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2020 Supreme(J&K) 579
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Rajesh Bindal, CJ. (Acting) and Sanjay Dhar, J.
(Through Video Conferencing)
Balbir Singh and Ors.
Versus
State of J&K and Ors.
OWP No.486/2017 (O&M), LPAOW No.11/2017 (O&M), LPAOW No.20/2017 (O&M), LPAOW No.21/2017 (O&M), LPAOW No.22/2017 (O&M), LPAOW No.23/2017 (O&M) & LPAOW No.44/2017 (O&M)
Decided on 28.12.2020
Appearing Counsel
For the Appellant(s) in LPAOW No.11/2017:Mr. Z.A. Shah, Sr. Advocate with Mr. Rahil Raja, Advocate
For the Appellant(s) in LPAOW No.44/2017:Mr. P.N. Raina, Sr. Advocate with Mr. J.A. Hamal, Advocate
For the Appellant(s) in OWP No.486/2017 & LPAOW No.11/2017:Mr. R.K. Gupta, Sr. Advocate with Mr. Rahil Raja, Advocate
For the Appellant(s) in LPAOW Nos.21 & 44/2017:Mr. Abhinav Sharma, Sr. Advocate with Ms. Saba Atiq, Advocate
For the Appellant(s) in LPAOW No.11/2017:Mr. Pranav Kohli, Sr. Advocate with Mr. Rahul Sharma, Advocate for interveners
For the Appellant(s) in LPAOW Nos.22 & 23/2017:Mr. Rahil Raja, Advocate
For the Respondent(s): Ms. Seema Shekhar, Sr. A.A.G. with Mr. Bhanu Jasrotia, G.A.
The right to trade in liquor is not a fundamental right and the State can regulate the sale of liquor.
Headnote:
The Court held that the right to trade in liquor is not a fundamental right and the State can regulate the sale of liquor. The Court also held that the Excise Policies for the years 2017-18, 2018-19, and 2019-20, which provided for the renewal of licenses for a period of five years, were contrary to the provisions of the Act and the Rules and were struck down.
Fact of the Case:
The case involved a challenge to the Excise Policies for the years 2017-18, 2018-19, and 2019-20, which provided for the renewal of licenses for a period of five years. The petitioners, who were liquor vendors, argued that they had a right to get their licenses renewed and that the show-cause notices issued to them for cancellation of their licenses were invalid. The government argued that the right to trade in liquor is not a fundamental right and that the Excise Policies were framed in accordance with the law.
Finding of the Court:
The Court held that the right to trade in liquor is not a fundamental right and that the State can regulate the sale of liquor. The Court also held that the Excise Policies for the years 2017-18, 2018-19, and 2019-20, which provided for the renewal of licenses for a period of five years, were contrary to the provisions of the Act and the Rules and were struck down.
Issues: The issues in the case were: 1. Whether the right to trade in liquor is a fundamental right? 2. Whether the Excise Policies for the years 2017-18, 2018-19, and 2019-20, which provided for the renewal of licenses for a period of five years, were valid?
Ratio Decidendi: The Court held that the right to trade in liquor is not a fundamental right and that the State can regulate the sale of liquor. The Court also held that the Excise Policies for the years 2017-18, 2018-19, and 2019-20, which provided for the renewal of licenses for a period of five years, were contrary to the provisions of the Act and the Rules and were struck down.
Final Decision: The Court allowed the writ petition and dismissed the appeals. The Court held that the right to trade in liquor is not a fundamental right and that the State can regulate the sale of liquor. The Court also held that the Excise Policies for the years 2017-18, 2018-19, and 2019-20, which provided for the renewal of licenses for a period of five years, were contrary to the provisions of the Act and the Rules and were struck down.
Judgment
Rajesh Bindal, CJ. (Acting).—This Court has once again being called upon to clear the skeletons from the cup-board in Union Territory of Jammu and Kashmir. The case in hand is not in isolation where rule of law has been kept aside and there is total arbitrary exercise of power. Earlier many glaring issues came before the court. The same were, challenge to the Jammu and Kashmir State Land (Vesting of Ownership to Occupants) Act, 2001, popularly known as Roshni Act, grant of licenses for extraction of minor minerals, rampant encroachment of public/forest land, adhocism in government service, keeping investigation of criminal cases against senior officers and politicians under the Prevention of Corruption Act pending for decades and occupation of government accommodation by private persons, ex-politicians, retired employees, political workers, whereas the government employees are waiting for allotment.
2. This time it is in liquor trade, which had always remained lucrative. Before the issues are taken up after noticing the arguments raised by the learned counsels for the parties, it would be apt to notice certain glaring facts.
3. As per the information furnished by the government counsel, at present there are 223 functional liquor vends in Jammu and Kashmir. A perusal of the chart given below will show that these are continuing with the same persons or their successors in interest for decades as the process of renewal of licenses was being followed, where admittedly the allotments had not been made in a transparent manner. The same were only on the recommendation of the Finance Minister concerned. Without there being any advertisement issued, on an application filed by a favorite, the Finance Minister would order allotment of a vend and the allottee will continue for all times to come. The details of the liquor vends which were allotted from time to time and are continuing with the same persons or their successors in interest are given here under:
| Year-wise License granted as per available record | |
| Year | No. of Licenses granted |
| 1968-69 (Prior to) | 2 |
| 1969-70 | 10 |
| 1970-71 | 13 |
| 1971-72 | 0 |
| 1972-73 | 19 |
| 1973-74 | 0 |
| 1974-75 | 14 |
| 1975-76 | 4 |
| 1976-77 | 21 |
| 1977-78 | 5 |
| 1978-79 | 0 |
| 1979-80 | 4 |
| 1980-81 | 15 |
| 1981-82 | 0 |
| 1983-84 | 1 |
| 1984-85 | 1 |
| 1985-98 | 0 |
| 1998-99 | 18 |
| 1999-2000 | 32 |
| 2000-21 | 1 |
| 2001-2005 | 0 |
| Total | 160 |
4. In addition to above, two sub-vends granted in the year 2005-06 were regularized vide order dated 25-02-2019. 60 vends were allotted on temporary basis in August 2005 for a period of four months and are continuing till date in view of various interim orders passed by this court in different cases filed by them, which are subject matter of consideration in the present cases. One liquor vend was allotted in January 2011.
Facts
5. A bunch of intra-court appeals and a writ petition, bearing LPAOW Nos.11,20-23 & 44/2017 and OWP No. 486/2017 are being taken up together. In the appeals, challenge has been made to a common judgment of learned Single Judge. The only difference in LPAOW No. 20/2017 is that in the aforesaid appeal, order passed in OWP No. 1796/2016 is under challenge. The relief prayed for in the aforesaid petition was that the successful allottees in the draw of lots held in the year 2004 should be allotted the licenses. In OWP No. 486/2017, challenge has been made to the Excise Policies for the years 2017-18, 2018-19 and 2019-20.
Arguments on Behalf of the Appellants/Petitioners in LPAOW No.11/2017
6. Mr. Z. A. Shah, learned senior counsel appearing for the appellants submitted that prior to the allotment of liquor vends to the appellants, there was no system being followed. Applications used to be filed to the Finance Minister who would recommend grant of licenses. The applicants
