IMPORTANT POINT
Provisions of Rule 45(1-C) of Bombay Foreign Liquor Rules providing for the distance requirement was mandatory.

JUDGMENT

Arijit Pasayat, J. — Leave granted.

2. Challenge in this appeal is to the legality of judgment rendered by a Division Bench of the Bombay High Court in Appeal Lodging No.75/2005 in Writ Petition No.2736/2004.

3. The question that arose for consideration in the writ petition and the appeal therefrom is whether the revisional authority under The Bombay Prohibition Act, 1929 (hereinafter referred to as the Act) was right in refusing FL-III license to the appellant on the ground that the distance between the establishment of the appellant and the entrance to a mosque is less than 75 metres. Learned Single Judge held on the basis of the report given by the Court Commissioner that the distance was less than 75 metres and, therefore, in view of what is provided in Rule 45(1-C) of the Bombay Foreign Liquor Rules, 1953 (in short the Rules) the license could not have been granted. The view was upheld by the Division Bench by the impugned judgment.

4. Background facts in a nutshell are as follows:

Appellant applied for obtaining license (permit) to enable him to sell foreign made liquor since no objection certificate was obtained from the mosque trust for grant of such license. The Commissioner of Police raised objection to the grant of the license. The Collector of Bombay City, State Excise Department rejected the application on the ground that there was a religious institution within the 60 metres from the restaurant. An appeal was preferred under Section 137(2) of the Act to the Commissioner of Prohibition and Excise. The appeal was allowed by order dated 26.3.1999 on the basis of certificate issued by the Chartered Architect certifying that the distance between mosque and the restaurant was 75.43 metres. On the basis of the directions given by the Appellate Authority license was granted on 1.4.1999. After grant of license, appellant filed an application before the Collector for issuance of public entertainment license. The Commissioner of Police filed revision before the Minister of State for Excise for revoking the order passed by the Commissioner granting FL-III license. The revisional authority set aside the order of the Commissioner and the order of the Collector rejecting the license was confirmed. A Writ Petition was filed before the High Court, which was heard by a learned Single Judge. Basic issue raised related to the distance, and the alleged grant of license to similarly situated persons whose establishments were situated less than 75 metres. A Court Commissioner was appointed to find out the factual details. On the basis of his report, learned Single Judge dismissed the writ petition holding that the distance of 75 metres is mandatory as prescribed by rule 45(1-C) of the rules. From the report of the Commissioner it is clear two entrances (first and third entrance) to the mosque are within the mandatory distance of 75 metres. In the appeal filed before the Division Bench stand was taken that the entrances are not frequently used and, therefore, distance of second entrance only was to be taken into consideration for the purpose of measurement. It was pointed out that main entrance to the mosque is from Narsi Natha Street, which is at a distance of 98.47 metres, i.e. more than 75 metres. The Division Bench concurred with the findings of the learned Single Judge. Reference was made to the Commissioners report and certified photographs.

5. In support of the appeal Mr. U.U. Lalit, learned senior counsel submitted that the language of Rule 45(1-C) makes the position clear that reference is made to the path by which pedestrian ordinarily reaches the religious institute. Since the two entrances are not ordinarily used and are only sometimes used, the distance has to be reckoned from the second entrance gate which is admittedly beyond 75 metres. It was further submitted that the mosque management had no objection to the functioning of the appellants restaurant. In fact, they have given their consent. The High