IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.881/2007 Reserved on.25.10.2007 Decided on.12.11.2007 Mohan Singh. …Petitioner. Versus State of H.P. & others.. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioner : Mr. Bimal Gupta, Advocate. For the respondents Mr. M.S. Chandel, Advocate General with Ms. Meenakashi Sharma, Deputy Advocate General for respondents No.1 to 4. Mr. Pankaj Sharma, Advocate for respondent No.5. Rajiv Sharma, J. The brief facts necessary for the adjudication of this petition are that the applications were called for the allotment of retail sale licenced outlets of country liquor (L-14/L and L-14/A) and Indian made foreign liquor (L-2) for the year 2007-08 in the State of H.P. by way of public notice. The last date of receipt of application forms in the office of AETC/ETOI in respect of Kullu district was three days before the allotment/ draw of lot of the respective districts i.e. 12.3.2007. The petitioner submitted application along with respondent No.5 for Unit No. 22 for L-2 and L-14 licence. The allotment of liquor vend of Unit No.22 was conducted by the selection committee and three persons/firms were selected by way of draw of lots on 12th March 2007 as under: 1. Sh. Pradeep Kumar son of Sohan Lal. 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 2. Sh. Mohan Singh for M/s Mohan Kumar and Desh Raj & Company. 3. Sh. Ranjit Singh. The petitioned lodged a complaint with the Deputy Commissioner- cum-Chairman of the Selection Committee i.e. respondent No.3 on 14th March, 2007 stating therein that the allotment of Unit No.22 was made in favour of respondent No.5 on the basis of forged documents tendered by the contractor i.e. power of attorney and application form. The petitioner submitted representation to respondent No.2 on 15th March, 2007 bringing to his notice that signatures on the power of attorney presented before the Selection Committee by respondent No.5 did not match with the original signatures in the application form. Respondent No.2 on 30th March, 2007 kept the approval in favour of respondent No.5 pending till the report of Government Examiner of Questioned Documents was received. Simultaneously the decision was taken by respondent No.2 on the basis of the recommendations of the Committee that M/s Jaswant Rai and Company, who were the licencee for the year 2006-07 be allowed to operate the vend for the period 1st April, 2007 to 30th April, 2007 or earlier on receipt of report of the Government Examiner of Questioned Documents. Respondent No.5 preferred a writ petition against the decision dated 30th March, 2007 before this Court by way of CWP No. 446/2007. During the pendency of CWP No. 446/2007 respondent No.5 made a representation to respondent No.2 on 21.4.2007 stating therein that if the allotment has to be made during the pendency of the receipt of report, the allotment be made to him instead of licencee of previous year i.e. 2006-07. Respondent No.2 vide order dated 21st April, 2007 decided to allow respondent No.5 to run the vend by granting licence in his favour subject to the report of the Government Examiner of Questioned 3 Documents. Consequently the writ petition bearing No.446/2007 was withdrawn on 25.4.2007. The judgment dated 25.4.2007 reads thus: “25.4.2007. Present:Mr. Sandeep Kaushik, counsel for the petitioner. Mr. M.S. Chandel, Advocate, General, with Mr. J.K. Verma, Dy. A.G. for respondent Nos. 1 to 4. Mr. Bimal Gupta, Advocate, for respondent No. 5. During the pendency of this writ petition an order has been passed by respondent No. 2 on 21st April, 2007 allowing Vend No. 22 in favour of the petitioner but keeping it subject to the decision/report of the Government Examiner, Questioned Documents. Because of this intervening development Mr. Kaushik seeks leave of this court to withdraw this petition with liberty to the petitioner to approach this court again if the decision ultimately goes against the petitioner. Prayer allowed. The petition is dismissed as withdrawn.” Respondent No.2 on 28th April, 2007 informed respondent No.5 that since the case has been settled in the High Court, therefore, no action was proposed to be taken on the report of the Government Examiner of Questioned Documents and the matter stood closed. The text of the letter dated 28th April, 2007 reads thus: “It is to inform you that since the case has been settled in the Hon’ble High Court. Therefore, no action is proposed to be taken on the report of Examiner of Questioned Document. The matter stands closed.” The Government Examiner of Questioned Documents sent the report to respondent No.2 dated 15th May, 2007. The Assistant Government Examiner gave a categorical report that the differences in signatures were of fundamental in nature and were beyond the range of natural variations and intended disguise and when considered collectively lead to the opinion of being different authorship. It appears that after the 4 receipt of the report, the petitioner has also made a representation to respondent No.2 to take action on the report. In sequel to the report dated 15th May, 2007, notice was issued to respondent No.5 by respondent No.2 on 6th July, 2007 to explain his position as to why action in accordance with law be not taken against him. The reply was to be furnished by respondent No.5 within three days from the date of receipt of notice. Respondent No.5 filed a detailed reply on 9th July, 2007. Respondent No.2 did not take any action after the receipt of the reply and had chosen to seek opinion of the Law Department vide communication dated 19th July, 2007. The Court had directed the respondents to produce the record, which was produced by respondents No.1 to 3 in piecemeal on different dates. The Law