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1985 DIGILAW 260 (KER)

KUMARAN v. STATE OF KERALA

1985-08-09

V.SIVARAMAN NAIR

body1985
Judgment :- 1. The petitioners object to the location of a sub shop attached to Arrack Shop No.3 of Quilon Excise Range, contrary to the provisions contained in R.6 of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974 - hereinafter referred to as the Auction Rules. At the time when the Original Petition was filed, the petitioner was not aware of the special order issued by the Board of Revenue granting exemption to locate the shop in the prohibited area in exercise of the power under R.6(2)(b) of the Auction Rules. Therefore, the petitioner sought the relief of issue of a writ of mandamus directing respondents 1 to 4 to forbear from granting licence to respondents 5 and 6 to locate or conduct Arrack Shop No.3 of Quilon Excise Range in Shed M.C.130 of Mulamkadakam Ward of Quilon Municipality. Petitioners had submitted Ext.P1 representation in that regard on 6-4-1985. The Board of Revenue passed Ext.P3 order dated 9-4-1985 in the meantime, permitting respondents 5 and 6 who were the successful bidders of Arrack Shop No. 3 to locate Shop No.3A/85-86 for three months for 1985-86 in exercise of the power under R.6(2)(b) of the Auction Rules. This was followed by Ext.P4 licence dated 9-4-1985 issued by the Assistant Commissioner of Excise for a period of one year ending 31-3-1986. The Board of Revenue is said to have exercised its power in accordance with the guidelines contained in Ext.P2. Petitioners thereafter amended the Original Petition seeking the issue a of writ of certiorari to quash Ext.P1 guidelines, Ext.P3 order of the Board of Revenue and Ext.P4 proceedings of the Assistant Commissioner of Excise granting the licence in favour of respondents 5 and 6 for a period of one year. Reliance was placed in support of his submissions on Ext.P5 judgment in O.P.No.7112 of 1984. 2. Counsel for the petitioners submits that Ext.P2 guidelines enabling the Arrack Shop to be located within the distance not less than 100 metres in town areas and 200 metres in mofussil areas from educational and religious institutions is unreasonable and arbitrary. Similarly, the restriction of the right to object only to authorities of religious and educational institutions, it is said, is arbitrary and unreasonable. The location of abkari shops as a matter of course within 400 metres of the institutions is also said to be an illegal and arbitrary affront to public interests. Similarly, the restriction of the right to object only to authorities of religious and educational institutions, it is said, is arbitrary and unreasonable. The location of abkari shops as a matter of course within 400 metres of the institutions is also said to be an illegal and arbitrary affront to public interests. A further limitation that if no objections for locating the abkari shop within the prohibited distance is taken within three months, the exemption has to be continued for 9 more months as a matter of course is also said to be a provision opposed to public interest and meant to assist the abkari contractors alone. A far more fundamental and serious objection of the petitioners is against Ext.P3 order for the reason that it was made without reference to the relevant considerations, and as a result of influence only of extraneous and irrelevant circumstances. An objection against Ext. P4, in addition to the above, is that the Assistant Commissioner of Excise has no power under the rules to issue a licence for conducting abkari shop within prohibited distance for a period of one year. 3. The scope of the power of the Board of Revenue under R.6(2)(b) proviso of the Auction Rules had come up for consideration quite frequently before this court. The prohibition that ordinarily abkari shops shall not be conducted within a distance of 400 metres of religious and educational institutions is a restriction imposed in public interest. That is a rule of general application. The proviso to R.6(2)(b) enables the Board of Revenue to grant exemption from the operation of that rule for "sufficient reasons". The grant of exemption has, therefore, to be tested with reference to the requirement of "sufficient reasons". 4. The materials available to the Board of Revenue at the time when Ext.P3 order was passed consisted of the report of the Assistant Commissioner of Excise. The factors which were adverted to in Ext.P3 order from that report were that the location was beyond 100 meters from religious/ educational institutions as provided in Ext.P2 guidelines, that no complaint had been received from the authorities of the institutions against the location of the shop, that the location was a new site, and that an alternative site was not available to locate the shop. The very first paragraph of Ext.P3 order indicates that what was being considered by the Board of Revenue was an application for exemption to locate Arrack Shop No.3/85-86 of Quilon Range. Permission was, however, granted for location of A S.3A/85-86, which is said to be a sub-shop. On a perusal of the relevant records, it does not appear that the Board of Revenue was aware of the fact that A. S.3/85-86, Quilon Range, had already commenced functioning in another location, and the permission was being sought in respect of a sub-shop. R.5(21) of the Auction Rules enables the licensing authority to sanction not more than two sub-shops in respect of each main shop. The terms of the rules make it abundantly clear that it is purely within the discretion of the licensing authority and that it is not obligatory that two sub-shops shall be sanctioned in respect of each main shop. The question whether there was "sufficient reasons" to grant permission to locate a sub-shop within the prohibited distance from religious/ educational institutions in exercise of the power under R.6(2)(b) proviso of the Auction Rules does not appear to have been considered by the Board of Revenue. Nor does it appear that the Board was aware that non-availability of alternate sites which was being pleaded was not in respect of the main shop, but only in respect of a sub-shop. Even assuming that this aspect as specifically considered by the Board, non-availability of alternate site for locating a sub-shop is not, by itself, "sufficient reason" justifying the grant of exemption under R.6(2)(b) proviso of the Auction Rules. Even for a main shop, non-availability of alternate site was held to be not a sufficient reason by this court. I need only refer to the judgment of Bhat J., in O.P.No.7112 of 1984 in this regard. It was observed that "It is difficult to accept that in the normal course non-availability of a building is a sufficient reason. May be the contractor may have to pay higher rent to get a building not situated within the prohibited distance. That would not be a ground which would enable the Board of Revenue to grant an exemption". It was observed that "It is difficult to accept that in the normal course non-availability of a building is a sufficient reason. May be the contractor may have to pay higher rent to get a building not situated within the prohibited distance. That would not be a ground which would enable the Board of Revenue to grant an exemption". I am in respectful agreement with the views expressed by Bhat J. The counter affidavits filed on behalf of the respondents, and the files produced by the Government Pleader do not make out that there was any other "sufficient reason" for the grant of permission in relaxation of the provisions contained in R.6(2)(b) of the Auction Rules at the time when Ext. P3 order was passed. 