Hon'ble R.A. Singh, J.
(Delivered by Hon'ble Ashok Bhushan, J.) Heard Sri A.D. Saunders, learned counsel for the petitioner and Sri Satish Chaturvedi, learned Additional Advocate General assisted by Sri S.P. Kesharwani, learned Additional Chief Standing Counsel for the State and Sri Mukesh Prasad, Advocate appearing for the respondent no. 2.
Counter affidavit and rejoinder affidavit have been exchanged between the parties and with the consent of learned counsel for the parties, the writ petition is being finally decided.
Brief facts of the case necessary to be noted for deciding the present writ petition are that writ petitioner No. 1 is a minority institution recognized by Board of Council for the Indian Schools Certificate Examination, New Delhi. The petitioner no. 2 is the 2 Principal of the college. More than 3000 students are studying in institution from class I to class XII . The institution is situated at Mahatma Gandhi Marg in the city of Allahabad. Across the road in front of the institution a beer shop is running, whose location is being objected by the petitioners.
The State of U.P. in exercise of power under Section 40 of the U.P. Excise Act, 1910 has framed the rules namely; U.P. Number and Location of Excise Shop Rules 1968. Under Rule 5(4) there is prohibition of opening a shop in close proximity to a place of public resort, school, hospital, place of worship or factory, or to the entrance to a Bazar or a residential colony. A public Interest Litigation was filed at Lucknow Bench of this Court objecting indiscriminate opening of beer shops in close proximity to a place of public resort, school, hospital, place of worship or factory, or to the entrance to a Bazar or a residential colony. The Lucknow Bench of this Court entertained the public interest litigation and took the view that no shop within 100 meters of the close proximity of a place of public resort, school, hospital, place of worship or factory or to the entrance to a Bazar or a residential colony be opened. Against the Division Bench judgment of the Lucknow Bench of this Court, State of U.P. filed an appeal in the apex Court which appeal was decided approving the view taken by the High Court that no shop be allowed to run in a radius of 100 meters or 300 fits approximately of a place of public resort, school, hospital, place of worship or factory or to the entrance to a Bazar or a residential colony. The apex Court however, allowed the existing shops to continue till 31.3.2008 and thereafter it was directed that no shop within 100 meters of above places be allowed to run. The judgment of the apex Court is reported in (2008) 4 SCC 111 State of U.P. Vs. Manoj Kumar Dwivedi and others.
The present writ petition was filed by the petitioners stating that inspite of the aforesaid judgment of the apex Court, no steps are being taken by the Excise Commissioner in closing the shop, which is within radius of 50 meters of the petitioners' institution. The petitioner after coming to know that 1968 Rules above mentioned has been amended by the State of U.P. vide notification dated 20.3.2008 by U.P. Number and Location of Excise Shops (Fourth Amendment)Rules, 2008 by which Rule 5(4) has been substituted was permitted to amend the writ petition challenging the Rule 5(4) as amended by 2008 Amendment Rules. The petitioners vide amendment application made in the writ petition, has also challenged Rule 5(4) . Following reliefs have been claimed in the writ petition:
" A) To issue a writ order or direction in the nature of mandamus calling upon the respondent No. 1 to take appropriate steps in accordance with law laid down by the Apex Court in the matter of State of U.P. and others Vs. Manoj Kumar Dwivedi and others, reported in AIR 2008 SCW 1912.
B) To issue a writ order or direction in the nature of mandamus directing the respondents to remove the beer shop situate near Bishop Johnson School and College, Mahatma Gandhi Marg, Civil Lines, Allahabad.
(iv) to issue appropriate writ, order or direction declaring Rule 5(4) as amended vide notification dated 20th March, 2009 to be void being ultra-virus of the Constitution of India."
The petitioners' case in the writ petition is that the Rule as amended in 2008 does not by any means carry out the purpose and object of the Excise Rules framed thereunder rather it frustrate the very object of the Excise Rules itself. The amended rule is wholly arbitrary, illegal and beyond the scope of rule making power. The object of the amended rule is not to protect or preserve sanctity of place of public resort, school, hospital, place of worship or factory or to the entrance to a Bazar or a residential colony but in other way the action of the State in amending the Rule is contempt of the orders passed by the apex Court in Manoj Kumar Dwivedi's case (supra). A beer shop in so close proximity of the institution has poor and adverse impact on the students particularly to the senior students. At times, young boys are seen drinking beer near and around the beer shop.
A counter affidavit has been filed on behalf of the State stating thereunder that beer shop has been licensed to respondent no. 2 for the year 2009-10. The shop is being run since the year 2001. The beer shop is situated at a distance of 120 meters from the main entrance gate, 70 meters from another gate of the petitioner's college, about 178 meters from St. Cathedral Church, 350 meters from the Bishop Hall and 67 meters from the house of the principal. Challenge to the validity of the amended Rule 5(4) is wholly devoid of substance. Rule 5 (4) has been amended by notification dated 20.3.2008, which was within the legislative competence of the Rule making authority. In the unamended Rule words "close proximity" was not defined which was left to the discretion of the authorities and now by the amendment, the minimum distance of 50 meters (in case of the area within the limits of the City Corporation) has been fixed so as to remove any uncertainty or vagueness. Different distances have been fixed with regard to Corporation, Nagar Palika Parishad and Nagar Panchayat.
There are other States in the country namely; State of Tamil Nadu and State of Maharashtra, which have also framed rules to the similar effect. The judgment of the apex Court in Manoj Kumar Dwivedi's case (supra) does not prohibit the competent Legislature from making provisions regarding distances. By notification dated 20.3.2008, the lacuna in the rules have been removed and there is always presumption in favour of the Constitutional validity of the Statutes.
A counter affidavit has also been filed on behalf of the respondent no. 2, the licensee of the beer shop, in which it has been stated that after the 4th Amendment Rules 2008, the decision of the apex Court in Manoj Kumar Dwivedi's case (supra) is not applicable and the beer shop in question is to be governed by the provisions of the 4th Amended Rules, 2008. The site of the shop of the respondent no. 2 is in accordance with the provisions of the 4th Amendment Rules and there is no illegality.
