NIRMAL ARORA Vs. BYDBERG INDIA

JUDGEMENT

(1.) The petitioner is the tenant of shop no. 728, shibsahai Buliding, Church Mission Road, Fatehpuri, Delhi. A tripartite 208 agreeinsnt was entered into between Delhi State Civil Supplies Corporation Limited (hsrainifter referred to as DSCSC), Shri P.R. Monga, Advocate, the Receiver appointed by the Delhi High Court of the said building and the petitioner to start a liquor vend from the said shop. The case of the petitioner is that originally for the last six years, the DSCSC has been running a liquor vend in shop no. 73 of the said building. Because of some dispute .between the tenant of shop no. 731 and the landlord, the DSCSC was required to vacate the said shop. A compromise was arrived at between DSCSC and the landlord and it was agreed that the liquor vend would be shifted from shop no. 731 to728. Respondent no. I who is an occupant of shop no. 727 filed a suit in the court of Sub Judge, Delhi being suit no. 489 of 1977 for permanent injunction against the petitioner and respondent no. 2 restraining them from opening a liquor vend in shop no. 728. The petitioner also prayed for aninterim injunction The injunction was sought inter alia on two grounds: 1. that it was likely to cause annoyance and nuisance to the plaintiff-respondent no. 1 due to long queues and scuffles between people who were likely to come to the shop for purchase of liquor and also because storage of liquor which is highly inflammable near a restaurant which has also a 'Bhatti' burning all the time was a fire hazard; and 2. the opening of liquor vend in contravention of Rule 33(l)(a) of Delhi Liquor Licence Rules 1976 (hereinafter referred to as the Rules) which provides that no liquor shop shall be situated within 75 metres of a major educational institution and religious place resulted in public nuisance. The trial court by its order dated 24th October 1987 refused the interim injunction firstly on the ground that no nuisance was likely to be caused to the plaintiff-respondent no. 1 and secondly on the ground that injunction on the ground of public nuisance could be sought only by way of a suit under Section 91 of the Code of Civil Procedure. Being aggrieved by this order of the trial court, respondent no. I filed an appeal before the Senior Sub Judge, Delhi being M.C.A. 307 of 1987. The Senior Sub Judge, Delhi vide his order dated 20th November 1987 reversed the order or the trial court and held that in view of Rule 33(l)(a) of the Rules, liquor vend could not be allowed to be run from the said shop because admittedly there is a religious institution near the said shop and also because the liquor vend was likely to cause nuisance to the plaintiff-respondent no. 1. This order of the Senior Sub Judge, Delhi dated 20th November 1987 has been challenged by the petitioner in the present revision petition under Section 115 of the Code of Civil Procedure.

(2.) It was contended by the learned counsel for the petitioner that the lower appellate court completely lost sight of the fact that a liquor vend is being run from an adjoining shop namely shop no. 731 for the last six years and it was only being shifted to shop no. 728. Respondent no. 1 did no.t raise any objection to the liquor vend at shop no. 731. The location and situation of both the shops is similar. Both the shops are in the same building. Respondent no. I did not take any step to stop the vend in shop no. 731 and filed the suit after all arrangements had been made for shifting the liquor vend from shop no. 731 to 728. The petitioner had incurred huge expenditure in making the arrangements. Learned counsel further submitted that the lower appellate 209 court erred in holding that in view of Rule 33(l)(a) of the Rules the petitioner could not be allowed to run the liquor vend from the said shop.

(3.) On the other hand, it was contended by the learned counsel for respondent no, 1 that since Rule 33(l)(a) of the Rules created a specific bar for running a liquor vend within 75 metres from a major educational institution or religious place and admittedly there is a religious institution within 75 metres, the lower appellate court was right in coming to the conclusion that the petitioner should not be permitted to start the liquor vend in the said shop. Learned counsel submitted that there is no estoppel against a statute and even if respondent no. I had not objected to the liquor vend being run from shop no. 731 he could not be now stopped from objecting to the running of liquor vend from shop no. 728. Learned counsel submitted that the liquor vend was likely to disturb the plaintiff-respondent no. 1 inasmuch as undesirable elements are likely to come to purchase liquor and because of long queues and scuffles between the purchasers, the business of respondent no. 1 would be affected.