Bombay High Court
Indermal Muktilal Sharma ... vs State Of Maharashtra Dept. Of ... on 15 July, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
LETTERS PATENT APPEAL NO.84/2011 IN
WRIT PETITION NO.685/2002
Indermal s/o Muktilal Sharma,
aged adult, Occ. Proprietor of
Hotel Krishna, Khamgaon Road,
Chincholi Gavthan, Tq. Shegaon,
Dist. Buldhana. .....APPELLANT
...V E R S U S...
1. State of Maharashtra through its
Secretary, Department of State Excise,
Mantralaya, Mumbai - 400 032.
2. The Commissioner of State Excise,
Maharashtra State, Old Custom House,
2nd Floor, Shahid Bhagatsingh Road,
Fort, Mumbai - 400001.
3. The Collector, Buldhana,
Tq. Dist. Buldhana.
4. The Superintendent,
State Excise, Buldhana, Tq.
Dist. Buldhana.
5. Shri Gajanan Shikshan Sanstha,
Shegaon, Tq. Shegaon, Dist.
Buldhana, through its President,
Shri Shivshankar S. Patil ...RESPONDENTS
-----------------------------------------------------------------------------------------------
Mr. R. L. Khapre, Advocate for petitioner.
Mr. Lokhande, A.P.P. for respondent nos. 1 to 4-State.
Mr. A. R. Patil, Advocate for respondent no.5.
-----------------------------------------------------------------------------------------------
CORAM:- B. R. GAVAI & V. M. DESHPAND E, JJ.
DATED :- JULY 15, 2016
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ORAL JUDGMENT (Per : B. R. GAVAI, J.)
1. Heard. Admit. Heard finally by consent of the parties.
2. The present appeal has a checkered history. The appellant
who is proprietor of Krushna Hotel, Khamgaon Road, Shegaon, had
applied for grant of FL-III license on 03.05.1999 for starting a permit
room. The Superintendent, State Excise, Bulhana as well as District
Superintendent of Police, Buldana had made necessary inquiries and
after inquiries had submitted report before the Committee chaired by
the Collector, Buldana. However, the said proposal of the appellant
came to be rejected. Being aggrieved thereby, the appellant had
preferred an appeal before the Commissioner of State Excise,
Maharashtra State, Mumbai. The appellate authority vide order
dated 12.10.1999 had remanded the matter to the District Level
Committee and directed it to decide the matter afresh after obtaining
fresh report from the District Superintendent of Police. After fresh
enquiry, the District Level Committee, under the chairmanship of
Collector, passed an order on 16.10.1999, granting FL-III license in
favour of the appellant. However, immediately after granting the
license, the Collector vide order dated 26.10.1999 granted stay to the
order passed by the Committee. Vide the said order, he directed
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fresh measurement to be conducted and called for the report within
three days. Accordingly, in presence of the representatives of the
appellant as well as the respondent no.5 herein, fresh measurement
was done by the Tahsildar, Shegaon on 01.11.1999. The report of the
said measurement could be found on page no.112 of the paper book.
However, again in the meeting dated 16.12.1999, the
license granted in favour of the petitioner came to be rejected.
Being aggrieved thereby, the appellant again preferred an
appeal before the Commissioner of State Excise, Mumbai. The
Commissioner again directed fresh measurement to be taken and
further directed that if the bar/restaurant of the petitioner is beyond
the distance of 75 meters from the college of the respondent no.5
then license should be granted in favour of the appellant within a
period of 30 days. In pursuance to the said directions, again
measurement was conducted in presence of all the concerned,
including representative of the respondent no.5 as well as the
Registrar of the Engineering college run by the respondent no.5. In
the said measurement dated 05.07.2000, it was found that the
distance between the old gate of the College managed by the
respondent no.5 and the bar/restaurant was 225 meters. It was
further found that the distance between the new gate proposed by
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the respondent no.5 and the bar/restaurant of the appellant was 128
meters. After report, again the matter came up before the District
Level Committee and the Committee, vide order dated 16.10.2000,
rejected the proposal of the appellant. The ground on which the
District Level Committee rejected the proposal is that the respondent
no.5 has raised strong objection that there might be a problem
regarding the law and order. Being aggrieved thereby, again an
appeal came to be preferred by the present appellant before the
Commissioner of Central Excise, who, vide order dated 26.07.2001,
allowed the said appeal holding that in the joint measurement
conducted by the present the respondent no.5 as well as
representative of the Engineering College, the bar/restaurant of the
appellant was found to be at a distance of more than 75 meters from
the College and as such directed the Collector to issue FL-III license
in favour of the appellant. Being aggrieved thereby, a revision came
to be filed by the respondent no.5 before the Hon'ble Minister. The
Hon'ble Minister allowed the revision vide order dated 20.09.2001
and set aside the order passed by the Commissioner. Being aggrieved
thereby, Writ Petition No.685/2002 came to be filed by the present
appellant. The same was dismissed vide order dated 28/29.10.2010.
