Karnataka High Court
Prof G Shainesh vs The State Of Karnataka on 30 June, 2008
Bench: S.R.Bannurmath, Subhash B.Adi
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3N THE HiGH COURT OF KARNATAKA AT BANGALORE
DATEB Ti-'HS THE BOT" DAY {BF JUNE 2608
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THE HQNBLE MR. 3:137:05 S.R.BANNURM.%T'HV.'. .
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THQ-'éemmasszomea or: EXCISE
' ~,GC>VERNMEN"§" C}? KARNATAKA
£:".XC§SE DEPARTMENT
" VQKKALSGARA BHAVANA
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EX.C-iS§ DEPARTMENT
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4 SAROVARNS WiNE F'ARADlSE
NOE, N 8: 67, SADGURU COMPLEX
DORESWAMYPALYA, BANhERGHATTA RD
BANGALQRE-560 076. REPBY SR! M SANJEEV
MANAGING DIRECTOR, NUS SARVA$HAKTI
HOTELS VPT LTD
BANGALORE. szespoutmrrs J .
(B Sfl.KN. DA, COURT GOMMISSIONER
I.-SHEKAR SHETTY, ADV. FOR
SRi VESHIVAKUMAR, ADVFOR Ru-4
SRi.C.S.PAT|L, AGA FOR R1 TO 3)
This Writ Petition is filed under 227"of 7-]:
the Constitution of India praying to am: the reapcmdeiitrtzia
shift the 43* xespondenth liquor the pzvzscifat
with immediate cfliact giving cfihct "tow "Rule 5' .of*thc General
Conditions Rules, etc, " _
This Writ Fctition havmv " ;_ u reserved for
judgment and coming on for Px'onounOemg:1it,AAofbJ;I_1dg1nent this
day, 88311583 AI)! J.._._madcvAthc «V " '
This to protect and
pmmotc and particularly the
student 'V Institute of Management,
to as 'IIMB'), one of the pmmicr
by the Ministry of Human Rcsource
pt 10% torrnma. Petitioners-Ito 13 exam' to
:__Abc--t11c cttipldftvciésétttworlting in IIMB. Petitioners-14 and 15 are
.1 3ttxci<:1_;mvV§tI1dying in IIMB. Petitioner No.16 is a resident of
Road.
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2. The grievance of the petitioners is against the inaction
and negligence on the part of the respondents, who
entrusted to enforce the rule of law mt! protect it
interest.
3. It is atleged that, a liquor shop if
within 50 meters of range from the
IIMB, exposing the msidextts to a
nuisance in iocafity, to staying in the
hostel, which is mspondentfs
wine shop. In the Offioer, rm,
Bangalore xhade a request to the
zespondents:Vv-- When there was no
xesponse or the Chief Administrative
Oficer afidxvessefl Ionehvt' : letter on 9.10.2007 seeking
the matter for shifting the fourth
In the meantime, the 163* petitioner,
-- ht t""'~*%.vho ie the of the locality. applied for certified copy of
to fouxth respondent, by his application
2007. The third Iespondent directed the Excise
to furnish the documents sought for by the 16"'
V' under the Right to Informafimon Act On receipt of the
copy of the notification as well as the licence granted to the 4*
respondent, petitioners came to know that, the fourth
-5-
respondent has been permitted to shift the shop fimn its earlier
premises No.55. 2w Main Road, 12¢
Lakshxninamyanapura to Nos.65, 66 and 67, ,,
Complex, Bannerghatta Road, Baaagalom under l
Karnataka Excise Licences (General ,
(hereinafter referred to as 'the R11leef)._
4. it is alleged by the
for shifting the wine shop unszege e£'f¢tte~t12u1es is subject
to the xestrictions specified
5. Rule 5 licence to liquor
shop within M190 institutions
oficcs of Qmvegmr etc... Only in special
cimumstances; 'the could be relaxed. for the
xegson to and such mlexation should not
Object of the said restriction is that, the
aciiéitg in certain areas is sought to be
T' ' ated, mja' the liquor 221' esible. Consumption of
' " " iesveobnowztlous or deleterious to the health.
-- 47 of the Constitution enjoins on the Smte to
' prohibition as State poficy. The prohibition of
.aV..all"consumption of liquor was dear to the Father of the Nation and
if it is not posslbk either for or financial reasons.
@961'/'
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the only alternative sofaras the State is concerned, is to contain
the pmliferation of the activity. The power to control is an 'V
in the puhiic interest of the society. Liquor vending is "
the pub& health, morality and welfaxe of the it
no fundamental right to trade in liquor not j_
by the State against the pubiic interest.
