advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Monday, October 7, 2013

Bar Licence - not granted = SOMDEV KAPOOR Vs. STATE OF W.B. & ORS. published in judis.nic.in/supremecourt/filename=40865

  Bar Licence - not  granted =

Rule 8 of the West Bengal Excise (Selection of New  Sites
      and Grant of License for Retail  Sale  of  Liquor  and  Certain  Other
      Intoxicants) Rules, 2003 (hereinafter referred to as “Rules of 2003”),
      as amended in the year 2004. Amended Rule 8 of the said Rules  imposed
      a ban on the grant of license for the retail sale  of  liquor  or  any
      other intoxicant at a new site which is  within  1000  feet  from  any
      college/educational institution /religious places.  =

  when the request of the appellant was considered  in  the  year  2010,
      Rules of 2003 as amended in 2004 had to be applied. On  the  basis  of
      these Rules, the appellant could not have  been  granted  for  foreign
      liquor bar and restaurant license as  there  are  many  religious  and
      educational institutions within the 1000 ft. of place from  where  the
      appellant is operating.

 when it is found  that  the  appellant  was  not
      entitled for bar license, the High Court has rightly  issued  mandamus
      not to renew the same. Even if, we presume that some other  person  is
      also operating in an infringing manner, that would  not  legalize  the
      license of the appellant.  That apart, after going through the record,
      we find that the case of respondent No.4 was not of a new license  but
      existing license.  Rule 8 applied to new sites only and in so  far  as
      those who were operating already and having existing license, they are
      not hit by the mischief of this Rule.

      15.   The result of the aforesaid discussion would be  to  uphold  the
      judgment of the High Court and dismiss the appeal  with  costs.  Since
      the license was renewed on the basis of interim orders passed by  this
      court, which is valid till December 2013,  it  would  not  be  renewed
      thereafter.  We order accordingly.


                                                     [REPORTABLE]

                       IN THE SUPREME COURT OF INDIA

                       CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO. 9016/2013
            (arising out of  Special Leave Petition  (Civil) No. 255 OF 2013
      )


      SOMDEV KAPOOR                                 ……APPELLANT

                       VERSUS

      STATE OF WEST BENGAL & ORS.              ……RESPONDENTS




                               J U D G M E N T

      A.K.SIKRI,J.

      1.    Leave granted.

      2.    The appellant herein is a proprietor of a Hotel  and  Restaurant
      under the name and style of “BHIMSAIN VAISHNAV’  which  is  being  run
      since 1954.  On 28th August 1992, he made an  application  before  the
      Collector of Excise, Calcutta (now known as Kolkata) for  issuance  of
      license  to  operate  foreign  liquor  bar   and   restaurant.    This
      application, for the reasons not available on record, kept pending for
      number of years.  Thereafter, on 1.11.2004 he made a request that  his
      earlier application dated 28th August 1992 may be processed and he  be
      granted foreign liquor bar and restaurant license.  It was followed by
      another reminder dated 8.9.2005.  Thereafter, the appellant was  given
      temporary license to run the liquor bar in January  2006,  purportedly
      on the basis of his application submitted in the year 1992.

      3.    Respondent  Nos.  5  and  6  herein,  namely,  Muslim  Khawateem
      Khilafat Tanzeem, a Society and  Nazia Elahi Khan,  President  of  the
      said society respectively, filed a Writ Petition  as  Public  Interest
      Litigation, with  the  prayers  to  cancel,  rescind  and  revoke  the
      aforesaid temporary license issued to the appellant.  The plea  raised
      was that it was not open for the appellant to run a liquor bar in  the
      said restaurant which was in the  vicinity  of  religious  places  and
      school, namely,  Gurudwara  Bara  Sikh  Sangar,  Shree  Digambar  Jain
      Vidyalaya,  Shree  Jain  Swetambere  Panchayati  Temple,  Shree  Laxmi
      Narayan Mandir, Shree Shree Satya Narayanji Mandir and also a  mosque.
      These respondents in the said Writ Petition alleged that the aforesaid
      religious places and school were situated within the distance  of  550
      feet of the premises where the license  to  operate  the  bar  by  the
      Excise Department was  granted  to  the  appellant  and  this  was  in
      violation of Rule 8 of the West Bengal Excise (Selection of New  Sites
      and Grant of License for Retail  Sale  of  Liquor  and  Certain  Other
      Intoxicants) Rules, 2003 (hereinafter referred to as “Rules of 2003”),
      as amended in the year 2004. Amended Rule 8 of the said Rules  imposed
      a ban on the grant of license for the retail sale  of  liquor  or  any
      other intoxicant at a new site which is  within  1000  feet  from  any
      college/educational institution /religious places.  This plea has been
      accepted by the High Court  and  vide  impugned  judgment  dated  14th
      December 2012, the Excise Department is  directed  not  to  renew  the
      license of the appellant which was expiring in the  month  of  January
      2013.

