Punjab-Haryana High Court
Ms Sunny Wines vs State Of Haryana And Ors on 4 November, 2019
Bench: Jaswant Singh, Lalit Batra
CWP No.10748 of 2019(O&M) #1#
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
CWP No.10748 of 2019(O&M)
Date of Decision:-04 .11.2019
M/s Sunny Wines Through its Proprietor.
......Petitioner.
Versus
State of Haryana & Ors.
......Respondents.
CORAM:- HON'BLE MR. JUSTICE JASWANT SINGH
HON'BLE MR. JUSTICE LALIT BATRA
Present: Mr. Mohan Jain, Senior Advocate assisted by
Mr. Vikram Jain, Advocate for the Petitioner.
Mr. Lokesh Sinhal, Additional Advocate General, Haryana &
Ms. Mamta Singla Talwar, Deputy Advocate General, Haryana
for respondent Nos.1 to 4-State.
Mr. Sanjay Kaushal, Senior Advocate assisted by
Mr. Amanpal Singh Mann, Advocate for respondent No.5.
Mr. Sumeet Mahajan, Senior Advocate assisted by
Mr. Amit Kohar, Advocate for the respondent No.6.
***
JASWANT SINGH, J.
1. The Petitioner i.e. M/s Sunny Wines through its sole proprietor Mrs. Geeta Gupta has filed the present Civil Writ Petition seeking a mandamus directing the Excise Department, Haryana to grant the L-1 Licence and L-13 License for District Ambala to the Petitioner for the Excise year 2019-2020 in view of its application (P-5) made within a time as per the procedure and further seeking a mandamus directing the 1 of 17 ::: Downloaded on - 22-12-2019 15:40:05 ::: CWP No.10748 of 2019(O&M) #2# Respondent authorities to enforce Clause 5.1, 5.7, 4.1 and 4.8 of Excise Policy for the year 2019-2020 read with Pubic Notices dated 23.03.2019 (P-
2), 26.03.2019 (P-3) and 04.04.2019 (P-4) towards the grant of the afore- stated Licenses. The petitioner has also sought the quashing of illegal communication dated 04.04.2019 (P-6), 06.04.2019 (P-7) and 09.04.2019 (P-8) wherein allotment of liquor Licenses L-1 and L-13 has been illegally made to Respondent No. 5 & 6.
It is the case of the Petitioner that the official respondents have illegally allotted conditional liquor licences of L-1 dated 06.04.2019 in favour of Respondent No. 5 and Respondent No. 6 and further a conditional liquor licence of L-13 dated 09.04.2019 against the Haryana Excise Policy for the year 2019-2020, Punjab Excise Act, 1914, the Rules made thereunder and the law settled by the Hon'ble Supreme Court of India inspite of private respondents applying after the requisite last date and the petitioner applying on time.
2. The facts of the case are that the Excise Policy for the year 2019-2020 (P-1) was issued by the Excise and Taxation Commissioner (hereinafter referred to as "ETC"), Haryana wherein Clause 5 deals with "Supply of IMFL from wholesale licensed outlets of IMFL (L-1 Licence)". Under Clause 5, the various provisions regarding the grant of L- 1 Licence, the conditions, the manner of applications etc. is provided. The power and authority for the calling of applications for grant of L-1 Licence vests with the Excise and Taxation Commissioner. Some relevant provisions relevant to the issue in controversy are as under:-
" Clause 5.1 The maximum number of L-1 licenses, to be granted in each district, shall be decided by the ETC. The L-1
2 of 17 ::: Downloaded on - 22-12-2019 15:40:05 ::: CWP No.10748 of 2019(O&M) #3# licenses shall be granted on the basis of revenue contribution amongst the applicant licensees, as determined on the last date for receiving such applications for grant of l-1, as decided by the ETC. A licensee shall be allowed only one L-1 license in a district. "
Under Clause 5.2, there are certain conditions based on which the Licensee for Wholesale Outlets of IMFL (L-1) under the Haryana Liquor Licence Rules, 1970, are to be granted. From the conditions enumerated under Clause 5.2, it reveals that the said conditions are to be fulfilled and / or furnished by the applicant for the grant of L-1 Licence. The conditions like authorization certificates from atleast 03 distilleries and breweries for selling their products in wholesale, proof of ownership, lease, rental of premises at which L-1 outlet is purposed, NOC from Fire Officer are to be furnished by the applicant along with proof of deposit of prescribed annual licence fee by means of Bank Draft is to be furnished.
