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2019 DIGILAW 129 (GAU)

Rothangpuia v. State of Mizoram

2019-01-29

MICHAEL ZOTHANKHUMA

body2019
JUDGMENT : Michael Zothankhuma, J. 1. These bunch of writ petitions have been clubbed together since the issues involved are similar. 2. Mr. Lalfakawma, the learned counsel appears for the writ petitioner in WP(C) No. 1/2019, Mr. B. Lalramenga, the learned counsel appears for the petitioner in WP(C) No. 2/2019, Mr. Joseph L. Renthlei, the learned counsel appears for the petitioner in WP(C) No. 3/2019 and Mr. C. Lalfakzuala, the learned counsel appears for the petitioners in WP(C) No. 4/2019. Mrs. Linda L. Fambawl, learned Govt. Advocate appears for all the State respondents. 3. By filing these writ petitions, the petitioners have challenged Office Order dated 14.01.2019 (Annexure-11), by which the State Government through the Commissioner, Excise & Narcotics, in exercise of Section 11 of the Mizoram Liquor (Prohibition & Control) Act, 2014 has declared dry days w.e.f. 15.01.2019 to 15.03.2019, in order to have peaceful atmosphere on Republic Day on 26.01.2019 and Chapchar Kut on 28.02.2019 & 1.03.2019, for the entire State of Mizoram. 4. Prior to the impugned office order, the State respondents had also issued a similar Order on 19.12.2018, whereby, dry days were declared w.e.f. 21.12.2018 to 14.01.2019 for the entire State of Mizoram. It is, therefore, the contention of the petitioners that the continued declaration of dry days by the State Government have deprived them and their employees from earning their livelihood and thereby, resulting in the violation of their Fundamental Rights guaranteed under the Constitution of India. 5. The petitioners in WP(C) Nos. 1, 2 & 3/2019 are the owners of bonded warehouses operating under license within the State of Mizoram. The petitioners in WP(C) No. 4/2019 are the retail vendors, who are selling liquor on the basis of licenses given to them by the Government of Mizoram. The control and sale of liquor within the State of Mizoram is covered by the Mizoram Liquor (Prohibition and Control) Act, 2014, herein referred to as the 2014 Act. The 2014 Act came into force on 15.01.2015 and is still a valid Act till date. 6. The contention of the petitioners is that the petitioners are licensees, who are allowed to sell the liquor as per the 2014 Act and connected Rules till 31.03.2019. The State Government had issued an Office Order dated 19.12.2018, which declared the period from 21.12.2018 to 14.01.2019 as dry days for the whole of Mizoram. 6. The contention of the petitioners is that the petitioners are licensees, who are allowed to sell the liquor as per the 2014 Act and connected Rules till 31.03.2019. The State Government had issued an Office Order dated 19.12.2018, which declared the period from 21.12.2018 to 14.01.2019 as dry days for the whole of Mizoram. The petitioners were however under the belief that they would be able to continue their businesses from 15.01.2019. However, the impugned Office Order dated 14.01.2019 was issued by the Commissioner of Excise & Narcotics Department, Government of Mizoram, which declared the period from 15.01.2019 to 15.03.2019 as dry days. The learned counsels for the petitioners submit that the continuous imposition of dry days from 21.12.2018 till 15.03.2019 is arbitrary and un-reasonable. 7. The petitioners' further case is that the petitioners had been allowed to import liquor on the basis of permits given by the State Government and unless they were allowed to dispose of the same under the prevailing 2014 Act and connected Rules, the petitioners would suffer irreparable loss and injury. 8. The learned counsels for the petitioners submit that as the petitioners have given taxes to the Government for importing the liquor, the State Government cannot act arbitrarily by not allowing them to sell the same. They submit that the doctrine of promissory estoppel is applicable in this case. They also submit that though Section 11 of the 2014 Act enables the respondents to declare dry days, the said provision cannot be used arbitrarily. 