IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 24-07-2009 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN WRIT PETITION No.6593 OF 2009 The Headmistress & Correspondent, Jayarani High School, 196, Lal Bahadur Street, Puducherry-1. ... Petitioner -vs- 1.The Union Territory of Puducherry, represented by its Chief Secretary, Puducherry. 2.The Collector, Government of Puducherry, Puducherry. 3.The Deputy Commissioner, Excise Department, Puducherry. 4.M/s.Deekay Exports Ltd. ... Respondents Petition under Article 226 of the Constitution of India. For petitioner : Mrs.Chitra Sampath For respondents 1 to 3 : Mr.T.Murugesan, Sr.Government Pleader, Pondicherry. For respondent 4 : Mr.V.T.Gopalan, Senior Counsel, for M/s.Radha Gopalan. O R D E R
Petitioner has filed this petition, praying for issuance of a writ of mandamus, to forbear the respondents 1 to 3 from permitting the fourth respondent to utilize the premises at Door No.219, Lal Bahadur Sastry Street, Puducherry, for vending of liquor under F.L.1 Licence or F.L.2 Licence, as the case may be, and for a consequential direction to the respondents to shift the liquor shop, if licence stands already granted, to any other place outside the limit of 300 metres of the petitioner school.
2. According to the petitioner, it is a school, run exclusively for girls and more than 300 students are being educated therein; the school has its repute of 100% pass of 10th students and won shield of honour from the Lieutenant Governor of Puducherry and is 70 year old; there were rumours that the respondents were considering a request of one of the manufacturers of liquor for the grant of licence to sell liquor in the premises situated right opposite to the school premises; on coming to know of the same, the petitioner had sent her objections to the grant of licence in favour of the fourth respondent, who is alleged to have submitted an application, for shifting its liquor shop from its distillery unit to the premises at Door No.219, Lal Bahadur Sastry Street, Puducherry, by a letter dated 02.02.2009, which were not considered, and that the licence is granted in favour of the fourth respondent and the shop is likely to be opened any time.
3. It is the further case of the petitioner that as per the Pondicherry Excise Rules, 1970, (in short, “the Rules”), there are limitations in regard to the location of the liquor shops in so far as retail vending of liquor by using the premises of the licensee for consumption of liquor; the conditions are incorporated in the form F.L.2 granted to the licensee, as per which, liquor shops should not be located within 300 metres of any educational institution, religious institution, public places etc., which condition was intended to ensure that consumption of liquor by any person in the licensed premises does not become a source of nuisance to the public at large when he emanates from the shop after consumption and that if such shops are located near schools and colleges, it would pose imminent danger to the security and safety of the student community.
4. The case of respondents 1 to 3 is that the fourth respondent, who is a holder of F.L.1 Licence, applied for shifting their wholesale shop to Door No.219, Lal Bahadur Sastry Street, Puducherry; on receipt of application, the third respondent, after due inspection of the premises, obtained the approval of the Excise Commissioner and the Minister for Excise on 12.01.2009 and 19.01.2009 respectively; after receipt of approval for shifting the F.L.1 licensed premises, a fee of Rs.75,000/-, as required under Rule 209 of the Rules, was paid by the fourth respondent, pursuant to which, permission for shifting the premises, was issued to the fourth respondent on 27.02.2009, but the objection from the petitioner school was received only on 02.02.2009, much after the approval and payment of necessary fee for shifting; the fourth respondent proposed to open a sales counter in retail in Bharathi Street, which is perpendicular to Lalbahadur Sastry Street; since the building is situated at the junction of the above two streets, the opening of sales counter facing Bharathi Street will not be a hindrance to the school going children and that the condition regarding the location and distance of the licensed shop incorporated in F.L.2 Licence is not applicable to F.L.1 Licence.
