Bombay High Court

Shri Durgalal Ruplal Jaiswal vs The State Of Mahrashtra And Others on 10 June, 2021

Bench: R. G. Avachat

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             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD

                        WRIT PETITION NO. 11090 OF 2019

 Durgalal Ruplal Jaiswal
 Age: 67 years, Occu. Business,
 CL-III Licence No.30
 At Sector No.21, Plot No.181 & 182,
 Gat No.129 & 139, Karmad,
 Taluka & District : Aurangabad                       ... Petitioner

          Versus

 1.       The State of Maharashtra
          Through Principal Secretary,
          Home (State Excise) Department,
          Mantralaya, Mumbai - 400 032

 2.       Commissioner of State Excise,
          Maharashtra State, Old Custom House,
          Mumbai - 400 023

 3.       The Collector of Aurangabad
          (State Excise Department),
          District: Aurangabad

 4.       The Collector of Kolhapur
          (State Excise Department),
          District : Kolhapur

 5.     Babu Vishnu Kurne
        CL-III Licence holder
        At Shirse, Taluka Radhanagari,
        District : Kolhapur                       ... Respondents
                                   ....
 Mr. A. M. Gholap, Advocate for the petitioner,
 Mr. Y. G. Gujrathi, AGP for respondent Nos. 1 to 4
 Mr. S. S. Thombre, Advocate for respondent No.5
                                   ....


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                                       CORAM : R. G. AVACHAT, J.

RESERVED ON : 04th MARCH, 2021 PRONOUNCED ON : 10th JUNE, 2021

J U D G M E N T :-

. Rule. Rule made returnable forthwith and heard finally

by consent of the parties.

2. The challenge in this writ petition is to the order dated

30.08.2019, passed by the State of Maharashtra in Excise

Department, sanctioning the transfer of country liquor shop (CL-III

License No.58) from village Shirse, Taluka Radhanagari, District

Kolhapur to village Karmad, Taluka and District Aurangabad.

Respondent Nos. 2 to 4 are the officials of the respondent No.1. It is

respondent No.5, whose country liquor shop has been permitted to

be shifted vide the order impugned in this writ petition.

3. Heard.

Shri A. M. Gholap, learned counsel for the petitioner

would submit that the petitioner runs a country liquor shop at

Karmad, Taluka and District Aurangabad. The respondent No.5 also

holds a license to run a country liquor shop. He would run such a

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shop at village Shirse, District Kolhapur. He had to discontinue to

run the said shop in view of the order of the Hon'ble Supreme Court

of India dated 15.12.2016. Application moved by the respondent

No.5 for shifting his country liquor shop has been granted in breach

of Rule 25 of the Maharashtra Country Liquor Rules, 1973 (for short

'the Rules of 1973'). The Collector, Aurangabad (State Excise) did

not obtain concurrence of his counterpart of District Kolhapur

(respondent No.4). The petitioner raised an objection for shifting of

the country liquor shop of respondent No.5, since his business is

likely to be affected. The population of village Karmad is around

6,000. As per the Government Notification dated 03.09.1983, the

sanctioned strength of CL-III license upto the population of 10,000,

is one. There is also breach of the guidelines prescribed under

notification dated 03.09.1983. In view of the said guidelines, it has

been prescribed that the place from where the shop is to be shifted,

should not be left unserved. The additional shop at the new place

should be economically viable. There should not be any objection

from the people from the place to which the transfer is asked for.

The learned counsel would further submit that there is exemption

from compliance of Sub-Rule 25(d) of the Rules of 1973 only in case

the transfer of shop is within the same district. Since it is inter-

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district shifting of the country liquor shop, the conditions provided

under Clause I to III of the Rule 25(d) of the Rules of 1973 are very

much applicable. Since the population of Karmad is less than 6,000,

shifting of the shop to that place would be economically not viable.

The learned counsel would further submit that identical question

had come up for consideration in the case of Vyankanna Ragalu

Nemaniwar vs Sheshrao Shankarrao Kerale and Ors. - Writ Petition

No.1010 of 1986. The Division Bench of this Court, vide judgment

and order dated 09.12.1986, set aside the permission granted for

shifting of country liquor shop. The learned counsel also relied on

the judgment of this Court in Writ Petition No.6312 of 2015 (Nagpur

Bench) (Padma Anjesh Golapalliwar vs The State of Maharashtra

and others) and the decision of the Hon'ble Supreme Court in

Special Leave to Appeal (C) No.12521 of 2016, to ultimately urge for

allowing the writ petition in terms of prayer clause [A].

