The Uttarakhand High Court has observed that although it is necessary to generate revenue for the development of the State, at the same time, the State is duty bound to consider the rights of the public at large.
The Division Bench of Chief Justice Vipin Sanghi and Justice Ramesh Chandra Khulbe disposed of a Public Interest Litigation (PIL) filed by one Suresh Chandra Goyal praying for the following relief:-
1) To issue a writ, order or direction in the nature of mandamus directing the respondent No. 2 (District Magistrate, District Nainital) and respondent No. 5 (Senior Superintendent of Police, District Nainital) to completely and permanently restrain the illegal parking of any types of vehicle including the day to day parking of the vehicles by the customers of respondent no.6 (the owner of one Bar and Restaurant) and also restrain the installation of push/strokes/ trolleys on the main public Mandi-by-pass road, near Transport Nagar, Rampur Road, Haldwani District Nainital.
- To issue a writ, order or direction in the nature of mandamus directing the respondent No. 3 (Excise Commissioner) and respondent no. 4 (District Excise Officer) to suspend/cancel the license issued to respondent no.6 Laziz Bar and Restaurant, to serve beer and wine, until and unless he makes permanent arrangement for the parking of vehicles of the customers, who visit the Laziz Bar and Restaurant, situated at main public Mandi-by-pass road, near Transport Nagar, Rampur Road Haldwani District-Nainital.
- To issue a writ, order or direction in the nature of mandamus directing the respondent No. 3 and 4 not to renew the license of respondent no. 6.
The facts of the case is that respondents-State has granted license to respondent no.6 to run beer and wine bar adjacent to the residential area, situated at Mandi -By-Pass Road,near Transport Nagar, which is a Highway and connects the Main Rampur Road at Haldwani with Main Bareilly Road at Haldwani City. According to the petitioner, the bar cannot be permitted to operate within 100 metres of the entry gate of a residential colony. Moreover, the owner of the Laziz Bar, i.e respondent no.6, has not made any arrangement for parking of vehicles of the customers, which results in traffic jam on the main public road i.e the Mandi-By-Pass Road near Transport Nagar connecting the Main Rampur Road at Haldwani with Main Bareilly Road at Haldwani City, and has also become a cause for accidents. The written complaints made by the petitioner also went in vain. Being aggrieved, the PIL has been filed by the petitioner.
In the counter-affidavit filed on behalf of respondent no.6, all the averments made in the petition have been denied. It is stated the liquor is sold only inside the bar. It is also stated that the said respondent meets the eligibility criteria of sitting area of the bar, and that parking is in accordance with the norms, and that Special Security Guards have been deployed to ensure smooth parking only in the place meant for that purpose. It is also stated that there is no residential colony existing within 100 metres of the bar.
The State has also filed its counter and supplementary counter-affidavit. In the counter-affidavit filed by the District Excise Officer, Nainital on behalf of the District Magistrate, Nainital, it is stated that the license to respondent no.6 to run the bar and restaurant was given at the relevant time after following all the rules, after ensuring that all the directions contained in the prevailing government orders; and the formalities were scrutinized and complied with by the then Excise Officer.
The petitioner has also filed his rejoinder affidavit to the supplementary counter affidavit filed on behalf of respondent no.2 to 4 wherein it is stated that after suppressing the real controversy and with a view to avoid any action against respondent no.6, the said supplementary counter affidavit has been filed. It is stated that the respondent no.6 has been issued the license to run the liquor and beer bar at the entrance of a residential colony which is in contravention of the prevailing Excise Rules and Government Orders, after suppressing the real facts, and on the basis of false reports.
It is the submission of counsel for the petitioner that the respondent no.6 is running the restaurant and Bar in contravention of the policy guidelines issued by the government. Due to improper parking of vehicles, it results in traffic jam on the main highway. It is also submitted that the said restaurant is running within 100 metres’ radius of the residential area which is just at the entrance of residential colony, and that has caused great fear and agony to people, especially, to the women and girls residing in the vicinity.
