Allowed

Sunil v. State of Haryana and Others

Punjab & Haryana HC7 Apr 2015CWP/23483/2013

Case brief

AI extract

What is this about?

Senior Advocate appearing for respondents submitted that petitioner ceased operation upon receiving notice under interim PIL order and judgment applied only to non-starters. Single Judge held ratio applies equally to those affected mid-contract and disposed petitions in view of Division Bench judgment.

What did the court decide?

Impugned letter quashed; surrender of licences accepted; advance refunded minus proportionate amount for period operated (until 31.08.2013 or 31.03.2014).

Sunil Vs State of Haryana and Others — Service and Employment | Punjab & Haryana HC (2015)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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1. Civil Writ Petition No.23483 of 2013 (O&M)

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RESERVED ON: 23.03.2015

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 DATE OF DECISION: 7.04.2015

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Sunil

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…..Petitioner

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versus

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State of Haryana and others

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 .....Respondent

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2. Civil Writ Petition No.20033 of2014(O&M)

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Sunil

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…..Petitioner

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versus

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State of Haryana and others

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 .....Respondent

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CORAM:- HON'BLE MR.JUSTICE S.J. VAZIFDAR, ACTING CHIEF JUSTICE

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HON’BLE MR. JUSTICE G.S.SANDHAWALIA

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Present: Mr. Rajbir Sehrawat, Advocate for the petitioner

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Ms. Mamta Singla Talwar, AAG, Haryana

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S.J. VAZIFDAR, ACTING CHIEF JUSTICE :

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Rule in both the writ petitions. Rule returnable and

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heard forthwith.

¶23

2. It was agreed that the result in CWP No.20033 of 2014
would follow the result in CWP No.23483 of 2013. Both the writ
petitions are, therefore, disposed off by this common order and
judgment.

¶24

PARKASH CHAND 2015.04.07 10:21 I attest to the accuracy and authenticity of this document

¶25

CWP-23483-2013, etc.

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¶27

 The petitioner seeks a writ of certiorari to quash a
letter dated 25.09.2013 and a writ of mandamus directing the
respondents to consider his claim as per the directions issued by
this Court in an order we will refer to shortly and/or an order
directing the respondents to accept the surrender of his Liquor
Vend Group No.19 and Group No.17 in Rohtak and to refund the
advance deposited by him in respect thereof after deducting the
proportionate amount for the period during which he operated the
vends.

¶28

3. Respondent No.2 is the Excise and Taxation

¶29

Commissioner, Haryana and respondent No.3 is the Deputy Excise
and Taxation Commissioner (Excise), Rohtak.

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4. Pursuant to the excise policy for the year 2013-15 bids
were invited for allotting various vends. The petitioner’s bid of

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Rs.1,72,05,000/- was accepted in respect of Group No.17 and Group
No.19, District Rohtak. Three vends in respect of each group were
allotted. The letter of allotment stated that the licence

¶32

authorizing the retail sale of IMFL at the vends specified
therein for the year 2013-14 was granted to the petitioner
subject inter alia to the provisions of the Punjab Excise Act,
1914 and the rules/regulations made therein. Clauses 1.2.1 to

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1.2.5 of the Excise Policy, 2013-15 read as under:

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“1.2 LOCATION OF VENDS AND COMMAND OF RURAL COUNTRY
LIQUOR (L-14A) & IMFL (L-2) VENDS:

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1.2.1 The command area shall be prescribed for
all rural country liquor vends/group of vends (L-
14A) & all rural IMFL vends/group of vends (L-2).

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PARKASH CHAND 2015.04.07 10:21 I attest to the accuracy and authenticity of this document

¶37

CWP-23483-2013, etc.

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The command area will include the area of main
vend. Wherever the vends are clubbed into a group
for the purpose of allotment, the command area of
that group would comprise the command area of all
the included vends taken together. The licensee has
the freedom to locate his main vend in any village
falling in the command area of that particular vend
subject to approval of the DETC (Excise) concerned
in case of resistance from local residents.
Similarly for locating other main vends comprised
in the group, the command area of those respective
vends would be applicable. The vend shall be
located within the area specified subject to other
provisions of law. The licensee shall make his own
arrangement for opening of the retail outlet with
prior approval of site plan by the Department.
Prior approval of site plan of vend shall have to
be obtained from concerned DETC (Excise) both in
case of vends as well as sub vends. The location of
the business premises is required to conform to all
the provisions of the Punjab Excise Act and the
Rules framed there under and the provisions of any
other Act/Rules, as may be applicable.

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1.2.2 No liquor vend or sub vend shall be
located in the villages where “KANYA GURUKUL” are
functioning.

