1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR Writ Petition No. 5152/2007 & Writ Petition No: 5323/2007 (Krishna Apartments Owners' Association and others vs. State of Maharashtra : Bahujan Sukhaya Bahujan Hitaya Bahuuddeshiya Shikshan Sanstha & others vs. State of Maharashtra nd others) ------------------------------------------------------------------------------------------------- Office Notes, Office Memorandum of Coram Court's or Judges Order appearances, Court's orders of directions and Registrar's orders. ................................................................................................................................... . CORAM: R.V. MORE, J. DATED: 3rd APRIL, 2008. *** Heard S/ Shri S.G.Jagtap and V.S.Kukday, learned counsel for petitioners; Mrs. Bharati Dangre, learned Addl. G.P. for Respondents 1 to 3 (in W.P. 5152/2007 & Respondents 1 to 4 in W.P.No: 5323/2007) and Shri S.S. Voditel, for Respondent No.4 ( in W.P.No: 5152/2007) and Respondent No.5 in W.P. 5323/2007) (for the sake of brevity, hereinafter referred to as “ 'liquor shop owner'”). 2. Both the Petitions challenge the order dated 24th November, 2006 passed by learned Commissioner, State Excise, thereby respondent no.4 (in WP No.5152/2007) was allowed to shift his foreign liquor shop from Khaparkheda Tah.Saoner to Nagpur. 3. The liquor shop owner had applied to the Collector for transfer of his foreign liquor shop from 2 Khaparkheda, Tah.Saoner to Bannerji Layout, Bhagwan Nagar, Nagpur which came to be initially rejected by the Collector on 22.7.2004. The Collector's order was subsequently confirmed by the Commissioner State Excise, MS Mumbai by his order dated 15th March 2005. The liquor shop owner thereafter approached the Honourable Minister of State for State Excise, by way of Revision who, by his order dated 5.7.2007 remanded the matter to the Commissioner of State Excise, for fresh decision. 4. The learned Commissioner, State Excise thereafter considered the District Collector's report as well as the report of Superintendent, State Excise. The Commissioner observed that the liquor shop owner holds FL.II licence, as such, the sealed bottles ( for off consumption) will be sold in the liquor shop and, therefore, for such transfer there is no requirement of Police report, in view of the Circular dated 7.5.2005. The Commissioner consequently approved the liquor shop owner's proposal of shifting shop from Khaparkheda to Nagpur. 5. This order is challenged by the petitioners in both the petitions. The petitioners in Writ Petition No.5152 /2007 are the owners-association of Krishna Apartment and others. The liquor shop is proposed to be shifted on the ground floor of this apartment. The petitioners in W.P.No.5323/2007 claim to be an educational institution and others. 3 6. Learned counsel appearing for petitioners in both the petitions contended that in view of the provisions of Rule 25 (2)(b) of the Bombay Foreign Liquor Rules 1952 (hereinafter referred to as””('the Rules'””) the shop could not have been transferred. Rule 25 (2)(b) reads as follows : 25 (2) No licence under sub-rule (1) shall be granted in respect of any shop - (a)................... (b) which, if situated in areas within the jurisdiction of any Municipal Corporation or 'A' class or 'B'” class Municipal Council, is within a distance of fifty metres, and if situated elsewhere, one hundred metres, from any educational or religious institution; or . Relying upon the provisions of sub-rule 2 (b) of Rule 25 of the aforesaid Rules, petitioners tried to contend that the educational institution which is being run by the petitioner no.1 in W.P.No.5323/2007 is just 20 metres away from the site where the liquor shop belonging to the liquor shop owner is proposed to be shifted. It was also contended that the statues of Dr. Ambedkar and Lord Gautam Buddha are hardly 50 metres away from the said site. 7. I do not find any merit in petitioners' submission in as much as both the terms 'educational institution' and 'religious institution' are described under explanation (i) and explanation (ii) to sub-rule (2) of Rule 25 of the said Rules. The 'educational institution' is described as follows :- 4 (i) 'educational institution' means any pre- primary, primary or secondary school, managed or recognised by any local authority or the State Government or the Central Government or any college affiliated to any University established by law, but does not include any private coaching institution; The 'religious institution' is described as follows : (ii) 'religious institution' means an institution for the promotion of any religion and includes a temple, math, mosque, church, synagogue, agiary or other place of public religious worship which is manged or owned by a public trust registered under the Bombay Public Trusts Act, 1950 (Bom. XXIX of 1950) and includes such other religious institutions as the State Government may by order specify in this behalf. 8. The Petitioner No.1 in Writ Petition No.5323/2007 admittedly is not running pre-primary or primary or secondary school as well as any College which is affiliated in any University established by law. In my opinion, therefore, the petitioner No.1 in W.P.No.5323/07 does not fall within the description of term “educational institution” as mentioned in Explanation (i) of sub-rue (2) of Rule 25.. The petitioner no.1 in W.P. 5152/2007 is the owners' association. If the transfer is otherwise legal, same cannot be questioned merely because the association of owners of Krishna Apartments opposes 9. It was further contended that statues of Dr. Ambedkar and Lord Buddha are within 50 metres distance from the site where liquor shop is being shifted. However these statues do not fall within the description of 5 'religious institution' as given by explanation (ii) of sub- rule (2) of Rule 25 of the aforesaid Rules. Be that, as it may; the map tendered by the petitioners in W.P.No. 5215/2007 itself shows that the statue of Dr.Ambedkar is beyond 50 metres from the site where the liqor shop owner's shop is being shifted. Nothing is on record to show that statue of Boudha is within 50 metres away from the proposed site. In the facts and circumstances mentioned above, in my opinion, the petitioners cannot object to shifting of the liquor shop to the proposed site when the transfer is otherwise legal. 10. No ground is made out by the petitioners in both the petitions so as to enable me to interfere in the impugned order in exercise of extraordinary jurisdiction under Articles 227 of the constitution of India. The Petitions being devoid of substance, are rejected. JUDGE sahare