Allahabad High Court
Sadhna Jaiswal vs State Of U.P. Through Prin. Secy. Excise ... on 4 February, 2020
Bench: Pankaj Kumar Jaiswal, Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 Case :- MISC. BENCH No. - 2927 of 2020 Petitioner :- Sadhna Jaiswal Respondent :- State Of U.P. Through Prin. Secy. Excise Lko. & Ors. Counsel for Petitioner :- Dhruv Mathur,Rahul Kumar Counsel for Respondent :- C.S.C. With Case :- MISC. BENCH No. - 2729 of 2020 Petitioner :- Santosh Narayan Singh Respondent :- State Of U.P.Through Prin.Secy. Excise Lucknow & Ors. Counsel for Petitioner :- Manoj Kumar Dwivedi,Sanchita Singh Counsel for Respondent :- C.S.C. With Case :- MISC. BENCH No. - 2733 of 2020 Petitioner :- Om Prakash Shukla Respondent :- State Of U.P.Through Prin.Secy. Excise Lucknow & Ors. Counsel for Petitioner :- Manoj Kumar Dwivedi,Bishlendra Prasad,Sanchita Singh Counsel for Respondent :- C.S.C. With Case :- MISC. BENCH No. - 2742 of 2020 Petitioner :- Ajay Kumar Garg Respondent :- State Of U.P. Through Prin. Secy. Excise, Lko & Others Counsel for Petitioner :- Manoj Kumar Dwivedi,Bishlendra Prasad,Sanchita Singh Counsel for Respondent :- C.S.C. With Case :- MISC. BENCH No. - 2743 of 2020 Petitioner :- Amit Kumar Singh Respondent :- State Of U.P.Through Prin.Secy.Excise Lucknow & Ors. Counsel for Petitioner :- Manoj Kumar Dwivedi,Bishlendra Prasad,Sanchita Singh Counsel for Respondent :- C.S.C. With Case :- MISC. BENCH No. - 2746 of 2020 Petitioner :- Dharmveer Respondent :- State Of U.P. Through Prin. Secy. Excise, Lko & Others Counsel for Petitioner :- Manoj Kumar Dwivedi,Bishlendra Prasad,Sanchita Singh Counsel for Respondent :- C.S.C. With Case :- MISC. BENCH No. - 2759 of 2020 Petitioner :- Smt. Nirmala Devi & Ors. Respondent :- State Of U.P.Through Prin.Secy. Excise Lucknow & Others Counsel for Petitioner :- Satya Prakash,Abhishek Vishwakarma,Shikhar Srivastava Counsel for Respondent :- C.S.C. With Case :- MISC. BENCH No. - 2774 of 2020 Petitioner :- Shashi Bala Srivastava Respondent :- State Of U.P.Through Prin.Secy.Excise Lucknow & Others Counsel for Petitioner :- Manoj Kumar Dwivedi,Bishlendra Prasad,Sanchita Singh Counsel for Respondent :- C.S.C. With Case :- MISC. BENCH No. - 2783 of 2020 Petitioner :- Bhagwati Prasad Dixit Respondent :- State Of U.P.Through Prin.Secy.Excise Lucknow & Others Counsel for Petitioner :- Manoj Kumar Dwivedi,Bishlendra Prasad,Sanchita Singh Counsel for Respondent :- C.S.C. With Case :- MISC. BENCH No. - 2789 of 2020 Petitioner :- Smt. Mamta Singh & Others Respondent :- State Of U.P.Through Prin.Secy.Excise Lucknow & Others Counsel for Petitioner :- Satya Prakash,Abhishek Vishwakarma,Shikhar Srivastava Counsel for Respondent :- C.S.C. With Case :- MISC. BENCH No. - 2796 of 2020 Petitioner :- Sri Sukesh Kumar & Others Respondent :- State Of U.P. Through Prin. Secy. Excise, Lko & Others Counsel for Petitioner :- Shikhar Srivastava,Abhishek Vishwakarma,Satya Prakash Counsel for Respondent :- C.S.C. With Case :- MISC. BENCH No. - 2809 of 2020 Petitioner :- Sumit Singh Respondent :- State Of U.P. Through Prin. Secy. Excise, Lko & Others Counsel for Petitioner :- Manoj Kumar Dwivedi,Bishlendra Prasad,Sanchita Singh Counsel for Respondent :- C.S.C. With Case :- MISC. BENCH No. - 2925 of 2020 Petitioner :- Anil Kumar & Another Respondent :- State Of U.P.Through Prin.Secy. Excise