VIKAS JANDIAL Vs. STATE OF J AND K

JUDGEMENT

(1.) M /s Z.A. Shah, Advocate, along with Irfan Noor, Advocate; M/s A.V. Gupta, Senior Advocate, along with Y.E. Tak, Advocate; M/s D.C. Raina, Senior Advocate along with Dinesh Verma; M/s R.K. Gupta, S.K. Shukla, Rahul Pant, C.M. Gupta, Rishi Gupta, C.S. Gupta, W.S. Nargal, Rajesh Bhushan, B.S. Manhas along with D.S. Chouhan, Shakoor A. Malik, Gagan Basotra, Rajeev Saraf, Sunil Sethi, Kishore Kumar, F.A. Natnoo, Raghubir Singh, K.C. Sharma, D.K. Khajuria, Mrs. Radha Sharma, P.N. Raina along with Ms. Anshuja Sharma, H.H. Singh, R.P. Sapolia, Ajay Vaid, Hari Hartar Singh, C.S. Azad, Mrs. Surinder Kour, M/s Nitin Bhasin, H.C. Jhalmeria, M.R. Qureshi, K.S. Chib, Y.E. Tak, Advocates, for the Petitioners in their respective writ petitions.

(2.) THE petitioners further stated that there is no provision for issuance of off -licences by resort to draw of lots in terms of Rules and the Act. The entire mechanism is without jurisdiction and manipulated. That the Act and the Rules provided consideration of the applications by human mind and not by a machine or by a computer. Further case of the petitioners is that the licences have been granted for several other areas, which had not been notified earlier. The petitioners also stated that in terms of the Policy, they were to be treated as a separate class along with similarly situated persons, who had applied for off -licences prior to 22 -07 -2003 and their applications were complete in all respects, and the consideration required to be accorded to them area -wise and the decision to be taken on merits, as provided in the Excise Policy in vogue and existed at the relevant time. The petitioners, therefore, seek the result of draw of lots, held on 27 -02 -2004 by the Excise Department, to be quashed by a writ of certiorari and further declare the mode of grant of off -licences by draw of lots ultra vires of the Excise Act, Rules framed thereunder and the Excise Policy; also directing the respondents by a writ of mandamus to treat all those persons, who had applied for the grant of licences prior to 22 -07 -2003, as a separate class and the decision be taken on merits for grant of off -licences area -wise and further to notify the areas other than 89 places for which the procedure of draw of lots was adopted, and afford a chance to every one to apply for such area as well along with notifying the number of IMFL licensees ear -marked and to be issued for such areas.

(3.) THE third group consists of OWP No. 281/2004 and OWP No. 204/2004. The petitioners are aggrieved of the procedure adopted by the Excise Department for the grant of fresh off -licences and stated the same to be wholly discriminatory and illegal, as the petitioners have been deprived of their right to participate for the grant of licences. It is stated that the respondent -2, Excise commissioner, issued a public notice published in all the local newspapers on 25 -09 -2003, inviting applications from general public of J&K; for grant of off -licences for retail sale of Indian Made Foreign Liquor (IMFL), in terms of the existing Excise Policy. The licences were yet to be granted, when the Government presented a Finance Bill 2004, whereby it restructured the regulation of liquor sale in the State of J&K; and the existing dual system was given go bye and the new system has been introduced within the IMFL network. On the anvil of the change in the system, the Excise Commissioner selected 205 persons by draw of lots for the grant of off -licences. The petitioners stated that the persons selected are those, who had submitted applications under the earlier government Excise Policy of 2003. The Department did not invite fresh applications from general public under new Scheme for the grant of licences, nor notified the places other than 89 places earlier notified, for which licences were intended to be issued and, thus, the petitioners sought the issuance of a writ of certiorari in quashing the order dated 27 -02 -2004 issued by the Excise Commissioner in respect of the persons selected for the grant of off -licences for the retail sale of IMFL and country liquor (Desi Whisky) for 205 places in J&K; State; with a further relief in the nature of mandamus directing the respondents to issue a fresh notice inviting applications for the new identified locations other than the 89 places already notified.