Clause 5.7 of the said Policy provides as under:-
" 5.7 The Excise and Taxation Commissioner may, at any time during the year 2019-2020, invite applications for grant of unallotted L-1 Licenses in the District if he is satisfied that availability of IMFL is scarce either in brand or quality or both. The applications for grant of L-1 shall follow the same process as mentioned in Paragraph 5.1."
Similarly, identical provisions for the "Supply of Country Liquor (CL) from wholesale licenced outlets of CL (L-13 Licence)" are provided under Clause 4 of the Haryana Excise Policy 2019-2020.
Emphasis Supplied
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CWP No.10748 of 2019(O&M) #4#
3. The Excise and Taxation Commissioner, Haryana (Respondent No. 2) notified the maximum number of three L-1 Licences and three L-13 Licenses for District Ambala for the year 2019-2020 (P-2). Public Notice dated 26.03.2019 (P-3) was issued by the Respondent No.2 (ETC) wherein the applications were invited for grant of wholesale licence of IMFL in Form of L-1 and wholesale licenses of country liquor in form of L-13 for 21 Districts in the State of Haryana including District Ambala to be granted to the Retail Licensees of respective Districts in order of revenue contributed by them as on 26.03.2019. The last date for the submission of the application in the office of Deputy Excise and Taxation Commissioner (Excise) concerned was on or before 28.03.2019.
Upto 28.03.2019 only one application for issuance of L-1 (wholesale IMFL Licence) and one application for issuance of L-13 (wholesale country liquor Licence) was received for District Ambala and remaining two L-1 and L-13 slots fetched no applications. In this background, another Public Notice dated 02.04.2019 (P-4) was issued calling for submission of applications for remaining L-1 and L-13 Licences on the basis of revenue contribution upto 31.03.2019 and the last date for the submission of applications by the eligible licensees was kept as 04.04.2019.
4. Based on the aforestated Public Notice dated 02.04.2019 (P-4), the petitioner M/s the Sunny Wines through its proprietor applied vide P-5 for L-1 and L-13 Licence to Deputy Excise and Taxation Commissioner (Excise), Ambala (Respondent No. 4) along with the necessary documents and Bank Drafts as prescribed under the Excise Policy 2019-2020 on 04.04.2019 i.e. the closing date for the receipt of applications. It is 4 of 17 ::: Downloaded on - 22-12-2019 15:40:05 ::: CWP No.10748 of 2019(O&M) #5# undisputed that as on 04.04.2019, other than the application of the petitioner, there were no other applications received for the remaining L-1 and L-13 Licences in respect of District Ambala.
5. There was no Public Notice issued by the Excise and Taxation Commissioner, Respondent No.2, after 04.04.2019, towards the calling of any further applications for the unallotted L-1 or L-13 Licences particularly in respect of District Ambala. However, the Respondent No. 4/DETC, Ambala issued a letter dated 04.04.2019 (P-6 Colly) addressed to Respondent No. 5 and similar letter dated 04.04.2019 to Respondent No. 6 putting them to notice that they are eligible L-2 Retail Licensees for the grant of L-1 Licence and were required to submit their application for L-1 Licence for which they have failed and granted them time till 10.04.2019 to show cause as to why L-1 License be not granted to the Licensee falling in lower position of revenue contribution. The Respondent No. 4 Deputy Excise and Taxation Commissioner (Excise) Ambala also issued a Letter dated 06.04.2019 (P-7), wherein the application of the petitioner was forwarded with recommendation that L-1 Licence be granted to the petitioner M/s Sunny Wine Enterprises, Ambala if the Respondent No. 4 and Respondent No. 5 fail to apply for L-1 Licence upto 10.04.2019. It is argued on behalf of the petitioner that though the factum of the eligibility and complete application was in a manner conceded but the Respondent No. 4 acted in a manner beyond the authority and procedure prescribed in the Haryana Excise Policy 2019-2020 firstly by communicating with Respondent No. 5 and Respondent No. 6 and further extending the Public Notice dated 02.04.2019 issued by the Excise and Taxation Commissioner, Respondent No. 2 on its own.
