@JUDGMENTTAG-ORDER
Subhash B. Adi, J.@mdashThis is a public interest litigation, seeking to protect and promote the welfare of residents, citizens and particularly the student community of Indian Institute of Management, Bangalore (hereinafter referred to as ''IIMB''), one of the premier institution established by the Ministry of Human Resource Development, Government of India. Petitioners-1 to 13 claim to be the employees working in IIMB. Petitioners-14 and 15 are the students studying in IIMB. Petitioner No. 16 is a resident of Bannerghatta Road.
2. The grievance of the petitioners is against the inaction and negligence on the part of the respondents, who are entrusted to enforce the rule of law and protect the public interest.
3. It is alleged that, a liquor shop is opened on 16.8.2007 within 50 meters of range from prominent hospitals and the IIMB, exposing the residents to greathazards, creating a nuisance in locality, especially to the students staying in the hostel, which is located right in front of the 4th respondent''s wine shop. In this regard, the Chief Administrative Officer, IIM, Bangalore by letter dated 16.8.2007 had made a request to the respondents - authorities to take action. When there was no response or action by the respondents, the Chief Administrative Officer addressed one more letter on 9.10.2007 seeking immediate intervention in the matter for shifting the fourth respondent''s wine shop.. In the meantime, the 16th petitioner, who is the resident of the locality, applied for certified copy of the licence granted to fourth respondent, by his application dated 10.9.2007. The third respondent directed the Excise Inspector to furnish the documents sought for by the 16th petitioner under the Right to Information Act. On receipt of the copy of the Notification as well as the licence granted to the 4th respondent, petitioners came to know that, the fourth respondent has been permitted to shift the shop from its earlier premises No. 55, 2nd Main Road, 12th Cross, Lakshminarayanapura to Nos. 65, 66 and 67, Sri. Sidaguru Complex, Bannerghatta Road, Bangalore under Rule 23 of the Karnataka Excise Licences (General Conditions) Rules, 1967 (hereinafter referred to as ''the Rules'').
4. It is alleged by the petitioners that, granting permission for shifting the wine shop under Rule 23 of the Rules is subject to the restrictions specified under Rule 5 of the Rules.
5. Rule 5 imposes restriction for grant of licence to liquor shop within 100 meters radius of the educational institutions offices of the Government, hospitals, etc.,. Only in special circumstances, the said distance could be relaxed, for the reason to be recorded in writing and such relaxation should not be less than 50 meters. Object of the said restriction is that, the activity of selling liquor in certain areas is sought to be eliminated, making the liquor inaccessible. Consumption of liquor is obnoxious or deleterious to the health.
6. Article 47 of the Constitution enjoins on the State to introduce prohibition as State policy. The prohibition of consumption of liquor was dear to the Father of the Nation and if it is not possible either for administrative or financial reasons, the only alternative sofaras the State is concerned, is to contain the proliferation of the activity. The power to control is an intent in the public interest of the society. Liquor vending is subject to the public health, morality and welfare of the people. There is no fundamental right to trade in liquor nor it could be permitted by the State against the public interest.
7. The wine shop of the 4th respondent is not only is in violation of Rule 5 of the Rules, but is health hazardous and against the public interest. The respondents - authorities, who are conferred with the power to enforce the rule of law, have failed to discharge their function. It is stated that, despite the request made by the petitioners for shifting the fourth respondent''s wine shop, the respondents - authorities have not taken any action. It is also stated that, there is no private interest or vested interest in filing the public interest litigation, the petitioners are the responsible citizens working as Professors, Teachers, Staff and students of Indian premier institution IIMB.
8. In support of their case, the petitioners have produced the photographs of the wine shop and the college and hospitals situated in the vicinity. A sketch is also produced to show the 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 Writ Petition is opposed by the State by filing the objection statement. It is stated that, the writ petition is not maintainable as there is an alternative remedy of appeal u/s 61 of the Karnataka Excise Act 1965. Further stated that there is no direct access between the gate of IIM and the entrance of liquor shop. There is median in between the road and no opening of median is sanctioned by the Traffic Police Authorities and the said opening of the median has been illegally made by the residents to cross the road. Such opening cannot be taken into account for the purpose of measuring the distance between the wine shop and the educational institution. In this regard, the State has produced a letter dated 10.9.2007 written by the Police Inspector to the Commissioner of Bangalore Mahanagarapalike to put grill on the median to prevent the pedestrians crossing the road. The State has justified its action interalia, stating that, it is a retail liquor shop where no loose sale or consumption of liquor is permitted in the premises, it is sold only in sealed bottles and further stated that the shop is not situated within 100 meters of radius from the objectionable institutions. That there are two other shops operating from the last four years. The Inspector of Excise inspected the spot and enquired with the neighbours and has prepared a spot mahazar before granting the permission under Rule 23 of the Rules.
