1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.8844/05 (Silver Coin Club Society V/s. State of Raj. & Ors.) Date of Judgment :: 17.12.2008 HON'BLE MR.JUSTICE R.S. CHAUHAN Mr. Ashok Gaur for the petitioner. Mr. L.N. Bhardawaj for Mr. R.B. Mathur for the respondents. Although, the petitioner-club has challenged the constitutional validity of the notification dated April 1, 2005 whereby certain amendments were made in Rule 3 of the Rajasthan Excise (Grant of Hotel Bar/Club Bar Licence) Rules, 2005, ('the Rules', for short), but during the course of arguments the petitioner has restricted his prayer to seeking direction from this Court to the respondents for granting “Club Bar Licence” to the petitioner under the Rules. The facts leading to this petition are as under :- In 1991, the petitioner-club was duly registered with the Registrar of Co-operative Society. The petitioner- club is an association of like-minded members. The object of the club is social and recreational. Initially, the club was 2 operating within the the old part of Jaipur city. Subsequently, the club has shifted to B.T. Road, the area falling under the Prathviraj Nagar at Jaipur. On 13.11.2003, the club decided to obtain “Club Bar Licence” as per the Rules. For this purpose, the Club deposited Rs.60,010/- for the year 2003- 04. The Club had specifically requested for this licence as it did not fall under the definition of “Hotel” as given in Section 2(a) of the Rules. However, when the Excise Commissioner called the President of the Club, the President was told that though the “Hotel Bar Licence” for hotel can be granted, but “Club Bar Licence” cannot be granted. On 11.05.2004, the Licencing Authority issued a Hotel Bar Licence to the petitioner. The club applied for the renewal of the said licence for the year 2005-06 and deposited the requisite fees. The licence was validated till 2006. Meanwhile, on 05.05.2005, the District Excise Officer, Jaipur issued an order to the Excise Inspectors wherein he sought certain information about the Hotel Bar licence holders. The Inspectors were directed that fresh proposals for renewal of licence should be sent after the hotels have been inspected. In case, the hotels were found to have less than twenty rooms, then an affidavit should be sought from the hotelier that he would construct the remaining rooms so that the hotel will be equipped with twenty rooms. In case, such an 3 affidavit is not given, the hotelier's licence would be cancelled with immediate effect. With the threat that the licence would be cancelled, and as the Club had constructed only eight rooms, the petitioner gave an affidavit that they would be willing to construct the remaining twelve rooms so as to have at least twenty rooms in the club. In order to carry out its assurance, the petitioner applied for permission from the Jaipur Development Authority, ('the JDA', in short), for constructing the twelve rooms. But, vide letter dated 30.09.2005, the Deputy Commissioner informed the Club that the permission for constructing the additional rooms cannot be granted. According to the Deputy Commissioner, the Hon'ble High Court had stayed the construction of any building in the Prathviraj Nagar. Hence, the permission could not be granted. Therefore, on 05.10.2005, the Club wrote to the District Excise Officer informing him that the Club is unable to construct the remaining twelve rooms, due to the stay granted by this Court. Meanwhile, on 01.04.2005, the Government of Rajasthan issued a notification wherein Rule 3 of the Rules of 1973 was amended. According to the notification, the existing proviso to sub-rule 1 of Rule 3 was substituted as under : “Provided that Government may, if it so pleases, set up a committee to make 4 recommendations on an application for grant of Hotel bar licence/Club bar licence to any establishment even if does not fulfil the criteria laid down in rule 2 but no hotel in Jaipur city having less than 20 letable rooms and hotels at other places having less than 5 letable rooms shall be grated licence and if already granted, shall not be renewed unless such licencee undertakes to have more rooms constructed in order to bring the number of letable rooms in his/their hotel to this extent by November, 2005. Excise Commissioner may grant licence on recommendation on such committee” In accordance with the said Rule, the State Government has also constituted a committee. The petitioner is caught in a cleft on the one hand, because of the stay granted by this Court, the Club cannot construct the remaining twelve rooms. Yet, on the other hand, the amended proviso to Rule 3 requires that a club should have twenty rooms by November 2005. Moreover, in case, the club does not have twenty rooms, the licence of the club would be cancelled. Hence, the Club cannot satisfy the requirement of twenty rooms. Yet, for no fault of the Club, the likelihood of the licence being cancelled looms large over the Club. Hence, this petitioner before this Court. Mr. Ashok Gaur, the learned counsel for the petitioner, has frankly conceded, and in our opinion rightly 5 so, that no one has the right to trade in liquor. However, people do have the right under Article 19(1)(c) of the Constitution of India, to form an association. Therefore, the like-minded people had formed a club for social and recreational purposes. As a citizen of a democracy, in a State where prohibition is not applicable, the people do have the right to consume liquor provided the consumption is within the limits established by law. The Rules deal with grant of lience to clubs and hotels. Under the Rules, the petitioner has a right of consideration for grant/renewal of licence. Such a right of consideration demands that the consideration should be a objective one, and not a mechanical or a subjective one. The amended proviso to Rule 3 provides the establishment of a committee and directs that the licence would be issued on the recommendation of the committee. Secondly, the petitioner club is interested in having only a Club Bar Licence and not a Hotel Bar Licence. However, the respondents are denying the renewal of bar licence ostensibly on the ground that the petitioner club has been issued a “Hotel Bar Licence” and according to the amended Rule 3 of the