      4.    It is not in dispute that there are few religious places as well
      as a school within a distance of 1000 feet from the restaurant of  the
      appellant where he runs his liquor bar as well.  The precise  distance
      of these places from the appellant’s restaurant is as under:

                 Gurudwara Bara Sikh Sangar is at a distance  of  430  ft.,
           Shree Digambar Jain Vidyalaya is at a distance of 580 ft., Shree
           Jain Swetambar Panchayati Temple is at a distance  of  630  ft.,
           Shree Laxmi Narayan Mandir is at a  distance  of  730  ft.,  and
           Shree Shree Satya  Narayanji Ka Mandir  is at a distance of  780
           ft.




      5.    It is also not in  dispute  that  Rule  8  proscribes  grant  of
      license for retail sale of liquor or any other  intoxicant  at  a  new
      site which comes within the range of 1000 ft.  However, case set up by
      the appellant is that since the application for grant of  license  was
      filed in the year 1992, the rules which were prevailing at  that  time
      would be applicable to the case of the appellant. Under  Rules,  1993,
      the restriction was within a distance of 300 ft. from such places  and
      since the religious places and school pointed out by respondent Nos. 5
      and 6 are situated beyond the vicinity of 300  ft.,  the  license  was
      validly granted.  In  this  scenario,  the  question  that  falls  for
      determination is as to whether Rules, 1993 would govern  the  case  of
      the appellant or the license was to be granted keeping in mind  Rules,
      2003 (as amended).  Before we  embark  on  this  issue,  it  would  be
      essential to tread the events  leading  to  the  promulgation  of  the
      aforesaid Rules and certain  Government  instructions  issued  in  the
      matter.

      6.    As mentioned above, the appellant had applied for Foreign Liquor
      Bar and Restaurant license on 28.8.1992. Within  few  months  thereof,
      West Bengal Excise Rules,  1993  were  promulgated  vide  Notification
      dated 22nd March 1993.  These Rules were made in  exercise  of  powers
      conferred by Sections 85, 86 read with Section 30, 31, 36, 37 and  37A
      of the West Bengal Excise Act, 1909.  As per Rule 8 of Rules 1993,  in
      its original form, there was bar for grant of license for retail  sale
      of spirit or any other intoxicant at a new site which is  situated  in
      “close proximity” to an educational institution or  traditional  place
      of worship, hospital or bathing ghat for public  use.   There  was  no
      specific distance stipulated therein, defining the  expression  “close
      proximity” in arithmetical/ numerical terms. However, when Rules, 2003
      came into force in supersession of earlier Rules 1993 with effect from
      29.9.2003, the words “close proximity” were replaced by the expression
      “vicinity”. The term “vicinity” was defined as a distance of  300  ft.
      Rule 8 of Rules, 2003 was amended with effect from  15.4.2004  and  as
      per the amended provision, distance of 1000 ft. was prescribed in  the
      definition of ‘vicinity’.  Thus, there was a shift from  the  position
      contained in Rules, 1993 which prohibited the grant of license for the
      retail sale of spirit or any other  intoxicant  in  “close  proximity”
      from the educational institution and  religious  places  etc.  to  the
      grant of license  within  “vicinity  of  such  places”  and  the  term
      ‘vicinity’ was explicitly and precisely defined to be  a  distance  of
      300 ft. in the unamended Rule 8 of Rules, 2003 and increased  to  1000
      ft. by way of amendment in the year 2004, from educational institution
      and religious places.

