Case: The State Of Tamil Nadu Rep. By Sec.&Ors Vs. K. Balu

Dr. D.Y. Chandrachud, J. 1. On 15 December, 2016, this Court delivered judgment in a batch of Civil Appeals originating from the State of Tamil Nadu and the States of Punjab and Haryana. The decision of this Court is reported as ‘State of Tamil Nadu represented by its Secretary, Home, Prohibition and Excise Department Vs. K.Balu (2017) 2 SCC 281 ). The issue which the Court addressed was the presence of liquor vends on national and state highways across the country. Official figures of road accidents, with their attendant fatalities and injuries provided the backdrop for the intervention of this Court. This Court adverted to the consistent policy of the Union Government to curb drunken driving and, as an incident of the policy, to remove liquor vends on national highways. The judgment of this Court concludes that there is no justification to allow liquor vends on state highways (while prohibiting them on national highways) having due regard to drunken driving being one of the significant causes of road accidents in India. Hence, by the judgment of this Court, the following directions have been issued for stopping the grant of licences for the sale of liquor along national and state highways and over a distance of 500 metres from the outer edge of the highway or a service lane alongside. 1 April 2017 is fixed as the date for phasing out existing licences. The directions are set out below:"(i) All states and union territories shall forthwith cease and desist from granting licences for the sale of liquor along national and state highways; (ii) The prohibition contained in (i) above shall extend to and include stretches of such highways which fall within the limits of a municipal corporation, city, town or local authority; (iii) The existing licences which have already been renewed prior to the date of this order shall continue until the term of the licence expires but no later than 1 April 2017; (iv) All signages and advertisements of the availability of liquor shall be prohibited and existing ones removed forthwith both on national and state highways; (v) No shop for the sale of liquor shall be (i) visible from a national or state highway; (ii) directly accessible from a national or state highway and (iii) situated within a distance of 500 metres of the outer edge of the national or state highway or of a service lane along the highway. (vi) All States and Union territories are mandated to strictly enforce the above directions. The Chief Secretaries and Directors General of Police shall within one month chalk out a plan for enforcement in consultation with the state revenue and home departments. Responsibility shall be assigned inter alia to District Collectors and Superintendents of Police and other competent authorities. Compliance shall be strictly monitored by calling for fortnightly reports on action taken. (vii) These directions issue under Article 142 of the Constitution. ?2. This clutch of applications, nearly 68 of them, have been filed basically for (i) extension of time for compliance, in certain cases; or (ii) modification or, as the case may be, recalling the judgment delivered by this Court. 3. We may at the outset indicate that having regard to the nature and importance of the issue which finds reflection in the judgment delivered by this Court and the significant element of public interest that is involved in dealing with road accidents caused due to drunken driving on the highways of the nation, we have heard arguments extensively on 29 and 30 March, 2017 so that the matter can be addressed before the deadline of 1 April 2017. Some States and private parties who were not before the Court in the course of the original proceedings urged that their submissions in regard to the directions issued by this Court should be taken into account. Hence, we were of the view that in the interest of fairness it would be appropriate to enable a dispassionate consideration of their perspectives in order to determine whether any modification is required and if so, the nature of the modification that may be warranted in the final judgment of this Court. We have, therefore, not been trammelled by the technicality of whether these ‘Interlocutory Applications? would be maintainable in a proceeding which has been disposed of. Having regard to the importance of the issues which have been addressed in the judgment and order, we were of the considered view that this Court should have the benefit of the assistance rendered by States who have moved this Court and of parties with diverse perspectives so as to facilitate an outcome which is both just and is arrived at after a fair hearing. We have accordingly proceeded to follow that line of action and have been assisted over the previous two dates of hearing by learned counsel who have brought to bear on their task a considerable degree of industry on the subject. 4. For convenience of reference, we may indicate that eight States (besides the Union Territory of Pondicherry) have moved this Court in the present proceedings. The States which are before the Court are :1. Andhra Pradesh 2. Himachal Pradesh 3. Karnataka 4. Kerala 5. Sikkim 6. Telangana 7. Meghalaya 8. Tamil Nadu5. We may indicate that the following States have not filed any applications :1. Arunachal Pradesh 2. Assam 3. Bihar 4. Chhattisgarh 5. Goa 6. Gujarat 7. Haryana 8. Madhya Pradesh 9. Maharashtra 10. Manipur 11. Mizoram 12. Nagaland 13. Odisha 14. Punjab 15. Rajasthan 16. Tripura 17. Uttar Pradesh 18. West Bengal6. During the course of the proceedings, an affidavit has been filed by the Chief Secretary of the Government of Madhya Pradesh stating that the judgment rendered by this Court has been accepted by the State Government, following a resolution by the Council of Ministers on 16 January 2017. The Chief Secretary informs the Court that :?In compliance of the order of 15 December, 2016 passed by the Hon?ble Supreme Court of India, New Delhi, in Civil Appeal No.12164-12166/2016, the Council of Ministers of Madhya Pradesh, in its meeting at 16th January has ensured to comply in the Excise Policy Year 2017-18 that there shall be no Liquor Shop situated within a distance of 500 Metre from the service lane of the National/State Highways. No Liquor Shop shall be visible or accessible directly from the National/State Highways. Any signage or Board or advertisement depicting the availability of the liquor in any form shall be prohibited. The Government of Madhya Pradesh, Commercial Tax Department, has issued order of aforesaid intent regarding to the location of Liquor Shops at National/State Highways in point No.4 of its order No.F.B.-01-01/2017/2/Five, dated 17th January 2017. (Copy of the order is attached) For general information of the said provisions to the Public instructions of aforesaid intent have been issued in respect to disposal of retail sale shops of country/foreign liquor, Arrangements year 2017-18, which have been published in Madhya Pradesh Gazette (Extra Ordinary) No.27 dated 18 January 2017?.7. On behalf of the Delhi Tourism Development Corporation it has been stated that out of the 547 vends for liquor, 14 are in breach of the 500 metre norm. A Committee was constituted for the shifting of these liquor vends, and the process has begun. An extension of six months has been sought.

