C.W.P. No. 5701 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH C.W.P. No. 5701 of 2008 Date of decision:04.04.2008 Bhupinder Singh ..... Petitioner Versus State of Haryana and others ..... Respondents CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present:- Mr. Mohan Jain, Senior Advocate with Mr. Vikram Jain, Advocate for the petitioner. RAKESH KUMAR GARG, J. The petitioner, who alleges to be a L-13 Licensee in terms of Excise Policy for the year 2007-08 upto 31.03.2008, has filed this writ petition seeking the issuance of a writ in the nature of certiorari for quashing of a public notice dated 30.03.2008 ( Annexure P-9 ), issued by Excise and Taxation Commissioner, Government of Haryana, Chandigarh, vide which applications have been invited for the allotment of operation of whole sale Licence of country liquor ( L-13 ) C.W.P. No. 5701 of 2008 2 from the general public for the year 2008-09 in various districts of the State, on the ground that the said notice is contrary to the Excise Policy announced for the year 2008-09 read with the provisions of Punjab Excise Act, 1914 ( as applicable to Haryana ) and Haryana Liquor Licence Rules, 1970. The petitioner has further sought a direction to the respondent- authorities to allow him to run L-13 Liquor Vends for the year 2008-09 in terms of the Excise Policy in Ambala District and also for the direction to the respondents not to conduct fresh allotment of L-13 wholesale Licenses of country liquor by way of public notice ( Annexure P-9 ). As per the averments made in the writ petition, the petitioner is an accredited L-13 Licensee in terms of the Excise Policy for the year 2007-08, i.e. up to 31.03.2008. It is the case of the petitioner that the Excise Policy for the year 2008- 09 has been announced, vide Annexure P-1 and the petitioner is entitled to continue for the current year i.e. 2008-09. It has also been averred in the writ petition that the petitioner has already deposited the requisite fee for renewal of the licence, security deposit and licence fee up to 15.04.2008, vide Annexures P-2, P-3 and P-3A respectively. Apart from the deposit of the licence fee, security deposit, the petitioner has also submitted NOCs from the Municipal Council ( Annexure P-4 ), District Health Officer ( Annexure P-5 ), Fire Officer C.W.P. No. 5701 of 2008 3 ( Annexure P-6 ), map showing the location of godown ( Annexure P-7 ) and affidavit in prescribed performa ( Annexure P-8 ). As per the case of the petitioner, all these documents have been accepted by the department and he is running L-13 Vend even after 31..03.2008 and the department has accepted the Licence fee from 01.04.2008 to 15.04.2008 as per Annexure -P3A. It has been further averred in the writ petition that after accepting the application for renewal with necessary documents, the respondents authorities have published notice dated 30.03.2008, inviting applications from general public for the allotment of whole sale Licence of country liquor ( L-13 ) for the year 2008-09 in the various districts of the State of Haryana in contravention of the policy ( Annexure P-1 ). Shri Mohan Jain, Senior Advocate assisted by Mr. Vikram Jain, Advocate has argued that the petitioner has applied for allotment of L-13 Vend in consonance with Excise Policy for the year 2008-09 and he is entitled to the allotment of the same as the Excise Policy has already been approved by the Government and he has deposited the Licence fee etc., which has been accepted and therefore, he is entitled to the renewal of the said Licence for the current year and the allotment of L-13 Licence in the State of Haryana through draw of lots is an afterthought by the Licensing Authority, which is C.W.P. No. 5701 of 2008 4 not in line with the Excise Policy and therefore public notice (Annexure P-9) is liable to be quashed. At this stage, it is relevant to mention here that another writ petition i.e. CWP No. 5718 of 2008 titled as Avtar Singh vs. State of Haryana and others also came up for hearing before this Court, challenging the public notice dated 30.03.2008 ( Annexure P9 ), issued by the State of Haryana inviting applications from general public for allotment of L-13 Vend in the State of Haryana. In the said writ petition, the petitioner Avtar Singh is also claiming the allotment of L-13 Licence in his favour on the ground that as per the Excise Policy for the year 2008-09 of the State of Haryana, he is entitled to be allotted L-13 as authorized person of distillery namely M/s Haryana Organics having works at Samalkha, District Panipat (Haryana), who has authorized him for the Gurgaon District. In that writ petition, the petitioner has placed on record memo bearing No. 2110/X.1, Chandigarh dated 14.3.2008, issued by the Excise & Taxation Commissioner, Haryana, Chandigarh, inviting applications for the allotment of whole sale Licenses of country liquor from all the distilleries in the State for the supply of doubled distilled, spiced, pot, country liquor, of 50 degrees proof strength. The said memo is reproduced as under:- C.W.P. No. 5701 of 2008 5 “ From Excise & Taxation Commissioner, Haryana, Chandigarh. To 1- All the deputy Excise & Taxation Commissioners ( Excise ). 