Lucknow & Others Counsel for Petitioner :- Manoj Kumar Dwivedi,Arun Kumar Dwivedi,Bishlendra Prasad,Sanchita Singh0.79 " Counsel for Respondent :- C.S.C. With Case :- MISC. BENCH No. - 2926 of 2020 Petitioner :- Smt. Gyatri Devi & Others Respondent :- State Of U.P. Through Prin. Secy. Excise, Lko & Others Counsel for Petitioner :- Manoj Kumar Dwivedi,Bishlendra Prasad,Sanchita Singh Counsel for Respondent :- C.S.C. With Case :- MISC. BENCH No. - 2928 of 2020 Petitioner :- Shilpa Agarwal Respondent :- State Of U.P. Through Prin. Secy. Excise, Lko & Others Counsel for Petitioner :- Dhruv Mathur,Rahul Kumar Counsel for Respondent :- C.S.C. With Case :- MISC. BENCH No. - 2929 of 2020 Petitioner :- Vishakha Jaiswal Respondent :- State Of U.P.Through Prin.Secy. Excise Lucknow & Others Counsel for Petitioner :- Dhruv Mathur,Rahul Kumar Counsel for Respondent :- C.S.C. With Case :- MISC. BENCH No. - 2930 of 2020 Petitioner :- Alka Goel Respondent :- State Of U.P. Through Prin. Secy. Excise Lko. & Ors. Counsel for Petitioner :- Dhruv Mathur,Rahul Kumar Counsel for Respondent :- C.S.C. With Case :- MISC. BENCH No. - 2931 of 2020 Petitioner :- Naresh Kumar Gupta Respondent :- State Of U.P. Through Prin. Secy. Excise, Lko & Others Counsel for Petitioner :- Dhruv Mathur,Rahul Kumar Counsel for Respondent :- C.S.C. With Case :- MISC. BENCH No. - 2934 of 2020 Petitioner :- Rajesh Singh Respondent :- State Of U.P.Through Prin.Secy. Department Of Excise & Anr. Counsel for Petitioner :- Amarendra Pratap Singh Counsel for Respondent :- C.S.C. With Case :- MISC. BENCH No. - 3100 of 2020 Petitioner :- Ajay Pal Respondent :- State Of U.P.Through Prin.Secy.Excise Lucknow & Others Counsel for Petitioner :- Satya Prakash,Abhishek Vishwakarma,Shikhar Srivastava Counsel for Respondent :- C.S.C. With Case :- MISC. BENCH No. - 3125 of 2020 Petitioner :- Smt. Anju Srivastava & Anr. Respondent :- State Of U.P.Through Prin.Secy.Excise Lucknow & Ors. Counsel for Petitioner :- Manoj Kumar Dwivedi,Sanchita Singh Counsel for Respondent :- C.S.C. With Case :- MISC. BENCH No. - 3190 of 2020 Petitioner :- Smt. Karishma Jaisawal Respondent :- State Of U.P.Through Prin.Secy. Excise & Others Counsel for Petitioner :- Manoj Kumar Dwivedi,Sanchita Singh Counsel for Respondent :- C.S.C. With Case :- MISC. BENCH No. - 3153 of 2020 Petitioner :- Taufiq Ahmad & Others Respondent :- State Of U.P.Through Prin.Secy. Excise Lucknow &0.79 " Others Counsel for Petitioner :- Manoj Kumar Dwivedi,Sanchita Singh Counsel for Respondent :- C.S.C. With Case :- MISC. BENCH No. - 3216 of 2020 Petitioner :- Gaya Prasad Yadav Respondent :- State Of U.P.Through Prin.Secy. Excise & Others Counsel for Petitioner :- Hari Om Pandey Counsel for Respondent :- C.S.C. With Case :- MISC. BENCH No. - 3257 of 2020 Petitioner :- Smt. Rekha Jaiswal & Others Respondent :- State Of U.P.Through Prin.Secy. Excise Lucknow & Others Counsel for Petitioner :- Satya Prakash,Abhishek Vishwakarma,Shikhar Srivastava Counsel for Respondent :- C.S.C. With Case :- MISC. BENCH No. - 3258 of 2020 Petitioner :- Smt. Somwati Jaiswal Respondent :- State Of U.P. Thru. Prin. Secy. Excise Lucknow & Ors. Counsel for Petitioner :- Satya Prakash,Abhishek Vishwakarma,Shikhar Srivastava Counsel for Respondent :- C.S.C. Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Karunesh Singh Pawar,J.