Department had given the opinion that the opinion of the expert was not final and thereafter it appears that no action was taken by respondent No.2 against respondent No.5. The opinion rendered by the Law Department as reproduced in communication dated 25th August, 2007 produced at the time of hearing of the case by the learned Advocate General, reads thus: “since no loss to the State Revenue has been caused by the licensee and in his reply the licensee has admitted that “all signatures are mine and mine alone,” therefore, there seems to be no logic for cancellation of license for liquor vends of Unit No.22 issued in favour of the licensee. Moreover, as per the law of Evidence the science of handwriting is not an exact science unlike the science of finger prints & Even Experts tend to commit errors in giving their opinions on the genuineness of the signatures and hand writing. Thus keeping in view the legal position and reply of the licensee, the license issued in his favour is not required to be cancelled particularly when he himself is admitting his signatures.” Mr. Bimal Gupta, Advocate had strenuously argued that there was difference in the signatures of respondent No.5, which he has appended 5 on the application form and signatures on the power of attorney appended as an executant. He further submitted that once respondent No.2 had chosen to get the report from the Government Examiner of Questioned Documents vide communication dated 30th March, 2007 and the report was received on 15th May, 2007, the same was required to be acted upon, meaning thereby the allotment made in favour of respondent No.5 was to be revoked. Mr. Gupta further argued that the authorities have passed contrary orders from time to time for the extraneous reasons resulting in undue favour extended to respondent No.5. He finally argued that the allotment made in favour of respondent No.5 vide letter dated 21.4.2007 was to be revoked and petitioner being at Sr. No.2 in the panel was to be allotted licence for L-2 and L-14 of Unit No. 22 in District Kullu. The learned Advocate General had supported the orders passed by respondents No.1 to 4 from time to time. Mr. Pankaj Sharma, Advocate for respondent No.5 had also supported the orders passed by the authorities and had taken additional ground that the report of the Government Examiner of Questioned Documents was not final and conclusive and the same has rightly not been taken into consideration by respondent No.2. I have heard the learned counsel for the parties and perused the record. Before the rival submissions of the learned Advocates are taken into consideration, it will apt to take note of the certain features of the notice whereby the applications for allotment of retail sale licenced outlets of country liquor, Indian made foreign liquor and retail sale of country fermented liquor for general public were called for the year 2007-08. Items No. 1 to 6 and 13 being relevant read thus: 1. “The applications are required to be furnished separately for each retail licensed outlets of Country Liquor and Indian 6 Made Foreign Liquor and retail sale of country fermented liquor. The application form as well as list of vends with details is available free of cost with all the Asstt. Excise and Taxation Commissioner’s/Excise and Taxation Officer Incharge of the districts and Zonal Incharges at Shimla, Mandi, Palampur as well as in the office of the Excise and Taxation Commissioner, Himachal Pradesh. 2. An applicant can apply for any number of vends/units but an applicant is eligible to get a maximum of 3 vends/units in urban and rural areas respectively but on separate application for each vend/unit. 3. The list of eligible applicants shall be displayed on a notice board in the office of txhe Assistant Excise and Taxation Commissioner/Excise and Taxation Officer Incharge of the district one day before the day of draw of lot. 4. The Basic License free, annul license free, quota, location for each retail licensed outlet vend/unit of Country Liquor and Indian Made Foreign Liquor has been fixed separately and is mentioned in the list of vends. 5. The allotment shall be made on an application and in case of more than one application for a particular vend/unit, the allotment shall be by draw of lot. The draw of lot in such eventuality shall be conducted by a Committee consisting of Deputy Commissioner of the District, a representative of the Excise and Taxation Commissioner, Deputy Excise and Taxation Commissioner of the respective Zone and Asstt. Excise and Taxation Commissioner/Excise and Taxation Officer Incharge of the District in the presence of the applicants who wish to be present on the date of draw. 6. After the allotment/draw of lot, the list of successful allottees shall be displayed on the notice board in the Office of the Assistant Excise and Taxation Commissioner/Excise and Taxation Officer of the respective district. 13. Verification of particulars would be made in respect of the successful allottees before the license is actually granted.” 