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2017 DIGILAW 1371 (HP)

Court On Its Own Motion v. State Of H. P.

2017-12-12

AJAY MOHAN GOEL, SANJAY KAROL

body2017
JUDGMENT Sanjay Karol, A.C.J. - On the basis of letter petitions, addressed to this Court, alleging opening of illegal liquor vends, taking suo motu cognizance, petitions were registered, in which notices were issued. 2. M/s Vikrant Thakur and Deven Khanna, Advocates, were requested to assist the Court as Amicus Curiae. 3. In the two letter petitions, it is alleged that contrary to the directions issued by the Hon''ble Supreme Court of India, the State has allowed the liquor vends to be opened up, more so in the manner which have become a source of nuisance. Also it is adversely affecting the otherwise tender minds of students, for the liquor vends stand opened in close proximity of the schools. 4. The Deputy Commissioner(s) and Superintendent(s) of Police of all the Districts were impleaded as party respondent(s) and were asked to file their responses. 5. Having noticed the discrepancies in the affidavits, on 18.07.2017, this Court passed the following order:- "From the response-affidavit dated 3rd July, 2017 that of Deputy Commissioner, Kangra at Dharamshala, it is evident that at least 14 wine shops within the district were found to be operating in violation of the orders/directions passed by Hon''ble Supreme Court of India dated 15.12.2016. We direct Deputy Commissioners as also Superintendents of Police of all 12 administrative districts within the State of Himachal Pradesh to bring it to the notice of Secretary, (Excise and Taxation) to the Government of Himachal Pradesh-respondent No.2 within 24 hours from today by way of written communication including by way of e-mail, the factum of any liquor vends/wine shops which is /are functional within their respective jurisdiction in violation of the orders /directions dated 15.12.2016 as also subsequent orders/directions passed by Hon''ble Supreme Court of India. Respondent No.2 shall ensure forthwith closure/shifting of such liquor vends/wine shops in accordance with law within next 24 hours. List on 25.7.2017. Authenticated copy (Emphasis supplied) 6. Since there was conflict in the stand taken by the Deputy Commissioners and the Superintendent(s) of Police, on 25.07.2017, this Court again passed the following order: "Earlier during the day, we passed the following order: "Mr.Anup Rattan, learned Additional Advocate General, to ascertain from the Superintendent of Police, Kangra the basis for making averments with regard to the distance in para-8 of his affidavit dated 15th July, 2017. Need has arisen in view of the stand which now the State is taking, stating that on actual measurement the distance is far less. Now, either the averments made by the Superintendent of Police are factually incorrect or the contentions based on instructions imparted by the Excise Department are incorrect. Let such information be ascertained during the course of the day. We also direct the Secretary, Excise and Taxation to remain present in Court today itself at 2.00 PM." "Mr.Onkar Sharma, Principal Secretary, Excise and Taxation, Government of Himachal Pradesh, who is present in Court, states that the information furnished with respect to the actual distances is on the basis of information supplied by the officials of Public Works Department. In this view of the matter, we are not inclined to accept the statement of Mr.Anup Rattan, learned Additional Advocate General, that the liquor vends, so indicated in the affidavit of Superintendent of Police, Kangra, are not required to be closed. The Apex Court vide judgment dated 15th December, 2016 passed in State of Tamil Nadu and others vs. K. Balu and another, (2017) 2 SCC 281 , issued directions with regard to opening up of liquor vends along the National and State Highways. The directions contained therein stand modified vide order, dated 31st March, 2017, more so with respect to the State of Himachal Pradesh to the following effect: "In the case of area comprised in local bodies with a population of 20,000 people or less, the distance of 500 metres shall stand reduced to 220 metres" Faced with this situation, Mr.Onkar Sharma, states that he shall personally visit the spot for ascertaining as to how the discrepancies with regard to the distance came to fore. Also, he shall visit the area indicated by the complainant for ascertaining the factual position and ensure that any liquor is sold, in violation of the policy framed by the Government as also the directions issued from time to time by the Hon''ble Supreme Court and also by this Court. Affidavit of compliance be filed within a period of 10 days. List on 8th August, 2017." 7. Affidavit of compliance be filed within a period of 10 days. List on 8th August, 2017." 