Allowed

Ut of J and K Th Excise Commissioner J and K Jammu and Others v. Viney Verma and Another

J&K HC6 Dec 2021LPA/119/2021

Case brief

AI extract

What is this about?

This intra-court appeal challenged a Writ Court order granting interim relief allowing a petitioner to operate a liquor vend. The Court held the order determinative of rights and appealable, citing precedent on interlocutory judgments, while setting aside the order for lack of reasons and failure to hear the other side.

What did the court decide?

Impugned order of the Writ Court set aside. Parties directed to appear before the Writ Court afresh to decide the writ petition or interim relief application on merits.

Ut of J and K Th Excise Commissioner J and K Jammu and… — Consumer Protection | J&K HC (2021)

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

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CJ Court

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Case: LPA No. 119 of 2021 Cav No.2082 of 2021

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Union Territory of J&K and Others …Appellant(s) Through: Sh. D.C.Raina, Advocate General with Sh. K.D.S.Kotwal, Dy.AG.

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V/s

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Viney Verma and Another …. Respondent(s)

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Through: Sh. U.K. Jalali, Sr. Advocate with Smt. Shivani Jalali, Advocate for Caveator/respondent No.1.

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CORAM:

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HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE

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JUDGMENT (ORAL)

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Sanjay Dhar, ‘J’

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Cav No. 2082/2021

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Learned senior counsel for the caveator has entered appearance.

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Caveat stands discharged.

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LPA No. 119/2021

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1 The appellants have challenged order dated 21.10.2021 passed

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by the Writ Court in WP(C) No.1738/2021 filed by the writ petitioner/respondent No.1 herein, whereby appellants herein have been directed to allow the writ petitioner to run his liquor vend in pursuance of Licence No.106/e-auction ID 583/JKEL-2/2021-22, location: JMIC Ward No.49-F, Transport Nagar, Jammu at his own risk and responsibility, subject to outcome of the writ petition.

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2 It emerges from a perusal of record that the writ petitioner/respondent No.1 herein had filed a writ petition challenging suspension of sale of his liquor vend pursuant to a communication No. ETO/CRS/2249-52 dated 14.08.2021 issued by the Excise and Taxation Officer, City Excise Range South, Jammu which had its genesis to cancellation of petitioner’s character certificate dated 20.05.2021 in terms of Corrigendum No. 7563-67/SDCW dated 13.08.2021 issued by the SDPO City West, Jammu. The writ petitioner has, besides challenging the aforesaid communications, also sought a direction upon the respondents/appellants herein to allow him to run his liquor vend allotted to him vide Licence No.106/e-auction ID 583/JKEL-2/2021-22, location: JMIC Ward No.49-F, Transport Nagar, Jammu.

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3 It was contended by the writ petitioner/respondent No.1 herein before the Writ Court that pursuant to allotment of liquor vend in his favour, he had deposited the requisite Licence fee equivalent to bid amount and completed all other formalities including submission of clearance certificate issued by the District Magistrate, Jammu on 20.05.2021 which was based upon the character certificate issued by the SDPO City West Jammu on 20.05.2021. It was further contended by the writ petitioner that vide the impugned communication, the character certificate dated 20.05.2021 has been cancelled in an arbitrary and unwarranted manner, as a result of which, the writ petitioner, who had stocked liquor worth Rs.6.00 lac in his shop, has been subjected to recurring losses.

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4 The writ petition was contested by the appellants/respondents before the Writ Court by filing reply thereto. In their reply, the appellants/respondents have submitted that, upon further verification of the antecedents of the writ petitioner, it was found that as many as six FIRs

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LPA 119/2021

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stand registered against him which are pending at various stages of investigation/trial. The details of these FIRs are given in the reply. On this basis, it was contended that not only the conditions of licence are violated, but it also violates the eligibility criteria prescribed under clause 2.4.3. of the Excise Policy.

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5 It appears that after filing of the reply by the appellants/respondents, the matter came up before the Writ Court for consideration on 21.10.2021 when the Court finding no representation on behalf of the appellants/respondents therein, proceeded to pass the impugned order whereby the appellants/respondents were directed to allow the writ petitioner to run his liquor vend subject to outcome of the writ petition.

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6 The appellants have challenged the aforesaid order on the following grounds:

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(i) That the Writ Court has virtually granted the final relief while passing the impugned order;

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(ii) That the Writ Court has failed to appreciate that the writ petitioner did not fulfill the criteria of eligibility and had filed a false affidavit stating therein that he did not have any criminal antecedents; and,

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(iii) That the Writ Court has failed to take into consideration the objections filed by the appellants/respondents.

