9911796707
TMI Blog2013 (10) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eet from any college/educational institution /religious places. This plea has been accepted by the High Court and vide impugned judgment dated 14th December 2012, the Excise Department is directed not to renew the license of the appellant which was expiring in the month of January 2013. 4. It is not in dispute that there are few religious places as well as a school within a distance of 1000 feet from the restaurant of the appellant where he runs his liquor bar as well. The precise distance of these places from the appellant s restaurant is as under: Gurudwara Bara Sikh Sangar is at a distance of 430 ft., Shree Digambar Jain Vidyalaya is at a distance of 580 ft., Shree Jain Swetambar Panchayati Temple is at a distance of 630 ft., Shree Laxmi Narayan Mandir is at a distance of 730 ft., and Shree Shree Satya Narayanji Ka Mandir is at a distance of 780 ft. 5. It is also not in dispute that Rule 8 proscribes grant of license for retail sale of liquor or any other intoxicant at a new site which comes within the range of 1000 ft. However, case set up by the appellant is that since the application for grant of license was filed in the year 1992, the rules which were prevailing at that time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. Reverting to the case of the appellant, we would also like to emphasize here that 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. However, Mr. K.K.Venugopal, learned senior counsel appearing for the appellant drew our attention to the Circular dated 28.9.2005 issued by the Excise Commissioner, West Bengal 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. Since the entire foundation of the appellant s case rests on this communication, we would like to reproduce the same in its entirety: Sub: Settlement of Excise Licenses in favour of the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, requested to take necessary steps in the matter and ensure the compliance of these instructions. 8. Seeking to draw sustenance from the aforesaid circular, Mr. Venugopal s endeavour was to make us agree to his submission that those applications which were received before 15th April, 2004 and had not been rejected by the time circular dated 28.9.2005 came to be issued, were to be processed as per unamended Rule 8 which fixed the upper limit of 300 ft. as prohibitory limit. However, we don t feel persuaded by this plea. In our view, this circular has no application to the facts of the present case for the reasons stated hereafter. 9. On the face of it, it is visible that the circular deals with the situation where applications for grant of license had been submitted after 29.7.2003 when Rules, 2003 were promulgated prescribing a distance of 300 ft. in Rule 8(1) of those Rules to define vicinity and before this definition of vicinity was amended vide Notification dated 2.4.2004. The question was as to whether applications which were given after 29.7.2003 but before 2.4.2004, were to be governed by original Rules 8(1) or the amended Rule 8(1). It seems that a Writ Petition wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be the reason that the said application was never processed. The application has to be supported by appropriate fee which was not given earlier. Such a fee was deposited only in the year 2006 in compliance with the provisions of Rule 9 of the Rules, 2003. In his letter dated 1.11.2004 the appellant referred to his application submitted on 28.8.1992 in which the appellant stated that he had applied for the license as per the copy of letter which he enclosed along with communication dated 1.11.2004 and it shows that only a letter was submitted, though, as per the Rules, application was to be made in Form I or Form II annexed with these Rules. 11. Before filing the Writ Petition, respondent Nos. 5 and 6 had obtained information from the department under Right to Information Act. Information supplied to them mentions that the appellant had first made application on 28.8.1992 and then again on 8.9.2005 giving reference to the first application. Thus, we find that the first application was not even proper application and second application was dated 8.9.2005. It had to be governed by the new Rules, namely, Rules 2003, as amended in 2004. 12. It would also be significant to state that as ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