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1.2.3 ESTABLISHMENT OF VEND AT A NEW LOCATION:

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No person to whom a license for retail liquor
outlet is granted shall establish the same on such
premises as is situated at a distance of less than
150 meters from the main gate of a recognized
school/College/main bus stand and a place of
worship. However, Excise Commissioner can relax
such distance for the location of retail liquor
outlet from 150 meters to 75 meters on the
recommendations of the Deputy Excise and Taxation
Commissioner (Excise). Further, in urban areas,
the retail liquor outlets may preferably be located
in the market places.

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1.2.4 ESTABLISHMENT OF VEND AT AN EXISTING

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LOCATION:

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The above stipulation of locating a vend at a
distance of not less than 150 meters from the main
gate of a recognized school, college, main bus
stand and a place of worship shall be applicable to
the vends which are being established at a new
location. Those vends which are already running and
are re-established at the same location year after
year shall not be subjected to any such
restrictions.

¶46

PARKASH CHAND 2015.04.07 10:21 I attest to the accuracy and authenticity of this document

¶47

CWP-23483-2013, etc.

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1.2.5 RESTRICTION OF LOCATION ON SCHEDULED ROADS
ETC:

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(a) The retail liquor outlets on National Highway/
State Highways (except in case of retail liquor
outlets located in the areas of Municipal
Committees/ Municipal Corporations/ Councils/
Housing Boards or any other local authority/ Urban
Estates/ the areas developed by the colonizers
with the approval of the Government) shall be
located at a distance as stipulated in the Punjab
Scheduled Roads and Controlled Areas Restriction
of Unregulated Development Act, 1963 (41 of 1963).

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(b) No liquor vend shall be located along the
National Highways. They shall not be accessible and
preferably not visible from the National Highways
or the service lane running along such highways.

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Note:- It shall be the personal responsibility of
the DETC (Excise) of the district concerned to
ensure the strict compliance of the above
stipulated restrictions.”

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5. Under the excise policy of 2013-15, the petitioner was

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entitled to operate the vends for a period of two years. For the
second year i.e. 2014-15, there was to be a 5 percent increase in
the licence fee.

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6. A public interest litigation was filed by the Arrive
Safe Society against the National Highway Authority of India and
another being CWP No.25777 of 2012. The same was disposed of by
an order and judgment dated 18.03.2014. Pursuant to an order

¶56

passed in the said PIL dated 30.07.2013, the respondent No.3 by a
letter dated 21.08.2013 (Annexure P-5) directed the petitioner to
strictly comply with the order in the PIL within five days of the
receipt of the letter. It was agreed that this in effect directed
the removal of the vends on the highway.

¶57

PARKASH CHAND 2015.04.07 10:21 I attest to the accuracy and authenticity of this document

¶58

CWP-23483-2013, etc.

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7. By a reply dated 27.08.2013, the petitioner stated that
by the said notice respondent No.3 had directed him to
discontinue the liquor vends and to relocate the same. He stated
that he had offered his bid pursuant to the excise policy. He
further stated that the site of the liquor vend was also approved
by the respondents and that the respondents were not entitled to
change the terms of the allotment in the middle of the financial
year. However, considering the respondents’ request, he stated
that his bid was ascertained on the basis of the arrangements
arrived at between the parties. The petitioner, therefore, stated
that the respondents must either withdraw the notice or permit
him to surrender his licences and to refund the balance of the
advance deposited for the remaining period of the licences after
deducting the proportionate amount for the period for which he
had operated the licences i.e. up to 31.08.2013.

¶61

8. As there was no order or direction taken upon the
petitioner’s letter dated 27.08.2013, the petitioner filed CWP
No.19593 of 2013 which was disposed off by the order and judgment
of the Division Bench of this Court dated 06.09.2013 by directing
the respondents to decide the petitioner’s representation.

¶62

In the meantime, the respondents cancelled the licences
of the petitioner and forfeited the security vide orders dated
20.09.2013. Thereafter, vide communication dated 24.09.2013, the
Assistant Excise and Taxation Officer sought to recover a sum of
Rs.80,31,000/- and vide notice dated 24.12.2013 called upon the

¶63

PARKASH CHAND 2015.04.07 10:21 I attest to the accuracy and authenticity of this document

¶64

CWP-23483-2013, etc.

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petitioner to deposit the said amount failing which recovery
proceedings would be started under the Punjab Land Revenue Act,
1887. The said orders of cancellation and forfeiture and the show
cause notice are subject matter of Civil Writ Petition No.20033
of 2014.

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9. We would normally not have interfered in this writ
petition for it would always be open to the petitioner to raise
the contentions as a defence to any action taken or proceedings
filed by the respondents against the petitioner. We may well have
left it to the petitioner to file the proceedings to recover the
balance of the advance after making the necessary adjustments.
The respondents, however, stated that they intend recovering the
amounts pursuant to the impugned order as arrears of land revenue
as noticed above. Further, in our opinion, this matter is covered
in the petitioner’s favour by a judgment of the Division Bench of
this Court dated 11.07.2014. We have, therefore, entertained this
petition.

