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1986 DIGILAW 1 (KER)

P. A. CHACKO v. BOARD OF REVENUE

1986-01-01

V.SIVARAMAN NAIR

body1986
Judgment :- 1. Petitioners are residents of Muvattupuzha, whose children are studying in the Girls High School, Muvattupuzha. Very near to the school and 20 feet away from its gate is located the building in which a Hotel and Lodge are being conducted by the fourth respondent; within 90 metres from the said hotel is the Government High School, Muvattupuzha; within 35 metres is a Chapel. A Boarding School and a Convent are also located in the immediate vicinity of the fourth respondent's hotel. Apprehending that the fourth respondent may successfully manage to get a licence to conduct a Bar in his Hotel, Ext. P1 representation was submitted by the petitioners and others objecting to the proposal Officers of the Excise Department appear to have favoured to fourth respondent and recommended sanction. The Board of Revenue, the licensing authority, acting on the report of the Excise Inspector, Muvattupuzha, and the Assistant Excise Commissioner, Ernakulam, and on the basis of G.O. Rt. 255/82 dated 15-4-1982 decided to sanction the licence. The fourth respondent paid the licence fee of Rs. 1,50,000/- and commenced operation of the Bar under an FL3 licence, and was awaiting issue of the licence. It appears that the Government intervened and kept issue of the licence in abeyance for some time. The fourth respondent filed OP No 7510 of 1985, and obtained a direction to the third respondent to hand over the licence as expeditiously as possible, and in any event within three days from the date of that judgment. This Original Petition was filed shortly thereafter, alleging that the grant of the licence to conduct the bar within 400 metres of the Schools and Chapel was in gross violation of the provisions of R.6(2)(b) of the Kerala Abkari Shops (Disposal in Auction) Rules. It was also contended that the permission was contrary to the provisions of Art.47 of the Constitution of India. Petitioners, therefore, seek an order quashing the proceedings for the grant of an FL3 licence in favour of the fourth respondent, and a declaration that the prohibition contained in R.6(2)(b) of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974 applies to FL3 licence as well. 2. The defence of the respondents is quite simple. They state that the Kerala Abkari Shops (Disposal in Auction) Rules, 1974 applies only to shops which are to be disposed of in auction. 2. The defence of the respondents is quite simple. They state that the Kerala Abkari Shops (Disposal in Auction) Rules, 1974 applies only to shops which are to be disposed of in auction. Grant of an FL-3 licence is not to be made by auction. There is a fixed licence fee in respect of each such licensee, or licenced premises. Grant of the licence is based on prefixed prices and not on a price to be determined in competitive auction. A bar conducted under an FL-3 licence is not an Abkari Shop, and therefore none of the provisions of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974, including R.6(2) (b) thereof, will apply to the grant of such licences. The only rule which would apply is R.13 of the Foreign Liquor Rules, supplemented by G. O. Rt. 255/82 dated 15-4-1982. Prohibition not being part of the State Policy, and Art.47 of the Constitution of India being only a non-enforceable directive principle, petitioners are not entitled to insist upon this court directing enforcement of the directive principles by issue of writs under Art.226 of the Constitution of India. Even assuming that the directive principles contained in Art.47 should guide the activities of the State, grant of an FL-3 licence does not militate against such principles, since sufficient safeguards to protect public morals and public health are ensured by the terms of R.13 of the Foreign Liquor Rules and G. O. Rt. 255/82 dated 15-4-1982. 3. Though the defence is disarmingly simple, the question to be decided seems to be fairly important and sufficiently complicated: important because, the effect of Art.47 of the Constitution of India on State Policy falls for consideration, such as the entitlement of a citizen to point out in proceedings under Art.226 that the basic tenets of the directive principles are being thrown to the winds by the State in its day-to-day functions: complicated because, the forms and the terms and conditions for the issue of a licence proceed on the basis that 'bar' is also a 'shop' as defined in the Kerala Abkari Shops (Disposal in Auction) Rules. 4. Art.47 of the Constitution of India enjoins, that "the State shall endeavour to bring about prohibition of the consumption, except for medicinal purposes, of intoxicating drinks and of drugs which are injurious to health". 4. Art.47 of the Constitution of India enjoins, that "the State shall endeavour to bring about prohibition of the consumption, except for medicinal purposes, of intoxicating drinks and of drugs which are injurious to health". There is no doubt, that this constitutional directive must be an important factor which shall be treated as fundamental in the governance of the country. It operates as a mandate, that as far as possible, the State shall, at least by gradual stages,. discourage consumption of intoxicating drinks and of drugs which are injurious to health, except for medicinal purposes. I cannot agree with the submission that Art.47 of the Constitution comprehends only total prohibition and not anything less. Prohibition can be total; it can as well be partial. It may also be, the gradual stages of reduction in the permissible extent of inebriation. The campaign through the media organised by the State to discourage addiction to alcoholic beverages and warning people of the injurious effects of alcohol has its justification only in Art.47. A campaign for cultivating consciousness of the evils of alcohol cannot therefore be treated as beyond the purview of Art.47. A concerted effort by the State to proliferate alcoholic consumption will be undoubtedly opposed to the conscience of the directive principles. I have, therefore, no doubt that notwithstanding any technicality, the State is obliged to endeavour to encourage attempts to reduce consumption of alcohols, and shall not be anxious to foster supply of alcohol in close proximity to educational institutions and places of religious worship entirely on the basis of the revenue which could be collected. 