Being aggrieved thereby, the present appeal has been filed.
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3. Mr. Khapre, learned counsel appearing on behalf of the
appellant submits that when in the measurement conducted by the
competent authority in presence of the respondent no.5 and also
Registrar of the College, the distance was found to be more than 75
meters, there was no reason for the Hon'ble Minister and the learned
Single Judge to have interfered with the order passed by
Commissioner of Excise. Mr. Khapre, submits that in view of the
judgment of the Hon'ble Apex Court in the case of Vikrama Shama
Shetty.vs.State of Maharashtra & Ors. 2006 (5) Bom.C.R. 910, the
provisions of the rules concerned, are mandatory. He submits that if
it is found that the restaurant/bar is found to be within 75 meters of
the prohibited place then license cannot be granted. He then submits
that per contra, if it is found that the distance is more than 75 meters
and other requirements are also fulfilled then the license will have to
be granted.
4. Mr. Patil, learned counsel for the respondent no.2, on the
contrary, submits that the learned Single Judge as well as the Hon'ble
Minister have correctly appreciated the material on record. He
submits that if the restaurant/bar is permitted to be operated within
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the close vicinity of the college, there is every possibility that the
students of the College will indulge into vices and as such the
possibility of law and order situation being endangered in future
cannot be ruled out. Mr. Patil further submits that there is a bus stop
near the gate of the hotel of the appellant and as such great
inconvenience would be caused to the women passengers, who are
using the said bus stop. He further submits that Shegaon town is
known as a town of great saint Shri Gajanan Maharaj and in such a
town, the sale of liquor should be prohibited. He, therefore,
submitted that the Hon'ble Minister has rightly considered these
aspects while passing the order.
5. As already observed by us hereinabove, there is a
checkered history to the present litigation. In view of the dispute
with regard to the exact location of the restaurant/bar on one hand
and the gate of the college on the other, measurements were directed
to be conducted by the Commissioner of Excise on two occasions.
One of such measurement was conducted on 13.12.1999 in presence
of all the stakeholders including the respondent no.5 and
representative of the College run by the respondent no.5. However,
it appears that since there was a dispute with regard to the said
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measurement, again measurement was conducted on 05.07.2000.
While conducting such a measurement, the representative of the
respondent no.5 as well as the Registrar of the Engineering College
run by the respondent no.5 were present. In the said measurement,
the distance between the old gate of the Engineering College and the
Bar was found to be 225 meters whereas the distance between the
new gate opened by the respondent no.5 for its college and the
restaurant/bar was found to be 128 meters. At this stage, it will be
relevant to refer to Rule 45 (1-C) of the Bombay Foreign Liquor
Rules, 1953, which reads thus:
"(1-C) No licence under sub-rule (1B) shall be granted in
respect of any hotel or restaurant which is situated within
a distance of seventy-five meters from any educational or
religious institution or from any bus stand, station or
deport of the Maharashtra State Road Transport
Corporation or from the boundary of any National or State
highway :
Provided that nothing contained in this sub-rule
shall apply in respect of an existing hotel or restaurant for
which a licence in Form FL-III is held by the Manager or
Proprietor thereof immediately before coming into force of
the Bombay Foreign Liquor (Amendment) Rules, 1990.
