TaxTMI 
TaxTMI 
2013 (10) TMI 384
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....espondent Nos. 5 and 6 herein, namely, Muslim Khawateem Khilafat Tanzeem, a Society and Nazia Elahi Khan, President of the said society respectively, filed a Writ Petition as Public Interest Litigation, with the prayers to cancel, rescind and revoke the aforesaid temporary license issued to the appellant. The plea raised was that it was not open for the appellant to run a liquor bar in the said restaurant which was in the vicinity of religious places and school, namely, Gurudwara Bara Sikh Sangar, Shree Digambar Jain Vidyalaya, Shree Jain Swetambere Panchayati Temple, Shree Laxmi Narayan Mandir, Shree Shree Satya Narayanji Mandir and also a mosque. These respondents in the said Writ Petition alleged that the aforesaid religious places and school were situated within the distance of 550 feet of the premises where the license to operate the bar by the Excise Department was granted to the appellant and this was in violation of Rule 8 of the West Bengal Excise (Selection of New Sites and Grant of License for Retail Sale of Liquor and Certain Other Intoxicants) Rules, 2003 (hereinafter referred to as "Rules of 2003"), as amended in the year 2004. Amended Rule 8 of the said Rules imposed....
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....ules 1993, in its original form, there was bar for grant of license for retail sale of spirit or any other intoxicant at a new site which is situated in "close proximity" to an educational institution or traditional place of worship, hospital or bathing ghat for public use. There was no specific distance stipulated therein, defining the expression "close proximity" in arithmetical/ numerical terms. However, when Rules, 2003 came into force in supersession of earlier Rules 1993 with effect from 29.9.2003, the words "close proximity" were replaced by the expression "vicinity". The term "vicinity" was defined as a distance of 300 ft. Rule 8 of Rules, 2003 was amended with effect from 15.4.2004 and as per the amended provision, distance of 1000 ft. was prescribed in the definition of 'vicinity'. Thus, there was a shift from the position contained in Rules, 1993 which prohibited the grant of license for the retail sale of spirit or any other intoxicant in "close proximity" from the educational institution and religious places etc. to the grant of license within "vicinity of such places" and the term 'vicinity' was explicitly and precisely defined to be a distance of 300 ft. in the uname....
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....bove notification, by the concerned District Authorities for grant of Foreign Liquor 'On' Shop Licenses and not rejected by the Collector may kindly be sent to this Directorate, if not sent already, after suitable processing as per Rule 8(1) of the Excise Department's Notification No.800-EX dated 29.7.2003. (b) All the petitions received before 15th April, 2004 duly rejected by this Directorate and/or the Collectors due to coming into force of the Excise Department's Notification No. 527-EX dated 02.04.2004 should also be sent to this Directorate for further consideration, after processing of the same in terms of Rule 8(1) of the Excise Department's Notification No.800-EX dated 29.7.2003; (c) If the licenses in respect of Foreign Liquor 'On' Shops duly approved by the Govt. In the Excise Department and communicated to the district authorities by this................................also be sent to this Directorate after necessary processing as per Excise Department's Notification No.800-EX dated 29.7.2003. (d) It has also come to the notice of the undersigned that several applications for grant of Foreign Liquor 'On' Shop Licenses received by the District Excise Authorities are b....
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.... not taken any steps by sending any reminder or followed it up with any request to the department to grant him bar license on the basis of said application. This position remained even during the operation of Rules, 1993 which remained operative for 10 years and were replaced by Rules, 2003. During this period also, no steps were taken. After Rules, 2003 there was an amendment in Rule 8 thereof. Thereafter the Excise Commissioner, West Bengal issued clarification in the year 2005 in respect of applications which were submitted pursuant to Rules, 2003 but either had not been dealt with upto the amendment notified on 2.4.2004 or were rejected after 2004 applying the amended Rules. Though, this circular was totally unconnected and unrelated to the case of the appellant, at this stage, the appellant woke up from slumber and started insisting that his application submitted in the year 1992 be considered. The appellant very well knew that on the basis of new Rules he would not be able to get bar license. Therefore, the strategy adopted was to resuscitate the application of 1992 and demand its consideration on the basis of un-amended rules. In fact, Mr. Kailash Vasdev, learned senior coun....
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....ing prior to the year 1994. Over and above, the State Government during the year 1998, from 3.2.1998 to 21.11.1998, had received 52 applications for establishing compounding, blending and bottling units in IMFLs in various parts of the State. The Excise Commissioner vide his letter dated 25.11.1998 had reported that there was an unprecedented flow of applications, that was the situation prevailing in the year 1998, a factor which was taken note of in not entertaining the respondent's application, whether it was submitted on 12.1.1987 or on 22.11.1998. We cannot, in any way, activate an out-modeled, outdated, forgotten liquor policy of 1998, in the year 2013, by a Writ of Mandamus." 13. We fail to comprehend as to how the application filed in 1992 could be considered in 2010. In any case, as per the dicta aforesaid, when the request of the appellant was considered in the year 2010, Rules of 2003 as amended in 2004 had to be applied. On the basis of these Rules, the appellant could not have been granted for foreign liquor bar and restaurant license as there are many religious and educational institutions within the 1000 ft. of place from where the appellant is operating. 14. Mr. Ve....