(1) Heard Sri Jaideep Narain Mathur, Senior Advocate, assisted by Sri Dhruv Mathur, Sri Manoj Kumar Dwivedi, Sri Satya Prakash, Sri Amrendra Pratap Singh, Sri Hari Om Pandey, learned counsel for the petitioners and Sri H.P. Srivastava, learned Additional Chief Standing Counsel for the respondents State.
(2) Since common question of law are involved in the above-captioned writ petitions, therefore, with the consent of the learned counsel for the parties, we proceed to decide the same by a common order.
(3) By means of the above-captioned writ petitions, the petitioners, who are the foreign liquor licensee, are challenging Clause 2.2.4 of the Government Order dated 24.01.2020 insofar as it declares that licensees, who have lifted foreign liquor to the extent of 20% of the previous year as calculated in December, 2019, are eligible for renewal of Excise License for the year 2020-21.
(4) Learned Senior Counsel for the petitioners has submitted that the petitioners are the foreign liquor licensee. As per Government Policy dated 25.12.2018, petitioners have been granted license of foreign liquor shop for the excise year 2019-20. As per Clause 2.7.9 of the Excise Policy dated 25.12.2018, the licensee has to lift excess of 20% of the foreign liquor on or before 31.01.2020 and, then, only his application will be considered for renewal for the excise year 2020-21. Thereafter, the State Government has issued another liquor policy which came into force w.e.f. 24.1.2020, by which the application for renewal will be considered if licensee has already lifted the excess of 20% foreign liquor quantity on or before 31.12.2019.
(5) Learned Senior Counsel has drawn our attention to Clause 2.2.4 of the liquor policy dated 24.1.2020 and submitted that the State Government has changed the date retrospectively w.e.f. 31.12.2019 and, therefore, it is contrary to Clause 2.7.9 of the earlier policy which has been framed under the provisions of U.P. Excise (Amendment and Validation) Act, 1970.
(6) In Misc. Bench Nos. 2927 of 2020, 2729 of 2020, 2733 of 2020, 2742 of 2020, 2743 of 2020, 2746 of 2020, 2759 of 2020, 2774 of 2020, 2783 of 2020, 2789 of 2020, 2796 of 2020, 2809 of 2020, 2925 of 2020, 2926 of 2020, 2928 of 2020, 2929 of 2020, 2930 of 2020, 2931 of 2020 and 2934 of 2020, this Court has passed the interim order dated 31.1.2020, which reads as under :-
"1. Heard Shri J.N. Mathur, learned Senior Counsel with Shri Dhruv Mathur, learned counsel for the petitioner and Shri H.P. Srivastava, learned Additional Chief Standing Counsel for the State-respondents along with Shri Harish Chandra, Joint Commissioner, Office of Excise Commissioner, U.P. at Prayagraj.
2. The petitioner is a licensee of respondents. He has been granted license of foreign liquor shop for the excise year 2019-2020 as per Government Policy dated 25.12.2018. According to the petitioner as per Clause 2.7.9. of the Excise Policy 2019-20 dated 25.12.2018 the licensee has to lift excess 20% of the material on or before 31.01.2019 and then only his application will be considered for renewal for the excise year 2020-2021.
3. In the meantime the Government issued another liquor policy which came into force on 24.1.2020 by which the application for renewal will be considered if licensee has already lifted the excess 20% quantity on or before 31.12.2019.
4. Learned Senior Counsel for the petitioner has drawn our attention to Clause 2.2.4 of Policy dated 24.1.2020 and submitted that the State Government has changed the date retrospectively with effect from 31.12.2019 and therefore the same is contrary to Clause 2.7.9 of the earlier Policy which has been framed under the provisions of U.P. Excise (Amendment and Validation) Act, 1970.