7. On 04.08.2017, on the assurance of the State, this Court passed the following order:- "Mr.Anup Rattan, learned Additional Advocate General, states that in view of intervening developments, a fresh application bringing on record subsequent events, also explaining as to why order dated 25th July, 2017 could not be compiled with, is required to be filed. We expect the Additional Chief Secretary, Excise and Taxation, Government of Himachal Pradesh, to have the exercise completed, so undertaken by him, with respect to all the liquor vends within the State of Himachal Pradesh. Affidavit of compliance be positively filed within a period of three weeks. List on 1st September, 2017." 8. The order was complied, with the filing of affidavit dated 16.09.2017 that of Additional Chief Secretary to the Government of Himachal Pradesh, whereby Court was informed that liquor vends of all the Districts of Himachal Pradesh, were inspected. Districts Solan, Hamirpur, Una, Chamba, Mandi, Bilaspur, Revenue District BBN, Baddi, District Solan, Revenue District Nurpur at Jachh, Kangra, no liquor vend was found functioning in violation of the orders passed by Hon''ble Supreme Court of India or Liquor Policy framed by the State. However, with respect to other areas of District Kangra, liquor vend of Maranda near Agro Petrol Pump of Palampur Circle; two liquor vends at Satiwala and Timbi in District Sirmour; seven vends in District Kullu, six liquor vends in District Shimla; two liquor vends in District Kinnaur & Spiti were found to be operating in violation of the Liquor Policy and the directions issued by the Apex Court and as such orders were issued for their shifting and/or closure. 9. Further, when the matter was brought to the notice of this Court that in District Shimla itself there were other liquor vends which were being operated in violation of the Liquor Policy, on 09.10.2017 this Court directed the State to file a fresh status report. 10. Since there was ambiguity in the affidavit of the Department of Excise and the Deputy Commissioner, Shimla, on 27.10.2017, this Court passed the following order:- "Ambiguity in the affidavits, that of the Excise Department and the Deputy Commissioner, Shimla be clarified. Also, status with regard to liquor vends near St. 10. Since there was ambiguity in the affidavit of the Department of Excise and the Deputy Commissioner, Shimla, on 27.10.2017, this Court passed the following order:- "Ambiguity in the affidavits, that of the Excise Department and the Deputy Commissioner, Shimla be clarified. Also, status with regard to liquor vends near St. Edward School and near the Sanitorium Hospital, Chaura Maidan, Shimla be explained by the Deputy Commissioner, Shimla." 11. Pursuant thereto, on 31.10.2017, the Deputy Commissioner, Shimla, filed his personal affidavit stating that the liquor vends at Bemloe and Chaura Maidan, were being run in accordance with the Liquor Policy. Not finding favour with the same, this Court on 03.11.2017 & 06.11.2017 passed the following orders respectively:- "Distance to be calculated from the school to the liquor vend is not for the purpose of mathematical calculation, but for ensuring that liquor vend is not easily accessible to the children studying in the school. This, in fact, is the intent and purpose of not having a liquor vend within close proximity of an educational institution. We find Deputy Commissioner, Shimla to have not appreciated the object and purpose in justifying opening of the liquor vend which is clearly visible from the campus of St. Edward School, Shimla, falling within the municipal limits, Shimla. In fact, we have doubt as to whether the distance measured by the Deputy Commissioner, Shimla is factually correct. According to him, it is more than 107.30 meters, whereas as per the Excise Department''s announcement it should be more than 100 meters. Be that as it may, we find the approach adopted by the State and more so that of the Deputy Commissioner, Shimla to be highly insensitive and impractical. As such, we direct the Principal Secretary (Excise and Taxation) to the Government of Himachal Pradesh to forthwith close the liquor vend opened just opposite to Hotel Himland (East), Shimla adjoining to the bus stoppage near the school from where children board the buses. Mr. M.A. Khan, learned Additional Advocate General to assist the Court with regard to the liquor vend which stands opened near Sanitorium Hospital, Chaura Maidan. Whether it is contrary to any one of the directions issued by the Hon''ble Supreme Court of India or not, be factually ascertained. We also request Mr. Mr. M.A. Khan, learned Additional Advocate General to assist the Court with regard to the liquor vend which stands opened near Sanitorium Hospital, Chaura Maidan. Whether it is contrary to any one of the directions issued by the Hon''ble Supreme Court of India or not, be factually ascertained. We also request Mr. Khan to personally visit the liquor