HC sets aside order of Excise Commissioner, allows petitioner to operate vend by issuing licence in his within two weeks

29/11/2022
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JAMMU, Nov 28: Justice Sanjeev Kumar of Jammu & Kashmir and Ladakh High Court while allowing two different petitions, set-aside the order of Excise Commissioner and directed Excise Commissioner, J&K to immediately and forthwith, allow the petitioner to operate his vend by issuing the requisite licence in his favour within a period of two weeks.
The petitioner Manmohan Kour is aggrieved of and has called in question Order No. 161-EC of 2022 dated 23.08.2022 passed by the Excise Commissioner, J&K, whereby the bid of the petitioner for grant of liquor vend (JKEL-2) at Panchayat Sountha, Tehsil and District Udhampur has been rejected and bid amount forfeited.
In another petition Iqbal Kalra is aggrieved of and has called in question Order No. 160-EC of 2022 dated 23.08.2022 passed by the Excise Commissioner, J&K, whereby the bid of the petitioner for grant of liquor vend (JKEL-2) at Panchayat Jaganoo, Tehsil and District Udhampur has been rejected and bid amount forfeited.
Justice Sanjeev Kumar after hearing Yaseer Ejaz Tak for the petitioners whereas Deputy AG KDS Kotwal for the respondents, observed that the licence for establishment of distillery is dealt with separately by the J&K Distillery Rules and the licence issued for distillery is in Form D2. The Rules of 1984, however, do not make any reference to the licence in Form D-2. Had the intention of the Rule making Authority been to provide that a person holding a distillery or bottling licence may not hold the licence in JKEL-2, the same could have been spelt out in Rule 19 itself. The Rules of 1984, reproduced above, clearly provide classes of licences which cannot be held in conjunction with the other class or classes of licences. Neither, licence in the form D-2 is indicated in the Rule 18, nor Rule 18 prohibits the holding of licence in form JKEL-2 in conjunction with licence in form JKEL-6. What is prohibited is clearly contained in Rule 18. When the Rule is clear and unambiguous, the same has to be read, understood and applied as it is. No Executive Authority howsoever high, it may be, can substitute or subtract anything from the rule which is otherwise clear and unequivocal. The Rules of 1884 are statutory in character having been framed in the exercise of powers conferred by Section 3-A, 12, 20 and 25 of Excise Act and every Authority including the Excise Commissioner is bound to give effect to the Rules as they are, without adding or subtracting anything.
Court further observed that in view of the aforesaid clear and unambiguous position emerging from a reading of entire Excise Act and the Rules framed therunder, in particular, Rule 19 (1) and Rule 39(6), I am of the considered view that the Excise Commissioner has proceeded totally on a wrong premise and has passed the impugned order which is clearly not sustainable in law. The Rules, to reiterate, do not provide for any prohibition for holding the licence in form JKEL-2 in conjunction with Form JKEL-6 and, therefore, the very premise, on which the petitioner has been disqualified and his bid amount forfeited, is illegal and contrary to law. In the premises, this petitions are, accordingly, allowed and the orders impugned are set aside. The respondents, in particular, the Excise Commissioner, J&K is directed to immediately and forthwith, allow the petitioner to operate his vend by issuing the requisite licence in his favour within a period of two weeks from the date copy of the judgment is served upon them.

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