TaxTMI 
TaxTMI 
2019 (2) TMI 1758
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....ry of Puducherry, and according to him, the common grievance of the residents / people of the said locality is to forbear the respondents 1 to 3, viz., Union Territory of Puducherry represented by its Commissionercum-Secretary, Excise, Pudhucherry, Deputy Commissioner [Excise], Karaikkal, and the District Collector of Karaikkal from establishing Liquor shops or changing the business premises of Liquor Shops from Mahe Region to Karaikkal District. The petitioner, would aver that in respect of Karaikal, licenses were issued for the following category of Liquor Vending:- Retail Liquor Shops with attached Bar 45 Wholesale Liquor Shops 12 Hotel attached with Bar 6 Arrack Shop 31 Toddy Shop 29 [b] It is further averred by the petitioner that in pursuant to the Judgment of the Hon'ble Supreme Court of India, reported in 2017 [2] SCC 281 [State of Tamil Nadu rep. By its Secretary, Home, Prohibition and Excise Department Vs K.Balu], the Liquor Shops which lie close to National-State Highways, were prohibited from operating their business and therefore, the licensees of the Liquor Shops of Mahe Region had started submitting their applications ....
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.... pointing out the Rule position and raising tenable objections, the 2nd respondent did not consider the same and given a disposal to his objections by merely taking into consideration the judgment made in WA.No.1848/2003 and without citing any reason whatsoever and subsequently, the 2nd respondent, vide proceedings dated 15.06.2018, granted permission to the 4th respondent to shift his liquor business in FL-I business from Mahe region to RS.No.2/6, Ponpethy Revenue Village, Nedungdu, Karaikal and therefore, filed WP.No.15661/2018 to challenge the legality of the said order. [e] In WP.No.11767/2018, the petitioner made a challenge to the order of the 2nd respondent, viz., the Deputy Commissioner [Excise], Government of Puducherry dated 27.03.2018, raising the very same ground. Both writ petitions had been entertained and notices were ordered and obtained interim orders in the said writ petition. [f] The private respondent-4th respondent, viz., M/s.Cee Cee &Cee Cees, had filed WMP.No.20870/2018, to vacate order of interim stay dated 05.07.2018 granted in the said writ petition. The official respondents 1 to 3 had filed the common counter affidavit and after narratin....
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....inition to the word ''place'', shifting cannot be ordered from one area to another area and by according such a permission, the number of liquor shops in Karaikal is bound to increase and it is not in public interest and therefore, prayed for allowing of the writ petitions. 3 Mr.G.Ethirajulu, learned counsel appearing for the petitioner had drawn the attention of this Court to the Pondicherry Excise Act 1970 and the Pondicherry Excise Rules, 1970 and made the following submissions:- ● Section 2[22] of the Act, 1970, defines ''place'' and in the light of the limited scope of the definition, it cannot be said that the place includes the area also. ● Chapter VI of the Rules, 1970 speaks about the Sale of Indian or Foreign Liquors and Rule 113 deals with licenses and sub-rule [1] deals with F.L.-1 License and in the case on hand, the 4th respondent possesses FL-1 License. Rule 114 speaks about the Application for License and sub-rule [iii] of Rule 114 says the location of the premises where the applicant intends to conduct the business under a license. Rule 122 says about the license to be fixed in an area and Rule 141 sp....
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....i Village, Nedungadu Commune, Karaikal, Puducherry or in the adjoining area of the said village and the petitioner herein filed WP.No.15953/2017 praying for issuance of a writ of mandamus forbearing the respondents from change of business premises of liquor shop from Mahe region to Karaikal region / shifting / relocating or granting license to locate liquor shop at Karaikal, Puducherry. ➔ The Hon'ble First Bench of this Court, vide common order dated 26.02.2018, had disposed of both writ petitions and taking note of the plea made by the 4th respondent that his application for shifting is pending before the concerned authority for quite some time, had directed the concerned respondent to consider the said application and give a disposal in accordance with law, along with the objections raised by the writ petitioner, viz., Tvl.K.M.Baskar and Devamani [petitioner herein]. The Deputy Commissioner [Excise], in compliance of the said order, issued a Notice dated 23.02.2018 to the petitioner to attend the personal hearing on 01.03.2018 and accordingly, the petitioner appeared and gave a statement and it was recorded in writing. In the statement, the petitioner had stat....
