Rajinder Kumar vs Union Territory Of J&K And Others
2022 Latest Caselaw 876 j&K

                                                                        Sr. No. 03
        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU
                            (Through Virtual Mode Srinagar)

                                                WP(C) No.1367/2021
                                                CM No. 5533/2021

Rajinder Kumar                                        .....Appellant(s)/Petitioner(s)


                       Through: Mr. Aditya Gupta, Advocate

                 Vs


Union Territory of J&K and others                                 ..... Respondent(s)

                      Through:     Mr. K. D. S. Kotwal, Dy. AG


Coram: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
                                  JUDGMENT

1. The petitioner has challenged order No. E-Auction/DECEJ/Exc/1423 dated

24.06.2021, passed by the respondent No.3 whereby the case of the petitioner

for grant of license i.e. Type-C, JKEL-2, Retail Vend of Foreign Liquor, Range

Kathua, Bann Panchayat has been rejected. The petitioner also seeks

quashment of Clause 2.4.3 which pertains to eligibility criteria as mentioned in

the notification dated 31st March, 2021 issued by the respondent No.1 relating

to the excise policy for the year 2021-22 on the ground that the same is ultra-

vires qua the provisions of J&K Excise Act. The case of the petitioner is that in

pursuance to excise policy for the year 2021-22 and the result of E-Auction,

the petitioner was declared successful bidder and also deposited the amount of

Rs.31,25,000/- with the respondents. The respondent No.3 by impugned order

rejected the case of the petitioner on the basis of character antecedents report

received from the concerned department. It is submitted that the order

impugned has been passed without providing an opportunity of being heard. It

is also pleaded that eligibility criteria as mentioned in the Clause 2.4.3 of

Excise Policy is ultra vires on the ground that the same is not as per the

provisions of the J&K Excise Act and the rules framed thereunder. The

petitioner has not been convicted of non-bailable offence by a criminal court in

terms of Rule 29-A and therefore the charge sheet filed against the petitioner

does not disentitle him for license.

2. The objections to the petition have been filed wherein it is submitted that the

petitioner has no cause to plead against the respondents. It is submitted that the

petitioner participated in the bidding process and also filed an affidavit that he

was not facing trial in any criminal court for any non-bailable offence or he has

any criminal antecedents. The petitioner participated in the bid acknowledging

the terms and conditions of the bid and therefore cannot question the same. The

petitioner has been charge sheeted in non-bailable offence in FIR No.153/2018

and another FIR is registered against the petitioner. The case of the petitioner

was rejected as he did not fulfil the eligibility criteria as provided under Clause

2.4.3 of the policy. The petitioner has no fundamental right to have the license

in his favour is also pleaded by the petitioner.

3. Heard learned counsel for the parties and perused the file.

4. The ground taken in the petition is that the eligibility of criteria 2.4.3 as

mentioned in the Excise Policy is against the provisions of the Act and the

rules made thereunder. The learned counsel for the petitioner has argued that

the excise policy could not be in contravention of the provisions of Excise Act

and rules made thereunder. The counsel has referred to Rule 29-A of the

Excise Act qua the reason for rejection of issuance of license in favour of the

petitioner. Learned Deputy AG has countered the argument by stating that the

petitioner had participated in the tender meaning thereby that he had agreed to

the terms and conditions of the Excise Policy and participated in the bid and

therefore cannot challenge the same in the present petition.

5. The clause 2.4.3 clearly mentions that the bidder should not have been

convicted/charge-sheeted for any offence under the J&K Excise Act or facing

trial in any criminal court for any non-bailable offence or has any criminal

antecedents. The reply to the petition clearly mentions of the petitioner having

been charge sheeted in the court of law in FIR No.153/2018 in non-bailable

offence and also having another FIR registered against him under Sections

6/7/8 of the Non-Biodegradable Act. The pendency of the case before the court

of law and filing of FIR against the petitioner is certified by Additional

Superintendent of Police, Kathua vide dated 05.05.2021. The pendency of the

criminal case against the petitioner is not in dispute. The respondents have also

annexed with the objections the affidavit filed by the petitioner before the

concerned authorities wherein the petitioner mentioned in para 1 of the

affidavit that he has not been convicted/charge-sheeted under the J&K Excise

Act or facing trial or in any criminal or has any criminal antecedents. Indeed,

the affidavit is not disputed by the petitioner. The petitioner was in know of the

terms and conditions of the excise policy of 2021-22 and participated in the bid

and also filed the affidavit which was not inconsonance with the clause 2.4.3 of

the policy. The same being the position it does not lie in the mouth of the

petitioner to challenge the clause 2.4.3 in the present writ petition being in

violation of the provisions of the Excise Act and the rules and regulations

framed thereunder. In case the petitioner was having any grievance against the

policy of 2021-22 he should have challenged the relevant clause before

participating in the bid and not when the order impugned came to be passed by

the respondent No.3 after the respondents came to know of the false affidavit

which was not fulfilling the eligibility criteria as laid down in clause 2.4.3 of

the policy. The argument of the petitioner that he has not been heard prior to

the passing of the order in the present case is misconceived. The petitioner

cannot wriggle out of the affidavit filed by him which did not satisfy the

eligibility criteria. No prejudice is caused to the petitioner.

6. The challenge to the clause 2.4.3 of the Excise Policy of 2021-22 is

misconceived in the facts and circumstances of the case. The court finds no

illegality in the order impugned in the writ petition. The petition is,

accordingly, dismissed.

(Puneet Gupta) Judge

Jammu 31.05.2022 Shammi

Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No