High Court
Case Details
WP(C) 2856/2012 PRESENT HON’BLE MR JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (CAV) Challenge made in W.P.(C) No.2856/2012 is to the order dated 29-03-2012 issued b y the Deputy Commissioner, Kamrup (Metro) directing temporary closure of the lic ensed premise (bar) of the petitioner under section 52(1) of the Assam Excise Ac t, 1910. 2. In the course of hearing of W.P.(C) No.2856/2012, a related issu e of considerable public importance had surfaced, which engaged the attention of the Court. The related issue is the indiscriminate and mushroom opening of liqu or shops and bars in the city of Guwahati in contravention of the excise laws, p articularly Rule 183(2) of the Assam Excise Rules, 1945. Accordingly, both the issues, namely, the lis involved between t 3. he parties in the proceeding of W.P.(C) No.2856/2012 and the broader issue as no ticed above were deliberated upon and are sought to be addressed by this common order. The order, therefore, is in two parts, the first part dealing with the is sue raised in W.P.(C) No.2856/2012 and the second part dealing with the larger i ssue taken up suo-motu by the Court. W.P.(C) No.2856/2012 4. As noticed above, in this writ petition, petitioner has challeng ed legality and validity of order dated 29-03-2012 passed by the Deputy Commissi oner, Kamrup (Metro) ordering temporary closure of the licensed premise (bar) of the petitioner by exercising power u/s 52(1) of the Assam Excise Act, 1910 (Act ). 5. Case of the petitioner is that he fulfilled the necessary condit ions for issuance of India Made Foreign Liquor (IMFL) (cid:28)ON (cid:29) license. Such license was granted to him on 06-11-2004 by the Collector-cum-Deputy Commissioner, Kamr up (Metro) on sanction being granted by the State Government in the Excise Depar tment. Petitioner operates the said license in his rented premises using it as a bar-cum-restaurant, known as (cid:28)Mid Town Bar-cum-Restaurant (cid:29). The rented premises is located on the ground floor of (cid:28)Basudev Complex (cid:29), Christian Basti, G.S. Road , Guwahati-5. Though the license was initially issued for one year, it has been renewed from time to time. The license was issued after making due enquiry and c omplying with the requirements of the Act and the Assam Excise Rules, 1945 (Rule s). 6. petitioner. He wanted to evict the petitioner from the rented premises. Respondent No.5 is the landlord of the tenanted premises of the 7. At that stage, petitioner instituted a title suit in the Court o f Civil Judge No.3, Kamrup, Guwahati against the move to evict him from the tena nted premises. The suit was registered as Title Suit No.382/2011. An injunction petition was also filed, which was registered as Misc. (J) Case No.235/2011. The Civil Court passed an order dated 17-11-2011 directing the parties to maintain status-quo in respect of possession of the suit premises and also in respect of existing connection of water supply, electricity connection and ingress and egre ss to and from the suit premises. The civil suit is pending for adjudication wit h the status-quo order dated 17-11-2011 being extended until further order. 8. Thereafter, a number of organizations of the locality started ra ising a demand against selling of illicit liquor as well as against the petition er’s bar. Representations were made to various authorities including to the Depu ty Commissioner, Kamrup (Metro) and to the Superintendent of Excise, Kamrup (Met ro). Side by side, respondent No.5 also represented before the Excise Minister, Government of Assam requesting him not to renew the license of the petitioner. An enquiry was conducted by the Inspector of Excise, Guwahati (S 9. adar) in view of the complaints lodged. Thereafter, the Circle Officer (A), Guwa hati also enquired into the complaints lodged against the petitioner’s bar. No a nomalies were found regarding the bar. 10. However, inspite of such reports, Deputy Commissioner, Kamrup (M etro) passed the impugned order dated 29-03-2012. Though hearing was fixed, no h earing took place. Consequently, petitioner’s premises (bar) continued to remain closed. Aggrieved, petitioner has filed the present writ petition. 11. Contention of the petitioner is that all the complaints against his bar were orchestrated by the respondent No.5. Rule 183(2) was amended on 12- 05-2005 introducing the 500 meters distance restriction from educational, religi ous and health institutions and since the petitioner’s license was issued on 06- 11-2004 before the amendment, closure of the bar cannot be ordered on the basis of the said amended provision. Petitioner’s bar has not posed any threat to publ ic peace and tranquility. Thus, there is no justification to order temporary clo sure of the petitioner’s bar. Impugned order is based on wholly extraneous consi derations. 12. Deputy Commissioner (respondent No.3) has filed an affidavit. St and taken is that the impugned order was issued in order to maintain public peac e and tranquility as there were several public complaints against the petitioner ’s bar cum restaurant. The order has been issued as per provision of Section 52 (1) of the Act. There is no illegality or arbitrariness while issuing the impugn ed order. Though hearing had been fixed, petitioner failed to appear. However, p etitioner subsequently appeared and was heard. Matter has been referred to the G overnment to take necessary action regarding continuation or cancellation of the license and till then it has been decided to continue with the closure order. 13. Respondent No.5 has also filed affidavit. He has supported the c omplaints made against the bar of the petitioner. He has, however, stated that t here is no nexus between his claim to get the tenanted premises vacated and the public complaints made against the bar of the petitioner. He also contends that petitioner’s bar is located near a Church in violation of Rule 183(2) of the Rul es. The status quo order passed by the Civil Court has nothing to do with the im pugned order dated 29-03-2012. It is a mere coincidence that public complaints w ere made against the petitioner’s bar after passing of the status-quo order by t he Civil Court.
Decision
14. Petitioner has filed separate reply affidavits against the affid avits filed by respondent No.3 and respondent No.5. In the reply affidavit filed against the affidavit of respondent No.3 (Deputy Commissioner), petitioner has reiterated the statements made in the writ petition and has further stated that in view of the report of the Circle Officer, impugned order dated 29-03-2012 can not be justified. Respondent No.3 cannot continue with the closure order for an indefinite period. No specific instance of breach of peace and public tranquilit y has been mentioned. No effort was made to verify about the genuineness or bona fides of the complaints. He has also stated that a copy of an order dated 30-05- 2012 issued by the Deputy Commissioner with a forwarding letter of the Superinte ndent of Excise dated 17-07-2012 was left at his residence on 17-07-2012 which s ays that the Government may be requested to take further necessary action regard ing continuation or cancellation of the petitioner’s license and till then the o rder of closure dated 29-03-2012 would continue. This order, petitioner contends , is ante dated so as to circumvent the interim order of this Court dated 27-06- 2012 which restrained the respondents from passing any further precipitating ord er in furtherance to the impugned order dated 29-03-2012. In his reply affidavit to the affidavit of respondent No.5, petitioner has contended that the complain ts against the petitioner’s bar suddenly surfaced after the status-quo order was passed by the Civil Court. There is a clear nexus between the respondent No.5 a nd the organizations/individuals complaining against the petitioner’s bar. 15. Heard Mr. B.D. Konwar, learned Counsel for the petitioner and Mr . B. Chetri, learned Senior Government Advocate, Assam. Also heard Mr. K.N. Chou dhury, learned Senior Additional Advocate General, Assam for the State responden ts and Mr. M.Z. Ahmed, learned Senior Counsel appearing for respondent No.5. 