5. The unassailable position of the Directive Principles of State Policy, contained in Chapter IV of the Constitution of India, was repeatedly highlighted in various decisions of the Supreme Court. In D. S. Nakara v. Union of India AIR. 1983 SC. 130, it was observed: "Since the advent of the Constitution, the State action must be directed towards attaining the goals set out in Part IV of the Constitution which, when achieved, would permit us to claim that we have set up a welfare State." Referring to the Minerva Mills case, AIR. 1983 SC. 130, it was observed: "Since the advent of the Constitution, the State action must be directed towards attaining the goals set out in Part IV of the Constitution which, when achieved, would permit us to claim that we have set up a welfare State." Referring to the Minerva Mills case, AIR. 1980 SC 1789 (Majority judgment of Chandrachud, C. J.), it was observed: "It, therefore, appears to be well established that while interpreting or examining the constitutional validity of legislative/ administrative action, the touchstone of Directive Principles of State Policy in the light of the preamble will provide a reliable yardstick to hold one way or the other." The mandates of Art.47 and other Directive Principles should, therefore, inform the formulation and execution of State Policy at every stage. It is not a ritual or a magic formula for occasional incantation and then to be consigned to the backyards of Constitutional History. Its reverberations are meant to be far more lasting and cannot be wished away because there is more money in ignoring it. 6. "Abkari Shop" or "Shop" is defined in R.2(a) of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974, which reads: "'Abkari Shop' or 'Shop' means a toddy shop or an arrack shop or a foreign liquor wholesale shop or a foreign liquor retail shop." Rule 13 of the Foreign Liquor Rules, provides for licences for possession, use or sale of foreign liquor. FL-1 is wholesale licence, and FL-2 is retail (tavern) licence, and FL-3 is a hotel or restaurant a bar licence with which we are concerned in this case. FL-4 is a club licence. FL-5 is licences for sale of medicated wines. FL-6 is Special Licences. FL-8 is licences for the possession, distribution or sale of foreign liquor in Canteens or messes attached to Military Units. And FL-9 is licence for possession and supply of foreign liquor wholesale by the Bonded warehouse licensees. FL-10 is licence for possession and supply of foreign liquor wholesale by the authorised distributors. The conditions of licences as prescribed are very important. There is reference to the licenced premises as a shop in more conditions than one in FL-3. I need only refer to Clause.20, 21 and 22 of the conditions of licence, which read: "20. FL-10 is licence for possession and supply of foreign liquor wholesale by the authorised distributors. The conditions of licences as prescribed are very important. There is reference to the licenced premises as a shop in more conditions than one in FL-3. I need only refer to Clause.20, 21 and 22 of the conditions of licence, which read: "20. No shop shall be opened before sunrise or kept open after 12 O'clock at night except under special authority from the Excise Commissioner or from the Assistant Excise Commissioner. 21. A sign board must be fixed to the front of the shop in a conspicuous place, stating the number of the licence, the name of the licensee and the nature of his trade. The licence must be hung up in a conspicuous place within. 22. No licence will be issued for a shop which is situated or which is intended to be opened in a place where on grounds of public interest or expediency it is objectionable to permit any traffic in liquor." Same conditions are incorporated in FL-1 and FL-2 licences. Conditions of licences granted under Abkari Shops (Disposal in Auction) Rules are also almost identical. It, therefore, seems that no distinction is made between 'Abkari Shops' and 'Shops' under the Auction Rules and the Foreign Liquor Rules. It is important to notice that FL-1 and FL-2 licences are sold in auction. Such shops are, therefore, to be comprehended both by the auction rules and the foreign liquor rules. It is true, that for the grant of an FL-3 licence, an auction is not conducted, but that does not make much of a difference for purposes of the rules as is evident from the indiscriminate use of the word "shop" for premises covered by FL-3 licence issued under R.13. 7. R.13A of the Foreign Liquor Rules provides "No licence of any of the above descriptions (FL-1 to FL-10) shall be issued (1) If the local needs do not justify the grant of a licence; (2) If the Commissioner considers for reasons to be recorded in writing that the grant of a licence is likely to have an adverse effect on the revenues of the State; (3) If the Commissioner considers that there is likelihood of the privilege being misused; (4) If the applicant has been convicted of any cognisable or non-bailable offence or any offence under the Abkari Act, 1077 ". Clause 22 of the Conditions under FL-3 licence provides, that "no licence will be issued for a shop which is situated or which is intended to be opened in a place where on grounds of public interest or expediency, it is objectionable to permit any traffic in liquor." It is evident from the above provisions that there should be an objective assessment preceding the grant of a licence, and such assessment should comprehend the local needs justifying the grant of licence. Another matter which has to be ascertained