5. The stand of fourth respondent is that F.L.1 Licence was granted to them as early as 12.08.2008; there is no liquor shop just opposite to the petitioner school; this respondent applied to the respondents 1 to 3, seeking permission for shifting of their licensed premises from R.S.No.99/2, 3 & 6, Cuddalore Main Road, Madukarai, Puducherry, to the premises in question and, following Rule 209, the said shifting was permitted on 27.02.2009, from which date the respondent has been carrying on business; this respondent has spent huge amount in furnishing the shop; the premises is a huge building and it extends to 72 feet in the Bharathi Street; the business is being carried on only at the southern end of the building and such sale of liquor in wholesale in accordance with F.L.1 Licence will, in no way, cause prejudice either to the school or to its students and in view of the passing of injunction order by this Court on 22.04.2009, the entire business of this respondent has come to a standstill and stocks worth Rs.15.00 lakhs are lying in the said premises and that the petitioner is only the instrument ventilating the grievance of one Anandathu Brandy, which is carrying on business in the same Bharathi Street a few shops away from the sale counter of this respondent. Accordingly, he prayed for vacating the interim injunction and dismissing the Writ Petition.
6. The contentions of the learned counsel for the petitioner are : the institution is 70 year old and is being run without any hindrance so far; any activity of the respondents should conform to public interest, welfare and safety; as per the directive principles of state policy, as enshrined under Article 47of the Constitution, it is the obligation on the part of the respondents to restrict trade in liquor while locating the place of business; though it fetches revenue to the Government, the Government cannot do anything subverse to public interest and that the objection of the petitioner, dated 02.02.2009, though was placed before the respondents before granting approval, was not considered in accordance with the rules. The learned counsel has relied upon the following decisions :
(i) State of Maharashtra v. Nagpur Distilleries, Nagpur, 2006 AIR SCW 2399 :
“9…. This factual distinction apart, we have to keep in mind that the right to trade in liquor is only a privilege framed out by the State. Article 47 of the Constitution of India clearly casts a duty on the State at least to reduce the consumption of liquor in the State gradually leading to prohibition itself. It appears to be right to point out that the time has come for the States and the Union Government to seriously think of taking steps to achieve the goal set by Article 47 of the Constitution of India. It is a notorious fact, of which we can take judicial notice, that more and more of the younger generation in this country is getting addicted to liquor. It has not only become a fashion to consume it but it has also become an obsession with very many. Surely, we do not need an indolent nation. Why the State in the face of Article 47 of the Constitution of India should encourage, that too practically unrestrictedly, the trade in liquor is something that it is difficult to appreciate. The only excuse for the State for not following the mandate of Article 47 of the Constitution is that huge revenue is generated by this trade and such revenue is being used for meeting the financial needs of the State. What is more relevant here is to notice that the monopoly in the trade is with the State and it is only a privilege that a licensee has in the matter of manufacturing and vending liquor.”
(ii) Ashok Lanka v. Rishi Dikshit,2006 (9) SCC 90 :
“24.When a law is made, having regard to the phraseology used in Part IV of the Constitution, it is expected that law made or actions taken would be in furtherance thereof. In terms of the directive principles of State policy, the State is bound to make endeavours to promote public health which is one of primary duties of the State. One important component of the said directions is regulation and control over the trade in intoxicating drinks so as to enable the State to curb or minimise, as far as possible, the consumption thereof. The State may or may not prohibit manufacture, sale or consumption of liquor but it is vital that while parting with its exclusive privilege to deal with intoxicating liquor, the provisions of the Act and the Rules for which the same had been enacted must be strictly complied with.”
“25. The Act and the Rules deal only with control and regulations. There is no provision which gives any discretion to the authorities concerned to relax the provisions of the Rules. The Rules in this behalf again must be framed upon taking into consideration of all relevant factors. The State in making rules and formulating the policy decisions must be guided by public interest. In such matters, the State has a positive obligation to ensure that any activity contemplated, strictly conforms to the requirements of public good and it is not otherwise derogative of public health. The State parts with its exclusive privilege on certain statutory conditions such as payment of excise fee. When it lays down criteria for selection of persons who would become qualified for grant of licence under the Act, not only the eligibility criteria therefor should be laid down, but having regard to its past experience as to how and in what manner, the licensees find means and methods to circumvent the said provisions, all endeavours should be made to plug all loopholes. The State has an extremely solemn obligation to fulfil in that behalf. All information supplied by the applicants for licences, thus, must undergo and satisfy the “strict scrutiny test”. The State should not treat its right of parting with its privilege only as a means of earning more and more revenue. It may certainly earn revenue but only upon fulfilment of its constitutional and statutory obligations. There exists a strong underlying notion of public health and welfare when the matter comes to retention of the exclusive privilege and/or parting therewith in whole or in part.”