The petitioners have filed rejoinder affidavit reiterating the pleas raised in the writ petition. It has been stated that the Legislative competence is not being questioned but the exercise is to defeat and nullify the judgment of the apex Court, which is nothing but sheer abuse of the power vested in the authority concerned. Instead of promoting the spirit of the judgment of the apex court in ensuring a clean and pure environment around the institutions and residential areas, the State in an act of vindictiveness has reduced the distance of "close proximity" bringing beer/liquor shops to the very gates of the institutions and doorsteps of residential houses. There is neither any justification nor any cogent reason to reduce the distance of close proximity. The example quoted regarding other States have no applicability in the instant case.
Sri A.D. Saunders, learned counsel for the petitioner made following submissions in support of the writ petition:
(i) Amendment Rules, 2008 by which Rule 5(4) has been substituted is in teeth of judgment of the apex Court in Manoj Kumar Dwivedi's case and on this ground alone the amended Rule is liable to be struck down.
(ii) The amended Rule 5(4) does not protect the petitioners' college rather the definition of the school given in Rule 5(4) explanation (ii) includes the colleges owned or managed or recognized by any local authority or Central Government which is discriminatory and arbitrary.
(iii) The Rule 5(4) by which distance for opening the shop has been reduced to 50 meters in Corporation is unreasonable, arbitrary and against the object and policy of the Legislature for not opening the liquor shop near place of worship or school or hospital or residential colony.
Learned Additional Advocate General assisted by Sri S.P. Kesharwani, refuting the submissions of learned Counsel for the petitioners contends that judgment of the apex Court in Manoj Kumar Dwivedi's case (supra) does not take away the power of the State Government to legislate and by amendment in Rule 5(4), the very basis of the judgment of Manoj Kumar Dwivedi's case was taken away. Rule 5(4) having been amended in exercise of the Legislative power of the State, there is no question of violating the judgment of the Supreme Court. There is no lack of legislative competence to enact the impugned rule. There is no allegation in the writ petition that the impugned rules are violative of any 7 fundamental or constitutional rights of the petitioners. Fixation of distances with regard to location of the liquor shops is Legislative function and the State Government validly and lawfully exercised its powers under Section 40(2) (e) of the Excise Act, 1910. There is always a presumption in favour of the Constitutional validity of a legislative enactment including the delegated legislation. The impugned rule is neither arbitrary, nor illegal nor suffers from legislative competence rather the distances provided in different categories of area is based on reasonable classification. In fact by the impugned rules, the Legislature has removed the deficiency in the rule by providing the different classes depending upon density of population which is based on reasonable classification.
Sri Mukesh Prasad, learned counsel for the respondent no. 2 submitted that the apex Court in Manoj Kumar Dwivedi's case (Supra) had only filled the vacuum by giving the distance regarding opening of liquor shops near place of public resort, school, hospital, place of worship or factory or to the entrance to a Bazar or a residential colony. While interpreting the word "close proximity" as 1968 Rules did not define the word "close proximity", the State of U.P. has now in exercise of power under Section 40 of the Excise Act has amended Rule 5(4) and has removed the word "Close proximity" and has given the minimum distance, to which the State is fully empowered. Although the Legislature cannot by mere declaration directly overrule or reverse a judicial decision but it can at any time in exercise of its plenary power conferred by the Constitution, render any judicial decision ineffective by enacting a valid law on a topic within its legislative field fundamentally altering or changing its character retrospectively. The Legislature may neutralise the effect of the earlier decision of the Court which becomes ineffective after change of law. The amendment in the 8 Rule is in consistent with the provisions of Part III of the Constitution of India. After the amendment, decision of the apex Court in State of U.P. Vs. Manoj Kumar Dwivedi is no more applicable. No specific grounds have been given assailing either the powers of the State Government to amend the law or the illegality in the validity of the Fourth Amendment Rules.
Learned Counsel for the parties have also referred to and relied on various judgments of the apex Court, which shall be referred to, while considering the submissions in details.
We have considered the submissions of learned counsel for the parties and have perused the record.
Before we proceed to examine the different contentions of learned counsel for the parties, it is necessary to have a look over the relevant rules of the Excise Rules which are under consideration. The challenge in the writ petition is to Rule 5(4) as amended by 2008 Amendment Rules dated 20.3.2008. Section 40 of the U.P. Excise Act, 1910 gives power to the State to make rules for the purpose of carrying out the provisions of the Act. In exercise of power under Section 40(2)(e), the Governor has framed the rules namely U.P. Number and Location of Excise Shop Rules, 1968. Rule 5 lays down the principles which shall be observed for determining the location and sites of the liquor shops.
The rule 5(4) relevant for the present case indicates that the object and policy incorporated in the Rules were to the effect that no liquor shop shall be licensed in "close proximity" to a place of public resort, school, hospital, place of worship or factory or to the entrance to a Bazar or a residential colony. The object and purpose for not permitting the opening of the liquor shops near school, 9 hospital and place of worship etc. was to protect the above places from the effect of running of a liquor shop. The present is a case where liquor shop is situated in front of school across the road. Large numbers of shops were being licensed by the State Government to augment its revenue disregard to the policy and object as contained under Rule 5(4). A Public Interest Litigation was filed before the Lucknow Bench of this Court challenging the running of the shops in close proximity to the place of public resort, school, hospital, place of worship or factory or to the entrance to a Bazar or a residential colony. A Division Bench of this Court fixed distance of 100 meters approximately within which no liquor shop was to be opened. The State of U.P. challenged the aforesaid direction of the Division Bench and apex Court in the said case had occasion to consider rule 5(4) of 1968 Rules. The Apex Court laid down following in paragraphs 11 and 12 of the judgment:
" 11. We fully agree with the view taken by the High Court and we are also of the view that 10 0 meters or 300 ft.(approx.) should be the right criteria were the Excise Commissioner shall not give any licence to a shop under the Excise Act. We hope and trust that the Excise Commissioner of the State shall take into consideration sub- rule (4) of Rule 5 of the U.P. Excise Rules and see that no shops or sub- shops are opened within radius of 100 meters or 300 ft. (approx.) of a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazar or a residential colony. The interpretation of the word "close proximity" was vague therefore it was misused by the authorities. But, now the 10 matter has been placed beyond any vagueness. Therefore, with the interpretation of the expression "close proximity" by the High Court, the matter has been put in the right perspective and the doubt has been cleared.
Therefore, taking into consideration all the facts and circumstances of the case, we affirm the view taken by the High Court insofar as fixing the distance of 100 meters or 300 ft. (approx.) from a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazar or a residential colony where no shop or sub- shop shall be opened under the U.P. Excise Act and Rules framed thereunder.