vends/AAHATAS at Lakkar Bazar, Shimla for ascertaining as to whether the same are being run totally in consonance with the excise policy, as also the directions of the Hon''ble Supreme Court of India or not. Affidavit of compliance be positively filed within two days. List on 6.11.2017. Authenticated copy" (Emphasis supplied) .............x..............x............x... "In continuation of our order dated 03.11.2017, we are of the considered view that at least three liquor vends (retailer), need to be relocated and they being (i) at Chaura Maidan near Sanitorium Hospital, (ii) Country Liquor Vend (AAHATA) at Lakkar Bazar and (iii) IMFL at Lakkar Bazar. We direct that needful be positively done within a period of two weeks from today. List on 27.11.2017. Copy dasti." 12. It appears that on 27.11.2017, State filed another application, qua liquor vend located at St. Edward School, Shimla and this Court was persuaded by the learned Advocate General to modify the aforesaid orders dated 03.11.2017 and 06.11.2017, which the Court did do so on 27.11.2017, by passing the following order:- From the affidavit filed by the Excise & Taxation Commissioner, it emerges that the liquor vends at Lakkar Bazaar and Chaura Maidan in Shimla are within the limits prescribed under the Excise Policy. In so far as the liquor vend near St. Edward School, Shimla is concerned, learned Advocate General states that without going into the controversy as to whether site of the liquor vend is in consonance with the Excise Policy or not, the same shall be shifted to nearby identified place, which is definitely outside the direct approach of the students from the school premises. In this view of the matter, we modify our orders, dated 3rd November, 2017 and 6th November, 2017. Let a complete copy of Excise Announcements, 2018 be supplied to learned Amicus Curiae. List on 12th December, 2017." (Emphasis supplied) 13. In this view of the matter, we modify our orders, dated 3rd November, 2017 and 6th November, 2017. Let a complete copy of Excise Announcements, 2018 be supplied to learned Amicus Curiae. List on 12th December, 2017." (Emphasis supplied) 13. Subsequently, when the matter came up for hearing, this Court invited attention of the State through the learned Additional Advocate General, who all along had been pursuing the matter, that one liquor vend at village Gumber (Jawalamukhi), Kangra, is being run, rather illegally, inasmuch as it is in close proximity of the school and located at a place, implying as though it is meant to cater only to the children of the school. It appeared to be an extension of the school itself. 14. This Court is assured by the learned Additional Advocate General/State that regardless of the distance of the liquor vend from the school, action for shifting the same, would positively be taken with speed and dispatch. 15. Further it is argued that present proceedings be closed. 16. At the threshold, we clarify that we have not gone into the question of the State de-notifying the National Highways as State/District Highways, for the reason is simple. Excise Policy for the year 2018-19 is likely to be issued and auction of liquor vends which usually takes place in the month of March being end of the financial year, is to take place, based on such decisions and factors which the State may consider. Hence we leave this question open, to be best reconsidered by the State and to be adjudicated, if so required in an appropriate proceeding. 17. However, we must observe: (i) from the letter petitions, it is quite apparent that the averments made therein are true; and (ii) the State after physically inspecting the liquor vends took remedial measures of closing/shifting such of those vends, which prima facie were found to be operating in violation of the Policy and directions issued by the Courts. 18. We are of the considered view that with regard to opening up the liquor vends near the schools/religious institutions, approach adopted by the State is extremely pedantic and pedestrian. We have already clarified that distance is not for the purpose of arithmetical calculation, but to prevent easy accessibility and/or visibility thereof from such premises. 19. 18. We are of the considered view that with regard to opening up the liquor vends near the schools/religious institutions, approach adopted by the State is extremely pedantic and pedestrian. We have already clarified that distance is not for the purpose of arithmetical calculation, but to prevent easy accessibility and/or visibility thereof from such premises. 19. The Himachal Pradesh Excise Act, 2011 (Section 26), prohibits sale of liquor as also employment of minors in the liquor vends. In fact, it entails penal consequences. Section 28 empowers the State to issue licence, permit or pass on such basis and such conditions as the State may prescribe. Significantly, sub-Section (5) of the said Section mandates consideration of public opinion with respect thereto. Even the Himachal Pradesh Liquor License Rules, 1986 prohibit sale of liquor to minors. 