7. The Wine shop of the 4"' reefiondent in
violation of Rule 5 of the and
agmhst the public interest. "4;--i.?;ii1t_ho1it31es, who
are conferred with of law, have
failed to it that, despite the
request moxie 3 for shitting the fourth
zespondentfs ahop; - authorifies have not
taken .;a'c:$ion.u.V etated that, there is no private
filing the public interest litigation,
the responsible citizens working as
Staff and students of Indian premier
' "
-- ifnisupport of their case. the petitioners have produced
it . . _ _V Viiphotogaphs of the mac' shop and the college and hospitals
in the vicinity. A sketch is also produced to show the
.3-
location of the wine shop and it is stated that, the Wine shop is
Within the prohibited limits under Rule 5 of the Rules.
9. The Wxit Petition is opposed by the State .
objection statement It is stated that, tl1eHwrit 'isv:11ot ll
maintainable as them is an alternative 1aaea3étarlapg5aa1
Section 61 of the Karnataka Excise' Act
that there is no dimct access the
entrance of liquor shop. Thet7e":is bettvcetltl tlle mad
and no opening of median sepamc Police
Authorities and the been illegally
made by the msictlentsll Sitch opening cannot
be taken measuring the distance
between the éicational institution. In this
mgani, thastate letter dated 10.9.2007 written
V the Commissioner of Bangalore
put grill on the median to prevent the
mad. The State has justified its action
that, it is a retail liquor shop where no loose
acofosumpfion of liquor is permitted in the premises. it is
ozliyr in sealed bottles and furtlaer stated that the shop is
within 100 meters of radius from the objectionable
.l.i:1stitutions. That there are two other shops operating from the
last four years. The Inspector of Excise inspected the spot and
-93.
enquired with the neighbours and has prepared a spot mahazar
before granting the permission under Rule 23 of the Rulese
10. Respondent No.4 has filed statement of it
interalia. stating that, the wine shop is meant i
and does not affect any residents or ' j_
the petitioners is not sustainabhe» not it
violative of Rule 5 er the Rules. That ehep-:_tt:
100 meters from the educatitintgl hoefiitaisiiior any
ofice of State or Central a residential
locality. The 4'3' of median in
front of the opened. That the
authorities the licence and
on satistiaction 'ti-ermission is not contrary to
Rules, the The Wockhartlt and Apollo
nearly 313 meters away fmm the
liqnox ehep; that there is another restaurant in
Vthe "Mohan Restaurant' and "Mohan Kiran
the compound of mm and the seed Bar is
the Excise Rules and further stated that this
it it-f"zsesvt;:t5on1:lent has invested huge money and the liquor of indian,
and several other brands ate sold in sealed bottle and
ejino consumption is permitted in the shop.
-10..
1 1. Petitioners filed rejoinder to the objection filed by the
State as well as 4*" respondent, interalia. explaining ~
opening of the median is in existence and also .
person, who wants to reach the liquor shop, to ll
cross the zebra marking to cmss the e
access to shop. It is alleged the V
fallen into such trap in so the
context and Vof entloinement
Pefitioners also stated that the et'.~a distance of
400 meters away.
12. some time felt the
necessity to find out the
actual measnfenient dated 14.12.2007 by the
consent of the Kl.'N'.l';uttegowda, learned Counsel was
tlotnnlissioner to cany out the necessary
of the memo of instructions g1ven'
the Commissioner submitted his report on
and stated that, 4*!' xespondenfs wine shop
at of 49.8 meters from the center of portioo of IIMB
V" and stated that there is no direct access to IIMB portioo
% middle point of the shop. Further smted that the
tfwmeasurement taken from the centre of portico of IIMB to the
opening of the median and to go to the right and reach the door
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Section 1 16 of the M.V.Act. all signs should be exhibited on the
roads and admittedly there is no zebra crossing in front of
The measurements taken do not tally with the it
Rule 5 of the Rules.
15. Since the allegations weie
petitioners, the petitioners filed rejoinder
respondent cannot take such a
in the Commissioner work. V 16*' petitioner
is not a fictitious person novrenyiof is related to
the fourth ioontacntions raised by
the petitioners the petitioners and
their status; Insofar as the
161* petitioner that his address is not
disclosed the said person would
also denied that any person called
iiisljworking in HM. It is specifically alleged
around the fiquor shop, who claim'
theznselves bouncers for the Proprietor of liquor shop and
"thie'atened the 16th petitioner if he attends the Court
' ' j -.CJomIni§ssione1's work.
