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Judgment
Satyen Vaidya, J
By way of instant petition, petitioner has prayed for following substantive reliefs: -
i) That the impugned order dated 21.08.2021 & 28.08.2018 Annexure P-9 & P10 may kindly be quashed and set-aside as the same are arbitrary, discriminatory, wrong illegal and against the excise Policy and against the principle of natural justice and the Additional Commissioner Respondent No.3 may kindly be directed to implement earlier order dated 16.07.2021 whereby the Petitioners was permitted to open sub vend at Kun Plat in the interest of justice and fair play.
The Petitioners are holders of L -14 licence for the year 2021-22, under H.P. Excise Act and rules framed thereunder, at Village Joggon in Tehsil Nalagarh, District Solan, Himachal Pradesh. Petitioners applied for opening of a sub-vend at place "Kun-Plat". The request of petitioners was allowed vide letter dated 16.07.2021 issued by Additional Commissioner State Tax and Excise, Grade-I, South Zone Himachal Pradesh, Shimla-9 (Respondent No.3).
The distance between the original vend of petitioners at "Jaggon" and their sub-vend at "Kun-Plat" is 13 kms approximately. Village "Kun-Plat" is at a distance of about 1 km from place "Swarghat".
Respondent No.6 is L-14 licence holder for the year 2021-22 at "Kallar" and "Swarghat". He raised an objection in writing to respondent No.3 against the grant of sub-vend to petitioners at "Kun-Plat" on the ground that it was in violation of Clause 23 of Chapter IV of Excise announcements for the year 2021-22.
Taking cognizance of the objection raised by respondent No.6, direction was issued by respondent No.3, on 28. 07.2021, to the Deputy Commissioner State Taxes and Excise, BBN Baddi, District Solan (Respondent No.4) to retrieve back the sub-vend from "Kun-Plat" and to relocate it to another location for creation of residual buffer area between the vends of two different licensees. On 05.08.2021, respondent No.3 again reiterated its directions to respondent No.4 issued vide letter dated 28.07.2021, noticed above.
Petitioners challenged the directions dated 28. 07.2021 and 05.08.2021 issued by respondent No.3 to respondent No.4 before the Financial Commissioner (Excise) Himachal Pradesh in Excise case No.06/2021-22. The Finance Commissioner Excise, Himachal Pradesh, vide order dated 18.08.2021 allowed the appeal of the petitioners. The impugned orders dated 28.07.2021 and 05.08.2021 were set aside with directions to respondent No.3 to decide the matter afresh after affording reasonable opportunity of being heard to all the parties.
The respondent No.3 after remand of the matter, decided the same afresh vide order dated 21.08.2021 and held as under:-
"Thus on forgoing discussions facts and circumstances and reports and objections raised by the third party and records on file and after hearing the arguments of all parties concerned. I, am of the considered opinion that the said Sub-Vend at Kun-plat was opened by the appellant in gross violations of condition No.23 of the ibid announcements 2021-22. Now, therefore, keeping the above aforesaid facts and statements/documents adduced before me and provisions of law in view of all these, I, Pankaj Sharma, Collector (Excise), SZ, in exercise of powers under rule 37(36) of the HP Liquor License Rules 1986, do hereby ordered the Sub-Vend Kun-plat of main vend L-14 Joggon revenue District, BBN Baddi to be retrieved back for maintaining buffer area of one third distance between the sub vend and the main vend of the other licensee i.e. M/s Amit Kaushal within 3 days positively, failing which the action as per excise announcements 2021-22, HP Liquor License Rules and HP Excise Act, 2011 will be taken accordingly".
Aggrieved against order dated 21.08.2021 passed by respondent No.3, the petitioners again preferred an appeal being excise case No.07/2021-2022 before Financial Commissioner Excise, Himachal Pradesh. This appeal came to be decided on 28.08.2021 whereby the order passed by respondent No.3 was affirmed and the appeal of the petitioners was dismissed.
Petitioners by way of instant petition have assailed the order dated 21.08.2021 passed by respondent No.3 and order dated 28.08.2018 passed by respondent No.2 mainly on the grounds that the sub-vend allotted to them at "Kul-Plat" was in terms with Clause 23 Chapter IV of Excise announcements for 2021-22. As per petitioners, the said sub-vend was allotted to them after due verification of the facts by respondent No.5. The recommendation in this behalf made by respondent No.4 was also strictly in accordance with the relevant Rules. It has been alleged that the impugned orders passed by the authorities are non-speaking, un-reasoned and hence result of non-application of mind. The impugned orders have further been challenged on the grounds of being harsh, oppressive and against the principles of natural justice. As per petitioners, they had already suffered huge losses on account of Covid 19 Pandemic and as consequence of impugned orders, they will be put to more losses causing grave prejudice to their interest. The allegation of respondent No.6 has been stated to be motivated. It has been averred that the vend of respondent No.6 is in different district and zone, therefore, the requirement of buffer zone under Clause 23 of Chapter IV of Excise announcements for 2021-22 will not have any application to the facts of the case. The provisions of above noticed Clause 23 are alleged to have been wrongfully applied.