16. Mr. Konwar, learned Counsel for the petitioner submitted that th e impugned order directing temporary closure of the petitioner’s bar is ex-facie untenable and is liable to be quashed. There is a tenancy dispute between the l andlord (respondent No.5) and the tenant (petitioner). Petitioner had moved the Civil Court and had obtained a status-quo order. Immediately after the said orde r was passed, certain complaints against the petitioner’s bar were made alleging public nuisance. According to Mr. Konwar, all these complaints had been made at the instance of the landlord. Without hearing the petitioner, the impugned orde r was passed which is clearly in violation of the principles of natural justice and lacks bonafide. Learned Counsel for the petitioner further submitted that hi s client had incurred huge loss due to closure of his premises. 17. Initially, Mr. B. Chetri, learned Senior Government Advocate had appeared in this case on behalf of the State and submitted that the impugned o rder was passed by the Deputy Commissioner on receipt of public complaints that the petitioner’s bar is located within a radius of 500 meters of a Church. He ju stified passing of the impugned order. When the scope of the lis was expanded by the Court, Mr. K.N. Choudhury, learned Senior Additional Advocate General appea red for the State and made his submissions on the larger issue which will be con sidered in the later part of the judgment. In so far the issue raised in the wri t petition is concerned, he fairly submitted that Court may consider and decide the matter on the basis of the available materials. While making his submission on the larger issue, Mr. Choudhury had, however, referred to a Division Bench or der of this Court dated 19-08-2010 passed in PIL No.45/2009 (Shri Heramba Singh and others -Vs- State of Assam and others) which held that IMFL (cid:28)ON (cid:29) licensed pr emises are not covered by the distance prohibition or restriction mentioned in R ule 183(2) of the Rules. Mr. Choudhury had also submitted that the above aspect i.e., Rule 183(2) was not the basis of passing the impugned order. 18. Mr. M.Z. Ahmed, learned Senior Counsel appearing for the respond ent No.5 submitted that though his client had no role in the making of public co mplaints against the petitioner, the complaints were justified. He, however, sub mits that the District Magistrate has the power u/s 52(1) of the Act to order te mporary closure of a bar, which power he rightly exercised in the present case. 19. Submissions made have been considered. 20. On 14-06-2012, this Court after noting the grievance of the peti tioner, had issued notice to the respondents. On the next date, i.e. on 27-06-20 12, this Court directed, as an interim measure, that no further precipitating or der should be passed in furtherance to impugned order dated 29-03-2012. On 18-07 -2012, when the learned Counsel for the petitioner submitted that notwithstandin g the interim order passed by this Court on 27-06-2012, a copy of Deputy Com missioner’s order stated to be dated 30-05-2012 was served on the petitioner on 17-07-2012, which was a back dated order as it did not contain any file No./ord er No. etc., this Court directed the State Counsel to obtain instruction from th e Deputy Commissioner on the order served on the petitioner on 17-07-2012. Such instruction was, however, not placed before the Court. Thereafter, on the basis of order of the Court dated 09-08-2012, which directed closure of liquor outlets which are located in violation of Rule 183(2), and subsequent orders which will be further adverted to in the second part of this judgment, the scope of the wr it petition was expanded by the Court. This Court in the order dated 18-09-2012 held that in the light of the Division Bench order in Heramba Singh, which took the view that the distance restriction mentioned in Rule 183(2) does not apply t o IMFL (cid:28)ON (cid:29) premises, bars may be allowed to re-open. Thus, the closure order pa ssed by the Court was modified in respect of IMFL (cid:28)ON (cid:29) premises. Accordingly, by the said order, the petitioner’s premise was allowed to re-open subject to the final outcome of the case. 21. We may now refer to Section 52 of the Act under which provision, the impugned order has been passed. Section 52 provides for closing of retail s hops for the preservation of public peace. Sub-section (1) and Sub-section (4) a re relevant. Under Sub-section (1), the District Magistrate or the Sub-Divisiona l Magistrate may by notice in writing to the licensee require that any shop in w hich any intoxicant is sold by retail shall be closed at such times or for such periods as the Magistrate may deem necessary for the preservation of public peac e. Under Sub-section (4), the State Government may grant to the licensee of a sh op kept closed under Sub-section (1) such compensation as it may think fit. A co njoint and careful reading of the aforesaid provisions would indicate that the M agistrate must first form an opinion that there is a threat to breach of public peace relatable to the shop selling intoxicant and for preservation of the publi c peace, he may take a decision to close the shop in which case he shall put the licensee to notice in writing about closure of his shop. The formation of opini on must be on the basis of relevant and cogent material. Only thereafter order o f closure u/s 52 can be passed. The closure shall be for such times or for such periods as may be deemed necessary by the Magistrate. In other words, the closu re can be for a particular time of the day or for a specified period. Therefore, it cannot be for an indefinite period. Closure of a shop u/s 52 is not a puniti ve step as the State Government may grant to the licensee compensation for closu re of his shop to compensate him for the loss suffered on account of closure of the shop. 22. Having noticed the provisions of Section 52 of the Act, let us n ow examine the impugned order dated 29-03-2012. The order dated 29-03-2012 reads as under :- (cid:28) GOVERNMENT OF ASSAM OFFICE OF THE DEPUTY COMMISSIONER KAMRUP METROPOLITAN DISTRICT :: GUWAHATI Dated Guwahati the 29th March/2012 ORDER Seen the various public complaints lodged by Brihattar Christianbasti against ru nning of IMFL ’ON’ Licenced premises of Sri Arun Pathak, G.S. Road, Christian Ba sti, Guwahati. The matter was enquired through concerned Inspector of Excise, Gu wahati Revenue and Smti. Anuja Bhuyan, E.M., Guwahati (M). Since the matter could not be settled without proper hearing of the licensee, a notice be issued to Sri Arun Pathak, licensee to appear personally before the un dersigned on 11-04-2012 at 4 P.M. for personal hearing on the matter. Till the disposal of the matter, the undersigned hereby orders a temporary closu re of the licensed premises to maintain public peace and tranquility as per prov ision laid down under Section 52(1) of AE Act 1910. Inform all concerned accordingly. Deputy Commissioner Kamrup Metropolitan District Guwahati. (cid:29) 23. A bare reading of the said order would clearly show that it has not been issued as per the requirement of Section 52 (1) of the Act as noticed a bove. The purpose of an order u/s 52 of the Act as discussed above is totally di fferent. The Deputy Commissioner has referred to two reports, one by the Inspect or of Excise and the other by the Circle Officer. In his report dated 27-02-2012 , the Inspector of Excise stated that the petitioner’s bar was running without a ny problem till the landlord alongwith some other people wanted to remove the ba r. Landlord himself submitted a petition before the Superintendent of Excise inf orming that tenancy agreement between the landlord and the petitioner had expire d and that he had served notice on the tenant (petitioner) to vacate the rented premises but the tenant refused to vacate the premises. But surprisingly, the In spector of Excise did not mention about the pendency of the civil suit and the s tatus-quo order passed by the Civil Court, though it is apparent from his report that it is basically a landlord-tenant dispute. In her report dated 16-03-2012, the Circle Officer, who is an Executive Magistrate, however, referred to the te nancy dispute between the parties and the status-quo order passed by the Civil C ourt. She stated that she had thoroughly enquired into the complaints against th e petitioner’s bar and had also made physical verification twice but neither cou ld she find any anomaly nor did she witness any untoward scene. 