10. Respondent No. 4 has filed statement of objections interalia, stating that, the wine shop is meant for retail vending and does not affect any residents or persons. The grievance of the petitioners is not sustainable in law nor the shifting is violative of Rule 5 of the Rules. That the wine shop is not within 100 meters from the educational institution or hospitals or any office of State or Central Government and it is not a residential locality. The 4th respondent relied on the opening of median in front of the shop and alleged that it is illegally opened. That the authorities inspected the place before granting the licence and on satisfaction that the grant of permission is not contrary to Rules, the shifting is granted. The Wockhardt and Apollo Hospitals are at a distance of nearly 313 meters away from the liquor shop. It is also alleged that there is another restaurant in the name and stile as "Mohan Restaurant" and "Mohan Kiran Bar" adjoining the compound of IIMB and the said Bar is contrary to the Excise Rules and further stated that this respondent has invested huge money and the liquor of Indian, Foreign and several other brands are sold in sealed bottle and no consumption is permitted in the shop.
11. Petitioners filed rejoinder to the objection filed by the State as well as 4th respondent, interalia, explaining that the opening of the median is in existence and also stated that the person, who wants to reach the liquor shop, need not have to cross the zebra marking to cross the road when there is straight access to shop. It is alleged that the Police Department has fallen into such trap in so endorsing without realizing the context and consequences of their casual endorsement. Petitioners also stated that the other shops are at a distance of 400 meters away.
12. This Court after hearing for some time felt the necessity of appointing a Court Commissioner to find out the actual measurement, and by order dated 14.12.2007 by the consent of the parties, Sri. K.N. Puttegowda, learned Counsel was appointed as a Court Commissioner to carry out the necessary measurement. In pursuance of the memo of instructions given by both the sides, the Commissioner submitted his report on 20th December 2007 and stated that, 4th respondent''s wine shop is at a distance of 49.8 meters from the centre of portico of IIMB campus and stated that there is no direct access to IIMB portico to the middle point of the shop. Further stated that the measurement taken from the centre of portico of IIMB to the opening of the median and to go to the right and reach the door of the shop is 84 meters. The Apollo Hospital is shown at a distance of 117 meters from the middle of the 4th respondent''s wine shop and Wockhardt Hospital is at a distance of 347 meters.
13. As against the said report, the 4th respondent filed statement of objection interalia, alleging that spot mahazar does not indicate the measurement at all for which the signatures are taken. The measurement indicated is not signed either by the Commissioner or by the Advocates for the parties and disputed the measurement. It is stated that the shop is far away from the IIMB, it is neither within 100 meters nor within 50 meters.
14. Additional objections were filed by respondent No. 4 interalia, alleging that the litigation is engineered by the son-in-law of the respondent No. 4, who has executed number of forged documents so as to defeat the property standing in the name of daughter of respondent No. 4 and civil suits are filed, trial court has held that documents are forged documents. Being aggrieved by that, he has set up his relative, who is an Associate Professor in the IIMB to file the writ petition to take vengeance. It is also stated that, unless and until the opening of the median is notified as a pedestrian crossing, nobody can cross it and even if anybody does it, then it is without any authority of law. u/s 116 of the M.V. Act, all signs should be exhibited on the roads and admittedly there is no zebra crossing in front of IIMB. The measurements taken do not tally with the requirement of Rule 5 of the Rules.
15. Since the allegations were made against the petitioners, the petitioners filed rejoinder and stated that the 4th respondent cannot take such a stand after having participated in the Commissioner work, ft is also stated that, 16th petitioner is not a fictitious person nor any of the Professors is related to the fourth respondent. In support of the contentions raised by the petitioners as regards to the bonafides of the petitioners and their status, they have filed separate affidavits. Insofar as the 16th petitioner is concerned, it is stated that his address is not disclosed for security reason. However, the said person would be produced in chamber. It is also denied that any person called Madhukar Angoor is working in IIM. It is specifically alleged that, several goons hanging around the liquor shop, who claim themselves to be bouncers for the Proprietor of liquor shop and had threatened the 16th petitioner if he attends the Court Commissioner''s work.
16. In view of the allegation, this Court by order dated 11.1.2008, directed the learned Counsel for the petitioners to keep all the petitioners present with documentary evidence 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 16th petitioner was kept present along with the rental agreement and pan card containing photograph. The Court was satisfied with regard to his identity. This court after hearing for some time also directed the Government Advocate to produce the original records relating to the grant of permission to the 4th respondent. The Government Advocate has produced the records.
