Bombay High Court
1) Sau. Shailaja Rajendra Badwaik vs 1) Hon'Ble Minister on 27 June, 2012
Author: A.B. Chaudhari
Bench: A.B. Chaudhari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 3440 OF 2011
PETITIONERS :- (1) Sau. Shailaja Rajendra Badwaik,
aged major, Occ.: Service.
(2) Sau. Sunita Moreshwar Mhaske
ig Occ.: Housewife.
(3) Sau. Swati w/o Amol Mahajan,
Occ.: Housewife.
All r/o Raghuji Nagar, Ridge Road,
VHBC, Nagpur.
...VERSUS...
RESPONDENTS :- (1) Hon'ble Minister,
Department of State Excise,
Mantralaya, Mumbai-32.
(2) Commissioner,
State Excise, Maharashtra State,
Old Custom House, 2nd Floor,
Fort, Mumbai.
(3) The Collector, State Excise,
Nagpur.
(4) M/s Hotel Shobha
thr. Its sole proprietor,
Atul V. Jaiswal,
L-7/41, Raghuji Nagar,
Nagpur.
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Mr. A.S. Kilor Advocate for Petitioners.
Mr. A.S. Sonare, AGP, for Respondents 1 to 3.
Mr. S.G. Jagtap Advocate for Respondent no.4.
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CORAM : A.B. CHAUDHARI,J.
RESERVED ON : 05.05.2012
PRONOUNCED ON : 27.06.2012.
J U D G M E N T :
By the present petition, the petitioners have put to challenge the order dated 30.10.2010 passed by the State Government in Revision No. FLR-1310/RA-46/SE-2, by which the revisional authority has set aside the orders dated 20.2.2010 and 22.6.2010 passed by the Collector, Nagpur, and Commissioner, State Excise respectively; and after allowing the revision preferred by respondent no.4 directed the Collector, Nagpur, to grant him FL-III licence, in the housing or residential colony, namely Raghuji Nagar, Nagpur.
2. FACTS :
Petitioners are residents of Vidarbha Housing Board Colony, Raghuji Nagar, Nagpur. The residential houses in this colony are located on the road which is interior in the sense that the same is not a road with full commercial activities but falls on a side of the main road where commercial activity with a few liquor Bars and shops is carried out. Respondent no.4 Atul Jaiswal somewhere in the year 1997 purchased a residential house in the said Vidarbha Housing Board colony, namely House No. L-7/41 Raghujinagar, Nagpur, and started residing. In the year 2006-07 he obtained a licence for running a Eating House in the name Shobha Restaurant. Thereafter it appears that respondent no.4 ::: Downloaded on - 09/06/2013 18:42:30 ::: wp3440.11.odt 3/22 started the process of getting the liquor licence, namely FL III with an intention to convert Shobha Restaurant into a liquor bar and restaurant and accordingly made an application on 27.6.2008. Respondent no.3- Collector called report from police and the police submitted the reports dated 6.3.2009, 30.6.2009, 30.11.2009 and 22.12.2009 pointing out that the residents of the said residential area were strongly opposing any such move and there could be law and order problem. The Collector, therefore, rejected the application for grant of FL III on 20.2.2010.
Respondent no.4 preferred an appeal against the said order before respondent no.2- Commissioner. In response to the said appeal, the Collector filed reply before the Commissioner and pointed out the police reports so also the opposition of the local residents and people's representatives further stating that it could deteriorate law and order situation. Respondent no.2 after considering the entire matter dismissed the appeal on 22.6.2010. Aggrieved by this order of Commissioner, respondent no.4 preferred Revision before the State Government which was heard by the revisional authority. Again the Collector submitted his report on 01.10.2010 in response to the revision. The revisional authority on 30.10.2010 passed the order granting FL III licence to respondent no.4, which is impugned in the present writ petition.