Explanation :- For the purposes of this sub-rule -
(i) "educational institution" means any pre-primary,
primary, or secondary school managed or recognized by
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any local authority or the State Government or the Central
Government and any college affiliated to any University
established by law, but does not include any private
coaching institution;
(ii) "religious institution" means an institution for the
promotion of any religion and includes a temple, math,
mosque, church, synagogue, agiary or other place of public
religious worship which is managed or owned by a public
trust registered under the Bombay Public Trusts Act, 1950
(Bom xx/x of 1950) and included such other religious
institutions as the State Government may by order specify
in this behalf;
(iii) The distance referred to in clause (a) of this sub-rule
shall be measured from the mid-point of the entrance of the
hotel or restaurant along with the nearest path by which
the pedestrian ordinarily reaches, -
(a) the mid point of nearest gate of the institution if there
is a compound wall and if there is no compound wall, the
midpoint of the nearest entrance of the institution, or
(b) the mid-point of the nearest gate of the bus stand,
station or depot of the depot of the Maharashtra State
Road Transport Corporation if there is a compound wall
and if there is no compound wall, the nearest point of the
boundary of such bus stand, station or depot, or
(c) the boundary of the National or State highway".
It could, thus be seen that the prohibition for grant of
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license on the ground of distance would operate if the restaurant/bar
of the respondent is situated within the distance of 75 meters from
any educational or religious institution or from any bus stand, station
or deport of the Maharashtra State Road Transport Corporation or
from the boundary of any National or State highway. Clause (iii) of
the explanation would reveal that the distance has to be measured
from the mid point of the entrance of the hotel or restaurant along
with the nearest path by which the pedestrian ordinarily reaches.
6. The prohibition would operate, if the restaurant is
situated within the distance of 75 meters from any educational or
religious institution, from any bus stand, station or depot of the
MSRTC. What is the distance between two points is a matter of fact
which has to be ascertained by the measurement carried out on the
spot. The authorities had twice measured the distance and on both
the occasions, it was found to be more than 75 meters. It appears
that from the old gate, distance of the restaurant is 225 meters.
However, it appears that after 1999, another gate has been opened
by the respondent no.5 at its engineering college. Even from the said
gate, the distance was found to be 128 meters. It could, thus be seen
that the distance between the gate of the engineering college
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managed by the respondent no.5 and the restaurant/bar of the
appellant is more than 75 meters.
7. In that view of the matter, we find that the license could
not have been rejected to the appellant on the ground of the distance
being less than 75 meters.
8. We are of the considered view that the Commissioner
Central Excise vide his order dated 26.07.2001, correctly considered
the matter from right perspective. It will be relevant to refer to the
observations of the Commissioner, which are as under:
"4. ...The Collector has chosen to reject to grant the
licence to the Appellant through the report received from
the joint inspection team which measured the distance has
indicated that the distance is more than 75 meters as per
the rules.
5. It appears from the record that the Collector
has been influenced by the objection taken by the
Engineering College and nor the eligibility as per the rules.
I further note that Dean of the Engineering college is
himself the signatory to the Joint measurement as seen
from the report on record. The directions of the
Commissioner are very clear that the licence should be
granted licence if the joint measurement between the
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permit room and the Engineering college is more than 75
meters. The report of the joint Inspection mentions that
the distance is more than 75 meters. I, therefore, set aside
the decision of the Collector and direct that the Collector
shall issue FL-III license to the Appellant. However, I
further direct that this order shall not be implemented for
the period of 60 days so that the Respondents belonged to
the respectable Shri Gajanan Trust may approach the
Government for specific instructions if any on the subject
since their demand for not setting a permit room cannot be
accepted as the same cannot be upheld as per the rules
framed for grant of the FL-III licence.
It could thus be seen that the order passed by the learned
Commissioner of State Excise was strictly in accordance with the
provisions of the rules. However, it appears that while allowing the
revision field by the respondent no.5, the Hon'ble Minister has
considered the opposition of the respondent no.5 on the ground that
if a permit room is permitted to be opened in front of the engineering
college managed by them, it will affect the purity of the education.
