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1991 Supreme(MP) 187
High Court Of Madhya Pradesh
V. D. GYANI, V. S. KOKJE
GAJRAJSINGH PRAHLADSINGH THAKUR - Appellant
Versus
STATE OF M.P. - Respondents
MISC. PETN. 239 Of 1991
Decided On : 04/04/1991
B.Pandya, T.N.SINGH
Consultation with the Advisory Committee is not mandatory for opening a new shop for sale of foreign liquor under F. L. 1 license, which does not permit consumption of liquor on the premises.
Headnote:
EXCISE - Opening of Foreign Liquor Shop - Consultation with Advisory Committee - Applicability of Rules - Natural Justice - Public Hearing - Constitutional Goal of Prohibition. 1. Consultation with the Advisory Committee is not mandatory for opening a new shop for sale of foreign liquor under F. L. 1 license, which does not permit consumption of liquor on the premises. 2. Part A of the Rules relating to location of the shops do not apply to opening of a foreign liquor shop with F. L. 1 license. 3. Opening of a liquor shop under F. L. 1 license does not result in any civil consequences to the residents of the locality which would give rise to a right of hearing to them in consonance with the principles of natural justice. 4. The constitutional goal of prohibition does not come into picture in deciding the location of a liquor shop, as it is a matter of detail to be worked out by the administration under the rules.
Fact of the Case:
Petitioners, residents of Vijay Nagar and Nagda, challenged the opening of foreign liquor shops in their localities. They contended that the Advisory Committees were not constituted in accordance with the provisions of the M. P. Excise Act and the rules framed thereunder, that consultation with the Advisory Committee before opening a shop was a mandatory requirement, that the procedure prescribed for publication of the intention to open a shop was not followed, and that the requirements of rules for general application framed u/s. 62 of the Act were not followed.
Finding of the Court:
The court held that consultation with the Advisory Committee is not mandatory for opening a new shop for sale of foreign liquor under F. L. 1 license, which does not permit consumption of liquor on the premises. The court also held that Part A of the Rules relating to location of the shops do not apply to opening of a foreign liquor shop with F. L. 1 license. Further, the court held that opening of a liquor shop under F. L. 1 license does not result in any civil consequences to the residents of the locality which would give rise to a right of hearing to them in consonance with the principles of natural justice. Lastly, the court held that the constitutional goal of prohibition does not come into picture in deciding the location of a liquor shop, as it is a matter of detail to be worked out by the administration under the rules.
Issues: 1. Whether consultation with the Advisory Committee is mandatory for opening a new shop for sale of foreign liquor under F. L. 1 license? 2. Whether Part A of the Rules relating to location of the shops apply to opening of a foreign liquor shop with F. L. 1 license? 3. Whether opening of a liquor shop under F. L. 1 license results in any civil consequences to the residents of the locality which would give rise to a right of hearing to them in consonance with the principles of natural justice? 4. Whether the constitutional goal of prohibition comes into picture in deciding the location of a liquor shop?
Ratio Decidendi: 1. The plain language of Rule II of Part B relating to functions of the Advisory Committee in municipal areas shows that consultation with the Advisory Committee is required on all important excise matters directly affecting the public. However, the necessity of consultation with the Advisory Committee is specifically provided in deciding the sites of the shops, license for the sale of the foreign liquor, which may be consumed on the premises. The plain meaning of the language is that consultation with the Advisory Committee has been provided for only when the number of licenses under F. L. 1 license is to be changed. So far as location of the shops and the site of the shops for F. L. 1 licenses are excluded from pale of the Advisory Committee. 2. The provisions of Rule 1 of Part A of the Rules of General Applications relating to location of shops apply only to F. L. 2 and F. L. 3 licenses and not to F. L. 1 license which does not permit consumption of liquor on the premises. 3. Opening of a liquor shop under F. L. 1 license cannot be taken to be very different from opening of shops dealing with similar products like pesticides, insecticides etc. No question of creation of nuisance or breach of public peace or tranquillity is involved in opening of such a liquor shop on the premises of which liquor is not allowed to be consumed. It is not therefore necessary even under the principles of natural justice to provide an opportunity of hearing to residents of the locality while deciding to open a foreign liquor shop with F. L. 1 license. 4. The question of constitutional goal of prohibition does not come into picture in this case because once it is permitted to open a liquor shop in a locality where it should be located, has no relation to the policy of prohibition. It is a matter of detail which has to be worked out by the administration under the rules made for the purposes.