3. SUBMISSIONS :
Mr. A.S.Kilor, learned counsel for the petitioners, made the following submissions :
(i) The Government exercised the powers under Section 138 of the Bombay Prohibition Act which is a revisional power and perusal of the impugned order itself shows that the revisional authority was fully aware about ::: Downloaded on - 09/06/2013 18:42:30 ::: wp3440.11.odt 4/22 strong opposition by the petitioners and the residents of the area so also the elected representatives for opening any bar in a purely residential area developed by the Vidarbha Housing Board and which is now Vidarbha Housing Board Colony. Still they were not even noticed about the said revision and the revision was decided clandestinely. That apart, on merits, it is clearly seen that the impugned order is contrary to the settled legal principles and the prohibition policy of the Government itself.
(ii) The impugned order is perverse and shows that the revisional authority had no regard for the public health and the safety and security of the people at large who do not want public nuisance near their houses.
(iii) To live a decent life is the guarantee provided by Constitution of India and the Government does not have any authority to interfere with the rights of the citizens to live peacefully and without any nuisance -
public or private.
(iv) The petitioners who are residents of Raghuji Nagar, Nagpur, opposed the very grant of FL III licence right from the beginning and, therefore, the observations in the impugned order that the residents should take recourse to the Order of 2003 and make a complaint in accordance with the provisions of the said orders is to put cart before horse. The observations made by the revisional authority are therefore in total ignorance of the rights of the citizens and the residents of the ::: Downloaded on - 09/06/2013 18:42:30 ::: wp3440.11.odt 5/22 locality which cannot be given inferior treatment in the matter of grant of FL III licence.
(v) The revisional authority completely erred in ignoring the report of the Collector as well as the police authorities and thus perversely granted the impugned order.
(vi) The revisional jurisdiction exercised by the revisional authority when there were two concurrent orders, is clearly illegal.
(vii) The reason given by the revisional authority about other wine shops and bar is perverse because they are not situated in purely residential area but they are situated on the main road where several commercial establishments are run including the bar and restaurants and they are not on the interior side like that of petitioners' where residential colony is located. This itself is clear from the fact about the distances mentioned in the impugned order.
(viii) The petitioners and the residents have locus standi because their fundamental right to live a good life is being violated; and that apart, the petitioners and the residents have been from the beginning opposing the grant of FL III licence and it is on the basis of their protest and objections, reports were furnished by the police department apart from other intelligence report to the first authority.
(ix) The proposed Bar at the house of respondent no.4 is located at a distance of 90 metres from ::: Downloaded on - 09/06/2013 18:42:30 ::: wp3440.11.odt 6/22 the old Bal Hanuman Mandir existing since the time of 'Bhonsales' and several complaints have been made which clearly show that opening of bar would be a nuisance. The revisional authority has not considered this and behind the back of the petitioners issued the impugned order. The petitioners were never made known about the impugned order and no sooner they came to know about the impugned order they filed the present writ petition on 6.7.2011.
(x) Even the affidavit that was required to be obtained as per revisional order was not obtained which clearly show deliberate haste on the part of the officers of respondent no.1. There is no delay in filing the present writ petition since the order itself was not known to the petitioners and was passed behind their back.
(xi) The petitioners are entitled to compensatory costs from the Government since they are required to litigate when it was the responsibility of the Government to take care of the citizens.
(xii) The observations made by the revisional authority that the petitioners did not object to the other FL III licences in the area or the commercial establishments are wholly absurd.
4. Per contra, learned AGP and Mr. Jagtap counsel for the respondent no.4 supported the impugned order and made the following submissions :
(a) The petition has been filed late by nine ::: Downloaded on - 09/06/2013 18:42:30 ::: wp3440.11.odt 7/22 months without any explanation for the delay and, therefore, it is liable to be dismissed on that count alone. The petitioners have not shown any legal injury nor they could be aggrieved party for filing the present writ petition. He relied upon the decision of learned Single Judge of this Court in Shivaji Tulshiram Thakre v. State of Maharashtra - 2012(1) ALL MR 150.
(b) Since the petitioners were never a party in the revision they have no locus standi to maintain the writ petition in this Court. The petitioners could not be a party before the revisional authority and were not rightly made a party because they are not concerned with the FL III licence since rejection order was made against respondent no.4 and respondent no.4 was entitled to challenge the rejection order before the revisional authority. The petitioners and other respondents have remedy under the Bombay Prohibition (Closer of License on Resolution by the Village Panchayat or Gram Sabha or Women/Social Organisation or representation by Voters in the Village or Ward of Municipal Council/Corporation) Order, 2003, and in particular clause 3 and 4 thereof.