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CWP No.10748 of 2019(O&M) #6#
6. The Respondent Deputy Excise and Taxation Commissioner, (Excise), Ambala filed a detailed reply on behalf of Respondent 1 to 4 wherein stand has been taken that there is a practice since the inception of Zone System in 2017-2018 and till the allotment year 2019-2020 that the Department has not granted L-1 / L-13 Licences to any applicant who was not eligible, in terms of revenue contribution, by ignoring and bypassing the eligible i.e. highest revenue contributor. The facts of the case as pleaded by the petitioner M/s Sunny Wines are admitted by the official Respondent and it is the stand of Respondents that since the department has fixed the total number of three L-1 and L-13 Licences for Ambala District, only the first highest revenue contributor applied for such licence within the stipulated time. As per practice, the Licences could be granted to the three highest revenue contributors and only in case the second and third highest revenue contributor decides not to apply for L-1 License, the preference is to be given to the fourth / fifth highest revenue contributor and so on. It is on the aforestated premise that the action of calling upon the Respondent No. 5 and Respondent No. 6 by way of individual notices is sought to be justified.
7. The Respondent No. 5 and Respondent No. 6 have filed their separate replies and have made reference to the Excise Policy 2019-2020 wherein the allotment of retail licenses of L-2 and L-14A is to be done purely on the basis of online competitive bidding process as envisaged in Clause 2.3 of Excise Policy 2019-2020 and towards the allotment of wholesale licenses i.e. L-1 and L-13 there was no separate bidding process and it was in the consonance with the same as a practice and custom is being allotted to the licensee having the maximum contribution of revenue in terms of L-2 and L-14A License i.e. Retail outlets license for IMFL & 6 of 17 ::: Downloaded on - 22-12-2019 15:40:05 ::: CWP No.10748 of 2019(O&M) #7# Country Made liquor (CL).
8. The Counsel for the Petitioner has raised the following legal points:
(i) as per the existing Excise Policy 2019-2020, the number of L-1 & L-13 License in the District was to be determined by the ETC, Respondent No. 2
(ii) The last date of the submission of the application alongwith the conditions and the prescribed fee as per procedure is decided by the ETC
(iii) as per the existing Excise Policy 2019-2020, the L-1 & L-13 License is only to be granted among the Licensee Applicants (as envisaged under Clause 5.1 & Clause 4 of the Excise Policy 2019-2020)
9. After having scrutinized records of the case and heard arguments of both sides, we find that the ETC, Respondent No. 2 has determined the maximum number of three Licenses each to be given in L-1 and in L-13 category for District Ambala as per Annexure P-2 and Annexure P-3. The applications were invited vide Public Notice (P-3) for the grant of wholesale License of IMFL in form of L-1 and wholesale License of Country Liquor in form of L-13 to be granted to retail Licensees of the District in order of revenue contributed by them. As per Annexure P- 3, the Application were to be submitted before the Office of DETC (Excise) by 28.03.2019. For District Ambala by 28.03.2019 only one L-1 and one L- 13 Licenses were granted. Amongst others two L-1 and two L-13 Licenses for District Ambala remained un-allotted.
Thereafter, another Public Notice (P-4) was issued for remaining L-1 and L-13 Licenses to be submitted by 04.04.2019. The Petitioner being a Retail Licensee and eligible for grant of L-1 and L-13 License for District Ambala being the 6th highest Revenue Contributor 7 of 17 ::: Downloaded on - 22-12-2019 15:40:05 ::: CWP No.10748 of 2019(O&M) #8# submitted its application (P-5) as per the prescribed procedure and with the requisite fee within the closing date of 04.04.2019.