5. As per instructions received from the respondents, Shri H.P. Srivastava, learned Additional Chief Standing Counsel for the State-respondents has submitted that in case the petitioner lifts 20% excess quantity as per old policy, that is, on or before 31.01.2020, then his application (offline) shall be considered for renewal as per new policy dated 24.1.2020 for the next excise year i.e. 2020-21.
6. Considering the aforesaid, we direct the petitioner to apply (offline) for grant of renewal and lift the material on or before 31.1.2020 and file an application in physical form before the Authority concerned so that the same may be forwarded to the appropriate authority for grant of renewal in the concerned district accordingly.
7. As prayed by Shri H.P. Srivastava, learned Additional Chief Standing Counsel for the State-respondents, list/put up on Tuesday, i.e. 04.02.2020. Till then no adverse order on renewal application of the petitioner-licensee, who has complied the order of lifting the material as per Clause 2.7.9, shall be passed.
8. List/put up on Tuesday, i.e. 04.02.2020."
(7) Learned Senior Counsel for the petitioner has submitted that in pursuance to the aforesaid interim order dated 31.1.2020, petitioners of Misc. Bench Nos. 2927 of 2020, 2729 of 2020, 2733 of 2020, 2742 of 2020, 2743 of 2020, 2746 of 2020, 2759 of 2020, 2774 of 2020, 2783 of 2020, 2789 of 2020, 2796 of 2020, 2809 of 2020, 2925 of 2020, 2926 of 2020, 2928 of 2020, 2929 of 2020, 2930 of 2020, 2931 of 2020 and 2934 of 2020, have lifted 20% excess quantity of foreign liquor before 31.1.2020 and for the month of February, 2020 and March, 2020, they will lift the same before the expiry of the terms as provided under the policy and further the petitioners of the aforesaid writ petitions have also applied (offline) for grant of renewal. Therefore, he prays that their applications for grant of renewal of license be directed to be considered by the Excise Commissioner as early as possible and the writ petition be disposed of in terms of the interim order dated 31.1.2020 (supra).
(8) Per contra, Sri H.P. Srivastava, learned Additional Chief Standing Counsel for the respondents State has drawn our attention to Clause 2.7.11 of the new policy dated 24.1.2020 and has submitted that the policy dated 24.1.2020 has come into force after taking approval from the Cabinet of the State and, therefore, the power of relaxation of the terms and conditions of the new policy is with the Cabinet of the State. In these backgrounds, he has submitted that the respondents will consider the application of the petitioners for renewal of license (offline) in the light of the interim order dated 31.1.2020 (supra) only after taking necessary approval from the Cabinet of the State and, thereafter, they will decide the same within fifteen days from the date of filing the representation by the licensee/ petitioners.
(9) The stand of the petitioners is that the persons falling in different class can be treated differently but it is impermissible to create a calls within a class for the purposes of treating them differently. Therefore, their stand is that all the licencees who lift quantities of liquor in excess of 20% over the previous year will form the same class and it is impermissible to treat licensees who have lifted quantities in excess of 20% over the previous year upto December, 2019 as a separate class as compared to those who have achieved the same over the remainder of the months, namely, January, February or March, 2020.
(10) It is not in dispute that as per the policy dated 25.12.2018, the eligibility criterion for seeking renewal of the license for the year 2020-21 was lifting of quantities in excess of 20% over the previous year, meaning thereby by 31.03.2020, the licensee should have lifted sufficient quantities or liquor in order to ensure that the same was 20% or more in excess of the previous year. The relevant portion of Clause 2.7.9 of the Excise Policy dated 25.12.2018 reads as under :
"2-7-9 o"kZ 2020&21 gsrq nqdkuks dk uohuhdj.k%& ¼2½ o"kZ 2019&20 esa ftu fons'kh efnjk nqdkuksa ij o"kZ 2018&19 esa gq;s miHkksx esa lfUufgr 'kqYd vkSj vfrfjDr izfrQy 'kqYd ds ;ksx dh rqyuk esa 20 izfr'kr vf/kd izfrQy 'kqYd vkSj vfrfjDr izfrQy 'kqYd dk ;ksx lfUufgr gksxk] mu nqdkuks ds vuqKkij] rRle; fu/kkZfjr 'krksZ@izfrca/kks@ns;rkvksa vkSj vuqKkih dh bPNk ij o"kZ 2020&21 gsrq uohuhd`r fd;s tkus dk vk/kkj gksxkA bl gsrq nqdku ij lapkyu vof/k esa gq;s miHkksx ds vk/kkj ij lekuqikfrd :i ls okf"kZd miHkksx dk vkadyu fd;k tk;sxkA"
(11) From perusal of the aforesaid, it is clear that no period has been mentioned in Clause 2.7.9 of the Excise Policy 2019-20, which would be taken into account for the purpose of determining as to whether a licensee has achieved a 20% excess as required for seeking renewal of the license for the excise year 2020-21.
