C.W.P. No.5288 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.4062 of 2008 Date of Decision : 03.07.2009 Mewa Singh and others ...Petitioners Versus State of Punjab and others ...Respondents Present: Mr. Mansur Ali, Advocate, for the petitioners. Mr. Amol Rattan Singh, Addl. AG, Punjab. C.W.P. No.4981 of 2008 Harmohinder Singh, MLA and others ...Petitioners Versus State of Punjab and others ...Respondents Present: Mr. Mohan Jain, Sr. Advocate, with M/s Dinesh Thakur and Vikram Jain, Advocates, for the petitioners. Mr. Amol Rattan Singh, Addl. AG, Punjab. C.W.P. No.5288 of 2008 Kanwaljit Singh and others ...Petitioners Versus State of Punjab and others ...Respondents Present: Mr. Mohan Jain, Sr. Advocate, with M/s Dinesh Thakur and Vikram Jain, Advocates, for the petitioners. Mr. Amol Rattan Singh, Addl. AG, Punjab, for respondent Nos.1 to 4. Mr. Anadeshwar Gautam, Advocate, for respondent Nos.5 to 23. Mr. Pavit Mattewal, Advocate. C.W.P. No.5288 of 2008 2 CORAM:HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE HEMANT GUPTA HEMANT GUPTA, J. This order shall dispose of CWP Nos.4062, 4981 & 5288 of 2008, challenging allotment of liquor vends in the District of Ludhiana-I for the year 2008-09. CWP No.4981 of 2008 is filed in public interest, whereas, CWP Nos.4062 of 2008 & 5288 of 2008 are filed by the aggrieved contenders for the allotment of liquor vends. However, for facility of reference, the facts are taken from CWP No.5288 of 2009. Challenge in the said writ petition is to the allotment of liquor vends in favour of respondent Nos.5 to 23, being illegal and violative of the Excise Policy for the year 2008-09, Punjab Excise Act, 1914 (hereinafter called as 'the Act') and Punjab Liquor Licence Rules, 1956 (hereinafter called as 'the Rules'). It is averred that as per the Excise Police for the year 2008-09, the applicants willing to take liquor vends on licence were required to submit applications alongwith Demand Draft equivalent to 5% of the Annual Licence Fee of such vend. The petitioners alleged to have submitted their applications for grant of licence in Ludhiana-1, having Code No.30UC-41/205 alongwith requisite 5% of Annual Licence Fee. It is explained that in Ludhiana-1, there were 205 liquor vends and the said liquor vends are divided into 41 licensing units. Thus, each prospective applicants were to attach 5% Annual Licence Fee of the five vends with the application. It is alleged that the applications submitted by Chadha Group-private respondents, were entertained though these were without C.W.P. No.5288 of 2008 3 the requisite demand draft. In Rule 36(6) of the Rules, there is no provision for submitting applications alongwith 5% Annual Licence Fee through cheque. It is further averred that if 30 applications were submitted by Chadha Group, 29 applications were with cheques, whereas only one application was with demand draft. The demand drafts were attached soon after the applicant was declared successful. In written statement filed on behalf of respondent Nos.5 to 23 by one Manjit Singh-respondent No.16, the allegations of the petitioners were controverted and it was asserted that the respondents have filed the applications alongwith Banker's Cheque/Demand Drafts. It was explained that the Banker's Cheque is a pre-paid non-negotiable instrument 'on demand payable to A.E.T.C.' issued by the authorized signatories of the bank. It was, thus, alleged that the private banks have used different terminology, but the instrument does not change the true nature of the same. Alongwith the reply, a certificate issued by HDFC Bank has been annexed as Annexure R-2, showing that all the Banker's Cheques attached with the applications were made on or before 10.3.2008 i.e. last date of filing of the application forms. Learned counsel for the petitioners has argued that though the 5% of the Annual Licence Fee can be said to have deposited through such Banker's Cheque, but since all these demand drafts/Banker's cheques have been issued from one account in the name of M/s K. Sons and Associates, A-129, New Friends Colony, New Delhi, standing with HDFC Bank, New Delhi, therefore, the submission of applications in such manner violates the Excise Policy, the Act and the Rules. Such C.W.P. No.5288 of 2008 4 policy amounts to monopolization of vends in favour of one person/group on the strength of money power alone. On 11.9.2008, this Court directed respondent Nos.5 to 23 to furnish the particulars of the Bank and the account numbers out of which the bank drafts needed for filing of the applications were got prepared by each one of the respondents in connection with 41 licensing units in Ludhiana, in view of the argument raised by learned counsel for the petitioners. The said respondents were also directed to explain whether any drafts were prepared by debit to the account of M/s K. Sons and Associates, and if so, whether the said respondents have any business or other relationship with the said concern. In pursuance of the said directions, additional affidavit dated 24.9.2008 has been filed. The said affidavit encloses a certificate issued by the HDFC Bank (Annexure R-5). It shows that total 16529 drafts were issued from the account