5. This shall ordinarily be sufficient to set aside Ext. P3 order. But in the nature of the issues involved in this case and the recurrence of similar orders issued by the Board of Revenue under R.6(2)(b) proviso, it seems to me to be necessary to consider the other aspects as well which emerge from the pleadings and the records. It surprised me to discover from the files of the Board of Revenue, which dealt with the application for exemption that a cyclostyle proforma of Ext. P3 order of exemption had been kept ready in the Board, wherein the particulars of the Range, Shop No., Excise Division etc, alone need be filled up and some details had to be scored off. The complaint of the petitioner that the orders of exemption are issued as a matter of course without advertence to "sufficient reason" for grant of such exemption seems to be fully borne out by the files. It is true that in the mechanical redrocuc-tion of the proforma in which the details were filled up to make Ext. P3 order there is the ritualistic repetition of the report of the Assistant Commissioner of Excise about the distance between proposed site and religious/ educational institutions being satisfied as per the guidelines, that no complaints were received from the authorities of the institutions, and that an alternate site was not available. The repetition mechanically of this formula contained in Ext. P3 order there is the ritualistic repetition of the report of the Assistant Commissioner of Excise about the distance between proposed site and religious/ educational institutions being satisfied as per the guidelines, that no complaints were received from the authorities of the institutions, and that an alternate site was not available. The repetition mechanically of this formula contained in Ext. P2 in a proforma order which the office of the Board of Revenue had filled up is hardly sufficient to justify the requirement of "sufficient reasons" on satisfaction of which alone, the power to grant exemption from a rule of general application in the interests of the public could have been exercised. 6. It shall not be as if the State should be interested in the proliferation of residential areas and precincts of religious and educational institutions with taverns and alcoholic retreats despite statutory restrictions. I would have expected the State, on which the directive principles of State policy enjoin the duty "to endeavour to bring about prohibition of the consumption, except for medicinal purposes, of intoxicating drinks and of drugs which are injurious to health" to reduce the extent and depth of inebriation instead of carrying it zealously or recklessly to the door - steps of temples and schools. The abandon with which proforma orders of exemption are issued surprises me in view of the duty enjoined by Art.47 of the Constitution of India, which is "fundamental in the governance of the country", and the principle of which, the State shall apply in making laws. The power to grant exemption under R.6(2)(b) proviso of the Auction Rules also shall be informed by the duty cast under Art.37 and 47 of the Constitution of India, and shall not be exercised de hors those obligations. 7. We have to consider the effect of Exts. P2 to P4 in this perspective. So viewed, I have no hesitation in holding that they are liable to be set aside. The guidelines contained in Ext. P2 have the effect of enlarging rather than analysing the power of the Board of Revenue to pass orders of exemption contrary to the provisions of the rule and public interests. The rules impose a limit within which abkari shops shall not be located. The real effect of clause (1) of Ext. The guidelines contained in Ext. P2 have the effect of enlarging rather than analysing the power of the Board of Revenue to pass orders of exemption contrary to the provisions of the rule and public interests. The rules impose a limit within which abkari shops shall not be located. The real effect of clause (1) of Ext. P2 is to reduce the objectionable distance by one half, The right of the public to object is taken away by insisting that only the authorities of religious/ educational institutions shall have such right to object. But for Ext. P2, the public of the locality could also object to the location of the abkari shops within the prohibited distance. Similarly, the provision that if objections were not raised within three months to the location of the abkari shop within the prohibited distance, all subsequent objections on that ground should be ignored seems to be a totally unreasonable negation of the right of the public or the authorities of the religious/ educational institutions to raise objections to the location of abkari shops within close proximity thereto. The scope of the rule is sought to be restricted by an executive instruction. Ext. P2 cannot, therefore, be sustained. 8. Counsel for the respondents submits that the application submitted before the Board of Revenue was for permission to conduct a sub-shop only, and that the respondents were reasonably entitled to expect that they would be permitted to conduct two sub-shops. According to him, the restrictions on his right to conduct trade in liquor will be seriously impaired if the permissions granted under R.6(2)(b) proviso of the Auction Rules is not maintained. I need only state that there is no right as such to conduct trade in alcoholic liquors. It is rather a privilege of the State, which is farmed out in favour of the contractors. The regulations in the conduct of such operations in exercise of the privilege farmed out to them cannot be considered as affecting any of the rights of the respondents. The Original Petition is therefore allowed and Exts. P2, P3 and P4 are quashed. The parties will suffer their respective costs.