17. Sri. M.R. Naik, learned Senior Counsel appearing for the petitioners mainly, submitted that, Article 47 of the Constitution enjoins on the State to introduce prohibition as a State policy. The object behind the Article 47 of the Constitution is that, the State should introduce a policy for prohibition of liquor consumption. If that is not possible at least to regulate its sale so as to minimise its effect and it is in this context, though the State has not introduced total prohibition, but has enacted the Karnataka Excise Act with an object to regulate production, manufacture, possession, import, export, purchase and sale of liquor and intoxicating drugs and levy duties of excise thereon. He submitted that the Act is intended to provide, for a unified regulation of sale and supply of alcohol, to promote fundamental licencing objectives. It enjoins on several duties upon the licensing authorities namely, preventing crime, disorder; public safety; prevention of public nuisance; protection of children from harm. In view of Article 47 of the Constitution, indisputably the public health in society plays a vital role. By the said expression, the makers of the Constitution refer both to the goal of health of public and attending promotion of healthy practice. It is in this regard, the Rules have been framed introducing the restriction on licencing shop or premises for trade in liquor, by prohibiting sale within a distance of 100 meters from any religious or educational institutions or any residential locality where the inhabitants are predominantly belonging to Scheduled Castes and Scheduled Tribes.
18. He referred to Rule 5 of the Rules and submitted that the object of the Rule is to eliminate the establishment of liquor shop in certain areas. This is done in furtherance of the goal under Article 47 of the Constitution. When a prohibition itself cannot be introduced for various reasons, the only alternative for the State is to contain or regulate a trade thereto. He further submitted that, the restriction under Rule 5 is imposed in certain areas where the people congregating either for religious purpose or educational or place of offices, those places may not be safe and near such places, the activities of sale and purchase of liquor be prohibited. This Rule advances public interest, morality, tranquility, decency and safety of public.
19. He submitted that the eligibility condition for grant of liquor licence have to be scrutinized strictly, not allowing any loopholes. By experience it is noticed as to how and in what manner and by what means and methods, the licences are secured and how the provisions of the Rules are circumvented. The object is to make an endeavour to plug all such loopholes. The State cannot look at the privilege by means of earning the revenue. The fulfillment of constitutional and statutory obligation is paramount in furtherance with the goal with which the obligation is cast under Article 47 of the Constitution of India. There is a strong underlining notion of public health and welfare in the matter of sale and consumption of liquor is concerned.
20. He referred to Rule 5 of the Rules and submitted that, Rule 5 Sub-rule (2-A) confers power on the authority to reject the application, even if the application is found in order, in order to secure convenience, morality, tranquility, decency or safety of the public or for any other reason. Rule 5 Sub-rule (1) restricts the grant of licence for sale of liquor within the distance of 100 meters from any religious or educational institution or hospital or offices of the State or Central Government or local authority or residential locality where the inhabitants are predominantly belonging to Scheduled Castes or Scheduled Tribes or within 220 meters from the middle of State Highway or National Highway. Referring to Rule 5 Sub-rule (1), he submitted that the object behind Rule 5 Sub-rule (1) is to prevent the sanction of licence of sale of liquor near such places, which otherwise could be against morality, tranquility, decency, safety and against the public interest. He further referred to Rule 5 Sub-rule (3) and submitted that, for the purpose of Rule 5(3), the distance has to be measured along the nearest pathway by which the pedestrian ordinarily reaches, adopting the mid point of the entrance of the shop or midpoint of the nearest gate of the institution, hospital or office as the case may be. The distance of 100 meters as contemplated under Rule 5(1) has to be taken from the mid-point of the shop to the mid-point of the gate or the entrance of the religious or educational institution as the case may be, from where an ordinary pedestrian can reach the shop. He further submitted that, this cannot be understood to mean that the pedestrian has to take a route along with the foot path and then to cross the road at a zebra cross or at a place where it is ear-marked for crossing. The object behind this rule is to prevent the easy access to a consumer of liquor to the shop from the educational institution or a religious institution as the case may be. It cannot be understood to mean that the consumer, who has easy access to the place otherwise than the zebra crossing cannot be considered for the purpose of measurement, object of the rule is not to encourage the opening of wine shop, but to prevent.
21. He submitted that, the authority concerned to grant the licence, has to apply the rule strictly and in its proper perspective. In this regard, he submitted that the construction of rule must be in accordance with the object and intention for which the rule is made. He also submitted that, a plain reading of the rule clearly envisages that, if there is an access to the liquor shop within 100 meters from such institution, the licence should not be granted. In this regard, he further submitted that the licence granted in this case is not based on any verification of records or actual measurement. Further submitted that the licence is granted based on local inspection alleged to have been made by the officials without taking into consideration the actual measurement. The authorities have granted licence on the basis of alleged spot mahazar.
22. He referred to the Court Commissioner''s report and the sketch prepared by him and submitted that the shop in question is situated within the radius of less than 50 meters, even if the pathway is to be taken, the shop is situated at a distance of 84 meters i.e., the midpoint of the shop to the midpoint of IIMB gate. He submitted that, taking from any angle, the shop is within the prohibited distance. As regards to the Police Commissioner''s saying that the opening of median is unauthorised, he submitted that the Police authorities without any reason and in order to support the respondent No. 4 has given a letter which has no relevance to the facts of this case.
