Jayarani High School v. The Union Territory of Puducherry & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 14.08.2009CORAMTHE HONOURABLE MR.JUSTICE D. MURUGESANANDTHE HONOURABLE MR.JUSTICE K.VENKATARAMANWrit Appeal No.1098 of 2009and M.P.No.1 of 2009 The Headmistress & CorrespondentJayarani High School,196, Lal Bahadur Street, Puducherry-1. ..Appellant/PetitionerVs.

The Union Territory of Puducherry Represented by its Chief Secretary Puducherry.

The Collector Government of Puducherry Puducherry.

The Deputy Commissioner, Excise Department Puducherry.

M/S.Deekay Exports Ltd 3 & 6, Cuddalore Main Road, Madukarai, Puducherry..Respondents/RespondentsWrit Appeal filed under Clause 15 of Letters Patent Act against the Order dated 24.07.2009 passed in W.P.No.6593 of 2009. praying for issuance of a writ of mandamus, to forbear the respondents 1 to 3from permitting the fourth respondent to utilize the premises at DoorNo.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 aconsequential 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. https://hcservices.ecourts.gov.in/hcservices/ For Appellant : Mr.Chitra SampathFor respondents for R1 to R3 : Mr.T.Murugesan, Govt. Pleader(Pondy)for R4 : Mr.V.T.Gopalan, Senior Counselfor Mrs. Radha Gopalan.J U D G M E N T(ORDER OF THE COURT WAS MADE BY D. MURUGESAN.J)This writ appeal pertains to grant of F.L. 1 licence to oneM/S.Deekay Exports Ltd., to utilise the premises at Door No.219, LalBahadur Sastry Street, Puducherry for vending liquor. 2. The appellant is the Headmistress and Correspondent of oneJayarani High School located at 196, Lal Bahadur Street, Puducherry. 3. The fourth respondent was initially granted the licence to vend the liquor in a place which was not suitable and on the request made by the fourth respondent to shift the premises in question, an inspection appears to have been made on 12.01.2009 and 19.01.2009 and ultimately, the permission to shift the shop to the present place was granted on 27.02.2009 by the third respondent, Deputy Commissioner, Excise. 4. The grievance of the appellant is that the premises in question situate within 300 metres from the school premises. NoF.L.I Licence can be granted to vend liquor within 300 meters from the educational institution. On coming to know that steps were being taken to shift the shop to the premises in question, objections were made by the appellant on 02.02.2009 and in-fact, objections were raised by the students particularly the school, entire girl students, their parents and some public opposing the shifting. Thoseobjections were not considered and even when the objections were before the third respondent, shifting was permitted.

On the above grievance, the appellant approached this court. The learned Judge did not accept the contention as to the alleged prohibition of locating the shop within 300 meters of distance from educational institution as in terms of Rule 113(1), no such restriction is contemplated. Consequently with observation, the learned Judge has dismissed the writ petition giving rise to the present writ appeal.

We have heard Mrs. Chitra Sampath, learned counsel for the appellant, Mr.M.R.Thangavel, learned Additional Government Pleader(Pondicherry) and Mr.V.T.Gopalan, learned Senior Counsel for the fourth respondent. https://hcservices.ecourts.gov.in/hcservices/

Rule 113 of the Pondicherry Excise Rules, 1970 reads ashereunder:-113. Licences – Licences for the sale of Indian liquor or foreign or both shall be of the following descriptions, and shall be granted by the Excise Commissioner or Deputy Commissioner, as the case may be, in accordance with the provisions of sub-section (2) of section 14 of the Act, namely:-(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 in sealed or capsuled bottles(Qts. Of 12 bottles Pts. Of 24 bottles and Nips of48 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.