2- All Distilleries situated in the State of Haryana. Memo No. 2110/X-1, Chandigarh, dated the 13.03.2008. Sub: Regarding allotment of Whole Sale Licence of Country liquor ( L-13 ) to the distilleries located in the State, for the year 2008-09. Memo, On the captioned subject, the applications are invited for grant of whole sale licence of Country Liquor in the form of L-13 from all distilleries located in the State. The licence shall be granted on payment of licence fee of Rs.1.25 lac and security of Rs.1,00,000/- only. The payment shall be made in favour of Dy. Excise and Taxation Commissioner ( Excise ) of the concerned district. All distilleries located in the State shall be granted licenses for wholesale outlets of country liquor ( L-13 ) under the Punjab Excise Act, 1914 as applicable to the State, Haryana Liquor Licence Rules C.W.P. No. 5701 of 2008 6 1970 and all other provisions as may be applicable, for the supply of doubled distilled, spiced, pot, country liquor, of 50 degrees proof strength. The L-13 licence shall be granted to the distilleries to be operated by persons to be approved by the Government. Each distillery shall be required to open one wholesale outlet of country liquor ( L-13 ) in every district headquarters of the State to maintain regular and ready supply of country liquor to the retail liquor outlets of country liquor ( L-14A). The supplies to the retail outlets of country liquor ( L-14A) shall be made from the wholesale outlets of country liquor ( L-13 ) located in the district on permits/passes issued by the respective Deputy Excise & Taxation Commissioners ( Excise ) of the district. The wholesale outlets of country liquor ( L-13 ) shall obtain permits/passes issued by the respective Deputy Excise and Taxation Commissioners ( Excise ) of the district for procurement of country liquor from the distillery. C.W.P. No. 5701 of 2008 7 The approved distillery shall, in addition to maintaining the required records and furnishing of statements given in the rules ibid., be required to comply with any other directions (s) / instructions that may be considered expedient by the Department. 75% of the quota shall be distributed amount all the distilleries operating from Haryana in equal measure. However, the remaining 25% quota shall be open and shall be supplied as per the market demand. The distilleries of country liquor shall be required to affix such hologram as approved by the Department of Excise and Taxation in the manner prescribed. The distilleries shall be required to provide at least 30% of the fixed quota allocated individually on account of proportional distribution of the 75% quota of C.L. into new glass bottles. The applicant shall furnish proof of ownership, lease, rental of the premises at which the wholesale outlet of CL ( L-13 ) is proposed to be opened. The applicant shall furnish no objection certificates from the municipal committee, chief medical officer, fire officer of the respective district. C.W.P. No. 5701 of 2008 8 The applications must reach the office of LDETC (x) of the concerned district by 20th March, 2008. The application shall be examined by the DETC (x) and shall be forwarded to the office of Excise and Taxation Commissioner so as to reach the head office by 24th March, 2008 positively. A permit fee should be levied in accordance with the provision of the policy. Superintendent ( Excise ) for Excise & Taxation Commissioner, Haryana, Chandgiarh” The attention of Shri Mohan Jain, Senior Advocate was drawn to this memo, issued by the State of Haryana and a question was asked by the Court about the non- placing on record the said memo on the record of the instant writ petition filed by petitioner Bhupinder Singh. Mr. Mohan Jain, Senior Advocate pleaded ignorance about the issuance of said memo. At this stage, his attention was also drawn by this Court to the effect that in both the writ petitions, the petitioners are claiming to be the authorized person of same distilleries i.e. M/s Haryana Organics having works at Samalkha, District Panipat (Haryana) and both the petitioners are claiming the allotment of L-13 Liquor Vend in the District of Ambala and C.W.P. No. 5701 of 2008 9 Gurgaon respectively on behalf of the said distillery. However, learned senior counsel had no answer to this query of the Court and stated that the instant writ petition may be decided as per the averments made in the writ petition and he has not to argue anything more. We have perused the documents placed on record of the case and have also gone through the averments made in the writ petitions. The petitioner is claiming that as per the Excise Policy for the year 2007-08, L-13 Licence in every District had been allotted through the distillery situated within the State and in terms of the said policy for the year 2007-08, L-13 Licence for District Ambala was issued to M/s Haryana Organics having