12. However, we do not approve of the approach of the High Court in closing the shops without issuing notice to the affected parties. This should not have been done. Since the operation of the impugned judgment and order was stayed by this Court, these shops have continued to operate. We direct that the interim order dated 28. 04 . 2006 passed by this Court under which these shops are operating, shall continue to operate till 31.3.2008 and after that no shops or sub-
shops under the U.P. Excise Act shall be opened or continue to open within a radius of 100 meters or 300 ft. (approx.) of a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazar or a 11 residential colony. All the shop owners or sub- shop owners shall close their shops on or before 31. 3.2008 if they are within a radius of 100 meters or 300 ft. (approx.) to a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazar or a residential colony. As there is sufficient time, the shop owners or sub- shop owners shall make necessary arrangement to shift their shops. If these shops are not closed after 31.
3. 2008 the Excise Commissioner of the State shall see to it that the said shops are closed and no fresh licence or renewal shall be made of a licence if they are operating in prohibited area."
As per the direction of the apex Court, the shops which were continuing were allowed to continue till 31.3.20008 and thereafter the shops which were within the radius of 100 meters of a place of public resort, school, hospital, place of worship or factory or to the entrance to a Bazar or a residential colony were directed to be closed. Sufficient time was given for shop owners to make necessary arrangement to shift their shops. The State of U.P. instead of following the directions of the apex Court, choose to amend 1968 Rules. Rule 5(4) was amended by U.P. Number and Location of Excise Shops (Fourth Amendment) Rules, 2008 dated 20.3.2008. Rule 5(4) as existing in 1968 Rules was substituted by following rules:
"4(a) No shop or sub-shop shall be licensed within a distance of 50(fifty) meteres in case of Municipal Corporations; within a distance of 75 (seventy-five) 12 meteres in case of Municipal Councils and Nagar Panchayat; and within a distance of 100 (one hundred) meteres in other areas from any place of public worship or school or hospitals or residential colony:
Provided that if any place of public worship, school, hospital, residential colony comes into existence subsequent to the establishment of shop or sub-shop, the provisions of this rule shall not apply:
Provided further that the distance restriction shall not apply in areas designated as "commercial" or "industrial" by the development authority/industrial development authority or other competent authority.
Explanation.- For the purpose of this rule:-
(i) "Place of Public Worship" means a temple, math, mosque, gurudwara, church, which is, as the case may be, established or managed or owned by a Public Trust registered under the /Charitable and Religious Trust Act, 1920 or under the Charitable Endowments Act, 1890 or by a society registered under Societies Registration Act, 1860 or Wakf Board; or a gurudwara registered with competent authority and such other places of public worship as the State Government may , by notification specify in this behalf from time to time.
(ii) "School" means a pre-primary school, primary school, middle school, high school, inter college 13 owned or managed or recognised by any local authority or the State or Central Government or any college affiliated to or established or managed by any University established by law.
(iii) "Hospital" means any hospital which is managed or owned by a local authority or the State or Central Government and includes any private hospital having a provision of at least 50 beds and is registered with urban or rural local body.
(iv) "Residential Colony" means a colony developed and constructed on legally held land of which maps have been duly approved by the competent authority recognised by law.
(b) The distance referred in clause (a) shall be measured from the mid-point of the entrance of the shop or sub-shop along the nearest path by which pedestrian ordinarily reaches to the mid- point of the nearest gate of the place of public worship or a school or a hospital or a residential colony, if there is a compound wall and if there is no compound wall to the mid-point of the nearest entrance of the place of public worship or a school or a hospital or a residential colony.
(c) All objections to the licensing of a shop or sub- shop made by persons affected, shall receive full consideration."
From the pleadings of the parties, the case of the respondents is that the location of the beer shop of the respondent no. 2 is fully in accord with the amended Rule 5(4). It has been stated in paragraph 5 of the counter affidavit filed on behalf of State that shop of the respondent no. 2 is situated at the distance of 120 meters from the main entrance gate and 70 meters from the another gate of the petitioner's college. Sketch map has been annexed as Annexure-1, which indicates that the beer shop is situated across the road in front of the college and actually shop is opposite to the boundaries of the school and the distance of the shop from the second gate of the college is only 70 meters as stated in the counter affidavit.
The first submission of the learned Counsel for the petitioner is that amended rule 5(4) is in breach of the judgment of the apex Court and is liable to be struck down on this ground alone. It has been submitted by the counsel for the petitioner that in making the rule, the State has in fact committed contempt of the judgment of the Apex Court in Manoj Kumar Dwivedi's case. The judgment of the Apex Court in the aforesaid case interpreted the rule 5(4) as it existed before amendment. The Division Bench of this Court held that since according to rule, no liquor shop is to be opened in close proximity of place of public resort, school, hospital, place of worship or factory or to the entrance to a Bazar or a residential colony, all shops situated within radius of 100 meters be closed. The Apex Court in (1976) 4 SCC 750 I.N. Saksena Vs. State of U.P. has laid down that although the Legislature cannot by bare declaration, directly overrule, reverse or override the judicial decision, it may, at any time, in exercise of plenary power conferred by Articles 245 and 246 of the Constitution of India render a judicial decision ineffective by enacting a valid law. Following was laid down in paragraph 22:
" 22. While, in view of this distinction between legislature and judicial functions. The legislature cannot by a bare declaration, without more, directly overrule, reverse or override a judicial decision, it may, at any time in exercise of the plenary powers conferred on it by Articles 245 and 246 of the Constitution render a judicial decision ineffective by enacting a valid law on a topic within its legislative field fundamentally altering or changing with retrospective, curative or neutralising effect the conditions on which such decision is based. As pointed out by Ray C. J. in Indira Nehru Gandhi v. Raj Narain, (1975) SCC Supp 1 = (AIR 1975 SC 2299) the rendering ineffective of judgments or orders of competent Courts and tribunals by changing their basis by legislative enactment is a well known pattern of all validating Acts. Such validating legislation which removes the causes for ineffectiveness or invalidity of actions or proceedings is not an encroachment on judicial power."
