(ORDER OF THE COURT WAS MADE BY D. MURUGESAN.J) This writ appeal pertains to grant of F.L. 1 licence to one M/S.Deekay Exports Ltd., to utilise the premises at Door No.219, Lal Bahadur Sastry Street, Puducherry for vending liquor.
2. The appellant is the Headmistress and Correspondent of one Jayarani High School located at 196, Lal Bahadur Street, Puducherry.
3. The fourth respondent was initially granted the licence to vend the liquor in a place which was not suitable and on the request made by the fourth respondent to shift the premises in question, an inspection appears to have been made on 12.01.2009 and 19.01.2009 and ultimately, the permission to shift the shop to the present place was granted on 27.02.2009 by the third respondent, Deputy Commissioner, Excise.
4. The grievance of the appellant is that the premises in question situate within 300 metres from the school premises. No F.L.I Licence can be granted to vend liquor within 300 meters from the educational institution. On coming to know that steps were being taken to shift the shop to the premises in question, objections were made by the appellant on 02.02.2009 and in-fact, objections were raised by the students particularly the school, entire girl students, their parents and some public opposing the shifting. Those objections were not considered and even when the objections were before the third respondent, shifting was permitted.
5. On the above grievance, the appellant approached this court. The learned Judge did not accept the contention as to the alleged prohibition of locating the shop within 300 meters of distance from educational institution as in terms of Rule 113(1), no such restriction is contemplated. Consequently with observation, the learned Judge has dismissed the writ petition giving rise to the present writ appeal.
6. We have heard Mrs.Chitra Sampath, learned counsel for the appellant, Mr.M.R.Thangavel, learned Additional Government Pleader (Pondicherry) and Mr.V.T.Gopalan, learned Senior Counsel for the fourth respondent.
7. Rule 113 of the Pondicherry Excise Rules, 1970 reads as hereunder:-
113. Licences Licences for the sale of Indian liquor or foreign or both shall be of the following descriptions, and shall be granted by the Excise Commissioner or Deputy Commissioner, as the case may be, in accordance with the provisions of sub-section (2) of section 14 of the Act, namely:-
(1)F.L. 1 Licence:- The holder of this licence shall be permitted to sell foreign liquor or Indian liquor, or both, in quantities of not less than 9 litres in sealed or capsuled bottles (Qts. Of 12 bottles Pts. Of 24 bottles and Nips of 48 bottles) at any one time and in any single transaction to any other licensee under this chapter and also in sealed or capsuled bottles in quantities not exceeding 6 quart bottles of all liquors other than beer (4.5 litres) and 12 quart bottles of beer (9 litres) at any one time and in any single transaction to an unlicensed person. But he shall not allow the consumption of the liquor at the licensed premises;
Provided that such licenses may issue another licensed dealer samples of liquors, in quantities not exceeding 0.190 litres.
(2) F.L. 2 Licence:- The holder of this licence shall be permitted to sell foreign liquor or Indian liquor, or both, in sealed and capsuled bottles in quantities not exceeding 6 quart bottles (4.5 litres) of all liquors other than beer and 12 quart bottles of beer (9 litres) at any one time or in any single transaction with or without permission to sell such liquor in open bottles, glasses or pegs for consumption within the licensed premises of the bar room combined with supply of meals and eatables:
Provided that if the licensee wants to have such sale is open bottles, glasses or pegs for consumption within the licensed premises of the bar room with supply of meals or eatables, the following further conditions will have to be satisfied, namely:-
(i) the licensed premises shall be 300 metres away from public places, educational institutions or religious establishments as far as possible;
(ii)the licensee shall have a hygienically kept kitchen to prepare meals or eatables for supply with liquor;
(iii) there shall be a room provided with sufficient ventilation and seating arrangements where liquor or meals or eatables are to be supplied with liquor; and
(iv) there shall be facilities like lavatory, urinal, wash basin and any other facility as may be specified by the Government from time to time on grounds of public interest.
(3) F.L. 3 Licence:- These licences in Form F.L. 3 are used for the sale or supply of foreign liquor or Indian liquor or both for consumption in the premises in connection with the meetings, entertainments and other such gatherings.
8. As far as the contention of Rule 113 of the Pondicherry Excise Rules, 1970 is concerned as extracted above, there are three types of F.L. Licences. The first one being F.L. 1, second being F.L. 2 and third being F.L. 3. As far as F.L. 1 licence is concerned, it is granted permitting to sell foreign liquor or Indian liquor, or both, in quantities of not less than 9 litres in sealed or capsuled bottles and also in sealed or capsuled bottles in quantities not exceeding 6 quart bottles of all liquors other than beer. Such licence is granted subject to the condition that nobody will be allowed to consume the liquor at the licensed premises. F.L. 2 licence relates to permission to sell foreign liquor or Indian liquor, or both in sealed and capsuled bottles in quantities not exceeding 6 quart bottles of all liquors other than beer and 12 quart bottles of beer at any one time etc., By that licence, consumption at the licensed premises, and in the bar room is permitted. Rule 113(2)((ii) requires the licensee to have a hygienically kept kitchen to supply liquor and 113(2)(iii) requires the licensee to provide a room with sufficient ventilation and seating arrangements where liquor or meals or eatables are to be supplied with liquor. In terms of 113(2)(iv), the licensee is required to provide facilities like lavatory, urinal, wash basin etc. F.L. 3 licence is granted for sale or supply of foreign liquor or Indian liquor or both for consumption in the premises in connection with the meetings, entertainments and other such gatherings.