In View of the allegation, this Court by onier dated
directed the learned Counsel for the petitioners to
keep all the petitioners present with documentnxy evidence
.;3.
regarding their identity and place of residence on 18.1.2008 at
2.30 p.m. In response to the same, on 18.1.2008. the
petitioner was kept present along with the rental ~ 3
pan card contaJ;n1n' ' g photograph. The Court was * H
regard to his identity. This court aficrjheat ';n"'~a. g 'for;
also directed the Government Advocate
records relating to the grant of to.the4*'3
The Government Advocate has pmdncezih
1?. Sri..M.R.Nai;k. leamed 'gfixppeaflng for
the petitioners *_- x 47 of the
Constitution enjczii1*.~§'Vp_on:~tiie.VSi:§;te"~?o prohibition as a
State 47 of the Constitution
is that, the a policy for prohibition of
liquor ievnot possible at least to regulate
adjxdom' mx" :V'Vsc' ttttt "its eifect and it is in em context,
thofigli did introduced total prohibition, but has
Excise Act with an object to regulate
possession, import, export. purchase
{~.'.VV'and:t:"¢~f liquor and intoxicating drugs and levy duties of
V" thereon. He submitted that the Act is intended to
o for a unified regulation ofsale and supply of alcohol, to
itjtpromote fundamental objectives. It enjoins on several
duties upon the licensing authorities namely, preventing crime.
.34.
disorder; public safety; prevention of public nuisance; protection
of children fmm harm. In View of Artie}: 47 of the Constitution,
indisputably the public health in society plays a vital
the said expression, the makers of the Constitution
the gem of heaith of public and attending pmznotieza er. " A
practice. it is in this regard, the was
introducing the restricfitmn on or 'V
main in liquor, by prohibiting aV'cEiVsfs;:"§eea'a;>fVVV100
meters from my relifious V\i}fxstitI1tieiis"VVor any
residential Jsocaiity when: the m*h_ omam fly
belonging to Scheduiee
13. and submitted that
the object of the establishment of liquor
shop in ' in furtherance of the goal
ghee: "of the Cdhstitution. When a prohibition itseif
cane various reasons. the only alternative
the is or regulate a trade thereto. He further
§g'1';1=;;,itt1:d' ea: restriction under Rule 5 is imposed in
where the people eongtegating either for religious
educational or p}ace of omces, those places may not
" and near such places, the activities of sale and purchase
efof liquor be prohibited. This Rule advances puhiisc interest,
morafitv, tranquility, decency and safety of pubiic.
.. I5...
19. He submitted that the eligibility condition for grant of
liquor licence have to be scrutinized strictly. not 'V
loopholes. By experience it is noticed as to how
manner and by what means and methods, it
secured and how the provisions of the J
The object is to make an cndcavouzjto it
The State cannot look at the
revenue. The mmnooont V A a:iiiV""sfiit1:to1-y
obligation is paramount in with which
the obligation is VVtvVtz(§f'lé-onstitution of
India. There is a of public filth and
welfare in of liquor is
Confirmed. __ - o .
20. the Ruxos ooo submitted that.
,5 (2-38) power on the authority to inject tho
apfilioation, application is found in order. in order to
tnorality. tranquility. dwcncy or safety of
ior other reason. Rule: 5 sub-rule (1) restricts
or for sale of liquor within the distance of 100
any religious or educational institution or hospital
. of the State or Central Government or local authority
[residential locality' where the in' habitnnts an: pmdomman' fly
belonging. to Scheduled Castes or Scheduled Tribes or within
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220 meters from the middle of State Highway or National
Highway. Referring to Rule 5 sub-rule (1), he submitted
object behind Rule 5 sub-rule in is to ptevent the "
licence of sale of liquor near such places, which 1
be against morality, tranquility, J
public interest. He further 'sub-hxfule' (3) submitted that, for the purpose of the to be measured aiong the ncmcsi.pamwayhy ordinarily reaches, adopting of the shop or mid-point hospital or ofice as the 100 meters as taken from the raids» point of the the gate or the entrance of the religious or as the case may be. from where can reach the shop. He further that, cannot be undexstood to mean that the has a mute along with the foot path and then cross the that a zebra cross or at a place where it is ear- , igr oiossing. The object behind this rule is to prevent 33 to a consumer of liquor to the shop from the i T institution or a religious institution as the case may it cannot be understood to man that the consumer, who has easy access to the place othezwise than the zebra crossing .17..
cannot be considered for the purpose of Izxeastnememztt, object of the rule is not to encourage the opening of wine shop, prevent.
21. He submitted that, the anthority»Vooncer'ned:.::jto '4 the licence. has to apply the rule perspective. In this regard, he submitted thattthe of rule must be in aocoulanoe with for which the rule is made. He jt1to.t,a of the rule clearly envisages ms... to the liquor shop within the licence should not be submitted that the licence not based on any verification of records or Further submitted that the licence is inspection alleged to have been taking into consideration the authozifius have wanted licence on ,-..t11£ basis-gt epot mahazax'.
