Devram Savleram Mundhe And Ors vs The State Of Maharashtra Thr. ...
2021 Latest Caselaw 14910 Bom

        Digitally
        signed by
        PRAJAKTA
PRAJAKTA SAGAR
SAGAR    VARTAK
VARTAK   Date:
        2021.10.12                                                        12-wp 4918-21.doc
        20:42:31
        +0530



Prajakta Vartak
                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CIVIL APPELLATE JURISDICTION
                                       WRIT PETITION NO.4918 OF 2021
                  Devram Sawleram Mundhe & Ors.                        ...Petitioners
                        V/s.
                  The State of Maharashtra & Ors.                      ...Respondents
                                                         -----


                  Mr. P.N. Joshi i/b. Mr. Milind Deshmukh for Petitioners.
                  Mr. P.P. Kakade, GP with Mr. C.D. Mali, AGP for the State.
                  Mr.Moinuddin M.Khan i/b. Mr. M. Khan for Respondent No.3.
                                                         -----



                                                   C0RAM : G. S. KULKARNI, J.
                                                   DATE : OCTOBER 12, 2021
                  JUDGMENT:

1. Whether our educational institutions are so weak that they would

fear that the students would get adversely affected, if there is a restaurant

having a liquor licence in the vicinity of their schools, is an issue falling for

consideration in this case. The discussion is quite intriguing.

2. Challenge in this petition is to an order dated 22 June, 2021 passed

by the Principal Secretary, State Excise Department (for short, "the

Revisional authority") by which the revision application filed by the

petitioners against an order dated 30 March, 2021 passed by the

Commissioner of State Excise, Maharashtra State, allowing the appeal of

respondent no.3, arising from an order dated 19 November 2019 passed by

the learned Collector, Pune whereby the learned Collector had rejected an

12-wp 4918-21.doc

application filed by respondent no.2, for shifting of the FL-III licence to

another premises.

3. Respondent no.3 is holding a FL-III licence (for short "a liquor

licence") which was initially granted to him for his hotel namely Hotel

Moonlight, situated at Village Barav, Tal. Junnar, District - Pune. He

applied for transfer of the said licence from Village Padali Barav

Grampanchayat to the limits of Junnar Municipal Council i.e. C.T.S.

No.5087, situated at Junnar, Tal.Junnar, District-Pune. By an order dated

19 November 2019 passed by the Collector, Pune, the application of

respondent no.3 came to be rejected on the ground that such transfer of the

liquor licence cannot be permitted considering the objections which were

raised by the petitioners who were running a school in the vicinity of the

place where the licence was intended to be transferred, and that granting

such a transfer would lead to an impending law and order situation.

Although the rejection was purely on the basis of an apprehension of some

law and order situation, there are some significant observations as made by

the Collector in that regard. The first observation is the comment on the

enquiry which he had ordered on such application and the enquiry officer

submitting a report dated 30 March 2019 after visiting the site in question.

The report states that the distance between the main entrance of the

petitioners' educational institution and the place where the transfer of the

12-wp 4918-21.doc

licence has been sought was about 450 metres. He also observed that at the

time when such a proposal for transfer was made, on the north-west side of

the compound wall of the petitioners' educational institution, no gate was

noticed. However, he observed that when the inspection was undertaken on

27 August, 2019, it was noticed that a gate was installed on the north west

side of the compound. He reported that even the distance between the said

new gate and the premises of respondent no.3 was about 144 metres as also

the aerial distance was about 95 sq. mtrs. The report further observed that

at the distance of 375 sq. mtrs. from the main entrance of the petitioners'

educational institution, there already existed a hotel namely "Hotel Anand"

and that hotel owner was also holding a similar licence for the last 10 to 12

years. The report also records that the petitioners' educational institution

had not raised any objection whatsoever in respect of the said hotel. The

report records that considering the provisions of Rule 45(1)(c) of the

Bombay Foreign Liquor Rules, a distance of 75 meters was required to be

maintained, and as per the provisions of the said Rule, a licence could be

granted to the owners of the restaurants even though the distance between

the restaurant and the compound of the School or the religious institution

was more than 75 meters. However, the Collector only on the objections as

raised by the petitioners, other residents, and the member of the Parliament

from Shirur Lok Sabha constituency, a local MLA and one Adivasi Shikshan

Sanstha, Junnar, on the ground that there is a likelihood of a law and order

12-wp 4918-21.doc

problem, rejected the prayer of transfer of licence.