The Apex Court In the Matter of: Cauvery Water Disputes Tribunal 1993 Supp (1) SCC 96 (II) laid down following in paragraph 74:
74. In this connection, we may refer to a decision of this Court in Municipal Corporation of the City of Ahmedabad v. New Shorock Spg.
and Wvg. Co., Ltd. (1971) 1 SCR 288 : (AIR 1970 SC 1292). The facts in this case were that 16 the High Court as well as this Court had held that property tax collected for certain years by the Ahmedabad Municipal Corporation was illegal. In order to nullify the effect of the decision, the State Government introduced Section 152A by amendment to the Bombay Provincial Municipal Corporation Act the effect of which was to command the Municipal Corporation, to refuse to refund the amount illegally collected despite the orders of this Court and the High Court. This Court held that the said provision makes a direct inroad into the judicial powers of the State. The legislatures under the Constitution have within the prescribed limits, power to make laws prospectively as well as retrospectively. By exercise of those powers a legislature can remove the basis of a decision rendered by a competent court thereby rendering the decision ineffective. But no legislature in the country has power to ask the instrumentalities of the State to disobey or disregard decisions given by the courts. Consequently, the provisions of sub-section 3)of Section 152A were held repugnant to the Constitution and were struck down. the same effect .s another decision of this Court in Madan Mohan Pathak v. Union of India, (1978) 3 SCR 334: (AIR 1978 SC 803). In this case a settlement arrived at between the Life Insurance Corporation and its employees had become the basis of a decision of the High Court of Calcutta. This settlement 17 was sought to be scuttled by the Corporation on the ground that they had received instructions from the Central Government that no payment of bonus should be made by the Corporation to its employees without getting the same cleared by the Government. The employees, therefore, moved the High Court, and the High Court allowed the -petition. Against that, a Letters Patent A peal was filed and while it was pending, the Parliament passed the Life Insurance Corporation (Modification of Settlement) Act, 1976 the effect of which was to deprive the employees of bonus payable to them in accordance with the terms of the settlement and the decision of the single Judge of the High Court. On this amendment of the Act, the Corporation withdrew its appeal and refused to pay the bonus. The employees having approached this Court challenging the constitutional validity of the said legislation, the Court held that it would be unfair to adopt legislative procedure to undo a settlement which had become the basis of a decision of the High Court. Even if legislation can remove the basis of a decision, it has to do it by alteration of general rights of a class but not by simply excluding the specific settlement which had been held to be valid and enforceable by a High Court. The object of the Act was in effect to take away the force of the judgment of the High Court. The rights under the judgment would be said to arise 18 independently of Article 19 of the Constitution."
Similar view has been expressed by the apex Court in 2005(7) SCC 584 State Bank's, Staff Union (Madras Circle) Vs. Union of India and others. In view of the above pronouncement of the Hon'ble Supreme Court although Legislature cannot overrule, reverse or override a judicial decision but in exercise of plenary powers conferred on it by the Constitution, may render a judicial decision ineffective by enacting a valid law fundamentally altering or changing the condition on which such decision is based. The rule making power has been exercised by the State under Section 40(2)(e) of the Act by fixing distance with regard to opening of liquor shops. In amending Rule 5(4), it cannot be said that State has breached the judgment of the apex Court or has committed contempt of the apex Court. The question as to whether the amended Rules are valid or not, is another question which shall be separately considered hereunder. However, the amendments cannot be held to be invalid on the ground that it is in breach of the judgment of the apex Court in Manoj Kumar Dwivedi's case (supra).
The Second and third submissions of the learned Counsel for the petitioners relates to challenge to the amended Rule 5(4) and both the submissions are being considered together. Before considering the submissions in details, it is relevant to refer to the grounds for challenging the statutory Rules. Learned Additional Advocate General has referred to and relied on the judgment of the apex Court in (1996) 3 SCC 709, State of Andhra Pradesh Vs. McDowell & Co. and others for the proposition that constitutional validity of a statute can be challenged only on two grounds; (a) lack of legislative competence (b) violation of the 19 fundamental rights guaranteed in part III of the Constitution or of any of the constitutional provisions. In State of Andhra Pradesh's case (supra), the provisions of Andhra Pradesh Prohibition (Amendment) Act, 1995 were under challenge on the ground that the provisions were arbitrary. Following was laid down in paragraph 43:
" 43. Sri Rohinton Nariman submitted that inasmuch as a large number of persons falling within the exempted categories are allowed to consume intoxicating liquors in the State of Andhra Pradesh, the total prohibition of manufacture and production of these liquors is "arbitrary" and the amending Act is liable to be struck down on this ground alone. Support for this proposition is sought from a judgment of this Court in State of Tamil Nadu v. Ananthi Ammal, (1995 (1) SCC 519 : (1995 AIR SCW
355). Before, however, we refer to the holding in the said decision, it would be appropriate to remind ourselves of certain basic propositions in this behalf. In the United Kingdom, the Parliament is supreme. There are no limitations upon the power of the Parliament. No Court in the United Kingdom can strike down an Act made by the Parliament on any ground. As against this, the United States of America has a Federal Constitution where the power of the Congress and the State Legislatures to make laws is limited in two ways, viz., the division of legislative powers between the States and the federal government and the fundamental rights 20 (Bill of Rights) incorporated in the Constitution.
In India, the position is similar to the United States of America. The power of the Parliament or for that matter, the State Legislatures is restricted in two ways. A law made by the Parliament or the Legislature can be struck down by Courts on two ground and two grounds alone, viz., (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part-III of the Constitution or of any other constitutional provision. There is no third ground. We do not wish to enter into a discussion of the concepts of procedural unreasonableness and substantive unreasonableness- concepts inspired by the decisions of United States Supreme Court. Even in U. S. A., these concepts and in particular the concept of substantive due process have proved to be of unending controversy, the latest thinking tending towards a severe curtailment of this ground (substantive due process). The main criticism against the ground of substantive due process being that it seeks to set up the Courts as arbiters of the wisdom of the Legislature in enacting the particular piece of legislation. It is enough for us to say that by whatever name it is characterised, the ground of invalidation must fall within the four corners of the two grounds mentioned above. In other words, say, if an enactment is challenged as violative of Article 14, it can be struck down only if it is 21 found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by Clauses (a) to (g) of Article 19(1), it can be struck down only if it is found not saved by any of the clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that Court thinks it unjustified. The Parliament and the Legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The Court cannot sit in judgment over their wisdom. "
The present is a case, where we have to consider the provisions of delegated legislation. For challenging the validity of a subordinate legislation, apart from the grounds noticed above, there are certain additional grounds to challenge the validity of the delegated legislation. The apex Court in Indian Express News Papers (Bombay) Private Ltd. and others Vs. Union of India & others (1985) 1 SCC 641 had laid down that a piece of subordinate legislation does not carry the same dignity which is enjoyed by a Statute passed by a competent legislature. Following was laid down in paragraph 75:
" 75. A piece of subordinate legislation does 22 not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary. In England, the Judges would say "Parliament never intended authority to make such rules. They are unreasonable and ultra vires". The present position of law bearing on the above point is stated by Diplock L. J. in Mixnam. Properties Ltd. v. Chertsey U. D. C., (1964) 1 QB 214 thus:-
"The various grounds upon which subordinate legislation has sometimes been said to be void ..............can, I think, today be properly regarded as being particular applications of the general rule that subordinate legislation, to be valid, must be shown to be within the powers conferred by the statute. Thus the kind of unreasonableness which invalidates a bye-law is not the antonym of "reasonableness" in the sense of which that expression is used in the 23 common law, but such manifest arbitrariness, injustice or partiality that a court would say : 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires ......' If the courts can declare subordinate legislation to be invalid for 'uncertainty,' as distinct from unenforceable ............this must be because Parliament is to be presumed not to have intended to authorise the subordinate legislative authority to make changes in the existing law which are uncertain .........."
