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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Milind N. Jadhav, J.
Rahul Giridhar Pathade – Petitioner
Versus
The Collector of Nasik, State Excise Department and ors. – Respondents
Writ Petition No. 12083 of 2019
Decided On : 24-01-2023
Constitution of India, 1950 – Article 227, 14, 21, 19(1)(g) – Maharashtra Land Revenue Code, 1966 – Section 44 – Maharashtra Prohibition Act, 1949 – Section 54, 56 – Maharashtra Country Liquor Rules,1973 – Rule 25 – Country Liquor bar – Violation of fundamental rights – Offence Of licensing authority – Cancellation for other reasons – Protection of life and personal liberty – Power to cancel or suspend licences and permits – Procedure for conversion of use of land from one purpose to another – Equality before law The State shall not deny to any person equality before the law or the equal protection – Whether Petitioner is entitled to maintain said challenge – Held, It is seen that locus of Petitioner in filing present Petition is required to be seen - Petition is not filed as a Public Interest Litigation – Though it is argued across bar that having a Country Liquor bar in predominantly residential area is detrimental to residents of the area, said submissions however do not find mention in any of pleadings – Challenge to Petitioner’s license is on account of non-compliance of certain statutory conditions by Respondent However, whether Petitioner is entitled to maintain said challenge and whether proceedings under Article 227 of Constitution of India are maintainable is moot question which needs to be addressed at the outset – Impugned order for granting license is passed by Collector - Respondent Commissioner has given his consent to Respondent after following due process of law to grant license – Respondent is licensing authority who has granted license – Admittedly, Petitioner never objected or was not a party to original Application seeking transfer of the CL III license from Ozar to the subject premises in Peth – Petition as seen is not filed by Petitioner in a representative capacity on behalf of residents in area – Therefore, Petitioner has no locus stand it file present Petition – Petition is dismissed.
JUDGMENT :
1. By the present Writ Petition, Petitioner takes exception to the orders dated (i) 20.09.2019 passed by Respondent No. 4-State of Maharashtra, (ii) 08.02.2019 passed by Respondent No. 1 – Collector of Nasik and (iii) 04.12.2018 passed by Respondent No. 2 – The Commissioner State Excise.
2. Respondent No. 1 is the licensing authority under the Maharashtra Prohibition Act, 1949 (for short “the said Act”). Petitioner is the citizen of India and resident of Village Peth, District Nashik. Respondent No. 3 holds a CL III license under the said Act. Respondent No. 1 – Collector of Nasik passed order dated 08.02.2019 permitting Respondent No. 3 to shift his CL III license from the existing premises to the new premises. This permission was granted by the Collector after obtaining prior permission of the Commissioner on 04.12.2018.
3. Admittedly Respondent No. 3 is carrying on business of Restaurant and Bar in the name and style of M/s Hotel Mohana Garden since 1996. The Excise Department has duly approved the plan of the said hotel with Restaurant and Permit Room on Plot No. 284. The said Restaurant and Bar was shut down pursuant to the order passed by the Supreme Court on 15.12.2016 since the same was abutting the National highway. Respondent No. 3 thereafter constructed a wall on three sides of Plot No. 284 in order to restrict the entry from the highway and thereafter made fresh Application to the Competent Authority seeking a license on the ground that the distance from the highway to the entrance of the restaurant was in excess of the ceiling permissible under the order passed by the Supreme Court.
4. Respondent No. 3 also procured a CL III license. Admittedly CL III license did not fall within the restricted distance from the highway and is unaffected by the Supreme Court judgment. Respondent No. 3, therefore, made an Application to the Competent Authority for allowing him to shift his license and conduct his business on the basis of CL III license separately from the Restaurant and Hotel namely Hotel Mohana Garden Bar & Restaurant which was in operation from Plot No. 284.
5. Though admittedly for the purpose of CL III license, the restriction of the distance from highway was not applicable, the Sub-Inspector of State Excise procured information from the Executive Engineer of the National Highway authority, who certified that the distance of the hotel premises was 235 meters away from the National Highway No. 848. A plan was also annexed to the certificate for distance dated 18.07.2017 issued by the Excise Department. Respondent No. 3 submitted an affidavit dated 19.06.2017 stating that the establishment was beyond the restrictive distance from 220 meters from the National Highway and also undertook to satisfy the other applicable conditions.
6. Petitioner is the resident of the area in the vicinity of Plot No. 284. On being asked, it is informed across the bar that Petitioner’s residential house is at a distance of 500 meters from Plot No. 284.
7. It is Petitioner’s case that several persons residing in the vicinity of Plot No. 284 have objected to the commencement of the Country Liquor Bar under CL III license issued to Respondent No. 3 by filing objections and complaints to the Statutory Authorities. Petitioner has thereafter referred to a series of correspondence between the officers of the Respondents Nos. 1 and 2. However, Petitioner’s objection is to the fact that Respondent No. 3 has been permitted to operate his CL III license from the premises of Hotel Mohana Garden on Plot No. 284 where the Respondent No. 3 was also granted a FL III License.
8. By order dated 08.02.2019, Respondent No. 1 – The Collector of Nasik permitted Respondent No. 3 to shift his CL III license from Ozar, Taluka Niphad, District Nashik to Gat No. 233, Plot No 284 Taluka Peth, District Nashik after receiving prior permission from Respondent No. 2 – The Commissioner of State Excise on 04.12.2018.
9. Petitioner being aggrieved filed a Revision App
It is an onerous obligation for an educational institution to devote itself in building a robust society by imparting creative education at the school level which ought not to be overlooked.
The main legal point established is that the disputed factual questions should be adjudicated by the competent authority, and the grant of license in excise matter is not a fundamental right.
The authority cannot mandate the shifting of an operational licensee's business based on objections raised after the statutory period, as such orders lack jurisdiction and must be supported with reas....
The central legal point established is the necessity for proper scrutiny and compliance with the conditions for granting FL-3 licenses.
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