:>,2._ to the Court Commissionefs report and pxepamd by him and submitted that the shop in ttttotteefiott is situated within thc radius of less than 50 meters, if the pathway is to be taken. the shop is situated at a S of 84 meters i.e., the midpoint of the shop to the .13.
midpoint of XIMB gate. He submitted that. taking fxom any aflgkt. the shop is within the prohibited distance. As the Police Commissioner's saying that the opening of A' unauthorised. he submitted that the Police ' ~ any reason. and in oitler to support given a letter which has no relevance the of V i
23. In this regard. he oI1 a'i:hoi' Bench judment of this KLJ 570 in the matter of KARNATAKA "1iS.SOCIA'HON (R), BANALORE AND omens and held that the amended __ _ by uialciug muor mamessthte o'r't._ t;'ue those mass which fall within the; the policy as such cannot be pmhibition cannot be ihtmthtocd.
for the State is to contain or regulate jftize the proclivity to think is contained, at any ....'.j'thtte in 7-areas. the tendency thereto is xeduced to some effect of the rule is to reduce the pmclivity to drink 'i'i:"i11e:::1iqiJ2or and this is the object of the rule, it cannot be held as and tmteasottahte. he submitted that this Court also iiobserved that, the prohibition of liquor consumption is a traditional statute ever since licences are granted. such -19- condifions are already prevalent in one form or another with less or stmnger rigour. He submitted that the object is to liquor ordinarily inaooossimo to the people and _ such institution referred to in Ru}: 5. Wifle "
decision of this Court reported in 1993(3}_KI..J.. 22.330 the ,V 0 if of 3.1»: RAGHURAM AND OTHERS ,-vse_- op V AND 01113123 and submitted that no right to deal in liquor and the resti'ieiion vi '1JJ3dI":I' 5 is in the public interest and
24. He a" Court reported in 2006 AIR._SC w._ or VIKRAMA SHAMA s1=11«:7'ry oo. AND omens and submitted distamoe and not the nrest &ista11ee'; ., to this decision, he submitted three gates to the mosque and sugfg"e$:ti0n'iweS--«-:'to take the distance from one of the gates, iwlfrich ii'I'hc Apex Court has observed that the stress " the nearest gate rather than the distance to the the applicant. He submitted that. even in the seed rule is identical. He also rciicd on another decision of Apex Court reported in 2006 AIR sew 3058 in the matter of ASHOK LENKA -vs- xzsnrmxswzrmm 02313125 and submitted -29- that the applications for grant of licence must undemo strict scrutiny test and they should not be considered mechanically. The information furnished by the applicant must undergo satisfy the scrutiny test. The State should not treat "
Dalfmg with its privilege only as a means of H revenue. The earning of Ievenue only constitutional and statutory obligations. '' Weflare is one of the factors to be the - cc. V _ _ fl ._ I
25. He further Ielied oh ' moot or the Apex Court reported in zopejléhsa of smm or _ -33$' NAGPUR DISYILLERS, NAGPUR AND 'AN()1I}IERVi-.te'd:.":estBthimed that the Apex Court taking qaotioe of "the" that more and more of the yotmgej " is getting addicted to liquor and to consumer and also become an many and why the State in the face of ' " 'A47 ofathe Constitution should encourage that too Vi e;nresh'ictedl3r. the trade in liquor is something that it h to appmciate. The only excuse for the State for not the mandate of Article 47 of the Constitution is that, revenue is generated by this trade being used for meeting the financial needs of the State. Referring to the said decision. U2
-2}.
he further submitted that the Apex Court as well as this Court have repeatedly held that the restriction must be implemented and all the applications for grant of "
undergo strict scrutiny in regard to public health," T to L morality and also apply the rule in its referred to the decision of this ILRii'_9'8;6 537 in the matter of "of KARNATAKA and submitted V ms: 'use so 'vote; has sumcism interest against ins maiafide Governmental the the to public interest against action.
If the magnittgdeof fiatezest is of the highest order, the its uccessaxy.
