputed of condemned. Mere errors of Government are not subject to our judicial review. It is only its palpably arbitrary exercise which can be declared void. The Government, as was said in Permain Basin Area Rates cases, (1968) 20 L Ed (2d) 312, is entitled to make pragmatic adjustments which may be called for by particular circumstances. The Court cannot strike down a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical. The Court can interfere only if the policy decision is patently arbitrary, discriminatory or malafide. It is against the background of these observations and keeping them in mind that we must now proceed to deal with the contention of the petitioners based on Article 14 of the Constitution. (Emphasis supplied)
38. The aforesaid principle was reiterated in (1995)1 SCC 574, titled as M/s Khoday Distilleries Ltd. and others vs State of Karnataka &Ors . Para No. 62 therefrom is extracted below:-
62. We therefore, hold that a citizen has no fundamental right to trade or business in such liquor. The State can prohibit completely the trade or business in potable liquor since liquor as beverage is res extra commercium. The State may also create a monopoly in itself for trade of business in such liquor. The State can further place restrictions and limitations on such trade or business in articles res commercium. The view taken by this Court in K.K. Narula case as well as in the second Synthetics and Chemicals Ltd. Case is not contrary to the aforesaid view which has been consistently taken by this Court so far.
39. The same view was expressed in a subsequent judgment by Hon'ble the Supreme Court in (2004) 11 SCC 26, titled as State Of Punjab and another v. Devans Modern Breweries Ltd. and another.
18. The fact that the licenses already granted were being renewed as a matter of course, contrary to the provisions of law, formed the basis for the respondents to take corrective steps and act in accordance with law and not follow the practice which is contrary to law. This is so because the clauses in Excise policy for the year 2017-18, 2018-19 and 2019-20, providing for Page 31 of 35 CM No. 2174/2021 in WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021 renewal of licenses for five years having been found to be contrary to the Rules were struck down by the Division Bench of this Court in case (supra) titled Balbir Singh and Ors. Vs. State of JK and Ors., and the Government was given liberty to frame new Excise Policy for the year 2021-22, taking care of all the aspects.
19. Trade in liquor cannot be claimed as a matter of right. It is so as Hon'ble the Supreme Court has time and again opined that there is no fundamental right to trade in liquor. It is a right conferred by the State and consequently there is no scope for claiming renewal of license which in the past was followed as a matter of course and such practice being contrary to law, cannot be sought to be enforced in Court, therefore, there is no merit in the argument advanced by Mr. Mohsin Qadri, learned senior counsel, seeking setting aside the impugned Excise policy on the strength of the grounds, which are not available to the petitioner under law.
20. The claim of the petitioner, seeking renewal of license on the strength of the provisions of the Act, rules and the interpretation of the Judgment of the Division Bench is not permissible as the said issue stands already concluded by the Division Bench of this Court in a decision delivered on 28.12.2020, therefore, the contention of learned Advocate General having substance, that issue cannot be reopened in the writ petition before the Single Bench, which is not permissible under law. There cannot be automatic renewal of license as the provisions of the rules do not envisage that situation. Page 32 of 35
CM No. 2174/2021 in WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021 Normal validity of a regular license is one year which expires in March 31 st every year, though provisions of Rule 14 of the Rules provide for renewal of the license, however, same is not matter of right if seen in the light of provisions of Rule 16 thereof, so the respondent No. 1, has rightly framed the Excise Policy 2021-22.
21. Article 47 of the Constitution of India, which is part of directive principles of State policy provides that the State shall endeavour to bring about prohibition of consumption except for medicinal purposes of intoxicating drinks and of drugs, which are injurious to health and such State policies regulated in terms of the provisions of the Excise Act, Rules and Judgments of Hon'ble the Supreme Court, trade in liquor is restricted and is regulated by the policies of the Government and merely because petitioner has opened his liquor vend at a particular place will not mean that he has earned any fundamental right to trade as guaranteed under the Constitution of India on permanent basis. His right is only to compete the process of auction and if declared successful, can be allowed to run the trade of liquor that too for the specified period and beyond that there is no guarantee. The argument advanced by the senior counsel appearing for the petitioner that petitioner has absolute right to seek renewal of his license for all times to come as being authorized by law, is not only misconceived but misdirected also. There is no scope for such arguments as being without merit, as same is against the law laid down by Hon'ble the Supreme Court and taken note of in this Judgment. Page 33 of 35
CM No. 2174/2021 in WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021
22. Petitioner's right for running trade of Retail Sale of Foreign Liquor and Indian Made Foreign Liquor, including (Beer), at Batawara, Srinagar, within Badami Bagh, cantonment area, is not a fundamental or legal right to trade, as declared by this Court on the strength of already laid down law by Hon'ble the Supreme Court, therefore, violation of right is sine-qua-non for maintaining the writ petition for the relief claimed. This view is also supported by the Judgment of Hon'ble the Supreme Court of the country, while dealing with the scope of 'grant of writs, in case titled 'State of Kerela V. Smt. A. Lakshmikutty & Ors.; (1986) 4 Supreme Court Cases 632', at Paragraph No.34, has observed as under:
"34. We must refer to the case of Mani Subrat Jain v. State of Haryana & Ors., (supra) which was relied upon by learned counsel for the State Government. It is well-settled that a writ of mandamus is not a writ of course or a writ of right, but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, there- fore, the Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. Applying the principles stated in Halsbury's Laws of England, 4th edn., vol. 1, paragarph 122, this Court observed that a person whose name had been recommended for appointment as a District Judge by the High Court under Art. 233(1) had no legal right to the post, nor was the Governor bound to act on the advice of the High Court and therefore he could not ask for a mandamus. It was observed:
"It is elementary though it is to be restated that no one can ask for a mandamus without a legal right.