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7 We have heard learned counsel for the parties and perused the

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record.

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8 At the very outset, Learned Senior counsel appearing for the writ petitioner/respondent No.1 herein has raised a preliminary objection with regard to maintainability of this appeal. It has been contended that the impugned order does not determine the rights of the parties, nor does it determine the lis , as such, the same is not appealable in terms of clause 12

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LPA 119/2021

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of the Letters Patent of the Jammu and Kashmir High Court. He has relied upon the Judgment of this Court in a case Sher-i-Kashmir Institute of Medical Science and another vs. Dr. Naseer Mir and ors, 2021(1) JKLT 139 (J&K.)

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9 Before we come to the merits of contention of Learned Senior Counsel appearing for the writ petitioner/respondent No.1, it is necessary to notice the legal position as to what kind of an order constitutes a judgment within the meaning of clause 12 of the Letters Patent. The law on this aspect of the matter is no more res integra and it has been discussed elaborately by the Supreme Court in the case of Midnapore People’s Coop. Bank Ltd. vs. Chunilal Nanda and ors, (2006) 5 SCC 399. The Supreme Court has, in paras 15 and 16 of the judgment, laid down as under:

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“ 15 . Interim orders/interlocutory orders passed during the pendency of a case, fall under one or the other of the following categories:

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(i) Orders which finally decide a question or issue in controversy in the main case.

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(ii) Orders which finally decide an issue which materially and directly affects the final decision in the main case.

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(iii) Orders which finally decide a collateral issue or question which is not the subject matter of the main case.

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(iv) Routine orders which are passed to facilitate the progress of the case till its culmination in the final judgment.

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(v) Orders which may cause some inconvenience or some prejudice to a party, but which do not finally determine the rights and obligations of the parties”.

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“ 16 . The term 'judgment' occurring in clause 15 of the Letters Patent will take into its fold not only the judgments as defined in section 2(9) CPC and orders enumerated in Order 43 Rule 1 of CPC, but also other orders which, though may not finally and conclusively determine the

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LPA 119/2021

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rights of parties with regard to all or any matters in controversy, may have finality in regard to some collateral matter, which will affect the vital and valuable rights and obligations of the parties. Interlocutory orders which fall under categories (i) to (iii) above, are, therefore, 'judgments' for the purpose of filing appeals under the Letters Patent. On the other hand, orders falling under categories (iv) and (v) are not 'judgments' for purpose of filing appeals provided under the Letters Patent”.

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10 Coming to the nature of order which is under challenge before us, it is to be noted that by virtue of the said order, the Writ Court has, in fact, decided the application for grant of interim relief filed by the writ petitioner, inasmuch as, a direction has been issued to the appellants/respondents before the Writ Court to allow the writ petitioner to run his liquor vend subject to outcome of the writ petition. This order has not been made subject to modification, alteration etc. It not only finally decides the application for grant of interim relief filed by the writ petitioner, but also grants one of the reliefs prayed for in the writ petition. Thus, the said order clearly qualifies to be a judgment within the meaning of clause 12 of the Letters Patent and hence, appealable by way of an IntraCourt appeal. The contention of Learned Senior Counsel appearing for the writ petitioner/respondent No.1 is, therefore, without any merit.

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11 That takes us to the legality of the impugned order. A perusal of the impugned order reveals that the Writ Court, while passing the said order, has not assigned any reasons at all and the order has been passed simply because of the reason that no one had appeared on behalf of the appellants on the relevant date. The objections of the respondents were on record, but still then the impugned order has been passed without even considering those objections. The Writ Court has not even discussed the

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LPA 119/2021

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prima facie merits of the case while passing the impugned order. Such an order cannot be sustained in the eyes of law.

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12 For all the above reasons, the order impugned deserves to be set aside. Accordingly, this Intra-Court appeal is allowed and the impugned order passed by the Writ Court is set aside. The parties are directed to appear before the Writ Court on the date already fixed. The Writ Court is requested to consider the writ petition on its merits or in the alternative, at least consider the application for grant of interim relief afresh and decide the same on its merits after hearing both sides.

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(SANJAY DHAR) (PANKAJ MITHAL) JUDGE CHIEF JUSTICE

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Jammu 06.12.2021 Sanjeev PS

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Whether the order is speaking : Yes Whether the order is reportable :Yes

Ut of J and K Th Excise Commissioner J and K Jammu and Others v. Viney Verma and Another

Case brief

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Ut of J and K Th Excise Commissioner J and K Jammu and Others v. Viney Verma and Another

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