23. In this regard, he relied on a judgment of the Division Bench judgment of this Court reported in the matter of Karnataka Wine Merchants'' Association (R), Banalore and Ors. v. State of karnataka and Ors. 1994 (2) KLJ 570 and submitted that this Court has held that the amended Rule 5 promotes the policy by making liquor inaccessible on the highways except those areas which fall within the Municipal areas and the policy as such cannot be found fault with. When the prohibition cannot be introduced, the only other alternative for the State is to contain or regulate the trade thereof. If the proclivity to drink is contained, at any rate in certain areas, the tendency thereto is reduced to some extent. The effect of the rule is to reduce the proclivity to drink the liquor and this is the object of the rule, it cannot be held as arbitrary and unreasonable. He submitted that this Court also observed that, the prohibition of liquor consumption is a traditional statute ever since licences are granted, such conditions are already prevalent in one form or another with less or stronger rigour. He submitted that the object is to make the liquor ordinarily inaccessible to the people and particularly near such institution referred to in Rule 5. He also relied on a decision of this Court reported in the matter of B.N. Raghuram and Ors. v. State of Karnataka and Ors. 1993 (3) KLJ 235 and submitted that there is no fundamental right to deal in liquor and the restriction introduced under Rule 5 is in the public interest and in furtherance of the public policy.
24. He also relied on a decision of the Apex Court reported in the matter of Vikrama Shama Shetty v. State of Maharashtra and Ors. AIR 2006 SCW 3877 and submitted that the stress is on nearest distance and not the most used distance. Referring to this decision, he submitted that in the said case, there were three gates to the mosque and suggestion was made to take the distance from one of the gates, which is far away. The Apex Court has observed that the stress to be given to the nearest gate rather than the distance to the advantage of the applicant. He submitted that, even in the said case, the rule is identical. He also relied on another decision of the Apex Court reported in the matter of Ashok Lenka v. Rishi Dikshit and Ors. AIR 2006 SCW 3058 and submitted that the applications for grant of licence must undergo strict scrutiny test and they should not be considered mechanically. The information furnished by the applicant must undergo and satisfy the scrutiny test. The State should not treat its right of parting with its privilege only as a means of earning more revenue. The earning of revenue only upon the fulfillment of its constitutional and statutory obligations. The public health and welfare is one of the factors to be kept in mind while granting the licence.
25. He further relied on another decision of the Apex Court reported in the matter of State of Maharashtra and Ors. v. Nagpur Distillers, Nagpur and Anr. AIR 2006 SCW 2399 and submitted that the Apex Court taking judicial notice of the fact that more and more of the younger generation in this country is getting addicted to liquor and it has become a fashion to consumer and also become an obsession with very many and why the State in the face of Article 47 of the Constitution should encourage that too practically unrestrictedly, the trade in liquor is something that it is difficult to appreciate. The only excuse for the State for not following the mandate of Article 47 of the Constitution is that, huge revenue is generated by this trade being used for meeting the financial needs of the State. Referring to the said decision, he further submitted that the Apex Court as well as this Court have repeatedly held that the restriction must be strictly implemented and all the applications for grant of licence should undergo strict scrutiny in regard to public health, safety and morality and also apply the rule in its strict sense. He also referred to the decision of this Court reported in the matter of
26. He submitted that reading of Rule 5 and Commissioner''s report and the records produced by the Government and further the distance of the shop clearly falls within the restricted area and submitted that IIMB being a prestigious educational institution and if the liquor shop is allowed to continue, it would not only harm the students and general public, but it will affect the public morality and public health and cause nuisance. He referred to the photographs and the sketch produced along with the writ petition and pointed out that, just opposite to the main gate of IIMB, the shop is situated 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 the students, general public and also cause nuisance in the area. In regard to the petitioners'' interest, he submitted that the petitioners are the Professors, teaching and non-teaching staff, students and residents of said area and they have no personal or private interest involved in this case. Their interest is only to prohibit such shops, which are established contrary to the rules and against the public interest.
27. He also submitted that, no enquiry has been conducted nor measurements are taken by the authority, the authority mechanically has issued the licence detrimental to the public interest.
28. Sri. Shekar Shetty, learned Counsel appearing for the respondent No. 4 submitted that, Rule 5 restricts the liquor shop within the distance of 100 meters. Rule 5 has to be understood in its strict sense. He submitted that there is a median dividing the road and there is no legal opening to cross the road. If the distance is to be taken from the footpath to zebra cross and to the shop, it is much more than 100 meters. Under the provisions of Karnataka Traffic Control Act, the authorities have got right to regulate the traffic and under the Karnataka Traffic Central Regulations, the pedestrian cannot cross road anywhere, he has to cross the road only where there is a traffic signal for pedestrian crossing such as zebra crossing. He submitted that opening of median referred to by the petitioners is not a legal opening and it is supported by the letter of the Police authorities written to the Bangalore Mahanagarapalike for closing the median and also for opening a sky walk. He further submitted that the Traffic Control Act prohibits the use of the opening of median. Just because there is an opening, it cannot be treated as the opening available for a pedestrian to reach the entrance of the shop.