9. The petitioners counsels also submit that in the meantime, the Commissioner of Excise & Narcotics Department has issued a letter dated 22.01.2019 to all the registered liquor companies, requesting them not the dispatch liquor for the bonded warehouses in Mizoram as there would be a problem for disposal, as the State Government was intending to enforce Prohibition law in Mizoram. They also submit that subsequent to the above letter dated 22.01.2019, the Commissioner of Excise & Narcotics Department has issued an order dated 22.01.2019, which is to the effect that pursuant to the decision of the meeting held in the office chamber of the Chief Minister on 21.01.2019, bonded warehouses in Mizoram were informed that the unexecuted import permits should be refunded and that the bonded warehouses were instructed not to place orders to liquor companies, as prohibition law was to be enforced in the near future. The bonded warehouses would be given refund of the excise duties. The learned counsels for the petitioners submit that the above 2 (two) orders should be set aside as there is no prohibition law in force as on date and no action could have been taken or orders issued by the respondents in violation of the 2014 Act. 10. The learned counsels for the petitioners also submit that as the petitioners have acted upon the promise made by the respondents, allowing them to sell liquor, by purchasing huge amount of liquor for sale, thereby altering their position, the Government cannot resile from the permission given to them to sell liquor under the 2014 Act, as the doctrine of promissory estoppel would be applicable to the present case. 11. The respondents, on the other hand, have taken the stand in their affidavit-in-opposition that as per Section 11 of MLPC Act, it is the discretionary power of the Commissioner of Excise & Narcotics to declare dry days and that the said dry days had been declared in pursuance to the decision of the Council of Ministers' meeting held on 10th January, 2019, vide Resolution No. 6. 12. The respondents counsel submits that the affidavit-in-opposition filed by the State respondents in WP(C) No. 1/2016 will also cover the other cases. The respondents counsel also submits that as the State Government wanted a peaceful atmosphere to prevail in Mizoram during the observation of Republic Day on 26.01.2019 and Chapchar Kut on 28.02.2019 & 01.03.2019, dry days have been announced. Further, as Total Prohibition is the Policy to be implemented as reflected in the election manifesto of the MNF Party, which is the Party in power at the moment, dry days have been announced. 13. The respondents' counsel also submits that as per the stock position of bonded warehouses, verified by the Excise & Narcotics Department on 18.01.2019, the stock position in the 3 (three) bonded warehouses as on 18.01.2019 was to the tune of Rs. 141,569,331.48. 14. The respondents' counsel also submits that the decision to impose dry days is a Policy decision of the State Government and the same cannot be challenged in a writ petition. 141,569,331.48. 14. The respondents' counsel also submits that the decision to impose dry days is a Policy decision of the State Government and the same cannot be challenged in a writ petition. She also submits that though the intention of the Government to fulfill the election manifesto of the MNF Party is clear by the declaration of dry days and as the State respondents do not want the petitioners to make a loss, it is left to the wisdom of the High Court with regard to whether the petitioners should be allowed to dispose of their materials, stocked in the bonded warehouses and in the liquor shops, as per law. 15. The learned counsel for the petitioner in WP(C) No. 2/2019 submits that the stock position in the bonded warehouse of the petitioner in WP(C) No. 2/2019 as on date is Rs. 19,07,67,745/- and not the earlier stock position mentioned in the affidavit-in-opposition. 16. I have heard the learned counsels for the parties. 17. The control and sale of liquor within the State of Mizoram is covered by the 2014 Act. Though Section 11 of the 2014 Act empowers the Commissioner of Excise & Narcotics Department to declare any day or days as dry days, the basis for which an order is made under Section 11 cannot be arbitrary or whimsical. In the light of the above, it would be necessary to reproduce the impugned office order dated 14.01.2019, which is reproduced below: "No. C.31019/1/2017-COMEX GOVERNMENT OF MIZORAM COMMISSIONERATE OF EXCISE & NARCOTICS OPPOSITE AIJAL CLUB, KHATLA MIZORAM:AIZAWL Dated Aizawl, the 14th January, 2019 OFFICE ORDER In pursuance to the decision made by the meeting of the Council of Ministers held on 10th January, 2019 and as per Section 11 of the Mizoram Liquor (Prohibition and Control) Act, 2014, the undersigned hereby declares Dry Days with effect from 15th January, 2019 to 15th March, 2019 in order to have peaceful observance of Republic Day on 26.01.2019 and Chapchar Kut on 28.02.2019 for the whole of Mizoram State. Sd/- NGURCHUNGNUNGA SAILO Commissioner of Excise & Narcotics Mizoram: Aizawl" 18. The meeting of the Council of Ministers held on 10.01.2019, on the basis of which the impugned office order dated 14.01.2019 has been made is reproduced below: "Agenda 6. Sd/- NGURCHUNGNUNGA SAILO Commissioner of Excise & Narcotics Mizoram: Aizawl" 18. The meeting of the Council of Ministers held on 10.01.2019, on the basis of which the impugned office order dated 14.01.2019 has been made is reproduced below: "Agenda 6. Dry days be declared from 15.01.2019 till 15.03.2019 in order to have a peaceful atmosphere during the observance of Republic Day 26.01.2019 and Chapchar Kut 28.02.2019 to 01.03.2019." 