Therefore, at present, they have no locus to challenge the order granting FL-III licence by the revisional authority. The petitioners are obliged to follow the procedure contemplated by the said order of 2003.
(c) There are several other shops even on the road in question in the residential area of Vidarbha ::: Downloaded on - 09/06/2013 18:42:30 ::: wp3440.11.odt 8/22 Housing Board colony and the commercial activity is also going on on the road in question. The petitioners do not have any reason to object to the said activity since respondent no.4 has also right to carry on his business.
(d) There are several other liquor shops, bars and restaurants located at a short distance from the house of respondent no.4 where the restaurant and bar is located but curiously the petitioners do not have any objection for those Bars and restaurants, which itself shows mala fides on their part.
(e) The petitioners never objected to the running of eating house for which licence was granted in the year 2006-07 and therefore they should not have now any objection for running the said Bar with FL III licence. One of the petitioners itself has a shop of daily needs on the same road and therefore the petitioners cannot complain against respondent no.4 who holds a valid eating licence. There is no FIR about public nuisance or crime. Since the licence is being run without any disturbance now for the last two years there is no reason why the petitioners should have any objection. If they have any objection the same could be taken care of by resorting to the Order of 2003. Since the said alternate remedy is available to the petitioners, the impugned order need not be interfered with and this Court should not entertain the writ petition.
::: Downloaded on - 09/06/2013 18:42:30 ::: wp3440.11.odt 9/225. CONSIDERATION :
Before proceeding to examine the question involved in the present writ petition, it is necessary to have a look at the philosophy in legislating the Prohibition law in the State, namely Bombay Prohibition Act, 1949; since the same is relevant for deciding the questions involved in the present writ petition.
Majority of the States in the country at the cost of losing revenue were never inclined to impose prohibition. However, after coming into force of the Constitution, and in terms of Article 47 thereof, it became necessary for the various States to have their own statutory prohibition policy. Earlier, the Bombay Prohibition Act, 1949 was enacted which is in force in the State and its preamble reads thus :
"An Act to amend and consolidate the law relating to the promotion and enforcement of and carrying into effect the policy of Prohibition and also the Abkari law in the [State] of Bombay.
Whereas it is expedient to amend and consolidate the law relating to the promotion and enforcement of and carrying into effect he policy of Prohibition; and whereas it is also necessary to amend and consolidate the Abkari law in the [State] of Bombay for the said purpose and provide for certain other purposes hereinafter appearing;
.... " (emphasis supplied) Perusal of the preamble shows that the emphasis is on promotion and enforcement of and carrying into effect the policy of prohibition. The second part of the preamble will have to be read ::: Downloaded on - 09/06/2013 18:42:30 ::: wp3440.11.odt 10/22 subordinate to the first part and the word used in the second part is 'also necessary'. To my mind, earning of revenue must be placed secondary to the first part, namely promotion and enforcement of an act for carrying out promotion and policy of "prohibition" as stated in the preamble. However, in the instant case, it is seen that the respondent no.1/State has made the first part subordinate and inferior to the second part. Thus the very object and purpose for which Bombay Prohibition Act, 1949 was enacted and brought into force and amended repeatedly has been destroyed by the implementing authorities, namely the Government and that is what is exactly to be found in the instant case, inasmuch as for earning revenue, without bothering to understand the plight of the residents, namely small children, young girls and boys, women, old people, in haste, FL III licence has been slapped on the residents of Housing Board Colony. Thus the provisions of Bombay Prohibition Act have been interpreted by the respondent no.1/State for promotion and enforcement of carrying into effect the trade of potable liquor which is flowing throughout the State, namely metros, towns and even small villages since the Government is freely distributing the licences for foreign liquor as well as country liquor. That is clearly destructive to public health. Later Article 47 was inserted in the Constitution.
6. Article 47 of the Constitution reads thus :
"Duty of the State to raise the level of nutrition and the standard of living and to improve public health.- The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall ::: Downloaded on - 09/06/2013 18:42:30 ::: wp3440.11.odt 11/22 endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injuries to health."