7 It will also be pertinent to take note of the Announcements made by the Department of Excise and Taxation for the financial year 2007-08 whereby as per para 2 of Chapter-II, ‘Allotment of Vends on Application and Grant of Licences’, the lincecee were to be granted by inviting applications for each vend/predetermined combination of vends termed as unit. The applications were required to be submitted in accordance with the procedure prescribed. It is evident from the Announcements that the applications were to be submitted to the Assistant Excise and Taxation Commissioner/Excise and Taxation Officer Incharge of the district concerned who was required to prepare a list of all the applications received by him and prepare a summary of all eligible applicants for placing the same before the Selection Committee. The Selection Committee at the district –level consisted of Deputy Commissioner of the district concerned, Collector of the zone concerned, Assistant Excise and Taxation Commissioner/Excise and Taxation Officer Incharge of the concerned district and any other gazetted officer of the Department nominated by the Excise and Taxation Commissioner. The petitioner as well as respondent No.5 had submitted applications in the prescribed proforma. The Selection Committee after screening the applications had prepared the following panel: 1. Sh. Pradeep Kumar son of Sohan Lal. 2. Sh. Mohan Singh for M/s Mohan Kumar Desh Raj & Company. 3. Sh. Ranjit Singh. The allotment was made in favour of respondent No.5, which was objected to by the petitioner on 14th March, 2007 as well as on 15th March, 2007. The gist of the complaint was that the signatures in the application form appended by respondent No.5 did not match with the signatures appended by him in the power of attorney executed by him in favour of Sh. 8 Sandeep Chawla. Respondent No.2 on the basis of the objections lodged by the petitioner on 30th March, 2007 had decided to refer the signatures to the Government Examiner of Questioned Documents, but simultaneously an illegal decision was taken by him to permit the licencee of the previous year i.e. 2006-07 M/s Jaswant Rai and Company to run the vend for the period 1st April, 2007 to 30th April, 2007. This decision by respondent No.2 was wholly against the provisions of law. No such provision has been shown by the learned Advocate General on the basis of which a special favour was made in favour of the existing licencee i.e. M/s Jaswant Rai and Company by permitting them to run the vend for complete one month i.e. 1st April, 2007 to 30th April, 2007. This is the first illegality which has been committed by respondent No.2. This order was assailed before this Court by respondent No.5 by way of CWP No. 446/2007. Astonishingly though this Court was seized of the matter in CWP No. 446/2007, yet respondent No.2 passed an order on 21.4.2007 deciding to allot the vend in favour of respondent No.5 subject to the receipt of the report of the Government Examiner of Questioned Documents. Once this Court was seized of the matter, it was imperative for respondent No.2 to wait for the out come of writ petition bearing CWP No. 446/2007 instead of pre-empting this Court from passing any final order. This is the second illegality/impropriety committed by respondent No.2 while dealing with this case. CWP No. 446/2007 was withdrawn by respondent No.5 on 25th April, 2007. The text of the judgment dated 25.4.2007 has already been reproduced above. It is evident from the reading of the entire judgment that the writ petition was withdrawn by respondent No.5 on the basis of order dated 21.4.2007 passed by respondent No.2, meaning thereby that there was no adjudication on merits by this Court. Respondent No.2 strangely enough has informed 9 respondent No.5 on 28th April, 2007 that since the case has been settled by this Court, no action was proposed to be taken on the report of the Government Examiner of Questioned Documents and the matter stand closed. The text of letter dated 28th April, 2007 has been already extracted above. There are two things which need deeper scrutiny by this Court. Firstly, the matter was never settled by this Court, to the contrary CWP No. 446/2007 was withdrawn. Secondly, once respondent No.2 himself has sought for the report from the Government Examiner of Questioned Documents how without waiting for the same, he could declare the matter to be closed. This is the third illegality which he had committed contrary to the record. The Government Examiner of Questioned Documents had submitted his opinion/report to respondent No.2 on 15th May, 2007. The Assistant Government Examiner had opined that the persons, who wrote these signatures in the red enclosed portions stamped and marked B-1 to B-5 did not write the signatures in the red enclosed portions similarly stamped and marked A-1 to A-3, C-1 and Q-1, meaning thereby the signatures on both the documents were not appended by the same person. It will be apt to reproduce the reasons for opinion given by Assistant Government Examiner, which reads thus: “My opinion that “The person who wrote these signatures in the red enclosed portions stamped and marked B-1 to B-5 did not write the signatures in the red enclosed portions similarly stamped and marked A-1 to A-3, C-1 and Q-1”, is based upon the following considerations:- Inter-se comparison of the signatures in the red enclosed portions marked B1 to B5 show characteristic similarities in writing habits as such they form suitable & sufficient standards for comparison. The questioned signatures marked Q1, A1 to A3 and C1 when compared with 10 the standard signatures similarly stamped and marked B1 to B5; show difference in general writing habits, such as: movement, skill, speed, slant, spacing, alignment, relative size, proportion of strokes and their combinations. The questioned signatures marked Q1 appear to be slow and drawn in execution with carefully executed strokes. The questioned signatures show characteristics differences in individual writing habits with the standard signatures similarly stamped and marked B1 to B5; some of such differences observed in the execution of various letters & their combination and manner of execution of the character representing letter ‘K’ in the word ‘Kumar’ with nature and location of its start, nature and extent of its staff, nature of the angularity formed at the base of its staff, manner of formation of