works at Samalkha, District Panipat (Haryana) and as per the Excise Policy in the State for the year 2008-09, the petitioner on authorization of the said distillery, has already applied for L-13 licence and he is entitled to the renewal of the said licence and in fact he vide Annexure P3A, fee for the period w.e.f. 1.4.2008 to 15.4.2008 has already been accepted by the department, meaning thereby the licence already granted in favour of the petitioner and the same cannot be cancelled without following the procedure prescribed under Section 36 of the Punjab Excise Act, 1914 ( as applicable to the Haryana State ). C.W.P. No. 5701 of 2008 10 It is useful to reproduce the Excise Policy, issued by the State of Haryana for the year 2008-09 for issuance of L- 13 licenses:- “4.13 L-13 Licence, whole sale of country liquor: All distilleries located in the State may apply for the supply of doubled distilled, spiced, pot, country liquor, of 50 degrees proof strength, in bottled form, as per the conditions prescribed. DISTRIBUTION OF C.L. QUOTA: 75% of the free quota shall be distributed amont all the distilleries operating from Haryana in equal measure. However, the next 25% quota of the free quota shall be open and shall be supplied as per the market demand. INTRODUCTION OF HOLOGRAM ON C.L. BOTTLES: In order to promote safety and guard against spurious and adulterated liquor, the manufacturers of country liquor are required to affix such hologram as approved by the Department of Excise and Taxation in the manner prescribed. C.W.P. No. 5701 of 2008 11 GLASS BOTTLES: To ensure glass bottles for country liquor as an institution measure, the distilleries are required to provide at least 30% of the fixed quota allocated individually on account of proportional distribution of the 75% quota of C.L. into new glass bottles i.e. 30% of 75% = 22.5% of the total quota is to be supplied in new glass bottles. This 22.5% shall be equally spread over all the distilleries, who shall be allotted quota equally and all of them shall comply with the provision. L-13 LICENSES: The distilleries shall be granted licenses for wholesale outlets of country liquor ( L-13 ) under the Haryana Liquor Licence Rules, 1970 as per the following conditions:- a- The L-13 Licence shall be granted to the distilleries to be operated by persons to be approved by the Government. b- The distilleries shall be required to open wholesale outlets of country liquor ( L-13 ) in every district headquarters of the State to maintain regular and ready supply of country liquor to the retail liquor outlets of country liquor ( L-14A ). C.W.P. No. 5701 of 2008 12 c- The supplies to the retail outlets of country liquor ( L- 14A ) shall be made from the wholesale outlets of country liquor ( L-13 ) located in the district on permits/passes issued by the respective Deputy Excise & Taxation Commissioners ( Excise ) of the districts. d- The stock of country liquor at the stage of L-13 shall be duty paid. e- The wholesale outlets of country liquor ( L-13 ) shall maintain a ready stock equal to the five percent of the fixed annual quota of the respective district. f- The wholesale outlets of country liquor ( L-13 ) shall obtain permits/passes issued by the respective Deputy Excise & Taxation Commissioners ( Excise ) of the districts. g- The annual licence fee for the wholesale outlets of country liquor ( L-13 ) shall be Rs.1.25 lac per outlet per district to be paid in cash or by bank draft in the name of Dy. Excise and Taxation Commissioner ( Excise ) of the district. h- The approved distilleries shall be required to deposit a security amount of Rs.1,00,000/- per L-13 outlet per district in the form of bank draft in the name of Dy. Excise and Taxation Commissioner, (Excise) of the respective district, C.W.P. No. 5701 of 2008 13 for the performance of contract of supply of double distilled, spiced, pot country liquor, of 50 degrees proof strength, in bottled form. i- The approved distilleries shall be bound to abide by the rules and provisions laid down in the Punjab Excise Act, 1914 and rules framed thereunder. j- The approved distillery shall, in addition to maintaining the required records and furnishing of statements given in the rules ibid. shall in addition be required to e-mail via the internet to the Excise and Taxation Commissioner, Haryana at haryanatax.com, daily figure showing the production and dispatch of country liquor.” From the perusal of the Excise Policy for the year 2008-09, it is crystal clear that L-13 Licence for the supply of wholesale of country liquor will be allotted in every district of the State to the distilleries and the said liquor vend ( L-13 ) shall be operated by a person, to be approved by the Government. To achieve this object, State of Haryana has issued memo dated 14.03.2008 ( attached as Annexure P-1 in CWP No. 5718 of 2008 ) inviting applications from the distilleries for allotment of wholesale licence of country liquor ( L-13 ) for the year 2008-09. The last date for submission of these applications was 20th