Vikrama Shama Shetty Vs. State of Maharashtra & Ors [2006] Insc
436 (20 July 2006)
Arijit
Pasayat & R.V. Raveendran
(Arising
Out of SLP (C) Nos. 23983-23984 of 2005) ARIJIT PASAYAT, J.
Leave
granted.
Challenge
in this appeal is to the legality of judgment rendered by a Division Bench of
the Bombay High Court in Appeal Lodging No.75/2005 in Writ Petition
No.2736/2004.
The
question that arose for consideration in the writ petition and the appeal therefrom
is whether the revisional authority under The Bombay Prohibition Act, 1929
(hereinafter referred to as the 'Act') was right in refusing FL-III license to
the appellant on the ground that the distance between the establishment of the
appellant and the entrance to a mosque is less than 75 metres. Learned Single
Judge held on the basis of the report given by the Court Commissioner that the
distance was less than 75 metres and, therefore, in view of what is provided in
Rule 45(1-C) of the Bombay Foreign Liquor Rules, 1953 (in short the 'Rules')
the license could not have been granted. The view was upheld by the Division
Bench by the impugned judgment.
Background
facts in a nutshell are as follows:
Appellant
applied for obtaining license (permit) to enable him to sell foreign made
liquor since no objection certificate was obtained from the mosque trust for
grant of such license.
The
Commissioner of Police raised objection to the grant of the license. The
Collector of Bombay City, State Excise Department
rejected the application on the ground that there was a religious institution
within the 60 metres from the restaurant. An appeal was preferred under Section
137(2) of the Act to the Commissioner of Prohibition and Excise. The appeal was
allowed by order dated 26.3.1999 on the basis of certificate issued by the Chartered
Architect certifying that the distance between mosque and the restaurant was
75.43 metres. On the basis of the directions given by the Appellate Authority
license was granted on 1.4.1999. After grant of license, appellant filed an
application before the Collector for issuance of public entertainment license.
The Commissioner of Police filed revision before the Minister of State for
Excise for revoking the order passed by the Commissioner granting FL-III
license. The revisional authority set aside the order of the Commissioner and
the order of the Collector rejecting the license was confirmed. A Writ Petition
was filed before the High Court, which was heard by a learned Single Judge.
Basic
issue raised related to the distance, and the alleged grant of license to
similarly situated persons whose establishments were situated less than 75 metres.
A Court Commissioner was appointed to find out the factual details.
On the
basis of his report, learned Single Judge dismissed the writ petition holding
that the distance of 75 metres is mandatory as prescribed by rule 45(1-C) of
the rules. From the report of the Commissioner it is clear two entrances (first
and third entrance) to the mosque are within the mandatory distance of 75 metres.
In the appeal filed before the Division Bench stand was taken that the
entrances are not frequently used and, therefore, distance of second entrance
only was to be taken into consideration for the purpose of measurement. It was
pointed out that main entrance to the mosque is from Narsi Natha Street, which is at a distance of 98.47 metres,
i.e. more than 75 metres. The Division Bench concurred with the findings of the
learned Single Judge. Reference was made to the Commissioner's report and
certified photographs.
In
support of the appeal Mr. U.U. Lalit, learned senior counsel submitted that the
language of Rule 45(1-C) makes the position clear that reference is made to the
path by which pedestrian ordinarily reaches the religious institute. Since the
two entrances are not ordinarily used and are only sometimes used, the distance
has to be reckoned from the second entrance gate which is admittedly beyond 75 metres.
It was further submitted that the mosque management had no objection to the
functioning of the appellant's restaurant. In fact, they have given their
consent. The High Court did not take note of the fact that in some other cases
establishments were functioning within the limit of 75 metres, and there is no
reason to make a departure so far appellant is concerned. The Commissioner's
order is in essence final. After long lapse of time revision petition was filed
by the police authorities and the same should not have been entertained.
Learned
counsel for the respondent-State and its functionaries supported the order.
Rule 45(1-C)
is the pivotal provision and it reads as follows:
1.C.
"No licence under
sub-rule (1B) shall be granted in respect of any hotel or restaurant which is
situated within a distance of seventy-five meters from any educational or
religious institution or from any bus stand, station or deport of the
Maharashtra State Road Transport Corporation or from the boundary of any
National or State highway :
Provided
that nothing contained in this sub-rule shall apply in respect of an existing
hotel or restaurant for which a licence in Form FL-III is held by the Manager
or Proprietor thereof immediately before coming into force of the Bombay
Foreign Liquor (Amendment) Rules, 1990.
