Mrs.Chitra Sampath v. The Union Territory of Puducherry

situated at the junction of the above two streets, the opening ofsales counter facing Bharathi Street will not be a hindrance to theschool going children and that the condition regarding the locationand distance of the licensed shop incorporated in F.L.2 Licence isnot applicable to F.L.1 Licence.5. The stand of fourth respondent is that F.L.1 Licence wasgranted to them as early as 12.08.2008; there is no liquor shop justopposite to the petitioner school; this respondent applied to therespondents 1 to 3, seeking permission for shifting of their licensedpremises from R.S.No.99/2, 3 & 6, Cuddalore Main Road, Madukarai,Puducherry, to the premises in question and, following Rule 209, thesaid shifting was permitted on 27.02.2009, from which date therespondent has been carrying on business; this respondent has spenthuge amount in furnishing the shop; the premises is a huge buildingand it extends to 72 feet in the Bharathi Street; the business isbeing carried on only at the southern end of the building and suchsale of liquor in wholesale in accordance with F.L.1 Licence will, inno way, cause prejudice either to the school or to its students andin view of the passing of injunction order by this Court on22.04.2009, the entire business of this respondent has come to astandstill and stocks worth Rs.15.00 lakhs are lying in the saidpremises and that the petitioner is only the instrument ventilatingthe grievance of one Anandathu Brandy, which is carrying on businessin the same Bharathi Street a few shops away from the sale counter ofthis respondent. Accordingly, he prayed for vacating the interiminjunction and dismissing the Writ Petition.6. The contentions of the learned counsel for thepetitioner are : the institution is 70 year old and is being runwithout any hindrance so far; any activity of the respondents shouldconform to public interest, welfare and safety; as per the directiveprinciples of state policy, as enshrined under Article 47of theConstitution, it is the obligation on the part of the respondents torestrict trade in liquor while locating the place of business; thoughit fetches revenue to the Government, the Government cannot doanything subverse to public interest and that the objection of thepetitioner, dated 02.02.2009, though was placed before therespondents before granting approval, was not considered inaccordance with the rules. The learned counsel has relied upon thefollowing decisions :(i) State of Maharashtra v. Nagpur Distilleries, Nagpur,2006 AIR SCW 2399 :"9.... This factual distinction apart, wehave to keep in mind that the right to trade inliquor is only a privilege framed out by theState. Article 47 of the Constitution of Indiaclearly casts a duty on the State at least toreduce the consumption of liquor in the State https://hcservices.ecourts.gov.in/hcservices/ gradually leading to prohibition itself. Itappears to be right to point out that the time hascome for the States and the Union Government toseriously think of taking steps to achieve thegoal set by Article 47 of the Constitution ofIndia. It is a notorious fact, of which we cantake judicial notice, that more and more of theyounger generation in this country is gettingaddicted to liquor. It has not only become afashion to consume it but it has also become anobsession with very many. Surely, we do not needan indolent nation. Why the State in the face ofArticle 47 of the Constitution of India shouldencourage, that too practically unrestrictedly,the trade in liquor is something that it isdifficult to appreciate. The only excuse for theState for not following the mandate of Article 47of the Constitution is that huge revenue isgenerated by this trade and such revenue is beingused for meeting the financial needs of the State.What is more relevant here is to notice that themonopoly in the trade is with the State and it isonly a privilege that a licensee has in the matterof manufacturing and vending liquor." (ii) Ashok Lanka v. Rishi Dikshit,2006 (9) SCC90 :"24.When a law is made, having regard to thephraseology used in Part IV of the Constitution,it is expected that law made or actions takenwould be in furtherance thereof. In terms of thedirective principles of State policy, the State isbound to make endeavours to promote public healthwhich is one of primary duties of the State. Oneimportant component of the said directions isregulation and control over the trade inintoxicating drinks so as to enable the State tocurb or minimise, as far as possible, theconsumption thereof. The State may or may notprohibit manufacture, sale or