      7.    Reverting to the case of the appellant, we would  also  like  to
      emphasize here that Rule 8 of Rules, 1993 as well as Rule 8 of  Rules,
      2003  apply  only  to  new  sites.  Its  implication  is  that   those
      restaurants/ hotels etc. who  were  already  granted  license,  before
      coming into force the respective  Rules,  would  not  be  hit  by  the
      mischief of these rules and are allowed the continuation of such a bar
      license, as pointed out, though the application of the  appellant  was
      made in the year 1992, it  was  processed  much  after  2004  and  the
      license  is  also  granted  after  2004.   Therefore,   normally   the
      application would be governed by the Rules prevalent on  the  date  of
      grant of liquor license.  However, Mr. K.K.Venugopal,  learned  senior
      counsel appearing for the appellant drew our attention to the Circular
      dated 28.9.2005 issued by the Excise Commissioner, West Bengal to  its
      functionaries and on that basis, he made emphatic  plea  that  pending
      applications were to be considered on the basis of  un-amended  Rules,
      2003.  Since the entire foundation of the appellant’s  case  rests  on
      this communication, we  would  like  to  reproduce  the  same  in  its
      entirety:

                       “Sub: Settlement of Excise Licenses in favour of the
           applicants/licensees  who  have  applied  for  the  same  before
           publication of the Excise Department’s Notification  No.  527-Ex
           dated 02.04.2004.

                       Sir,

                       With reference to above noted subject, it  has  come
           to the notice of the undersigned that several applications  have
           been received by the District Authorities for grant  of  Foreign
           Liquor ‘On’ Shop Licenses as well as shifting  of  the  existing
           shop before the Excise Department’s Notification No.527-EX dated
           02.04.2004  came into force.

                       It is further noticed that some  applicants/licenses
           who applied for ‘On’ shop License/shifting of existing  licenses
           and who were not granted licenses as the sites proposed by  them
           attracted the provisions of the  aforesaid  notification,  moved
           the Hon’ble High Court  for  processing  their  applications  in
           terms of the provisions existing prior to coming into  force  or
           Notification No.527-EX dated 02.04.2004.

                       After  careful  consideration  of  the  matter,  the
           following…………..;

           (a)   All the applications received before the 15th April,  2004
                 being the date of publication of the above notification, by
                 the concerned District Authorities  for  grant  of  Foreign
                 Liquor ‘On’ Shop Licenses and not rejected by the Collector
                 may kindly  be  sent  to  this  Directorate,  if  not  sent
                 already, after suitable processing as per Rule 8(1) of  the
                 Excise Department’s Notification No.800-EX dated 29.7.2003.

           (b)   All the petitions received before 15th  April,  2004  duly
                 rejected by this Directorate and/or the Collectors  due  to
                 coming into force of the Excise  Department’s  Notification
                 No. 527-EX dated 02.04.2004 should also  be  sent  to  this
                 Directorate for further consideration, after processing  of
                 the same in terms of Rule 8(1) of the  Excise  Department’s
                 Notification No.800-EX dated 29.7.2003;

           (c)    If the licenses in respect of Foreign Liquor  ‘On’  Shops
                 duly approved by the Govt.   In the Excise  Department  and
                 communicated    to    the    district    authorities     by
                 this…………………………..also be  sent  to  this  Directorate  after
                 necessary   processing   as   per    Excise    Department’s
                 Notification No.800-EX dated 29.7.2003.

           (d)    It has also come to the notice of  the  undersigned  that
                 several applications for grant of Foreign Liquor ‘On’  Shop
                 Licenses received by the District  Excise  Authorities  are
                 being rejected at their end.

                        All  such  applications  should  be  sent  to   the
           undersigned in terms of Rule 9(3)  of  the  Rules  framed  under
           Excise Department’s Notification No.800-EX dated 29.7.2003.

                       You are,  therefore,  requested  to  take  necessary
           steps  in  the  matter  and  ensure  the  compliance  of   these
           instructions.”