26. as reading of Rule 5 and iveportfl the xeoonds produced by the _ the distance of the shop clearly falls vama and submitted that IIMB being a. institution and if the liquor shop 'm «-eoutinue, it would not only harm the students and but it will afiect the public morality and public
-- cause nuisance. He mferred to the photographs and «sketch produced along with the writ petition and pointed out that. just opposite to the main gate of IIMB. the shop is situated .r £43)' .22- and there is a opening of median Where people cross the road and the vehicles take 'U' turn, which is easily accessible to the students and the public, which will harm the career of students. general public and also cause nuisance in mo;on=o;o A4 regard to the petitioners' interest, he 1 ' petitioners are the Professors, teaching eezd _ students and residents of said 1'j1e3.'r"have 'V or private interest invoived in this 'Their to pmhibit such shops, which 2 tiie rules and against the public intense V' L
27. He also V» has been conducted ner taken by the authority, the authority ehe licence detrimental to the pgblic .S117..:S}3e1*:A:.7:i1ev learned Counsel appearing for the mspoooeooo that, Rule 5 restricts the liquor shop ego" of 100 metexs. Rule 5 has to be understood stxiej; moo. He submitted that there is a median dividing them is no legal opening to cmss the mad. If the , _ is to be taken from the footpath to zebra cross and to shop, it is much more than 100 meters. Under the provisions of Karnataka Trafic Contno1Act, the authorities have
-23.
got right to regulate the Home and under the Kamatalca Traific Central Regulations, the pedestrian cannot cross mad _ he has to cross the mad only when there is a _ pedestrian crossing such as zebra crossing. He V' " 9 opening of median referred to by the "i "an:
opening and it is supported by the letter the= ed 'V written to the Bangalore ' T the median and also for fl that the Trafic Control Act the opening of median. Just be treated as the opening atisi1hb1e"to3.t the entrance of the shop.
29. 5 "specifically requires the measurement mid-point of the shop to the the nearest path by which the reaches. Reading of this provision tenvisa' path by which pede-mm' ordinarily' rest: hes. understood in the contonnity with the trafic it and athefltpxovisions of Tralfie Control Act and not othexwise.
HgA~ta1s§":efened to Scct2o' n 69 of the Police Act and submitted is no pedestrian czoss as required by law. The median is iilegal and not permitted by law. The Assistant Police Commissioner has in xeply stated that, it is not .24..
opened by the Police and law requires that there has to be a pedestrian cross. to cross the mad. In the light of these requirements, the distance has to be measured from the foot path and the zebra cross and to the I}3i£i*p0iD.t of the shop esiiti cannot be measuxeti from the mid-point of the shop A V' point of the institution straightaway. i
30. He also disputed the by , Commissioner and stated that prepared a sketch. but has not 'He faixther submitted that, when there it requires evidence and this decide the disputed facts: He there is an alternative remedy under Act by means of appeal to the Deputy; ' ienci when there is a statutory the petitioner cannot invoke the yun' 'adiction I _v theconstitutioii.
_ that the public interest means.
" ixiteiest ofthe general public when a class of community et1'»iiitemst and this case is filed to vindicate the persona} . there is no public interest involved. He also that the hospitals are situated beyond 100 metes even aeeoniing to the Conimissionefs report. -25-
32. He further submitted that the pctitioncm have not come up with the clean hands and they cannot public interest petition. He also submitted that it people claiming themselves cannot file a pubiic V' t without then: being eicment public inte1j:¢:st.:::A4F"t;i'the:f' that, except this institution, no other it objection nor any other institution " As mgazds to the educational snssgmfion; it is a private institution, it does iiivot' meaning of educational :'tx;t:"-3t:itI:r':;.t:.*.<=::¢.is'V'_~.. 28 of the Karnataka Excise"'A§2. figgg. no licence is invalid for 5 not mandatory. but it is only dixecctoijy, in the light of the other provisions. Wtiénaitine of the Act do not invalidate the iacepoc the provisions of the Act would pie:veeii1"cvcr--v He also mfcrned to Rule: 5 sub-ruk: (2) and H .. if the approval is gvcn by the Eaten if it is less than 100 meters, it cannot be tub; ifiiialid.
. support of his case, he relied on a decision of the reported in 2004(1) sec 712 in the matter of i'i)}£ARAM pm?' AND omms ---vs-- UNION or INDIA AND OHJERS and mfcrmd to Head Note-U in reference to the .25.
disputed question of facts; ILR 2004 KAR 1214 in the matter of SMTSUSI-IEELA DEVIAND O'IHERS -vs- STATE OF KAR1VAT43I'f%%§;e . _V REP. BY COMMISSIONER, BANGALORE AND mfcmnpc to alternative remedy; AIR 2001 SC 320853. Z of PUNJAB NATIONAL BANK --vs-- PC. 5&3» rcgazd to bar on entertaining a petiti¢:$n_ ié dn 7 V alternative remedy; 1992(4) SCC "the DAL ----vs- H.S.CHOWDI-IARY the public interest. He also subxx'::Vi.tte_(Vi Court has observed that writ {zindicatc their personal interest. reported in AIR 1994 so 8S.f3 i:ii S.f§'.CII1:iNGALVARAYA NAIDU (DEAD) BY LES .----§}.«s- BY LRS a; omms and submitted page 'the.% cannot be entertained if the hands.
