P A CHACKO Vs. BOARD OF REVENUE

JUDGEMENT

(1.) Petitioners are residents of Muvattupuzha, whose children are studying in the Girls High School, Muvattupuzha. Very near to the school and 20 feet away from its gate is located the building in which a Hotel and Lodge are being conducted by the fourth respondent; within 90 metres from the said hotel is the Government High School, Muvattupuzha; within 35 metres is a Chapel. A Boarding School and a Convent are also located in the immediate vicinity of the fourth respondent's hotel. Apprehending that the fourth respondent may successfully manage to get a licence to conduct a Bar in his Hotel, Ext. P1 representation was submitted by the petitioners and others objecting to the proposal Officers of the Excise Department appear to have favoured to fourth respondent and recommended sanction. The Board of Revenue, the licensing authority, acting on the report of the Excise Inspector, Muvattupuzha, and the Assistant Excise Commissioner, Ernakulam, and on the basis of G.O. Rt. 255/82 dated 15-4-1982 decided to sanction the licence. The fourth respondent paid the licence fee of Rs. 1,50,000/- and commenced operation of the Bar under an FL3 licence, and was awaiting issue of the licence. It appears that the Government intervened and kept issue of the licence in abeyance for some time. The fourth respondent filed OP No 7510 of 1985, and obtained a direction to the third respondent to hand over the licence as expeditiously as possible, and in any event within three days from the date of that judgment. This Original Petition was filed shortly thereafter, alleging that the grant of the licence to conduct the bar within 400 metres of the Schools and Chapel was in gross violation of the provisions of R.6(2)(b) of the Kerala Abkari Shops (Disposal in Auction) Rules. It was also contended that the permission was contrary to the provisions of Art.47 of the Constitution of India. Petitioners, therefore, seek an order quashing the proceedings for the grant of an FL3 licence in favour of the fourth respondent, and a declaration that the prohibition contained in R.6(2)(b) of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974 applies to FL3 licence as well.

(2.) The defence of the respondents is quite simple. They state that the Kerala Abkari Shops (Disposal in Auction) Rules, 1974 applies only to shops which are to be disposed of in auction. Grant of an FL-3 licence is not to be made by auction. There is a fixed licence fee in respect of each such licensee, or licenced premises. Grant of the licence is based on prefixed prices and not on a price to be determined in competitive auction. A bar conducted under an FL-3 licence is not an Abkari Shop, and therefore none of the provisions of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974, including R.6(2)(b) thereof, will apply to the grant of such licences. The only rule which would apply is R.13 of the Foreign Liquor Rules, supplemented by G. O. Rt. 255/82 dated 15-4-1982. Prohibition not being part of the State Policy, and Art.47 of the Constitution of India being only a non enforceable directive principle, petitioners are not entitled to insist upon this court directing enforcement of the directive principles by issue of writs under Art.226 of the Constitution of India. Even assuming that the directive principles contained in Art.47 should guide the activities of the State, grant of an FL-3 licence does not militate against such principles, since sufficient safeguards to protect public morals and public health are ensured by the terms of R.13 of the Foreign Liquor Rules and G. O. Rt. 255/82 dated 15-4-1982.

(3.) Though the defence is disarmingly simple, the question to be decided seems to be fairly important and sufficiently complicated: important because, the effect of Art.47 of the Constitution of lndia on State Policy falls for consideration, such as the entitlement of a citizen to point out in proceedings under Art.226 that the basic tenets of the directive principles are being thrown to the winds by the State in its day-to-day functions: complicated because, the forms and the terms and conditions for the issue of a licence proceed on the basis that 'bar' is also a 'shop' as defined in the Kerala Abkari Shops (Disposal in Auction) Rules.