, the Supreme Court did not approve the approach of the High Court in closing the shops without issuing notice to the affected parties.){kind=link}
The Chhattisgarh High Court has dismissed a Public Interest Litigation (PIL) filed seeking a direction to remove the liquor shops from Kukdur Road, State Highway No.9 (District Kabirdham) and to quash an order dated 25.07.2021 passed by the Collector (Excise), District Kabirdham.
The PIL, filed by an Advocate and a Journalist, pleaded that the location of the liquor shops are within the prohibited distance from the State Highway and thus, had violated guidelines issued by the Supreme Court. It is also pleaded that the Government Girls Higher Secondary School, Pandariya, Saraswati Shishu Mandir Higher Secondary School, Pandariya, Post Matric Girls Hostel, Community Health Centre and Girls Middle School are situated within the vicinity of 250 metres, 100 metres, 200 metres, 400 metres and 300 metres, respectively. There is one Hanuman Temple in the Forest Colony, which is located at a distance of 300 metres; Ravidas Mandir and Shani Mandir and Parmeshwari Devi Bhawan are situated within 400 metres. Though the school authorities, ward members and local persons had submitted representations against opening the liquor shops at Kukdur Road, the same was not considered favourably.
It is stated that country and English liquor shops are situated 60 metres away from State Highway No.9 and are running in rental buildings. It is stated that both liquor shops are situated at Kukdur Road. By order dated 25.07.2021, they were allowed to be opened.
The State’s reply-affidavit stated that in the light of the decision rendered by the Supreme Court in State of Tamil Nadu represented by Its Secretary Home, Prohibition and Excise Department and Others v. K. Balu and Another, reported in (2017) 2 SCC 281, the State Government had carried out amendment in the Chhattisgarh Excise Act, 1915 by way of insertion of sub-section (3) (a) of Section 17.
It is stated that pursuant to the decision of Supreme Court in Arrive Safe Society of Chandigarh v. Union Territory of Chandigarh and Another, reported in (2018) 13 SCC 133, clarifying that the order dated 15.12.2016 passed in K. Balu (supra) would not prohibit licensed establishments within the municipal areas, the State Government had issued an order dated 11.11.2019 to consider running of liquor shops in the municipal areas after conducting factual inspection of the matter and subsequently, a proviso was added to Section 17(3)(a) of the Chhattisgarh Excise Act, 1915 by means of Chhattisgarh Excise (Amendment) Act, 2020.
Reliance is also placed on the notification dated 01.04.2015, restricting setting up of liquor shops within the limits of 50 metres from schools, hospitals and temples, etc. It is on the basis of the above, deshi (Country) liquor shop and English (Foreign) liquor shop had been shifted to Kui Road, Nawapar, and Kukdur Road, B.N. Fules, Pandariya, respectively and both the liquor shops are located within the municipal area of Ward No.13, Pandariya, which was notified exercising the powers conferred by sub-section (1) of Section 29 of the Chhattisgarh Municipalities Act, 1961 on 12.07.2019. It is further stated that Deshi (Country) liquor shop and English (Foreign) liquor shop are situated 557 metres and 842 metres, respectively from Saraswati Shishu Mandir school.
H.S. Ahluwalia, Deputy Advocate General, submitted that in view of the judgment rendered in Arrive Safe Society (supra), the liquor shops being within the municipal areas, there is no infraction of the guidelines of the Supreme Court as also relevant statute, and therefore, the writ petition is liable to be dismissed.
The Division Bench of Chief Justice Arup Kumar Goswami and Justice Parth Prateem Sahu observed that in Manoj Kumar Dwivedi (supra), the Supreme Court did not approve the approach of the High Court in closing the shops without issuing notice to affected parties. On consideration of the Rules in question, direction was issued, directing all the shop owners or sub-shop owners to close their shops on or before 31.03.2008, if they are within a radius of 100 metres or 300 feet (approx.) to a place of public resort, school, hospital, place of worship or factory or to the entrance to a bazar or a residential colony.
In Bishop Johnson School and College (supra), Rule 5(4) of the U.P. Number and Location of Excise Shop Rules, 1968, which provided that no shop or sub-shop shall be licensed within a distance of 50 metres in case of Municipal Corporations; within a distance of 75 metres in case of Municipal Councils and Nagar Panchayats; and within a distance of 100 metres in other areas from any place of public worship or school or hospital or residential colony was under consideration of Allahabad High Court. It was held that Rule 5(4) as amended by the notification dated 20.03.2008 was violative of Article 14 of the Constitution of India, and accordingly, the same was struck down.
In Arrive Safe Society (supra), the Supreme Court had observed as follows :
“7. The purpose of the directions contained in the order dated 15.12.2016 is to deal with the sale of liquor along and in proximity of highways properly understood, which provide connectivity between cities, towns and villages. The order does not prohibit licensed establishments within municipal areas. This clarification shall govern other municipal areas as well. We have considered it appropriate to issue this clarification to set at rest any ambiguity and to obviate repeated recourse to IAs, before the Court.”
After the judgment of K. Balu (supra) dated 15.10.2016, the State Government had carried out an amendment in Section 17 of the Chhattisgarh Excise Act, 1915 and a new sub-section (3)(a) had been incorporated, which is as follows :
“17. Licence required for sale of intoxicant
x x x x (3) Sale or supply of liquor.-
(a) The sale of liquor shall be permitted only through licensed liquor vends, which shall not be located within 500 metres radial distance from the outer range of the National or State Highway or Service Lane along such highway and such liquor vends shall neither be directly, visible nor accessible from such National or State Highway.”
Later on, a proviso was added to Section 17(3)(a) by way of Chhattisgarh Excise (Amendment) Act, 2020, which is as follows :
“Provided that the above provisions shall not be applicable for those National / State Highways which pass within any municipal area.”
It is stated in the reply of the respondents that liquor shops are within municipal areas and therefore, there is no restriction for opening of liquor shop at the State Highway in view of decision in Arrive Safe Society (supra). It is also stated that location of the liquor shops does not violate the direction of the Supreme Court as well as notification issued by the State Government. Though the reply-affidavit was filed long back on 20.12.2021, till the hearing of the petition on 12.08.2022, no rejoinder-affidavit was filed contesting the averments , in view of the above discussions, the Court find no merit in the PIL and, accordingly, same is dismissed.