LegalCrystal – Blog

TAGS: BAN ON LIQUOR / Restriction in respect of location of liquor shops / from hospitals / educational institutions / temples etc.

My below blog post is based on the request from Mr.Sharath M who is one of our regular visitors

Chat Conversation :

Sharath: hi..

me : sorry was away from keyboard

Sharath: wanted to gather some info… see.. there is a law which says tat u cant have a liqour vendor some 500mts from where a school or college is located… now suppose.. there is already a liqour shop and someone wants to open a school.. does the same rule apply? if so.. who has to relocate.. the liqour owner or the school… was wondering if u could get this clarified wit ur mom… me and a friend had this debate while coming back today

me:  hmmm… will forward your query to advocates

i will forward the chat conversation now, she might reply today eve

Sharath: cool.. no prob..

me: good question, guess a blogpost on this wud help

Sharath: definitely… if u can quote specific law article links..it will be great

me: yup

Dear Readers,

I would like to take this opportunity to enlighten many more readers like Mr.Sharath, Hence I have given a few practical and real examples of such situation, quoted excerpts from various judgments of High Court and Supreme Court where such questions are dealt appropriately. Hope it will be of much help for a person to understand the point involved.  I eagerly await your feedback.

WHAT DOES THE CONSTITUTION SAY?

It is relevant here to know Article 47- of Constitution of India-the Duty of the State: [ Based on which rules are framed and interpreted by the legislature and the judiciary to achieve the intention of our constitution]

Article 47.of Constitution of India : Duty of the State to raise the level of nutrition and the standard of living and to improve public health.- The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavor to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.

This is before the Hon’ble Judges Rajendra Babu and Somashekara JJ High Court of Karnataka at Bangalore – excerpts from  judgment :

Karnataka Excise Licences (General Conditions) Rules – Rule 5;

5. Restriction in respect of location of shops:-

(1) No licence for sale of liquor shall be granted to a liquor shop or premises selected within a distance of 100 metres from any religious or educational institutions or Hospital or any office of the State Government or Central Government or Local authorities ,or in a residential locality, where the inhabitants are predominantly belonging to Scheduled Castes or Scheduled Tribes or within a distance of 220 Metres from the middle of the State Highways or National Highways.

Excerpts:

It is urged that the restriction of locating a shop or premises where trade in liquor can be carried on within a distance of 100 metres from any religious or educational institution or residential locality inhabited predominantly by Scheduled Castes and Scheduled Tribes, is also an unreasonable restriction; that in many cases, the hospitals or educational institutions or religious institutions or office of the State or Central Government or local authority may come up in an area subsequent to the grant o f licence and thereafter if a person is asked to shift the premises, it will cause grave hardship and therefore the rule is arbitrary; that in some Towns or Cities there are innumerable religious places almost in every nook and corner and it is impossible to locate a liquor shop in compliance with the relevant rule; that in fact in some towns liquor shops are located in violation of the said Rule.

No one can deny that in places where people congregate either for religious purpose or for purpose of education or visit offices, those places must be made safe and near such places there cannot be an activity in relation to sale or purchase of liquor…. In cases where there are liquor shops located already and religious institutions, educational institutions and offices have come up later or whether the Rule cannot be worked out for any City crowded with such institutions, are all matters to be considered by the concerned Authority in individual
cases and due action taken, but these circumstances cannot invalidate the Rule in any manner.[KARHC -2/3/1994] Karnataka Wine Merchants Association vs. State of Karnataka (02.03.1994 – KARHC)

few more interesting excerpts from judgments:

5. The following principles shall be observed in determining the location and the sites for shops/sub-shops:

(a) ‘Shop’ means a retail shop for vend of country liquor, foreign liquor and bhang.

Rule 5 of the U.P. Excise Rules deals with the location of a shop and the principle which has to be observed while issuing license to a shop. From a plain reading of Sub-rule (4) it is clear that no shop or sub-shop for vending of country liquor, foreign liquor and bhang shall be opened in the close proximity to a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazaar or a residential colony. In case of any violation of the said Rule, if objections are received from affected persons, the same shall receive full consideration. Therefore if any shop is opened in the close proximity to a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazaar or a residential colony then the residents of that area has a right to protest and the decision has to be taken by the Excise Commissioner,. Unfortunately, the tendency of the State is to ignore the Rules in order to augment the revenue of the State and the State indiscriminately opens shops making the life of the residents of the area miserable. In fact the present public interest petition before the High Court was a result of the failure of the State Machinery to take necessary steps in the matter. If the Excise Commissioner has taken proper care while issuing licenses to the liquor vendors and considered the objections of the residents of the area, perhaps there would not have been any necessity of filing the public interest litigation before the High Court.

