2017 (8) TMI 590 - HC - Indian Laws

License for Retail Sale - Indian Made Foreign Liquor (IMFL) - the legality or otherwise of the action of the official respondents to cancel the temporary licenses and/or notice dated 14.12.2005 issued by the Excise Commissioner in his capacity as the Licensing Authority - Vend for the purpose of sale of IMFL - competent authority to grant license for opening Vend - how should the Excise Commissioner make selection when there were large number of applications for the limited number of vends? - Held that - there have been numerous interim directions passed in the civil miscellaneous petitions moved by the petitioners from time to time whereby the official respondents have been directed to continue and/or renew the licenses issued in favour of the petitioners and to accept the requisite annual fee in lieu thereof from the petitioners. There is no dispute that by notice dated 25.06.2006 issued by the Excise Commissioner the licenses were essentially operable only for one year i.e. for the year 2005-06 and with respect to 95 locations only identified by the Committee of officers constituted by the respondents in compliance of the directions of the Division Bench. Therefore I think it would be inconsequential to delve into the legality or otherwise of the impugned notices issued to the petitioners. Any discussion on the submissions made at the Bar would have only academic value. Furthermore the temporary licenses in question were issued in favour of the petitioners in terms of the Excise Police promulgated in terms of Government vide Order No. 99-F of 2003 dated 7.4.2003 read with Order No. 156-F of 2003 dated 22.7.2003. More than thirteen years have passed since then. The said policy recognized the need for restrictive and regulative trade in the liquor till the time it was considered appropriate to bring about a total prohibition. Since the matter has been pending in the Court since then and there had been an interim order operating in the matter obviously the Government and the official respondents have not been able to revise the liquor policy during these years. On the other hand the petitioners who were granted temporary licenses for four months which could be regularised to be operable at best for one year have been continuing on such licenses for more than eleven years now on Court orders merely because of pendency of these petitions. The official respondents shall undertake and complete the requisite exercise by the end of the current financial year i.e. 31.03.2017 and issue fresh licenses to the selectees for the year 2017-2018 operative with effect from 01.04.2017. In case the present vendees have not paid the annual fee and other dues for the current or any other previous year he shall deposit the same with the Excise Department before closure of the present financial year. Petition allowed by way of remand.

Summary

Issues Involved:
1. Legality of cancellation of temporary licenses for retail sale of Indian Made Foreign Liquor (IMFL).
2. Request for regularization of temporary licenses.
3. Challenge against Government Order No. 668-STS of 2005.
4. Grievances against the selection process and allocation of licenses.

Detailed Analysis:

1. Legality of Cancellation of Temporary Licenses:
The petitioners challenge the notices dated 14.12.2005 issued by the Excise Commissioner for cancellation of temporary licenses. The notices were based on allegations of irregularities in the draw of lots for selecting licensees, as reported by the State Vigilance Organization. The Vigilance Organization's investigation revealed defects in the computer program used for the draw, which allegedly favored certain applicants. The court observed that the temporary licenses were issued for a limited period and that the matter had been pending for over eleven years due to interim court orders. The court concluded that discussing the legality of the notices would be inconsequential and academic since the licenses were meant to be temporary and operable for only one year.

2. Request for Regularization of Temporary Licenses:
The petitioners sought regularization of their temporary licenses under Rule 30(7) of the J&K Liquor License and Sales Rules, 1984, arguing that the licenses should be renewable and inheritable. The court noted that the temporary licenses were issued under the Excise Policy for the year 2003-04 and were intended to be operable for one year. Given the passage of time and the interim orders allowing the petitioners to continue their business, the court found that the petitioners had been operating on temporary licenses for an extended period. The court directed the State respondents to review the Excise Policy and undertake a de novo exercise to identify locations for retail vends and issue fresh licenses for the year 2017-2018.

3. Challenge against Government Order No. 668-STS of 2005:
In OWP No. 326/2006, the petitioner challenged Government Order No. 668-STS of 2005, which directed the opening of sub-vends at specific locations and raised grievances against the grant of licenses to private respondents for sub-vends. The court did not delve into the specifics of this issue in detail but included it in the overall directive to review the Excise Policy and undertake a fresh exercise for identifying locations and issuing licenses.

4. Grievances against the Selection Process and Allocation of Licenses:
The petitioners in various writ petitions, including OWP Nos. 524/2005, 536/2005, and 802/2005, raised grievances against the selection process and allocation of licenses. They argued that the process was unfair and discriminatory, particularly highlighting the preference given to educated unemployed youth and ex-servicemen. The court acknowledged the petitioners' grievances but emphasized that the matter had been pending for a long time and that the temporary licenses were meant to be operable for one year. The court directed the State respondents to review the Excise Policy and undertake a fresh exercise to address the grievances and issue licenses for the year 2017-2018.

Conclusion:
The court disposed of all the writ petitions and connected CMPs with the directive to the State respondents to review the Excise Policy and undertake a fresh exercise to identify locations for retail vends and issue fresh licenses for the year 2017-2018. The court emphasized the need for the State to complete this exercise by the end of the current financial year, i.e., 31.03.2017, and to ensure that the process is fair and transparent. The court also directed that any pending fees or dues be deposited with the Excise Department, and any amounts deposited with the court be released to the Excise Commissioner. All interim directions were vacated, and no order as to costs was made.