The Petitioner was the only applicant licensee for leftover available Licences L-1 / L-13 for District Ambala by closing date of 04.04.2019. This fact is conceded by DETC, Respondent No. 4 in the order dated 06.04.2019 (P-7) & 06.04.2019 (P-8) in respect of the Application of the Petitioner for L-1 and L-13 License respectively wherein in these Orders, the recommendation was made to the ETC for the grant of L-1 and L-13 License to the Petitioner for the year 2019-2020 subject to the condition if M/s Shokeen and M/s Garg Wines fail to apply for L-1 License and M/s Shokeen fails to apply for L-13 License by 10.04.2019.
It has not been shown relying on any Clause in the existing Excise Policy, Rules or any other authority of the ETC that the DETC (Excise) Ambala Respondent No. 4 was having power to extend the last date for the submission of application for remaining L-1 and L-13 Licenses in District Ambala upto 10.04.2019 and / or to call applications from the Respondent No. 5 & 6 by issuing them with the show cause notice (P-6 Colly).
The petitioner was the only applicant for left over L-1 and L-13 Licence on the last date of applying i.e. 04.04.2019 and there was no application submitted by Respondent No. 5 and 6 till the closing of the last date as per the Public Notice issued by ETC Respondent No. 2 for the remaining L-1 and L-13 Licenses. Thus, as on the closing date of 04.04.2019, the Petitioner was only retail Licensee Applicant for available L-1 & L-13 Licenses for District Ambala. Clause 5.7 of the existing Excise Policy envisages the consideration based on which the applications can be 8 of 17 ::: Downloaded on - 22-12-2019 15:40:05 ::: CWP No.10748 of 2019(O&M) #9# invited for the un-allotted L-1 License in the District and empowers the ETC Respondent No. 2 to invite applications in this regard. The DETC (Excise), Ambala Respondent No. 4 has illegally and without jurisdiction and authority has extended the last date of application for private Respondents in contravention of the existing Excise Policy 2019-20.
10. It is conceded position by the parties that the following was the position in respect of highest revenue contributors of retail licence for IMFL and CL in respect of District Ambala for Excise Year 2019-20:-
L-13 Licences (Country Liquor) Sr. No. Name of the Number Revenue Quota (in Position of Licensee of Zones contribution in Proof the licencee allotted 2019-20 Country Liters) in the Liquor District 1 M/s 4 17,42,01,113 10,79,649 1st Shokeen 2 M/s Garg 3 15,26,56,683 9,40,604 2nd Wine 3 M/s Vinod 3 11,55,87,335 6,46,154 3rd Kumar 4 M/s Mittal 1 10,00,03,018 5,52,093 4th Wines 5 M/s Dinesh 2 9,35,54,478 5,56,184 5th Kumar 6 M/s Harpal 1 4,27,34,109 2,61,733 6th Singh
7. M/s Sunny 1 2,91,18,076 1,63,583 7th Wine Enterprises Total 15 70,78,54,812 42,00,000 L-1 Licence (Indian Made Foreign Liquor) Sr. No. Name of the Number of Revenue Quota (in Position of Licensee Zones contribution Proof the licencee allotted in 2019-20 Liters) in the IMFL District 1 M/s Vinod 3 24,85,87,665 789197 1st Kumar 2 M/s Shokeen 4 11,45,48,886 3,93,604 2nd 3 M/s Garg Wine 3 9,97,96,848 3,49,870 3rd 9 of 17 ::: Downloaded on - 22-12-2019 15:40:05 ::: CWP No.10748 of 2019(O&M) #10# 4 M/s Mittal 1 8,30,96,982 2,58,427 4th Wines 5 M/s Dinesh 2 6,62,01,076 2,26,621 5th Kumar 6 M/s Sunny 1 5,40,21,043 1,70,959 6th Wine Enterprises
7. M/s Harpal 1 3,22,65,891 1,11,322 7th Singh Total 15 69,85,18,391 23,00,000 The Petitioner was placed at position 6 in list of highest revenue contributor in respect of L-1 Licence and at 7th for L-13 Licence.