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.... Rule 122, to determine maximum number of license to be granted in an area and it appears that the said exercise has not been done and on that ground also, the impugned order warrants interference and prayed for allowing of both writ petitions. 8 Per contra, Mr.A.Gandhiraj, learned Government Pleader [Puducherry] appearing for the Union Territory of Puducherry would submit that the word ''place'' as defined under section 2[22] of the Act, 1970, is only an inclusive definition and it applies to shifting from one region to another region/one place to another place also and as such, the petitioner is not having any tenable legal ground to make a challenge to the impugned order. It is the further submission of the learned Government Pleader [Puducherry] that the petitioner had placed heavy reliance on the common order dated 07.03.2003 made in WP.No.39661/2002 [cited supra] and no doubt, in the said order, it has been expressly held in paragraph No.17 that the expression ''from one place to another'' can only mean the locality or area or panchayat or Commune and will not enable shifting from a total different area and the said order has been put to cha....
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....serve dismissal on the ground of maintainability also. 11 This Court paid its anxious consideration and best attention to the rival submissions and also perused the materials placed before it. 12 The Hon'ble Supreme Court of India, in the decision reported in 2017 [2] SCC 281 [The State of Tamil Nadu rep.by the Secretary, Home, Prohibition and Excise Department and others Vs. K.Balu and another] [cited supra] had addressed the issue relating to the presence of liquor vending on National and State Highways across the Country and the alarming statistics as to the occurrence of roads accidents on account of drunk and driving and in paragraph No.24, has issued the following directions:- ''24 We accordingly, hereby direct and order as follows:- i. All States and Union Territories shall forthwith cease and desist from granting licences for the sale of liquor along National and State Highways. ii.The prohibition contained in [i] above shall extend to and include stretches of such highways which fall within the limits of a municipal corporation, city, town or local authority. iii.The existing licences which have already been renewed pri....
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....ious nature of sale of liquor along with the National and State Highways cannot be ignored. Drunken driving is a potent source of facilities and injuries in road accidents.'' 14 The Hon'ble Apex Court, in the order dated 31.03.2017, passed in the Interlocutory Applications, modified the earlier order. Subsequently, miscellaneous applications have been filed and it was argued by the respective learned counsel appearing for the applicants therein that the expression ''municipal areas'' in paragraph No.7 of the order dated 11.07.2017 was not indeed, to exclude areas within the jurisdiction of local self governing Bodies and therefore, they prayed for appropriate direction to obviate uncertainties in the applications. The Hon'ble Apex Court, having taken into account of the statement, expressed the view that the State Governments would not be precluded from determining whether the principle which has been laid down in the order dated 11.07.2017 in Arrive Safe Society of Chandigarh Vs. Union Territory of Chandigarh [SLP [C] No.10243/2017] should also apply to areas covered by Local Self Governing Bodies and Statutory Development Authorities and the Sta....
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.... and 209 and in paragraphs No.16 and 17 had held that the Licensing Authority cannot order shifting under Rule 163 or Rule 209, which has resulted in increasing number of shops in the transferred area and the expression ''from one place to another'' can only mean within the particular local area/panchayat/commune and will not enable shifting to a totally different area and the said order was put to challenge by one Kalyani as well as by the Commissioner [Excise]cum-Secretary to Government, Revenue, Government of Pondicherry and the Deputy Commissioner, Excise, Puducherry in WA.Nos.1848 and 655/2003 respectively and vide common judgment dated 06.09.2005, this Court had allowed the writ appeals and thereby set aside the above cited order passed in WP.No.39661/2002 and granted liberty to the 3rd respondent in WA.No.1848/2003 [petitioner in WP.No.39661/2002] to make a challenge in the event of any order being passed for shifting of the liquor shop in an appropriate proceedings before appropriate Forum. The 4th respondent herein, in terms of the order of the Apex Court, submitted an application dated 28.02.2017 to the Deputy Commissioner [Excise], Karaikal, praying for a....
