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2015 DIGILAW 557 (PNJ)

Arrive Safe Society of Chandigarh v. State of Haryana

2015-04-01

G.S.SANDHAWALIA, S.J.VAZIFDAR

body2015
S.J. Vazifdar, Actg. C.J. 1. The petitioner seeks an order quashing the excise policy of the State of Haryana for the year 2015-16 issued by the Excise and Taxation Commissioner, Haryana, on the ground that it is ultra vires and against the judgment of the Division Bench of this Court dated 18.03.2014 in Arrive Safe Society Vs. National Highway Authority of India and another, CWP No. 25777 of 2012. The petitioner also seeks a writ of mandamus directing the respondents not to auction any liquor vend accessible/visible from the national and state highways and service lanes abutting them. 2. This is not an adversarial litigation. The petitioner has no personal interest. It is a society whose object, as its name suggests, is to ensure the safety of citizens generally. By this petition, it seeks to ensure the safety and well being of the citizens by seeking an order requiring strict implementation of the guidelines and instructions contained in the said judgment of the Division Bench. 3. Mr. Ravi Kamal Gupta, learned counsel appearing on behalf of the petitioner invited our attention to the following observations of the Division Bench in CWP No. 25777 of 2012: "It emerges from the submissions that clause (b) undoubtedly needs some modification to the extent that the reference made at two places to 'National Highways' should be both for 'National Highways' as well as 'State Highways' and such vends should not be visible from the highways. The phraseography used "preferably not visible" would not suffice and the word 'preferably' has to be deleted. These modifications have been made with the concurrence of the learned counsel for the National Highway Authority of India, who has obtained instructions in this behalf. Clause (b), thus, will have to be read as under :- "(b) No liquor vend shall be located along the National Highways/State Highways. They shall not be accessible or visible from the National Highways/State Highways or the service lane running along such highways. Note :- It shall be the personal responsibility of the DETC (Excise) of the district concerned to ensure the strict compliance of the above stipulated restrictions." We are unable to accept the plea of the learned Additional Advocate General for the State of Haryana that in substance the issue raised was only qua National Highways. Note :- It shall be the personal responsibility of the DETC (Excise) of the district concerned to ensure the strict compliance of the above stipulated restrictions." We are unable to accept the plea of the learned Additional Advocate General for the State of Haryana that in substance the issue raised was only qua National Highways. It was both for National Highways and State Highways and it can hardly be contended that driving and drinking is not permissible on National Highways but that shall do no harm on State Highways ! We, thus, direct the State of Haryana to incorporate the aforesaid necessary amendments in the amended Liquor Policy to be published." 4. We find, however, that the excise policy has incorporated the directions of the Division Bench in Clause 1.2.2 which reads as under: "(i) Clause 1.2.2 of the Excise Policy for the year 2015-16 reads as under: "1.2.2 RESTRICTION OF LOCATION ON SCHEDULED ROADS ETC. The retail liquor outlets on National Highways/State Highways or service lanes running along such highways shall comply with the following direction of the Hon'ble High Court as contained in its order dated 18.3.2014 in CWP No. 25777 of 2012:- "No liquor vend shall be located along the National Highways/State Highways. They shall not be accessible or visible from the National Highways/State Highways or the service lane running along such highways. Note:- It shall be the personal responsibility of the DETC (Excise) of the district concerned to ensure the strict compliance of the above stipulated restrictions." The liquor vends which are not located on National/State Highways or the service lanes running along such highways, shall comply with the provisions of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 (41 of 1963) or any other law applicable. The above shall be subject to the directions/outcome of the SLP (C) No. 8971 of 2014 filed by the State in the Hon'ble Supreme Court." 