JOSEPH DOMINIC Vs. COMMISSIONER OF EXCISE

JUDGEMENT

(1.) R. 13 (3) of the Foreign Liquor Rules framed under the abkari Act has undergone a number of amendments. The one with which this original petition is concerned is that by which a specification of distance was introduced into the Rule. By the said amendment it was prescribed that no such licence as envisaged by R. 13 (3) shall be issued to hotels or restaurants which are located within 200 metres from any educational institution, temple, church, mosque or burial ground. However, renewal of licence to bars which were in existence on the date of commencement of the Amendment R. 1986 may be allowed subject to the condition that objections, if any, which had been raised will be considered and decided by the Excise Commissioner.

(2.) THE amendment came into force on 1st April 1986. THE petitioner himself was an applicant for grant of a licence for his hotel under r. 13 (3 ). However, his application was rejected by Ext. P1 dated 7-7-1987 on the ground that the building proposed by him did not satisfy the restriction regarding distance from educational/religious institution. When his application was rejected as per Ext. P1, the petitioner became a pro-bono publico litigant. He has now diverted his energies for the public good and has turned himself to be a champion of educational/religious institutions and those attending the same. THE Petitioner has gone to the other extreme and wants the saving of existing licences as on 1-4-1986 to be quashed, thereby levying a total embargo on the conduct of any bar in hotels/ restaurants within 200 metres from the categories of places mentioned in R. 13 (3 ). Petitioner's challenge is thus to the second part of the amendment brought in in 1986. He is not presently aggrieved by the first part and has no objection to a distance rule being imposed with regard to bars near educational institutions, temples, churches, mosques or burial grounds. Of course be has a challenge to Ext. P1 on facts to which I shall advert to later. His grievance at present is that even existing bars ought not to be allowed to continue and he pleads discrimination in support of his contention. Petitioner's contention is that bars in hotels/ restaurants are similarly situated. THE period when the bar commenced its operation is immaterial. So long as it is a bar and it is situate near one of the institutions mentioned, it is obnoxious and the very purpose of the amendment is being defeated by allowing existing bars to continue their operation. THE latter part of the amendment of 1986 is therefore violative of Art. 14 of the Constitution. Petitioner refers to various decisions to submit that specification of time with reference to a particular matter is obnoxious to the right of f quality guaranteed by R. 14,

(3.) IT is not as if there is blanket exclusion is favour of all existing bars and hotels. Even there, the framers of the rule have taken care to see that such licences will be continued subject to consideration of objections already raised in regard to their continuance, by the Excise commissioner. IT is open to the Excise Commissioner therefore, even in such cases, to refuse to renew a licence if the circumstances of the case warranted.