is whether it is objectionable to permit any traffic in liquor in the premises for which licence is sought on grounds of public interest or expediency. Counsel for the petitioners submits, according to me rightly, that considerations comprehended by R.13A of the Foreign Liquor Rules and Clause.22 of the conditions of licence do comprehend the question of proximity of the premises to places of religious worship or institutions imparting education, which are matters for consideration by the licensing authority, even apart from the provisions contained in R.6(2) (b) of the Kerala Abkari Shops (Disposal in Auction) Rules Even assuming that FL-3 Hotel (Restaurant) Licence is not covered by the prohibition contained in R.6(2) (b) of the above rules, the licensing authority, according to me has an obligation to consider whether the permission of traffic in liquor is objectionable on grounds of public interest or expediency. I have, absolutely no hesitation, therefore, in holding that the proximity of licensed premises within 20 feet of the Girl's High School, 90 metres of a Government High School, 35 metres of a Chapel and in close proximity of a Girls Boarding School and a Convent is a matter which should have been considered by the licensing authority, in the light of Clause.22 of the conditions of licence. 8. Shri George Varghese Kannanthanam, counsel appearing for the fourth respondent, submitted that R.13 and G. O. Rt. 255/82 dated 15-4-1982 provide ample safeguards of public interest, public health and public morals in the grant and issue of the licences. Licence is to be issued only to closed premises, care is taken to provide excellent sanitation even for the very building in which the place of vending is to be located, the standards of comfort available to customers have been prescribed in detail and are scrupulously observed. Licence is to be issued only to closed premises, care is taken to provide excellent sanitation even for the very building in which the place of vending is to be located, the standards of comfort available to customers have been prescribed in detail and are scrupulously observed. Dimensions of rooms, equipments necessary, type of food which is served, etc., are prescribed in detail. There is, therefore, no likelihood of public health, public morals or expediency being in any manner affected by the grant of a licence. Reference is also made to the requirement that a local inspection shall be conducted by the Excise Inspector, a fairly senior officer of the Department, that such report shall be verified by the Assistant Excise Commissioner, who makes the ultimate recommendations and ensuring that no less than the Board of Revenue is the licensing authority, which has to scrutinise all materials with reference to the detailed requirements of the rules. It is also submitted that the proximity of the licenced premises to the Girls High School is not likely, in any manner, to affect public interest or expediency, because the consumption of alcoholic beverages will be confined to closed premises within the hotel/ restaurant and cannot, in any manner, affect either the students or the public. 9. I am not inclined to accept this specious plea. The provisions of Clause.22 of the conditions of licence deal with the objectionable nature of the location for purposes of traffic in liquor in the context of public interest or expediency. That condition was imposed inspite of all the safeguards and all detailed requirements for issue of the licence. It is evident, that an application for licence shall be rejected inspite of compliance with all the detailed provisions of G.O. Rt. 255/82 dated 15-4-1982, if in the opinion of the licensing authority, the location is objectionable in public interest or expediency. This is, therefore, an obligation on the part of the licensing authority to consider these two important aspects before the grant of the licence. In the context of the imperatives of Art.47 of the Constitution of India, as a leading light for governance of the country, I have to read into the duties of the licensing authorities, an obligation to consider whether the grant of such licence would promote the objective of bringing about prohibition in consumption of alcohol, except for medicinal purposes. In the context of the imperatives of Art.47 of the Constitution of India, as a leading light for governance of the country, I have to read into the duties of the licensing authorities, an obligation to consider whether the grant of such licence would promote the objective of bringing about prohibition in consumption of alcohol, except for medicinal purposes. I have searched the records of the licensing authority, but in vain, to find any indication as to whether the mandate of Art.47 of the Constitution was borne in mind by the licensing authority, and whether the licensing authority did consider whether it was objectionable in public interest or expediency to permit traffic in liquor within a distance of 20 feet from a Girls' High School, 90 metres from a Government High School, 35 metres from a Chapel and within close proximity to a Convent and Girls' Boarding School. These most important and relevant factors having been excluded from consideration, the grant of the licence by the Board of Revenue cannot be treated as having been validly made. I am, therefore, constrained to hold that even if the prohibition contained in R.6 (2) (b) of the Kerala Abkari Shops (Disposal in Auction) Rules may not strictly apply to the grant of an FL-3 licence, the same yardstick has to be applied in the context of public interest and expediency, which are prescribed as guiding principles in the matter of grant of even an FL-3 licence. In this view, this Original Petition has to be allowed. In the result, the Original Petition is allowed. The order of the Board of Revenue granting FL-3 licence to the fourth respondent to conduct a Bar in the premises of the Prasanth Hotel, Muvattupuzha, is hereby quashed. There will be no order as to costs.