5. The policy, therefore, is not contrary to the judgment of the Division Bench. Indeed, Clause 1.2.2 has incorporated the aforesaid directions of the Division Bench. Mr. Gupta fairly and rightly did not contend that there was any deviation in the policy from the directions of the Division Bench. He, however, expressed an apprehension that the policy may not be strictly implemented. We do not for a moment suggest that the apprehension is unfounded. Indeed, Clause 1.2.2 has incorporated the aforesaid directions of the Division Bench. Mr. Gupta fairly and rightly did not contend that there was any deviation in the policy from the directions of the Division Bench. He, however, expressed an apprehension that the policy may not be strictly implemented. We do not for a moment suggest that the apprehension is unfounded. The apprehension is not expressed at least by this petitioner out of any oblique motive. We do not doubt the bona fides of this petitioner. It appears to be genuinely interested in ensuring not only the formulation of a desirable policy but also the proper implementation thereof. However, as the policy is in accordance with law, it would be necessary to consider each violation separately and when it arises. Clause 1.2.2 has in fact provided that the DETC (Excise) will be personally responsible to ensure the strict compliance of the restrictions stipulated in the main part of Clause 1.2.2. We are inclined to accept Mr. Gupta's suggestion that any nodal agency or officer must be nominated to whom complaints can be made regarding any violation of the policy. 6. The respondents have also very fairly not treated this as an adversarial proceeding. They welcomed the suggestion and stated that the complaints may be addressed to DETC (Excise) of the district concerned or to the Collector (Excise), Panchkula. In this manner, it will not be possible for the DETC or any other authority to contend that they were not aware of the complaint, if any. 7. The statement on behalf of the respondent accepting Mr. Gupta's suggestion is accordingly recorded and it is so ordered. 8. Mr. Gupta also invited our attention to Clause 1.6 of the policy which reads as under:- "1.6 MODERN SHOPS: Some of the retail vends of IMFL (L-2) in the posh markets or shopping malls of the urban areas shall be identified to be allotted as modern shops. The Modern Shops shall be identified by the Department keeping in view the clientele and potential of the area. These modern shops shall have to be air conditioned and should have good quality flooring i.e. wooden/vitrified tiles/granite etc. The vends should be well decorated with shelves so that various brands are displayed in shelves with systematic layout plan. The licensee shall issue machine generated invoices (POS). The brand wise rates shall be displayed by the licensee. These modern shops shall have to be air conditioned and should have good quality flooring i.e. wooden/vitrified tiles/granite etc. The vends should be well decorated with shelves so that various brands are displayed in shelves with systematic layout plan. The licensee shall issue machine generated invoices (POS). The brand wise rates shall be displayed by the licensee. The customers shall have the facility to walk in the shops and select his/her choice of brand from the shelves. The modern shops shall be located in shopping malls or SCO/SCF or well constructed prefabricated structure of equal quality only in posh market areas. The modern shops shall have separate section for IFL (BIO). The Modern Shops shall be entitled to lift an additional quota upto 10% of his basic quota without any additional excise duty i.e. at the rate of excise duty as is applicable to basic quota i.e. from the slab of 50% additional quota." 9. Mr. Gupta submitted that the provisions of Clause 1.6 ought to be extended to other shops/vends as well. In other words, according to him, all shops and vends ought to be constructed of the same quality as "modern shops". He submitted that the practice of putting up tin-sheds ought to be discontinued. 10. These are policy decisions which must be taken by the authorities. It is possible that the construction of permanent structures in areas other than "posh market areas" may result in certain difficulties and complications. For instance, the authorities may, in subsequent years, decide to use the areas, where vends earlier existed, for other purposes. If permanent structures are put up, this would cause enormous difficulties both legally and otherwise. The costs and efforts in removing the permanent structures are far greater than removing tin-sheds. Secondly, although the contentions may be untenable and although it may be possible for the authorities to protect themselves against any unsustainable claim, it is possible that the licencees may contend that they have acquired a greater right on account of the structures being permanent in nature. The respondents are entitled to protect themselves even against unsustainable claims. 11. There are adequate safeguards in the policy to ensure that the facilities of water, electricity and toilets are provided in the Aahatas i.e. areas where liquor can be consumed. As far as the vends are concerned, they are used merely for selling liquor. The respondents are entitled to protect themselves even against unsustainable claims. 11. There are adequate safeguards in the policy to ensure that the facilities of water, electricity and toilets are provided in the Aahatas i.e. areas where liquor can be consumed. As far as the vends are concerned, they are used merely for selling liquor. The implementation of these requirements is another matter. 12. The writ petition is accordingly disposed off. The respondents shall inform the DETC (Excise) of all the districts not only to ensure strict compliance of the restrictions but also to attend to the complaints promptly. There shall be no order as to costs.