The apex Court had occasion to consider the grounds for challenging a subordinate legislation in State of Tamil Nadu and another Vs. P. Krishnamurthy & others (2006) 4 SCC 517. The validity of rule 38A of Tamilnadu Minor Mineral Concession Rules, 1959 was under challenge in the aforesaid decision. The apex Court again reiterated the accepted grounds to challenge the subordinate legislation. Following was laid down in paragraph 15,16,18 and 19.
" 15. There is a presumption in favour of constitutionality or validity of a sub-ordinate Legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognized that a sub-ordinate legislation can be challenged under any of the following grounds :-
a) Lack of legislative competence to make the sub- ordinate legislation.
b) Violation of Fundamental Rights guaranteed under the Constitution of India.
c) Violation of any provision of the Constitution of 24 India.
d) Failure to conform to the Statute under which it is made or exceeding the limits of authority conferred by the enabling Act.
e) Repugnancy to the laws of the land, that is, any enactment .
f) Manifest arbitrariness/unreasonableness (to an extent where court might well say that Legislature never intended to give authority to make such Rules).
16. The court considering the validity of a subordinate Legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate Legislation conforms to the parent Statute. Where a Rule is directly inconsistent with a mandatory provision of the Statute, then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or non- conformity of the Rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the Parent Act, the court should proceed with caution before declaring invalidity."
"18. In Supreme Court Employees Welfare Association v. Union of India [1989 (4) SCC 187], this Court held that the validity of a subordinate legislation is open to question if it is ultra vires the 25 Constitution or the governing Act or repugnant to the general principles of the laws of the land or is so arbitrary or unreasonable that no fair-minded authority could ever have made it. It was further held that Rules are liable to be declared invalid if they are manifestly unjust or oppressive or outrageous or directed to be unauthorized and/or violative of general principles of law of the land or so vague that it cannot be predicted with certainty as to what it prohibited or so unreasonable that they cannot be attributed to the power delegated or otherwise discloses bad faith.
19. In Shri Sitaram Sugar Co. Ltd. v. Union of India [1990 (3) SCC 223], a Constitution Bench of this Court reiterated: (Supreme Court Cases pp. 251-52, (Para 47) "Power delegated by statute is limited by its terms and subordinate to its objects. The delegate must act in good faith, reasonably, intra vires the power granted, and on relevant consideration of material facts. All his decisions, whether characterized as legislative or administrative or quasi-judicial, must be in harmony with the Constitution and other laws of the land. They must be "reasonably related to the purposes of the enabling legislation". See Leila Mourning v. Family Publications Service [411 US 356] If they are manifestly unjust or oppressive or outrageous or directed to an unauthorized end or do not tend in some degree to the accomplishment of the objects of 26 delegation, court might well say, "Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires": per Lord Russel of Killowen, C.J. in Kruse v. Johnson (1898) 2 QB 91."
Learned Additional Advocate General has submitted that constitutionality of a Statute has to be presumed which is well accepted proposition. He has placed reliance on the judgments of the Apex Court in (2006) 3 SCC 434 Bombay Dyeing and Manufacturing Co. Ltd. (3) Vs. Bombay Environmental Action Group and others, (1997) 2 SCC 453, State of Bihar and others Vs. Bihar Distillery Ltd. And others, (2007) 1 SCC 732 Arun Kumar & others Vs. Union of India and others, (1981) 4 SCC 675 R.K. Garg Vs. Union of India and others and (1974) 1 SCC 19 The State of Jammu and Kashmir Vs. Shri Triloki Nath Khosa and others.
There cannot be any dispute to the proposition as laid down by the Apex Court in the above cases. It is suffice to refer to the judgment of the apex Court in R.K. Garg Vs. Union of India (supra) and to note the well established principles which have been laid down by the apex Court in the said judgment. Following was laid down in paragraphs 6 and 7.
" 6. That takes us to the principal question arising in the writ petitions namely, whether the provisions of the Act are violative of Article 14 of the Constitution. The true scope and ambit of Article 14 has been the subject matter of discussion in numerous decisions of this Court and the propositions applicable to cases 27 arising under that Article have been repeated so many times during the last 30 years that they now sound platitudinous. The latest and most complete exposition of the propositions relating to the applicability of Article 14 as emerging from "the avalanche of cases which have flooded this Court" since the commencement of the Constitution is to be found in the judgment of one of us (Chandrachud, J. as he then was) in Re :
Special Court Bill, (1979) 2 SCR 476: AIR 1979 SC 478. It not only contains a lucid statement of the propositions arising under Article 14, but being a decision given by a Bench of seven Judges of this Court, it is binding upon us. That decision sets out several propositions delineating the true scope and ambit of Article 14 but not all of them are relevant for our purpose and hence we shall refer only to those which have a direct bearing on the issue before us. They clearly recognise that classification can be made for the purpose of legislation but lay down that :
1. The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found is all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass 28 the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that different a must have a rational relation to the object sought to be achieved by the Act.
2. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. In short, while Article 14 forbids class discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liabilities proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense above mentioned.