4. Shri Y. G. Gujrathi, learned Assistant Government

Pleader (AGP) appearing for respondent Nos. 1 to 4, would submit

that the permission has been granted for shifting of the country

liquor shop in compliance with the relevant rules. The learned AGP

adverted my attention to the averments in affidavit-in-reply filed by

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the Superintendent of State Excise, Aurangabad. The learned AGP

would submit that the circular dated 03.09.1983 has long been

superseded by virtue of amendment to Rule 25 of the Rules of 1973,

dated 20.04.2005. The learned AGP meant to say that no policy is in

vogue as regards grant of license to run country liquor shop in a

particular area or town on the basis of the population of that

area/town. The learned AGP took me through the relevant rules,

circulars and notifications to ultimately urge for dismissal of the writ

petition.

5. Shri S. S. Thombre, learned counsel appearing for

respondent No.5, would submit that the petitioner has no right to

run country liquor shop. Respondent No.5 had to discontinue

running of his country liquor shop in view of the directions of the

Apex Court in the case of State of Tamil Nadu, Represented by its

Secretary Home, Prohibition and Excise Department and Ors. vs. K.

Balu and another -(2017) 2 SCC 281. He, therefore, applied for

permission to shift his country liquor shop from district Kolhapur to

district Aurangabad. The petitioner has made all efforts to stall grant

of such permission. He has, however, been unsuccessful. Respondent

No.5 has opened his country liquor shop at Karmad, district

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Aurangabad. The petitioner even instigated some of the persons to

file writ petitions to stall shifting of country liquor shop of

respondent No.5. It was found that the persons shown to be the

petitioners in those petitions, had in fact, not filed those petitions.

After having realised the said fact, the petitioner got those petitions

withdrawn. Respondent No.5 has filed a detailed affidavit-in-reply,

reiterating the stand taken by respondent No.5. According to the

learned counsel, shifting of the country liquor shop did take place in

compliance with the relevant rules. The petition is sans merit. He,

therefore, urged for dismissal of the writ petition.

6. Both, the petitioner and respondent No.5, have been

holding CL-III license for long. The Hon'ble Supreme Court in the

case of State of Tamil Nadu (supra), inter-alia passed the following

direction :-

" 29.5. No shop for the sale of liquor shall be (I) visible from a national or State highway; (ii) directly accessible from a national or State highway; and (iii) situated within a distance of 500 m of the outer edge of the national or State highway or of a service lane along the highway."

In view of the aforesaid, respondent No.5 was required

to relocate/shift his country liquor shop. He discontinued his

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business for some days. On 24.09.2018, he applied for transfer of his

liquor shop to village Karmad in Aurangabad district.

Rule 25 of Rules of 1973, speaks of shifting of license

shop -

" 25. Prohibition to shift licensed shop to any other place.

(a) a licensed shop shall not be shifted by a retail licensee to any other within a taluka without prior approval of the Collector;

(b) a licensed shop shall not be shifted by retail licensee to any place from one taluka to another taluka of the district without prior approval of the Commissioner:

Provided that, the number of licensed shops for such shifting shall not exceed 15% of the total existing licensed shops in any district which would be inclusive of the licensed shopped already shifted with prior approval of the Government or the Commissioner before the date of publication of these rules;

(c) a licensed shop shall not be shifted by retail licensee to any place from one district to another district without prior approval of the Government;

(d) the shifting of licences under clauses (a), (b) and (c), shall be subject to the fulfillment of the following conditions, namely:-

(i) that there is reduction in liquor sale continuously for last three years;

(ii) that there is no inconvenience of drinking of liquor to the people residing in that area;

(iii) that the Grampanchayat in whose area licenced shop is proposed to be shifted, has given no objection by passing a resolution of the Gramsabha; and if the shop is proposed to be shifted to any area other than Grampanchayat area, no objection of the Municipal Council concerned has been obtained;

(iv) that the proposed premises are free from distance restriction as provided under sub-rules (4) and (5) of Rule 24;

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(v) that the construction of the premises in which shop is proposed to be shifted is an authorised construction and a certificate of the competent local authority is submitted;

Provided that, the proviso to clause (b) and sub-

clauses (i) and (ii) of clause (d) shall not apply in respect of shifting of licensed shop which has been closed down or required to be closed down as per the provisions of the Bombay Prohibition (Closer of Licence on Resolution by the Village Panchayat or Gramsabha or Women/Social Organisation or representation by Voters in the Village or Ward of Municipal Council) Order, 2003."

7. The Superintendent (State Excise), Aurangabad, gave a

detailed report dated 26.03.2019, recommending the application of

respondent No.5 for transfer of his country liquor shop. It has

specifically been observed in the report that there has been a

compliance of provisions of Rule 25(d) (iii), (iv) and(v) of the Rules

of 1973.