19. A perusal of the above Council of Ministers Meeting held on 10.01.2019 shows that dry days were to be announced only on account of the intention of the State Government to have peaceful atmosphere in Mizoram during observation of the Republic Day on 26.01.2019 and Chapchar Kut on 28.02.2019 and 01.03.2019. Republic Day is now over and the reason for the dry days to continue would now be relatable only to the Chapchar Kut festival, to be held on 28.02.2019 and 01.03.2019. This Court fails to understand as to how the opening of the liquor shops and bonded warehouses, prior to 28.02.2019 and 1.03.2019, would disrupt the peaceful atmosphere of Mizoram during the Chapchar Kut festival. Nothing can be seen in the records or in the Council of Ministers Meetings to show that there would not be any peaceful atmosphere in Mizoram during Chapchar Kut, if dry days were not announced. In any event, dry days could be declared on the days when Chapchar Kut is to be celebrated, i.e., 28.2.2019 and 1.3.2019. The decision of the respondents in declaring continuous dry days from 21.12.2018 till 15.03.2019 on the basis of two Office Orders does not have any nexus to the object sought to be achieved. Law and Order problem is the responsibility of the State Government. The decision by the respondents that there might not be a peaceful atmosphere on the days of the Chapchar Kut festival have not been made on the basis of any data, study report or input from any source or agency. Nothing has been produced by the respondents counsel to show that there will not be a peaceful atmosphere during the Chapchar Kut festival if dry days are not declared. It is only speculation sans any basis. Nothing has been produced by the respondents counsel to show that there will not be a peaceful atmosphere during the Chapchar Kut festival if dry days are not declared. It is only speculation sans any basis. The contention of the petitioners counsels that a peaceful atmosphere prevailed on the Chapchar Kut festival days in the past 3 years, even without the imposition of dry days prior to the festival days, is also not controverted or denied by the respondents counsel. 20. As stated above, dry days have been declared so as to purportedly ensure that there is a peaceful atmosphere in Mizoram for Republic Day and the Chapchar Kut festival days on 28.2.2019 and 1.03.2019. If that be the case, what was the rationale for the declaration of dry days beyond 1.3.2019 till 15.3.2019. No reason is forthcoming from the respondents. The affidavit-in-opposition is silent on this score. Further, the reason for declaring the dry days in the impugned order does not seem to be in sync with the stand taken by the respondents in their affidavit. The long and short of the respondents affidavit is that the respondents have taken a Policy decision to curb all sale and consumption of liquor in the State. Thus, declaration of dry days on the pretext of having a peaceful atmosphere on certain dates is only a facade and an attempt to indirectly impose prohibition without following the due process of law. The respondents might be doing things with the best of intentions, but the same has to be done fairly, based on relevant grounds and within the four corners of the existing valid law and not on the basis of a proposed non-existent law, which is yet to see the light of day. 21. The 2014 Act is a valid Act as on date and the Government having promulgated the Act, the respondents are bound by the 2014 Act and they cannot act in derogation or in violation of the 2014 Act. There are many manifestos made by political parties during Election time and unless those manifestos are actuated into reality by following the due process of law, the said manifestos cannot be allowed to be acted upon, in violation of an existing law. 22. Section 11 of the 2014 Act states as follows: "11. There are many manifestos made by political parties during Election time and unless those manifestos are actuated into reality by following the due process of law, the said manifestos cannot be allowed to be acted upon, in violation of an existing law. 22. Section 11 of the 2014 Act states as follows: "11. Power to declare dry days: The Commissioner may, by order declare any day, or days as dry day, or days for the whole of Mizoram to which this Act applies or for any local area comprised therein in which sale and consumption of any intoxicating liquor shall be prohibited and no liquor shop shall be opened." 