7. Be that as it may, it appears that proper care was not taken while opening shops in the close proximity of a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazaar or a residential colony and that is how Sub-Rule (4) of Rule 5 came up for interpretation before the High Court. The High Court has after taking into consideration the overall view of the matter opined that 100 meters or 300 ft. (approx.) would be a just measure where the shop should not be opened in the close proximity of a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazaar or a residential colony. We fully agree with the view taken by the High Court and we are also of the view that 100 meters or 300 ft.(approx.) should be the right criteria were the Excise Commissioner shall not Page 1132 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 bazaar or a residential colony. The interpretation of the word ‘close proximity’ was vague therefore it was misused by the authorities, But, now the 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 bazaar or a residential colony where no shop or sub-shop shall be opened under the U.P. Excise Act and Rules framed thereunder.[ State of U.P. and Ors. vs. Manoj Kumar Dwivedi and Ors. (25.02.2008 - SC)Judge : A.K. Mathur and Aftab Alam, JJ.]

Other useful and interesting Links:

http://www.abc.net.au/news/stories/2009/06/16/2599174.htm

http://www.usnews.com/articles/news/national/2008/07/08/easing-up-on-sunday-liquor-

http://encyclopedia.stateuniversity.com/pages/17897/Prohibition.htmlsales.html

*Special thanks to Mr.Sharath M.

Its 10.30 a.m.  ‘OPEN COURT HALL’! Judge arrived, the bench clerk started calling out all the cases listed one by one.

In the first court, cases that were represented got favorable orders in some cases and ideal adjourned dates for the rest.

In the second court, there were some urgent evidence matters to be lead, in which the party had to be present without fail. Even when the case was called for second and third time the party did not turn up for which the Advocate had to face the ‘Jury Fury’.

In the third court,  some compromise had to be reported in Landlord-tenant case.  Petition kept ready , Landlord ready to receive the key from the tenant as per the terms of petition, already the advocate for the tenant had taken 3-4 adjournments,   the tenant who had to be present  did not turn up without any intimation, again the advocate subject to ‘Jury Fury’

In the fourth Court-It was one Motor Accident Claim case where the Advocate had to defend his client (owner of vehicle) who had to pay huge amount of compensation to a House Wife who suffered severe damage to her waist bone in the Accident.  Its not a cake walk to save the client in such a blatant situation, at the same time some justification had to be made. In such cases it is common the advocate will have to face the ‘jury fury’ and beg for some concession.

In the fifth court : The judge was of a very critical bent of mind – The Advocate had to obtain an urgent injunction order to save his client a businessman whose business was at peril without obtaining an order of injunction immediately to run his day to day business.  With great difficulty and prolonged arguments, convincing the Court, the ‘jury-fury’,  the advocate could get an order of injunction to restrain the opposite party.

In the sixth Court, a Labour/Service matter, the candidate was rejected by the selection committee because he had not carried the original certificates to produce before the committee as he had to obtain it from his far off native place.  And by the time he could produce it selections were over and he was rejected on the ground of non production of originals.  In this case the court ‘jury-fury’ did not believe the reasons sworn in the affidavit of the candidate.  It was a Herculean task to convince the Court that the reasons were honest and bonafide.

In the seventh Court, it was about admissibility of the insufficiently stamped document in evidence by the lower court.  The ‘jury-fury’ was in two minds to order the fine amount to be paid to the Collector or to hold the document as inadmissible in evidence. Advocate wanted further time to convince the court, the Advocate was subject to jury-fury and entitled for a day’s time.

In the eighth court, it was about claiming the schedule property exactly but mentioning the wrong boundaries intentionally.  It was a big task to convince the court with all the documentary evidence available and get the second appeal allowed.

In the ninth Court, it was the owner’s appeal in an accident claim case. As Claim was not covered by a valid insurance, the owner wanted some concession in the exorbitant compensation awarded by the lower court. But unfortunately in the lower court he had just filed the vakalath, objection not filed, no evidence lead, nothing! But he produced a copy of the order passed in the connected (with the accident) criminal case acquitting him. The Advocate tried to convince the court about the ignorance and the ill health in not filing the objection and evidence, inspite of it,  ‘jury-fury’ dismissed the appeal.

In the tenth court, it was a writ filed by the poor agriculturist whose land was acquired by the Airport authority who,  not believing that his saguvali chit and that was in possession and cultivating the land since 1960 paid no compensation to him.   As he belonged to a backward community, poor and illiterate, he was made to run pillar to post from Tahsildar to successive A/C D/C/ Courts with no avail. The jury-fury made an order giving direction to the lower authorities to make fresh disposal after considering the document produced by the party and directing the Airport authority to await the order of the authority.

I do agree “ Its All in a Days Work” for the JURY-FURY – Varieties of Advocates, Parties, peculiar Situations/Circumstances that are challenging ,  each minute with the listed cases called for the day.