Explanation
:- For the purposes
of this sub-rule
-
"educational
institution" means any pre-primary, primary, or secondary school managed
or recognized by any local authority or the State Government or the Central
Government and any college affiliated to any University established by law, but
does not include any private coaching institution;
-
"religious
institution" means an institution for the promotion of any religion and
includes a temple, math, mosque, church, synagogue, agiary or other place of
public religious worship which is managed or owned by a public trust registered
under the Bombay Public Trusts Act, 1950 (Bom xx/x of 1950) and included such
other religious institutions as the State Government may by order specify in
this behalf;
-
The distance
referred to in clause (a) of this sub-rule shall be measured from the mid-point
of the entrance of the hotel or restaurant along with the nearest path by which
the pedestraian ordinarily reaches, -
-
the mid point of
nearest gate of the institution if there is a compound wall and if there is no
compound wall, the midpoint of the nearest entrance of the institution, or
-
the mid-point of
the nearest gate of the bus stand, station or depot of the depot of the Maharashtra
State Road Transport Corporation if there is a compound wall and if there is no
compound wall, the nearest point of the boundary of such bus stand, station or
depot, or
-
the boundary of
the National or State highway".
A bare
reading of the provisions makes the position clear that the distance
requirement is mandatory.
Initially
in pursuance of an order dated 17th December 2003 passed by a learned Single Judge of the High Court, joint measurements
were taken and the report of the joint measurement dated 19th December 2003 is that the distance is less than
75 meters. Again when the matter was before the High Court for admission, an order
was passed on 3rd November, 2004, by a learned Single Judge by which the Prothonotary
and Senior Master was directed to appoint an Architect from the panel of
Architects maintained by the Court to carry out a measurement in terms of Rule
45(1-C). The Architect submitted his report together with a plan before the
High Court.
The
report of the Architect shows that the Hotel belonging to the Petitioner abuts Abhaychand
Gandhi Marg and the mosque is located across the road at the junction of Abhaychand
Gandhi Marg and Narsi Natha
Street. The mosque
has three entrances out of which two are from a common passage having access to
Narsi Natha Street. The third entrance is from Abhaychand
Gandhi Marg.
The
Court Commissioner has reported that distance from the first entrance to the
mosque from Narsi Natha
Street upto the
establishment of the appellant is 68.45 meters. Though the door to the mosque
was closed when the Commissioner went for inspection, the report records that
the door was opened on the request of the Commissioner and it was found that it
directly opened into the prayer hall of the mosque.
The
second entrance to the mosque from Narsi Natha Street is at a distance of 98.47 meters. The third entrance to the
mosque from Abhaychand Gandhi Marg is at a distance of 60.06 meters. The report
of the Commissioner notes that this door is generally closed and is
occasionally used as an exit.
The
Commissioner has further recorded that during the course of inspection, he was
informed that generally people enter the mosque through the second entrance.
From
the report of the Commissioner appointed by the High Court it is clear that two
entrances to the mosque are within the mandatory distance. It may be that, as
rightly noticed by learned Single Judge, on a particular occasion one of the
entrances may be closed. It has also been noted that one of the entrances is
used as an exit. The stress is on the nearest distance and not the most used
distance. An attempt was made to show that the second entrance is most used one.
Though
there was an earlier report, we find that the same was not accepted by the High
Court at some stage and, therefore, the Court Commissioner was appointed. There
is no challenge to the correctness of the Court Commissioner's report. That
being so, the learned Single Judge and the Division Bench were justified in
their view that the restaurant is situated within the prohibitory distance of
75 metres.
Another
plea which was emphasized was the existence of some restaurants to whom licences
have been granted.
"As
highlighted by learned counsel for the appellants, even if it is accepted that
there was any improper permission, that may render such permissions vulnerable
so far as 32 vessels are concerned. But it cannot come to the aid of
respondents. It is not necessary to deal with that aspect because two wrongs do
not make one right. A party cannot claim that since something wrong has been
done in another case; direction should be given for doing another wrong. It
would not be setting a wrong right, but would be perpetuating another wrong. In
such matters there is no discrimination involved. The concept of equal
treatment on the logic of Article 14 of the Constitution of India, 1950 (in
short 'the Constitution') cannot be pressed into service in such cases.
What
the concept of equal treatment presupposes is existence of similar legal
foothold. It does not countenance repetition of a wrong action to bring both
wrongs or par. Even if hypothetically it is accepted that wrong has been
committed on some other cases by introducing a concept of negative equality
respondents cannot strengthen their case. They have to estalbish strength of
their case on some other basis and not by claiming negative equality." (See
Union of India and Anr. v. International Trading Co. and Anr. (2003 (5) SCC 435).
Stand
that the revision was at the instance of police authorities is clearly
undisputed. Section 148 of the Act empowers State Government to call for and
examine records of any proceeding before any Prohibition Officer for the
purpose of satisfying itself as to correctness, legality or propriety of any
order passed in and as to the regularity of any such proceedings. The power of suo
moto revision is clearly vested in the State Government. If it acted on the
basis of petition filed by police authorities, it cannot be said that the
exercise was beyond jurisdiction.
Looked
at from any angle the orders passed by learned Single Judge and Division Bench
do not suffer from any infirmity to warrant interference.
The
appeal fails but in the circumstances without any order as to costs.
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