JUDGMENT
N.C. Kochhar, J.
1. The facts giving rise to this writ petition are as under–The respondent No. 4 is a restaurant at Bhagwan Das Road, Jaipur. The said respondent applied for grant of licence for serving of beer (beer bar licence) to the customers for consumption in the restaurant. Licence dated 26.9.95 (Annex. 7) was granted by the Excise Commissioner, Rajasthan, Jaipur (respondent No. 2) to the respondent No. 4. Saint Soldier Public School, the petitioner herein, has filed this writ petition with the allegations that the petitioner is a Senior Higher Secondary School and that in the vacinity there are Saint Xavier’s Senior Higher Secondary School, Saint Annes Public School, Mahavir Digamber Senior Higher Secondary School, Merry Lands School, Rajdhani Hospital and a hostel for boarding of destitute students and that the licence (Annex. 7) should not have been granted to the respondent No. 4 and it has been prayed that the licence issued to the respondent No. 4 be quashed and respondents No. 1 to 3 be restrained from issuing any beer bar licence to the respondent No. 4 at the place in question. The writ petition has been opposed by the respondents.
2. I have heard the learned Counsel for the parties and have also perused the record of the case.
3. Before dealing with the contentions raised by the learned Counsel for the parties it may be appropriate to deal with the provisions made in the Rajasthan Excise Act, 1950 (the Act) and the Rajasthan Excise Rules, 1956 (the Rules) made by the State Government in exercise of the powers vested in it under Section 41 of the Act. Section 4 of the Act empowers the State Government to declare any substance to be liquor for the purposes of the Act or any portion thereof and for that purpose, also declare what shall be deemed to be “country liquor” and “foreign liquor” and these declarations can be made by issuing notifications to be published in the official Gazette. Vide notification No. F. 49(8) dated 15.2.1957 (S.R. 53), the State Government has defined the ‘foreign liquor’ as under:
2. Foreign liquor
(a) All liquor imported into India;
(b) Liquor made in India and sophisticated or coloured so as to resemble in flavour or colour liquor imported into India;
(c) Liquor made in India which has been blended or compounded with liquor imported into India;
(d) Beer made in India, or imported beer;
(e) All absolute alcohol, rectified or perfumed or mediouted spirit whereever made.
4. Rule 75 of the Rules, as amended vide GSR 51 and mentioned in the notification No. F. 1(16)FD/EX/91 dated 27.2.1992, reads as under:
75. Location of shops:
(1) A licensee for the retail sale of Country Liquor, Foreign or Indian Made Foreign Liquor or hemp drugs shall have his shop only at a place approved by the District Excise Officer concerned.
(2) A shop for the retail sale of Country Liquor or Indian Made Foreign Liquor shall not be located within a radius of 200 maters of Collegiate Educational Institution, Senior Higher Secondary School, Hospital, Place of Worship or Place of Public Entertainment, a Factory or a Labour or Harijan Colony, Railway Station or Bus Stand approved by Rajasthan State Road Transport Corporation or the appropriate Local Authority, as the case may be.
(3) A retail shop shall not be shifted from one place to another without the prior permission of the District Excise Officer concerned.
(4) The District Excise Officer, with sufficient reasons to be recorded in writing, shall have the powers to shift a shop from one place to another and no compensation shall be given to the licencee for such shifting of a shop.
Provided that the Excise Commissioner may grant relaxation in the above conditions of location of a Liquor shop in exceptional circumstances with the prior approval of the State Government after recording sufficient reasons in writing for doing so.
EXPLANATION
(1) For the purpose of Sub-rule (2) of Rule 75, the restrictions about the distance of a shop from a “Race of Worship in the cities having a population of more than one lac shall only be applicable in respect of those places of worship catered in the list maintained in the office of the District Excise Officer.
(2) Harijan Colony shall mean a Municipal Ward in which population of persons belonging to Scheduled Castes according to the latest census exceeds fifty percent of the total population of that ward.
(3) Any shop situated near an Educational Institution other than a College or a Senior Higher Secondary School level Institution shall be opened only atleast one hour after the closing time of that Institution.
(4) Restrictions about the distance of a shop from Railway Station and Bus Stand shall be applicable from 1st April, 1993
5. It is not in dispute before me that the beer is included within the definition of ‘foreign liquor’ in view of the notification mentioned above. The bare reading of Rule 75 of the Rules makes it clear that no retail shop of any Country liquor or Indian Made Foreign Liquor can be allowed to be situated within the radius of 200 meters from Senior Higher Secondary School and other Institutions mentioned in Sub-rule (2) of Rule 75 of the Rules.
6. The contention of the learned Counsel for the respondents is that the licence was granted to the respondent No. 4 for sale and consumption of the beer in the restaurant and a condition was imposed vide letter dated 26.9.1995, issued on the same date when the licence was granted, directing the respondent No. 4 not to open the beer bar during the school hours i.e. between 7.00 A.M. to 2.00 P.M. and also to keep the beer bar closed on such days when any school function is held by the petitioner-school and or by the Saint Xavier’s School.
7. It is not in dispute before me that the respondent No. 4 restaurant is being run within the radius of 200 meters from the petitioner-school, which is, admittedly, a Senior Higher Secondary School and also that the same is the position in regard to Saint Xavier’s Sr. Secondary School situated in the vacinity. Sub-rule (2) of Rule 75 of the Rules creates a total bar on the location of a shop for retail sale of country liquor or Indian Made Foreign Liquor i.e. including beer within a radius of 200 meters of Senior Higher Secondary School. It is only under Sub-rule (3) of Explanation of Rule 75 of the Rules where educational institutions other than a College or a Senior Higher Secondary School level institution is situated that the licence can be granted with the condition of opening of the shop atleast one hour after the closing time of the institution.
8. Once it is admitted that the petitioner is a Senior Higher Secondary School as is the position of Saint Xavier’s Sr. Higher Secondary School and that the respondent No. 4 is situated within the radius of 200 meters, it has to be held that no licence for sale of the beer could be granted to the respondent No. 4 in terms of Sub-rule (2) of Rule 75 of the Rules. No condition of the type mentioned at the time of the arguments by the learned Counsel for the respondents has been incorporated in the licence (Annex. 7) and, even otherwise, in the present case, the licence could not have been issued even by prescribing such condition therefore as there is total bar in this regard in view of Sub-rule (2) quoted above.
9. The rules have been framed after taking into consideration the effect of liquor shops on the students studying in Senior Higher Secondary Schools and Colleges and no violation of the rules can be permitted in granting licences for liquor shops. In view of this position, the grant of licence to the respondent No. 4 for running a beer bar at the place in question is against the rules and is illegal and has to be quashed and there is no reason why the respondents should not be restrained from issuing licence for running beer bar to the respondent No. 4 at the place in question.
10. Consequently, the writ petition is allowed, licence dated 26.9.1995 (Annex. 7) is quashed and the respondents No. 1 to 3 are directed not to issue any licence to the respondent No. 4 or to any one else whose shop is situated within the radius of 200 meters from the petitioner-school or any other Senior Higher Secondary School or any other institution mentioned in Sub-clause (2) of Rule 75 of the Rules.
11. The writ petition stands disposed of accordingly.