      8.    Seeking to draw sustenance  from  the  aforesaid  circular,  Mr.
      Venugopal’s endeavour was to make us  agree  to  his  submission  that
      those applications which were received before 15th April, 2004 and had
      not been rejected by the time circular  dated  28.9.2005  came  to  be
      issued, were to be processed as per unamended Rule 8 which  fixed  the
      upper limit of 300 ft. as prohibitory limit. However,  we  don’t  feel
      persuaded by this plea. In our view, this circular has no  application
      to the facts of the present case for the reasons stated hereafter.

      9.    On the face of it, it is visible that the  circular  deals  with
      the situation  where  applications  for  grant  of  license  had  been
      submitted  after  29.7.2003  when   Rules,   2003   were   promulgated
      prescribing a distance of 300 ft. in  Rule  8(1)  of  those  Rules  to
      define ‘vicinity’ and before this definition of “vicinity” was amended
      vide Notification dated 2.4.2004.  The  question  was  as  to  whether
      applications which were given after  29.7.2003  but  before  2.4.2004,
      were to be governed by original Rules 8(1) or the amended  Rule  8(1).
      It seems that a Writ Petition was filed in the High Court of  Calcutta
      by those who were not granted license because of  the  amended  Rules.
      During the  pendency  of  the  said  Writ  Petition,  the  matter  was
      considered and the  decision  was  taken  that  all  the  applications
      received before the amended Rules came into force, which had not  been
      rejected by the Collector, should be processed in terms  of  unamended
      Rules and sent to the Directorate.  Even those applications which were
      received before 15th  April,  2004  and  had  been  rejected  applying
      amended Rule were also directed to be  sent  to  the  Directorate  for
      further consideration, after processing in terms of  unamended  Rules.
      These applications were to be sent in terms of Rule 9(3) of the Rules.
      Ex-facie, the case of the appellant has no such factual parity.

      10.   We would like to  point  out,  at  this  stage,  that  when  the
      application of the appellant, which was submitted in 1992 but had  not
      been taken up for consideration at all for number of years,  even  the
      appellant had not taken any steps by sending any reminder or  followed
      it up with any request to the department to grant him bar  license  on
      the basis of said application. This position remained even during  the
      operation of Rules, 1993 which remained operative  for  10  years  and
      were replaced by Rules, 2003.  During this period also, no steps  were
      taken.  After Rules, 2003 there was an amendment in  Rule  8  thereof.
      Thereafter the Excise Commissioner, West Bengal  issued  clarification
      in the year 2005 in  respect  of  applications  which  were  submitted
      pursuant to Rules, 2003 but either had not been dealt  with  upto  the
      amendment notified on 2.4.2004 or were rejected  after  2004  applying
      the amended Rules. Though, this circular was totally  unconnected  and
      unrelated to the case of the appellant, at this stage,  the  appellant
      woke up from  slumber  and  started  insisting  that  his  application
      submitted in the year 1992 be considered.   The  appellant  very  well
      knew that on the basis of new Rules he would not be able  to  get  bar
      license. Therefore,  the  strategy  adopted  was  to  resuscitate  the
      application of 1992 and demand its consideration on the basis  of  un-
      amended rules.  In fact, Mr. Kailash Vasdev,  learned  senior  counsel
      appearing for respondent Nos. 5 and 6 is right in submitting that  his
      application of the year 1992 was not even proper and valid application
      as no fee etc. was paid along with the said application.   That  would
      be the reason that the said  application  was  never  processed.   The
      application has to be supported by appropriate fee which was not given
      earlier. Such a fee was deposited only in the year 2006 in  compliance
      with the provisions of Rule 9 of the Rules, 2003.  In his letter dated
      1.11.2004 the appellant  referred  to  his  application  submitted  on
      28.8.1992 in which the appellant stated that he had  applied  for  the
      license as per the  copy  of  letter  which  he  enclosed  along  with
      communication dated 1.11.2004 and it shows  that  only  a  letter  was
      submitted, though, as per the Rules, application was  to  be  made  in
      Form I or Form II annexed with these Rules.

