IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 3551 of 2010 Date of decision: February 15, 2011 Nar Singh Dayma .. Petitioner Vs. Dev Karan and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Ajay Jain, Advocate for the petitioner. Mr. Sanjay Chauhan, Advocate for the respondent No.1. Mr. Sukant Gupta, Addl. A.G. Haryana. A.N. Jindal, J Both the courts below accepted the plea of the plaintiff- respondents (herein referred as, 'the respondents') and granted injunction against the petitioner restraining him not to run the liquor shop near mandir located at City of Narnaul. The respondents being the residents of Mohalla Franskhana, Ward No.15, Narnaul, claimed that the liquor vend installed by the petitioner/ defendant No.4 (herein referred as, 'the petitioner') within the prohibited area was quite illegal and was in contravention of the policy contained vide Gazette Notification No.SO 44/PA1/1914 S 59/2003 dated 31.3.2003. As per Haryana Liquor Licence Rules, 1970 which have been amended from time to time and latestly qua Haryana Liquor Licence Rules, 2003, “no person to whom a licence for liquor vends is granted shall establish the same on such premises situated at a distance of less than 150 meters from the recognized School, College, Bus Stand and place of Worship, Hospital or Dharamshala. The liquor vendors shall also have to conform to the conditions laid down by the other acts/rules as well”. Thus, it was averred that since the petitioner has been running the liquor vend in contravention of the aforesaid rules, therefore, he is bound to be restrained from doing so. Reply to the application was filed by the petitioner wherein, he denied the contents of the application and further averred that several civil and criminal cases are pending in between Dev Karan respondent and the Civil Revision No. 3551 of 2010 -2- *** petitioner. The respondent Dev Karan has also filed several complaints in the various offices and this frivolous suit has also been filed against him in order to disturb his business. He had opened this liquor vend in the year 2008-09, but no objection was raised by any inhabitants. The liquor vend is not located within the prohibited area. However, both the courts did not accept the plea of the petitioner. Arguments heard. Record perused. The crucial piece of evidence with regard to the location of the shop is the report of the Local Commissioner dated 23.11.2009 which was brought on the record at the instance of the petitioner. It clearly shows that the liquor vend in question is situated across the road at a distance of 63 feet only from the location of Mata Mandir in question. It also goes undisputed that Mata Durga Mandir, Shri Luxmi Naraian Shiv Mandir, Arya Samaj and Basanti Devi Dharamshala are also situated within the distance of 150 meters from the disputed location of the liquor vend. The report of the Local Commissioner is based on the inspection made by him at the spot in the presence of number of persons including the counsel for the petitioner. The argument that it is not a recognized mandir, but a personal temple of a private individual, is also without merit. The notification no where indicates that the temple must be recognized, but word “recognized” is used for the Government School and not for the temple. Even otherwise, the petitioner has failed to establish prima facie if this is a temporary temple and that too, private, if so, then to whom it belongs. The trial court has rightly observed that the numerous persons had submitted representations on 15.1.2009 before the Deputy Commissioner, District Mohindergarh at Narnaul coupled with the newspaper cuttings and the photographs of the temple as well as of liquor vend. The said representation also indicates that it is not a temple of a private individual as the representation is signed by hundred persons. Not only this, the liquor vend is prima facie located within the distance of 150 meters from Hanuman Mandir, Arya Samaj Mandir and Laxmi Narain Mandir. Having examined the location of the liquor vend, now I lay my hands to probe if any contravention of the excise policy has been made by Civil Revision No. 3551 of 2010 -3- *** the respondent No.1. The excise policy issued for the year 2009-10, copy of which has been placed before me, at page No.8, reads as under :- “No person to whom a license for retail liquor outlet is granted shall establish the same on such premises as is situated at a distance of less than 150 meters from the main gate of the recognized school/ college/ main bus stand and a place of worship. However, Excise Commissioner can relax such distance for the location of retail liquor outlet from 150 meters to 75 meters on the recommendations of the Deputy Excise and Taxation Commissioner (Excise).” Admittedly, the liquor vend is situated at a distance of 63 feet i.e. within the prohibited area. No order with regard to relaxation of such distance has been passed by the Excise Commissioner. The argument of the learned counsel for the petitioner that he has been running the liquor vend at the same place for the last 20 years without any objection could hardly be accepted