Justice Ali Mohammad Magrey dismissed petition challenging new Excise Policy.
THE HIMALAYAN MAIL, JAMMU APRIL 19:
Justice Magrey while dismissing the petition observed that There cannot be automatic renewal of license as the provisions of the rules do not envisage that situation. Normal validity of a regular license is one year which expires in March 31st 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.
In the instant petition, challenge has been made to the Excise Policy issued by respondent No. 1 vide S.O. 114 dated 31st 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.
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, Srinagar, from 31.01.2001 for the year 2000-2001 and thereafter renewed from time to time and valid for the year 2022-2023.
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 are 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 the Division Bench of this court, subsequently clarified in the decision rendered in bunch of Review petitions on 06.04.2021. 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. 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 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.
During the course of hearing Advocate General DC Raina appearing for the Excise Department s 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 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 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.
Justice Ali Mohammad Magrey after hearing Mohsin Qadri, Sr. Advocate with Mr. Tahseen, Advocate for thepetitioner whereas Advocate General DC Raina assisted by . D. S. Kotwal, Dy. AG and Mr. Sajad Ashraf, GA for the respondents observed that 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 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 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.Trade in liquor cannot be claimed as a matter of right. It is so as 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. JNF