(12) As per new Excise Policy 2020-21 dated 24.1.2020, which has been published on the official website of the respondent on 26.1.2020, the period which would be factored in for determining the eligibility of a licensee for renewal of the license for the year 2020-21 would be upto December, 2019. The relevant portion of new Excise Policy dated 24.1.2020 reads as under :
"2-2-4 fons'kh efnjk dh QqVdj vuqKkiuksa dk o"kZ 2020&21 gsrq uohuhdj.k%& o"kZ 2019&20 dh vkcdkjh uhfr esa ;g O;oLFkk gS fdßSo"kZ 2019&20 esa ftu fons'kh efnjk nqdkuksa ij o"kZ 2018&19 esa gq;s miHkksx esa lfUufgr izfrQy 'kqYd vkSj vfrfjDr izfrQy 'kqYd ds ;ksx dh rqyuk esa 20 izfr'kr vf/kd izfrQy 'kqYd vkSj vfrfjDr izfrQy 'kqYd dk ;ksx lfUufgr gksxk] mu nqdkuksa ds vuqKkiu] rRle; fu/kkZfjr 'krksZa] izfrcU/kksa] ns;rkvksa vkSj vuqKkih dh bPNk ij o"kZ 2020&21 gsrq uohuhd`r fd;s tkus dk vk/kkj gksxkAß rndze esa ;g izkfo/kkfur fd;k tkrk gS fd o"kZ 2020&21 gsrq fons'kh efnjk dh ,slh nqdkusa gh uohuhdj.k gsrq vgZ gksaxh ftuij o"kZ 2019&20 esa orZeku vuqKkih dh lapkyu vof/k esa ekg fnlEcj] 2019 rd nqdku ij yh x;h fudklh esa lfUufgr izfrQy 'kqYd vkSj vfrfjDr izfrQy 'kqYd dk ;ksx o"kZ 2018&19 dh laxr vof/k esa nqdku ij yh x;h fudklh esa lfUufgr izfrQy 'kqYd vkSj vfrfjDr izfrQy 'kqYd ds ;ksx ls 20 izfr'kr vf/kd gksxkA izfrca/k ;g gksxk fd ;fn o"kZ 2019&20 dh vof/k ds laxr vof/k o"kZ 2018&19 esa u miyC/k gksdj de vof/k miyC/k gksrh gS rc o"kZ 2018&19 dh mijksDr de vof/k esa yh x;h fudklh esa lfUufgr izfrQy 'kqYd vkSj vfrfjDr izfrQy 'kqYd ds ;ksx ls rqyuk dh tk;sxhA fons'kh efnjk nqdkuksa dk uohuhdj.k fuEufyf[kr 'krksZa ds v/khu fd;k tk;sxk%& ¼1½ vafre O;ixr ekl rd dh leLr ns;rka, csckd gksA ¼2½ o"kZ 2019&20 dh izfrHkwfr /kujkf'k tek ,oa lqjf{kr gksaA ¼3½ vuqKkih dks bl vk'k; dk :- 10@& ds ukWutqMhf'k;y LVkEi isij ij uksVsjkbTM 'kiFk i= Hkh nsuk gksxk fd og o"kZ 2020&21 gsrq fu/kkZfjr leLr ns;rkvksa dks tek djus gsrq lger gS rFkk viuh nqdku dks o"kZ 2019&20 gsrq vuqeksfnr pSgn~nh ij uohuhd`r djkus dks rS;kj gSA mlds }kjk fnukad 31-12-2019 rd viuh nqdku ij yh x;h fudklh esa lfUufgr jktLo¼ izfrQy 'kqYd vkSj vfrfjDr izfrQy 'kqYd dk ;ksx½ ls 20 izfr'kr vf/kd gSA fnukad 31 ekpZ] 2020 rd nqdku ij yh tkus okyh fudklh esa lfUufgr jktLo ¼ izfrQy 'kqYd vkSj vfrfjDr izfrQy 'kqYd dk ;ksx½] xr foRrh; o"kZ 2018&19 dh laxr vof/k esa yh x;h fudklh esa lfUufgr jktLo¼ izfrQy 'kqYd vkSj vfrfjDr izfrQy 'kqYd dk ;ksx½ ls 20 izfr'kr vf/kd gksxkA foQyrk dh n'kk esa mldk uohuhdj.k fujLr dj fn;k tk;s rFkk mldh o"kZ 2019&20 dh izfrHkwfr /kujkf'k dk 50 izfr'kr ,oa o"kZ 2020&21 dh uohuhdj.k Qhl o ykblasl Qhl jkT; ljdkj ds i{k esa tCr dj yh tk;sA izfrHkwfr /kujkf'k dh tCrh dh n'kk esa o"kZ 2019&20 gsrq