Advocate supported the grant of licence £§o".ebjections were zmcivcd from the public giant bf the 4*'! respondent. The J .P. Nagar Excise ' panchanama and based on the spot mahazar. the report and the authority ganted the licence by 'vééfisiaeiing the send" neport.
%f3~ .28- consideration ibr the purpose of measuring the distance and not the distant one, which is otherwise not practicable.
37. In the light of the above facts and the V' Imsed' by the respective Counsel. the question fer u u eonsidezation is-.
'As to whether, for gram of to pang:
center point of objedioaialgie ._ 5(1) or along P'
38. To on locatton of the liquor shop, m to why the restxicfioti Constitution of India cast a duty level of nutrition and the standard at' "anti te public health. In this regard, tt_ge'~=i1;ty en to make an endeavour to bring abeutt the consumption of liquor except for intoxicating drinks and of drugs are __'mj1;rm~'.f us :5 health; 6 .29-
39. From the Article 47 of the Constitution of India. eksar that, consuming intoxicating drink or drug is
40. sri.H.M.seervai in his Vol.!I, kk noticed that. 331 the sections of the ix1oifo<.$iog«.V i7 Mo community, whose by the Komnic injunction ..1elat'io:~;LVV:Wo3 "i:r;'to:ocoting supported the insertion of sueii is observed as under:
"'I'he pmf£a'bfii_on;_ of fiquor had long been a National and?aits- Vin Alf: 47}reoeived support fiom social habits were rs'irg'oroeci .~by_ irgjunaion against Art.47, it that alcolhol ('the intoxicating ingredieni of liqzor} is a 'narcotic'. a word neplao.-sd by the 'word 'depressant' to describe the swnefiaffieds popular beliefthat it is a. .V ' Ibis not mere accident that into:a'oat¢'ng weather V . 41. .Wl1£:'sIV::1. constitution was pmpamd. an elaborate "made as megaxds to prohibition of intox1oa' ting an intention ofachieving the goal ofthc preaching of Gandhi and also having regard to the fact that, same been approved by all the communities. we ..3()..
42. Impormnce was given to the public heaith and social movement and impact on the society. it is in this backgrouzid, though there is no total prohibition, in View of several endeavour was made by several States to consumption of intoxicating drinks and drugs and it separate legislations were made by the iofie legislation is not to encourage the ' oonstimtition, tees regulate and to xeduce the Iiossible having regard to its effect on in the State plays a posititre role activity of selling liquor in oeztseijrii the liquor inaccessible in one Way or the other are ._e1Jer since the licences are granted may with less or stronger rigour.
he ifvsiation in its wisdom has chosen to restrict _ the shop or liquor shop within the vicinity it _institiitio1:;e' public ofiees, hospitals, educational i Where the Scheduled Castes or Scheduled predominantly live. The object behind the said is to prevent an easy access to the liquor shop, to the young people get addicted to such vices, to maintain i "sanctity around the temple premises and also keep the
-3}-
its letter and spirit.
Government oficials and employees away from such vices. it is also noticed that, in this age of advertisement, advertising agencies are giving advertisements in such a Way, which is' attracting the younger generation. These imposed to maintain the purity and sanctity in 3 t In the name measurement, the authofifiee iv to grant permission, instead, should. the tgio-viieion V
44. In the background of Rules requires to be considered. Rule 5. sub--;'u};e:.( under:
"5. Rout-tct19Ic'__i;q; qr shops.--(1) No I:'oenmt_--forjs;1le of to a liquor shop or _'s'e.lec£edA_ with-2e'n a distance of 100 meters from 'any 're}"~igiou.§~t.of' educational institution or Hospital orvany Oflioeef the ;5"t:1"te Government or Central Govenmwrii tor '.At4fl§4)Iilies or in at msiderdiul Iooality, _ where the inhxibitants are predominantly V. beloq/;;gi:mgt'~to or Sdwduled Tribw or '=w:'thin'ai..dJstanoe of 3220 metres from the middle of the '~._ _VHigh-ways or National Highways:
._ where a shop is sanctioned to a village the popuiation of which is Jess than two thousand _ five such shop shall be located outside the 2pfesiclera1iaL1;.lo(:odity of the village.