4. Respondent no.3 being aggrieved by the said order passed by the

Collector rejecting his application for transfer of the licence, approached the

appellate authority being the Commissioner of State Excise, Maharashtra

State as provided for under Section 37(2) of the Maharashtra Prohibition

Act. The appellate authority considering the provisions of the rules

observed that the distance from the educational institution and respondent

no.3's premises was 144 meters from the nearest gate, by which ordinarily a

pedestrian would take the nearest path to reach. It was also observed that

the Collector had in fact considered that the distance from the main gate of

the educational institution of the petitioners to the premises of respondent

no.3 was mentioned as 450 meters and that for a functioning FL-III licence,

the required distance was 375 meters. It was observed that there was no

assessment or any material from the police department that there might be

a law and order situation. Also before the hearing of the appeal, the

petitioners' educational institution filed a complaint with the Commission

for Scheduled Tribe Central Authority, against respondent no.3 stating that

if respondent no.3's licence is allowed to be functional, it would cause

violation of tribal rights. The said institution also filed complaints with

several other authorities including some central authorities. It was

observed that even after the hearing was concluded, the office of the

12-wp 4918-21.doc

appellate authority received a letter from the Commission for Scheduled

Tribe asking for the decision on the appeal to be given immediately. The

appellate authority/Commissioner, taking into consideration the provisions

and the report of the inspection which was on the record of the Collector, as

also considering that there is no challenge whatsoever to the report and the

observations as made in regard to the distance, set aside the order passed

by the Collector which was made on grounds falling out side the rules, and

allowed the shifting/transfer of the said licence.

5. The petitioners being aggrieved by the order passed by the appellate

authority filed a revision before the Principal Secretary (State Excise

Department) under section 138 of the Maharashtra Prohibition Act, 1949.

The revisional authority, considering the fact that there already existed a

restaurant at the distance of 375 meters and that the distance between the

petitioners' institution and the premises of the respondent no.3 is much

beyond the statutory distance of 75 meters, dismissed the petitioners'

application which is subject matter of this writ petition.

6. Mr.Joshi, learned counsel for the petitioners in assailing the impugned

order has two fold submissions. The first submission of Mr. Joshi is to the

effect that there was an apprehension of the petitioners that if licence is

transferred/granted to respondent no.3, there would be a law and order

problem. He submits that in fact, a fresh police report is required to be

12-wp 4918-21.doc

called for to ascertain such position. Mr. Joshi's second contention is that

this Court ought to appoint a Court Commissioner to actually verify the

distance between the two premises namely the petitioners' institution and

the premises of respondent no.3 as according to him, the inspector, who has

undertaken the site inspection on 27 August, 2019, has not appropriately

undertaken the measurement. It is his submission that if such a fresh

exercise is undertaken, certainly it would reveal that the distance between

the petitioners educational institution and the premises of respondent no.3

is less than 75 meters. It is his submission that such course of action was

adopted by the Court in the case of Vikrama Shama Shetty Versus State of

Maharashtra and others1.

7. On the other hand, Mr.Mali, learned AGP supports the impugned

order. He submits that the Commissioner of State Excise, Maharashtra State

is the revisional authority who has considered the factual materials on

record. He submits that the impugned order passed by the appellate

authority as also the revisional authority are in accordance with law and

rule 45(1)(c) of the Bombay Foreign Liquor Rules. He submits that no

interference of this Court in the writ proceedings is called for.

8. Having heard learned counsel for the parties and having perused the

record, I am not persuaded to accept any of the limited submissions as

1(2006) 6 Supreme Court Cases 70

12-wp 4918-21.doc

made by Mr. Joshi. It appears to be very clear from the order passed by the

Collector, that although he categorically observed the distance of the

petitioners' educational institution and the premises of the respondent no.3

to which the licence was sought to be transferred, was more than 450

meters as also the distance between the new gate of the petitioners

educational institution and the premises of respondent no.3 was also about

144 meters, he nonetheless rejected the application of resondent no.3 to

transfer the license. The Collector also observed that there was already a

hotel namely 'Hotel Anand' at the distance of 375 meters from the school.