vko';d izfrHkwfr /kujkf'k dh izfriwfrZ djsxkA blds vfrfjDr o"kZ 2019&20 esa uol`ftr nqdkuksa dks mudh ykblsal Qhl esa 20 izfr'kr dh o`f) ds lkFk vuqKkih dh bPNk ij o"kZ 2020&21 gsrq uohuhd`r fd;k tk,xkA ,slh nqdkuksa ds uohuhdj.k ds laca/k es fuEukafdr 'krksZa dk ikyu djuk vko';d gksxk%& ¼1½ vafre O;ixr ekl rd dh leLr ns;rka, csckd gksA ¼2½ o"kZ 2019&20 dh izfrHkwfr /kujkf'k tek ,oa lqjf{kr gksaA ¼3½ vuqKkih dks bl vk'k; dk :- 10@& ds ukWutqMhf'k;y LVkEi isij ij uksVsjkbTM 'kiFk i= Hkh nsuk gksxk fd og o"kZ 2020&21 gsrq fu/kkZfjr leLr ns;rkvksa dks tek djus gsrq lger gS rFkk viuh nqdku dks o"kZ 2019&20 gsrq vuqeksfnr pSgn~nh ij uohuhd`r djkus dks rS;kj gSA fnukad 31-12-2019 rd mldh nqdku ij yh x;h fudklh esa lfUufgr jktLo ¼ izfrQy 'kqYd vkSj vfrfjDr izfrQy 'kqYd dk ;ksx½ ds ekfld vkSlr ls U;wure 20 izfr'kr vf/kd jktLo¼ izfrQy 'kqYd vkSj vfrfjDr izfrQy 'kqYd dk ;ksx½ ds lerqY; izfrekg fudklh vkxkeh 3 ekgksa esa ysuk lqfuf'Pkr djsxkA foQyrk dh n'kk esa mldk uohuhdj.k fujLr dj fn;k tk;s rFkk mldh o"kZ 2019&20 dh izfrHkwfr dk 50 izfr'kr ,oa o"kZ 2020&21 dh uohuhdj.k Qhl o ykblasl Qhl jkT; ljdkj ds i{k esa tCr dj yh tk;sA izfrHkwfr /kujkf'k dh tCrh dh n'kk esa o"kZ 2019&20 gsrq vko';d izfrHkwfr /kujkf'k dh izfriwfrZ djsxkA uohuhdj.k dh izfd;k ¼d½ loZizFke lacaf/kr tuin ds ftykf/kdkjh@ykblasl izkf/kdkjh }kjk U;wure 02 cgqizpfyr LFkkuh; lekpkj i=ksa esa vkSj tuin dh osclkbV ij laf{kIr foKfIr ftldk lkekU; izk:i vkcdkjh vk;qDr }kjk fu/kkZfjr fd;k tk;sxk] izdkf'kr djkdj tuin dh O;ofLFkr nqdkuksa ds vuqKkfi;ksa ls uohuhdj.k gsrq vkosnu i= vkauykbu ekaxs tk;saxsA foKfIr esa ;g vafdr gksxk fd nqdkuksa ls lacaf/kr vU; vko'; fooj.k lacaf/kr ftyk vkcdkjh vf/kdkjh dk;kZy;] tuin dh osclkbV] bZ&ykVjh vFkok bZ&fjU;wvy iksVZy ,oa foHkkxh; osclkbV ls izkIr fd;s tk ldrs gSaA ¼[k½ nqdkuksa ds o"kZ 2019&20 ds vuqKkfi;ksa esa ls uohuhdj.k gsrq bPNqd vuqKkih }kjk uohuhdj.k izkFkZuki= vkuykbu izLrqr fd;k tk;sxk] mijksDr of.kZr 'kiFk&i= viyksM fd;k tk;sxk rFkk izklsflax Qhl dh /kujkf'k dks vkuykbu tek fd;k tk;sxkA vkosnu i= izkIr gksus dh frfFk ls 03 dk;Z fnol ds vanj ykblsaflax izkf/kdkjh }kjk uohuhdj.k ij fu.kZ; ysrs gq;s lacaf/kr bPNqd vuqKkih dks uohuhdj.k 'kqYd rFkk nqdku dh o"kZ 2020&21 gsrq fu/kkZfjr ykblsal Qhl dh 50 izfr'kr /kujkf'k 03 dk;Z fnol ds vanj tek djus dk funsZ'k fn;k tk;sxkA 'ks"k 50 izfr'kr /kujkf'k 20 Qjojh] 2020 rd vuqKkih dks tek djuk vfuok;Z gksxkA izfrHkwfr /kujkf'k ds varj dh /kujkf'k vuqKkih }kjk 20 ekpZ] 2020 rd tek dh tk ldsxhA ¼x½ vuqKkih }kjk mijksDrkuqlkj fu/kkZfjr izfdz;k dk ikyu u djus vFkok izfrHkwfr ds varj dh /kujkf'k le;karxZr u tek djus vFkok mlds }kjk izLrqr 'kiFk&i= dk ikyu u djus ij mldk uohuhdj.k fujLr dj fn;k tk;sxk rFkk mldh o"kZ 2019&20 dh izfrHkwfr dk 50 izfr'kr ,oa o"kZ 2020&21 dh uohuhdj.k Qhl o csfld ykblasl Qhl jkT; ljdkj ds i{k esa tCr dj yh tk;sxhA uohuhdj.k ls vo'ks"k nqdkuksa dk O;oLFkkiu bZ&ykVjh dh fu/kkZfjr izfdz;k ds vuqlkj fd;k tk;sxkA"