Article 47 is contained in the chapter, namely 'Directive Principles of State Policy'. It is true that Directive Principles in Part IV of the Constitution cannot be enforced like a fundamental right. But the apex court has time and again asserted the importance of directive principles of State Policy and their implementation or enforcement. It is well settled that under the constitution there is no constitutional right to trade in liquor nor there is any fundamental right to trade in potable liquor. However, there is a fundamental right for the citizens referable to Article 21 of the Constitution of India to enjoy peaceful dignified 'life' without any encroachment on their privacy to live life with sans public nuisance surrounding them. Thus, right to live a decent, undisturbed peaceful life is guaranteed under fundamental right under Article 21 of the Constitution while there is no right muchless fundamental right to carry on trade in liquor. It is, however, most unfortunate to find out in the instant case that the Government which is supposed to take care of its citizens, ensure good health, ensure that they live peaceful and decent life, has placed the said fundamental right of the citizens guaranteed under Article 21 of the Constitution far below the so-called right of respondent no.4 to trade in potable liquor by opening a liquor bar at his restaurant in a purely residential area. This is thus a glaring example of the Government making the fundamental right subordinate or inferior to the running of licence of Bar of potable liquor which, in my opinion, is violation of the constitutional provisions and the law. With the above preface, I proceed to deal with the questions arising in this petition.
::: Downloaded on - 09/06/2013 18:42:30 ::: wp3440.11.odt 12/227. LOCUS STANDI OF THE PETITIONERS :
In order to decide the question of locus standi as raised by the counsel for the respondents, it would be necessary to advert to certain facts. After the application was made by respondent no.4 for the grant of licence, Collector called reports from Superintendent, State Excise as well as police. These reports were placed before the District Advisory Committee and the Committee in its meeting dated 16.2.2010 found that the vicinity of the premises of respondent no.4 is a residential locality and the police department vociferously opposed the opening of bar in the locality due to staunch opposition of the people of the locality along with the Corporator. The Committee also came to a conclusion that grant of licence would further deteriorate the law and order situation. In the reply dated 3.7.2010 filed by Superintendent, State Excise, Nagpur addressed to the Commissioner, State Excise, Mumbai, in para (G) it is stated thus :
"It is pertinent to note that the appellant's case was put up before the Committee on three occasions after getting reports from Excise and Police Department before it was finally rejected in the meeting dated 16.2.2010. On every occasion the Committee has asked to the Police Department to affirm its report regarding the Law an Order. It is also pertinent to note that on each occasion the Police Department strongly presented the case that the law and order situation would deteriorate looking at the strong opposition from the local residents and the local representatives....... The entire area is residential area. Although as pleaded by the appellant, the past communal history may have been tension free but Police ::: Downloaded on - 09/06/2013 18:42:30 ::: wp3440.11.odt 13/22 Department is apprehending likely disturbances if appellant's premises be granted FL-III licence."
8. Considering these facts, the Committee itself came to the conclusion that the appellant cannot be granted FL III licence. It is an admitted fact that the petitioners are the residents of the same locality in question who raised objections right from the beginning when the matter was considered by the Committee after the reply was filed. Petitioners have been the persons who have been strongly objecting to the FL III licence. The fact about the strong opposition by the residents was made known to the revisional authority by Central Excise, Collector and Police Department, which is evident from reading of paragraph 5 of the revisional order, which is extracted below after translation -
"The local Corporators, Renuka Mahila Mandal and other residents of the area have made complaints and raised objections that Shobha Restaurant should not be granted FL III licence. These complaints are of similar nature, namely that near the proposed FL III licence, there is Balsanskar Kendra Shibir, Palnaghar, Hanuman Temple and Gajanan Maharaj temple."