23. A reading of Section 11 of the 2014 Act, clearly goes to show that the declaration of dry days has to be made by the Commissioner of Excise & Narcotics Department by exercising his mind and discretion while declaring dry days, after considering all relevant facts. 24. In the case of Union of India and Others Vs. Dinesh Engineering Corporation and Another, reported in (2001) 8 SCC 491 , the Apex Court has held that any decision, be it a simple administrative decision or a policy decision, if taken without considering the relevant facts, can only be termed as an arbitrary decision. If it is so, then be it a policy decision or otherwise, it will be violative of the mandate of Article 14 of the Constitution. It is a settled legal position that Policy decisions of the State are amenable to judicial review under Article 226 of the Constitution. In the present case, it is clear from the impugned office Order dated 14.01.2019 that the Officer, who has issued the same has not exercised his personal judgment, discretion or reason before issuing the said Order, which he ought to have done. He has only parroted the decision taken in the Council of Ministers meeting held on 10.01.2019. 25. In the case of Indian Railway Construction Company Ltd. v. Ajay Kumar, reported in (2003) 2 SCR 387 , the Apex Court has held that "the authority in which the discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, the discretion must be exercise only by the authority to which it is committed. In general, the discretion must be exercise only by the authority to which it is committed. That authority must genuinely address itself to the matter before it, it must not act under a dictates of any body or disable itself from exercising the discretion in each individual case. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations". 26. In the case of Asha Sharma Vs. Chandigarh Administration and Others reported in (2011) 10 SCC 86 , the Apex Court has held that whenever both the decision-making process and the decision taken are based on irrelevant facts, while ignoring relevant considerations, such an action can normally be termed as ''arbitrary''. The Apex Court further held that action by the State, whether administrative or executive has to be fair and in consonance with the statutory provisions and rules. Even if no rules are in force to govern executive action still such action, especially if it could potentially affect the rights of the parties, should be just, fair and transparent. Arbitrariness in State action, even where the rules vest discretion in an authority, has to be impermissible. The exercise of discretion, in line with the principles of fairness and good governance, is an implied obligation upon the authorities, when vested with the powers to pass orders of determinative nature. In view of the above, the impugned order not having been made by the respondent No. 3 on his own discretion and as the same has been made only on the basis of the decision taken by the Council of Ministers, the same is found to be arbitrary. Also, the respondent No. 3 has not taken into consideration relevant factors or applied his own mind before applying Section 11 of the 2014 Act. 27. Keeping in view the submissions made by the learned counsels for the petitioners and the respondents, with regard to the stock position, that the latest stock position and the stock position as on dated 18.01.2019 differs, this Court is of the view that this aspect of what is the latest stock position of the various bonded warehouses and in the license liquor shops can always be clarified by the Excise Department by regular inspection. The same is not germane to the issue in hand. 28. The same is not germane to the issue in hand. 28. It is settled law that whatever the Council of Ministers may say in regard to a particular matter, the same does not become the action of the State Government, till the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the State, as required under Article 166 of the Constitution. In the present case, there is nothing to show that Article 166 has been followed in toto. Assuming, whatever may be the decision of the Council of Ministers, the same, even if it is assumed to be a Policy decision, the same cannot override the provisions of a statutory law, which in this case is the 2014 Act. The State respondents should also keep in mind the fact that executive instructions cannot over-ride a Statutory law. 29. With regard to the contention of the respondents that the Excise & Narcotics