Ashok Narwal v. State of Haryana & Ors.

Mr. Gagandeep Singh Wasu, DAG, Haryana. Adarsh Kumar Goel,J.

1. This order will dispose of CWP Nos.17101 and 17136 of 2010. Prayer in both the petitions is to quash identical order dated 9.9.2010 declining to renew the liquor vend licence L2 granted to the petitioner earlier.

2. In CWP No.17136 of 2010, case set out is that the petitioner was granted licence for retail sale of IMFL at Rohtak for the period from

1.4.2009 to 31.3.2010. As per excise policy dated 18.2.2010 for the year 2010-1011, provision was made for renewal of licence of existing licensees at their option on increase of the existing licence fee in the manner provided therein. The petitioner was eligible for renewal and fulfilled all the conditions as per policy and made requisite application for renewal. Instead of granting renewal, the vend was advertised for re-allotment. The petitioner filed CWP No.3983 of 2010 which was disposed of with a direction to Excise and Taxation Commissioner to pass an appropriate order on the application of the petitioner. The said application was rejected on 19.3.2010 against which the petitioner filed CWP No.7322 of 2010 which was CWP No.17136 of 2010 2 disposed of on 3.8.2010 after considering order passed by the department itself in another identical case and giving opportunity to the affected parties. Thereafter, the impugned order has been passed. In the impugned order, even though the present allottee made a statement that he had nothing to say in the matter and even though the case of the petitioner was identical to the case of one Pawan Singh in whose case different order was passed, the prayer of the petitioner for renewal was declined.

4. We have heard learned counsel for the petitioner. A perusal of the impugned order shows that consideration kept in mind is that one Bijender Singh had already been allotted the vend and that while in the case of the petitioner, drafts were got prepared from the same bank account from which drafts in favour of Mandeep Kumar were issued, which showed that the petitioner had financial interest in the vend of Mandeep Kumar. The relevant observations are:- “However, in the instant case as there was no stay, the L- 2 vend Sukhapur Chowk has already been allotted to Sh.Bijender Singh after following the process of tender as per the policy. More importantly the facts of the case of Shri Ashok Narwal are not identical to the case of Shri Bijender Singh. It can be seen from Annexure P.6 that although the department had pointed out a few common elements in the applications of prospective licensees yet no conclusive proof of common financial interest could be brought on record by the department in case of Brijender Singh and hence his vends were renewed. As against this, in the case of Shri Ashok Narwal, drafts have been got prepared for vends Sukhpura Chowk Rohtak and Kirpal Ashram Rohtak from the same account of M/s Haryana Wines a proprietorship firm in the name of Sh.Mandeep Kumar. Sh.Mandeep Kumar was the licensee of L-14A vend Kirpal Ashram Rohtak. The very fact that Draft Nos.828644, 828648, 828666 CWP No.17136 of 2010 3 given for L-2 Sukhpur Chowk Rohtak were got prepared from the aforesaid bank account shows that Sh.Ashok Narwal had full financial interest in the vend of Sukhpura Chowk L-2 vend Rohtak and L-14A vend Kirpal Ashram, Rohtak and as no renewal application was submitted in respect of L-14A Kirpal Ashram, therefore, renewal application of L2 vend Sukhpura Chowk cannot be allowed as per the excise policy. This fact of bank account being same is also clear from the orders dated 19.3.2010 of the undersigned. Bank account was not same in case of Sh.Bijender Singh.”

5. As against the above order, in the order passed in the case of Pawan Singh in similar circumstances, which has been annexed as Annexure P.9, the very same plea was rejected. It was held that merely because the vend which was required to be renewed for Pawan Kumar was allotted to Surinder Kumar could not be a ground to reject the claim for renewal. In the case of Bijender Singh also, renewal had been granted in same circumstances. Mere issuance of bank drafts from same account was not enough to infer commonality of financial interest of two persons getting bank draft from same account. The observations are as under:- “Here, it is also observed that in almost similar circumstances, two vends of Sh.Bijender Singh were renewed by the department. The circumstances of the case of Sh.Bijender Singh and Sh.Pawan Singh as stated above are almost similar but not identical because the date on which they filed writ petitions in the Hon’ble High Court and the date on which the department could take cognizance of their cases are also different. Sh.Bijender Singh approached the Hon’ble High Court in the month of March itself and by 5th of April, the orders for renewal for his vends had been issued. The vends were allotted from 1.4.2010 and the department CWP No.17136 of 2010 4 was restrained from allotting this vend to anybody in the intervening period. However, as the present petition would itself show that the list of events in the petition are not in chronological order. The dates of 30.3.2010 and 5.4.2010 are written after 11.4.2010. This is because the petitioner Sh.Pawan Singh approached the Hon’ble High Court for the first time on 12.4.2010 only. This difference has materially resulted in the fact that the vend for which Sh.Pawan Singh wanted renewal was allotted to Sh.Surender Singh who has been operating this vend till date. Shri Surender Singh wants to run the vend for the entire year, but, as has been established now that the grounds of common interest taken by the department to decline the claim of renewal of Sh.Pawan Singh cannot be considered conclusive and therefore, now a situation has arisen when the department is left with no option but to offer renewal to Sh.Pawan Singh to run the vend for the remaining period of the excise year 2010-11. Though the present licensee has submitted that he would like to run the vend but in the present circumstances, it is not possible. Faced with this situation and to set the things right I hereby order that the petitioner Sh.Pawan Singh should approach DETC (X) Rohtak for renewal of this vend for the remaining period of the current year (2010-11). DETC (Excise), Rohtak when approached by the petitioner Sh. Pawan Singh would cancel the allotment of the present licensee Shri Surinder Singh and allot the vend to Sh.Pawan Singh petitioner subject to payment of 20% security of the balance license fee of the year which would be calculated on proportionate basis from the original renewal license fee of the vend for the remaining available period of the year. The installments would also be divided so as to comply with the rules of excise policy. It is further ordered that to safeguard the financial interests of the present licensee, he would be required to CWP No.17136 of 2010 5 pay only the license fee of the period for which he runs the vend. If he has paid any additional amount, it would be refunded to him after the transfer of vend to the petitioner. A copy of this order may be sent to the petitioner and the DETC (Excise), Rohtak for immediate necessary action.”

6. Thus, there is no justification for passing two different orders in the case of two different persons who were similarly placed.

7. Accordingly, we allow this petition and direct respondent No.2 to pass a fresh order in accordance with law within one week from the date of receipt of a copy of this order. (Adarsh Kumar Goel) Judge November 29, 2010 ‘gs’ (Gurdev Singh) Judge