Rule 25 of the Rules of 1973 does not postulate

concurrence of the Collector (Excise) of the District from which the

shop is proposed to be shifted. The ultimate power/authority

regarding approval for inter-district transfer of country liquor shop

vests with the Government. The petitioner raised objection to the

application moved by the respondent No.5. One of the grounds of

objection is a breach of notification dated 03.09.1983. It would,

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therefore, be apposite to reproduce below the relevant matter of the

circular:-

"2. Government has now reconsidered the matter and has decided that a few additional licenses for retail sale of Indian Made Foreign Liquor/Country Liquor should be granted. The number of additional shops for the retail sale of country liquor should be governed by two criteria. The first criterion will be with reference to the population of the village/town/city. The number of such shops in a village/town/city should be determined on the following basis:-

(i) For a village or group of villages with a population of about 1 shop 10,000

(ii) For towns with a population At the scale of 1 shop exceeding 10,000 but below for every 10,000 two lakhs. population

(iii) For cities with a population of 2 At the scale of 20 shops lakh and above. for the first 2 lakh and 1 shop for every 20,000 population in excess of 2 lakhs.

8. The Superintendent (State Excise), Aurangabad, a

responsible officer has filed his affidavit-in-reply, wherein it has been

averred that Rule 25 of the Rules of 1973 has been amended in April

2005. Since then, shifting of country liquor shop is governed by the

said rule. The affiant meant to say that the aforesaid circular dated

03.09.1983 stood superseded. Now, the permission for shifting of

country liquor shop is granted if the application in that regard

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complies with Rule 24 and 25 of the Rules of 1973. The policy as

regards grant of license to run country liquor shop on the basis of

population ratio is no longer in vogue. In para 17 of the affidavit-in-

reply, it is averred thus:-

"17. I say and submit that, the State Government has issued a circular dated 12.06.2017 thereby prescribing the guidelines for shifting of the licences which are affected by the order of the Hon'ble Apex Court and there is no restriction in the said Government Circular that, such licences cannot be shifted outside the districts and therefore, rightly, so the application of the respondent no.5 was considered as per the notification dated 29.12.2016 and the permission to shift the licence is granted."

9. In view of the aforesaid statement on affidavit, in my

view, the petitioner would not be benefited by placing reliance on

the judgment of this Court in the case of Vyankanna (supra), since

the issue therein regarding shifting of the country liquor shop was

decided on the basis of the circular dated 23.09.1986.

10. True, in the case of Padma Golapalliwar (supra), the

learned Single Judge of this Court vide his judgment and order dated

29.02.2016, had set aside the order of the Minister, refusing to grant

permission to shift the country liquor shop. The said matter was

carried in S.L.P. No.12521 of 2016 (Civil Appeal No.9166 of 2017)

before the Apex Court. The Apex Court vide order dated 17.07.2017,

has observed as under:-

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"From a reading of para 12 of the impugned judgment and order, it is clear that no policy has been framed by the State Government pursuant to order dated 22.06.2013 in PIL No.70/2013.

Consequently, the policy as existing on 03.09.1983 is still in force. That being the position, there is no doubt that the orders passed by the Minister in accordance with the Policy of 03.09.1983 is a valid order and the High Court was in error in setting it aside, particularly since there is no policy subsequent to Circular dated 03.09.1983."

11. The Division Bench of this Court in PIL No.70 of 2013,

has directed the State to formulate a policy as regards grant/shifting

of country liquor shop/shops on the basis of the population ratio.

12. It has been specifically averred in affidavit-in-reply that

unfortunately, the Hon'ble Supreme Court was not informed that the

policy under the circular dated 03.09.1983 did no longer hold the

field. In view of the statement in affidavit-in-reply, this Court has to

observe that applications for shifting of country liquor shops are

processed in terms of the Rules (24 and 25 of the Rules of 1973) and

not as per the circular dated 03.09.1983.

13. The petitioner has relied on another circular dated

27.04.1984. Clause-2 thereof reads as follows:-

"2. Government is also pleased to lay down the following guidelines in supression of those laid down in Government Letter, Home Department No.CLR

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1480/1101/PRO-3, dated the 2nd October 1980 for permitting shifting of C.L. III Shops.

1) Inter-taluka transfers are not allowed.

2) A CL-III shop situated in a village is not permitted to be transferred to a place having a municipal council/corporation.

3) Shifting of shops from one Municipal area to another Municipal area, even within the same Taluka, are not allowed.

4) If the limits of a Municipal Corporation are extend to include rural areas on the outskirts, transfers shops from such areas to any place in the original city limits are not allowed.

5) The place from where the shop is to be shifted should not be left unserved.

6) Whether additional shop at the new place would be economic viable.

7) Whether transfer would invite objection from the people the place where the transfer is asked for."