As far as the contention of Rule 113 of the PondicherryExcise Rules, 1970 is concerned as extracted above, there are three types of F.L. Licences. The first one being F.L. 1, second beingF.L. 2 and third being F.L. 3. As far as F.L. 1 licence is concerned, it is granted permitting to sell foreign liquor or Indianliquor, or both, in quantities of not less than 9 litres in sealed or capsuled bottles and also in sealed or capsuled bottles in quantities not exceeding 6 quart bottles of all liquors other than beer. Suchlicence is granted subject to the condition that nobody will beallowed to consume the liquor at the licensed premises. F.L. 2licence relates to permission to sell foreign liquor or Indianliquor, or both in sealed and capsuled bottles in quantities not exceeding 6 quart bottles of all liquors other than beer and 12 quart bottles of beer at any one time etc., By that licence, consumption at the licensed premises, and in the bar room is permitted. Rule113(2)((ii) requires the licensee to have a hygienically kept kitchen to supply liquor and 113(2)(iii) requires the licensee to provide aroom with sufficient ventilation and seating arrangements where liquor or meals or eatables are to be supplied with liquor. In terms of 113(2)(iv), the licensee is required to provide facilities like lavatory, urinal, wash basin etc. F.L. 3 licence is granted for sale or supply of foreign liquor or Indian liquor or both for consumption in the premises in connection with the meetings, entertainments andother such gatherings. https://hcservices.ecourts.gov.in/hcservices/

The submission of the learned counsel for the appellant is that inasmuch as Rule 113(2)(i) contemplates that the licensed premises shall be 300 metres away from the premises like educational institutions or religious establishments. It is the contention that in terms of the said restriction, no F.L. 1 licence can also be granted within 300 metres from the educational institution.

In our opinion, the said contention cannot be accepted. Theprovisions for grant of F.L. 1 and F.L. 2 licence are to be read with reference to the nature of licences. Inasmuch as the grant of F.L. 1Licence is concerned, on precondition that the sale of whole sale or retail vending in a sealed or capsuled bottles is alone permitted and the premises is not permitted for consumption. It is for the said reason, the rule does not contemplate the restriction on the distance while grant of F.L. 1 licence. In so far as the F.L. 2 licence is concerned, as the premises is also permitted for consumption of liquors certain conditions are also imposed on the licensee like provision of kitchen, Room, seating arrangements, sufficient ventilation etc., Only in case where a licence is granted not only for vending but also for permission to consume the liquor in the same premises, the distance rule is contemplated and not otherwise. Hence, the submission that the application of 300 metres rule should also be made available to F.L. 1 licence cannot be accepted. Accordingly, the first contention of the learned counsel is rejected.

Coming to the permission for shifting the premises, the facts which are not in dispute are that on coming to know the possibility of an attempt of shift for opening the shop in the premises in question, which is just opposite to the school where girl students are studying, objections have been made to the third respondent, who is the competent authority to consider such licenceas early as on 02.02.2009. This fact is not in dispute. Therefore, the objections ought to have been considered before such shifting of premises is granted.

From the counter affidavit of the Excise Commissioner, it is seen that even before the objections were raised, inspections were carried on 12.01.2009 and 19.01.2009 and permission for shifting was granted on 27.02.2009 on the basis of that inspection. Hence, the permission to shift was ordered without reference to the objections. Though objections were made on the basis of the distance rule, the same cannot be sustained in the wake of our finding. Nevertheless, the appellant being the Correspondent of the school is certainly interested in the welfare of the students particularly the institution which is exclusively run for girl students and in that context, the appellant could certainly make grievance for locating the liquor shop near to the school.

Mr.V.T.Gopalan, learned Senior counsel would however submit that there is another liquor shop located within the distance of 300 https://hcservices.ecourts.gov.in/hcservices/ metres and that was not questioned by the appellant and only in the case of the fourth respondent, objections were made.

In matters like this, the argument that the appellant had not questioned the existing shop would not mean that the appellant cannot object or make protest for locating the shop just opposite to the school. In view of the above, it would be only proper for this court to direct the third respondent, who is the authority to grant permission for shifting of the shop to consider the objections made by the appellant or any other objections already received from the public, hear them and reconsider the early decision for grant of permission. Before the said order is passed, the Deputy Commissioner, Excise shall also give an opportunity to the fourth respondent aswell. Such exercise shall be carried on within a period of six weeks from the date of receipt of a copy of this order. 15. Before parting with this order, we refer to the observation of the learned Judge to the respondents to take precautionary measures to avoid any untoward incident to occur in front of the shop or in front of the school in view of the permission granted to the fourth respondent for shift of the shop just in front of the school.