24. Nothing could be placed on record by the Deputy Commissioner tha t public peace and tranquility has been threatened by the petitioner’s bar. Ther efore, in the face of such reports, respondent No.3 could not have passed the im pugned order dated 29-03-2012. 25. As per Rule 183(2) of the Rules, which will be adverted to more in detail in the second part of the judgment, liquor shops should not be located at sites to which the neighbours object on grounds which upon enquiry appear to be reasonable and free from malice or ulterior motive. Affidavit of respondent No.3 does not indicate that any enquiry was made to find out the genuineness and bonafides of the complaints made against the petitioner’s premise. The fact tha t the complaints surfaced after the status-quo order was passed by the Civil Cou rt cannot be explained as a mere coincidence going by the two reports and the st and of the landlord himself. 26. The initial objection of the learned Senior Government Advocate that the petitioner’s premise is located within a radius of 500 meters of a Chur ch, thus violating the distance prohibition or restriction mentioned in Rule 183 (2) of the Rules, cannot be sustained to justify the impugned order dated 29-03- 2012 in as much as the same is not a ground for passing the closure order. It is a settled proposition that an order has to be justified by the reasons / ground s mentioned in the order itself and not by furnishing supplementary reasons / gr ounds or by filing affidavit. In any case, in the application filed by the State for vacation of the closure order dated 09-08-2012 passed by the Court (Misc. C ase No.2376/2012), it has been clarified that the above ground was not the basi s for passing the impugned order dated 29-03-2012. 27. Moreover, in the case of Heramba Singh, a Division Bench of this Court had held that IMFL (cid:28)ON (cid:29) premises would not be covered by the distance pro hibition or restriction mentioned in Rule 183(2) of the Rules. The subsequent order of the Deputy Commissioner is dated 30-05-2 28. 012 but was communicated to the petitioner on 17-07-2012. But in the affidavit-i n-opposition filed by the respondent No.3 on 20-07-2012, though he stated about his decision to continue with the closure order, neither a copy of such decision is annexed to the affidavit nor is there any mention about the date of such ord er. Further, no instruction has been placed before the Court to explain the circ umstances in which the said order was issued. This would naturally give rise to doubt about the circumstances in which such order was passed. In any case, in view of the interim order of this Court dated 27-06-2012 directing that no furth er precipitating order should be passed in the meantime in furtherance to the im pugned order dated 29-03-2012, communication of the said order on 17-07-2012 was wholly uncalled for. However, this aspect of the matter need not detain us any further in view of the discussions made in the preceding paragraphs. Therefore, taking all aspects into consideration, the Court is o 29. f the view that the impugned order dated 29-03-2012 cannot be sustained and is a ccordingly quashed. WP(C) No. 3837/2012, MC No. 2376/2012 MC No. 2386/2012, MC No. 2387/2012 MC No. 2401/2012, MC No. 2399/2012 MC No. 2400/2012, MC No. 2402/2012 MC No. 2389/2012, MC No. 2390/2012 MC No. 2391/2012, MC No. 2419/2012 MC No. 2452/2012, MC No. 2453/2012 MC No. 2454/2012, MC No. 2455/2012 MC No. 2520/2012, MC No. 2619/2012 MC No. 2620/2012, MC No. 2519/2012, MC No. 3242/2012, MC No. 3234/2012, MC No. 3233/2012, MC No. 289/2013, MC No. 288/2013, MC No. 286/2013, MC No. 287/2013, 30. While hearing W.P.(C) No.2856/2012, submission was made on behal f of the State on 09-08-2012 that no liquor shops or bars can be permitted to fu nction within a radius of 500 meters from hospitals, religious places and educat ional institutions. Since the petitioner’s premise is located within a radius of 500 meters of a Church, public complaints were made and, therefore, the impugne d order was passed. After noting the said submission, the Court took the view th at if that be the stand of the State, it should be applied uniformly and not sel ectively. Accordingly, the district administration of Kamrup (Metro) district wa s directed to close down all the bars and wine shops in the city of Guwahati whi ch are situated within a radius of 500 meters of such places as well as the High Court, other Courts and Tribunals. 31. On the next day i.e. on 10-08-2012, Mr. Choudhury, learned Senio r Additional Advocate General submitted before the Court that the Government wou ld like to revisit the relevant provisions of the Rules, particularly in the con text of Guwahati city. State was directed to file affidavit indicating therein t he list of liquor shops and bars which are situated within a radius of 500 meter s of the above places alongwith the names of the officials responsible for grant of such licenses. Closure order passed on 09-08-2012 was reiterated. 32. A number of affected and interested parties, including All Assam IMFL Retailers Association, had filed applications for impleadment as well as f or vacation of the orders dated 09-08-2012 and 10-08-2012. The State had also fi led application for vacation/modification of such order (Misc. Case No.2376/2012 ). As the Court had made a departure from the lis involved in W.P.(C) No.2856/20 12 and expanded the scope of the writ petition in the public interest, this Cour t by order dated 17-08-2012 observed that all the affected and interested partie s would be heard. As such parties were large in number and considering the natur e of the proceeding, no separate orders were considered necessary to be passed i n the individual misc. applications. However, all the applications were taken up for consideration. 33. In the course of the deliberations on 17-08-2012, a broad conse nsus emerged that a High Power Committee should be constituted to examine the is sue of rampant and mushroom opening of liquor shops and bars in Guwahati city, p articularly in the context of Rule 183(2) of the Rules. 34. Government issued a notification dated 18-08-2012 notifying cons titution of a High Power Committee comprising of eight members to examine the ab ove issue. The committee was headed by Shri P.P. Verma, IAS, Additional Chief Se cretary to the Government of Assam as the Chairman and comprised of the followi ng members:-. 1) am. 2) cil. 3) Member 4) -- 5) 6) Member 7) Member 8) Chairman Shri P.P.Verma, IAS, Additional Chief Secretary to the Government of Ass -- Smti. Lily Rajbongshi, Chairperson, State Anti Drug and Prohibition Coun -- Chairperson, Assam State Commission for Women or her nominee. Member -- Principal Secretary to the Government of Assam, Excise Department. Member Legal Remembrancer, Government of Assam. Shri A.K. Bhattacharya, Sr. Advocate, Gauhati High Court. Member -- -- Shri K.N. Choudhury, Sr. Additional Advocate General, Assam. -- Commissioner of Excise, Assam. -- Member Secretary The terms of reference of the High Power Committee were as follows :- (cid:28)(a) To examine whether the liquor shops and bars in the city of Guwahati are in excess of a rationalized need and requirement as per existing Act and Rules of the Excise Department. (b) To review and to take a closer look at Rule 183(2) of the Assam Excise Rules , 1945, particularly in the context of Guwahati City, and suggest modifications if considered necessary. (c) To examine whether the Rules concerning the Religious and Educational Instit utions should be further qualified to include only legally recognized and duly a uthorized educational and religious institutions which have a bonafide presence. The Committee will also take a look at what should be done in areas where an ex isting licenced liquor shop or bar came into operation preceding the opening of an educational or religious institution in the same area. (d) To examine whether the across the Board closure of the existing bars and liq uor shops on a rigid interpretation of the distance factor is likely to affect t he livelihood and employment opportunities of a large section of people already engaged in the sector and its impact on Government revenues. (e) To examine whether closure of the existing liquor shops and bars in Guwahati City will unintentionally lead to illicit trade in alcoholic beverages. (cid:29) The applications for recall of the Court’s order dated 0 35. 