(13) From the aforesaid, it is clear that while making the aforesaid departure from its stated position as has been made in earlier excise policy dated 25.12.2018 vide new excise policy dated 24.1.2020, the respondents have provided a period which ends prior to the publication of their decision. This shows that the new excise policy with regard to renewal of the license has been implemented with retrospective date.
(14) In Zile Singh v. State of Haryana : (2004) 8 SCC 1, a Three-Judge Bench of the Apex Court, stated the law, thus:
"17. Maxwell states in his work on Interpretation of Statutes (12th Edn.) that the rule against retrospective operation is a presumption only, and as such it "may be overcome, not only by express words in the Act but also by circumstances sufficiently strong to displace it" (p. 225). If the dominant intention of the legislature can be clearly and doubtlessly spelt out, the inhibition contained in the rule against perpetuity becomes of doubtful applicability as the "inhibition of the rule" is a matter of degree which 13 would "vary secundum materiam" (p. 226).
Sometimes, where the sense of the statute demands it or where there has been an obvious mistake in drafting, a court will be prepared to substitute another word or phrase for that which actually appears in the text of the Act (p. 231)."
(15) In Lohia Machines Ltd. and Anr. v. Union of India (UOI) and Ors. :(1985) 2 SCR 686, the Apex Court has held :
"On the other hand it is quite clear that if the relief granted is to be withdrawn with retrospective operation from 1972 the assessees who have enjoyed the relief for all those years will have to face a very grave situation. The effect of the withdrawal of the relief with retrospective operation will be to impose on the assessee a huge accumulated financial burden for no fault of the assessee and this is bound to create a serious financial problem for the assessee. Apart from the heavy financial burden which is likely to upset the economy of the undertaking, the assessee will have to face other serious problems. On the basis that the relief was legitimately and legally available to the assessee, the assessee had proceeded to act and to arrange its affairs. If the relief granted is now permitted to be withdrawn with retrospective operation, the assessee may be found guilty of violation of provisions of other statutes and may be visited with penal consequences..."