The Hon'ble Minister has further considered that Shegaon town is a
town where shrine of Shri Gajanan Maharaj is situated. The Hon'ble
Minister further observed that people in the State of Maharashtra
worship the said shrine and everyday thousands of people visit there.
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The Hon'ble Minister further observed that in future the possibility of
the law and order situation being endangered, cannot be ruled out.
9. It could thus be seen that the factors which are taken into
consideration by the Hon'ble Minister are totally foreign to the rules.
No doubt that the view of the Hon'ble Minister, that in the cities
where the shrines of saints which are worshiped by the people at
large are situated, there should be no sale of liquor, is highly
laudable. However, such a practice has to be uniform and not
solitary. Mr.Patil, the learned counsel for the respondent no.5 fairly
concedes that in Shegaon town itself there are number of permit
rooms/bars situated. We would appreciate if the State Government
comes out with a policy of imposing total prohibition of liquor in the
city of Shegaon. However, till the time it is done, the the appellant
cannot be singled out for denial of license, if otherwise he is found to
be eligible.
10. We further find that the learned Single Judge has also
gone into the exercise which was not warranted in the extra ordinary
jurisdiction under Article 226 of the Constitution of India. When the
fact finding authority, in presence of all the stakeholders, had
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conducted the spot inspection and found the distance to be more
than 75 meters, in our view, it was not permissible for the learned
Single Judge to have redone the exercise in the Court room and come
to a different conclusion. We find that a glaring mistake in adopting
such a procedure in its extraordinary jurisdiction is apparent from the
order itself. The learned Single Judge has come to the conclusion
that the engineering college managed by the respondent no.5 and
permit room/restaurant of the appellant are divided by a compound
wall. Mr. Patil, learned counsel for the respondent no.2, with his
usual fairness, states that the engineering college of the respondent
no.5 is situated on one side of road whereas the restaurant/bar of the
appellant is situated on the other side of the road.
As such, there is no material on record, on the basis of
which the learned Single Judge could have come to the conclusion
that permit room/bar of the appellant and the engineering college
are divided by a wall compound. In any case, when the fact finding
authority, in the measurement which was conducted in presence of
all the stakeholders, had come to the conclusion that the distance
was more than 75 meters, in our considered view, there was no
occasion for the learned Single Judge to have come to a different
finding.
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11. We, therefore, find that when the Commissioner of Excise,
on the basis of inspection carried out by the competent authority i.e.
the Tahsildar in presence of all the stakeholders found the distance to
be more than 75 meters and allowed the appeal there was no
occasion for the Hon'ble Minster to interfere with the same and the
learned Single Judge to confirm the untenable order passed by the
Hon'ble Minister.
12.
However, one finding as recorded by the learned Single
Judge needs to be upheld. The learned Single Judge has come a
considered conclusion that there was no reason available with the
Hon'ble Minister to come to a conclusion that on account of the
permit room/restaurant of the petitioner, there was danger to the
law and order situation. The learned Single Judge came to the
conclusion that whatever criminal activities had happened within the
premises of the college of the respondent no.5, they had happened
prior to the opening of the permit room. In that view of the matter,
the learned Single Judge has rightly come to the conclusion that the
Hon'ble Minister has erred in holding that if the the permit room is
allowed to be opened, there will be danger to the law and order
situation.
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13. Insofar as the contention of Mr. Patil, learned counsel
regarding the bus stop being in front of the restaurant/bar of the
appellant is concerned, the said contention was not raised before the
original authority, appellate authority, revisional authority i.e.
Hon'ble Minister and the learned Single Judge. Hence, we are not
inclined to consider the said submission.
14. In that view of the matter, the Letters Patent Appeal is
allowed. The orders passed by the Hon'ble Minister dated 20.09.2001
and the learned Single Judge dated 28/29.09.2010 are quashed and
set aside. The order passed by the Commissioner of State Excise,
Maharasthra State, Mumbai dated 26.07.2001 is upheld.
(V. M. Deshpande) (B. R. Gavai)
kahale
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