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TMI Blog2003 (3) TMI 760X X X X Extracts X X X X X X X X Extracts X X X X ..... than 650 K.Ms. from Pondicherry and he appears to have applied to the second respondent for the transfer of the said licence to Madagadipat at Pondicherry. On coming to know of the said attempt and also finding that the shop was to be located near the temple, the people in the village felt outraged and the petitioner also joined with them protesting against the grant of licence in that place by petitioning to the higher officials. With the result, the petitioner has sought for the issue of a writ of mandamus directing respondents 1 and 2 to forbear the third respondent from establishing or running a wine shop at Survey No.5/1 at National Highways 45A, Villupuram-Pondicherry Main Road, Madagadipat village, Pondicherry State. 3. In the counter filed by the second respondent, it is contended that the petitioner is objecting to the location of the shop by the third respondent mainly on two grounds. Firstly, that it is to be located within the prohibited distance from public place like place of worship and educational institution and secondly, it was in violation Rule 209 of the Pondicherry Excise Rules (hereinafter called the Rules) dealing with shifting/transfer of licensed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fee prescribed for transfer and hence she is being put to unnecessary loss. The writ petition has been filed at the instance of owner of an existing wine shop and hence the same was not maintainable. 5. Learned counsel for the petitioner apart from raising the contentions stated in the affidavit took me through the Rules in support of his contentions that shifting which is contemplated under Rule 209 was only within the same area and not from one area altogether different to another area which does not fall within the same excise area/ Panchayat commune. Location or number of shops and the lease amount to be paid by the licensees are considered and fixed on the basis of population in the area and the investment is made with the hope of a minimum business and the Government cannot increase the number of shops to the detriment of the existing shop owners. The proposed site was definitely within the prohibited distance from place of worship and hence not permissible. 6. Mrs. Radha Gopalan, learned counsel for the third respondent contends that shifting from one area to another was permissible automatically under Rule 209 of the Rules, subject only to the condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules is from one place to another . It has to be examined as to whether the expression place can be treated as different from area as contended by the petitioner. On an analysis of the provisions under the Act and Rules, I am unable to accept the contentions that Pondicherry Act and Rules do not contemplate ceiling on number of shops to be located and that there are no areawise restriction in the grant of licence for the following reasons:- Section 16 of the Pondicherry Excise Act (hereinafter called the Act ) deals with the power to grant lease of right to manufacture Indian Liquor or any intoxicating drug or sale by wholesale and retail within any specified area. Under Section 70 of the Act which confers Rule making power; Clause (d) contemplates regulating the periods and localities in which licences for the wholesale or retail sale of any intoxicant may be granted and for regulating the number of such licences which may be granted in any local area. The expression local area should naturally mean only the locality or the Panchayat/Commune area or Ward in a Municipality. It cannot certainly mean the entire Union Territory of Pondicherry. 12. Now comin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies of Pondicherry Union Territory, Excise Authorities are not complying with the statutory requirements. It is needless to state that executive default cannot override the legislative requirements. The above conclusion will have the consequential impact on the next issue which arises for consideration namely, whether there can be shifting of a shop from one place to another. When once it is held that each locality or Panchayat/Commune can have only a specified number of shops, no shifting can be permitted in favour of a licensee from a totally different area. We have to consider Rules 163 and 2 09 of the Rules which are relied on by the respondents 1 and 2 as enabling the shifting of shops and the said Rules have already been extracted above. While Rule 163 deals with liquor shops, Rule 209 deals with arrack shops. In the counter, it is stated that a proviso had been added to Rule 209 as mentioned above by amendment which came into effect from 31.5.2002. I have not been informed of any similar amendment to Rule 163 dealing with liquor shops. Even so, the amendment is of no consequence as it adds only a further condition of payment of one-fourth of licence fee for shifting. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court involving writ jurisdiction. A four-Judge Bench in Jasbhai Motibhai Desai pointed out three categories of persons vis-a-vis the locus standi: (1) a person aggrieved; (a) stranger; and (3) a busybody or a meddlesome interloper. Learned Judges in that decision pointed out that anyone belonging to the third category is easily distinguishable and such person interferes in things which do not concern him as he masquerades to be a crusader of justice. The judgment has cautioned that the High Court should do well to reject the petitions of such busybody at the threshold itself. Then their Lordships observed the following: (SCC P. 683, para 38) 38. The distinction between the first and second categories of applicants, though real, is not always well demarcated. The first category has, as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrigugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of 'persons aggrieved'. In the grey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in another range it would be improper to allow such an order to remain alive and operative on the sole ground that the person who filed the writ petition has strictly no locus standi. So We proceed to consider the contentions on merits. 19. In the result, the objection based on locus standi cannot be entertained. As pointed out earlier, the location of the shop has a vital role to play in the matter of income of the lessee who has the obligation and necessity to turn out minimum business, failing which he is answerable for any loss of revenue and the recovery of the same as against his property under the Revenue Recovery Act. He is also required to furnish immovable security by mortgage as a pre-condition for the licence. Therefore, to say that he has no locus standi to raise objection is no longer a valid defence. 20. On the issue of the third respondent's site being within the prohibited distance, through that the respondents 1 and 2 claim that the proposed site is not within any prohibited distance from any place of worship or school, the second respondent has not made any positive statement. The counter by the second respondent is not only vague, but a ..... 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