The initial appointment of District Judges under Article 233 is within the exclusive jurisdiction of the Government after consultation with the High Court. The Governor is not bound to act on the advice of the High Court. The High Court recommends the names of persons for appointment. If the names are recommended by the High Court it is not obligatory on the Governor to accept the recommendation.
The consultation of the Governor with the High Court does not mean that the Governor must accept whatever advice of recommendation is given by the High Court. Article 233 requires Page 34 of 35 CM No. 2174/2021 in WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021 that the Governor should obtain from the High Court its views on the merits and demerits of persons selected for promotion and direct recruitment."
The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of mandamus. The present trend of judicial opinion appears to be that in the case of non-selection to a post, no writ of mandamus lies."
23. Again, in the case of 'State of UP & Ors. V. Harish Chandra & Ors.; (1996) 9 Supreme Court Cases 309', at Paragraph No.10, the Hon'ble Supreme Court has held thus:
"10. Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some earlier decisions of the Court came to hold that the list does not expire after a period of one year which on the face of it is erroneous. Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recruitment of the Writ Petitioners. Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But so mandamus can be issued to direct the Government to refrain from enforcing the provision of law or to do something which is contrary to law. This being the position and in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules we really fail to understand how the High Court could issue the impugned direction to recruit the respondents who were included in the select list prepared on 4.4.87 and the list no longer survived after one year and the rights, it any, of persons included in the list did not subsist. In the course of hearing the learned counsel for the respondents, no doubt have pointed out some materials which indicate that the Administrative Authorities have made the appointments from a list beyond the period of one year from its preparation. The learned counsel appearing for the appellants submitted that in some cases pursuance to the direction of the Court some appointments have been made but in some other cases it might have been done by the Appointing Authority. Even though we are persuaded to accept the submission of the learned counsel for the respondents that on some occasion appointments have been made by the Appointing Authority from a select list even after the expiry of one year from the data of selection but such illegal action of the Appointing Authority does not confer a right on an applicant to be enforced by a Court under Article 226 of the Constitution. We have no hesitation in coming to the conclusion that such appointments by the Appointing Authority have been made contrary to the provisions of the Statutory Rules for some unknown reason and we deprecate the practice adopted by the Appointing Authority in making such appointments contrary to the Statutory Rules. But at the same time it is difficult for us to sustain the direction given Page 35 of 35 CM No. 2174/2021 in WP(C) No.739/2021;
CM Nos. 2175/2021 Caveat No. 511/2021 by the High Court since, admittedly, the life of the select list prepared on 4.4.87 had expired long since and the respondents who claim their rights to be appointed on the basis of such list did not have a subsisting right on the date they approached the High Court. We may not be understood to imply that the High Court must issue such direction, if the writ Petition was filed before the expiry of the period of one year and the same was disposed of after the expiry of the statutory period. In view of the aforesaid conclusion of ours it is not necessary to deal with the question whether the stand of the State Government that there existed one vacancy in the year 1987 is correct or not."
24. In view of above background, I do not find any merit in the instant writ petition for the relief claimed, as such, the writ petition shall stand dismissed in limini along with all connected CM(s). However, no order at to costs.
(Ali Mohammad Magrey) Judge SRINAGAR 16.04.2021 "Mohammad Yasin Dar"
i. Whether the Judgment is reportable? Yes/ No.
ii. Whether the Judgment is speaking? Yes/ No.
MOHAMMAD YASIN DAR
2021.04.19 10:54
I attest to the accuracy and
integrity of this document