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2018 DIGILAW 495 (CAL)

Kamala Restaurant & Bar v. Lieutenant Governor

2018-07-16

SANJIB BANERJEE

body2018
JUDGMENT : Sanjib Banerjee, J. 1. The petitioners are the owners of a restaurant and bar at Mayabunder which has now stopped functioning, since the renewal of the bar licence has been declined by the order impugned dated March 9, 2016 passed by the Deputy Commissioner, North and Middle Andaman District. 2. At first blush, the order impugned appears to have some striking features in the Deputy Commissioner playing it safe by yielding to the influence that may have been exerted on him, but by leaving sufficient indication in the order impugned that he was subjected to some kind of pressure. 3. The petitioners' bar on the Andaman Trunk Road near the bus-stand at Mayabunder was granted a licence in 2012. The licence was renewed for two subsequent periods of one year each. Upon a further renewal being sought in the year 2014, the same was declined. The writ petitioners approached this Court by way of WP No. 005 of 2015. The Deputy Commissioner's order of December 15, 2014 was challenged in such petition. The petition succeeded and, by an order of December 15, 2015, the petitioners' application for renewal of the bar licence was directed to be considered "in accordance with law and Rules and Regulations so also Guidelines dated November 18, 2008." 4. It is evident that shortly upon the receipt of the order dated December 15, 2015, the Deputy Commissioner caused the jurisdictional Tehsildar to furnish a report, covering both features as to the location of the petitioners' bar and also to the other attendant circumstances relevant for the consideration of the renewal of the bar licence. Interestingly, it does not appear that at the time that the Tehsildar was directed to prepare his report, any public complaint had been made to the authorities by the residents of the area. At any rate, such public complaint was not before the Deputy Commissioner, nor did he seek any report thereon from any person. 5. The local residents' complaint was made to the Lieutenant Governor on January 11, 2016, but the copies of the complaint may not have been contemporaneously forwarded to the concerned Deputy Commissioner or the Tehsildar. Indeed, it is evident that the public complaint of January 11, 2016 was subsequently forwarded to the Deputy Commissioner. 5. The local residents' complaint was made to the Lieutenant Governor on January 11, 2016, but the copies of the complaint may not have been contemporaneously forwarded to the concerned Deputy Commissioner or the Tehsildar. Indeed, it is evident that the public complaint of January 11, 2016 was subsequently forwarded to the Deputy Commissioner. A copy of the complaint of January 11, 2016 as made available by the office of the Deputy Commissioner to the petitioners has been appended to the petition. The complaint refers, inter alia, to divers grounds and it is evident, on an unbiased, plain reading thereof, that the alleged authors thereof had some axe to grind against the petitioner herein or may have been instigated to act against the petitioners herein. The grounds contained in the public complaint of January 11, 2016 range from the bizarre to the humorous. The essence of such complaint is that the bar did not adhere to the rules and regulations applicable to it for its operation and the regular patrons at the bar were given to rude and unacceptable behavior, particularly towards women. In addition, the existence of a temple within 150m of the bar was also referred to in the complaint. 6. The first ground indicated in the public complaint was that the bar was "located at the Main ATR just about 7 meters distance only." The order impugned passed by the Deputy Commissioner candidly records how the local Member of Parliament expressed his concern and recommended the cancellation of the bar licence. It may be relevant to notice the material paragraph from the order impugned: "It is pertinent to mention here that the Hon'ble Member of Parliament, A & N Islands also forwarded the joint complaint dated 12th Jan 2016 against the renewal of subject bar license to the Hon'ble Lt. Governor, A & N Islands with his concern and strongly recommended the cancellation of subject bar license in the interest of inhabitant of the area. The Hon'ble Member of Parliament, A & N Islands also alleged that the teenagers including the school children are now becoming alcoholic." 7. On the basis of the findings in the Tehsildar's report of January 9, 2016, the Deputy Commissioner observed, in his order of March 9, 2016, that a renewal of the bar licence "will contravene the Clause 7(ii) and 20" of the guidelines dated November 18, 2008. 8. On the basis of the findings in the Tehsildar's report of January 9, 2016, the Deputy Commissioner observed, in his order of March 9, 2016, that a renewal of the bar licence "will contravene the Clause 7(ii) and 20" of the guidelines dated November 18, 2008. 8. The Deputy Commissioner also considered the setback of the building housing the bar not being adequate. The Deputy Commissioner referred to the Andaman and Nicobar Land Revenue and Land Reforms Rules, 1968 in general and to Rule 165(1)(a) thereof, in particular, to observe that no bar could operate without leaving the requisite set-back. The Deputy Commissioner alluded to the allegations levelled against the petitioners' bar and against the individual petitioners and, upon perceiving that many voices had been raised against the further continuation of the petitioners' bar, refused to renew the licence. The specific reasons given by the Deputy Commissioner are found in the two paragraphs succeeding the one in which he referred to the recommendation of the local MP to close down the subject bar: "The Clause 20 of the guidelines notified by A & N Administration, vide Order No. 4192 dated 18-11-08 regarding the issue of bar license, says that "the license to an