- (1.) Petitioner-Defendant No.5 has filed the present revision petition against the impugned orders dated 26.05.2016 and 11.05.2016 passed by the Courts below, whereby, suit instituted at the instance of the respondentplaintiffs claiming relief of mandatory injunction directing the defendants to measure 'To' and 'Fro' motorable distance between the location of L-2 Liquor Vend of the plaintiffs located in Phase-V, Udyog Vihar, Gurgaon and marked by letters ABCD in the annexed site plan as well as the distance of L-2 Liquor Vends located at Moulsary Avenue, DLF Phase-III, Gurgaon and village Nathupur U-Block, DLF Phase-III, Gurgaon and marked by letters EFGYH and IJKL respectively in the aforesaid site pan, from DLF Cyber Hub in accordance with applicable Excise Policy after giving prior notice to them and consequential relief of permanent injunction restraining the defendants from acting upon in any manner the measurements allegedly conducted on 12.04.2016 with a further direction to the defendants restraining them from issuing any permit or granting any sanction on the basis of the aforesaid measurement in favour of L-2 Liquor Vends located at Moulsary Avenue, DLF Phase- III, Gurgaon and village Nathupur U-Block, DLF Phase-III, Gurgaon. Mr. Chetan Mittal, learned Senior Counsel assisted by Mr.Abhilaksh Grover, Advocate appearing on behalf of petitioner/defendant No.5 submits that the order dated 26.05.2016 passed by the Lower Appellate Court dismissing the miscellaneous appeal of petitioner/defendant No.5 filed against the order dated 11.05.2016 of the trial Court, whereby, an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure (hereinafter referred to as "CPC") at the instance of the respondentplaintiffs has been allowed in the form of mandatory injunction. He further submits that the entire controversy in the present suit is in respect of Clause 9.8.9 of the Excise Policy of Haryana State for the year 2016-17, whereby, the rights to supply were given to the two (2) nearest retail outlets of IMFL L-2 bar licenses located nearby. The grievance of the plaintiff before the Court was that he was not given an opportunity in implementation of the aforementioned clause of the policy while effecting the measurement for the purpose of supply of IMFL from L-2 to the bar licensees, in essence, procurement of stock of liquor/IMFL by the Bar & Restaurants/Eating Joints having L-4/L-5 situated at DLF Cyber Hub. In support of his aforementioned contention, he relies upon Clause 9.8.9 of Excise Policy, copy of which has been attached which reads thus:- "9.8.9 Procurement of Stock: Bar licensees, L-4/L-5/L-12C/L-12G, shall be allowed to get their supplies from any two nearest retail outlets of IMFL (L-2) of the district in which L-4/L-5/L-12C/L-12G license(s) is/are located. However,if these two L-2 either belong to the same person/group or make a cartel to exploit the situation, then they can procure liquor from a third nearest L-2 of different person/group as approved by the DETC (Excise). The collector may fix rates whenever necessary. In case costly brands above Rs.500 per bottle or wines are not made available to L-4/L- 5/L-12C/L-12G by L-2 licensee of the district then the bar licensee can make a written request to the DETC (Ex.) concerned. The DETC (Ex.) after obtaining a non-availability certificate from the L-2 concerned, shall be required to make requisite arrangement for supply of such brands from any other L-2 of the district or from any other L-2 of the State in case it is not available in the district. L-2 vend can charge upto 1-% profit on his sale to L-4/L-5 after taking into account his purchase price and incidence of license fee or the retail sale being charged by the L-2, whichever is less. In case, L-2 charges exorbitant rates from bars ( L-4/L-5/L-12C/L-12G, L-10E), collector may determine the reasonability of rates and pass an appropriate order keeping in view the EDP rates of the brands, all Government levies and incidence of the retail outlet and his profit margin. The charging of exorbitant rate by L-2, more than the rates prescribed above, shall constitute a breach case against the licensee. The Collector may compound such breaches by imposing a penalty of not less than Rs.50,000/- for the first breach and double the amount of previous breach for subsequent breaches. Note: In determining the nearest vends, the sum of 'To' and 'Fro 'motorable distance between the location of the licensee and the L-2 vend shall be the criterion."
(2.) He further submits that interim measure in the suit seeking the aforementioned relief, on an application filed by the petitioner, the trial Court, vide order dated 22.04.2016 (Annexure P-7), passed the following order which reads thus:- "After having heard the arguments advanced by Ld. Counsel for plaintiffs and learned GP for defendants, this Court is of the considered opinion that no doubt compliance of clause 9.8.9 of Excise Policy is mandatory in nature and in order to implement the same, DETC Gurgaon Haryana constituted a committee who gave his report. Ld. Counsel for plaintiff argued that said report is prepared at the back of plaintiff and same was prepared just to give benefit to L-2 Maulsary Avenue. From the perusal of the annexure 21-38, it transpires that all the restaurants/food chains situated at Cyber Hub Gurgaon gave their undertaking that for the requirement of stock of liquor, they exit from exit road of (Parking 1 or parking 2 or N.H No.8) for getting permit sanctioned by concerned authorities of excise and after getting the stock from unauthorized L-2 with permit, they enter from gate no.3 of cuber hub. The defendants also placed on file a letter signed by authorized signatory of DLF Cyber City Developers wherein it is mentioned that gate no.3 adjacent to parking no.2 is authorized for entering and exit of vehicles engaged by the respective L-4/L-5 licences or delivering liquor to their premises at Cuber Hub Gurgaon. It is clear from report Annexure 40 that measurement from Nathupur, Maulsary Avenue, Udyog Vihar-IV from Cyber Hub Gurgaon not done in the presence of plaintiffs who are going to affect from said measurement/report annexure-40. So, for the purpose of proper adjudication and fair trial, it is ordered that DETC excise Gurgaon shall constitute a committee including one ETO who shall prepare his report regarding determining the nearest vend, the sum of 'To' and 'Fro' motorable distance between locations and licences and L-2 vends. At this stage no interim injunction is passed in favour of plaintiff and it would be appropriate to pass any interim relief after receiving the report from DETC Excise Gurgaon regarding distance. It shall made clear that abovesaid report shall be prepared by giving prior notice to the plaintiffs and in their presence. Report of DETC Excise Gurgaon is awaited for 28.04.2016. If report not submitted by DETO Excise Gurgaon, on the date fixed, then interim injunction be decided on the date fixed."