9-08-2012 and 10-08-2012 were heard on 21-08-2012 and order was passed on 24-08- 2012. A number of learned Counsel made their respective submissions either suppo rting the closure order(s) and continuation of the same or for modification of t he closure order(s). Further reference to the submissions made is considered not necessary as those have already been noted in detail in the order dated 24-08-2 012. After hearing exhaustive arguments of the learned Counsel for th 36. e parties, Court passed a detailed order on 24-08-2012. It was observed that the issue which has engaged the attention of the Court is the failure of the State, more particularly of the Excise Department and its officials, in applying the p rovisions of the Act and the Rules properly leading to mushroom and indiscrimina te opening of liquor shops and bars in the city. It was further observed that th e fact that almost all the liquor shops and bars had to be closed down following the order of this Court reflects the deep rooted malady. It may be mentioned th at till that stage of hearing, Deputy Commissioner had submitted a report in res pect of 125 numbers of IMFL (cid:28)ON (cid:29) and (cid:28)OFF (cid:29) licensed premises and most of them we re found to be in close proximity of educational institutions or health institut ions or religious places. Deputy Commissioner was directed to place the full lis t of such wine shops and bars alongwith the list of officials who were responsib le for issuance of such licenses. 37. A Division Bench judgment of this Court in the case of Rubul Kan ti Roy and ors. -Vs- State of Assam and ors. reported in 2000 (2) GLT 460 was al so placed before the Court. The present issue was also examined in Rubul Kanti R oy whereafter the State authorities were directed to act strictly in accordance with the Act and the Rules without disturbing any existing licensees. Rubul Kant i Roy was decided on 13-03-2000. While deciding to continue with the present pro ceeding, the Court observed that it would consider the suggestions and recommend ations of the High Power Committee. This Court also examined the provisions of R ule 183(2), both in its pre-amended form as well as after the amendment. After c onsidering the matter, the Court passed the following order on 24-08-2012 :- (cid:28)35. In view of the above discussion, the conclusions of today’s order may be su mmarized as under :- 1. Commissioner and Secretary to the Government of Assam, Excise Department to i nform the Court by the next date by filing response as to what steps the Governm ent proposes to take against the excise officials prima facie responsible for vi olation of the excise laws while granting liquor licenses in Guwahati City. 2. Deputy Commissioner, Kamrup Metropolitan District should complete the exercis e as directed by the orders dated 10-08-2012 and 17-08-2012 and submit the compl ete list as indicated in paragraph 6 and 7 above before the Court by the next da te. 3. The Court would continue with the present proceeding and monitor the function ing of the High Power Committee. The Committee would submit its report(s) to the Court for consideration. 4. Considering the Division Bench judgment of this Court in the case of Rubul Ka nti Roy, IMFL (cid:28)OFF (cid:29) and (cid:28)ON (cid:29) licensees existing as on 13-03-2000 would be entitl ed to reopen their premises. Therefore, the orders dated 09-08-2012 and 10-08-20 12 would stand modified in respect of these category of licensees. 5. On the question as to whether the closure orders in respect of the IMFL (cid:28)OFF (cid:29) and (cid:28)ON (cid:29) licensees after 13-03-2000 should continue or not, the Court would fir st like to have the views of the High Power Committee. Such views may be submitt ed in the form of a preliminary report by the next date. On consideration of suc h report, the Court may consider passing further order(s). 6. Case of the petitioner would be taken up on the next date. (cid:29) 38. Preliminary report of the High Power Committee was placed befor e the Court on 10-09-2012. Mr. N. Choudhury, a learned counsel was appointed a s amicus curiae (he has since been elevated to the Bench). The matter was heard on 14-09-2012 on the prayer for modification of the closure orders in respect of IMFL (cid:28)OFF (cid:29) and (cid:28)ON (cid:29) licenses granted after 13-03-2000. Mr. K.N. Choudhury, lear ned Senior Additional Advocate General submitted before the Court that the High Power Committee had examined the matter and in its preliminary report dated 10-0 9-2012 suggested that IMFL (cid:28)ON (cid:29) and (cid:28)OFF (cid:29) licenses in the city granted before 18 -03-2005 may be allowed to reopen as the distance requirement of 500 meters from educational/health/religious institutions etc. was introduced in the Rules by a n amendment of Rule 183(2) w.e.f. 18-03-2005. He also submitted that the High Po wer Committee in the light of the Division Bench order of this Court in Heramba Singh took the view that premises having IMFL (cid:28)ON (cid:29) licenses may be allowed to re open. The Deputy Commissioner submitted a list of 431 IMFL (cid:28)OFF (cid:29) and (cid:28) 39. ON (cid:29) licensed premises in Guwahati city which are located within a radius of 500 meters from hospitals, religious and educational institutions etc. In Misc. Case No.2376/2012 filed by the State, it is stated that there are 441 IMFL (cid:28)OFF (cid:29) and (cid:28)ON (cid:29) licenses in Guwahati city. Out of the aforesaid 441 licenses, 431 have bee n found to be in violation of the 500 meters distance restriction. Thus only 10 IMFL licenses were found to be in conformity with Rule 183 (2) of the Rules. 40. ry report, which were as under :- The High Power Committee made three suggestions in the prelimina (1) Since the distance restriction of 500 meters was brought in by an amendment effective from 18-03-2005, IMFL (cid:28)OFF (cid:29) and (cid:28)ON (cid:29) licenses granted prior to that da te may be allowed to re-open; (2) In the light of the Division Bench order of this Court in Heramba Singh whic h observed that distance restriction mentioned in Rule 183(2) does not apply to IMFL (cid:28)ON (cid:29) premises, those may be allowed to re-open; (3) Those IMFL (cid:28)OFF (cid:29) licenses granted after 18-03-2005 in whose vicinity health/ educational/religious institutions came into existence subsequent to the date of their license, may be allowed to re-open. 41. Additionally, the High Power Committee suggested certain adminis trative steps. The Court also found that one member of the High Power Committee Shri A.K. Bhattacharyya, Senior Advocate had submitted a dissenting note and exp ressed the opinion that the closure order dated 09-08-2012, modified on 24-08-20 12, should not be further modified at that stage. Court was further informed tha t the State Government had ordered an administrative enquiry on 30-08-2012 to en quire into the culpability, if any, on the part of the excise officials while gr anting liquor licenses in Guwahati city in violation of the Rules. Shri Shantanu Thakur, IAS, Commissioner of Excise was made the Enquiry Officer to conduct the enquiry. The Court considered the issue as to whether the IMFL (cid:28)OFF (cid:29) and 42. (cid:28)ON (cid:29) licenses granted after 13-03-2000 should be allowed to re-open or not durin g the pendency of the present proceeding, which was debated at considerable leng th. It was observed as follows:- (cid:28)22. The