My below blog post is based on the request from Mr.Sharath M who is one of our regular visitors
Chat Conversation :
Sharath: wanted to gather some info…see.. there is a law which says tat u cant have a liquor vendor some 500mts from where a school or college is located… now suppose.. there is already a liquor shop and someone wants to open a school.. does the same rule apply?if so.. who has to relocate.. the liquor 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
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.
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
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.]
*Special thanks to Mr.Sharath M.