' . ¥(.3}'-Por the purpose of the rule while measuring the diastanoe specified in this rule, the distance shall be measured along the nearest path by which the pedestrian ordinarily nsaahes, adopting the mid-point of " the entmnoe of the shop and the mid-point of the nearest gate of the institution, hospital or oflioe if there is a compound wall and ifthene is no compound wall, the .32- mid-point of the nearest entrance of the institution of the ojjfioe. ' Rule 5 sub*~ru1e (1) mandates that, no licence shall ., for sale of liquor withJn' a distance of 100 meters = H educational, hospitals, ofice of the State:'of'C:en;1ial or local authorities or residential 'L , are predominantly belonging to (log:-ltes Tribes or in a case of highways. Vesmfomex to the distance, sub-rule (3) Spec1'fiR' 5' -- shall be onto ' reaches» usual, normal, common, loivlestsblishedlorder, settled, customary the mmning of 'ordinarily' cannot be only the designated mad or pathway not available to the consumer of fiquof shop. is to restrict the consumer Within 100 institution. and to make it inaccessible rule has to be interpreted in furtherance of M object: Rule 5 is framed in furthemrace with the object 47 of the Constitution of India, it cannot be said _ measurement has to be taken along with footpath then zebra cross designated for crossing and again to footpath and shop. If otherwise there is a Way to reach. the liquor shop -33- and it is aocessible to the consumer, it cannot be ignored that such a way is available for consumer, who can ordinarily reach. It is unacceptable that the consumer of liquor will have go to liquor shop according to trafic signal. [V dd
45. The argument advanced by measurement has to be taken alo}1g"'with j reaches the zebra crossing measurement is to be taken side' of to reach the shop is not aoc>epte:bk."' 'ohi€.Ct..i§behind the provisions of Rule 5 ie shop in cextain areas. The object=ot' excuse to grant "a the restriction can be of Rule 5 of the Rules.
46. In the benefit of looking into the 2 t_ the records we %d that, on 3.7.2007.
the'"F.xciee draws a mahazar by melon" g an enquiry' and accepts the measurement submitted by g the uejapliearitv as true and submits his report. The authority 'A the licence on 3.7.2007 based on such a report by .' that there are no objections from the neighbours. it is T ' 'further stated that there are no institutions within the radius of 100 meters. Even the authorities have understood that the ( r . A ' 1'34?-34-
measurement is by means of radius from the center point of the shop and not the zigzag measurement along with footpath , zebra crossing. etc... In this case. just across the gatewof there is an opening of median and on the other---$ide,A er win' :2 shop and if straJgh' t measurementȎsAtaitenV; j 50 meteis, if the measurement is eke :i}e_., at the opening. it is 84 meters.
47. From the iecoraisiwe has not at all taken the measurement Rule 5 of the Rules. The Rcveniie to discharge his function in casual way. he draws a mahazar, does not take the actual measureinene given by the applicant He does not miiireiiveriiicationt the measurement in pursuance of _ the s1:e;tch~sub1nittetlV__hy.the applicant. The Excise Inspector or in is required to verify the spot cannot a report. He owes a duty to take exact V _ mea$£nemen't the center point where the shop is sought to to find out as to whether there are any institutions within the radius of 100 meters from said point. From the neconils it appears that. with an " intention to grant iicence or permission. the report is submitted.
xé6I~}
-35.
and methods, the liccnccs an: secured and how the provisions of the Rules are circumvented.
49. Recently in similar circumstances, the decision reported in 2003(4) sec 11 1 the p f '.éTAfrE;oF UTTAR PRADESH AND OTHERS M' AND OTHERS has considered t11c«_';eq1iim!1'xicnt L. in ciosc pm-ximity to certain msfifagfinns that the zcstricttlon of I00 a.-5:; negmd. at Para-11 it has obscured "11. We figmcigree u:z:m>:r.e by the High Court also of that 100 m or 300 fl (approx) sfwruid aifieria where the Excise 'five any licence to a shop We"h'ope and trust that the lbafiso (§mmwnj&&umar*qf--fiha iflafia shwdl flake ink: mnsgidmusgn' s'u1~:-m_zg[...ga:;_.ry* Rule 5 qf the rm Exaise Rules see shops or sub-shops are opened within a.__of._1G0-'m or 300fl (apprwuzj cfa piano :3} public msort school, haspitai, place of womhip or or to'*'fhg__esztranoe to a bazar or a rwidential A "L'mlc'vi1y. tntetpre' taiion of the word 'doseproxt'mi1y' » V " » was t;agt¢évt}w:'efore it was rmkused by the authorities. 'lherefore, with the interpretation of the 'clam: prwa'm:'ty' by the High Court, the mafierizasbeenputiniherightperspectiveandthe V, ¢flfi¢bi Inns lmunz cieauwxi 17ummy&»%g flflhhq; inwo n : Lmnsidemtion all the fads and drwnzstcmces of the , dame, we afiirm the view taken by the High Court iflS0fI'11' as fixing the distarwe of 100 m or 300 j! fqppmxj from a place qf public resort. sdwc-I. hospital. plaoeofworshiporfactory, ortotheentmrweioa bazar or a residential among is concerned where no shop orsub-shop shall be opened under the U.P.Excise Act and the Rules fmmed thereunder. "