Per contra, the counsel for the respondent no.6 argued that at the time of issuing the licence, there was no residential area, rather it was a main highway leading to the Mandi Bypass. It is further argued that the respondent no.6 has also purchased a big plot, adjacent to the restaurant, so as to ensure proper parking and sitting arrangement, and he is running the wine shop and restaurant as per norms. It is also argued that the petitioner himself illegally constructed a banquet hall near the present shop, which creates problem, not only for the local residents, but also for the public at large. The present petition is actually a private interest litigation filed in the garb of public interest.
The counsel, appearing on behalf of respondent nos.1 to 5, has argued that the Licensing Authority granted the licence to respondent no. 6 in 2011 as per the rules and the government orders then prevailing.
From the perusal of the above documents the following facts do emerge to the Court :-
A) The District Magistrate, Nainital issued a license for running Bar and Restaurant in favour of respondent no.6 on 04.07.2011.
B) The said licence was renewed from time to time, and lastly it was renewed in the year 2022 which is valid till 31st March 2023.
C) As per Rule 5(4) the UP Number and Location of Excise Shop Rules, 1968, no new shop shall be licenced in close proximity to a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazaar or a residential colony.
D) Rule 5(6) the UP Number and Location of Excise Shop Rules, 1968 casts a duty on the authorized officer to make periodical inquiry as to whether the position of existing shop is in conformity with the policy under these rules.
E) Rule 5(6) also stipulates, if the authorized officer finds that the location of shop is against the policy under these rules, the authorized officer shall take steps to allocate a more suitable site and also will arrange for its removal.
F) At the time of issuing the licence on 04.07.2011, no residential colony was found within 100 metres from the said restaurant.
G) As per the inspection report submitted by the Excise Inspector on 15.06.2021, there is a 12 feet road adjacent to the Bar and there is a residential colony also on both sides of the road.
H) As per the report of the Excise Inspector dated 15.06.2021, the residential colony falls within 100 meters of the said Bar.
I) As per G.O. No. 311/XXIII/2008/18/2008 dated 16.06.2008, there is a prohibition for granting license of bar within radius of 100 metres of a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazaar or a residential colony.
J) The Inspection report submitted by the Excise Inspector dated 15.06.2021 was also approved by the District Magistrate, Nainital vide its letter dated 25.06.2021.
From the above facts, the Bench came to the conclusion that the location of the Bar and Restaurant definitely comes within 100 metres’ radius of the residential area.
The submission of counsel for respondent no.6 that merely because the residential houses have come up later, cannot be a reason to dislocate the respondent no.6, has no merit before the Court since Rule 5 (6) makes it clear that a periodical inquiry, into the aspect of the liquor shop being in the proximity of, inter alia, a residential colony, shall be conducted, and if an objection is raised and found justified, the liquor shop shall be relocated.
The submission that because there is no master plan of Haldwani in place, there is haphazard development and houses/residential colonies came up suddenly also has no merit to the Court as the Bench held that the lack of a master plan also enables persons to set up liquor shops at locations, where they may not have been entitled to set it up in the first place. In any event, the legislative policy clearly is to give precedence to and prioritize residential colonies, schools, places of public resort, hospital, places of worship or factory and bazaars. “Respondent No. 6 cannot be heard to say that its licence should be continued, irrespective of the development of the aforesaid nature, when there is nothing to show that such development is against the law.”
Therefore, the Court observed that the licensing authority had renewed the licence against the rules as well as the Government Orders. Since the license is valid till March 31, 2023, so the Bench grants time to respondent no.6 to shift the Bar and Restaurant by 31.03.2023. Accordingly, the High Court directed the Licensing Authority not to renew the licence of respondent no.6, after 31st March 2023, for running the bar and restaurant at the existing place.
In conclusion the Court hoped and trust that, in future, the Licensing Authority of the State will renew or issue fresh licence(s) strictly as per the prevalent rules, regulations and GOs.