(16) In M/s. Indian Metals and Ferro Alloys Ltd. & Anr. v. State of Orissa & Ors. : (1987) 3 SCC 189, the Apex Court was opined :
"25...we hold that the High Court was not right in observing that the orders under Section 22-B of the Act imposing restrictions on consumption of power could not legally and validly be passed by the Government "with retrospective effect" in the middle of a water year. But the position regarding disallowance of clubbing stands on an entirely different footing. If a consumer had been allowed the benefit of clubbing previously, that benefit cannot be taken away with retrospective effect thereby saddling him with heavy financial burden in respect of the past period where he had drawn and consumed power on the faith of the orders extending to him the benefit of clubbing..."
(17) In Madishetti Bala Ramul (D) by LRs. v. The Land Acquisition Officer :2007 (8) SCALE 184, the Apex Court observed:
"19. In Land Acquisition Officer-cum-DSWO, A.P. v. B.V. Reddy and Sons, this Court opined that Section 25 being not a procedural provision will have no retrospective effect, holding:
6. Coming to the second question, it is a well- settled principle of construction that a substantive provision cannot be retrospective in nature unless the provision itself indicates the same. The amended provision of Section 25 nowhere indicates that the same would have any retrospective effect. Consequently, therefore, it 15 would apply to all acquisitions made subsequent to 24-9-1984, the date on which Act 68 of 1984 came into force. The Land Acquisition (Amendment) Bill of 1982 was introduced in Parliament on 30- 4-1982 and came into operation with effect from 24-9-1984...."
(18) In Ashok Lanka and Anr. v. Rishi Dixit and Ors. :(2005) 5 SCC 598, the Apex Court held:
"A statute must be read reasonably. A statute should not read in such a manner which results in absurdity, A statute, on its plain language, although postulates a prospective operation, it cannot be held to be retrospective only because it would apply for the excise year for which applications were invited despite the fact that the selection process made thereunder is over."
(19) Considering the aforesaid legal proposition, we are of the view that the condition as made in Clause-2.2.4 of the Government Order dated 24.1.2020 in respect of renewal of the license for the excise year 2020-21 appears to be prima facie contrary to law. However, we refrain ourselves to record any ultimate finding or observation on the issue for the reason that Sri H.P. Srivastava, learned Additional Chief Standing Counsel has made a statement before us that the new excise policy with regard to renewal of the license has been implemented after taking approval from Cabinet of the State and, therefore, the Cabinet of the State has power to relax the condition as claimed by the petitioners and further if the petitioners move a representation to that effect before the authority concerned, the same would be referred to the Cabinet of the State and, immediately after taking approval from the Cabinet of the State, appropriate order will be passed by the Commissioner (Excise), in accordance with law.
(20) Learned Senior Counsel for the petitioners has submitted that the petitioners have lifted 20% excess quantity of foreign liquor before 31.1.2020 and for the month of February, 2020 and March, 2020, they will lift the same before the expiry of the terms as provided under the policy.
(21) On due consideration of the aforesaid, with the consent of the learned counsel for the parties, we provide that petitioners, who have lifted 20% of the excess quantity of foreign liquor as per policy on or before 31.01.2020, shall file an application (offline) for renewal of the license before the authority concerned along with the detailed representation within seven days from today so that the same may be forwarded to the Excise Commissioner, who shall consider the same after taking necessary approval for relaxation of the terms and conditions of the new policy dated 24.1.2020 from the Cabinet of the State and pass appropriate order in accordance with law within fifteen days from the date of receipt of the application and representation from the respective licensee/petitioners.
(22) Till the decision of the Commissioner Excise as directed hearing above, no adverse order on renewal application of the petitioners, who have lifted 20% of the excess quantity of foreign liquor as per policy on or before 31.01.2020, shall be passed.
(23) It is clarified that the benefit of the aforesaid order is only granted to those petitioners/persons, who have lifted 20% of the excess quantity of foreign liquor as per policy on or before 31.01.2020.
(24) With the aforesaid, writ petitions are disposed of .
(Karunesh Singh Pawar, J.) (Pankaj Kumar Jaiswal, J.) Order Date :- 4.2.2020 Ajit/-