Moreover, according to the petitioner, shifting of the

shop in terms of Clause (a) to (c) of Rule 25 of the Rules of 1973, is

subject to fulfillment of the following conditions:-

"(i) Considering the sale of liquor of past five years, the sale of liquor of any two years of last four years shall be less than the sale of first year of this block of five years; or considering the sale of liquor of past five years, the sale of liquor of any three years shall be less than that of the annual average sale of the liquor for the same five years:

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Provided that, the licensed shop holds valid licence during the said period;

(ii) That there is no inconvenience of drinking of liquor to the people residing in the area;

(iii) That the Grampanchayat in whose area licensed shop is proposed to be shifted, has given no objection by passing a resolution of the Gramsabha; and if the shop is proposed to be shifted to any area other than Grampanchayat area, no objection of the Municipal Council concerned has been obtained;

(iv) ..............

(v) ..............

Provided that, the proviso to clause (b) and sub-

clauses (i) and (ii) of clause (d) shall not apply in respect of shifting of licensed shop which has been closed down be required to be closed down as per the provisions of the Bombay Prohibition (Closer or License on Resolution by the Village Panchayat or Gramsabha or Women/Social Organization or Representation by Voters in the Village or Ward of Municipal Council) Order, 2003.

Provided further that, the conditions as laid down in sub-clauses (I), (ii) and (iii) of clause (d) shall not apply in respect of the following situations; however, under such situation shifting shall be allowed within the area of same Gram Panchayat or same 'C' Class Municipal Council or same ward in 'A' and 'B' Class Municipal Council or same ward in Municipal Corporation as the case may be, -

(A) licensee whose premises are affected by the implementation of Development of Scheme such as road widening, and the like;

(B) in the case where the licensee is running his licensed shop at the place under the rental deed and the landlord or owner of the place do not agree to extend the rental deed; or (C) in the case where the shifting is essential due to Hon'ble Court's Order."

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According to the petitioner, the aforesaid conditions are

not applicable only in case the shifting is intra district and is required

due to the order of the Court.

14. It has specifically been averred in affidavit-in-reply that

clause (d) of Rule 25 of the Rules of 1973, shall have no application

to the present case, since after the Hon'ble Supreme Court's order in

the case of State of Tamin Nadu (supra), the State of Maharashtra

has issued the circular dated 07.06.2017, so as to ensure smooth

transfer/shifting of country liquor shops which were required to be

shifted/relocated in view of the direction of the Apex Court in the

aforementioned case. Clause-6 of the said circular would make the

same clear. Clause-6, therefore reproduced in verbatim below:-

"6- ek- U;k;ky;kP;k vkns"kkUo;s lh,y&3 vuqKIrhps LFkykarj gksr vlY;kl egkjk'Vª ns"kh e| fu;e 1973 e/khy fu;e 25 e/khy mi&fu;e ¼Mh½ e/khy nqlÚ;k ijarqdkuqlkj rj ,Q,y&2 vuqKIrhckcr egkjk'Vª fons"kh e| fu;e 1953 e/khy fu;e 24 mi&fu;e ¼4½ e/khy [kaM ¼Mh½ P;k nqlÚ;k ijarqdkuqlkj R;kp ftYg~;kr LFkykarj.k gksr vlR;kl LFkkfud LojkT; laLFksP;k ukgjdr izek.ki=kph vko";drk ulY;kph rjrwn vkgs] gh ckc fun"kZukl vk.k.;kr ;sr vkgs- "

15. As per the aforesaid clause, if the shifting is intra-district,

then no objection of the local authority is not required. So far as

objection as regards aerial distance is concerned, it would be

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apposite to reproduce the relevant clause of the notification dated

01.10.2018, as follows:-

"Provided that, the licenced shop, other than those whose application for shifting has been pending with the Collector, the Commissioner or, the State Government, as the case may be on or before the commencement of the Maharashtra Cuntry Liquor (Amendment) Rules, 2018, shall be shifted to premises where no shops with a similar licence or a licence in Form FL-II as appended to the Bombay Foreign Liquor Rules, 1953, is situated with the aerial distance of 1,000 meters from the proposed premises."

16. Reading of the aforesaid proviso indicates that the

applications for shifting pending with the Collector, the

Commissioner or the State Government, on or before

commencement of the Maharashtra Country Liquor (Amendment)

Rules, 2018, have been saved from the application of the aforesaid

proviso. Rule 25(d) of the Rules of 1973, came to be amended vide

notification dated 01.10.2018, whereas the application preferred by

respondent No.5 was dated 24.09.2018. The same is therefore saved

from the application of this provision.

17. Since the Superintendent (State Excise), Aurangabad,

found respondent No.2's application to have been in compliance

with all the relevant Rules (Rule 24 and 25 of the Rules of 1973) and

circular issued in that behalf, he recommended for transfer of the

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country liquor shop from district Kolhapur to district Aurangabad.

The State of Maharashtra, in Excise Department, approved the

proposal recommended by the Superintendent and thus shifting of

the shop took place.

18. I do not find any substance in the objections raised by

the petitioner, particularly in the light of the averments in the