F E", -37- While consideiing the same. the Apex Court has taken a View that prohibition men should be 100 meters radius. If theravziius is the criteria, then irrespective as to the existing' ._or otherwise. the pmhibition or restriction should 4% opening of liquor shop within the md_ius._of the . _ center point of the etc.. as contemplated under Rule _the_ i_
50. The next question' ' by the learned Counsel for msponeient had no locus- stcmdi to observed by us, the pceeencreeic and students of man. From "by: the petitioners, we are satisfied that the geeuan with an object of vindicating any _ or pz'iirate:__g1'ievsnces nor the petitioneis have any in A citizen and a voter has suficient interest to entrusted with the governmental power _ under the 'constitution and the laws should cany on the i fairly and accoxtling to law and in bonafide Rule of law being one of the basic structures of the 'A:.'(3(.>nastitut:ion, if it is breached, a citizen can seek Iedrcss in the The vioiation of rule of law is parse injurious to public interest. In this case. fimn the records produced before us. it is 'institution, hospitals or State"or"---. it ifzentwpp s,: L' -33- clear that the licensing authority has circumvented the Rule 5 in the matter of grant of permission to .1espondent As observed by us, the object of Article 47 is to as possible the restzictions on the consumptioirt of imposed. if not at least make it not-eas=.1y atiit in predominant object and the interpxeted for restriction manner to advance the of it easily; accessible. Though the xespondente" "questioning the proprietary of the We find that then: is no Nothing n pointed out as we find that ifthere is viokzfioniof citizen has a right to file writ petition, ' g in1;ox3ca' ting dun' It is not only injnt-ienoneto heéittthnt it is a social evil and it is not only today, and in the history, it is always neeteo as "the petitioners are agitating public interest for _ public Iteeitzrt; no do not find any tnotme intention in this writ _. _, .. 1 AA" * --. \\ l ":51. It is also contended that, an appeal lies under Seem)' 11 ll of the Karnataka Excise Act. The appeal lies under the V circumstances mentioned in Section 61, but the Appellate Authority cannot decide the public interest. We do not find any We-\ .49.
taken into account in order to restrict the establishment of such shop nearby the institutions.
53. From the above facts. it is clear that, :ti';e empowered to grant licence or permission their function in true spirit of the ef the I manciate of the Rule 5 is not eeeeee vexy casual way the permission "-Itis the ficenccs to liquor to the intention of Article 47 and restriction imposed are granted by ciicumayenfixigthe of the shop owner. By this of the interest of public in the "i ' impact on the society has allowed eqeee-meg 'asiifjif it is fimdamenml right to vend _ liquoni' Oi'! entomaging the younger generation to get s;£1¢iicted_V."'to intoxicating drinks and drugs, who me the or ttafion. The time has come for the State to take L eerioee Leek' in implementing the law relating to vending of i' " 'T eseeeeeeee due' 1; and drugs to make a safe and healthy some' ty. i 'The Writ Petition is afinwed. We dimct the Iespondcents-I it to shift the 4'51 respondent's wine shop beyond 100 meters mdius fmm the center point of any relim'ous or educational A WE
- 4] -
institution or Hospital or any ofiee of the State Government or Central Government or Local Authorities or in a msidenfial locality. where the inhabitants are predominantly uto Scheduled Castes or Scheduled Tribes or 220 meters from the middle of the Stai;e_ 4 _ Highways, in str1ct' compliance T5: efhe Rules. We direct the mspenden t'Ne.l fake ' against respondent No:-z.2"and 3 duties in granting permission to violation of Ruk:
5 of the Rules. We gneps to implement Rule 5 in its observations made earlier in the {Sf glue Esion or licence to vend Resp6n§ientsL--1. V. directed not to afiovw any wine shop" eliquor" fiavithin 100 meters radius from the and areas specified under Rule 5 sub-
megayomc nsaenouneing the order. taking into consideration the and eflbrts made by Sr.i.K.N.puttegowda. learned e.:C3oi?ez':ez33ent Advocate of this Court as a Court Commissioner, ejevexmé» has visited the place, noted the ihcts dimcted by the Court " by the instructions given by the parties and submitted a detailed .42- report. in appreciation of his sczviccs, we direct the payment of honorarium of Rs.20,000/ -. This honorarium is to be fimn the cost recovered from the respondents as well as to be paid by the petitioners within four weeks « ' Respondents-1 to 3 to pay:v.;<'$£>§t' ' respondent No.4 to pay Rs.S,000j -. Let the operative portion of to the authorities fort11with fog direction issued.