9. Thus, while giving reasons, the revisional authority has stated about these persons who have objections. To repeat, the revisional authority was fully aware that the residents of the locality, the Corporators and the representatives of the people were aggrieved by the proposed grant of FL III licence. Since the revisional authority for the first time has granted FL III licence in exercise of powers under Section 138 of the Act, it is necessary to quote Section 138, which reads thus :
"The State Government may call for and ::: Downloaded on - 09/06/2013 18:42:30 ::: wp3440.11.odt 14/22 examine the record of any proceeding before any Prohibition Officer, including that relating to the grant or refusal of a licence, permit, pass or authorisation under this Act, for the purpose of satisfying itself as to the correctness, legality or propriety of any order passed in, and as to the regularity of, any such proceeding and may, when calling for such record, direct that the order be not given effect to pending the examination of the record. On examining the record, it may either annul, reverse, modify or confirm such order, or pass such other order as it may deem fit."
10. Perusal of the above provision shows that the revisional power can be exercised at the instance of any person or authority or even sou motu and there is no bar that only aggrieved person who is refused licence can only move the Government under Section 138 of the Act.
That is all the more so in case of such a drastic opposition by the residents and when it concerns public health. Therefore, the provision of Section 138 itself shows that the petitioners had locus standi and have locus standi also before this Court for the above reasons. That apart, in the case of Bar Council of Maharashtra v. M.V. Dabholkar etc. - AIR 1975 SC 2092, the supreme court while concluding the judgment stated thus in para 58 :
"Although not strictly confined to 'standing' with reference to suits, jurists have thrown some light on this subject. Professor S.A. De Smith has observed :
"All developed legal systems have had to face the problem of adjusting conflicts between two ::: Downloaded on - 09/06/2013 18:42:30 ::: wp3440.11.odt 15/22 aspects of the public interest - the desirability of encouraging individual citizens to participate actively in the enforcement of the law, and the undesirability of encouraging the professional litigant and the meddlesome interloper to invoke the jurisdiction of the courts in matters that do not concern him."
(Quoted in 'Standing and Justiciability' by V.S.Deshpande - Journal of the Indian Law Institute-
April-June 1971- Vol. 13, No. 2, p.174) ig Professor H.W.R. Wade has observed :
"In other words, certiorari is not confined by a narrow conception of locus standi. It contains an element of the actio popularis. This is because it looks beyond the personal rights of the applicant; it is designed to keep the machinery of justice in proper working order by preventing inferior tribunals and public authorities from abusing their powers."
(Standing and Justiciability - ibid, p. 175)
11. In the case of Everest Apartments Co-operative Housing Society Ltd., Bombay v. State of Maharashtra & ors. - AIR 1966 SC 1449 the supreme court held that the Government should welcome such applications for revision which draw the attention of the Government to cases in some of which Government may be interested to intervene. But in this case, the Government or the revisional authority did not call the concerned residents or the representatives from the locality before deciding the revision. However, it is not now necessary to ask the revisional authority to hear the matter again since this Court is unable to ::: Downloaded on - 09/06/2013 18:42:30 ::: wp3440.11.odt 16/22 see the plight of the residents of the locality. Not only that, this Court has heard respondent no.4 in all details and this Court has afforded full opportunity to all the concerned including the Government in the matter. Further, the Bar would continue to be run and the residents would continue to suffer. The decision rendered by learned Single Judge of this Court in Shivaji Tulshiram Thakre, supra, in the light of the above discussion is thus clearly distinguishable. The objection regarding locus standi of the petitioners is thus rejected.
12. The submission made by the learned counsel for respondent no.4 about late filing of the petition deserves to be rejected outright for the simple reason that the petitioners were never knowing about passing of revisional order and that is apparent from the discussion made by me in relation to their locus standi.
13. The submission made by the counsel for respondent no.4 that the petitioners have remedy after grant of licence under Order of 2003 is misconceived. The petitioners and the residents of the area have been objecting to the very grant of FL III licence from the inception and, as a matter of fact, the proposal was rejected by the Collector, and in appeal by the Commissioner. But for the first time the revisional authority granted it. To say that pursuant to the revisional order the licence has been working and therefore the petitioners should now take recourse to the remedy of Order of 2003 is to put premium on the illegal act of the revisional authority which is also in violation of the fundamental right of the petitioners under Article 21. It will also result into putting fundamental right of the petitioners and citizens inferior to the power of the Government to grant FL III licence. Needless to repeat, the ::: Downloaded on - 09/06/2013 18:42:30 ::: wp3440.11.odt 17/22 fundamental right cannot be made subordinate to the powers of the Government to grant FL III licence.