“76….We would, however, expect the State and its officers to scrupulously follow the constitutional mandate in future. It was with this intention we have dealt with these matters in some detail.”
“77.We hope and trust that the State of Chhattisgarh and its authorities would not commit the same mistakes in the coming years keeping in mind the mandate of Article 47 of the Constitution and scrupulously observe the Rules for disposal of liquor shops.”
(iii) State of U.P. v. Manoj Kumar Dwivedi, 2008 (4) SCC 111:
“10. 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 100 m or 300 ft (approximately) 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.”
“11. We fully agree with the view taken by the High Court and we are also of the view that 100 m or 300 ft (approx.) should be the right criteria where 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 a radius of 100 m or 300 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 100 m or 300 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 is concerned where no shop or sub-shop shall be opened under the U.P.Excise Act and the Rules framed thereunder.”
7. Per contra, learned Government Pleader appearing for respondents 1 to 3 has argued that the licence in question is F.L.1 Licence and the respondents have to perform the legal duties while considering the grant of licence or permission in accordance with the statutes and the rules contemplated and, therefore, there is no infraction of the rules while granting licence so also permission to the fourth respondent, for shifting the licensed premises.
8. In similar lines, learned Senior Counsel for the fourth respondent would contend that there is no liquor shop just opposite to the petitioner school; original licence was granted on 12.08.2008 and now the shifting has been made as per Rule 209; the authorities, after considering the application for shifting the licensed premises in accordance with the rules contemplated, directed the fourth respondent to remit the fee, which was paid accordingly and that after the grant of permission only, the fourth respondent is running the business and so far no complaint has been made by any public except the petitioner. The learned Senior Counsel has cited the following authorities :
(i) Ashok Lanka v. Rishi Dixit, 2005 (5) SCC 598 :
“3.The trade in country/foreign liquor is said to be res extra commercium. A citizen does not have any fundamental right to deal therewith. The State alone has the exclusive privilege to deal in liquor from manufacture to distribution and from sale to consumption. It is for the State to part with its exclusive privilege for a price which is loosely called as “excise duty”. The power of the State to control and regulate the trade in liquor is envisaged under Entry 8 List II of the Seventh Schedule of the Constitution. It may also impose excise duty as also countervailing duty in exercise of its legislative power under Entry 51 List II of the Seventh Schedule of the Constitution.”
“74.Undoubtedly, the State has the exclusive privilege to deal in liquor but it has also to be borne in mind that it has a constitutional and legal duty to safeguard the public interest and public health. The conditions for grant of licence as laid down in the statute are required to be observed only with a view to subserve the constitutional goal and not to subverse the same.”
“87. …The State while exercising its power of parting with its exclusive privilege to deal in liquor has a positive obligation that any activity therein strictly conforms to the public interest and ensures public health, welfare and safety. Strict adherence to the requirement to comply with the statutory provisions must be considered from that angle.”
“90…(ii) Irrespective of the format prescribed by the Commissioner of Excise, each of the selected candidates must file an appropriate affidavit, which would be in strict compliance with the requirement of Rule 9.”
(x) We direct the Chief Secretary of the State and the Commissioner of Excise to act swiftly in accordance with law and observe the functioning of the Scrutiny Committees.”
(ii) Narmada Bachao Andolan v. Union of India , (2000) 10 SCC 664 :
“233. At the same time, in exercise of its enormous power the court should not be called upon to or undertake governmental duties or functions. The courts cannot run the Government nor can the administration indulge in abuse or non-use of power and get away with it. The essence of judicial review is a constitutional fundamental. The role of the higher judiciary under the Constitution casts on it a great obligation as the sentinel to defend the values of the Constitution and the rights of Indians. The courts must, therefore, act within their judicially permissible limitations to uphold the rule of law and harness their power in public interest. It is precisely for this reason that it has been consistently held by this Court that in matters of policy the court will not interfere. When there is a valid law requiring the Government to act in a particular manner the court ought not to, without striking down the law, give any direction which is not in accordance with law. In other words the court itself is not above the law.”