On notice, respondents No.1 to 5 have contested the claim of the petitioners by alleging that the orders passed by respondents No.2 and 3, impugned in the present petition, are perfectly legal and inconsonance with the material facts of the case. It has been submitted that the grant of sub-vend to petitioners at "Kun-Plat" was found to be in violation of Clause 23 of Chapter IV of Excise announcements for 2021- 22 and hence, the same was ordered to be retrieved and to be located at such a place that would provide requisite buffer zone between vends of two licensees. It is stated that the sub-vend at "Kun-Plat" was within 1 km of the L-14 vend of respondent No.6 at Kallar-Swarghat and was in clear violation of Clause 23 Chapter IV of Excise announcements for 2021- 22. Respondents No.1 to 5 further maintained that the buffer zone contemplated by Clause 23 supra was applicable to all the vends in the State and not necessarily within one zone.
Respondent No.6 has also filed his separate reply. The defence raised by respondent No.6 is substantially the same as that of respondents No.1 to 5. It has been specifically submitted that the distance between the vend of respondent No.6 at "Swarghat" and that of petitioners at "Jaggon" is 14 kms. The sub-vend at "Kun-Plat" was at a distance of 13 kms from Joggon and only one km from Swarghat. Thus, the same was in violation of clause 23 because as per said clause petitioners could not have been allotted a sub-vend beyond one third of distance between "Joggon" and "Swarghat" which would not exceed 4.67 kms. The opening of sub-vend at "Kun-Plat" was alleged to be prejudicial to the interest of respondent No.6. The impugned orders have been supported by all the respondents.
We have heard learned counsel for the parties and have also gone through the records.
It is the distinct interpretation being given to the contents of Clause 23 of Chapter IV of Excise announcements for the years 2021-22, that has given rise to issues now pending adjudication before this Court. As per petitioners, the provisions of said Clause could be made applicable in the context of a particular excise zone only and on the other hand as per respondents the provisions thereof were applicable to the vends allotted in entire State and the reference to the zone was only with respect to authorization of authority for grant of sub-vends.
Clause 23 Chapter IV of Excise announcements for 2021-22 reads as under: -
"Sub-vends shall be granted to a retail licensee within the State subject to payment of annual license fee Rs.8,00,000/ - or 10% of the vend value whichever is lower. Whereas, keeping in view the issue of smuggling of liquor into State the sub vends shall be granted within a distance pf 100 meter from the borders on the payment of annual license fee Rs.5,00,000/- or 10% of the vend value whichever is lower. The sub-vends shall be approved and granted by the Collector of the Zone concerned. Such a Sub-vend may be allowed within the distance of not more than the one third of the total distance between the main vend of the applicant licensee(s) and that of vends of the other licensee(s) in the vicinity, thereby creating a residual buffer area between the vend of the one licensee and that of another licensee."
The emphases of petitioners are on the expression, "the sub-vends shall be approved and granted by the Collector of the zone concerned", for basing its argument that the mandate required under said clause would be applicable within the zone and not outside. It has been argued on behalf of the petitioners that the buffer zone required to be maintained under Clause 23 was meant between the two vends in the same zone.
The contents of Clause 23, if read as a whole, does not support and warrant the contention raised on behalf of the petitioners. The Clause 23 has to be read conjunctively and not disjunctively for the reason that it, as a whole, deals with the provision for grant of sub-vends. In our considered view, conjunctive reading of above noticed provision does not suggest that the buffer zone contemplated therein will only be construed to be between the vends in the same zone and not otherwise. The Himachal Pradesh Excise Act, Rules framed thereunder and also the annual excise announcements are for the entire State as a whole. The Excise Policy and announcements as such cannot be bifurcated into zones. It is only the prescribed authorities who have been empowered to exercise powers within their specific jurisdictions. The Collector of a zone, as per Clause 23, is empowered to grant a sub-vend within his zone but that does not imply that he can legally apply the provisions contained in Clause 23 as zone specific only. Such an interpretation will defeat the very purpose of Clause 23.
Evidently, the provision of keeping buffer zone as per Clause 23 is to save the other licensees from being put to prejudice. It cannot be said that the avoidance of prejudice would be applicable to the vendees in a particular zone and not in other parts of State. Any such interpretation will be absurd and shall render the very purpose of Clause 23 otiose. Respondents No.2 and 3, while passing the impugned orders, have rendered reasonable and correct interpretation to the provisions of Clause 23 and thus the impugned orders cannot be faulted on this account. The impugned orders were passed by associating the petitioners and hence they cannot genuinely raise the grievance of violation of Principles of Natural Justice. Both the authorities i.e. respondents No.2 and 3 have passed impugned orders by considering the facts and provisions of Section 23 in sufficient detail and thus the grievance of petitioners alleging impugned orders to be non-speaking cannot be sustained.
The perusal of field reports and recommendation made by respondents No.4 and 5 reveal that the same were not made in conformity with the requirements of Clause 23.
As a matter of fact, reference to Clause 23 in the field report submitted by respondent No.4 was made in the context which was in utter violation to the real import and purpose of said clause. Strangely, the possible impact on the business of respondent No.6 was not taken into consideration at all by respondent No.4 or respondent No.5 while making the recommendations. We are of the view that the grant of sub-vend to the petitioners at "Kul - Plat" was result of wrong interpretation of Clause 23 and hence no fault can be found in subsequent rectification of the mistake committed by respondents.
In light of the above discussion, we do not find any merit in the petition, hence the same is dismissed, so also the pending miscellaneous application(s), if any, with no orders as to cost.