consumption ofliquor but it is vital that while parting with itsexclusive privilege to deal with intoxicatingliquor, the provisions of the Act and the Rulesfor which the same had been enacted must bestrictly complied with.""25. The Act and the Rules deal only withcontrol and regulations. There is no provisionwhich gives any discretion to the authorities https://hcservices.ecourts.gov.in/hcservices/ concerned to relax the provisions of the Rules.The Rules in this behalf again must be framed upontaking into consideration of all relevant factors.The State in making rules and formulating thepolicy decisions must be guided by publicinterest. In such matters, the State has apositive obligation to ensure that any activitycontemplated, strictly conforms to therequirements of public good and it is nototherwise derogative of public health. The Stateparts with its exclusive privilege on certainstatutory conditions such as payment of excisefee. When it lays down criteria for selection ofpersons who would become qualified for grant oflicence under the Act, not only the eligibilitycriteria therefor should be laid down, but havingregard to its past experience as to how and inwhat manner, the licensees find means and methodsto circumvent the said provisions, all endeavoursshould be made to plug all loopholes. The Statehas an extremely solemn obligation to fulfil inthat behalf. All information supplied by theapplicants for licences, thus, must undergo andsatisfy the "strict scrutiny test". The Stateshould not treat its right of parting with itsprivilege only as a means of earning more and morerevenue. It may certainly earn revenue but onlyupon fulfilment of its constitutional andstatutory obligations. There exists a strongunderlying notion of public health and welfarewhen the matter comes to retention of theexclusive privilege and/or parting therewith inwhole or in part.""76....We would, however, expect the Stateand its officers to scrupulously follow theconstitutional mandate in future. It was withthis intention we have dealt with these matters insome detail.""77.We hope and trust that the State ofChhattisgarh and its authorities would not committhe same mistakes in the coming years keeping inmind the mandate of Article 47 of the Constitutionand scrupulously observe the Rules for disposal ofliquor shops." (iii) State of U.P. v. Manoj Kumar Dwivedi, 2008 (4) SCC111:"10. Be that as it may, it appears thatproper care was not taken while opening shops in https://hcservices.ecourts.gov.in/hcservices/ the close proximity of a place of public resort,school, hospital, place of worship or factory, orto the entrance to a bazar or a residentialcolony and that is how sub-rule (4) of Rule 5came up for interpretation before the High Court.The High Court has after taking intoconsideration the overall view of the matteropined that 100 m or 300 ft (approximately) wouldbe a just measure where the shop should not beopened in the close proximity of a place ofpublic resort, school, hospital, place of worshipor factory, or to the entrance to a bazar or aresidential colony.""11. We fully agree with the view taken bythe High Court and we are also of the view that100 m or 300 ft (approx.) should be the rightcriteria where the Excise Commissioner shall notgive any licence to a shop under the Excise Act.We hope and trust that the Excise Commissioner ofthe State shall take into consideration sub-rule(4) of Rule 5 of the U.P.Excise Rules and seethat no shops or sub-shops are opened within aradius of 100 m or 300 ft (approx.) of a place ofpublic resort, school, hospital, place of worshipor factory, or to the entrance to a bazar or aresidential colony. The interpretation of theword "close proximity" was vague therefore it wasmisused by the authorities. But, now the matterhas been placed beyond any vagueness. Therefore,with the interpretation of the expression "closeproximity" by the High Court, the matter has beenput in the right perspective and the doubt hasbeen cleared. Therefore, taking intoconsideration all the facts and circumstances ofthe case, we affirm the view taken by the HighCourt insofar as fixing the distance of 100 m or300 ft (approx.) from a place of public resort,school, hospital, place of worship or factory, orto the entrance to a bazar or a residentialcolony is concerned where no shop or sub-shopshall be opened under the U.P.Excise Act and theRules framed thereunder." 