individual to sell liquor is not by way of right and a licensee is required to scrupulously follow all Rules and Regulation and terms and conditions governing such license. Adequate safe guards should be taken by the licensee to ensure that the running of such licensed premises does not impinge upon the peaceful living of the people in the area as defined". And the Clause 7(ii) of the above mentioned guidelines, says that "that the premises have not been constructed in violation of any law or rules". "In view of the above facts and materials on record I am of the considered view that renewal of subject bar license will contravene the Clause 7(ii) and 20 of the guideline dated 18-11-2008. Thus, the request of the writ petitioner for renewal of subject bar license cannot be acceded to at this juncture hence, rejected and the bar license No. 41-41/DC(N & MA)/LS-BL/12/1066 dated 4th April 2013 granted to Shri A. Chinnaiah S/o. Late Alagu, Prop. Kamala Bar & Restaurant at Rest Camp (pahalgaon) under Tehsil (Mayabunder) is cancelled." 9. Thus, the request of the writ petitioner for renewal of subject bar license cannot be acceded to at this juncture hence, rejected and the bar license No. 41-41/DC(N & MA)/LS-BL/12/1066 dated 4th April 2013 granted to Shri A. Chinnaiah S/o. Late Alagu, Prop. Kamala Bar & Restaurant at Rest Camp (pahalgaon) under Tehsil (Mayabunder) is cancelled." 9. The Administration is represented and emphasises on clauses 7(ii) and 20 of the guidelines pertaining to bar licences dated November 18, 2008. The Administration submits that since it was discovered that the set-back from the AT Road was not adequate, the matter was brought to the notice of the petitioners herein. The petitioners, however, did not take adequate steps in such regard, laments the Administration. The Administration says that nothing was done on any recommendation of the local MP, particularly since the relevant MP was not heard and the MP merely forwarded a copy of the compliant received directly by him to the Lieutenant Governor with some comments thereon. It does not appear that any copy of the letter forwarded by the MP to the Lieutenant Governor was made available to the petitioners herein for the petitioners to deal with the comments of the MP therein. 10. It is evident that though the petitioners did not issue a written reply at the initial stage, the petitioners ultimately responded to the show-cause notice and contended therein that there was no question of a setback not having been left. The petitioners also refuted the charges levelled against them by the local residents. Indeed, the petitioners carried a written representation of some other local residents urging that the petitioners' bar licence be renewed. The petitioners also caused some of petitioners' supporters to appear before the Deputy Commissioner and express their approval for the continuation of the petitioners' bar at its present location. 11. The order of the Deputy Commissioner dated March 9, 2016 appears clearly to be founded on clause 7(ii) and clause 20 of the guidelines dated November 18, 2008. Indeed, such position has been admitted by learned Government Pleader representing the Administration. In such a scenario, it is only such grounds that may be looked into to ascertain the propriety of the order impugned. 12. Indeed, such position has been admitted by learned Government Pleader representing the Administration. In such a scenario, it is only such grounds that may be looked into to ascertain the propriety of the order impugned. 12. The Deputy Commissioner appears to have completely relied on the opinion expressed in the Tehsildar's report of January 13, 2016 that the appropriate set-back from the Andaman Trunk Road had not been kept. It does not appear from the Tehsildar's report that the petitioners were given notice at the time that the site was inspected or measurements, if any, thereof were taken. In the petitioners' response of January 28, 2016 to the show-cause notice received from the Deputy Commissioner, the petitioners asserted that the set-back was adequate and in accordance with law; they also referred to the widening of the AT Road and denied that the construction was illegal or in breach of the existing rules. 13. In the light of assertion in the Tehsildar's report being countered in the written response of the petitioners qua the set-back, an independent inquiry was called for in such regard before the Deputy Commissioner could arrive at a conclusion that the petitioners herein were in breach of clause 7(ii) of the guidelines. This is more so since this was a case of renewal and not of the initial issuance of the licence and it must not be lost sight of that the licence was initially granted in the year 2012 and renewed for two subsequent years thereafter. If the appropriate authority having the jurisdiction to issue the licence had previously found the set-back to be in order and it was nobody's case that the petitioners' construction had subsequently been extended towards the road, it called for an independent inquiry, which does not appear to have been undertaken by the Deputy Commissioner, who quite mechanically treated the Tehsildar's report as sacrosanct, unmindful that such report contradicted the initial grant of the licence and the two renewals thereafter. In any event, the Tehsildar does not appear to have taken any measurements at all or, at any rate, upon notice to or in the presence of the petitioners or their representatives. 14. As to the public complaint and the reference to clause 20 of the guidelines in the order impugned, the distinction between democracy and the rule of law may be brought out by an example. 14. As to the public complaint and the reference to clause 20 of the guidelines in the order impugned, the distinction between democracy and the rule of law may be brought out by an example. In our constitutional scheme of things, the rule of law is of paramount importance and overrides the wishes of the people. It would not do, say, if 99 villagers in a village of 100 voted that the last villager was a witch; the last villager could be regarded as a witch only if it was established as such in accordance with law. That is how the majesty of the rule of law prevails over the principles of democracy. 