Decision reasoning: 1[ds]14. In dealing with these submissions, we must at the outset notice that this Court while exercising its jurisdiction has neither formulated policy nor (as we shall indicate) has it assumed a legislative function. The basis and foundation of the judgment delivered on 15 December 2016 is (i) the policy of the Union Government, formulated by the Union Ministry of Road Transport and Highways (MoRTH); (ii) the decision of the National Road Safety Council (NRSC), which is an apex body for road safety established under Section 215 of the Motor Vehicles Act, 1988; (iii) advisories issued by the Union Government to the states over a period of one decade; and (iv) the Parliamentary mandate of zero tolerance for driving under the influence of alcohol, evident in Section 185 of the Motor Vehicles Act, 1988. The judgment of this Court extensively reproduced the statistics on road accidents from official data released by MoRTH in its Transport Research Wing, the decisions of NRSC and the advisories issued over the previous decade by the Union Government. The judgment of this Court has inter alia adverted to the decision taken in a meeting held thirteen years ago by NRSC to the effect that licences for liquor shops should not be given along the national highways. Besides this, the Court has also relied upon advisories issued by MoRTH to the States and Union Territories on 26 October 2007, 1 December 2011, 18 March 2013 and 21 May 2014. Section 185 of the Motor Vehicles Act is indicative of a Parliamentary intent to penalise driving under the influence ofsaid this the Court observed that there is no logical basis to distinguish between national and state highways. The menace of drunken driving and the resultant fatalities or injuries are not confined only to national highways. Hence, the judgment of this Court is neither an exercise of the court having formulated a policy or of having embarked upon a legislative exercise.The submission of the Attorney General (representing the State of Tamil Nadu) and of other learned senior counsel who adopted the same line of argument, which is based on the state excise rules is lacking in substance. The state excise rules contain enabling provisions. They provide for a discretion for the grant of liquor licences. No individual has a vested right to obtain a licence. There is no fundamental right to carry on business in liquor since as a matter of constitutional doctrine, Article 19(1)(g) does not extend to trade in liquor which is consistently regarded as res extra commercium. Where an excise rule which has been formulated by a state government provides for the maintenance of a specified distance from an institution or amenity, what this postulates is that no licence can be granted at all by the State Government within that distance. The state has a discretion on whether a licence should be granted under its enabling powers. No individual can assert a right to the grant of a licence : trading in liquor is a privilege conferred by the state. The directions which have been issued by this Court do not breach any norm in the nature of a prohibition nor do they operate to lift a prohibition imposed by law. The effect and purport of the directions is that in the interest of public safety and public health, the distance from the outer edge of national or state highways or a service lane along the highway is to be maintained of 500 metres. This does not amount to the assumption of a legislative function by the Court. In fact the requirement of maintaining a distance from the highway (which even according to the submission of counsel is adopted in a large number of states) ensures that the prohibition on the grant of licences along the highway is not defeated by the presence of outlets in close proximity to the highway. The maintenance of an adequate buffer is a necessary incident of the principle, which is to prevent ready availability of liquor to users of a highway. In any event, no private individual can be heard to make a grievance of the prescription of 500 metres which is manifestly in public interest.In the teeth of the statistics on road accidents which are made available to the court by MoRTH, we are not inclined to accept the submission of Shri K.K.Venugopal, learned senior counsel, that drunken driving is not the most important cause of road accidentsaccording to learned counsel being the main cause).can also occur due to the driver being under influence offrom the questionable authenticity of a privateon the internet, we have considered it more appropriate to place reliance on official data of MoRTH. It is also necessary to emphasise that there is a tendency todrunken driving as a cause of accidents with a view not to prejudice the claims of victims or their heirs to compensation. In fact even the data relied upon by Shri Venugopal states that in 2011, the highest prevalence of accidents due to drunken driving was in Uttar Pradesh, Madhya Pradesh, Maharashtra, Andhra Pradesh and Tamil Nadu. We therefore do not find any substance in thefind no merit in the submission. The recommendation of the Committee cannot be placed on a higher footing than what it purports to be namely, a recommendation. The opinion of the Expert Committee was duly cited before this Court during the course of the proceedings leading upto the judgment dated 15 December 2016. We are of the view that a distance of 100 metres with reference to the highway is not adequate to ensure that users of the highway do not seek access to the sale of liquor in close proximity to the highway. A distance of merely 100 metres will not serve the purpose which is sought to be achieved. Hence, we have not accepted that part of the recommendation of the Committee but have considered it appropriate to enhance the minimum distance.After considering the submissions which have been urged before this Court, we are of the view that there are three areas where the rigors of the directions which have been issued by this Court may require to be suitably modulated without affecting the basic principle underlying the judgment. . The first is in relation to limits of local bodies with a population of less than 20,000find some substance in the submission. We must emphatically clarify that even in such areas falling under local bodies with a population of less than 20,000, no licence for the sale of liquor should be issued along either a national or state highway or a service lane along the highway. Similarly, the sale of liquor should be from a point which is neither visible from a national or state highway or which is directly accessible from a national or state highway. However, in such a situation, the prohibited distance should in our view be restricted to 220 metres from the outer edge of the national or state highway or of a service lane along the highway.In the State of Tamil Nadu, liquor vends are operated by TASMAC which is a state owned entity. In the judgment of this Court, time until 1 April, 2017 was granted on the request of the State.