29. Rule 5 Sub-rule (3) specifically requires the measurement of distance from the mid-point of the shop to the mid-point of the institution along the nearest path by which the pedestrian ordinarily reaches. Reading of this provision envisages that nearest path by which pedestrian ordinarily reaches, has to be understood in the conformity with the traffic rules and the provisions of Traffic Control Act and not otherwise. He also referred to Section 69 of the Police Act and submitted that, there is no pedestrian cross as required by law. The opening median is illegal and not permitted by law. The Assistant Police Commissioner has in reply stated that, it is not opened by the Police and law requires that there has to be a pedestrian cross, to cross the road. In the light of these requirements, the distance has to be measured from the foot path and the zebra cross and to the midpoint of the shop and it cannot be measured from the mid-point of the shop to the mid-point of the institution straightaway.
30. He also disputed the measurement taken by the Commissioner and stated that the Commissioner though prepared a sketch, but has not taken the signature. He further submitted that, when there are disputed facts, it requires evidence and this Court in writ petition, cannot decide the disputed facts. He also submitted that, there is an alternative remedy u/s 61 of the Excise Act by means of appeal to the Deputy Commissioner and when there is a statutory alternative remedy, the petitioner cannot invoke the jurisdiction under Article 226 of the Constitution.
31. He further submitted that the public interest means, the interest of the general public where a class of community have an interest and this case is filed to vindicate the personal object and there is no public interest involved. He also submitted that the hospitals are situated beyond 100 metes even according to the Commissioner''s report.
32. He further submitted that the petitioners have not come up with the clean hands and they cannot maintain the public interest petition. He also submitted that the body of people claiming themselves cannot file a public interest litigation without there being element public interest. Further submitted that, except this institution, no other person has raised any objection nor any other institution has raised an objection. As regards to the educational institution, he submitted that it is a private institution, it does not fall within the meaning of educational institutions. He referred to Section 28 of the Karnataka Excise Act and submitted that, no licence is invalid for technical defect. Rule 5 of the Rules is not mandatory, but it is only directory, it has to be understood in the light of the other provisions. When the provisions of the Act do not invalidate the licence on technical ground, the provisions of the Act would prevail over the rules. He also referred to Rule 5 Sub-rule (2) and submitted that, if the approval is given by the Commissioner, even if it is less than 100 meters, it cannot be held to be invalid.
33. In support of his case, he relied on a decision of the Apex Court reported in the matter of
34. Learned Government Advocate supported the grant of licence stating that no objections were received from the public for grant of licence to the 4th respondent. The J.P.N agar Excise Inspector took the panchanama and based on the spot mahazar, he submitted the report and the authority granted the licence by considering the said report.
35. As regards to Rule 5, he submitted that there is no objectionable institution situated within 100 meters radius. The sketch produced along with the mahazar for grant of licence is not prepared by the authority. He also submitted that, the measurement has to be taken along with the foot path and to zebra crossing and then to the shop. He further submitted that, though the gate is situated to the IIMB, the building of the IIMB is inside the gate and the distance from the main institution to the liquor shop is more than 100 meters and also submitted that, in case of the disputed question of facts, the writ petition cannot be entertained. He also submitted that, when there is an alternative remedy, the public interest is not maintainable.
36. In reply, Sri. M.R. Naik submitted that, availability of the alternative remedy against certain orders, not in the public interest. He also submitted that there is no private or individual interest involved in this case, none of the petitioners have got any personal grievance against the 4th respondent nor there is any oblique motive, petitioners are all respectable persons working in a premier institution and they have filed the writ petition only with object of preventing nuisance as the liquor shop is opposed to the public policy, and in the larger interest of the public, the writ petition is filed. He submitted that the Apex Court has held that the nearest point has to be taken into consideration for 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 contentions raised by the respective Counsel, the question that arises for consideration is:
As to whether, for grant of licence to vend liquor, the measurement has to be taken as radius from the center point of objectionable institutions under Rule 5(1) or along with footpath and zebra cross, etc.?
38. To understand the restriction imposed on location of the liquor shop, it is better to know the background as to why the restriction is imposed. Article 47 of the Constitution of India cast a duty on the State to raise the level of nutrition and the standard of living and to improve public health. In this regard, the duty is cast on the State to make an endeavour to bring about prohibition of the consumption of liquor except for medicinal purposes. The intoxicating drinks and of drugs are injurious to health.
