Jammu & Kashmir High Court - Srinagar Bench
Mohsin Hussain Khan vs Union Territory Of Jk & Ors on 11 February, 2022
Serial No. 32
Supplementary-1 Cause List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
{Through Virtual Mode}
LPA No. 12/2022
CM Nos. 513/ 2022 & 514/2022
Caveat No.167/2022
Dated: 11th of February, 2022.
Mohsin Hussain Khan
... Appellant(s)
Through: -
Mr A. H. Naik, Senior Advocate with
Mr Shabir Ahmad, Advocate.
V/s
Union Territory of JK & Ors.
... Respondent(s)
Through: -
Mr Sajjad Ashraf Mir, Government Advocate for R-1 to 4 & 6; and
Mr Mohsin S. Qadri, Senior Advocate with
Ms Syed Furhana Muneeb, Advocate for R-5
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
Hon'ble Mr Justice Vinod Chatterji Koul, Judge
(JUDGMENT)
Magrey, J (Oral):
CM No. 513/2022:
01. This application is filed on behalf of the applicant/ Appellant
seeking extension in time for affixing the requisite Court fee, attestation of
Affidavits, etc. along with the main appeal in view of the preventive
measures put in place by the Registrar General of this High Court for
containing the spread of COVID-19 Pandemic.
LPA No. 12/2022; CM Nos.513/2022 & 514/2022; and Caveat No.167/2022
02. On the set of facts and the grounds urged, coupled with the
submissions made at the Bar, the instant application is allowed and the
applicant/ Appellant is directed to make good the deficiency, as aforesaid,
immediately when the Courts start functioning in the normal manner upon
lifting of restrictions on account of COVID-19 Pandemic.
LPA No. 12/2022; CM No. 514/2022 & Caveat No. 167/2022:
03. This appeal is directed against the Order dated 8th of February,
2022 passed by the learned Single Judge in WP(C) No. 33/2022 filed by the
Appellant, operative portion whereof reads as under:
"...
The Excise Commissioner, UT of J&K, being a necessary
party in the present writ petition is incorporated as party respondent
No.6. Mr Sajjad Ashraf, learned GA waives notice on behalf of
newly incorporated respondent No.6.An appropriate response be
filed within six weeks.
In the meantime, the Excise Commissioner or the competent
authority, scrutinizing the documents shall take an appropriate
decision not later than ten days from today. In case the documents
are in order, the private respondent No.5 shall be considered for
grant of license in accordance with the policy and the rules, which
shall be subject to outcome of the writ petition and the determination
of the locus of the petitioner in the present case."
04. The brief facts leading to the filing of this appeal, as come to
the fore from the perusal of the pleadings on record, are that the
Government of the Union Territory of Jammu and Kashmir, somewhere in
the year 2021, initiated process of open auctioning in relation to allotment
of the Vends identified by the Respondent Excise Department at various
places in the Union Territory, including at Batwara, Cantonment, Srinagar.
