Case: Ashok Lenka Vs. Rishi Dikshit

66. Before us the Hindi version of the notification has been read wherefrom it appeared that the requirement of providing the certificate as regards the alleged criminal background of the family members of the licensees had inadvertently appeared in the English version of the notification, but were absent in the Hindi version. 67. It is true that this Court had delivered the judgment in Ashok Lanka - I (supra) on 11th May, 2005. A clarificatory notification was issued on 5.7.2005 by deleting the words "as well as his family members" from the notification dated 15.3.2005. The relevant portion of the said notification reads as under: "In the said rules, - (1) In sub rule 3 of clause (d) of rule 9 the words "as well as his family members" shall be omitted." The said notification was given a retrospective effect. Ordinarily a subordinate legislation cannot be given a retrospective effect. The Notification dated 15.3.2005, however, is said to be clarificatory in nature. A clarificatory Notification can be given retrospective effect. Such a clarification, according to the State, was necessary to be issued as there was an apparent conflict between the Hindi version and the English version of the Notification. 68. It may be true that before the High Court such a contention has not been raised but we are satisfied about the bona fide of the State in this behalf. In that view of the matter, it was not necessary for the District Level Committee or the State to verify the criminal background of the family members of the applicants.69. Presumably, character certificates were required to be issued by the respective Superintendents of Police in respect of the candidates concerned. Of course, if they had been residing at different places at different points of time, such character certificates were required to be issued by the Superintendent of Police of each such place. But the same would not mean that character certificates were required to be produced by the candidates in respect of their family members also particularly when it was not certain as to who would come within the purview of the said term. It was in that sense the Notification dated 15.3.2005 was a clarificatory one, and, therefore, could be given a retrospective effect. CHARACTER CERTIFICATES 70. In view of the directions contained in sub-paragraph (xi) of Paragraph 90, we do not accept the contention of Mr. Desai that only certificate issued by the Superintendent of Police of the place of his permanent residence is to be filed. It, however, appears that the Commissioner of Excise had issued letters to the concerned Superintendents of Police as regard requirement to comply with the provisions of Rule 9 of the Rules. The reason why we say so is that if a person is resident of any district for a year, the certificate which may be issued by the Superintendent of Police of that place may remain valid only for that year. He would not be in a position to vouchsafe about the conduct of the person concerned or as to whether he has any criminal antecedents prior or subsequent thereto.71. It may, therefore, be necessary that the applicant should state the details of the places where he had stayed or carried on business and produce a certificate from the concerned authorities from each such place. ADDRESS OF THE APPLICANT 72. No case, however, has been pointed out before us where such certificates had been given by the Superintendent of Police other than from the place wherein the applicant is a permanent resident. Terms and conditions of the advertisement did not mandate that a person residing outside the State of Chhattisgarh would be ineligible for filing an application. If that be so, then those who were residents of places other than the State of Chhattisgarh would also be eligible therefore. They may have a temporary address in Chhattisgarh or they may not have a permanent address within the said State but by way of temporary address, they cannot give an address which is not their residence even for temporary purpose. Even in paragraph 71 of the judgment in Ashok Lanka - I (supra), this Court pointed out the said fact. No serious dispute has been raised that the said contention of the writ petitioners was not correct. But, even if they had no temporary address but they had been able to file their character certificates and proof of permanent address, they cannot be held to be ineligible for the grant of licences. Furthermore, there is nothing to indicate that the District Level Committees had information as to whether the applicants were defaulters in respect of some other State. Such mechanism of scrutiny is not available in the statutory scheme and in our opinion should be provided.73. We hope and trust that in future, i.e., for the following excise year, appropriate steps shall be taken to make the position clear that if the applicants are not residents of the State of Jharkhand either on a temporary or permanent basis, they would not be shown to be residents of such places wherefrom their antecedents cannot be verified. Such applicants, therefore, should not be allowed to furnish an address only for the purpose of communication and if so, the same should clearly be stated in the application.74. In the Act or the Rules, again no particular authority had been mentioned as having been authorized to issue certificate. No particular method of verification of proof of address and identity had also been shown to exist. It will be appropriate if a clarification is issued in this behalf.75. The Scrutiny Committee appears to have relied upon certificates issued by Tahsildars, Municipal Counsellors, etc. which had not been objected to by the writ petitioners. It is stated that most of the applicants are income tax payees. They have been granted a PAN Card. In future, however, the authorities should insist that the applicants must enclose Xeroxed copies of their PAN Cards along with their applications. CONCLUSION 76. Th