39. From the Article 47 of the Constitution of India, it is clear that, consuming intoxicating drink or drug is injurious to health.
40. Sri. H.M. Seervai in his Vol. 11, 4th Edition page 2012 noticed that, all the sections of the society including the Mohammedan community, whose social habits were reinforced by the Koranic injunction in relation to intoxicating liquor, supported the insertion of such a provision. It is observed as under:
The prohibition of intoxicating liquor had long been a part of the policy of the Indian National Congress and its inclusion in Article 47 received support from the Mohammedan community whose social habits were reinforced by the Koranic injunction against intoxicating liquor. In considering the directive in Article 47, it may be observed that alcolhol (the intoxicating ingredient of liquor) is a "narcotic", a word replaced by the word "depressant" to describe the same effects contrary to the popular belief that it is a stimulant. It is not mere accident that intoxicating liquor and dangerous drugs have been clubbed together in entry 8, List II.
41. When draft constitution was prepared, an elaborate discussion was made as regards to prohibition of intoxicating drink with an intention of achieving the goal of the preaching of Mahatma Gandhi and also having regard to the fact that, same has been approved by all the communities.
42. Importance was given to the public health and social movement and impact on the society. It is in this background, though there is no total prohibition, in view of several factors, an endeavour was made by several States to reduce the consumption of intoxicating drinks and drugs and in this regard, separate legislations were made by the States. The aim of the legislation is not to encourage the consumption, but was to regulate and to reduce the consumption as far as possible having regard to its effect on the public health, in this regard, the State plays a positive role with an object that the activity of selling liquor in certain areas is eliminated or making the liquor inaccessible in such area. Prohibition in one way or the other are traditionally on the statute ever since the licences are granted may be in one form or another with less or stronger rigour.
43. The Legislation in its wisdom has chosen to restrict the establishment of wine shop or liquor shop within the vicinity of institutions like public offices, hospitals, educational institutions or locality where the Scheduled Castes or Scheduled Tribes people predominantly live. The object behind the said provision is to prevent an easy access to the liquor shop, to prevent the young people get addicted to such vices, to maintain sanctity around the temple premises and also keep the Government officials 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 easily attracting the younger generation. These restrictions are imposed to maintain the purity and sanctity in such institutions. In the name measurement, the authorities cannot find excuses to grant permission, instead, should implement the provision in its letter and spirit.
44. In the background of this, Rule 5 of the Rules requires to be considered. Rule 5 Sub-rule (1) and (3) reads as under:
5. Restriction in respect of location of shops.-
(1) No licence for sale of liquor shall be granted to a liquor shop or premises selected within a distance of 100 meters from any religious or educational institution or Hospital or any Office of the State Government or Central Government or Local Authorities or in a residential locality, where the inhabitants are predominantly belonging to Scheduled Castes or Scheduled Tribes or within a distance of 220 metres from the middle of the State Highways or National Highways:
Provided that where a shop is sanctioned to a village the population of which is less than two thousand five hundred, such shop shall be located outside the residential locality of the village....
(3) For the purpose of this rule while measuring the distance specified in this rule, the distance shall be measured along the nearest path by which the pedestrian ordinarily reaches, adopting the mid-point of the entrance of the shop and the mid-point of the nearest gate of the institution, hospital or office if there is a compound wall and if there is no compound wall, the mid-point of the nearest entrance of the institution of the office.
Rule 5 Sub-rule (1) mandates that, no licence shall be granted for sale of liquor within a distance of 100 meters from religious, educational, hospitals, office of the State or Central government or local authorities or residential locality where the inhabitants are predominantly belonging to Scheduled Castes or Scheduled Tribes or in a case of highways. In order to ascertain the distance, Sub-rule (3) specifies that the distance shall be measured along the nearest path by which the pedestrian ordinarily reaches. ''Ordinarily'' means regular, usual, normal, common, often recurring, according to established order, settled, customary and reasonable. Thus, the meaning of ''ordinarily'' cannot be extended to mean only the designated road or pathway and not access otherwise available to the consumer of liquor shop. If the object is to restrict the consumer within 100 meters of the educational institution and to make it inaccessible in certain areas, the rule has to be interpreted in furtherance of the said object. Rule 5 is framed in furtherance with the object under Article 47 of the Constitution of India, it cannot be said that the measurement has to be taken along with footpath then to a zebra cross designated for crossing and again to footpath and shop. If otherwise there is a way to reach the liquor shop and it is accessible 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 to go to liquor shop according to traffic signal.
45. The argument advanced by Sri. Shekar Shetty that, measurement has to be taken along with the footpath till it reaches the zebra crossing and from there again the measurement is to be taken to the other side of the footpath and to reach the shop is not acceptable. The object behind the provisions of Rule 5 is to restrict the liquor shop in certain areas. The object of the Rule is not to find an excuse to grant licence, but to find a way how best the restriction can be imposed within the frame work of Rule 5 of the Rules.