The Respondent No. 5 appears to have been declared as the successful
bidder for the said location, whereafter the said Respondent was required to
LPA No. 12/2022; CM Nos.513/2022 & 514/2022; and Caveat No.167/2022
complete certain formalities which he failed to do within the stipulated
period of time. It is stated that the Respondent No.5, though having
participated in the bidding process, was not having the necessary place
available and that, without identifying or getting any premises, the said
Respondent had participated in the bidding process. Consequently, upon
failure of the Respondent No.5 to fulfil all the requirements, his security
deposited is stated to have been forfeited in tune the scheme of the Policy
and the rules governing the subject, thereby resulting in the Vend becoming
again available for subsequent auction process. Thereafter, the Respondent-
Excise Department appears to have issued another Auction Notice dated
25th of September, 2021 for the re-auction of the aforesaid location. It is
pleaded that since the Appellant was a prospective person who had made
arrangements to participate in the aforesaid process of auction, however, the
Respondent-Excise Department, in collusion with the Respondent No.5, did
not proceed ahead with the aforesaid re-auction leading to cancellation of
the proceedings. Subsequently, e-Auction proceedings are stated to have
been initiated by the Respondent-Excise Department with respect to various
locations, including the location in question. The Appellant has proceeded
to contend that, thereafter, the Respondent-Excise Department, in collusion
with the Respondent No.5 and in violation of the mandate of the Rules and
policy governing the subject, started hobnobbing with each other in order to
give away the said Vend to the Respondent No.5 on the basis of some
license agreement having been executed by one Mr Sandeep Chattoo in
favour of the Respondent No.5. The Appellant/ Writ Petitioner, being
aggrieved of the license agreement dated 22nd of November, 2021 executed
by the said Mr Sandeep Chattoo in favour of the Respondent No.5 as also
LPA No. 12/2022; CM Nos.513/2022 & 514/2022; and Caveat No.167/2022
the communication dated 30th of February, 2021 issued by the Respondent
No. 2 as well as the other NOCs issued by Respondent Nos. 3 & 4 in favour
of the Respondent No.5, filed a Writ Petition bearing WP (C) No. 33/2022
before the Writ Court. The learned Single Judge, in terms of Order 13th of
January, 2022, while entertaining the aforesaid Petition, directed for
keeping in abeyance the NOC dated 7th of January, 2022 issued by the
District Magistrate Srinagar in favour of the Respondent No.5. Thereafter,
by virtue of Order dated 8th of February, 2022, the Writ Court has vacated
the earlier stay Order dated 13th of January, 2022 and directed the Excise
Commissioner, or the competent authority scrutinizing the documents of
Respondent No.5, to take an appropriate decision not later than ten days
from the date of order with a further observation that in case the documents
are in order, the Respondent No.5 shall be considered for grant of license in
accordance with the policy and the rules, which shall be subject to the
outcome of the Writ Petition and the determination of the locus of the
Petitioner/ appellant in the present case. This Order dated 8 th of February,
2022 passed by the learned Single Judge is challenged by the Writ
Petitioner/ appellant through the medium of the instant appeal filed under
Clause 12 of the Letters Patent Rules on the grounds detailed out in the
memo of appeal.
05. Mr A. H. Naik, the learned Senior Counsel, appearing for the
Writ Petitioner/ Appellant herein, submitted that the learned Single Judge
did not appreciate the fact that the participation of the Respondent No.5 in
the bidding process in May, 2021 itself was bad in law inasmuch as the said
Respondent had participated in the aforesaid proceedings without having
any premises at his credit, which was a mandatory requirement as per the
LPA No. 12/2022; CM Nos.513/2022 & 514/2022; and Caveat No.167/2022
terms and conditions prescribed in the tender document. The learned Senior
Counsel further submitted that the licence is granted not only to a person,
but also to the premises as well and that, without having any premises, the
very participation of the Respondent No.5 in the auction proceedings was
illegal. It is pleaded that the Respondent No.5 obtained the premises on
licence in December, 2021, thus making it amply clear that at the time of
participation of the Respondent No.5 in the auction proceedings, the said
Respondent was not having any premises available with him which aspect,
though specifically pleaded in the Writ Petition, was not taken into
consideration by the learned Single Judge while passing the impugned
Order.
06. Mr Mohsin S. Qadri, the learned Senior Counsel for the
Respondent No.5, who is on Caveat, while defending the impugned Order
passed by the learned Single Judge, submitted that the Writ Petition filed by
the Appellant, at the first instance was not maintainable in view of the fact
that the Appellant has no locus to file the same and throw challenge to the
lawful process undertaken by the Respondent-Excise Department in tune
with the mandate of the policy and the rules governing the grant of liquor
license by e-bidding in which process the Appellant never ever participated
nor was he aspiring to do so at any point of time. It is contended that the
learned Writ Court has rightly appreciated the controversy involved in the
matter and has directed the competent authorities in the Respondent-Excise
Department to scrutinize the documents of the Respondent No.5 and take a
decision thereon in accordance with the rules/ policy governing the subject.
LPA No. 12/2022; CM Nos.513/2022 & 514/2022; and Caveat No.167/2022
07. Mr Sajjad Ashraf Mir, the learned Government Advocate,
representing the official Respondents, submitted that the learned Single
Judge has rightly left the issue of scrutinization of the documents of the
Respondent No.5 to the domain of the competent authority in the
Department for taking a decision in the matter who have all the expertize in
the matter to do so.
