Varinder Kumar Khullar vs Ut Of J&K And Ors
2023 Latest Caselaw 1761 j&K

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

                                            Reserved on:        09.08.2023
                                            Pronounced on:      25.08.2023

                                            WP(C) No. 153/2021
                                            CM No. 763/2021
Varinder Kumar Khullar                          .....Appellant(s)/Petitioner(s)

q
                     Through: Mr. Rohit Gupta, Advocate
                vs
UT of J&K and ors.                                         ..... Respondent(s)
                     Through: Mr. KDS Kotwal, Dy. AG for R-1 to 4
                              Mr. Akash Gupta, Advocate for R-8 & 9
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                               JUDGMENT

1. The petitioner and his brother-Joginder Nath were granted wine shop

licence No. 20 OFF-JKEL-2 jointly. It is alleged that after the demise of

Joginder Nath, one of his son, namely, Arun Kumar i.e. respondent No. 5

took over the premises as well as the entire business without any authority

on behalf of the petitioner and also excluded the wife of Joginder Nath i.e.

Smt. Sudarshan Kumari from the business, who was having 50% share in

the entire business as per the will dated 28.10.2009 executed by Joginder

Nath, who expired on 16.07.2010. The petitioner claims to have made

several attempts to get the matter settled but on failure, he submitted the

applications dated 07.10.2010 and 15.10.2010 to the ETO, Rajouri but no

action was taken and respondent No. 5 was allowed to operate the wine

shops illegally. The petitioner further claims to have made another

representation dated 19.12.2012 to the Deputy Excise Commissioner

(Executive) but still no action was taken. The petitioner submitted another

application dated 27.11.2012 to the Commissioner Sale Tax, J&K

Government, bringing to his notice about the illegal taking over of the

business by Arun Kumar i.e. respondent No. 5. In the year 2014, the

petitioner received a demand notice for recovery of arrears of tax to the

tune of Rs. 1,07,84,193/- (Rupees One Crore Seven Lacs Eighty Four

Thousand One Hundred and Ninety Three only). The petitioner filed an

application dated 04.12.2017 and approached the Excise Commissioner not

to entertain the application of Arun Kumar Khullar for insertion of his

name in the licence but no action was taken in respect of illegal action of

Arun Kumar i.e. respondent No. 5.

2. It is further stated that firm was having a bank account in the name of M/s

Joginder Nath Varinder Kumar but after the demise of Joginder Nath,

respondent No. 5 manipulated the inclusion of his name in the said joint

account without any authority and also opened another account in the name

of M/s Joginder Nath Varinder Kumar, Wine Shop without informing the

petitioner. Legal notice dated 06.07.2019 was sent to the Bank Manager to

stop the operation of the account No. 01800101000002 and further to

reflect the transactions only in the account No. 0180010100000278 to make

the respondent No. 5 accountable. It is further stated by the petitioner that

J&K Bank has no authority to change the constitution of the joint account

of M/s Joginder Nath Varinder Kumar, Wine Shop. In nutshell, the claim

projected by the petitioner in the present writ petition is that respondent No.

5 was conducting the business illegally without any authorization and has

illegally taken over the business of the wine shop bearing Licence No. 20

OFF-JKEL-2 issued to the partnership firm of M/s Joginder Nath Varinder

Kumar, Wine Shop and Sub-Vend Wine Shop at Siot, Kalakot. The

petitioner has also prayed for issuance of directions to respondent Nos. 8

and 9 to hold an enquiry into the manner of operation of the account No.

0180010100000278 of partnership after the death of one of the partner,

namely, Joginder Nath.

3. Response stands filed by the official respondents, wherein it has been stated

that the petitioner has raised the disputed question of facts, which cannot be

adjudicated through the medium of the present writ petition. It is further

stated that the petitioner along with his brother, namely, Joginder Nath was

conducting the business as partners and upon death of Sh. Joginder Nath,

the name of Sh. Arun Kumar Khullar was inserted by the Excise

Department vide Order No. 668 of 2018 dated 10.03.2018 as partner in the

License No. 20/JKEL-2 in place of his deceased father. It is further stated

that the petitioner has filed the instant writ petition only to avoid the

payment of the Government Revenue/Excise dues, regarding which several

demand notices have been issued by the Excise Department and even if the

petitioner was not willing to carry on the business, he was required to apply

for deletion of his name as partner in the aforesaid license, which was not

done by the petitioner. As per report submitted by the Deputy Excise

Commissioner (Executive), Jammu dated 09.12.2022, an amount of Rs.

1,55,38,003/- is still pending against the license including the petitioner on

account of Assessment fee/Additional Assessment fee/Additional License

fee. It is stated that the name of Arun Kumar Khullar was incorporated in

the license in compliance to the order dated 02.02.2018 passed by the High

Court in the writ petition titled, 'Arun Kumar Khullar vs. State of Jammu &

Kashmir and others'.

4. Heard learned counsels for the parties.

5. The allegation levelled by the petitioner is in respect of unauthorized taking

over of the business by the respondent No. 5. From the response filed by

the official respondents, it is evident that the name of respondent No. 5 was

inserted vide order dated 10.03.2018 in compliance to the directions passed

by the writ court vide order dated 02.02.2018.

6. In view of the categoric response filed by the official respondents, it cannot

be said that the respondent No. 5 was running the business illegally. This

Court finds substance in the contention raised by the official respondents

that the present petition has been filed to avoid the payment of the

Government dues. Otherwise also, the disputed questions of facts have been

raised in the present petition, which cannot be adjudicated upon while

considering the petition under Article 226 of Constitution of India.

7. Viewed thus, this Court does not find any merit in the present petition, as

such, the same is dismissed.

(RAJNESH OSWAL) JUDGE

Jammu 25.08.2023 Neha-II Whether the order is speaking: Yes/No.

Whether the order is reportable: Yes/No.