(3.) He submits that as per the order, the official defendants presenting the department placed on record a letter signed by authorised signatory of DLF Cyber City Developers Ltd. mentioning therein that gate no.3 adjacent to parking no.2 is authorised for 'Entering' and 'Exit' of vehicles engaged by the respective L-4/L-5 licences for delivering liquor to their premises at Cyber Hub Gurgaon and keeping in view the fact that earlier measurement recorded in the report dated 12.04.2016, was not done in the presence of the plaintiffs and ordered that DETC Excise Gugaon to constitute a committee including one ETO who shall prepare the report regarding determining the nearest vend, i.e., the sum of 'To' and 'Fro' motorable distance between locations of licences and L-2 vends. The aforementioned committee conducted the inspection and submitted the report dated 27.04.2015 and gave the details of distances which read thus:- JUDGEMENT_153_LAWS(P&H)8_2016.html He has further drawn the attention of this Court to submit that authorised representatives of the respondent-plaintiffs had raised objection on the measurement criteria by stating that Gate No.3 is being used for entry of material or liquor as per DLF report and 'To' and 'Fro' does not mean common point for measurement and thus, it should be measured from the Exit Gate near parking no.1 as starting point. Against the aforementioned report, (Annexure P-9), the respondent-plaintiffs moved an application dated 28.04.2016 (Annexure P-10) by making prayer that the concerned official of the departments be asked to measure the motorable distance of the L-2 Vend of the plaintiffs located in Udyog Vihar, Phase V, Gurgaon marked by letters 'ABCD' in the site plan appended with the plaint and as well as, two other L-2 Liquor Vends located at Moulsary Avenue, DLF Phase-III, Gurgaon and village Nathupur U-Block, DLF Phase III, Gurgaon marked by letters 'EFGH' and 'IJKL' respectively, from the Exit Gate of Parking 2 and Exit gate of parking one and exit gate of National Highway Number 8 (NH8). He further submits that the aforementioned application was contested by the petitioner-defendant and the trial Court, vide order dated 3.5.2016 (Annexure P-12), disposed of the application by holding that it would give a clear picture, in case, distance of all three L-2 from Cyber Hub is mentioned for the purpose of adjudication of the controversy, resultantly, the DETC Excise Gurgaon was again directed to constitute a committee excluding the members, who already prepared and submitted report dated 28.04.2016 shall shall also consist of one ETO in the Committee and measurement of all gates of Cyber Hub from all three L-2s was ordered to be done under videograph expenses to be borne by the plaintiff. The report of measurement was submitted by the aforementioned Committee, vide its report 5.5.2016 (Annexure P-13) and the chart giving details of the 'To' and 'Fro' distances in kilometers (kms). He further submits that even as per the aforementioned chart, the distances for Nathupur U Block Vend, 'To' and 'Fro' Entry Material Gate No.3 and Exit Material Gate 3 are considered as same as these gates are adjacent /next to each other is far less than that of plaintiff is 3.7 and 3.67 k.ms vis-a-vis of plaintiff which is 4.1. Despite the aforementioned report, the trial Court did not refer to the same report and implore and its own guess work while passing the impugned order ignoring the contents of the letter dated 21.04.2016 (Annexure P-8)) wherein it has been specifically mentioned that handling and transportation of liquor shall be done solely by respective L-4 and L-5 licensees and that gate no.3 adjacent to parking no.2 is authorized for entry and exit of vehicles engaged by respective L-4/L-5 licensees for delivering liquor to their premises at DLF Cyber Hub, Gurgaon. Despite the aforementioned fact and the letter written by the DLF Cyber City Developers Limited to the Deputy Excise and Taxation Commissioner (Excise), Gurgaon, the application of the respondentplaintiffs was allowed and even the report dated 5.5.2016 has not been taken into consideration for the purpose of 'Entry' and 'Exit' of the vehicles from gate No.3, the distance of L-2 license of the petitioner is the nearest to L4/L-5 licensees located at DLF Cyber Hub, Gurgaon. He further submits that the Courts below instead of adhering to the report of the committee had gone into arena of surmises and conjectures by introducing the expression "common sense". In this regard, he had drawn the attention of this Court to para No.13 of the order passed by the Civil Judge (Junior Division), Gurgaon. The same reads thus:- "From the above said certificates it is clear that gate no.3 is material gate and used by the L-2 Vendors and L-4/L-5 licences for the purpose of entry. It is not disputed that in order to ascertain the two nearest liquor vends "'To' and 'Fro'motorable distance" has to be considered and it is also not disputed that "To and fro" is not defined in Excise Policy 2016-2017 so it is well settled law that when any thing is not defined in Act/Statute/Policy then "common sense" will prevail. In the case in hand there are many gates of DLF Cyber Hub and it is common sense that one person entered from a particular gate should not exit from same gate if others gates are available. In the case in hand there are three exit gates as per the reports of defendants no.1 to 4 so gate no.2 is taken as material gate for the purpose of entry of Liquor for supply of L-4/L-5 licenses or by L-4/L-5 licenses and thereafter loading/unloading they can be exist from any of three (Exits) gates.";