present proceeding in the expanded form is at the instance of the Court . The Court had passed the closure orders on 09-08-2012 and 10-08-2012 in respec t of those liquor licenses which were granted in violation of the 500 meters dis tance restriction as provided in Rule 183(2). When those orders were passed, the notification dated 18-03-2005 introducing the 500 meters restriction as well as the Division Bench order of this Court in Heramba Singh (Supra) were not before the Court. It is contended that the 500 meters restriction was brought in by th e aforesaid notification effective from 18-03-2005. It is however a debatable po int as to whether the above restriction would be effective from 18-03-2005 or ap ply retrospectively as it has also been contended that such restriction was alwa ys the intention of the rule making authority. However, as indicated above, this issue is a debatable one which may require detail examination at the time of fi nal hearing. But till such hearing takes place, the out come of which is not kno wn, in my view, those who had obtained IMFL licenses prior to 18-3-2005 should g et the benefit of doubt as when they had obtained their licenses such requiremen t was not in existence. Coming to Heramba Singh (supra) a Division Bench of this Court had observed that IMFL (cid:28)ON (cid:29) license is not covered by the prohibition or restriction mentioned in Rule 183(2) of the Rules. This Court in the order date d 24-08-2012 had observed that the above decision would also be taken into consi deration while passing further orders. Therefore, in my considered view, in view of the decision in Heramba Singh (supra), the closure orders would require modi fication in respect of IMFL (cid:28)ON (cid:29) premises and those may be allowed to reopen. 23. The entire issue is now being deliberated upon by the High Power Committee w hich comprises amongst others the Chairman of the State Prohibition Council and the Chairman of the State Women Commission. The Court will examine the full and final report of the High Power Committee at the time of final hearing and try to take the matter to a logical end. Since the closure orders were not passed by t he State but by the Court while suo-motu expanding the scope of the writ petitio n, the Court has to strike a balance between the high constitutional philosophy and the immediate ground reality. Though the closure orders are only of temporar ily measure till the final hearing, the outcome of which cannot be visualized at this stage, the Court is also not unmindful of the fact that livelihood of a la rge number of people is dependent on this trade, which according to the Governme nt application, would be about fifty thousand. In view of above, the orders date d 09-08-2012 and 10-08-2012 should now be modified to cover IMFL (cid:28)OFF (cid:29) licenses granted prior to 18-03-2005 and those premises having IMFL (cid:28)ON (cid:29) licenses. Howeve r, the closure orders would continue in respect of those IMFL (cid:28)OFF (cid:29) licenses gra nted after 18-03-2005 which are in violation of the distance restriction mention ed in Rule 183(2). (cid:29) 43. 012 :- (cid:28)25. Accordingly, the Court considers it appropriate to pass the following order s :- Thereafter, the Court passed the following orders on 18-09-2 (1) writ petition be listed for final disposal on 26-11-2012; (2) the report of the administrative enquiry constituted as per order of enquiry dated 30-08-2012 should be placed before the Court alongwith an affidavit befor e the aforesaid date of hearing with advance copies to the respective Counsel; (3) the High Power Committee shall also submit its full and final report in term s of the notification dated 18-08-2012 to the Court alongwith an affidavit of th e Member Secretary before the date of hearing with advance copies to the respect ive Counsel; (4) Considering the notification dated 18-03-2005, introducing the distance rest riction of 500 meters from the buildings, places and institutions mentioned in R ule 183 (2), IMFL (cid:28)OFF (cid:29) licenses granted prior to 18-03-2005 would be entitled t o reopen their premises. Therefore, the closure orders dated 09-08-2012 and 10-0 8-2012 would stand modified accordingly; (5) In view of the Division Bench order of this Court in the case of Heramba Sin gh, premises having IMFL (cid:28)ON (cid:29) licenses would also be entitled to reopen their pr emises and the closure orders passed earlier would accordingly stand modified; (6) Till final orders are passed in the writ petition, the petitioner’s IMFL (cid:28)ON (cid:29) licensed premises shall also be allowed to reopen. (cid:29) 44. On 26-11-2012, the High Power Committee submitted its final repo rt. However, the Enquiry Officer of the administrative enquiry sought for time t ill 31-01-2013 for submission of enquiry report. Accordingly, the hearing was de ferred. Subsequently, the report of the administrative enquiry was submitted on 30-01-2013 and the case was heard. 45. The two reports may now be referred to. Final report of High Power Committee 46. As already noticed above, the State Government in the Excise Dep artment had issued a notification dated 18-08-2012 constituting a High Power Com mittee to examine the issue of indiscriminate opening of a large number of liquo r shops and bars in Guwahati city. Constitution and terms of reference of the Co mmittee have been already referred to in the preceding paragraphs of this order. 47. As already noticed, the High Power Committee had submitted its p reliminary report which had been taken note of by the Court in its order dated 1 8-09-2012. However, the Committee in its final report suggested that the prelimi nary report should also be considered as part of the final report. The Committee indicated in its final report that relevant Excise Acts and Rules of other Stat es, such as, Delhi, Tamil Nadu, West Bengal, Rajasthan etc. were consulted. Stat istical data on alcohol consumption in Guwahati city and rest of the State were collected and examined. The Committee observed that after the year 2001, no new (cid:28)OFF (cid:29) licenses in Guwahati city have been granted except for a few cases where s hifting, relocation etc. had been permitted. The Committee examined Rules 180 an d 183(2) of the Rules and observed that the consumers in the city could have rat ionally managed even with a lesser number of liquor outlets. Statistics availabl e with the Excise Department show that consumption of IMFL in Guwahati city over the period 2007-08 to 2011-12 had increased by over to 250%. Projected increase in consumption level for the next five years is around 100%. The distance restr iction of 500 meters on the location of liquor shops from hospitals/religious/ed ucational institutions was brought in March, 2005 with an explanation (cid:28)so far as possible (cid:29). The Committee opined that the Government in the Excise Department ne eds to re-visit the Rules, particularly Rule 183(2), to bring in clarity. Religi ous, health and educational institutions should also be qualified to include leg ally recognized and duly authorized institutions which have a bonafide presence. The Committee also suggested amendment of Rule 191 which provides for ascertain ment of public opinion regarding number and location of excise shops to provide for a complaint redressal mechanism. The Committee has expressed the view that s ince the city of Guwahati has not grown and developed along planned patterns of urban development, every ward of the city has virtually become a mixture of resi dential as well as commercial area. Considering that there is sufficient number of liquor shops in the city, Government may put a cap on new licenses for the ne xt five years before making a rational assessment. Based on the above deliberati on, the High Power Committee made the following recommendations:- (cid:28) On careful consideration of the relevant aspects that have come up and the iss ue in general, the High Power Committee unanimously makes the following recommen dations: 1. The Government may go for a minimum of Five(5) year moratorium on grant of ne w (cid:28)OFF (cid:29) counters in Guwahati City. 2. In the case of new (cid:28)ON (cid:29) licenses also, the same moratorium may be applied wit h exceptions to recognized / categorized/classified hotels conforming to proper ambience, seating capacity, security provisions etc. and on whose premises the D eputy Commissioner of the district ascertains, after a proper enquiry, the exist ence of a proven clientele of consumers after the commissioning of the Hotel. Th e Excise Department in consultation with the Tourism/GMDA/GMC etc. should prepar e guidelines specifying security measures, seating capacity, ambience, lighting, opening and closure timings etc. of the premises which must be implemented by t he licensee within sixty (60) days time of notice failing which the licence woul d be suspended till compliance of these guidelines. The existing licensees may a lso be given an option to relocate their premises to conform to the new guidelin es or face closure. 