March, 2008. The State C.W.P. No. 5701 of 2008 14 Government has also issued the impugned notice inviting applications from the general public for operation of L-13 Licence to be granted to the distilleries. It may also be noticed here that vide Annexure P-9, the authorities have also circulated the procedure for draw of lots for allotment of liquor vend ( L-13 ) in favour of the distilleries for supply of country liquor in the district and for allotment of L-13 to the persons who will operate these wholesale liquor vends. The said procedure is re-produced as under:- “The draw of lot, if necessary shall be conducted by a Committee consisting of Deputy Commissioner, a representative of Excise and Taxation Commissioner, Deputy Excise and Taxation Commissioner ( Excise), Deputy Excise and Taxation Commissioner ( ST ) and Excise and Taxation Officer ( Excise ) or Assistant Excise and Taxation Officer ( Excise ) of the respective district in the presence of the applicants who wish to be present on the date of draw. The distillery shall be allotted to the successful applicant by conducting draw of lot among the distilleries against him/her selection. For the purpose, the names of all applicants shall be put in one transparent jar and single slip containing name of C.W.P. No. 5701 of 2008 15 distillery for each distillery (presently 8) shall be put in second transparent jar. First name of allottee shall be selected from first jar and name of distillery shall be selected against his/her name from the second jar. The draw name of allottee and distillery shall be removed from next round of draw of slips. Once all the 8 slips for each distillery finds an allottee, the second jar ( for names of distillery ) shall again be filed within 8 slips containing name of distillery for each distillery. The process shall be repeated till all Licenses ( L-13 ), sixteen in number, are allotted or the applicants are exhausted, whichever is earlier.” From a conjoint reading of memo dated 14.03.2008 ( attached with the writ petition No. 5718 of 2008, as Annexure P-1 ) and impugned notice ( Annexure P-9 ) and the Excise Policy ( Annexure P-1 ), it is crystal clear that the public notice ( Annexure P-9 ), issued by the State Authority is in consonance with the Excise Policy and the same does not violate the said policy in any manner. It may also be pointed out here that the petitioner has not made any factual basis in the writ petition to support his averments to the effect that the Licence fee for the current year C.W.P. No. 5701 of 2008 16 has already been accepted by the department and a Licence has been granted to him for the current year. There is no document placed on record by the petitioner in this regard. Documents Annexure P2 to P8 do not support the said claim of the petitioner. From these documents, the only one conclusion can be drawn is that M/s Haryana Organics having works at Samalkha, District Panipat (Haryana) has submitted an application for grant of L-13 licence and in the said application, they have stated that they have authorized Shri Bhupinder Singh to operate the said liquor vend. Annexure P3A is a receipt showing that Shri Bhupinder Singh of M/s Haryana Distillery L-13 Ambala City, has deposited a sum of Rs.10,000/- on account of licence fee for the period 01.04.2008 to 15.04.2008. This receipt does not in any way convey the meaning that the respondent authorities have granted the Licence to the petitioner for the current year under the Excise Policy of 2008-09. Moreover, the present writ petition has been filed by Shri Bhupinder Singh in his individual capacity for the allotment of L-13 Liquor Vend for wholesale supply in the District of Ambala, whereas as per the policy Annexure P-1, the L-13 Licence is to be issued to the distilleries of the State, therefore, in view of this fact alone, the C.W.P. No. 5701 of 2008 17 present writ petition filed by the petitioner in his individual capacity, is not maintainable. There is no such authorization placed on record by the petitioner to state that the present writ petition has been filed by him on behalf of the distillery i.e. M/s Haryana Organics having works at Samalkha, District Panipat (Haryana). The reliance of the petitioner on Rule 11 of Haryana Liquor Licence Rules, 1970 is also misplaced. Vide Annexure P-9 applications have been invited from the general public for operating the L-13 Liquor Vends for the current year, to be allotted to the distilleries of the State of Haryana and this is not a case of renewal. Even otherwise, the petitioner has no locus standi to apply for renewal of licence granted in favour of Haryana Organics for L-13 under the policy of 2007- 08. Section 36 of the Punjab Excise Act, 1914, as applicable, is also of no help to the petitioner as the same applies where a licence is cancelled or suspended, which is not the situation in the present case. In view of the above, we find no merit in this case and the same is dismissed in limine. ( RAKESH KUMAR GARG ) JUDGE ( SATISH KUMAR MITTAL ) 04.04.2008 JUDGE dinesh