It is clear that Art. 14 does not forbid reasonable classification of persons, objects and transactions by the legislature for the purpose of attaining specific ends. What is necessary in order to pass the test of permissible classification under Article 14 is that the classification must not be "arbitrary, artificial or evasive" but must be based on some real and substantial distinction bearing a just and reasonable relation to the object 29 sought to be achieved by the legislature. The question to which we must therefore address ourselves is whether the classification made by the Act in the present case satisfies the aforesaid test or it is arbitrary and irrational and hence violative of the equal protective clause in Article 14.
7. Now while considering the constitutional validity of a statute said to be violative of Article 14, it is necessary to bear in mind certain well established principles which have been evolved by the Courts as rules of guidance in discharge of its constitutional function of judicial review. The first rule is that there is always a presumption in favour of the constitutionality of a statute and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. This rule is based on the assumption, judicially recognised and accepted, that the legislature understands and correctly appreciates the needs of its own people, its laws are directed to problems made manifest by experience and its discrimination are based on adequate grounds. The presumption of constitutionality is indeed so strong that in order to sustain it, the Court may take into consideration matters of common knowledge, matters of common report the history of the times and may assume every state of facts which can be conceived existing at the time of 30 legislation."
There cannot be any dispute that burden is on the petitioners to establish that rule 5(4) as amended in 2008 is invalid by establishing one or more accepted grounds to challenge the subordinate legislation. Learned Counsel for the petitioners referring to rule 5(4) (a) Explanation (ii), submitted that the definition of "School" given in above rule only includes institution owned or managed or recognized by any local authority or the State or Central Government or any college affiliated to or established or managed by any University established by law. The petitioner's institution is not recognized by any local authority, State or Central Government rather the institution is recognized by the Board of Council for the Indian School Certificate Examination New Delhi. Whether there is any justification for excluding the institution recognized by Board of Council for the Indian School Certificate Examination New Delhi or Central Board of Secondary Education New Delhi? Whether there is any intelligible differentia between the institution recognized by the local authority, State Government or Central Government and the institution recognized by ISC Board or CBSE Board in context of opening of liquor shop and whether there is any rationale nexus with the object sought to be achieved? The object obviously is to keep liquor shops little away from the educational institutions to protect its students, who are of tender age. We are of the opinion that there is no rationale for excluding the institution recognized by the ISC Board or CBSE Board from the definition of the school as given in Explanation (ii) to Rule 5(4). The definition given in Rule 5(4) Explanation (ii) being discriminatory and arbitrary deserves to be struck down as violative of Article 14 of the Constitution of India.
The challenge to the amended Rule 5(4) is on the ground of unreasonableness and the amendment being arbitrary. For considering the validity of statute as well as a subordinate legislation, it is necessary to look into the policy and object of the Act. Whether the Statute violates Article 14 of the Constitution of India can be judged only after ascertaining the policy and object of the Act. The Apex Court in AIR 1952 SC 123 Kathi Raning Rawat Vs. State of Saurashtra, while considering the grounds to challenge of Ordinance under Article 14 of the Constitution of India laid down following in paragraph 34:
" 34. It is a doctrine of the American Courts which seems to me to be well founded on principle that the equal protection clause can be invoked not merely where discrimination appears on the express terms of the statute itself, but also when it is the result of improper or prejudiced execution of the law; vide Weaver on Constitutional Law, p. 404. But a statute will not necessarily be condemned as discriminatory, because it does not make the classification itself but, as an effective way of carrying out its policy, vests the authority to do it in certain officers or administrative bodies. Illustrations of one class of such cases are to be found in various regulations in the U. S. A.
which are passed by States in exercise of police powers for the purpose of protecting public health or welfare or to regulate trades, business and occupations which may become unsafe or dangerous when unrestrained. Thus there are regulations where discretion is lodged by law in 32 public officers or boards to grant or withhold licence to keep taverns or sell spirituous liquors, Crowley v. Christensen, (1890) 137 U. S. 86, or other commodities like milk, People of the State of New York v. Joh. E. Van De carr, (1905) 199 U. S,. 552, or cigarettes Gundling v. Chicago, (1900) 177 U. S. 183. Similarly there are regulations relating to appointment of river pilots, Kotch v. River Port Pilot Commrs., (1947) 330 U. S. 552 and other trained men necessary for particularly difficult jobs and in such cases, ordinarily, conditions are laid down by the statute, on compliance with which a candidate is considered qualified. But even then the appointment board has got a discretion to exercise and the fact of the candidate for a particular post is submitted to the judgment of the officer or the board as the case may be. It is true that these cases are of a somewhat different nature than the one we are dealing with; but it seems to me that the principle underlying all these cases is the same. The whole problem is one of choosing the method by which the legislative policy is to be effectuated. As has been observed by Frankfurter J. in Tinger v. Texas, (1940) 310 U. S. 141 at p. 147.
"laws are not abstract propositions.... But are expressions of policy arising out of specific difficulties addressed to the attainment of specific ends by the use of specific remedies."
In my opinion, if the legislative policy is clear and definite and as an effective method of carrying out that policy a desecration is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statute itself cannot be condemned as a piece of discriminatory legislation. After all the law does all that is needed when it does all that it can, indicates a policy ........ and seeks to bring within the lines all similarly situated so far as its means allow."
Vide, Buch v. Bell, (1927) 274 U. S. 200 at p. 208, In such cases, the power given to the executive body would import a duty on it to classify the subject-matter of legislation in accordance with the objective indicated in the statute. The discretion that is conferred on official agencies in such circumstances is not an unguided discretion; it has to be exercised in conformity with the policy, to effectuate which the direction is given and it is in relation to that objective that the propriety of the classification would have to be tested. "
The apex Court again in AIR 1960 S.C. 457 Kangshari Haldar and another Vs. The State of West Bengal, while considering the vires of West Bengal Tribunals of Criminal Jurisdiction Act, 1952 laid down following principles in paragraph 19 of the judgment for considering the validity of the Statute :
" The result of these decisions appears to be this. In considering the validity of the impugned statute on the ground that it violates Art. 14 it would first be necessary to ascertain the policy underlying the statute and the object intended to be achieved by it. In this process the preamble to the Act and its material provisions can and must be considerer. Having thus ascertained the policy and the object of the Act the court should apply the dual test in examining its validity : Is the classification rational and based on intelligible differentia; and, has the basis of differentiation any rational nexus with its avowed policy and object? If both these tests are satisfied the statute must be held to be valid; and in such a case the consideration as to whether the same result could not have been batter achieved by adopting a different classification would be foreign to the scope of the judicial enquiry. If either of the two tests is not satisfied the statutes must be struck down as violative of Art. 14 applying this test it seems to us that the impugned provisions contained in S. 2(b) and the proviso to S. 4(1) cannot be said to contravene Art. 14. As we have indicated earlier, if in issuing the notification authorised by S. 2(b) the State Government acts mala fide or exercises its power in a colourable way that can always be effectively challenged; but, in the absence of any such plea and without 35 adequate material in that behalf this aspect of the matter does not fall to be considered in the present appeal."