46. In this case, we had the benefit of looking into the original records and from the records we find that, on 3.7.2007, the Excise Inspector draws a mahazar by making an enquiry from the residents and accepts the measurement submitted by the applicant as true and submits his report. The authority grants the licence on 3.7.2007 based on such a report by observing that there are no objections from the neighbours. It is further stated that there are no institutions within the radius of 100 meters. Even the authorities have understood that the 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 gate of the IIMB, there is an opening of median and on the other side, there is a wine shop and if straight measurement is taken, it is less than 50 meters, if the measurement is taken as available pathway i.e., at the opening, it is 84 meters.
47. From the records, we find that the authority has not at all taken the measurement in compliance with Rule 5 of the Rules. The Revenue Inspector has utterly failed to discharge his function in terms of Rule 5. In a casual way, he draws a mahazar by making alleged enquiry. He does not take the actual measurement, he accepts the sketch given by the applicant. He does not make verification of the measurement in pursuance of the sketch submitted by the applicant. The Excise Inspector or the authority, which is required to verify the spot cannot mechanically submit a report. He owes a duty to take exact measurement from the center point where the shop is sought to be established to find out as to whether there are any objectionable institutions within the radius of 100 meters from the said point. From the records it appears that, with an intention to grant licence or permission, the report is submitted.
48. The Apex Court in a decision reported in AIR 2006 SCW 3058 referred to above has observed at para-24, which reads as under:
24. The Act and the Rules deal only with control and regulations. There was no provision which gives any discretion to the authorities concerned to relax the provisions of the Rules. The Rules in this behalf again must be framed upon taking into consideration of all relevant factors. The State in making the rules and formulating the policy decisions must be guided by public interest. In such matters, the State has a positive obligation to ensure that any activity contemplated, strictly conforms to the requirements of public good and is not otherwise derogative of public health. The State parts with its exclusive privilege on certain statutory conditions such as payment of excise fee. When it lays down criteria for selection of persons who would become qualified for grant of licence under the Act, nor only the eligibility criteria therefore should be laid down, but having regard to its past experience as to how and on what manner, the licensees find means and methods to circumvent the said provisions, all endeavours should be made to plug all loopholes. The State has an extremely solemn obligation to fulfil in that behalf. All information supplied by the applicants for licences, thus, must undergo and satisfy the ''strict scrutiny test''. The State should not treat its right of parting with its privilege only as a means of earning more and more revenue. It may certainly earn revenue but only upon fulfillment of its constitutional and statutory obligations. There exists a strong underlying notion of public health and welfare when the matter comes to retention of the exclusive privilege and/or parting therewith either in whole or in part.
From the observation of the Apex Court, it is clear that the object is to plug the loopholes and endeavour should be made in this regard. The Apex Court has taken a judicial notice by experience as to how and in what manner and by what means and methods, the licences are secured and how the provisions of the Rules are circumvented.
49. Recently in similar circumstances, the Apex Court in a decision reported in the matter of
11. We fully agree with the view taken by the High Court and we are also of the view that 100m or 300ft (approx.) should be the right criteria where the Excise Commissioner shall not give any licence to a shop under the Excise Act. We hope and trust that the Excise Commissioner of the State shall take into consideration Sub-rule (4) of Rule 5 of the U.P. Excise Rules and see that no shops or Sub-shops are opened within a radius of 100m or 300ft (approx.) of a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazar or a residential colony. The interpretation of the word "close proximity" was vague therefore it was misused by the authorities. But, now the matter has been placed beyond any vagueness. Therefore, with the interpretation of the expression "close proximity" by the High Court, the matter has been put in the right perspective and the doubt has been cleared. Therefore, taking into consideration all the facts and circumstances of the case, we affirm the view taken by the High Court insofar as fixing the distance of 100m or 300ft (approx.) from a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazar or a residential colony is concerned where no shop or Sub-shop shall be opened under the U.P. Excise Act and the Rules framed thereunder.
While considering the same, the Apex Court has taken a view that prohibition area should be 100 meters radius. If the radius is the criteria, then irrespective as to the existing road or otherwise, the prohibition or restriction should be imposed in opening of liquor shop within the radius of 100 meters from the center point of the educational institution or religious institution, hospitals or State or Central Government Offices, etc., as contemplated under Rule 5 of the Rules.