08. We have heard the learned appearing Counsel for the parties,
perused the pleadings on record and have considered the matter.
09. From a perusal of the pleadings on record, what emerges is that
the Appellant filed the Writ Petition thereby assailing the license agreement
executed by the Respondent No.5 with some private person for taking the
premises on lease qua running the liquor Vend at Batwara, Cantonment,
Srinagar as well as various NOCs issued by the authorities with respect
thereto. That apart, the Appellant, in the said Petition, had questioned the
participation of the Respondent No.5 in the auction proceedings in absence
of any premises at the disposal of the said Respondent for purpose of
running the liquor Vend in question. The learned Single Judge, initially in
terms of Order dated 13th of January, 2022 had stayed the operation of the
NOC granted by the District Magistrate, Srinagar in favour of the
Respondent No.5, however, subsequently, in terms of the Order impugned,
the learned Single Judge, while vacating the aforesaid abeyance Order, has
directed the competent authority in the Respondent-Excise Department to
scrutinize the documents submitted by the Respondent No.5 and take
appropriate decision in the matter in tune with the mandate of the Policy/
Rules governing the field. This decision to be taken by the competent
LPA No. 12/2022; CM Nos.513/2022 & 514/2022; and Caveat No.167/2022
authority, as aforesaid, has been further kept subject to the outcome of the
Writ Petition. In this factual backdrop, we do not find it a fit case to
interfere with the course of action adopted by the learned Single Judge. This
is so because the learned Single Judge appears to have rightly appreciated
the controversy involved in the matter and has directed the competent
authority in the Respondent-Excise department, who are supposed to have
all the expertise on the subject, to scrutinize the documents of the
Respondent No.5 and take a decision thereon in tune with the mandate of
the Policy/ Rules governing the field. Furthermore, the Writ Court has
equally balanced the rights and interests of the parties by keeping the
decision to be taken by the competent authority with regard to the
documents submitted by the Respondent No.5 subject to outcome of the
Writ Petition. The Writ Petition is still pending and no final decision has
been rendered thereon, but only the competent authority in the Respondent-
Excise Department has been directed to scrutinize the documents of the
Respondent No.5 and take decision with respect thereto in accordance with
the Rules/ Policy governing the field which decision has been further kept
subject to final outcome of the Writ Petition. Besides, no decision as yet has
been taken by the authorities concerned in compliance of the direction of
the learned Single Judge, so the right and proper course for the appellant
was to wait for the said decision and, thereafter, avail appropriate remedy as
available to him under law accordingly. The mechanism devised by the
learned Single Judge, in view of the pleadings of the parties and having
regard to the facts and circumstances of the case, appears to be the right and
correct one inasmuch as it is the competent authority who are supposed to
have all the expertise in dealing with the aspect of scrutinizing the
LPA No. 12/2022; CM Nos.513/2022 & 514/2022; and Caveat No.167/2022
documents of the Respondent No.5 and, accordingly, take a call thereon in
accordance with the import and purport of the Rules/ Policy governing the
field. Accordingly, while maintaining the Order dated 8th of February, 2022
passed by the learned Single Judge, we hereby reiterate the direction of the
learned Single Judge by directing the competent authority in the
Respondent-Excise Department to scrutinize the documents submitted by
the Respondent No.5 in relation to allotment of vend in question and take a
decision thereon strictly in tune with the mandate of the Policy/ Rules
governing the field as also in strict accordance with the terms and
conditions of the e-auction proceedings concerned. Let the decision, as
aforesaid, be taken most expeditiously, and, in any case, not later than 15
days from today which shall be, however, subject to final outcome of the
Writ Petition.
10. Appeal disposed of as above, along with the connected CM.
This shall also discharge Caveat No. 167/2022 accordingly.
(Vinod Chatterji Koul) (Ali Mohammad Magrey)
Judge Judge
SRINAGAR
February 11th, 2022
"TAHIR"
TAHIR MANZOOR BHAT
2022.02.14 14:46
I attest to the accuracy and
integrity of this document