9. I have heard the learned counsel for the parties and also gone through the records as well as the citations.
10. The one and only grievance of the petitioner is that her representation, dated 02.02.2009, raising objections for shifting of the liquor shop by the fourth respondent from R.S.No.99/2, 3 & 6, Cuddalore Main Road, Madukarai, Puducherry, to Door No.219, Lal Bahadur Sastry Street, Puducherry, was not considered by the respondents 1 to 3 under Rule 115 of the Rules, while granting permission.
11. In this context, it is to be stated, that, originally, the licence was granted to the fourth respondent to run a liquor shop at R.S.No.99/2, 3 & 6, Cuddalore Main Road, Madukarai, Puducherry on 12.08.2008. Thereafter, pursuant to the application submitted by the fourth respondent for shifting the shop, the third respondent, after due inspection of the premises, obtained approval of the Excise Commissioner on 12.01.2009 and the Minister for Excise on 19.01.2009. After the said approval for shifting the premises, a fee of Rs.75,000/-, as required under the Rules, was paid by the fourth respondent. It was only thereafter, on 27.02.2009, permission was accorded to the fourth respondent under Rule 209, for shifting the shop from R.S.No.99/2, 3 & 6, Cuddalore Main Road, Madukarai, Puducherry, to Door No.219, Lal Bahadur Sastry Street, Puducherry. However, objection from the petitioner was received by the respondents only on 02.02.2009, much after the approval and payment of necessary fee.
12. Rule 115 deals with Grant of Licence, as per which, on receipt of the application, the Licensing Authority, if satisfied that there is no objection to grant the licence applied for, may, with the previous sanction of the Excise Commissioner or the Government, grant the licence on payment of necessary fee.
13. In this case, the licence was granted to the fourth respondent much earlier on 12.08.2008 and what was sought for by the fourth respondent was only permission for shifting the licensed premises. More importantly, what is issued to the fourth respondent is F.L.1 Licence, which is governed by Rule 113 (1), which runs thus :
“(1) F.L.1 Licence:- The holder of this licence shall be permitted to sell foreign liquor or Indian liquor, or both in quantities of not less than 9 litres of sealed or capsuled bottles (Qts.of 12 bottles Pts.of 24 bottles and Nips of 48 bottles) at any one time and in any single transaction to any other licensee under this chapter and also in sealed or capsuled bottles in quantities not exceeding 6 quart bottles of all liquors other than beer (4.5 litres) and 12 quart bottles of beer (9 litres) at any one time and in any single transaction to an unlicensed person. But he shall not allow the consumption of the liquor at the licensed premises.”
This rule speaks to the effect that consumption of liquor at the licensed premises is not allowed.
14. On the other hand, Rule 113 (2) (i), with reference to F.L.2 Licence, reads as follows :
“the licensed premises shall be 300 metres away from public places, educational institutions or religious establishments as far as possible.”
This rule applies only to F.L.2 Licence, which deals with liquor shop with bar attached and is meant for consumption in the premises.
15. The rules pertaining to F.L.1 Licence and F.L.2 Licence are distinct and based on the purpose for which the licence is issued. Hence, the provisions of one licence cannot be read into another.
16. The fourth respondent, by virtue of grant of F.L.1 Licence, dated 12.08.2008, can sell liquor only in wholesale and retail and there shall not be consumption of liquor, as in the case of Bar. Condition No.7 of the conditions incorporated in the licence also categorically states “no liquor shall be allowed to be consumed in the licensed premises”.
17. It is not the case of the petitioner that the fourth respondent has indulged in violation of any of the terms and conditions of the licence and that liquor is consumed inside the premises. Further, in this case, the location of the shop beyond 300 metres, as prescribed in the rules in respect of F.L.2 Licence, is not a matter for concern, as the fourth respondent is a holder of F.L.1 Licence under Rule 113 (1), which does not contemplate any such restriction. Therefore, in the absence of any allegation that there is consumption of liquor in the premies contrary to the provision of F.L.1 Licence, by no stretch of imagination, it can be stated that the fourth respondent has violated the rules. In other words, the fourth respondent is carrying on business, strictly adhering to the terms and conditions of the licence.