14. The gusto on the part of Superintendent, Central Excise, not to obtain the correct affidavit before allowing working of FL III licence as stated by the revisional authority in last para of the operative order clearly shows the haste in which the licence was put to working. Having done so, now the argument is being advanced that petitioners should take resort to Order of 2003 which is preposterous. To accept such an argument would mean that the residents of the area should be told to suffer first pending litigation. It would also mean that their fundamental right shall stand suspended till the culmination of the lis. To sum up, the submission that they should take recourse to the order of 2003 is rejected.
15. Perusal of the record shows that after respondent no.4 started his liquor bar, various complaints were made by the residents which are on record. The gist of these complaints is as under :
"The name of the bar is Shobha's 'Patiala Peg Bar and Restaurant.' The colony is a residential colony. Women and small children are put to harassment due to the customers moving in an inebriated condition, The boys and the girls returning in night from tuition classes to their respective home feel fully insecured and have to return to their home in a frightened condition, particular because the residents who are the ::: Downloaded on - 09/06/2013 18:42:30 ::: wp3440.11.odt 18/22 employees are required to return to their home somewhat late in the night. The customers visiting the bar park their vehicles in front of the doors of the houses of the residents of the area and many a times these customers create nuisance. Sometimes these customers in an inebriated condition pass urine in front of the compound doors of the residents of the locality. The bar remains open till 12-30 in the night with the customers inside and the music in a high pitch. There is a Hanuman temple at a distance of 100 meters where the visitors are required to tolerate the abuses from the customers etc."
The reading of the above name of the Bar from morning till night by the residents of the locality, children, boys and girls is bound to cause anxiety, disturbance of mind and loss of peace. The visitors to the Bar and their various acts stated in the complaints certainly would put one in a spooked or frightened condition.
16. These are, inter alia, the nature of grievances of the residents of the area fully within the knowledge of revisional authority also. The revisional authority has stated in the impugned order that there are other bars numbering six at a distance ranging from 300 meters to 600 meters and that the petitioners and the residents have not lodged complaints against those FL III licences which was necessary. In the first place, the distance itself shows that they are far away from the residential colony in question, i.e. the distance is ranging from 300 to 600 meters. Secondly, perusal of location of these bars (numbering six) as per Annexure R-2 ::: Downloaded on - 09/06/2013 18:42:30 ::: wp3440.11.odt 19/22 shows that they are on main commercial area or road and not on the interior road where the present residential colony is located and they are far away from the residential interior road. To consider the said aspect as a relevant reason and then say that the complaints have been made by the residents and the petitioners only against Shobha's Patiala Peg Bar and must have been made through business competition is most unfortunate. There is a further suggestion in the revisional order to take recourse to the Order of 2003. It is not the allegation of respondent no.4 that all the petitioners or the residents have been running any bar in competition to the bar of respondent no.4. There is no even allegation that any other Bar owners have instigated or supported the petitioners against the respondent no.4. There is no allegation that petitioners have any enmity with respondent no.4. Therefore, such an observation made by revisional authority without any basis cannot be countenanced. It is then seen that the police department, Excise Department as well as the Collector had on three occasions examined and re-examined the position regarding law and order if the FL III licence was to be granted and had given consistent reports not to grant FL III licence. The revisional authority has, however, stated that it was not proper to refuse to grant the licence merely because of adverse police report.
It is further stated in the impugned order thus :
"that in the meeting of District Advisory Committee held on 3.6.2009, a decision was taken vide communication dated 6.6.2009 regarding police report with reference to Circulars dated 22.11.1989 and 20.9.1995 that what was expected in the police report was only relating to the law and order situation with reference to communal riots and similar sensitive aspects only and that other irrelevant aspects were ::: Downloaded on - 09/06/2013 18:42:30 ::: wp3440.11.odt 20/22 never expected to be entered into police report."