The present is a case, where the Court is to examine the validity of the rules framed by the State in exercise of power under U.P. Excise Act, 1910. Under Article 19(1)(g), every citizen has right to carry on any business. Article 19(6) empowers the State to impose reasonable restrictions. In context of carrying on business of liquor, the nature of business, the nature of restrictions to be imposed on such business, have been subject of consideration by the Courts including the apex Court. In considering the nature and extent of restrictions which are to be imposed on carrying on a business, the nature of business is one of the essential factors. The Apex Court in AIR 1954 SC 220 Kooverjee B. Bharucha Vs. Excise Commissioner and the Chief Commissioner, Ajmer had occasion to consider the nature of business relating to intoxicating liquors. The apex Court quoted with approval opinion of Field, J. in Crowley Vs. Christensen, (1890) 34 Law Ed. 620 (A). Following was laid down in paragraph 7 by the apex Court.
" Laws prohibiting trades in noxious or dangerous goods or trafficking in women cannot beheld to be illegal as enacting a prohibition and not a mere regulation. The nature of the business is, therefore, an important element in deciding the reasonableness of the restrictions. The right of every citizen to pursue any lawful trade or business is obviously subject to such reasonable conditions as may be deemed by 36 the governing authority of the country essential to the safety, health, peace, order and morals of the community. Some occupations by the noise made in their pursuit, some by the odours they engender, and some by the dangers accompanying them, require regulations as to the locality in which they may be conducted. Some, by the dangerous character of the articles used, manufactured or sold, Require also special qualifications in the parties permitted to use, manufacture or sell them.
These propositions were not disputed, but it was urged that there was something wrong in principle and objectionable in similar restrictions being applied to the business of selling by retail, in small quantities, spirituous and intoxicating liquors. It was urged that their sale should be without restriction, that every person has a right which inheres in him, i.e. a natural right to carry or trade in intoxicating liquors and that the State had no right to create a monopoly in them. This contention stands answered by what Field, J. said in - 'Crowley v Christensen', (1890) 34 Law Ed. 620 (A) :
"There is in this position an assumption of a fact which does not exist, that when the liquors are taken in excess the injuries are confined to the party offending. The injury, it is true , first 37 falls upon him in his health, which the habit undermines; in his morals, which it weakens; and in the self-abasement which it creates. But as it leads to neglect of business and waste of property and general demoralisation, it affects those who are immediately connected with the dependent upon him. By the general concurrence of opinion of every civilized and Christian community, there are few sources of crime and misery to society equal to the dram shop, where intoxicating liquors, in small quantities, to be drunk at the time, are sold indiscriminately to all parties applying.
The statistics of every State show a greater amount of crime and misery attributable to the use of ardent spirits obtained at these retail liquor saloons than to any other source. The sale of such liquors in this way has therefore been, at all times; by the courts of every State, considered as the proper subject of legislative regulation. Now only may a licence be exacted from the keeper of the saloon before a glass of his liquors can be thus disposed of, but restrictions may be imposed as to the class of persons to whom they may be sold, and the hours of the day, and the days of the week, on which the saloons may be opened. Their sale in that form may be absolutely prohibited. It is a question of public expediency and public morality, and not of federal law.
The police power of the State is fully 38 competent to regulate the business - to mitigate its evils or to suppress it entirely. There is no inherent right in a citizen to thus sell intoxicating liquors by retail; it is not a privilege of a citizen of the State or of a citizen of the United States. As it is a business attended with danger to the community, it may, as already said, be entirely prohibited or he permitted under such conditions as will limit to the utmost its evils. The manner and extent of regulation rest in the discretion of the governing authority. That authority may vest in such officers as it may deem proper the power of passing upon applications for permission to carry it on, and to issue licences for that purpose. It is a matter of legislative will only".
These observations have our entire concurrence and they completely negative the contention raised on behalf of the petitioner. The provisions of the regulation purport to regulate trade in liquor in all its different spheres and are valid."
In Khoday Distilleries Ltd. & others Vs State of Karnataka and others (1995) 1 SCC 574 again the Hon'ble Supreme Court has considered the various aspects of the nature of liquor business. The apex Court noted with approval in the decision in Kooverjee B. Bharucha Vs. Excise Commissioner and the Chief Commissioner, Ajmer, the opinion of Field, J. as noticed above. The apex Court held that some business requires regulations as to the locality in which they may be conducted looking to the 39 dangers accompanying them. Paragraph 22 of the judgment is quoted as below:
" 22. In Cooverjee B. Bharucha v. Excise Commissioner and the Chief Commissioner , where the vires of Excise Regulation I of 1915 was under challenge on the ground of violation of Article 19(1)(g), the Constitution Bench of five learned Judges, among other things, held that:
(a)In order to determine the reasonableness of restrictions, envisaged by Article 19(6), regard must be had to the nature of the business and the conditions prevailing in that trade. These factors would differ from trade to trade and no hard and fast rule concerning all trades can be laid down. It cannot also be denied that the State has the power to prohibit trades which are illegal or immoral or injurious to the health and welfare of the public. Laws prohibiting trades in noxious or dangerous goods or trafficking in women cannot be held to be illegal as enacting a prohibition and not a mere regulation. The nature of the business is,therefore, an important element in deciding the reasonableness of the restrictions. The right of every citizen to pursue any lawful trade or business is obviously subject to such reasonable conditions as may be deemed by the governing authority of the country 40 essential to the safety, health, peace, order and morals of the community. Some occupations by the noise made in their pursuit, some by the odours they engender, and some by the dangers accompanying them require regulation as to the locality in which they may be conducted. Some, by the dangerous character of the articles used, manufactured or sold, require also special qualification in the parties permitted to use them, manufacture or sell them. The Court in this connection referred to the observations of Field, J. in P. Crowley v. Henry Christensen a part of which is as follows: ........"