The revenue contributor at position 4 & 5 gave no objection for the grant of L-1 Licence in favour of Petitioner. The respondent no.4-DETC called for the application of Respondent No.5 & 6 who were on position 3 & 2 respectively in the list of highest revenue contributors for L-1 License and respondent No.6 for L-13 Licence in District Ambala. The said calling of applications and practice of seeking No Objection of the higher revenue contributors is de-hors the provisions of the Excise Policy, 2019-20 or any Rules in this regard relied by the parties. The Excise Policy 2019-20 under Clause 5.1 envisages L-1 Licence to be granted on the basis of the revenue contribution amongst the applicant licencees. The non applicants have no consideration in respect of grant of L-1 Licence/L-13 Licence and the relevant provisions are unambiguous in this regard.
11. The argument of the Respondents that the L-1 and L-13 Licenses were to be issued based on the revenue contribution does not hold the ground because the said revenue contribution is a relevant and determining factor among the Licensee Applicants who apply for the grant of the said License as per the prescribed procedure and with the deposit of the requite fee within the time stipulated for the submission of such 10 of 17 ::: Downloaded on - 22-12-2019 15:40:05 ::: CWP No.10748 of 2019(O&M) #11# applications. The stand of the Respondent No. 5 & 6 that application file for both L-1 and l-13 is a tedious task and involves at least 10-15 days as one has to arrange for a lot of documents like Rent deed, license fee draft and various affidavits and approvals such as from fire department, distilleries, breweries etc. Such a situation is applicable to all the prospective applicants who aspire to apply for the grant of L-1 / L-13 License and the private Respondents have not shown any such submission ever brought to notice of the Official Respondents. Such plea being raised by the private respondents is only as an afterthought.
12. The stand of the Respondents that there is a practice since the inception of Zone System in 2017-2018 and till the allotment year 2019- 2020 that the Department has not granted L-1 / L-13 Licenses to any applicant who was not eligible, in terms of revenue contribution, by ignoring and bypassing the eligible i.e. highest revenue contributor is also not tenable. Firstly, the revenue contribution has already been made by the bidding process towards the L-2 and L-14 retail Licenses and there is no loss as such to the chequer towards the grant of L-1 and L-13 License. Secondly, the application of the revenue contribution factor is neither envisaged nor prescribed in the Excise Policy 2019-2020, to the non- applicants who have not even applied for the L-1 and / or L-13 Licenses as per the prescribed procedure alongwith the prescribed fee within the stipulated time given in the Public Notice inviting applications for the L-1 / L-13 License. The revenue contribution factor for allotment of licences in the District is applicable initially for the inter-se placement for being considered as eligible for allotment. Thereafter, at the time of actual allotment, the inter-se placement of the applicants by the due date is the 11 of 17 ::: Downloaded on - 22-12-2019 15:40:05 ::: CWP No.10748 of 2019(O&M) #12# determinating factor and not the higher revenue contributions of the non applicants, who choose to stay away from consideration for allotment. Thus the revenue contribution factor is only applicable on/among the licence applicants and not on the non applicants. Any other interpretation will lead to the meaning and conclusion not envisaged and provided for in the existing Excise Policy 2019-20 or any other Rule or Notification brought to the notice of the Court.
Further more, it has not been brought to the notice of this Court as to how and in what manner the future revenue collection of the State would get affected by granting the L-1/L-13 Licences to the eligible applicants/licencees pursuant to the public notice as per the norms within the stipulated time, as against the non applicant higher revenue contributors retail licencees, who have chosen not to apply in consonance with terms of such notice. Infact to a pointed query, the learned Additional Advocate General, Haryana was graciously forthright in admitting that the revenue collection from the grant of L-1 and L-13 licences do not get affected at all by award of such licence to either A or B or C i.e. any of the eligible retail licencee.
