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2020 Supreme(J&K) 281
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sanjeev Kumar, J.
Union Territory of Jammu and Kashmir and Another
Versus
Suman Rohemetra and others
CR 52/2020, CM Nos. 4333/2020, 4334/2020 4335/2020; Cav. No.1420/2020 Cav No.1419/2020
Decided on 28-08-2020
For the Appellants: Mr. K.D.S.Kotwal, Dy.AG
For the Respondents:Mr. Rahul Bharti Advocate with Mr. Satinder Gupta Advocate
Headnote:
Civil Procedure Code,1908 - Order 7 - Rule 11 - J&K Excise Act, Svt. 1958 - J&K Liquor Licence and Sales Rules, 1984 - Petitioner who in terms of Section competent authority to cancel or suspend liquor came to know that held by plaintiffs had been transferred to persons or than legal heirs/family in violation of Rules- Petitioner with a view to take action against illegal transfer put plaintiffs to show cause notices as to why held by m be not cancelled for violation of rules aforesaid- plaintiffs instead of replying show cause notices for which four weeks time had been granted to m jointly filed a suit before Court Additional District Judge Jammu hereinafter referred to as „trial Court seeking inter alia a decree of declaration to declare impugned show cause notices as null and void initio inoperative and ultra authority and jurisdiction of defendants- As a consequential relief plaintiffs also prayed for a decree of permanent prohibitory injunction restraining defendants petitioners and respondents jointly and severally from undertaking any act calculated to affect/infringe or disturb working of plaintiffs respective–Held, Code is punitive in nature akin to power to punish for civil contempt under Contempt of Courts Act person who complains of disobedience or breach has to clearly make out beyond any doubt that re was an injunction or order directing person against whom application is made to do or desist from doing some specific thing or act and that was disobedience or breach of such order- While considering an application under order court cannot construe order in regard to which disobedience/breach is alleged as creating an obligation to do something which is not mentioned in order on surmises suspicions and inferences- Power Rule should be exercised with great caution and responsibility- It is shocking that trial court had entertained an application Order from a person who was not entitled to file application has accepted an interpretation of order which does not flow from order Court has not found with impugned orders and has quashed m defendants appellants herein are in no way absolved of duty to comply with order in letter and spirit- Needless to say that in terms of interim injunction issued by trial Court defendants are under an obligation to maintain status quo with regard to plaintiffs- Any act or omission on part defendants which adversely affects operation of liquor held by plaintiffs would be disobedience of interim injunction- Should re be any breach or violation of interim order trial court shall be competent to proceed against a person guilty of such breach or disobedience by invoking -Least that is required is to array such alleged contemnors as party respondents and afford m an opportunity of being heard before passing an appropriate order as may be required and circumstances of case- In case defendants or any of m is found acting in breach of interim injunction trial Court shall proceed in terms Order and inflict penalty as envisaged aforesaid Rule and seek enforcement of order by attachment of property of violator or sending such violator to jail - Petition allowed
JUDGMENT
Cav No.1419/2020 & Cav. No.1420/2020
Learned counsel appears for the caveators. Caveats stands discharged.
Application for furnishing court fee, affidavit and vekalatnama is allowed and time to do the needful is extended by four weeks.
Application is disposed of.
CR 52/2020
1. Respondent Nos. 1 to 5 [„plaintiffs ] hold licences in form JKEL-2 for retail vending of IMFL and Beer etc. issued to them by the Excise Commissioner, J&K Jammu [“petitioner No.2 herein”] under J&K Liquor Licence and Sales Rules, 1984 [“Rules of 1984”] framed under the J&K Excise Act, Svt. 1958 (hereinafter referred to as „the Act ). JKEL-2 is a licence authorizing the holder retail sale of IMFL and Beer in terms of the Act and the rules framed thereunder. It is ordinarily issued for a financial year and is renewed for the next financial year and so on. As is claimed that as per the Excise Policy issued for the year 2018-19, the renewal to the licences issued in form JKEL-2 has been accorded for a period of five years i.e, w.e.f the financial year 2018-2019 to the financial year 2022-23.
2. It appears that petitioner No.2, who, in terms of Section 22 of the Act, is the competent authority to cancel or suspend the liquor licence, came to know that the licences held by the plaintiffs had been transferred to persons other than legal heirs/family in violation of the Rules of 1984. Petitioner No.2, with a view to take action against the illegal transfer of licences, put the plaintiffs to show cause notices as to why the licences held by them be not cancelled for violation of the rules aforesaid. The plaintiffs, instead of replying the show cause notices, for which four weeks time had been granted to them, jointly filed a suit before the Court of 2nd Additional District Judge, Jammu (hereinafter referred to as the „trial Court ) seeking, inter alia, a decree of declaration to declare the impugned show cause notices as null and void ab initio, inoperative and ultra vires the authority and jurisdiction of the defendants. As a consequential relief, the plaintiffs also prayed for a decree of permanent prohibitory injunction restraining the defendants i.e the petitioners and proforma respondents, jointly and severally from undertaking any act calculated to affect/infringe or disturb the working of plaintiffs respective licences.
3. The trial Court entertained the suit and vide order dated 04.07.2020, while issuing the notice to the defendants also provided for interim measure by issuing a temporary injunction thereby keeping the impugned show cause notices in abeyance and directing the parties to maintain status quo with respect to the respective licences of the plaintiffs till next date of haring. It further transpires that the defendants appeared before the trial Court and filed an application under Order 7 Rule 11 of CPC for rejection of the plaint.
4. During the course of hearing of this petition, it was reported to this Court that the arguments on the application filed under Order 7 Rule 11 CPC have been concluded and the order from the trial Court is awaited. While the aforesaid interim order dated 04.07.2020 was in operation, the plaintiffs, alleging violation thereof, filed a petition under Order 39, Rule 2-A of CPC seeking action against six Sub- Inspectors of the Excise Department. In the said petition, the plaintiffs also arrayed some whole sale dealers of the liquor as party respondents. The allegation made in the said petition was that, though in compliance to the interims directions passed by the trial Court, the liquor licences of the plaintiffs have not been cancelled, nor have they been asked to down their shutters, yet the Field Officers i.e Sub Inspectors of Excise Department working in their respective areas have refused to issue transport permits [“TPs”] to facilitate the stock of liquor to be transferred from the whole sale dealer to their licensed premises.
5. It is interesting to note that action for disobedience of interim injunction was s