The petitioners never objected to the said hotel. Thus the requirements of

the said rules stood totally complied. However despite this, only on the

issue of 'law and order' situation and considering the representations made

by the member of the parliament and other MLAs, the transfer application

of respondent no.3 came to be rejected by the Collector. Such reasons as set

out by the Collector were completely outside the purview of the rules as

also were unsupported by any materials on record. Such reasons appear to

have been given by the Collector on apparent political pressure brought on

him, as seen from the nature of the complaints made and the persons who

made such complaints. In my opinion, the appellate authority namely,

Commissioner of State Excise has appropriately considered the clear

position in law as required by the rules who passed a well reasoned and

detailed order. The Commissioner in doing so, did not succumb to any

12-wp 4918-21.doc

political pressure. I thus find substance in the contention as raised on

behalf of respondent no.2 that the appellate authority as also the revisional

authority have taken into consideration the report which was indisputed to

consider that the distance between the petitioners' educational institution

and the premises of respondent no.3, where the licence was sought to be

transferred was as per the requirement under the said rules. The

petitioners' contention before this Court in fact is a contention which is

opposed to the rule itself. Rule 45(1)(c) provides that the distance to be

maintained should be upto 75 meters and that the licence be not granted

within 75 meters of any educational or religious institution inter-alia the

educational institution of the petitioners. Although the observations were

made by the Collector taking into account the inspector's report setting out

distance of 450 meters as also distance of 144 meters by the pathway of the

new gate, and the aerial distance of about 95 sq. mtrs., which could be the

only relevant factors to be considered applying such statutory rule, the

petitioners never objected to these observations, nor did they assail the

report of the Commissioner. When such findings were made by the

Collector, admittedly the respondent no.3 had a good case on facts and law

before the appellate authority against the orders of the Collector. In fact the

Collector's order laid down a strong factual foundation to respondent no.3's

case in appeal. Even in the revision application as filed on behalf of the

petitioners a copy of which, although was not annexed to the petition and is

12-wp 4918-21.doc

tendered across the bar, by Mr. Joshi during the hearing, it appears that

there is no ground taken that the report of the inspector is not an

appropriate report and/or that the site report which was on record of the

Collector ought not to be considered. The petitioners, it appears, were quite

certain of their success before the Collector, hence, despite the fact that the

inspection report was against them, they did not take any steps to challenge

and set aside the same, at the first possible opportunity. Thus Mr. Joshi's

submission that a Commissioner be appointed by the High Court to have a

fresh inspection cannot be accepted. The Court would certainly not aid the

petitioners in collecting evidence.

9. Admittedly there is no ground to assail such findings of fact, which

cannot be reopened before the writ court in the absence of anything to

indicate perversity of these findings. None of the grounds as raised by the

petitioners in the revision application inspires any confidence that the same

ought to have weighed with the revisional authority to take a different view

than what the appellate authority had decided in the revision.

10. Mr.Joshi's reliance on the decision of this Court on Vikrama Shama

Shetty's case (supra) is wholly misplaced, as the facts of the said case are

completely at variance with the facts of the present case. In the said case

the only issue which fell for consideration was as to whether there was

12-wp 4918-21.doc

compliance of the statutory distance to be maintained between the

petitioners' educational institution and the premises of the respondent no.3

where the licence was sought to be transferred. Perusal of paragraph 4 of

the decision would indicate that in the facts of the said case, the

Commissioner of Police had raised an objection to the grant of licence on

the ground that there was a religious institution namely a mosque within 60

metres from the restaurant. The Court Commissioner appointed by this

Court submitted a report that there were two entrances to the mosque

which were within the mandatory distance of 75 metres. Looking at this

report, a learned Single Judge of this Court dismissed the writ petition filed

by the licensee. The order passed by the learned Single Judge was also

confirmed by the Division Bench of this Court and later on by the Supreme

Court in dismissing the special leave petition.

11. In so far as Mr. Joshi's contention on the law and order situation is

concerned, it appears to be a total figment of imagination of the petitioners

as there is no material from the police department to that effect as

concurrently observed by the appellate and the revisional authorities. The

petitioners hence have failed on both the issues as urged by Mr. Joshi.

12. In the present facts, the petitioner's institution ought not to have

formed such opinion that the education being imparted by their educational

12-wp 4918-21.doc

institution was so fragile that the students would get easily influenced by a

restaurant serving liquor in the vicinity. This for two fold reasons. Firstly,

this educational institution was never bothered about a similar restaurant

having a liquor licence functioning in the vicinity since last 10 to 12 years.

Secondly and most importantly, if the quality of learning and inculcation of

moral values in the children is to be of a standard, as what the 'Father of the

Nation' intended to imbibe in our citizens, then the petitioner's institution

ought not to have worried at all, about any student being adversely

affected, by any such place in the vicinity of the school. In my opinion, it

would be more imperative for educational institutions to create students

with strong moral values so as to prepare them to face tougher journeys and

challenges in life. An educational institute certainly contributes in creating

ideal citizens. Human virtues and morals can never remain the same. It is

thus more important that an endeavour of an educational institution should

be to impart such education, so that the basic human values and good

virtues are inculcated in the students, to make them ideal citizens. It is an

onerous obligation for an educational institution to devote itself in building

a robust society by imparting creative education at the school level which

ought not to be overlooked. It is thus a sincere hope, that these words fall

on the receptive ears of the institution and the institution creates a situation

for itself, that it would feel proud of its students.

12-wp 4918-21.doc

13. For the aforesaid reasons, I do not find any merits in the present case.

It is, accordingly, rejected. No costs.

(G. S. KULKARNI, J.)