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Uttarakhand High Court · body

2019 DIGILAW 44 (UTT)

Bhupal Singh v. State of Uttarakhand

2019-01-10

R.C.KHULBE, RAMESH RANGANATHAN

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JUDGMENT : Ramesh Ranganathan, J. Heard Mr. U.K. Uniyal, learned Senior Counsel assisted by Mr. Sandeep Kothari, learned Counsel for the petitioners and Mr. S.S. Chauhan, learned Deputy Advocate General for the State of Uttarakhand. With their consent, the writ petitions are disposed of. 2. The relief sought for in the writ petitions is for a writ of certiorari to quash the order dated 22.11.2018 passed by the District Magistrate, Almora and the consequential action taken by the District Excise Officer, Almora, directing the shifting of the wine shops of the petitioners. 3. Facts, to the limited extent necessary, are that the State of Uttarakhand promulgated its Excise Policy, for the Excise Year 2018-19, on 18.3.2018; and on auctions being conducted, for grant of license to sell English liquor and country made liquor, the petitioners participated and quoted the highest bids for a total revenue of Rs.3,45,45,112/- and Rs.9,02,46,452/- respectively to be paid from 1.5.2018 to 31.3.2019. Pursuant thereto, allotment letters were issued to the licensees on 26.4.2018, and the petitioners started operating their shops from 1.5.2018. 4. While matters stood thus, the District Collector, Almora passed an order dated 22.11.2018 referring to an order of this Court in WPPIL No.116 of 2016 dated 18.6.2018, whereby a Division Bench of this Court had directed the S.D.M. Almora to measure the distance as per rules, and the norms prescribed by the State Government, within 72 hours; in case the distance was found to be less than 100 meters, the State Government should shift the liquor vend, within 7 days from the date of the order, to an appropriate place; and, if it is more than 100 meters, it shall be permitted to operate. 5. Pursuant thereto, the District Collector appears to have caused measurement of the distance to the petitioners’ shops from the gate of the nearest hospital, and to have arrived at the conclusion that the distance was less than 100 meters. Consequently, the petitioners were directed to shift their shops. 6. A counter affidavit is filed by the District Excise Officer, enclosing thereto a Map which shows that the District Hospital, Almora has a main gate and an emergency gate. Likewise, the Govt. Girls Inter College has a main gate and a side gate, as also a gate called Gate No.1. While the distance between the emergency gate of the hospital, and the side gate of the Govt. Likewise, the Govt. Girls Inter College has a main gate and a side gate, as also a gate called Gate No.1. While the distance between the emergency gate of the hospital, and the side gate of the Govt. Girls Inter College is located within 100 meters distance from the subject wine shops, the main gate of the district hospital and the main gate of the Govt. Girls Inter College is, admittedly, far in excess of 100 meters. 7. Rule 5(4)(a) of the U.P. Number of Location and Excise Shop Rules, 1968 stipulates that no shop or sub-shop shall be licensed within a distance of 50 (fifty) meters in the case of Municipal Corporation; within a distance of 75 (seventy-five) meters in the case of a Municipal Council and a Nagar Panchayat, and within a distance of 100 (one hundred) meters in other areas, from any place of public worship or School or hospitals or residential colony. 8. While Rule 5(4)(a) has not specified the manner in which this distance of 100 meters is to be computed, guidelines have been issued by the Government prescribing the distance to be measured from the entry point of a hospital or a college till the wine shop. 9. The dispute, in the present case, is regarding what the words ‘entry point’ means. While Mr. U.K. Uniyal, learned Senior Counsel for the petitioner, would submit that the entry point of any premises can only be from the main gate, the District Collector appears to have taken into consideration the emergency gate of the district hospital, and the side gate of the Govt. Girls Inter College, in holding that the distance is less than 100 meters. 10. The authorities should undoubtedly have been more specific, and if they intended to prevent wine shops being established within 100 meters of any gate of such institutions, they should have clearly prescribed such a condition in the guidelines. Absence of such a stipulation has resulted in the petitioners being granted the licence to run their shops in the subject premises. 11. Mr. S.S. Chauhan, learned Dy. Advocate General, appearing on behalf of the State Government, would fairly state that the subject shops have been in operation in the very same location, albeit by difference licensees, for the past more than 10 years. Learned Dy. 11. Mr. S.S. Chauhan, learned Dy. Advocate General, appearing on behalf of the State Government, would fairly state that the subject shops have been in operation in the very same location, albeit by difference licensees, for the past more than 10 years. Learned Dy. Advocate General would further state that the excise authorities had computed the distance from the main gate in granting licences for the shops; the petitioners herein are operating their shops in the same premises; while one of them has been granted licence to sell country liquor, the other has been granted licence to sell Indian Made foreign liquor; both of them, put together, have paid licence fees in excess of Rs.12.00 crores; and the licence period is due to expire by 31.3.2019. 12. There is an ambiguity in the guidelines issued by the Government. The subject shops are said to be operating in the present location for the past 10 years. Further, the excise authorities, after measuring the distance between the hospital and the college on the one hand and the subject shops on the other, have granted them licences. While it would be wholly inappropriate for us to stipulate that the distance from a wine shop should be measured from the entry (main) gate of a hospital or a college, for these are all aspects to be considered and stipulated by the government. In the absence of any specific prescription in this regard, we are satisfied that the District Collector was not justified in passing the impugned order, nor was the District Excise Officer justified in passing the consequential order. The impugned orders are, accordingly, quashed. 13. Before parting with the case, we must emphasize the need for specific guidelines to be prescribed to avoid any ambiguity in allocation of wine shops in future. If the government intends to stipulate that the distance should be measured from anyone of the gates of the hospitals, religious institutions or colleges or residential colonies, they should specifically say so. The stipulation that, it should be from the entry point, has resulted in different interpretations, and in licenses being granted by computing the distance from the main gate of different premises. We hope and trust that the Government of Uttarakhand would examine the matter, and prescribe clear guidelines before the commencement of the Excise Year 2019-2020 on 1.4.2019. 14. Both the writ petitions are disposed of accordingly.