of M/s K. Sons and Associates in the sum of Rs.315,79,00,000/-. Based upon the abovesaid facts, learned counsel for the petitioners has vehemently argued that respondent Nos.5 to 23 are part of one Group called Chadha Group. Said Group has filed numerous applications for 41 units in the names of their friends, relatives and employees etc. but the 5% Annual Licence Fee, condition precedent for a valid application has come from one common source i.e. account of M/s K. Sons and Associates. The flow of funds and the manner of submission of applications show that monopoly is sought to be created by the said Chadha Group by circumventing the eligibility conditions. It is contended that Chadha Group played fraud with the entire process of C.W.P. No.5288 of 2008 5 allotment. The said authorities were bound to scrutinize the applications having received on such large number of applications accompanied by Banker's cheque or demand draft from the same account. Such applications in large number were submitted to increase its chances of success on the basis of money power. Such conduct is not envisaged in the Act and is found on the entire process of allotment of liquor vends. An additional affidavit has been filed by the petitioners on 14.5.2009 pointing out that applications were filed by Chadha Group for licensing units submitting earnest money of Rs.117.50 crores. As against the said applications, the petitioners have submitted 12 applications and submitted earnest money of Rs.2.22 crores. Therefore, it is alleged that the provisions of the Act and the Rules have been violated as monopoly is created by violating the provisions of the Act. A supplementary affidavit has been filed by Excise and Taxation Commissioner, Punjab, dated 19/20.5.2009, to the effect that the Department officials deputed for scrutiny of the applications were only to see whether the applications were accompanied by the draft or any other Banking instrument equivalent to the earnest money of that Unit. There was no method available with the departmental officials to know as to how many drafts have been prepared from a single particular bank account. It is stated that the State has no intention of creating monopoly in any individual or group of individuals. The State had no methodology to prevent an action, if some individuals align themselves together but put individual applications separately. The State Policy on liquor is primarily revenue oriented, therefore, it is not possible to prevent any C.W.P. No.5288 of 2008 6 person from applying for liquor licence as per his financial capacity. It has also been pointed out that the Policy of allowing only one person to apply for a single unit/group has been discontinued and any individual can submit any number of applications as per Excise Policy for the subsequent years. We have heard learned counsel for the parties at length. The challenge in the writ petition is to the allotment of liquor vends for the year 2008-09. Such year has come to end on 31.3.2009. Therefore, after the expiry of the period of licence, no effective relief can be granted to the petitioners in the present case. But, we find that the State Government is required take steps to prevent the competing parties to device ways and means to frustrate the stated object of the State that the monopoly is not intended to the created. Cartilisation and submission of large number of applications by the same Group in different names, cannot be said to be bona-fide action of an individual or a group of individuals, but is an attempt to circumvent the provisions of the Act and the Rules, so as to increase its chances of success on the basis of money power alone. However, keeping in view the fact that the period for which licence has come to end, we find that no effective relief can be granted to the petitioners in the present writ petition. Mr. Amol Rattan Singh, has produced notification dated 26.2.2009, amending sub Rule 2 of Rule 35 permitting a single person to file any number of applications for a particular unit or Group of licencing unit. The said Policy for the year 2009-10 is not the subject matter of challenge in the present writ petition. But prima facie without examining C.W.P. No.5288 of 2008 7 the legality of the said Policy in detail, we are of the opinion that even the said amended clause may not help the State Government to achieve the desired objection of not intending to create monopoly in favour of a individual or group of individuals. The only difference being that in earlier year, the names of different individuals were used, but in the year 2009-10, one individual can submit as many applications as he likes. Therefore, submission of large number of applications by one person would infact lead to monopolization of the trade. In view of the above, we do not find any ground to interfere in the allotment of liquor vends for the year 2008-09. However, the State Government shall be well advised to take suitable steps to achieve its declare objectives of not to create monopoly in allotment of liquor vends in the subsequent years. With the said observation, the writ petition stands dismissed. (T.S.THAKUR) (HEMANT GUPTA) CHIEF JUSTICE JUDGE 03.07.2009 Vimal