      11.   Before filing the Writ Petition, respondent Nos.  5  and  6  had
      obtained information from the department under  Right  to  Information
      Act.  Information supplied to them mentions  that  the  appellant  had
      first made application on 28.8.1992 and then again on 8.9.2005  giving
      reference to the first application.  Thus,  we  find  that  the  first
      application was not even proper application and second application was
      dated 8.9.2005.  It had to be governed by the new Rules, namely, Rules
      2003, as amended in 2004.

      12.   It would also be significant to state that as per the  law  laid
      down by this Court, Rules which are prevalent on  the  date  when  the
      application is considered are to be applied and not the date when  the
      application is made.  This is so held in State of Kerala  &  Ors.  Vs.
      Kandath Distilleries 2013 (2) SCALE 789 in the following words:

                       “We have gone through  the  Government  Order  dated
           11.10.2006 in extenso and we are not prepared to  say  that  the
           application of the respondent was rejected solely on the  ground
           that the application dated 12.1.1987 could not be treated as  an
           application put forward by a firm  based on a partnership  deed,
           which came into existence on 10.4.1991, as per Clause 3  of  the
           Partnership Deed but on various  other  grounds  as  well.   The
           State Government, in our view,  has considered the  respondent’s
           application dated 12.1.1987 with regard to the  conditions  that
           existed  in  the  year   1998.   The  Government  letter   dated
           28.6.1994 would indicate that, apart from  the  respondent,  few
           other applications were also pending prior  to  the  year  1994.
           Over and above, the State Government during the year 1998,  from
           3.2.1998  to  21.11.1998,  had  received  52  applications   for
           establishing compounding, blending and bottling units  in  IMFLs
           in various parts of the State.  The Excise Commissioner vide his
           letter  dated  25.11.1998  had  reported  that  there   was   an
           unprecedented flow  of  applications,  that  was  the  situation
           prevailing in the year 1998, a factor which was taken note of in
           not entertaining the respondent’s application,  whether  it  was
           submitted on 12.1.1987 or on 22.11.1998.  We cannot, in any way,
           activate  an out-modeled, outdated, forgotten liquor  policy  of
           1998, in the year 2013, by a Writ of Mandamus.”




      13.   We fail to comprehend as to how the application  filed  in  1992
      could be considered in 2010.  In any case, as per the dicta aforesaid,
      when the request of the appellant was considered  in  the  year  2010,
      Rules of 2003 as amended in 2004 had to be applied. On  the  basis  of
      these Rules, the appellant could not have  been  granted  for  foreign
      liquor bar and restaurant license as  there  are  many  religious  and
      educational institutions within the 1000 ft. of place from  where  the
      appellant is operating.

      14.   Mr. Venugopal has tried to make an attempt to  impute  malafides
      on the part of the respondent Nos. 5 and  6  alleging  that  there  is
      another restaurant run by respondent No.4 which is also operating from
      a place that is less than 1000 ft. from religious places etc. However,
      proceedings against the said respondents were  dropped  by  respondent
      Nos. 5 & 6.  First of all, this argument would be of no avail  to  the
      appellant inasmuch as when it is found  that  the  appellant  was  not
      entitled for bar license, the High Court has rightly  issued  mandamus
      not to renew the same. Even if, we presume that some other  person  is
      also operating in an infringing manner, that would  not  legalize  the
      license of the appellant.  That apart, after going through the record,
      we find that the case of respondent No.4 was not of a new license  but
      existing license.  Rule 8 applied to new sites only and in so  far  as
      those who were operating already and having existing license, they are
      not hit by the mischief of this Rule.

      15.   The result of the aforesaid discussion would be  to  uphold  the
      judgment of the High Court and dismiss the appeal  with  costs.  Since
      the license was renewed on the basis of interim orders passed by  this
      court, which is valid till December 2013,  it  would  not  be  renewed
      thereafter.  We order accordingly.

                                                                ……………………….J.
                                                       [K.S.Radhakrishnan]






                                                               ………………………..J.
                                                       [A.K.Sikri]
      New Delhi,
      October 7, 2013



No comments:

Post a Comment

Note: Only a member of this blog may post a comment.