CASE NO.: Special Leave Petition (civil) 7756 of 2006 PETITIONER: STATE OF U.P. AND ORS. RESPONDENT: MANOJ KUMAR DWIVEDI AND ORS. DATE OF JUDGMENT: 25/02/2008 BENCH: A.K. MATHUR & AFTAB ALAM JUDGMENT:
JUDGMENT
The following order of the Court was delivered:
1. All these special leave petitions involve a common question as to the
interpretation of sub- rule (4) of Rule 5 of the U.P. Number and
Location
of Excise Shop Rules, 1968 (hereinafter for short the “U.P. Excise
Rules”).
Since these petitions involve a common question, they were heard
together
and are being disposed of by this order. However, for convenient
disposal
of these petitions, the facts of SL P (C) No. 7756/2006 are taken into
consideration.
SLP(C) No. 7756 / 2006
2. This petition is directed against the judgment and order dated
6.4.2006
passed by the Division Bench of the High Court of Judicature at
Allahabad,
Lucknow Bench whereby the Division Bench has taken the view that the
word
“close proximity” used in sub- rule (4) of Rule 5 of the U.P. Excise
Rules
shall be meant to be 100 meters or 300 ft. (approx.). The brief facts
leading to the decision of the Division Bench of the High Court are
that a
public interest petition was filed before the Lucknow Bench of the High
Court making a grievance that liquor shops were opened in purely
residential areas in breach of the provisions of U.P. Excise Rules.
3. The said Excise Rules have been made in exercise of the powers under
clauses (c) and (f) of sub- section (2) of Section 40 of the Uttar Pr
adesh
Excise Act, 1910 (U.P. Act No. 4 of 1910) read with Section 21 of the
U.P.
General Clauses Act, 1904 (U.P. Act No. 1 of 1904). The said Sub- Rule
(4)
of Rule 5 of the Excise Rules reads as under :-
5. The following principles shall be observed in determining the
location
and the sites for shops/sub- shops:-
(4) No new shop or sub- shop shall be licensed in close proximity to a
place of public resort, school, hospital, place of worship or factory,
or
to the entrance to a bazar or a residential colony. All objections to
the
licensing of a shop or sub- shop made by persons affected, shall receive
full consideration.”
4. The Division Bench of the High Court taking note of the abovesaid
provision directed that all the licensed shops which were operating in
close proximity to a place of public resort, school, hospital, place of
worship or factory, or to the entrance to a bazar or a residential
colony
shall be closed with immediate effect. As a result of the orders passed
by
the High Court, as many as 53 liquor shops were closed in Gomti Nagar
area
of Lucknow. After hearing the parties and taking a just and fair
solution
to the problem, the Division Bench fixed the distance of 100 meters or
300
ft. (approx.) within which there shall be no liquor shop close to a
place
of public resort, school, hospital, place of worship or factory, or to
the
entrance to a bazar or a residential colony.
5. Aggrieved against the said judgment and order of the High Court, this
petition has been filed by the State of Uttar Pradesh.
6. Notice was issued in all the petition and the operation of the
impugned
judgment and order was stayed by this Court vide order dated 28. 4.
2006 .
Today the petition has come up for final disposal before us.
7. We have heard learned counsel for the parties and perused the record.
8. Sub- Rule (4) of Rule 5 of the U.P. Excise Rules deals with the
location
of Excise shop and sub- shop and shop has been defined in Rule 2(a) of
the
said Rules as under :-
“(a) “Shop” means a retail shop for vend of country liquor, foreign
liquor
and bhang.”
Rule 5 of the U.P. Excise Rules deals with the location of a shop and
the
principle which has to be observed while issuing license to a shop.
From a
plain reading of sub- rule (4) it is clear that no shop or sub- shop for
vending of country liquor, foreign liquor and bhang shall be opened in
the
close proximity to a place of public resort, school, hospital, place of
worship or factory, or to the entrance to a bazar or a residential
colony.