Department had issued orders to registered liquor Companies requesting them not to dispatch liquor to bonded warehouses in Mizoram, this Court finds that the said orders would have to be made in pursuant to some power, which cannot be in violation of the 2014 Act or the law. When the State respondents have given permits to the bonded warehouses to lift liquor and the petitioners running the bonded warehouses have also paid taxes for the same, the State respondents would not be justified in issuing orders to the registered liquor companies not to dispatch liquor, unless the said orders are protected by law or are justified by some existing power. In the case of Union of India and Another - vs- Tulsiram Patel, reported in (1985) 3 SCC 398 , the Apex Court has held that the source of power must exist for its exercise. In the present case, the respondents have not been able to show this Court, the source of power, on the basis of which it has directed the registered liquor companies not to dispatch liquor to the bonded warehouses in Mizoram on the basis of the permits given by the State respondents. In the present case, the respondents have not been able to show this Court, the source of power, on the basis of which it has directed the registered liquor companies not to dispatch liquor to the bonded warehouses in Mizoram on the basis of the permits given by the State respondents. The State respondents by allowing the petitioners, running bonded warehouses, to import liquor on the basis of permits issued by them and not allowing them to dispose of the same as per the 2014 Act, amounts to double speak and is against the canon of justice and equity. Further, no notices were issued to the petitioners before the respondent No. 3 issued the letter dated 22.01.2019 requesting the liquor companies not to dispatch liquor. The order being in violation of the principles of natural justice as it affects the rights of the petitioners under the 2014 Act, the said letter is set aside. Similarly, the order dated 22.01.2019, by which the bonded warehouses have been informed to refund the import permits issued to them denies the petitioners the opportunity of being heard before their rights are affected. The State respondents having been aware that the present case is sub-judice, it would have been prudent on their part, not to issue further letter or orders, affecting the vested rights of the petitioners, in violation of the principles of natural justice and the 2014 Act. The above said order dated 22.01.2019 having been issued without issuing notice to the petitioners, the same is in violation of the principles of natural justice and is accordingly set aside. The order dated 22.01.2019, issued by the respondent No. 3 is made a part of the record and marked as "Annexure-X". The State Government having promulgated the 2014 Act, not only are the ordinary citizens of the State bound by the 2014 Act, but the State Government is also bound by the 2014 Act. Even if the respondents are intent on bringing in a law to prohibit the sale of liquor, the State Government is to give sufficient reasonable time to the petitioners to sell the stock already in the State of Mizoram and those that are being imported on the basis of existing valid permits issued under the 2014 Act, as the 2014 Act is still in force. 30. 30. In view of the above reasons, this Court finds that the declaration of dry days for such a long period from 15.1.2019 to 15.3.2019 is arbitrary and not justified. As this Court finds that the petitioners have made out a case for interference by this Court, the Office Order dated 14.01.2019, bearing Memo No. C.31019/1/2017 -COMEX, issued by the Commissioner of Excise & Narcotics, Mizoram is hereby set aside and quashed. 31. The State respondents shall allow the petitioners to import liquor on the basis of existing/valid permits and sell liquor as per the validity of their licenses issued under the 2014 Act in the State of Mizoram. 32. Rule 72 of The Mizoram Liquor (Prohibition and Control) Rules, 2014 states that apart from the dry days declared by the Commissioner, Sundays and National Holidays shall be dry days. As stated earlier, the dry days declared by the Commissioner cannot be an arbitrary exercise of power, but has to be based on some rational and relevant grounds/principles, by applying his discretion, which should not be violative of Article 14 of the Constitution. He must not be guided by irrelevant considerations. The State respondents are however given the liberty to declare dry days on Sundays, Central Government holidays, State Government holidays, Chapchar Kut on 28th February, 2019 and 1st March, 2019. The writ petitions are accordingly allowed.