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....uilding should be properly put up. In the considered opinion of he Court, the disposal given by the 3rd respondent, viz., the Deputy Commissioner [Excise], Puducherry, in terms of the order dated 27.03.2018, is not at all satisfactory and the said order is also not in consonance with the directions issued in the common order dated 26.02.2018 made in WP.Nos.13081 and 15953/2017. 20 The definition ''place'' found in section 2[22] of the Act, 1970, is an inclusive definition and the Hon'ble Supreme Court of India in the decision reported in 2011 [2] SCC 52 : AIR 2011 SC 428 [Delhi Development Authority Vs Bholanath Sharma] has observed that the definition may be in the form of ''means and inputs'' and it is having a very wide meaning and the prima facie use of it, excludes limitation. It is also settled position of law that the words of Statute as prima facie be given their ordinary meaning and the language or phraseology employed by the legislature is precise and plain. 21 This Court, keeping in mind, the said principles, is called upon to adjudicate whether the impugned order and the other consequential orders of the 3rd respondent, permitti....
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....ments of section 68[C] of the Act so long as the choice of the area in which and the routes in it to be run by the Corporation was made by them alone. In paragraph No.31 of the said judgment, it was observed that, ''the area in the section as meaning such ''area'' in the entire State as the Corporation should consider proper and not as the learned Additional Advocate General would read as ''area'' within a circumscribed part of the State determined by an outside authority.'' 25 In the decision reported in 1988 [Supp] SCC 342 [Collector of Customs, Calcutta Vs. M/s.Sun Industries], the Hon'ble Supreme Court, while deciding the appeal filed u/s.130-E[b] of the Customs Act, 1962, has considered the meaning of ''place'' and also considered the definition of the word ''place'', according to the Webster Comprehensive Dictionary International Edition page 694 and in paragraph No.8, observed that, ''the expression ''place'' will depend for its connotation on the context in which it is use.......The word ''place'' is generally found in conjunction with other word....
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....ected.'' 27 The interpretation now given by the official respondents is that the definition of the word ''place'' under section 2[22] of the Act, 1970, is an inclusive definition, which definition includes region also. Chapter IX deals with the lease of the right of retail vend of liquors and though the said Chapter has no application to FL-1 license, as per Rule 163, for shifting of the shop, the licensing authority may either on the application of the licensee or otherwise and for the reasons to be recorded in writing, direct shifting of a shop from one place to another and the licensee shall not be entitled to any compensation on account of such shifting. 28 In 1988 [Supp] SCC 342 [M/s.Sun Industries] [cited supra], the Hon'ble Supreme Court has observed that, ''the expression ''place'' will depend for its connotation on the context in which it is used. The word is generally found in conjunction with other words which give it a colour, and is usually controlled by its context.'' 29 In the Principle of Statutory Interpretation 14th Edition, in Chapter II Synopsis II, while dealing with the natural and grammatica....
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....18, has been communicated to the 4th respondent alone and insofar as the earlier communication dated 07.06.2018, it was between the Deputy Commissioner [Excise], Puducherry and the Deputy Commissioner [Excise], Mahe, with a copy marked to the Deputy Commissioner [Excise], Karaikal and as such, it is not necessary on the part of the petitioner to make a challenge to the said orders. The learned counsel for the 4th respondent has also placed reliance upon the order dated 23.02.2018 made in WP.No.4067/2018 [R.Senthilkumar Vs. Union Territory of Puducherry represented by the Commissioner, Department of Excise, Puducherry and another],, wherein, a writ of mandamus forbearing the respondents from reestablishing or re-locating or grant a license to liquor shop at Madukkarai village, Puducherry or its adjoining area. However, the points urged herein, have not been made in the said writ petition and the said writ petition came to be disposed on the facts of the said case and as such, it is distinuguishable. 33 Insofar as the submission made by the learned counsel for the petitioner as to the non-compliance of Rule 122 of the Rules 1970, in pursuant to the order dated 15.11.2018 passed in....