13. The record in respect of the grant of L-1 License to M/s Garg Wine-Respondent No.5 was produced before the Court in which the file notings depict to the effect that legal opinion was sought from legal Cell regarding the grant of remaining License in form L-1 available in District Ambala as per file notings dated 10 April to 12 April 2019. In response thereto, the Joint Director (Legal) has endorsed the remarks on 12.04.2019 that the issuance of Notice to M/s Shokeen and M/s Garg Wines doesnot seem to be the mandate of Clause 5.1 of the Excise Policy. The action of the 12 of 17 ::: Downloaded on - 22-12-2019 15:40:05 ::: CWP No.10748 of 2019(O&M) #13# respondents authorities was not backed by the legal wing of the respondent department itself.
However, the two unallotted L-1 Licences were illegally granted to respondent Nos.5 & 6 and the two unallotted L-13 Licences were granted to one M/s Vinod Kumar & Company (not impleaded) and respondent no.6.
14. Based on the action so impugned by the petitioner and the controversy existing in the matter, reference is made to the decision of the Hon'ble Supreme Court in "Reliance Energy Ltd. v. Maharashtra State Road Development Corpn. Ltd.", reported as (2007) 8 SCC 1 at page 21, in Para 36 it is summarized as under:
36. We find merit in this civil appeal. Standards applied by courts in judicial review must be justified by constitutional principles which govern the proper exercise of public power in a democracy. Article 14 of the Constitution embodies the principle of "non-discrimination". However, it is not a free-
standing provision. It has to be read in conjunction with rights conferred by other articles like Article 21 of the Constitution. The said Article 21 refers to "right to life". It includes "opportunity". In our view, as held in the latest judgment of the Constitution Bench of nine Judges in I.R. Coelho v. State of T.N. [(2007) 2 SCC 1] , Articles 21/14 are the heart of the chapter on fundamental rights. They cover various aspects of life. "Level playing field" is an important concept while construing Article 19(1)(g) of the Constitution. It is this doctrine which is invoked by rel/hdec n the present case. When Article 19(1)(g) confers fundamental right to carry on business to a company, it is entitled to invoke the said doctrine of "level playing field". We may clarify that this doctrine is, however, subject to public interest. In the world of globalisation, competition is an important factor to be kept in mind. The 13 of 17 ::: Downloaded on - 22-12-2019 15:40:05 ::: CWP No.10748 of 2019(O&M) #14# doctrine of "level playing field" is an important doctrine which is embodied in Article 19(1)(g) of the Constitution. This is because the said doctrine provides space within which equally placed competitors are allowed to bid so as to subserve the larger public interest. "Globalisation", in essence, is liberalisation of trade. Today India has dismantled licence raj. The economic reforms introduced after 1992 have brought in the concept of "globalisation". Decisions or acts which result in unequal and discriminatory treatment, would violate the doctrine of "level playing field" embodied in Article 19(1)(g). Time has come, therefore, to say that Article 14 which refers to the principle of "equality" should not be read as a stand alone item but it should be read in conjunction with Article 21 which embodies several aspects of life. There is one more aspect which needs to be mentioned in the matter of implementation of the aforestated doctrine of "level playing field". According to Lord Goldsmith, commitment to the "rule of law" is the heart of parliamentary democracy. One of the important elements of the "rule of law" is legal certainty. Article 14 applies to government policies and if the policy or act of the Government, even in contractual matters, fails to satisfy the test of "reasonableness", then such an act or decision would be unconstitutional.
The Official respondents have failed to appreciate that the non submission of the application for grant of L-1/L-13 License by the private Respondents by last date i.e. 4.4.2019 approved by ETC is in itself conclusive that they were not interested in the grant of L-1/L-13 License. The action of the DETC (Excise) Ambala-respondent No.4 by putting them to notice and calling upon them to submit applications beyond the last of submission of application after the expiry of the date stipulated in Public Notice (P-4) issued by the ETC/Respondent No. 2 is arbitrary and unreasonable. By the action of the Respondent No. 4 who was not having 14 of 17 ::: Downloaded on - 22-12-2019 15:40:05 ::: CWP No.10748 of 2019(O&M) #15# any power and authority to have issued the Notice dated 04.04.2019 to the private respondents and the conditional recommendation dated 06.04.2019 (P-7), the petitioner has been denied the "level playing field" and denied the opportunity in respect of certain process and procedure to be adopted towards the grant of L-1/L-13 License. The Excise & Taxation Commissioner, Haryana/respondent No.2 has blindly followed the said unjust and arbitrary acts without following the Policy Parameters and application of mind and utterly failed to justify his acts and omissions to act in accordance with law.
