2013 (10) TMI 384 - SC - Indian Laws

Prayer to Cancel the Temporary Liquor License - The plea raised was that it was not open for the appellant to run a liquor bar in the said restaurant which was in the vicinity of religious places and school - The respondents contended that the religious places and school were situated within the distance of 550 feet of the premises where the license to operate the bar by the Excise Department was granted to the appellant and this was in violation of Rule 8 of the West Bengal Excise (Selection of New Sites and Grant of License for Retail Sale of Liquor and Certain Other Intoxicants) Rules, 2003 (hereinafter referred to as Rules of 2003 ), as amended in the year 2004. Rule 8 of Rules, 1993 as well as Rule 8 of Rules, 2003 apply only to new sites - Its implication is that those restaurants/ hotels etc. who were already granted license, before coming into force the respective Rules, would not be hit by the mischief of these rules and are allowed the continuation of such a bar license, as pointed out, though the application of the appellant was made in the year 1992, it was processed much after 2004 and the license is also granted after 2004 - Therefore, normally the application would be governed by the Rules prevalent on the date of grant of liquor license - The appellant drew attention to the Circular dated 28.9.2005 issued by the Excise Commissioner to its functionaries and on that basis, he made emphatic plea that pending applications were to be considered on the basis of un-amended Rules, 2003. We fail to comprehend as to how the application filed in 1992 could be considered in 2010 - In any case, when the request of the appellant was considered in the year 2010, Rules of 2003 as amended in 2004 had to be applied - On the basis of these Rules, the appellant could not have been granted for foreign liquor bar and restaurant license as there are many religious and educational institutions within the 1000 ft. of place from where the appellant is operating - The case of respondent No.4 was not of a new license but existing license - Rule 8 applied to new sites only and in so far as those who were operating already and having existing license, they are not hit by the mischief of this Rule - the judgment of the High Court upheld Decided against Petitioner.

Summary

Issues Involved:
1. Validity of the appellant's liquor license application based on the rules in force at the time of application.
2. Applicability of the amended Rule 8 of the West Bengal Excise Rules, 2003 to the appellant's case.
3. Interpretation and impact of the Excise Commissioner's Circular dated 28.9.2005.
4. Allegations of malafides and selective enforcement by the respondents.

Detailed Analysis:

1. Validity of the Appellant's Liquor License Application Based on the Rules in Force at the Time of Application:
The appellant, a proprietor of a hotel and restaurant, applied for a liquor license in 1992. The West Bengal Excise Rules, 1993, which came into force shortly after, did not specify a numerical distance for the term "close proximity" to educational institutions or religious places. When the Rules, 2003 were promulgated, the term "vicinity" was defined as 300 ft., and this was later amended to 1000 ft. in 2004. The appellant argued that since the application was made in 1992, the rules prevailing at that time should apply. However, the court noted that the application was processed and the license granted much later, after the 2004 amendment, making the 1000 ft. rule applicable.

2. Applicability of the Amended Rule 8 of the West Bengal Excise Rules, 2003 to the Appellant's Case:
Rule 8 of the Rules, 2003, as amended in 2004, proscribes the grant of a liquor license within 1000 ft. of educational institutions or religious places. The court found that several such places were within 1000 ft. of the appellant's restaurant. The appellant's contention that the 1993 rules should apply was rejected because the application was not processed until after the 2004 amendment. The court emphasized that the rules in force at the time of consideration of the application are applicable, not those at the time of the initial application.

3. Interpretation and Impact of the Excise Commissioner's Circular Dated 28.9.2005:
The appellant relied on a circular issued by the Excise Commissioner in 2005, which stated that applications received before 15th April 2004 should be processed under the unamended rules. The court, however, clarified that this circular applied to applications submitted between 29.7.2003 and 2.4.2004. Since the appellant's application was from 1992 and not followed up properly until much later, it did not fall under the purview of this circular. The court noted that the appellant's application was not even proper initially and was only followed up with the necessary fee in 2006, thus making it subject to the amended rules.

4. Allegations of Malafides and Selective Enforcement by the Respondents:
The appellant alleged malafides on the part of the respondents, claiming that another restaurant operated by respondent No.4 was also within 1000 ft. of religious places but was not challenged. The court dismissed this argument, stating that even if true, it would not legalize the appellant's license. Furthermore, the court found that respondent No.4 had an existing license, and Rule 8 applied only to new sites. Therefore, the appellant's case did not benefit from this argument.

Conclusion:
The Supreme Court upheld the High Court's judgment, directing that the appellant's liquor license should not be renewed beyond December 2013. The court concluded that the application should be governed by the rules in force at the time of consideration, not at the time of application, and dismissed the appeal with costs.