15. Merely because some tens or hundreds or even thousands of complainants signed a joint petition or appended their signatures to the contents of a letter that they may not have even understood, would not imply that they had a legitimate grievance against the running of the bar. The legitimacy of the grievance had to be ascertained by the Deputy Commissioner in course of the inquiry and hearing and clause 20 of the guidelines cannot be interpreted to imply that the mere complaint of the public, however unjustified, would require a licence to be cancelled or the renewal of a licence to be declined. The Deputy Commissioner's order is eloquently silent on the adjudication aspect of the matter. 16. Most importantly, it is evident that the Deputy Commissioner may have been influenced by the comments or observations of the local MP. To begin with, such comments or observations were not forwarded to the petitioners for the petitioners to address the same. Secondly, merely because the MP penned some comments, it did not imply that such annotations had to be treated as gospel by the Deputy Commissioner, who alone had the jurisdiction to decide on the propriety of the complaint lodged by the locals and ascertain the desirability of granting a renewal to the petitioners. 17. It is an admitted position that there are several bars operating within a radius of one kilometer from the petitioners' bar in Mayabunder. There is a positive assertion to such effect at paragraph 27 of the petition. The relevant averment has been accepted to be correct in the affidavit filed on behalf of the respondent authorities. 18. 17. It is an admitted position that there are several bars operating within a radius of one kilometer from the petitioners' bar in Mayabunder. There is a positive assertion to such effect at paragraph 27 of the petition. The relevant averment has been accepted to be correct in the affidavit filed on behalf of the respondent authorities. 18. It is inconceivable that the locals have a grievance against one bar and not against the other bars which operate within such close range of the petitioners' establishment. The grievance aired in the complaint is about youngsters being lured to alcoholic drinks, of patrons at the bar being rude and abusive and of women and girls feeling intimidated by the presence of such patrons. These are general allegations that persons who still think drinking is a taboo harbour against people who may indulge in or accept the consumption of alcoholic beverages. It cannot be discerned from the complaint that only the patrons at the petitioners' bar are given to objectionable behavior and the gentlemen patrons at the four other bars within striking distance of the petitioners' bar conduct themselves in an exemplary manner. 19. There is no doubt that the Deputy Commissioner herein was unduly influenced by the needless comments and observations of the local MP and felt duty-bound to make an order against the petitioners. In the MP's comments and observations not being made available to the petitioners and in the Deputy Commissioner giving credence to such comments, the entire process of decision-making has been tainted as irrelevant considerations have been taken into account in arriving at the decision. 20. There is now an uber (sic) caste of those in power which has developed in this country. VIPs who have lost the red lights over their heads use their status in office to exert undue influence in areas beyond their constitutional domain of operation. The permanent executive in the form of the bureaucracy should ignore all intimidatory tactics used by the political or transient executive, particularly the members of legislatures who have no executive authority. There appears to be a blurring of the understanding of the people's representatives of the bounds of their authority and a lot of confusion, arbitrariness and disorder is created thereby. Just as a judge deserves respect in his court, a people's representative deserves equal respect in his area of operation. There appears to be a blurring of the understanding of the people's representatives of the bounds of their authority and a lot of confusion, arbitrariness and disorder is created thereby. Just as a judge deserves respect in his court, a people's representative deserves equal respect in his area of operation. But if a judge were to step on the road to control traffic, the judge must be pulled up for such conduct. People's representatives have now begun to think that merely because they have succeeded at the hustings, they have the divine authority to step in anywhere they please and do whatever they choose. Such flawed understanding of the limited authority of the people's representatives needs to be corrected. The permanent machinery of the government - primarily, the bureaucracy and the police - need to withstand the pressure and not fall prey to petty personal gains; for then, the rule of law will be the principal casualty and governance will give way to anarchy. 21. For the reasons aforesaid, the Deputy Commissioner's order declining the renewal sought by the petitioners cannot be accepted. The order dated March 9, 2016 (alternatively indicated as March 10, 2016) is set aside. The Deputy Commissioner is requested to consider the matter afresh in the light of the observations hereinabove and strictly in accordance with law based on the guidelines relevant for the purpose. It is hoped that the reasoned order of the Deputy Commissioner in such regard will be reached to the petitioners within four weeks of the Deputy Commissioner receiving a copy of this order. 22. W.P. No. 279 of 2016 is allowed as above, but without any order as to costs.