17. The decision above referred can only be called a quaint mixture about the understanding of 'law and order'. This Court is shocked to note the above decision taken in the meeting dated 3.6.2009 reflected in the communication dated 6.6.2009. If there is such decision taken by the Government or the Committee on 3.6.2009, the same clearly shows that the Government wants to promote the award of liquor licence and not to promote prohibition, which is contrary to the very preamble of the Act and in violation of Article 47 of the Constitution. The decision that law and order situation with reference to the proposal to grant liquor licence means only about communal riots and such similar sensitive aspects; and that the report of the police about the safety, security, health, fundamental right to life under Article 21, peace, security for children, women and girls is irrelevant, is destructive of rule of law. In other words, public health, welfare of the citizens, women, young girls and boys and children is not relevant while submitting police report in the cases of grant of FL III licence. Such a stand would result into doom and gloom for the citizens. Right to life enshrined in Article 21 is not of mere survival or existence. It guarantees a right of persons to life with human dignity and that includes all the aspects of life which go to make a person's life meaningful, complete and worth living. It need not be told that the fundamental right of the citizens to live 'good life' must be placed above everything including the issue of grant of FL III licence. However, the revisional authority has put penumbra on the said fundamental right. It is necessary that the Government ought to respect the wishes of the citizens and to take care of the fundamental right of the citizens and residents before exercising power to grant liquor licence. The revisional ::: Downloaded on - 09/06/2013 18:42:30 ::: wp3440.11.odt 21/22 authority has however condemned the last police report dated 30.6.2009 in the aforesaid premises, which is again perverse.
18. There is one more reason stated in the impugned order that the said residential area has become commercial. That statement is factually wrong. The area is more residential and less commercial. There is further observation that other business activities are also going on in this area. The business activity pointed out by respondent no. 4 is one Daily Needs Shop. Hence the reason is absurd. As to the Hanuman temple and school, it is stated that same are beyond 75 meters. The distance of Hanuman temple is about 90 meters, but the revisional authority has gone strictly by the distance. To sum up, the revisional jurisdiction has been exercised by the revisional authority contrary to the settled parameters. When the Committee and the appellate authority concurrently found that it was not legal and proper to grant FL III licence in question as there were adverse police reports on repeated occasions, the revisional authority ought not to have preferred to violate the fundamental right of the petitioners and the residents and rather ought to have uphold the same as against the interest of single individual. State Government ought to have kept in mind the doctrine of utilitarianism, namely that the greatest happiness of the greatest number of people should be the guiding principle or that the actions are right if they are useful or for the benefit of majority. It is thus seen that the present policy and the prevailing state of affairs as can be gathered from the case at hand is to first grant Foreign Liquor or Country Liquor licence without any regard to the possible violation of fundamental right of the residents/citizens to live good and dignified life and then ask them to suffer till they follow the procedure for cancellation of such licence(s) laid down in the said Order of 2003. In fact, the course to be adopted should ::: Downloaded on - 09/06/2013 18:42:30 ::: wp3440.11.odt 22/22 be otherwise as it is the duty of the Government to protect the fundamental rights of the citizens and then think of granting such licence(s). This aspect needs reconsideration by the Government. Hence, a copy of the judgment be sent to the Chief Secretary for further action. The impugned order is thus held to be illegal.
19. The upshot of the above discussion is that the writ petition must succeed. Since the petitioners have been put to sufferance for the last two years though they repeatedly reminded the authorities not to grant licence, the Government granted it. The Government has violated the fundamental right under Article 21 of the Constitution. Hence, the petitioners will have to be compensated with an order of compensatory costs payable by the Government. Hence, I make the following order.
ORDER
(i) W.P. No. 3440 of 2011 is allowed. Impugned order dated 30.10.2010 passed by the revisional authority in Revision No. FLR-1310/RA-46/SE-2 is quashed and set aside.
(ii) Respondent no.3 is directed to seal and close the Bar run by Respondent no.4 under FL-III licence by 12th July 2012.
(iii) Respondent no.1/State shall pay compensatory costs of Rs.25,000/- to the petitioners within four weeks from today.
(iv) Copy be sent to Chief Secretary, Government of Maharashtra, Mantralaya, Mumbai, for information and necessary action.
JUDGE /TA/ ::: Downloaded on - 09/06/2013 18:42:30 :::