¶68

10. Pursuant to the above notice, the respondents passed
the order impugned in this writ petition dated 25.09.2013. In
our opinion, this case is covered by a judgment of the Division
Bench of this Court dated 11.07.2014 in Karambir Nain and another

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vs. The State of Haryana and others, CWP No.5573 of 2014. In
Karambir Nain’s case, the Division Bench dealt with a similar
situation. The Division Bench noted that after the order and
judgment in the PIL, the State of Haryana instead of curtailing

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PARKASH CHAND 2015.04.07 10:21 I attest to the accuracy and authenticity of this document

¶71

CWP-23483-2013, etc.

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the policy for one year, issued an amended policy for the year
2014-15. The amendments related to the distance from the national
highway and State highway and also related to the shifting of the
vends on the highways. The amendment bifurcated the groups as
well as the licences unilaterally. The petitioners contended that
the amendments were illegal and arbitrary as they compelled the
licencees to continue with the unaffected vends. They contended
that the bidders could not be compelled to continue with the
unaffected vends alone and that the State of Haryana was not
entitled to amend the terms and conditions unilaterally. The
amended policy permitted the licencees to close down only the
vends on the highways and not the other vends. The petitioners
contended that the allocation of the vends was a composite
arrangement and could not be bifurcated in such a manner without
their consent. The Division Bench held as under:

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“23. Examining the factual matrix herein, it
may be noticed that as per excise policy, the State
had formulated Excise policy for the years 2013-14
and 2014-15. The unit of allotment of retail liquor
outlets of country liquor and IMFL was to be group-
wise. A group would comprise of a maximum number of
three contiguously located retail outlets of either
country liquor or IMFL. The petitioners had bid for
the groups of liquor vends and accordingly
composite licence was issued by the State. The
licence fee had been determined for the entire
group as a unit. In CWP No.25777 of 2012 decided on
18.3.2014, it has been directed that no liquor vend
shall be permitted to be opened on the National or
State Highway with effect from 1.4.2014. In such a
situation, the petitioners have been asked to close
down or shift retail liquor vends on the National
or State Highway being affected vends but required
to continue with the other vends of the group which
do not fall on National or State Highway. There is
alteration in the terms of the licence. Alteration
cannot be enforced unless both the parties agree to

¶75

PARKASH CHAND 2015.04.07 10:21 I attest to the accuracy and authenticity of this document

¶76

CWP-23483-2013, etc.

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it. The terms of licence are, although statutory in
nature, cannot be unilaterally changed by the State
in between the licence period, without either
seeking consent of the licensees or without giving
opportunity to the licensee to repudiate the
contract. The licence fee for all the three vends
was single and there was no vend-wise bifurcation
of the licence fee. The method of calculation of
licence fee adopted by the State upon the quota of
each vend cannot be imposed unilaterally on the
liquor vends without their consent. None of these
clauses or eventuality had been provided in the
excise policy for the year 2013-14 and 2014-15. No
provision under the Punjab Excise Act, 1914 or the
Haryana Liquor Licence Rules, 1970 had been shown
which empowered the State to change the terms of
the licence during the currency of the licence or
change the location of the vends. The State cannot
be permitted to change the rules of the game
announced at the time of Excise policy
unilaterally. Moreover, the State is in the present
situation because of its own doing as would be
apparent from the following observations of the
Division Bench in Safe Arrive's case (supra):-

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“The problem was aggravated on account of
the fact that the State of Haryana came up
with the Policy for two years for the first
time when the lis was already pending before
this Court and we were of the view that the
endeavour was to avoid the possible rigors
of the orders which may be passed in these
proceedings, especially as the State of
Haryana had been taking time on more than
one occasion to file response. We were,
thus, influenced by the fact that the Liquor
Policy for the State of Haryana purported to
be for a period of two years and taking cue
from what was stated by the State of Punjab,
we were willing to give concession also to
the State of Haryana till 31.3.2014 so that
a new regime came into play with effect from
1.4.2014. As noticed above, the endeavour of
the State of Haryana to challenge the said
direction passed by this Court before the
Hon'ble Supreme Court of India has not been
successful.”

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24. It is concluded that wherever a composite
liquor licence has been issued relating to liquor
vends on National or State Highway alongwith liquor
vends in rural area, the State shall not be
entitled to enforce clause 2B of the amended policy
against such licencees without their consent. As a
consequence, such licencees shall not be obliged to
continue with the vends in rural area against their

¶81

PARKASH CHAND 2015.04.07 10:21 I attest to the accuracy and authenticity of this document

¶82

CWP-23483-2013, etc.