The Excise Act, 1910 itself contemplates that the rules regarding restrictions of localities wherein permission to carry out the liquor trade be granted may be framed. Section 40(1) and sub section (2) (e) is quoted as below:
"40. Power of State Government to make rule.-(1) The State may make rules for the purpose of Government carrying out the provisions of this Act or other law for the time being in force relating to excise revenue.
Provided..........
(2) In Particular and without prejudice to the generality of the foregoing provision, the State government may make rules-
(a)................
(b)..................
(c)....................
(d)........................
(e) regulating the periods and localities for which and the persons to whom, licences for the vend by wholesale or by retail of any intoxicant may be granted;"
To effectuate the purpose and object of the Act, rules were framed by the State namely; U.P. Number and Location of Excise Shops Rules, 1968. Rule 5(4), (5) and (6) of the 1968 Rules are quoted as below:
"5. The following principles shall be observed in determining the location and the sites for shops/sub-shops:
(1)............
(2)...........
(3)...............
(4) No new shop or sub-shop shall be licensed in close proximity to a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazar or a residential colony. All objections to the licensing of a shop or sub-shop made by the persons affected, shall receive fully consideration.
(5) No shop or sub-shop shall be located 42 outside the inhabited site of a village, town or city.
(6) In the case of the existing shops, periodical enquiry shall be made as to whether their position is in conformity with policy under these rules. If their location is found to be objectionable, such steps as are possible, shall be taken, to select a more suitable site and to arrange for its removal."
The very title of the rules indicates that rules have been framed for regulating the locations of excise shops. The policy which is revealed from Rule 5(4) is that no excise shop shall be licensed in close proximity to a place of public resort, school, hospital, place of worship or factory, or to the entrance to a Bazar or a residential colony. The Legislature being well aware of the ill effects of locating the liquor shops near the above places, have contemplated framing of rules to restrict the opening of excise shops near schools. As noticed above, the Apex Court in Manoj Kumar Dwivedi's case (supra) had approved the Division Bench decision of this Court taking the view that any shop situated within 100 meters of a place of public resort, school, hospital, place of worship or factory, or to the entrance to a Bazar or a residential colony is to be treated within close proximity. Now by the amendments made in the year 2008, rule 5(4) has been amended. The amended provisions now has deleted the words "close proximity" from the Rule 5(4) and has substituted it by distances in the municipal Corporation. The distance has now been provided as 50 meters. The policy of the Act and the Rules still remains of not locating the excise shops near close proximity to a place of public resort, school, hospital, place of worship or factory, or to the 43 entrance to a Bazar or a residential colony.
The question for consideration is that when the policy of the Statute has not been changed whether the amendments made are arbitrary and unreasonable and violates Article 14 of the constitution of India. The apex Court in State of Tamil Nadu and another Vs. P. Krishnamurthy & others (supra) has laid down that subordinate legislation can be struck down, if it is manifestly unreasonable and arbitrary. The rule making authority has been empowered to make rules with regard to location of excise shops . The policy of the Statute and Rules still being that excise shop be not located in close proximity to a place of public resort, school, hospital, place of worship or factory, or to the entrance to a Bazar or a residential colony, can it be said that to effectuate the said policy, the State can prescribe any distance under its rule making power. Can State, while making the rule provide that excise shop be located from place of public resort, school, hospital, place of worship or factory, or to the entrance to a Bazar or a residential colony 1 meter away? The answer obviously has to be negative. The rule making authority has to exercise its discretion in making the rule in a manner, which carry on the policy of the Statute and promote the object. There is a clear pronouncement of this Court on this very subject and on this very rule itself that any distance within 100 meters is close proximity. There has to be strong reason for justifying that close proximity is only 50 meters. As noticed above, it is true that the State, while exercising its rule making power has power to amend the rule, even after its interpretation by the apex Court in Manoj Kumar Dwivedi's case but the question still remains as to whether the amendments made by the State under rule 5(4) are reasonable and not arbitrary. The institution in the present case is institution recognised by ISC Board in which classes from Ist to XII are running and there are approximately 3000 44 students. Locating the excise shop in front of the school across the road which admittedly is about 70 meters from the second gate of the school, is in not conformity with the policy of the Statute. Intoxicating liquors are harmful to the individuals consuming them and to the society as a whole, is a view which has been reiterated time and again by the apex Court. In (1996) 3 SCC 709 State of Andhra Pradesh Vs. McDowell and Company and others, the apex Court again quoted with the approval the opinion of the Field, J. as noted above. Following was laid down in paragraph 40:
" For the sake of completeness, and without prejudice to the above holding, we may examine the alternate line of thought. In Cooverjee Bharucha, (AIR 1954 SC 220) a Constitution Bench of this Court expressed its whole-hearted concurrence with the opinion of Field, J. in Crowley v. Christensen, (1889-90) 34 L. Ed. 620, to the effect that: "There is no inherent right in a citizen to thus sell intoxicating liquors by retail; it is not a privilege of a citizen of the State or of a citizen of the United States. As it is a business attended with danger to the community, it may, as already said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils. The manner and extent of regulation rest in the discretion of the governing authority." While laying down the said proposition. Mahajan, C.J., speaking for the Court, referred generally to the position obtaining under Article 19(1) (g) and Clause (6) of the Article. The learned Chief Justice said that the reasonableness 45 of the restriction has to be determined having regard to the nature of the business and the conditions prevailing in that trade."
From the foregoing discussions, it is clear that amendments as made by the State in Rule 5(4) by 2008 amendments, is manifestly unreasonable and arbitrary. It clearly defeats the very purpose and object of the policy of the Statute and the purpose for which the State was clothed with the rule making power to effectuate the policy. It is not the case of the respondents that they have withdrawn the policy or there is no more policy of the Statute that excise shop shall not be located near the place of public resort, school, hospital, place of worship or factory, or to the entrance to a Bazar or a residential colony. The amendment of the rule is clearly an eyewash and is contrary to the very object and purpose for which rule making authority was empowered to frame the rules. Therefore, we are of the clear view that amendments 2008 under rule 5(4) deserves to be struck down as being manifestly unreasonable and arbitrary.
In the result the writ petition is allowed. The Rule 5(4) as amended by notification dated 20.3.2008 is held to be violative of Article 14 of the Constitution of India and is consequently struck down. A mandamus is also issued to the respondent no. 1 to remove/shift the beer shop in question situated near Bishop Johnson School.
However, the parties shall bear their own costs.
Dated: 2.2.2010 LA/-