Ajay Kumar Mittal, J. - (1.) THROUGH the present petition filed under Article 226 of the Constitution of India, the petitioner, inter -alia, impugns the order dated 18.7.2014, Annexure P. 5 passed by respondent No. 3 - Excise and Taxation Commissioner whereby L -2 Vend with Vend Code No. 222(0) owned by the petitioner has been ordered to be closed immediately at the present location and the petitioner has been directed to open the same at a location which satisfies in common parlance, the reasonable parameters of 'near to CTU Workshop'. Briefly, the facts necessary for adjudication of the controversy involved as narrated in the petition may be noticed. The petitioner is a company incorporated under the Companies Act, 1956. It is carrying on the business of retail vend of liquor in Chandigarh. It has been running the liquor vend in Kajheri Village, Sector 52, Chandigarh with effect from the year 2006. There are three L -2 vends in Industrial Area, Phase 1, namely Vend Code Nos. 186, 187 and 222 with minimum reserved price of Rs. 85,73,591/ -, Rs. 85,73,591 and Rs. 33,45,380/ - respectively. L -2 vend with Vend Code No. 186 was allotted to respondent No. 4 - M/s. HI Wines with bid amount of Rs. 87,51,000/ -. Respondent No. 4 is running the said vend at Plot No. 149, Industrial Area, Phase 1, Chandigarh. L -2. Vend with Vend Code No. 187 was also allotted to respondent No. 4 with bid amount of 1,15,51,999/ -. However, respondent No. 4 defaulted on payment of requisite 30 percent bid amount and was not running this vend and diverting the sale from the said vend to L -2 vend with Code No. 186. As a result, the revenue of Rs. 1,15,51,999/ - in respect of Vend Code No. 187 could not be materialized by respondent department. Respondent No. 4 also did not let any other person to give a tender in subsequent tenders. L -2 with Vend Code No. 222 with location mentioned as 'Near CTU workshop, Industrial Area, Phase 1, Chandigarh' could not be allotted in the first two rounds offender as the bid was not received for this vend. In the third round of tender conducted on 19.6.2014, the petitioner was the successful bidder with bid amount of Rs. 34,71,325/ -. As per site plan Annexure P. 1 of Industrial Area, Phase 1 Chandigarh, the closest location to the CTU workshop is from Plot Nos. 651 to 709. On the opposite side of the road, Plot Nos. 68 to 135 are large plots on which multiple storied buildings are constructed/are under construction. No shops are available therein. The petitioner took on rent Industrial Plot No. 653, Industrial Area, Phase 1 Chandigarh on monthly rent of Rs. 3,79,000/ - including electricity and water charges. Respondent No. 4 is running its vend at Plot No. 149, Industrial Area, Phase 1 Chandigarh located at least 1.5 kms. south of the liquor vend of the petitioner. As per site plan, the shops/sheds near the CTU workshop are in the complex where the petitioner has set up its liquor vend. The vend of the petitioner was inspected by the Excise Inspector, Chandigarh and thereafter bulk passes were issued to the petitioner. Accordingly, the vend became functional and started operating with effect from 21.6.2014. According to the petitioner, respondent No. 4 wants to be the only L -2 vendee in Industrial Area, Phase 1 and with this object in mind, respondent No. 4 personally met respondent No. 2 - Secretary, Excise and Taxation department, Chandigarh Administration and submitted undated written representation, Annexure P. 3. Thereafter inspection was done by the Excise and Taxation Inspector on 23.6.2014 and map was prepared and placed on record stating that there was no specification of distance from CTU workshop in the excise policy. The matter was considered by the Excise and Taxation Officer (ETO) and Assistant Excise and Taxation Commissioned (AETC). On 3.7.2014, the AETC recorded that respondent No. 4 was defaulter and had caused loss of 1,15,51,999/ -. Thereafter, the matter was considered by the Additional Excise and Taxation Commissioner and then by the Excise and Taxation Commissioner (ETC) who passed the order to file the application on 7.7.2014. A note was recorded on 17.7.2014 by AETC that the file was required to be put up to the Secretary, respondent No. 2. On the very next day, the same officers who had earlier ordered that the application of respondent No. 4 be filed, reversed their stand and ordered for the closure of the vend of the petitioner. The petitioner applied for and obtained the noting portion and the application submitted by respondent No. 4 under the Right to Information Act, 2005. Further, even the order dated 18.7.2014 was not being communicated, to it even though the liquor vend was shut down by Excise Inspector on 18.7.2014. Consequently, the petitioner was forced to move application dated 19.7.2014 for supply of copy of the order dated 18.7.2014. On 22.7.2014, the petitioner obtained a copy of the order from the office of AETC, Chandigarh. Hence the instant writ petition by the petitioner.
(2.) A short written statement has been filed on behalf of respondents Nos. 1 to 3 by Shri R.C. Bhalla, AETC, UT Chandigarh wherein it has been inter alia submitted that the excise policy and the rules are silent about what the expression 'near' means in terms of distance i.e., in the list of vends no distance has been prescribed to define the nearness to a particular landmark. After discussing the matter, it was concluded that the location of the disputed vend i.e. Vend No. 222 at the distance of around 900 meters away from the CTU workshop could not be said to be 'near' to CTU workshop. Accordingly, due to disparity in the license fee, the licensee of L -2 vend No. 186 i.e. Respondent No. 4 will be at a great disadvantage if the disputed vend of the petitioner was allowed to operate at its present location which was very far away from CTU workshop and was quite near to L -2 vend operated by respondent No. 4. Thus, in common parlance, a distance of around 900 meters of the vend in question from the CTU workshop could not be inferred as 'near' to CTU workshop as the said distance cannot be held to be reasonable distance to fall within the ambit of term "near". On these premises, prayer for dismissal of the petition has been made. Written statement has also been filed on behalf of respondent No. 4, inter alia, submitting that in Clause 52 of the excise policy, word 'near' has been used and the said word has been used within proximity of 50 meters. The opening of the vend by the petitioner at 900 meters from the CTU workshop is under no stretch of imagination would be termed as near. The allegation of not letting anybody else to give tender has been denied being false and incorrect. With reference to different clauses of the Excise Policy and the definition of the term 'near' in various dictionaries, the action of the official respondents was sought to be justified. In the replication to the said written statement, the petitioner has denied the averments made therein and reiterated the contents of the petition.
(3.) AFFIDAVIT dated 12.8.2014 has also been filed by AETC Shri R.C. Bhalla to the effect that on survey of the area, it has been found that the vend opened by the petitioner is located at approximately 900 meters from the main gate of CTU workshop and 700 meters from the back wall of CTU workshop. With regard to nearest location where the vend of the petitioner can be opened is approximately 650 meters from the main gate of CTU workshop and approximately 460 meters from the back wall of CTU workshop.;