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express affirmative response. The State shall be
entitled to recover the licence fee from such
licencees till 31.3.2014. However, it is clarified
that wherever, such licencees had operated vends in
the rural area from 1.4.2014, they shall not be
entitled to any benefit under this order as their
continuance would amount to implied consent on
their part to operate the unaffected vends located
there.

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38. Accordingly, the writ petitions are allowed
with the direction that the State shall not
penalise any licencee who has not opted for renewal
of the licence in respect of liquor vends included
in the composite licence of a group of vends
relating to vends situated in rural area. The State
shall be authorised to recover the licence fee from
such licensees till 31.3.2014. The petitioners
shall be entitled to refund of the security deposit
after adjustment of any amount due from them on the
basis of excise policy of 2013-15 by treating that
the liquor vend had been operated till 31.3.2014.
As a consequence, the State shall not be entitled
to forfeit any amount of security deposit made by
the licencee due to the aforesaid reason. However,
wherever, such licencees had continued with the
liquor vends in the rural area, the benefit under
this order shall not be available to them. All the
petitions stand disposed of in the above terms. ”

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The judgment is binding on us. As held by the Division Bench, the
petitioners would not be entitled to any benefit under the order
up to the date on which they continued to operate the licence
i.e. 31.03.2014.

¶87

11. Ms. Mamta Singla Talwar, learned AAG appearing on
behalf of the respondents stated that the petitioner was not
interested in operating the vend in any event and that he had
relied on the judgment of the Division Bench merely as an excuse.

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12. It is difficult to accept this contention as the
petitioner continued to operate the vends till he received the

¶89

PARKASH CHAND 2015.04.07 10:21 I attest to the accuracy and authenticity of this document

¶90

CWP-23483-2013, etc.

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¶92

said notice dated 21.08.2013 which, in effect, called upon him to
discontinue the vends on the highways in view of the interim
order dated 30.07.2013 in the PIL. Ms. Talwar agreed that upon
the receipt of the letter dated 21.08.2013, the petitioner could
not have continued to operate the vends on the highways.

¶93

13. Ms. Talwar then contended that the judgment applies
only to those licencees who did not start operating the vends.

¶94

14. We are unable to agree. The ratio of the judgment of
the Division Bench in Karambir Nain’s case does not apply only to
those licencees who did not start operating the vends. It would
apply equally to those who had commenced the operation of the
vends but were affected by the amendments in the policy. The
judgment dealt with the rights between the State of Haryana and
the licensees. The ratio applies to cases where persons are
granted licenses to run vends on highways as well as at other
locations and had been called upon to discontinue vends only in
the highways.

¶95

15. By the impugned order, respondent No.3 merely stated
that as per the Punjab Excise Act, a licencee can surrender a
licence, while refusing to accept the petitioner’s request, and
is, therefore, contrary to the order and judgment of the Division
Bench in Karambir Nain’s case.

¶96

16. In the circumstances and in view of the order and
judgment of the Division Bench of this Court in Karambir Nain’s

¶97

PARKASH CHAND 2015.04.07 10:21 I attest to the accuracy and authenticity of this document

¶98

CWP-23483-2013, etc.

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¶100

case, this writ petition is disposed off by making the rule
absolute in terms of prayer (a), which reads as under:

¶101

“a) a writ in the nature of Certiorari
/Mandamus quashing the letter dated 25-09-2013 at
Annexure P-8 and directing the respondents to
consider the claim of the petitioner on merits as
per the direction issued by this Hon’ble Court
and/or directing the respondents to accept the
surrender of the Liquor Vend Group No.19 and
Group No.17 of District Rohtak made by the
petitioner and to direct the respondent to refund
the amount advance deposited by the petitioner
after deducting the proportionate amount for the
period for which the petitioner has operated the
liquor vend in view of the fact that the
respondents are changing the locational
conditions and the premises of allotment to the
petitioner which are not acceptable to the
petitioner.”

¶102

The licence fees may be recovered up to and including
31.08.2013 i.e. date till which the petitioner operated the
licences and the vends.
17. As we mentioned at the outset, it was agreed that the

¶103

result in CWP No.20033 of 2014 would follow the result in CWP
No.23483 of 2013. CWP No.20033 of 2014 is, therefore, disposed of
in the similar terms except as to the date till which the
petitioner operated the licences/vends. There shall be no order
as to costs.

¶104

(S.J. VAZIFDAR) ACTING CHIEF JUSTICE

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`7.04.2015` `parkash*`			`(G.S. SANDHAWALIA)` `JUDGE`
	`Note:-`	`Whether reportable -`	`√` `YES/NO` `.`

¶106

PARKASH CHAND 2015.04.07 10:21 I attest to the accuracy and authenticity of this document

Sunil v. State of Haryana and Others

Case brief

What is this about?

What did the court decide?

Sunil v. State of Haryana and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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