18. It is also not the case of the petitioner that the consumers of liquor are squatting in front of the premises of the petitioner and that while granting licence to the fourth respondent, the respondents have given a go-by to the Rules. In view of the specific provision contained in the rule relating to F.L.1 Licence, the contention of the petitioner that the stipulations pertaining to F.L.2 Licence should also be made applicable to F.L.1 Licence is untenable.
19. Since the licence at the first instance and thereafter permission for shifting the licensed premises at the second instance were granted to the fourth respondent by strictly following the rules, it was not mandatory for the Licensing Authority, namely, third respondent to consider the objections of the petitioner, that too when the objections were raised by the petitioner, much after obtaining approval from the Excise Commissioner and the Government.
20. The decisions relied upon by the learned counsel for the petitioner were in the cases, wherein the issues were with regard to payment of fee; flouting the rules for granting licence; U.P.Excise Rules etc., which we are not concerned with. Therefore, they are not of any avail to the case of the petitioner.
21. However, as held by the Supreme Court in the decision relied upon by the learned Senior Counsel for the fourth respondent in Narmada Bachao Andolan’s case, when there is a valid law requiring the Government to act in a particular manner, the Court ought not to, without striking down the law, give any direction, which is not in accordance with law. Admittedly, in this case, the rules are not challenged and, as such, the said rules are binding.
22. One of the Directive Principles of State Policy, as enshrined under Article 47 of the Constitution, states that the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption, except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
23. It is true, the State should not treat its right of parting with its privilege only as a means of earning more and more revenue, but it shall be only upon fulfilment of statutory and constitutional obligations with an object of protecting public health and welfare. While looking into the constitutional scheme, when a law is made, having regard to the directive principles in Part IV of the Constitution, it is expected that law made or actions taken would be in furtherance thereof. In terms of the directive principles of State Policy, the State is bound to make endeavours to promote public health which is one of the primary duties of the State. One important component of the said directions is regulation and control over the trade in intoxicating drinks so as to enable the State to curb or minimise, as far as possible, the consumption thereof. It is also well settled that the State may or may not prohibit manufacture, sale or consumption of liquor, but it is vital that while parting with its exclusive privilege to deal with intoxicating liquor, the provisions of the Act and the Rules for which the same had been enacted must be strictly complied with.
24. In the instant case, the authorities have considered the application of the fourth respondent and, taking into consideration the overall factors and following strict compliance of the rules only, granted permission to the fourth respondent for shifting the licensed premises. Therefore, the contention of the learned counsel for the petitioner that the State has not acted in furtherance of the constitutional mandate of the directive principles of state policy, as enshrined under Article 47 of the Constitution, cannot be sustained. As such, I do not find any infraction of the compliance or adherence to the rules.
25. In view of what is discussed and held above, this Writ Petition is dismissed. No costs. Consequently, the connected M.P.Nos.1 and 2 of 2009 are closed.
26. While parting with, this Court is conscious of the welfare of the students, especially the girl students. The grievance of the petitioner appears to be that expansion of the business of the fourth respondent centred in a sacred place to spoil the sanctity of the place by overthrowing all the moralities and social responsibilities and such a move would definitely invite a grave situation, which may put the school management in a precarious and embarrassing position to earn a bad name on the administration of the school. The said grievance of the petitioner appears to be reasonable. Therefore, the respondents are directed to ensure that no inconvenience or nuisance is caused to the public of the locality in general and the student community of the petitioner school in particular. The petitioner is also at liberty to approach the law enforcing or any other appropriate authority for regulating the peaceful and congenial atmosphere of running the school without any hindrance.
dixit
To
1.The Chief Secretary,
Union Territory of Puducherry,
Puducherry.
2.The Collector,
Government of Puducherry,
Puducherry.
3.The Deputy Commissioner,
Excise Department,
Puducherry