7. Per contra, learned Government Pleader appearing forrespondents 1 to 3 has argued that the licence in question is F.L.1Licence and the respondents have to perform the legal duties whileconsidering the grant of licence or permission in accordance with thestatutes and the rules contemplated and, therefore, there is no https://hcservices.ecourts.gov.in/hcservices/ infraction of the rules while granting licence so also permission tothe fourth respondent, for shifting the licensed premises.8. In similar lines, learned Senior Counsel for the fourthrespondent would contend that there is no liquor shop just oppositeto the petitioner school; original licence was granted on 12.08.2008and now the shifting has been made as per Rule 209; the authorities,after considering the application for shifting the licensed premisesin accordance with the rules contemplated, directed the fourthrespondent to remit the fee, which was paid accordingly and thatafter the grant of permission only, the fourth respondent is runningthe business and so far no complaint has been made by any publicexcept the petitioner. The learned Senior Counsel has cited thefollowing authorities : (i) Ashok Lanka v. Rishi Dixit, 2005 (5) SCC 598 :"3.The trade in country/foreign liquor issaid to be res extra commercium. A citizen doesnot have any fundamental right to dealtherewith. The State alone has the exclusiveprivilege to deal in liquor from manufacture todistribution and from sale to consumption. Itis for the State to part with its exclusiveprivilege for a price which is loosely called as"excise duty". The power of the State to controland regulate the trade in liquor is envisagedunder Entry 8 List II of the Seventh Schedule ofthe Constitution. It may also impose excise dutyas also countervailing duty in exercise of itslegislative power under Entry 51 List II of theSeventh Schedule of the Constitution.""74.Undoubtedly, the State has theexclusive privilege to deal in liquor but it hasalso to be borne in mind that it has aconstitutional and legal duty to safeguard thepublic interest and public health. Theconditions for grant of licence as laid down inthe statute are required to be observed onlywith a view to subserve the constitutional goaland not to subverse the same.""87. ...The State while exercising itspower of parting with its exclusive privilege todeal in liquor has a positive obligation thatany activity therein strictly conforms to thepublic interest and ensures public health,welfare and safety. Strict adherence to therequirement to comply with the statutoryprovisions must be considered from that angle." https://hcservices.ecourts.gov.in/hcservices/ "90...(ii) Irrespective of the formatprescribed by the Commissioner of Excise, eachof the selected candidates must file anappropriate affidavit, which would be in strictcompliance with the requirement of Rule 9."(x) We direct the Chief Secretary of theState and the Commissioner of Excise to actswiftly in accordance with law and observe thefunctioning of the Scrutiny Committees."(ii) Narmada Bachao Andolan v. Union of India , (2000) 10SCC 664 :"233. At the same time, in exercise of itsenormous power the court should not be called uponto or undertake governmental duties or functions.The courts cannot run the Government nor can theadministration indulge in abuse or non-use ofpower and get away with it. The essence ofjudicial review is a constitutional fundamental.The role of the higher judiciary under theConstitution casts on it a great obligation as thesentinel to defend the values of the Constitutionand the rights of Indians. The courts must,therefore, act within their judicially permissiblelimitations to uphold the rule of law and harnesstheir power in public interest. It is preciselyfor this reason that it has been consistently heldby this Court that in matters of policy the courtwill not interfere. When there is a valid lawrequiring the Government to act in a particularmanner the court ought not to, without strikingdown the law, give any direction which is not inaccordance with law. In other words the courtitself is not above the law."9. I have heard the learned counsel for the parties andalso gone through the records as well as the citations.10. The one and only grievance of the petitioner is thather representation, dated 02.02.2009, raising objections for shiftingof the liquor shop by the fourth respondent from R.S.No.99/2, 3 & 6,Cuddalore Main Road, Madukarai, Puducherry, to Door No.219, LalBahadur Sastry Street, Puducherry, was not considered by therespondents 1 to 3 under Rule 115 of the Rules, while grantingpermission. https://hcservices.ecourts.gov.in/hcservices/