20. We have already noticed that in K. Balu (supra), the Apex Court issued directions to all the Chief Secretaries and Director Generals of Police for taking steps prohibiting sale of liquor on National or State Highways. The said directions came to be modified in Arrive Safe Society of Chandigarh vs. The Union Territory of Chandigarh & another, Special Leave Petition (Civil) No. 10243 of 2017. 21. Article 47 of the Constitution of India mandates as under: - "47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health.-The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health." 22. At this point in time, we may also take note of the fact that this Court, way back in the year, 1983, itself had issued directions prohibiting sale of liquor at a distance of about 200 yards from the place of worship and places of education (Himachal Pradesh Nashabandi Parishad and others vs. State of H.P. and others, CWP Nos.136 and 179 of 1983). The directions vis-a-vis display of liquor bottles or containers (Para-34) of these liquor vends are applicable even today. 23. We notice that thereafter the State had modified the Policy and the distance stands reduced. The directions vis-a-vis display of liquor bottles or containers (Para-34) of these liquor vends are applicable even today. 23. We notice that thereafter the State had modified the Policy and the distance stands reduced. Be that as it may, since the financial year is about to end, we leave the issue of distance, whether adequate or not, to be considered in an another appropriate proceeding, but however, dispose of the present petitions with the following directions. i. Before the next announcement of the Liquor Policy i.e. for the financial year 2018-19, the State shall consider as to whether it is advisable/prudent to open liquor vends on erstwhile National/State Highways, which stand de-notified as such, solely to overcome the applicability of the directions issued by the Hon''ble Supreme Court of India in K. Balu (supra) and Arrive Safe (supra); ii. Whether distance presently prescribed for opening up of the liquor vends from the schools//educational/religious institutions is adequate or not and requires modification; iii. (a) In any case, distance so notified is not to be measured from the gate of the school, but the farthest point of the premises (building and play ground) of the schools, for as is apparent that the school at Gumber is totally open from all directions, including the play ground and the liquor vend is freely visible and accessible to children from all sides. Thus, distance is to be measured not from the class room; end of the building; or the beginning of the play ground; (b) . No ambiguity can be allowed with regard thereto. It is the radial distance from the boundary of the school and not the distance from the gate of the school(s) which would be considered; (c) . This Court cannot be oblivious of the fact that most of the schools in Himachal Pradesh, particularly in the rural areas, are unfenced and do not have any boundary walls. They are absolutely open from all sides, be it the school play ground or the building housing the school itself; iv. In the liquor vends, it must be conspicuously displayed that sale of liquor for children is prohibited and in any case, consumption of liquor even for adults is injurious to health. v. CCTV cameras must be installed in the liquor vends. Such cameras are to be installed by the operators of the liquor vends. In the liquor vends, it must be conspicuously displayed that sale of liquor for children is prohibited and in any case, consumption of liquor even for adults is injurious to health. v. CCTV cameras must be installed in the liquor vends. Such cameras are to be installed by the operators of the liquor vends. This would only ensure security of the shop and take note of violation if any carried out by the employees manning the liquor vends, more specifically with regard to sale of liquor to children; vi. The persons employed in the shops should be orientated/sensitized towards the law and should be explained in no uncertain terms their duties to protect the interest of the children; and vii. Views of the ladies particularly that of Mahila Mandal(s) must prevail, in the event of objection being raised with regard to the situs of the liquor vends. 24. Before parting, we wish to place on record appreciation qua the efforts put in by M/s Vikrant Thakur and Deven Khanna, Amicus Curiae, who, on the instructions of this Court, contacted letter petitioners and obtained necessary feedback. 25. Learned Amicus Curiae undertake to communicate the outcome of the present petition to the letter petitioners. 26. With the aforesaid observations, present petition stands disposed of.