50. The next question that was raised by the learned Counsel for respondent No. 4 that the petitioners had no locus-stand to present the writ petition, as already observed by us, the petitioners are the Professors, Staff and students of IIMB. From the material produced by the petitioners, we are satisfied that the writ petition is not filed with an object of vindicating any personal or private grievances nor the petitioners have any personal interest. A citizen and a voter has sufficient interest to claim that the officers entrusted with the governmental power under the constitution and the laws should carry on the administration fairly and according to law and in bonafide manner. Rule of law being one of the basic structures of the Constitution, if it is breached, a citizen can seek redress in the Courts. The violation of rule of law is perse injurious to public interest. In this case, from the records produced before us, it is clear that the licensing authority has circumvented the Rule 5 in the matter of grant of permission to respondent No. 4. As observed by us, the object of Article 47 is to see as far as possible the restrictions on the consumption of liquor is imposed, if not at least make it not easily accessible. If it is a predominant object and the reason is the rule should be interpreted for restriction and it cannot be interpreted in a manner to advance the sale of liquor or make it easily accessible. Though the respondents have filed objections questioning the proprietary of the petitioners to file public interest, we find that there is no justification in such objection. Nothing is pointed out as to what is their personal interest. We find that if there is violation of rule of law, every citizen has a right to file writ petition, that too, when consuming intoxicating drink is not only injurious to health but it is a social evil and it is not only today, even in mythology and in the history, it is always treated as social evil and if the petitioners are agitating public interest for public health, we do not find any malafide intention in this writ petition.
It is also contended that, an appeal lies u/s 61 of the Karnataka Excise Act. The appeal lies under the circumstances mentioned in Section 61, but the Appellate Authority cannot decide the public interest. We do not find any merit in the contention that the public interest grievance can be agitated before the Appellate Authority.
51. Insofar as alleged disputed facts are concerned, it is seriously disputed as regard to the measurements taken by the Court Commissioner. From the Court Commissioner''s report, we find not only parties were present but also their Advocates were present and have verified the measurement by giving the memo of instructions. Even the Court Commissioner has taken the measurements in the presence of the parties. The restriction imposed under Rule 5 is within the 100 meters of the pathway by which pedestrian can ordinarily reach. The ordinarily reachable do indicate that it is not necessary that there should be any specified road, all that it requires is that, if a person can reach ordinarily to that place, that should be taken into account for the purpose of considering the measurement. Even the applicant himself has shown the radius from the shop and if it is the criteria, which is accepted by the Apex Court, in the above referred case, we find that the 4th respondent''s shop is situated within 100 meters from the educational institution. It is also necessary to point out that nearest gate is required to be taken into account, not a gate, which is inside, as argued by the learned Government Advocate. A gate which is nearer to the shop is to be taken into account in order to restrict the establishment of such shop nearby the institutions.
52. From the above facts, it is clear that, the authority empowered to grant licence or permission have not discharged their function in true spirit of the Rule 5 of the Rules. The mandate of the Rule 5 is not observed in its true spirit and in a very casual way the permission is granted. It is also noticed that the licences to liquor shops are given in utter disregard to the intention of Article 47 of the Constitution and restriction imposed under the Rules. In turn, the licences are granted by circumventing the rules to the advantage of the shop owner. By this means, the State instead of protecting the interest of public in the matter of public health, security impact on the society has allowed liquor vending as if it is fundamental right to vend liquor. Off late, it is encouraging the younger generation to get addicted to the intoxicating drinks and drugs, who are the futures of our nation. The time has come for the State to take serious look in implementing the law relating to vending of intoxicating drink and drugs to make a safe and healthy society.
53. The Writ Petition is allowed. We direct the respondcents-1 to 3 to shift the 4th respondent''s wine shop beyond 100 meters radius from the center point of any religious or educational institution or Hospital or any office of the State Government or Central Government or Local Authorities or in a residential locality, where the inhabitants are predominantly belonging to Scheduled Castes or Scheduled Tribes or within a distance of 220 meters from the middle of the State Highways or National Highways, in strict compliance with Rule 5 Sub-rule (1) of the Rules. We direct the respondent No. 1 to take necessary action against respondent Nos. 2 and 3 for dereliction of their duties in granting permission to respondent No. 4 in utter violation of Rule 5 of the Rules. We direct the State to take steps to implement Rule 5 in its true spirit in the light of our observations made earlier in the matter of granting permission or licence to vend the liquor.
Respondents-1 to 3 are directed not to allow any wine shop or liquor shop within 100 meters radius from the objectionable institutions and areas specified under Rule 5 Sub-rule (1) of the Rules.
54. After pronouncing the order, taking into consideration the pain taken and efforts made by Sri. K.N. puttegowda, learned Government Advocate of this Court as a Court Commissioner, who has visited the place, noted the facts directed by the Court by the instructions given by the parties and submitted a detailed report, in appreciation of his services, we direct the payment of honorarium of Rs. 20,000/-. This honorarium is to be paid from the cost recovered from the respondents as well as the balance to be paid by the petitioners within four weeks from today. Respondents-1 to 3 to pay cost of Rs. 5,000/- and respondent No. 4 to pay Rs. 5,000/-. Let the operative portion of the order be communicated to tile Authorities forthwith for implementing the direction issued.