9. The submission of the learned counsel for the appellant is that inasmuch as Rule 113(2)(i) contemplates that the licensed premises shall be 300 metres away from the premises like educational institutions or religious establishments. It is the contention that in terms of the said restriction, no F.L. 1 licence can also be granted within 300 metres from the educational institution.
10. In our opinion, the said contention cannot be accepted. The provisions for grant of F.L. 1 and F.L. 2 licence are to be read with reference to the nature of licences. Inasmuch as the grant of F.L. 1 Licence is concerned, on precondition that the sale of whole sale or retail vending in a sealed or capsuled bottles is alone permitted and the premises is not permitted for consumption. It is for the said reason, the rule does not contemplate the restriction on the distance while grant of F.L. 1 licence. In so far as the F.L. 2 licence is concerned, as the premises is also permitted for consumption of liquors certain conditions are also imposed on the licensee like provision of kitchen, Room, seating arrangements, sufficient ventilation etc., Only in case where a licence is granted not only for vending but also for permission to consume the liquor in the same premises, the distance rule is contemplated and not otherwise. Hence, the submission that the application of 300 metres rule should also be made available to F.L. 1 licence cannot be accepted. Accordingly, the first contention of the learned counsel is rejected.
11. Coming to the permission for shifting the premises, the facts which are not in dispute are that on coming to know the possibility of an attempt of shift for opening the shop in the premises in question, which is just opposite to the school where girl students are studying, objections have been made to the third respondent, who is the competent authority to consider such licence as early as on 02.02.2009. This fact is not in dispute. Therefore, the objections ought to have been considered before such shifting of premises is granted.
12. From the counter affidavit of the Excise Commissioner, it is seen that even before the objections were raised, inspections were carried on 12.01.2009 and 19.01.2009 and permission for shifting was granted on 27.02.2009 on the basis of that inspection. Hence, the permission to shift was ordered without reference to the objections. Though objections were made on the basis of the distance rule, the same cannot be sustained in the wake of our finding. Nevertheless, the appellant being the Correspondent of the school is certainly interested in the welfare of the students particularly the institution which is exclusively run for girl students and in that context, the appellant could certainly make grievance for locating the liquor shop near to the school.
13. Mr.V.T.Gopalan, learned Senior counsel would however submit that there is another liquor shop located within the distance of 300 metres and that was not questioned by the appellant and only in the case of the fourth respondent, objections were made.
14. In matters like this, the argument that the appellant had not questioned the existing shop would not mean that the appellant cannot object or make protest for the shop just opposite to the school. In view of the above, it would be only proper for this court to direct the third respondent, who is the authority to grant permission for shifting of the shop to consider the objections made by the appellant or any other objections already received from the public, hear them and reconsider the early decision for grant of permission. Before the said order is passed, the Deputy Commissioner, Excise shall also give an opportunity to the fourth respondent as well. Such exercise shall be carried on within a period of six weeks from the date of receipt of a copy of this order.
15. Before parting with this order, we refer to the observation of the learned Judge to the respondents to take precautionary measures to avoid any untoward incident to occur in front of the shop or in front of the school in view of the permission granted to the fourth respondent for shift of the shop just in front of the school. That apart, we may also observe that the question one being a sale of liquor, it is to the common knowledge of any one, even in case of wholesale or retail vending shops under F.L.I licence, in utter disregard to the conditions that the licensee should not use the premises and allow the persons to consume the liquor just in front of his shop. The licensee also cannot prevent any buyer from consuming the liquor outside the premises and that is what happening practically everywhere. In that sense, there is no justification or acceptable reason as why the distance rules be restricted only for F.L. 2 licence and not for F.L. 1 licence where retail vending is also permitted. It is for the first respondent, the Union Territory of Puducherry to consider the same and to incorporate the distance rule for the grant of F.L. 1 licence as well which may contemplate that such location of shops within a stipulated distance from educational institution or the religious establishments could be avoided.
16. With the above observation, the writ appeal is disposed of. No costs.
nvsri To
1.The Chief Secretary, Union Territory of Puducherry Puducherry.
2.The Collector Government of Puducherry, Puducherry.
3.The Deputy Commissioner, Excise Department, Puducherry