its buckle in continuation to its staff, nature and location of its buckle together with the manner of joining it with the succeeding character representing ‘u’ with an extended stroke; manner of execution of letter ‘u’, nature of curvature of its body part, nature and extent of its initial downward stoke vis-à-vis its final upward stroke together with manner of joining it with the succeeding character representing ‘m’, completely different manner of execution of letter representing ‘m’ with nature of its shoulders as observed in standard signatures whereas it is executed with garlanded movement in questioned signatures as well as extent and direction if its finish; manner of formation of final character ‘r’ with nature and location of its start, nature of the angularity formed in its lower part together the extent and direction of finish as observed in standard signatures is nowhere similarly observed in the questioned signatures, the aforesaid character ‘r’ is executed in completely different manner in questioned signatures marked A1 to A3 and C!; manner of execution of letter representing ‘p’ in a separate operation in the standard signatures whereas is executed in continuation to the letter representing ‘u’ (in the word ‘Kumar’) as observed in the questioned signatures A1 to A3 and C1 as well as its execution is found also to be different in the questioned signature Q1. 11 The above mentioned differences are fundamental in nature and are beyond the range of natural variations and intended disguise and when considered collectively lead me to the aforesaid opinion of different authorship.” The respondent No.2 though had decided on 28th April, 2007 to treat the matter closed by stating that no action was proposed to be taken on the report of the Government Examiner of Questioned Documents but still sent a notice to respondent No.5 on 6th July, 2007. Respondent No.2 has called reply from respondent No.5 within three days to explain his position and as to why action in accordance with law be not taken against him. Respondent No.5 had submitted the reply on 9th July, 2007. It was the occasion for respondent No.2 to take action against respondent No.5 in accordance with law, more particularly, when he was armed with the report of the Government Examiner of Questioned Documents. Respondents No.2 for the reasons best known to him did not take any action against respondent No.5 and decided to send the matter for the opinion of the Law Department. The Law Department had given the opinion that the opinion of the expert was not conclusive. Respondent No.2 then sought the opinion of the learned Advocate General in writing, but according to the stand taken by him before this Court, learned Advocate General informed his office that he endorses the opinion of Law Department. The learned Advocate General had submitted that it was not incumbent upon respondent No.2 to accept the report of the Government Examiner of Questioned Documents dated 15th Mary, 2007 and respondent No.2 was within his legal right to seek the opinion of the Law Department. This Court had itself compared the signatures after perusing the record marked as A-1, A-2, A-3 vis-à-vis C-1. There is no similarity between the signatures appended to the application form and the power of 12 attorney executed by the respondent No.5. The Court is fortified in taking this view on the basis of the report of the handwriting expert, dated 15th May, 2007 as well. The Hon’ble Supreme Court has dealt with the evidentiary value given to the opinion of handwriting expert in Fakhruddin v. The State of Madhya Pradesh, AIR 1967 SC 1326. Their Lordships have held as under: “Evidence of the identity of handwriting receives treatment in three sections of the Indian Evidence Act. They are Sections 45, 47 and 73. Handwriting may be proved on admission of the writer, by the evidence of some witness in whose presence he wrote. This is direct evidence and if it is available the evidence of any other kind rendered unnecessary. The Evidence Act also makes relevant the opinion of a handwriting expert (S. 45) or of one who is familiar with the writing of a person who is said to have written a particular writing. Thus besides direct evidence which is of course the best method of proof, the law makes relevant two other modes. A Writing may be proved to be in the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an expert competent to the comparison of handwritings on a scientific basis. A third method (S. 73) is comparison by the Court with a writing made in the presence of the Court or admitted or proved to be the writing of the person. Both under S. 45 and S. 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become an handwriting expert but to verify the premises of the expert in 13 the one case and to appraise the value of the opinion in the other case. This comparison depends on an analysis of the characteristics in the admitted or proved writings and the finding of the same characteristics in large measure in the disputed writing. In this way the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert's opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely he held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that Court may accept that fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness.” Their Lordships of the Hon’ble Supreme Court have held in Murarilal v. State of M.P., AIR 1980 SC 531 that there is no rule of law, nor any rule of prudence which has crystalised into rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. Their Lordships of the Hon’ble Supreme Court have held as under:- “Expert testimony is made relevant by S. 45 of the Evidence Act and where the Court has to form an opinion upon a point