Somdev Kapoor vs State Of W.B. & Ors

2. The appellant herein is a proprietor of a Hotel and Restaurant under the name and style of “BHIMSAIN VAISHNAV’ which is being run since 1954. On 28th August 1992, he made an application before the Collector of Excise, Calcutta (now known as Kolkata) for issuance of license to operate foreign liquor bar and restaurant. This application, for the reasons not available on record, kept pending for number of years. Thereafter, on 1.11.2004 he made a request that his earlier application dated 28th August 1992 may be processed and he be granted foreign liquor bar and restaurant license. It was followed by another reminder dated 8.9.2005. Thereafter, the appellant was given temporary license to run the liquor bar in January 2006, purportedly on the basis of his application submitted in the year 1992.

3. Respondent Nos. 5 and 6 herein, namely, Muslim Khawateem Khilafat Tanzeem, a Society and Nazia Elahi Khan, President of the said society respectively, filed a Writ Petition as Public Interest Litigation, with the prayers to cancel, rescind and revoke the aforesaid temporary license issued to the appellant. The plea raised was that it was not open for the appellant to run a liquor bar in the said restaurant which was in the vicinity of religious places and school, namely, Gurudwara Bara Sikh Sangar, Shree Digambar Jain Vidyalaya, Shree Jain Swetambere Panchayati Temple, Shree Laxmi Narayan Mandir, Shree Shree Satya Narayanji Mandir and also a mosque. These respondents in the said Writ Petition alleged that the aforesaid religious places and school were situated within the distance of 550 feet of the premises where the license to operate the bar by the Excise Department was granted to the appellant and this was in violation of Rule 8 of the West Bengal Excise (Selection of New Sites and Grant of License for Retail Sale of Liquor and Certain Other Intoxicants) Rules, 2003 (hereinafter referred to as “Rules of 2003”), as amended in the year 2004. Amended Rule 8 of the said Rules imposed a ban on the grant of license for the retail sale of liquor or any other intoxicant at a new site which is within 1000 feet from any college/educational institution /religious places. This plea has been accepted by the High Court and vide impugned judgment dated 14th December 2012, the Excise Department is directed not to renew the license of the appellant which was expiring in the month of January 2013.

4. It is not in dispute that there are few religious places as well as a school within a distance of 1000 feet from the restaurant of the appellant where he runs his liquor bar as well. The precise distance of these places from the appellant’s restaurant is as under:

5. It is also not in dispute that Rule 8 proscribes grant of license for retail sale of liquor or any other intoxicant at a new site which comes within the range of 1000 ft. However, case set up by the appellant is that since the application for grant of license was filed in the year 1992, the rules which were prevailing at that time would be applicable to the case of the appellant. Under Rules, 1993, the restriction was within a distance of 300 ft. from such places and since the religious places and school pointed out by respondent Nos. 5 and 6 are situated beyond the vicinity of 300 ft., the license was validly granted. In this scenario, the question that falls for determination is as to whether Rules, 1993 would govern the case of the appellant or the license was to be granted keeping in mind Rules, 2003 (as amended). Before we embark on this issue, it would be essential to tread the events leading to the promulgation of the aforesaid Rules and certain Government instructions issued in the matter.

9. On the face of it, it is visible that the circular deals with the situation where applications for grant of license had been submitted after 29.7.2003 when Rules, 2003 were promulgated prescribing a distance of 300 ft. in Rule 8(1) of those Rules to define ‘vicinity’ and before this definition of “vicinity” was amended vide Notification dated 2.4.2004. The question was as to whether applications which were given after 29.7.2003 but before 2.4.2004, were to be governed by original Rules 8(1) or the amended Rule 8(1). It seems that a Writ Petition was filed in the High Court of Calcutta by those who were not granted license because of the amended Rules. During the pendency of the said Writ Petition, the matter was considered and the decision was taken that all the applications received before the amended Rules came into force, which had not been rejected by the Collector, should be processed in terms of unamended Rules and sent to the Directorate. Even those applications which were received before 15th April, 2004 and had been rejected applying amended Rule were also directed to be sent to the Directorate for further consideration, after processing in terms of unamended Rules. These applications were to be sent in terms of Rule 9(3) of the Rules. Ex-facie, the case of the appellant has no such factual parity.

You are, therefore, requested to take necessary steps in the matter and ensure the compliance of these instructions.”

15. The result of the aforesaid discussion would be to uphold the judgment of the High Court and dismiss the appeal with costs. Since the license was renewed on the basis of interim orders passed by this court, which is valid till December 2013, it would not be renewed thereafter. We order accordingly.