11. In this context, it is to be stated, that, originally,the licence was granted to the fourth respondent to run a liquor shopat R.S.No.99/2, 3 & 6, Cuddalore Main Road, Madukarai, Puducherry on12.08.2008. Thereafter, pursuant to the application submitted by thefourth respondent for shifting the shop, the third respondent, afterdue inspection of the premises, obtained approval of the ExciseCommissioner on 12.01.2009 and the Minister for Excise on 19.01.2009.After the said approval for shifting the premises, a fee ofRs.75,000/-, as required under the Rules, was paid by the fourthrespondent. It was only thereafter, on 27.02.2009, permission wasaccorded to the fourth respondent under Rule 209, for shifting theshop 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 therespondents only on 02.02.2009, much after the approval and paymentof necessary fee.12. Rule 115 deals with Grant of Licence, as per which, onreceipt of the application, the Licensing Authority, if satisfiedthat there is no objection to grant the licence applied for, may,with the previous sanction of the Excise Commissioner or theGovernment, grant the licence on payment of necessary fee. 13. In this case, the licence was granted to the fourthrespondent much earlier on 12.08.2008 and what was sought for by thefourth respondent was only permission for shifting the licensedpremises. More importantly, what is issued to the fourth respondentis F.L.1 Licence, which is governed by Rule 113 (1), which runs thus :"(1) F.L.1 Licence:- The holder of thislicence shall be permitted to sell foreign liquoror Indian liquor, or both in quantities of notless than 9 litres of sealed or capsuled bottles(Qts.of 12 bottles Pts.of 24 bottles and Nips of48 bottles) at any one time and in any singletransaction to any other licensee under thischapter and also in sealed or capsuled bottles inquantities not exceeding 6 quart bottles of allliquors other than beer (4.5 litres) and 12 quartbottles of beer (9 litres) at any one time and inany single transaction to an unlicensed person.But he shall not allow the consumption of theliquor at the licensed premises."This rule speaks to the effect that consumption of liquor at thelicensed premises is not allowed. https://hcservices.ecourts.gov.in/hcservices/

14. On the other hand, Rule 113 (2) (i), with reference toF.L.2 Licence, reads as follows :"the licensed premises shall be 300 metresaway from public places, educational institutionsor religious establishments as far as possible."This rule applies only to F.L.2 Licence, which deals with liquor shopwith bar attached and is meant for consumption in the premises.15. The rules pertaining to F.L.1 Licence and F.L.2 Licenceare distinct and based on the purpose for which the licence isissued. Hence, the provisions of one licence cannot be read intoanother.16. The fourth respondent, by virtue of grant of F.L.1Licence, dated 12.08.2008, can sell liquor only in wholesale andretail and there shall not be consumption of liquor, as in the caseof Bar. Condition No.7 of the conditions incorporated in the licencealso categorically states "no liquor shall be allowed to be consumedin the licensed premises". 17. It is not the case of the petitioner that the fourthrespondent has indulged in violation of any of the terms andconditions of the licence and that liquor is consumed inside thepremises.Further, in this case, the location of the shop beyond 300metres, as prescribed in the rules in respect of F.L.2 Licence, isnot a matter for concern, as the fourth respondent is a holder ofF.L.1 Licence under Rule 113 (1), which does not contemplate any suchrestriction. Therefore, in the absence of any allegation that thereis consumption of liquor in the premies contrary to the provision ofF.L.1 Licence, by no stretch of imagination, it can be stated thatthe fourth respondent has violated the rules. In other words, thefourth respondent is carrying on business, strictly adhering to theterms and conditions of the licence.18. It is also not the case of the petitioner that theconsumers of liquor are squatting in front of the premises of thepetitioner and that while granting licence to the fourth respondent,the respondents have given a go-by to the Rules. In view of thespecific provision contained in the rule relating to F.L.1 Licence,the contention of the petitioner that the stipulations pertaining toF.L.2 Licence should also be made applicable to F.L.1 Licence isuntenable. https://hcservices.ecourts.gov.in/hcservices/