15. The meaning and true import of "arbitrariness" is more easily visualized than precisely stated or defined. The test to be applied is to see whether there is any discernible principle emerging from the impugned act, and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an Act and there is no impediment in following that procedure, performance of the Act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every state action must be informed by reason and it follows that an Act uninformed by reason is arbitrary. Rule of Law contemplates governance by laws and not by whims or caprices of the men to whom the governance is entrusted for the time being.
Whenever any action of the authority is in violation of the provisions of the Statute or the action is constitutionally illegal, it cannot claim any sanctity in law, and there is no obligation on the part of the court to sanctify such an illegal Act. Wherever the statutory provision is ignored the Court cannot become a silent spectator to such an illegal Act, and it becomes the solemn duty of the Court to deal with the persons violating the 15 of 17 ::: Downloaded on - 22-12-2019 15:40:05 ::: CWP No.10748 of 2019(O&M) #16# law with heavy hands.
It is a well established legal position based on settled legal proposition "Expressio unius est exclusio alterius" that where a statute requires to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of mode of performance are implidly and necessarily forbidden. In the instant case based on the facts and the documents on record it apparently shows that the ETC-Respondent No.2 and DETC, Ambala-Respondent No.4 have acted in most arbitrary and illegal manner. Under these circumstances, the grant of L-1 Licences in favour of respondent Nos.5 & 6 vide Annexure P-9 and one L-13 Licence in favour of respondent no.6 are held to be illegal and set aside.
The allotment to M/s Vinod Kumar of L-13 Licence being Higher Contributor than respondent no.6 thus has not much relevance to the relief claimed by the Petitioner.
16. Thus in view of our findings, the present Writ Petition deserves to be allowed. Accordingly, present Writ Petition is allowed and impugned order dated Annexure P-9 is set aside and quashed. The Respondent No. 2 is directed to accept the application dated 04.04.2019 submitted by the petitioner for the grant of the L-1 / L-13 License for District Ambala, as per the position of L-1 / L-13 as existing on 04.04.2019, with immediate effect and be allowed to operate from 15.11.2019 onwards till the remaining term. Respondent No.2-ETC may consider the case of respondent No.5/6 as per their eligibility for unallotted licence in the form of L-1/L-13, which would have remained available after closing of the stipulated period as of 4.4.2019 in the public notice Annexure P-4.
17. The Courts being the custodian of law have a solemn duty to 16 of 17 ::: Downloaded on - 22-12-2019 15:40:05 ::: CWP No.10748 of 2019(O&M) #17# upheld the Rule of Law under all circumstances by directing the Authorities concerned to act in accordance with law. If the Rule of Law is not enforced, it will surely become a casualty in the process of a costly consequence to be zealously averted by all, and at any rate, by the Court. The action by DETC, Ambala/Respondent No.4 was taken with/or indirect object/motive to favour respondent Nos.5 & 6 at the cost of legitimate right of the petitioner, while Collector-cum-Additional ETC exercising powers as ETC, Haryana-Respondent No.2 also cannot be further absolved of his over all legal duty to ensure that the final actions are taken in accordance with law and by due application of mind. Hence, respondent Nos.2 & 4 are burdened with cost of Rs.25,000/- each to be paid personally. Copy of this order be forwarded to Chief Secretary, Haryana for appropriate action in accordance with law against the DETC, Ambala-respondent No.4 for subverting the process of law enumerated hereinabove.
Ordered accordingly.
( JASWANT SINGH ) JUDGE ( LALIT BATRA ) JUDGE November 4th, 2019 Vinay Whether speaking/reasoned Yes/No Whether Reportable Yes/No 17 of 17 ::: Downloaded on - 22-12-2019 15:40:05 :::