Rules, the petitioner club should have at least twenty functional rooms attached to the club. Moreover, the 6 respondents claim that since the petitioner has only eight rooms, it is required to construct twelve more rooms for the renewal of Hotel Bar Licence. Thirdly, the respondents have failed to appreciate the difficulty of the club that it cannot construct any rooms because of the stay granted by the Hon'ble High Court prohibiting any construction in the Prathviraj Nagar, where the club is situated. Therefore, the respondents are not objectively assessing the circumstances of the case. Lastly, the petitioner club does fulfil the requirement of Club Bar Licence. Therefore, it is entitled to issuance of the Club Bar Licence . On the other hand, Mr. R.B. Mathur, the learned counsel for the respondents, has vehemently argued that the club was granted a Hotel Bar Licence. Therefore, it cannot be granted a Club Bar Licence. Secondly, the definition of “hotel” is defined in Rule 2 of the Rules. The definition is an inclusive one which clearly states that Hotel means “all Tourist Bungalows and hotels run by Tourism and Hotel Corporation of the State Government and the Government of India [including Hotels recognized by the Government of India as Heritage Hotels] and shall also include any other hotel with at least 20 bedrooms which is adjudged to be of at least Two Star Category by the 7 Department of Tourism, Government of India or any other authority authorised specially for this purpose by the Government of India”. Therefore, the requirement of law under proviso to Rule 3(1) is that the petitioner club must have at least twenty rooms. Since the petitioner club does not have twenty functional rooms, its Hotel Bar Licence cannot be renewed. We have heard the learned counsel for the parties and with their consent this case is being decided at the admission stage itself. In the preamble of the Constitution of India, “we the people” have promised ourselves that one of the goals of the State shall be fraternity-assuring the dignity of the individual. This dream is further reflected in Article 19(1)(c) of the Constitution of India which guarantees the fundamental right to form an association, provided the purpose of the association is lawful. In a State where prohibition is not applied, the people are entitled to consume liquor in accordance with law. The requisite law is spelt out in the Rajasthan Excise Act and the Rules made thereunder. Rules 2(a), 2(c) and 2(d) of the Rules are as under : 8 “2 (a) Hotel means all Tourist Bungalows and hotels run by Tourism and Hotel Corporation of the State Government and the Government of India [including Hotels recognized by the Government of India as Heritage Hotels] and shall also include any other hotel with at least 20 bedrooms which is adjudged to be of at least Two Star Category by the Department of Tourism, Government of India or any other authority authorised specially for this purpose by the Government of India” 2(c)”Club” means a duly registered association of persons for social and recreational purposes or for the promotion of some common object on joint expenses. 2(d) “Club bar licence” means a licence granted to a club for retail sale of foreign liquor by it, to its bonafide members for consumption in the club premises.” Rule 3 of the Rules deals with eligibility and procedure for grant of licence. According to Rule 3(1) of the Rules, a person who owns a hotel is eligible to apply for the Hotel Bar Licence or a Club Bar Licence. Thus, members of the petitioner club have a right to apply for Hotel Bar Licence/Club Bar Licence. Initially, according to the challan dated 13.11.2005, the petitioner club applied for issuance of a Club Bar Licence. However, subsequently, the Club was convinced to apply for the Hotel Bar Licence, which was duly issued by the respondents. But merely because the club has 9 applied for a Hotel Bar Licence does not debar it from applying for a Club Bar Licence under the Rules of 1973. Thus, the petitioner club is justified in seeking the direction from this Court that the respondents be directed to consider their application for issuance of a Club Bar Licnece. Grant of licence is neither an act of charity, nor an act of generosity. Grant of a licnece is a legal duty to be performed within the parameters of the law. Thus, while granting a lience a hyper-technical, a hyper-callous attitude should not be adopted. After all, the State has been formed not for creating hindrance for the citizen, but to facilitate and smoother the life of the citizen. Thus, the Constitutional mandate is that every action of the State must be fair, just and reasonable. In order to be fair, just and reasonable, the respondents should examine the application for licence keeping in mind the circumstances, genuine problems and hardship of the applicant and should assess the application keeping in mind the practical difficulties faced by the applicant. In the present case, admittedly, this Court has prohibited any construction in Prathviraj Nagar – an area where the petitioner Club is situated. Thus, the Club is not in 10 a position to construct the remaining twelve rooms so as to have twenty bedrooms as required by the proviso to Rule 3 (1). It is not that the club does not wish to construct the remaining twelve rooms. But because of circumstances beyond its control, it cannot do so. This is a case of genuine hardship being faced by the club; the committee should appreciate the genuine hardship being faced by the club. Even if the club does not fulfil the definition of “hotel” as given in Rule 2(a) of the Rules of 1973, nonetheless it does fulfil the requirement of Rule 2(d) of the Rules of 1973. Hence, the petitioner's application can easily be considered for the grant of a Club Bar Licence by the respondents. Under these circumstances, the petitioner club is directed to apply for a grant of Club Bar Licence to the respondents. The respondents are directed to consider the application objectively in accordance with law but also keeping in view the difficulties, if any, of the petitioner, within a period of one month from the date of receipt of the application. For the reasons stated above, the writ petition is hereby allowed. 11 [R.S.CHAUHAN]J A.Asopa/