19. Since the licence at the first instance and thereafterpermission for shifting the licensed premises at the second instancewere granted to the fourth respondent by strictly following therules, it was not mandatory for the Licensing Authority, namely,third respondent to consider the objections of the petitioner, thattoo when the objections were raised by the petitioner, much afterobtaining approval from the Excise Commissioner and the Government. 20. The decisions relied upon by the learned counsel forthe petitioner were in the cases, wherein the issues were with regardto 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 decisionrelied upon by the learned Senior Counsel for the fourth respondentin Narmada Bachao Andolan's case, when there is a valid law requiringthe Government to act in a particular manner, the Court ought not to,without striking down the law, give any direction, which is not inaccordance with law. Admittedly, in this case, the rules are notchallenged and, as such, the said rules are binding.22. One of the Directive Principles of State Policy, asenshrined under Article 47 of the Constitution, states that the Stateshall regard the raising of the level of nutrition and the standardof living of its people and the improvement of public health as amongits primary duties and, in particular, the State shall endeavour tobring about prohibition of the consumption, except for medicinalpurposes of intoxicating drinks and of drugs which are injurious tohealth.23. It is true, the State should not treat its right ofparting with its privilege only as a means of earning more and morerevenue, but it shall be only upon fulfilment of statutory andconstitutional obligations with an object of protecting public healthand welfare. While looking into the constitutional scheme, when a lawis made, having regard to the directive principles in Part IV of theConstitution, it is expected that law made or actions taken would bein furtherance thereof. In terms of the directive principles of StatePolicy, the State is bound to make endeavours to promote publichealth which is one of the primary duties of the State. One importantcomponent of the said directions is regulation and control over thetrade in intoxicating drinks so as to enable the State to curb orminimise, as far as possible, the consumption thereof. It is alsowell settled that the State may or may not prohibit manufacture, saleor consumption of liquor, but it is vital that while parting with itsexclusive privilege to deal with intoxicating liquor, the provisionsof the Act and the Rules for which the same had been enacted must bestrictly complied with. https://hcservices.ecourts.gov.in/hcservices/

24. In the instant case, the authorities have consideredthe application of the fourth respondent and, taking intoconsideration the overall factors and following strict compliance ofthe rules only, granted permission to the fourth respondent forshifting the licensed premises. Therefore, the contention of thelearned counsel for the petitioner that the State has not acted infurtherance of the constitutional mandate of the directive principlesof state policy, as enshrined under Article 47 of the Constitution,cannot be sustained. As such, I do not find any infraction of thecompliance or adherence to the rules.25. In view of what is discussed and held above, this WritPetition is dismissed. No costs. Consequently, the connectedM.P.Nos.1 and 2 of 2009 are closed.26. While parting with, this Court is conscious of thewelfare of the students, especially the girl students. The grievanceof the petitioner appears to be that expansion of the business of thefourth respondent centred in a sacred place to spoil the sanctity ofthe place by overthrowing all the moralities and socialresponsibilities and such a move would definitely invite a gravesituation, which may put the school management in a precarious andembarrassing position to earn a bad name on the administration of theschool. The said grievance of the petitioner appears to bereasonable. Therefore, the respondents are directed to ensure that noinconvenience or nuisance is caused to the public of the locality ingeneral and the student community of the petitioner school inparticular. The petitioner is also at liberty to approach the lawenforcing or any other appropriate authority for regulating thepeaceful and congenial atmosphere of running the school without anyhindrance.Sd/Asst.Registrar/true copy/Sub Asst.RegistrardixitTo1.The Chief Secretary, Union Territory of Puducherry, Puducherry. https://hcservices.ecourts.gov.in/hcservices/

2.The Collector, Government of Puducherry, Puducherry.3.The Deputy Commissioner, Excise Department, Puducherry.1 cc To Mrs.Chitra Sampath, Advocate, SR.34593.1 cc To M/s.S.S.Radha Gopalan, Advocate, SR.31291.1 cc To The Senior Government Pleader-cum-Senior Public Prosecutor for Pondicherry, SR.34387.W.P.No.6593 OF 2009NSM(CO)RVL 28.07.2009