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The period for which licences had been granted is over. For all practical purposes, the State and the licensees have succeeded in their attempts to defeat the purpose for which the writ petitions were filed by the writ petitioners - Respondents. We must express our dismay that despite our directions, the applications filed by the Appellants had not been scrutinized minutely which should have been done. The State of Chhattisgarh, we are not very sure, whether was aware of its constitutional duties and functions. It seems to have been more concerned with raising of revenue. To that extent it had succeeded, as the High Court in the first round of litigation despite directing a fresh scrutiny of the applications did not direct refund of the huge amount collected by it by way of application fees. We would, however, expect the State and its officers to scrupulously follow the constitutional mandate in future. It was with this intention we have dealt with these matters at some detail.We hope and trust that the State of Chhattisgarh and its authorities would not commit the same mistakes in the coming years keeping in mind the mandate of Article 47 of the Constitution of India and scrupulously observe the rules or disposal of liquor shops.In the writ petition, the writ petitioners have not disclosed as to how each one of the licensees who had appeared as respondents therein were ineligible or otherwise disqualified and/ or did not fulfil the conditions therefor. Had such opportunities been given, the State as also the said respondents could have met the said allegations. Such allegations were made only in the rejoinder. No new plea ordinarily could have been permitted in the rejoinder without the leave of the court. We would not have commented upon this as the High Court does not appear to have placed reliance upon the additional affidavit filed by the State inter alia on the ground that the same being a sur-rejoinder could not have been filed. The High Courts attention was evidently not drawn to the fact that writ petitioners brought on record new facts for the first time in the rejoinder and, thus, the State was entitled to file a sur-rejoinder controverting the allegations made therein.We are, therefore, of the opinion that the High Court committed an error in directing cancellation of licences of all the private respondents of the writ petition without arriving at a finding as to how and in what manner licence granted to each one of them was either in violation of the provisions of the statute or the directions of this Court.49. To put it shortly, the inadequacies or otherwise of fulfillment of eligibility criteria or the violation of the statute should have been decided by taking up individual matters and upon proper scrutiny of the case. To the aforementioned extent, the judgment of the High Court cannot be sustained.From the aforementioned chart, it would appear that although various instances have been cited in respect of the persons against whom findings have been recorded in the impugned judgment, their licences remained valid whereas licences have been directed to be annulled in respect of Satyendra Singh, Abhay Singh, Arvind Singh, Anil Pal, Pradeep Gupta and Anil Kumar Gupta. We have hereinbefore dealt with the consequences of not impleading some successful licensees in the writ petition.The learned counsel for the Appellant has placed before us a chart, as noticed hereinbefore, showing the mode and manner in which the directions of this Court had been purportedly complied with. From the said chart, it would appear that there are several cases where only residence certificate of some incompetent person was produced in support of residence and certificate by a doctor in support of age were produced as proof without producing any other document to prove those two facts. Thus, there was no proper proof of residence or age produced by these applicants. The record of scrutiny produced by the State shows that, those applicants who had submitted aforesaid improper documents were not even asked by the State at the scrutiny, to submit proper documents such as residence certificate by Revenue Authority, etc. or proper proof of age such as School Certificate or Birth Certificate, etc.61. We may in this connection notice some findings of the High Court. Before the High Court, it had been conceded that the residential certificates issued by the Councillors of Municipal Council or Sapranches or other persons who had no legal authority and/ or otherwise incompetent to issue the same, had been taken into consideration. It may be true that residence certificates granted in favor of the applicants who are not ordinarily inhabitants of the State of Chhattisgarh, cannot be procured from the Revenue Department of the State. The applicants, however, could procure such certificates from the competent authorities of the respective States where the applicant was a resident and who hold similar status in their State, particularly, when it is one of the eligible criteria. The High Court in paragraph 21 of its judgment has noticed the example of residence certificate of Abhay Singh, which does not even bear the revenue case number or seal of the office of the Tehsildar which are mandatory requirements. The High Court has also noticed that the certificates relating to age had been issued by Dental Surgeons and Orthopaedic Surgeons. The High Court furthermore noticed the report of the Station House Officer, Chirmiri to S.P. Koria mentioning about one licensee Pradeep Gupta that he is an employee of liquor contractor Amolak Singh Bhatia and financial condition of Pradeep Gupta is not such that he could take the financial burden of liquor trade. In spite of it, liquor licence was granted to him.62. Furthermore, the High Court in paragraph 22 of its judgment found that the Official Respondents have failed to carry out the directions issued by this Court in the manner expected of them and in conformity with the mandatory rule 9 and 11 of the Rules. The High Court in paragraph 23 also found that the burden was wrongly shifted on objectors to prove the negative facts by evidence which was a serious flaw in enquiry. In paragraph 24, it also took notice of a chart and found that vague and incomplete address such as resident of Raipur and resident of Saja which is an assembly constituency, has been accepted by the authorities.63. The aforesaid findings of the High Court establish that the licences might have been issued in fake