Final Decision: The petitions were dismissed.
( 1 ) THIS case was heard along with Misc. Petition No. 280/91 (Viresh Chandra Patidar v. The State of M. P. The relief sought in both the cases as well as the grounds on which the relief was sought being similar, they are being disposed of by this common order. In Misc. Petition No. 239/91, the petitioners, who are residents of Vijay Nagar, a colony developed under its scheme No. 54 by the Indore Development Authority, have challenged opening of a foreign liquor shop in the locality. In Misc. Petition No. 280/91 the petitioners, who are residents of village Nagda, Tehsil Bednavar District Dhar, have challenged the opening of a foreign liquor shop in their village Nagda. Apart from the localities being urban and rural, there is no remarkable difference in the aforesaid two cases and the arguments have also been common. It would, therefore, be proper as also convenient to dispose of these two petitions together.
( 2 ) IT is contended by the petitioners that the residents of the localities in which the shops are proposed to be opened are deadly against opening of such a shop and several representations had been made forewarning the respondents about the public opposition to opening of such a shop in their locality. It is contended that Advisory Committees have not been constituted in accordance with the provisions of S. 60 of the M. P. Excise Act (hereinafter called 'the Act') and the rules framed thereunder; that consultation with the Advisory committee before opening a shop was a mandatory requirement, which has not been fulfilled; that the procedure prescribed for publication of the intention to open a shop in a new locality inviting objections from the local population was not followed; that the requirement of rules for general application framed u/s. 62 of the Act were not followed inasmuch as the proposed shop would be near a place of worship, a primary or a middle school, a hospital, a labour colony, a petrol pump, National highway etc.
( 3 ) IN the return filed in Misc. Petition No. 239/91, it has been admitted that the residents of the locality have been opposing opening of such a shop; that the advisory committee in its meeting has passed a resolution, and a recommendation to open shops in different parts of city of Indore, one of them has to be located in the Vijay Nagar locality. It is denied by the respondents that the opening of such a shop will disturb the peace of the area and will encourage antisocial elements in the area. It is also contended that part A of the rules of general applications would not apply to the case because the now shop will be run on a F. L. 1' licence, which does not permit consumption of liquor on the premises. Regarding procedural lapses also it is stated in the return that the prescribed procedure was followed and it was denied that there was any lapse on the part of the respondents in following the procedure prescribed under the rules. The contention of the respondents is that the rules framed under S. 62 (e), (f) and (h) of the Act apply only to the shops and the premises on which liquor is permitted to be consumed. In the return filed in Misc. Petition No. 280/91 it has also been contended that there was already a country liquor shop in the locality and it has never been reported that it has caused any breach of public peace or tranquillity. Other allegations in Misc. Petition No. 280/91 have also been refuted in the return. ( 4 ) WE have heard Shri A. M. Mathur, the Senior Advocate appearing with Shri C. B. Patne counsel for the petitioners in Misc. Petition No. 239/91; Shri R. S. Garg, learned counsel for the petitioners in Misc. Petition No. 280/91 and Shri T. N. Singh, the learned Dy. Advocatte General for the State. Shri Garg adopted the arguments of Shri A. M. Mathur as regards main points and supplemented his arguments on the point of the rules applicable to rural areas.
( 5 ) IN order to appreciate the arguments of the learned counsel, it would be proper to fir