3. The opening and closure timings of (cid:28)OFF (cid:29) counters should be made from 3 PM to 9 PM in Guwahati city and rest of the State. These counters may also be asked t o display the MRP of their brands on sale. 4. In case of (cid:28)ON (cid:29) counters the timing should be from 1 PM to 10 PM all over the State. 5. Government may go for revision of relevant Rules such as Rule 183(2), R.191 a nd other Rules of the Assam Excise Rules, 1945 as may be necessary for rationali zation of the same after a comparative study of the Rules prevailing in other St ates. The complaint redressal mechanism regarding location of new shops should b e made effective and transparent. The existing provisions in Rule 191 provides f or consideration of complaints only from local bodies. This should be suitably a mended to allow considerations of complaints from individuals, neighbours and ot her stakeholders. A Committee at the district level with the Deputy Commissioner as the Chairperson and other members from Civil society, Police, Excise and Loc al Bodies should examine and pass orders on the bona fide Complaints. Affected p arties may go on appeal against order of this Committee to an Appellate Committe e headed by the Commissioner of Excise, Assam with representatives from Civil So ciety / Municipal Bodies / Police etc. As already provided in Rule 339 of the As sam Excise Rules, 1945 an appeal against the order of the Excise Commissioner, a District Collector, a Collector other than a District Collector shall lie to th e Assam Board of Revenue. The same Committee described here will also evaluate a pplications for new licences twice every year. 6. Renewal of licences should be made objective with considerations of location restrictions and bona fides of complaints as already provided for in Rule 184 of the Assam Excise Rules, 1945. 7. Government may consider declaration of at least two DRY DAYS in a month in ad dition to which DRY DAY may also be declared on select days of religious festiva ls like Holi, Eid, Viswakarma Puja, Vijaya Dashami (immersion) day of Durga Puja and Christmas etc. as there are precedents of untoward incidents on such days b ecause of liquor consumption. 8. All (cid:28)OFF (cid:29) counters that are violative of the 500 meter distance restriction a nd granted after 18-03-2005 should either be closed or be asked to relocate. 9. Drunken driving is a primary cause of fatalities on the road. Drastic steps n eed to be taken to ensure that a person keeps himself away from the driving seat in an inebriated condition. The most effective measures could be: (i) Stronger laws with vigorous enforcement. (ii) Regular awareness drives on the perils of drunken driving. As put into practice in some cities of the country, Government may introdu ce a regulation which prohibits a person to drive after he or she consumes liquo r. There should also be strict vigil to stop any kind of alcohol consumption ins ide a vehicle, whether parked or on the move and in public places. To begin with , a task force of Excise officials and the Police for the Guwahati city should b e formed to enforce this immediately. Government may consider appointment of Spe cial Excise Officers in the line of Special Police Officers (SPO) for this speci al task. (cid:29) 48. It is seen that two members of the High Power Committee viz., Sm t. Lily Rajbongshi, Chairperson, State Anti Drugs and Prohibition Council and Sh ri A.K. Bhattacharyya, Senior Advocate did not sign the final report. Report of Administrative Enquiry 49. The administrative enquiry was ordered by the Government on 30-0 8-2012 to examine the role of excise officials prima-facie responsible for viola tion of the excise laws while granting liquor licenses in Guwahati city. Shri Sh antanu Thakur, IAS, Commissioner of Excise, Assam was appointed as the Enquiry O fficer. When he was transferred as Commissioner and Secretary, Agriculture Depar tment, he was asked to continue as the Enquiry Officer. As already noticed, he s ubmitted the report on 30-01-2013. The enquiry report dated 30-01-2013 indicated that the enquiry was conducted into the role of excise officials in the cases o f licenses granted after 18-03-2005 i.e. the date when Rule 183(2) was amended i ntroducing the 500 meters distance restriction. The enquiry looked into three es tablishments involved in the decision making process viz., office of the Deputy Commissioner, Kamrup (Metro), office of the Commissioner of Excise, Assam and th e Excise Department at the Assam Secretariat. After examining various aspects of the matter, the Enquiry Officer mentioned that the Government in the Excise Dep artment had taken a decision dated 29-11-2001 (copy enclosed with the report) no t to issue any more IMFL (cid:28)OFF (cid:29) licenses. Sanctions accorded after the said date for grant of licenses were cancelled. Reference was made to the final report of the High Power Committee which noted that after 2001 no new (cid:28)OFF (cid:29) licenses in Gu wahati city have been granted except for a few cases where shifting, relocation etc. have been permitted. The Enquiry Officer found from the record that 13 (thi rteen) (cid:28)OFF (cid:29) counters in Guwahati city were allowed to be set up by converting s ome existing (cid:28)ON (cid:29) licenses to (cid:28)OFF (cid:29) licenses. The Rules have no provision for su ch conversion. Logically, for obtaining (cid:28)OFF (cid:29) licenses, the applicants ought to have surrendered their (cid:28)ON (cid:29) licenses and applied afresh for (cid:28)OFF (cid:29) licenses. Howe ver, in view of the Government decision dated 29-11-2001, such conversion should have been kept in abeyance. The report indicates that in processing these 13 (t hirteen) cases of conversion, the lower level officials had by and large dischar ged their duty by pointing out the relevant aspects including the distance restr iction. However, the respective Deputy Commissioners of the district and the Com missioners of Excise did not monitor the proposals as the proposals were simply forwarded to the Government. In all these 13 (thirteen) conversion cases, approv al and sanction of the Government were received at the level of the Excise Minis ter on the notes of the departmental Secretary and the departmental Commissioner and Secretary. None of these files were routed through the Principal Secretary of the department. The relevant portion of the findings of the Enquiry Officer a re as follows:- (cid:28)FINDINGS: Any attempt at fixing responsibility on the Excise Officials has to take note of the prevailing procedure through which (cid:28)ON (cid:29) and (cid:28)OFF (cid:29) licences are sanctioned. Under the relevant Rules (Rule 272 to 284 etc. of the Assam Excise Rules, 1945) all licences including (cid:28)ON (cid:29) and (cid:28)OFF (cid:29) licences are granted by the District Colle ctor / Deputy Commissioner with previous sanction of the Government. The Deputy Commissioner and the Government in the Excise Department are, therefore, the key functionaries in the process. The Superintendent of Excise and his team of offi cials at the District level assist the Deputy Commissioner in obtaining field re port etc. which are important to the