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

Bar Licence – not  granted =

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 

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

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