names and to the ineligible applicants. Our attention has furthermore been drawn to the fact that some of the applicants are facing criminal trials, veracity whereof is not established.64. The contention of the learned counsel appearing on behalf of the Appellant that this Court has placed burden of proof on the objector may not be entirely correct. The initial burden was on the applicants themselves for grant of licences to satisfy the members of the District Level Committees that they fulfill the eligibility and other criteria. This Court merely opined that even in such matters, the satisfaction was required to be arrived at by the competent authority upon considering the objections raised by the writ petitioners. This Court, thereby, did not mean that whenever an objection was raised, the burden thereof would be upon the objector to prove the same. Sub para (iv) of Paragraph 90 of the judgment in Ashok Lanka I (supra) merely gave the objectors an additional opportunity to place materials before the District Level Committees to show that some of the applicants might be ineligible.65. Our attention has further been drawn to the fact that certificates issued by the doctors or dental surgeons, orthpaedics as regards proof of age of the applicants had been taken into consideration. The same was wholly illegal. But, it does not appear that such a contention had been raised before the High Court. It is expected that in future the competent authority shall consider the desirability of verification of age for arriving at the satisfaction that a person below the age of 21 years is not granted a licence.It may be true that before the High Court such a contention has not been raised but we are satisfied about the bona fide of the State in this behalf. In that view of the matter, it was not necessary for the District Level Committee or the State to verify the criminal background of the family members of the applicants.69. Presumably, character certificates were required to be issued by the respective Superintendents of Police in respect of the candidates concerned. Of course, if they had been residing at different places at different points of time, such character certificates were required to be issued by the Superintendent of Police of each such place. But the same would not mean that character certificates were required to be produced by the candidates in respect of their family members also particularly when it was not certain as to who would come within the purview of the said term. It was in that sense the Notification dated 15.3.2005 was a clarificatory one, and, therefore, could be given a retrospective effect.In view of the directions contained in sub-paragraph (xi) of Paragraph 90, we do not accept the contention of Mr. Desai that only certificate issued by the Superintendent of Police of the place of his permanent residence is to be filed. It, however, appears that the Commissioner of Excise had issued letters to the concerned Superintendents of Police as regard requirement to comply with the provisions of Rule 9 of the Rules. The reason why we say so is that if a person is resident of any district for a year, the certificate which may be issued by the Superintendent of Police of that place may remain valid only for that year. He would not be in a position to vouchsafe about the conduct of the person concerned or as to whether he has any criminal antecedents prior or subsequent thereto.71. It may, therefore, be necessary that the applicant should state the details of the places where he had stayed or carried on business and produce a certificate from the concerned authorities from each such place.No case, however, has been pointed out before us where such certificates had been given by the Superintendent of Police other than from the place wherein the applicant is a permanent resident. Terms and conditions of the advertisement did not mandate that a person residing outside the State of Chhattisgarh would be ineligible for filing an application. If that be so, then those who were residents of places other than the State of Chhattisgarh would also be eligible therefore. They may have a temporary address in Chhattisgarh or they may not have a permanent address within the said State but by way of temporary address, they cannot give an address which is not their residence even for temporary purpose. Even in paragraph 71 of the judgment in Ashok Lanka - I (supra), this Court pointed out the said fact. No serious dispute has been raised that the said contention of the writ petitioners was not correct. But, even if they had no temporary address but they had been able to file their character certificates and proof of permanent address, they cannot be held to be ineligible for the grant of licences. Furthermore, there is nothing to indicate that the District Level Committees had information as to whether the applicants were defaulters in respect of some other State. Such mechanism of scrutiny is not available in the statutory scheme and in our opinion should be provided.73. We hope and trust that in future, i.e., for the following excise year, appropriate steps shall be taken to make the position clear that if the applicants are not residents of the State of Jharkhand either on a temporary or permanent basis, they would not be shown to be residents of such places wherefrom their antecedents cannot be verified. Such applicants, therefore, should not be allowed to furnish an address only for the purpose of communication and if so, the same should clearly be stated in the application.74. In the Act or the Rules, again no particular authority had been mentioned as having been authorized to issue certificate. No particular method of verification of proof of address and identity had also been shown to exist. It will be appropriate if a clarification is issued in this behalf.75. The Scrutiny Committee appears to have relied upon certificates issued by Tahsildars, Municipal Counsellors, etc. which had not been objected to by the writ petitioners. It is stated that most of the applicants are income tax payees. They have been granted a PAN Card. In future, however, the authorities should insist that the applicants must enclose Xeroxed copies of their PAN Cards along with their applications.