Deputy Commissioner in forming his opinion. It appears from Government letter No. EX.429/ 2001/pt/4 dated Dispur the 29-11-2 001, Govt. in the Excise Deptt. had reviewed the matter of issue of new licences for IMFL retail counters (OFF) and had decided (cid:28)not to issue any more licence a t present (cid:29). As a result, the sanctions accorded for granting licences both in re spect of which fees etc. were deposited but licences not issued as well as where no fees etc. had been deposited were also cancelled as mentioned in the same le tter under reference. Para-3 of the Final Report of the High Power Committee (HP C) notified by the Government of Assam vide No. EX.252/2012/32 dated 18-08-2012 has noted that after 2001 no new (cid:28)OFF (cid:29) licences in the City of Guwahati have bee n granted except for few cases where shifting, relocation etc. have been permitt ed. However, from the records available, it is seen that as many as thirteen (13 ) (cid:28)OFF (cid:29) counters in Guwahati city were allowed to be set up by ’converting’ some existing (cid:28)ON (cid:29) licences to (cid:28)OFF (cid:29) licences and that is where the rub lies. (At Sl .11 of Annexure 1). The Assam Excise Rules, 1945 have no provisions for conversi on of an (cid:28)ON (cid:29) licence to an (cid:28)OFF (cid:29) licence. Although the Rules have no provisions for conversions, a common sense interpretation would be that if the holder of a n (cid:28)ON (cid:29) licence, for reasons of business viability, desires to change over to an (cid:28)OFF (cid:29) licence, he/she, in normal course, should be asked to surrender the (cid:28)ON (cid:29) l icence and apply afresh for an (cid:28)OFF (cid:29) licence which should then go through the pr ocedure laid for grant of new (cid:28)OFF (cid:29) licences. In view of the decision taken by t he Government not to go for any new retail (cid:28)OFF (cid:29) licences, all these thirteen (1 3) licences (cid:28)converted (cid:29) from (cid:28)ON (cid:29) to (cid:28)OFF (cid:29) should have been kept in abeyance til l the Government reviewed its decision as communicated by its own letter No. EX. 429/2001/pt/4 dated Dispur the 29-11-2001. In the procession of these thirteen ( 13) cases, almost all the Inspector level officials had pointed out, in proper f ormat, the relevant aspects including the distance restrictions. At the level of the Secretariat also all aspects were pointed out either at the level of the de aling Assistants or at the level of Under Secretary / Deputy Secretary / Joint S ecretary etc. However, the respective Deputy Commissioners of Kamrup (Metro) had simply forwarded these licence cases to the Government through the Commissioner of Excise, Assam without any specific views on whether the cases deserved to be granted licence or not. The office of the Commissioner of Excise, Assam does no t either sanction or grant licences. However, as the proposals from the Deputy C ommissioner are routed through the Commissioner of Excise, Assam to the Governme nt, it is expected that the Commissioner of Excise, Assam should give his views on the proposals which, however, was not done in any of these thirteen (13) case s. All these thirteen (13) ’conversion’ cases from (cid:28)ON (cid:29) to (cid:28)OFF (cid:29) licences receiv ed approval and sanction of the Government at the level of the then Hon’ble Mini ster, Excise on the notes of the then Secretary and Commissioner & Secretary, Ex cise Department. Incidentally, none of these files were routed through the Princ ipal Secretary to the Government of Assam, Excise Department. All such approvals of these thirteen (13) cases were approved in the concerned individual files an d no record was placed before this enquiry to show that the Government had taken some interim decision to relax the decision taken vide its earlier letter No. E X.429/2001/pt/4 dated Dispur the 29-11-2001. The position vis-à-vis existing rul es were pointed out at some point or the other while processing the cases. The field level officers, therefore, had more-or-less done their bit in pointing out factors of distances etc. Moreover, the Government in sanctioning licences looks at Rule 183(2) not in isolation but collectively in context of the other p revailing rules on the matter (kindly refer para-3 of the Final Report of the Hi gh Power Committee (HPC) enclosed at Sl. 8 of Annexure-1). (cid:29) 50. nt legal provisions is considered necessary. Before examining the two reports, a brief dilation on the releva Article 47 of the Constitution of India provides that it shall b 51. e the duty of the State to raise the level of nutrition and the standard of livi ng of its people and to improve public health. Article 47, which is part of the directive principles of State policy, enjoins the State to endeavour to bring ab out prohibition of the consumption of intoxicating drinks and of drugs which are injurious to health except for medicinal purposes. 52. Article 47 of the Constitution has been examined by the Hon’ble Supreme Court in the case of Ashok Lanka -Vs- Rishi Dikshit and others reported in (2006) 9 SCC 90. Discussing regulation of liquor trade vis-à-vis public healt h, the Apex Court held that keeping in mind the mandate of Article 47 and furthe ring the cause of public health, provisions of the statutes regulating the trade in liquor are required to be strictly construed. 53. There is a long line of judicial pronouncements laying down the principle that there is no fundamental right to do trade or business in intoxica nts. Trade in liquor has been categorized as res extra commercium. The State und er its regulatory powers has the right to prohibit absolutely every form of acti vity in relation to intoxicants. 54. However, whether there should be prohibition or not is in the re alm of policy making and the Court would not like to enter into such an arena. P rohibition is a matter of policy in respect of which the State alone would be co mpetent to make laws. As long as no law exists imposing prohibition on the use o f liquor and the matter is regulated by statutory provisions, such matters are t o be regulated in accordance with the statutory provisions. But as pointed out by the Hon’ble Supreme Court in Ashok Lanka (supra), such provisions should be s trictly construed keeping in view the mandate of Article 47 vis-à-vis public hea lth. 55. State of Assam as a matter of policy has decided not to impose prohibition. It has decided to regulate the trade under the provisions of the Ac t and the Rules. 56. Section 28 of the Act provides for ascertainment of local public opinion before grant of retail license. The public opinion is to be ascertained with regard to licensing and location of shops. Section 36 is the Rule making p rovision. In exercise of the powers conferred by Section 36 of the Act, th 57. e Rules have been framed. Provisions of the Rules relevant for the present case may now be looked into. Part VI of the Rules deals with licenses and settlement of fees. As per Rule 178, a license for wholesale or retail sale of intoxicants may be granted for a term of three consecutive years or for any shorter period c ommencing from the first day of April. Rule 179 provides that the number of lice nses which may be granted for any local area shall be regulated by the needs of the people of that area and no license shall be granted unless it is required ei ther to meet an ascertained demand or to counter-act supply of any intoxicant th rough illicit sources. As per Rule 180, liquor should not be so sparsely distrib uted as to give to any particular lessee practical monopoly over a considerable area. 58. That brings us to Rule 183, more particularly Rule 183(2), which is the centre of the discourse. It deals with location of shops. Sub-Rules (3) and (4) deal with location of country spirit shops and are not relevant. As alre ady noticed, this Rule was amended w.e.f. 18-03-2005. Before amendment, the said Rule was as follows :- (cid:28)183.