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The Advocates who read my above article are free to share their court experiences too.  If so, email your court experience to: rekha@legalcrystal.com

There is difference between seizing of a document and impounding a document.  A seizure is made at a particular moment when a person or authority takes into his possession some property which was earlier not in his possession.  Thus seizure is done at a particular moment of time.  However, if after seizing of a property or document the said property or document is retained for some period of time, then such retention amounts to impounding of the property/or document. [Date of Decision 24/01/2008 Suresh Nanda V/s C.B.I. ]2008AIR SCW 898].- to see detailed judgment kindly visit www.legalcrystal.com]

SEX  SELECTION Before conception or thereafter, the Sex Selection  amounts to Violation of Woman’s right to life. It violates Article 39(e) of the Constitution which states the principle of state policy that health and strength of woman is not to be abused.

Sec.2 of Prenatal Diagnostic Techniques Regulation and Prevention of Misuse Act(57 of 1994) which  imposes ban on sex selection do not violate equality clause of the Constitution.  Facts and figures shows decline in number of girls as compared to number of boys! If use of said techniques are not banned it would result in unprecendental imbalance in male to female ratio having disastrous effect on society!

Though sex selection before conception would not amount to female foeticide indirectly same result is achieved.  The whole idea behind sex selection before pre-conception is to go against the nature and secure conception of a child of one’s choice.  It can prevent birth of a female child it is as bad as foeticide.[NOC 244 (Bom) (DB)(D)]

It s Morning, a ver y good morning. Finished all mundane activities and got ready, exactly by 8 a.m. The Advocate is in the Office.  Clients crowd everywhere.  All the files for the day arranged Court Hall number wise [High Court] , and lo wer Cou rt files according to the Building (venue) and the floor(storey) wise and jurisdiction wise.  Attending to clients one by one and advising appropriately.  Some need extra counseling and so me are very smart.  All objections/ I.A.s/ Defense/ and the new filings according to the Court(venue) wise arranged to file the same and all the receipts with C.R. number to collec t the copies applied are kept in the bag in tact.  And all the sewing kits required to comply in the office are kept inside the Court Bag.  All supporting citations Xeroxed and the affidavits to be attested before filing and the process to be paid in the counters, copy the applications to be filed and keep the money ready to obtain D.D’s./ in respect of court fees to be paid or Cost imposed for delay in filing Objection/defence or leading evidence.  Court Dairies in the Bag without fail and a Big list of follow up work , i.e, fill missing hearing dates on the files, look into court files in some cases to know the exact position,  File memo for postings, vakalath, copy applications etc. etc.

Assigning/allotting the work to young colleagues according to their experience and availability and interest to share the burden of ‘court shout’.

After a great ordeal of road traffic the Advocate arrived!

Its 10.30 – In the High Court jumping* from one Court Hall to another according to their listing. Though made a wise choice (list) of Courts to be attended according to the ‘time of reach’  it happens so, it depends on the availability of the other advocates listed earlier to ours or a particular judge arrives late or the advocates seek time or some advocates/judges will have to spend more time for detailed deliberations in some cases or if some judge is on leave, the same is assigned to some other judge and the same will be called after the cases for that particular court is called and heard.  Some cases are listed for 2.30.  Some cases waiting to be attended in the list no.2,3,4,5 so on… sometimes moving fast through the list otherwise at the end adjourned or sometimes ordered randomly!

*jumping with the anxiety of getting an Order of injunction or Order of vacation of injunction/ or ordeal of seeking time to get cogent additional evidence / to get appropriate citations / to make a move for compromise or to get thoroughly prepared or to escape from presenting the case before a particular judge because many a time the decision also depends on the temperament/sensitivity and perception /application of mind of particular judge. Anxiety of getting the case filed dismissed for whatever reason the court finds it appropriate!   Anxiety of protecting the clients interest amidst all loose ends and odds inherent in the case.  Anxiety of keeping all the points intact in all the cases to be represented and being ready for the attacks of the opposite side.  Anxiety of urgent matter which needs final disposal not reaching even at the end!

Amidst all these fight calling junior colleagues over mobile to find out what happened in each of the courts and managing the time to jump from High Court to City Civil Court to Magistrate Court to Mayo Hall to Consumer Forum Cunningham road to Seshardripuram to Cauvery Bhavan and after attending ‘kept by’ evidence matters and arguments, back to High Court.

Its 4.30-5p.m., the Advocate leaves for evening office. Clients overcrowded. Some for new consultation and some for tomorrows hearing.  Attending to the clients and preparing for the next day : all typing work, research work, List of High Court cases etc. etc. Its 9.00p.m. and finally its time to go home and attend to the family needs!

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