In case of any violation of the said Rule, if objections are received
from
affected persons, the same shall receive full consideration. Therefore
if
any shop is opened in the close proximity to a place of public resort,
school, hospital, place of worship or factory, or to the entrance to a
bazar or a residential colony then the residents of that area has a
right
to protest and the decision has to be taken by the Excise Commissioner.
Unfortunately, the tendency of the State is to ignore the Rules in
order to
augment the revenue of the State and the State indiscrimin ately opens
shops making the life of the residents of the area miserable. In fact
the
present public interest petition before the High Court was a result of
the
failure of the State Machinery to take necessary steps in the matter. If
the Excise Commissioner has taken proper care while issuing licences to
the
liquor vendors and considered the objections of the residents of the
area,
perhaps there would not have been any necessity of filing the public
interest litigation before the High Court.
9. Be that as it may, it appears that proper care was not taken while
opening shops in the close proximity of a place of public resort,
school,
hospital, place of worship or factory, or to the entrance to a bazar or
a
residential colony and that is how Sub- Rule (4) of Rule 5 came up for
interpretation before the High Court. The High Court has after taking
into
consideration the overall view of the matter opined that 10 0 meters or
30
0 ft. (approx.) would be a just measure where the shop should not be
opened
in the close proximity of a place of public resort, school, hospital,
place
of worship or factory, or to the entrance to a bazar or a residential
colony. We fully agree with the view taken by the High Court and we are
also of the view that 10 0 meters or 30 0 ft.(approx.) should be the
right
criteria were the Excise Commissioner shall not give any licence to a
shop
under the Excise Act. We hope and trust that the Excise Commissioner of
the
State shall take into consideration sub- rule (4) of Rule 5 of the U.P.
Excise Rules and see that no shops or sub- shops are opened within
radius
of 10 0 meters or 30 0 ft. (approx.) of a place of public resort,
school,
hospital, place of worship or factory, or to the entrance to a bazar or
a
residential colony. The interpretation of the word “close proximity” was
vague therefore it was misused by the authorities. But, now the matter
has
been placed beyond any vagueness. Therefore, with the interpretation of
the
expression “close proximity” by the High Court, the matter has been put
in
the right perspective and the doubt has been cleared. Therefore, taking
into consideration all the facts and circumstances of the case, we
affirm
the view taken by the High Court insofar as fixing the distance of 10 0
meters or 30 0 ft. (approx.) from a place of public resort, school,
hospital, place of worship or factory, or to the entrance to a bazar or
a
residential colony where no shop or sub- shop shall be opened under the
U.P. Excise Act and Rules framed thereunder.
10. However, we do not approve of the approach of the High Court in
closing
the shops without issuing notice to the affected parties. This should
not
have been done. Since the operation of the impugned judgment and order
was
stayed by this Court, these shops have continued to operate. We direct
that
the interim order dated 28. 0 4 . 2 0 0 6 passed by this Court under
which
these shops are operating, shall continue to operate till 31. 3. 2 0 0 8
and after that no shops or sub- shops under the U.P. Excise Act shall be
opened or continue to open within a radius of 10 0 meters or 30 0 ft.
(approx.) of a place of public resort, school, hospital, place of
worship
or factory, or to the entrance to a bazar or a residential colony. All
the
shop owners or sub- shop owners shall close their shops on or before
31. 3.
2 0 0 8 if they are within a radius of 10 0 meters or 30 0 ft.
(approx.) to
a place of public resort, school, hospital, place of worship or
factory, or
to the entrance to a bazar or a residential colony. As there is
sufficient
time, the shop owners or sub- shop owners shall make necessary
arrangement
to shift their shops. If these shops are not closed after 31. 3. 2 0 0 8
the Excise Commissioner of the State shall see to it that the said shops
are closed and no fresh licence or renewal shall be made of a licence if
they are operating in prohibited area.
11. With the abovesaid observations, this special leave petition is
disposed of.
SLP (C) No. 8016 / 2006, SL P(C) No. 8022 / 2006 and SLP (C) No. 7684 /
2006
For the reasons mentioned in SLP (C) No. 1678 / 2006, these petitions
also
stand disposed of in the same terms.