to maintain the liquor vend at the same place. In this regard, it may be observed that the liquor vend is allocated from year to year and could be renewed for the next year. The policy also provides that it is the duty of the licensee not to establish such liquor premises at a distance less than 150 meters from the main gate of college, school, bus stand and the place of worship, therefore, if any act has been done by him, against the settled rules and policy, then, his act cannot be validated for his earlier fault. Even otherwise, the petitioner has not brought anything on record in order to show if he has been running the liquor vend at the same place for the last 19-20 years. The Excise Department has already shifted the liquor vend from the said place. Lastly, principles of estoppel by acquiescence do not apply against the State policy. Irrespective of the obligation on the part of the petitioner to establish the liquor vend beyond the prohibited area, it was also the bounden duty of the Excise Officer who remained posted during the period 2008-09 and 2009-10 to see if the liquor vend has been established beyond the prohibited area, but this in action on the part of the Excise Officer (for Civil Revision No. 3551 of 2010 -4- *** the reasons best known to him) is condemned and is viewed seriously and calls for the disciplinary action against such defaulting officers/officials. Before parting with the judgment it may be observed that this court vide order dated 28.5.2010 had directed the Additional Advocate General, Haryana to produce the record relating to the allotment of liquor vend for the year 2010-11 explaining as to under what circumstances, the liquor vend was allocated at the same place when the litigation about its location was already pending in the court. Despite this direction, no circumstances were revealed except saying that when the license is renewed, the premises are not changed. It is a matter of great concern that the excise department while taking notice of the fact that the liquor vend was being run within the prohibited area had renewed the license for the year 2009-10. Thus, the person who renewed the license also needs to be reprimanded. At this juncture, it was informed by the respondents that the petitioner after knowing about the order dated 28.5.2010 has shifted the premises beyond the prohibited area. However, to the contrary, learned counsel for the petitioner has urged that he had to shift the premises under compulsion on account of which his business has been ruined and he is entitled to damages. In this regard it may be observed that since the shop was established by the plaintiff at his own risk within the prohibited area, it was the duty of the petitioner to see if he is establishing the same within the prohibited area, therefore, he is not entitled to any damages on account of having committed fault by himself. He cannot get benefit of his own wrong. Rule 36 (1B) also provides for providing no damages to the petitioner in such a situation, which reads as under :- “36. Procedure for grant of license by auction :- xx xx xx (1B) In case a vend has to be closed down because of court order, a local resistance, natural calamities such as fire, floods, draught, earthquake, riots or for any other reason, the licensee will have the option to shift the vend with the prior permission to alternate location on the same terms and Civil Revision No. 3551 of 2010 -5- *** conditions. The closure of one or more vends will not entitle him to any rebate/reduction in the license fee. In case the licensee refuses to run the vend, the same will be put to re- auction at the alternative site at the risk and costs of the original licensee and any loss occurred as a result of such auction shall be recoverable from him. xx xx xx xx xx xx” Thus, the aforesaid sub rule prohibits the petitioner to claim any damages on account of shifting of his shop in the aforesaid exigencies. As a result of the aforesaid discussions, it would be held that it is prima facie established that the petitioner had been running the shop in a prohibited area where he was not entitled to establish, especially as per rules, therefore, the petitioner cannot be said to have a prima facie case in his favour, rather the respondent has been able to establish that the petitioner was acting against the excise policy. Since the premises located in front of the temple were injuring the religious sentiments of the people and was a continuous source of nuisance for the general public, as such, balance of convenience also lies against the petitioner. In the net result, this petition is dismissed. However, the Excise Commissioner, Haryana is directed to look into the conduct of the defaulting officers responsible for allowing the petitioner to establish the premises of the liquor vend in the prohibited area and also those who are responsible to renew the license for the same premises during the pendency of the litigation particularly when it had come to the notice of the Excise Department that the petitioner had established the premises in the prohibited area. February 15, 2011 (A.N. Jindal) deepak Judge