(1) In urban areas, the position of shops licensed for the consumpt ion of liquor on the premises should be so fixed that persons entering them shou ld not escape observation, and that supervision should be rendered easy but they should be so prominent as to compel attention. (2) The shops should not be located at sites to which the neighbours ob ject on ground which upon enquiry appear to be reasonable and free from malice o r ulterior motive and should, so far as possible be at a reasonable distance fro m religious, education and other similar buildings or institutions. Explanation:- The word (cid:28)reasonable (cid:29) should be interpreted according to the circumstances of the case. (cid:29) After the amendment, the said Rule now reads as under :- for the consumption of liquor on the premises should be so fixed that persons en tering them should not escape observation, and that supervision should be render (cid:28)183(1) In Urban areas, the position of shops licensed ed easy, but they should not be so prominent as to compel attention. (2) The shop should not be located at sites to which the neighbours ob ject on grounds which upon enquiry appears to be reasonable and free from malice or ulterior motive and should so far as possible, be at a distance not less tha n 500 meters from hospitals, dispensaries and Nursing Homes, religious, educatio nal or other similar buildings or institutions. Explanation:- The word (cid:28)reasonable (cid:29) should be interpreted according to the circumstances of the cases. (cid:29) Thus from a careful reading of the aforesaid provision, both pre 59. -amended and post amended, the intention of the Rule making authority becomes cl ear. Liquor shops should be at a reasonable distance from hospitals, educational institutions and religious places, which has been specified as not less than 50 0 meters in the amendment brought in w.e.f. 18-03-2005. However, room for some e lbow space is provided by qualifying the distance restriction with the words (cid:28)so far as possible (cid:29). As per the explanation, the word (cid:28)reasonable (cid:29) should be inter preted according to the circumstances of the case. Both Mr. N. Dutta, learned Se nior Counsel who had appeared for All Assam IMFL Retailers Association and Mr. K .N. Choudhury, learned Senior Additional Advocate General, Assam had strenuously argued that the distance restriction mentioned in the Rules cannot be applied w ith mathematical precision and has to be understood in a reasonable manner by ad opting a common sense approach, keeping in mind the haphazard, disorganized and unplanned growth of Guwahati city. Learned Counsel had argued that Rule 183(2) h as to be read in conjunction with Rules 189 and 191 to which we will advert to i n the succeeding paragraphs. The aforesaid view appears to have been endorsed by the High Power Committee going by its reports. 60. Rule 184 provides that location of existing shops should be exam ined atleast once in three years with a view to ascertain whether those conform to the Rules in respect of sites. Thus, this Rule mandates the sanctioning as we ll as licensing authority to go for a periodical examination once in three years of the location of existing liquors shops to ensure that those are in conformit y with the Rules. As per Rule 189, IMFL licenses, both (cid:28)ON (cid:29) and (cid:28)OFF (cid:29) shall be gra 61. nted only in places where there is a proven demand on the part of a class of dri nkers accustomed to foreign liquor, e.g., in large industrial and business cente rs or in urban areas where there is a class of consumers specially accustomed to drinking such liquor. 62. Rule 191 deals with ascertainment of public opinion regarding th e number and location of excise shops and the procedure to be followed while pro cessing such public opinion. This Rule particularly provides for opening, shifti ng, amalgamation and closure of any licensed premises which shall be done by the District Collector with the previous sanction of the State Government. Such cou rse of action shall not be resorted to without it being satisfactorily establish ed by local enquiry that the proposed action is necessary in the interest of pub lic and the objections that may have been filed, have been considered by the Dis trict Collector. 63. In Pradip Kumar Dutta -Vs- State of Assam (1992) 2 GLR 138, this Court held that State has the exclusive right or privilege in carrying out the liquor trade, be it manufacture or sale of liquor. Such right or privilege can b e granted or parted in the shape of a license or a lease. There is no fundamenta l right to carry on trade or business in liquor. But when the State decides to g rant license or part with such privilege, it cannot escape the rigour of Article 14. 64. In Rubul Kanti Roy, this Court examined the issue of indiscrimin ate grant of liquor licenses in the State of Assam. After an elaborate examinati on of the legal provisions governing the liquor trade, this Court directed the a uthorities to act strictly in accordance with the Act and the Rules while issuin g new license, without disturbing any existing licensee. This is a Division Benc h judgment and it was decided on 13-03-2000. This case has assumed importance in as much as it has fixed a cut off date while directing the State to strictly fo llow the provisions of the Act and the Rules while issuing new licenses. The cut off date is the date of judgment as the Court had made it clear that the existi ng licenses should not be disturbed. In Prasanta Barpatra -Vs- State of Assam and others reported in 65. 2002 (2) GLT 292 this Court held that the authority while issuing licenses shoul d act strictly in accordance with the provisions of the Act and the Rules and in case of objection against any existing licensee, the District Collector should consider such objection in accordance with law. Reference was made to the judgme nt in Rubul Kanti Roy. The Court also approved the Government decision dated 29- 11-2001 not to issue further licenses to be in the larger interest of the societ y. 66. In Ashok Lanka, Hon’ble Supreme Court cautioned against en-masse cancellation of liquor licenses in the absence of such licensees as they are ne cessary parties. The order of the High Court directing cancellation of licenses of all the private respondents of the writ petition without arriving at a findi ng as to how and in what manner license granted to each one of them was either i n violation of the provisions of the statute or the directions of the Court was held to be unsustainable. In State of Uttar Pradesh -Vs- Manoj Kumar Dwivedi and others re 67. ported in (2008) 4 SCC 111, the Hon’ble Supreme Court examined the expression (cid:28)c lose proximity (cid:29) appearing in the Uttar Pradesh Excise Rules. In the facts of tha t case, the Apex Court agreed with the view taken by the High Court that a dista nce within 100 meters or 300 ft. (approx) from a school, hospital, place of wors hip etc. would be the right criteria where liquor licence should not be granted. However, the approach of the High Court in closing the liquor shops coming with in the aforesaid distance restriction without issuing notice to the affected par ties was not approved by the Hon’ble Supreme Court. All the licensees whose prem ises were located within the aforesaid distance from schools, hospitals, places of worship etc. were given time to shift/re-locate their premises. In Heramba Singh, challenge was made to the allotment of IMFL (cid:28) 68. ON (cid:29) licence in enable the licensee to run a beer bar in an existing restaurant o n the ground that it was in contravention of Rule 183(2) of the Rules. A Divisio n Bench of this Court negatived the challenge by holding that IMFL (cid:28)ON (cid:29) licence would not be covered by the prohibition or restriction mentioned in Rule 183(2). 69. Having broadly noticed the legal provisions, let us once again r evert back to the two reports. A copy of Government letter dated 29-11-2001 has been placed on record by the Enquiry Officer alongwith his enquiry report. The s aid letter addressed to the Commissioner of Excise, Assam stated that opening of a huge number of IMFL retail shops had been engaging the attention of the State Government for sometime. The letter further discloses that keeping in view the deleterious