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CASE NO.: Appeal (civil)  3059 of 2006

PETITIONER: Vikrama Shama Shetty

RESPONDENT: State of Maharashtra & Ors

DATE OF JUDGMENT: 20/07/2006

BENCH: ARIJIT PASAYAT & R.V. RAVEENDRAN

JUDGMENT: J U D G M E N T (Arising Out of SLP (C) Nos. 23983-23984 of 2005)  

ARIJIT PASAYAT, J.  

Leave granted.

Challenge in this appeal is to the legality of judgment  rendered by a Division Bench of the Bombay High Court in  Appeal Lodging No.75/2005 in Writ Petition No.2736/2004.   

The question that arose for consideration in the writ  petition and the appeal therefrom is whether the revisional  authority under The Bombay Prohibition Act, 1929  (hereinafter referred to as the ’Act’) was right in refusing FL-III  license to the appellant on the ground that the distance  between the establishment of the appellant and the entrance  to a mosque is less than 75 metres. Learned Single Judge held  on the basis of the report given by the Court Commissioner  that the distance was less than 75 metres and, therefore, in  view of what is provided in Rule 45(1-C) of the Bombay Foreign  Liquor Rules, 1953 (in short the ’Rules’) the license could not  have been granted. The view was upheld by the Division Bench  by the impugned judgment.           

Background facts in a nutshell are as follows:

Appellant applied for obtaining license (permit) to enable  him to sell foreign made liquor since no objection certificate  was obtained from the mosque trust for grant of such license.   The Commissioner of Police raised objection to the grant of the  license. The Collector of Bombay City, State Excise  Department rejected the application on the ground that there  was a religious institution within the 60 metres from the  restaurant. An appeal was preferred under Section 137(2) of  the Act to the Commissioner of Prohibition and Excise. The  appeal was allowed by order dated 26.3.1999 on the basis of  certificate issued by the Chartered Architect certifying that the  distance between mosque and the restaurant was 75.43  metres. On the basis of the directions given by the Appellate  Authority license was granted on 1.4.1999. After grant of  license, appellant filed an application before the Collector for  issuance of public entertainment license. The Commissioner of  Police filed revision before the Minister of State for Excise for  revoking the order passed by the Commissioner granting FL-III  license. The revisional authority set aside the order of the  Commissioner and the order of the Collector rejecting the  license was confirmed. A Writ Petition was filed before the

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High Court, which was heard by a learned Single Judge.    Basic issue raised related to the distance, and the alleged  grant of license to similarly situated persons whose  establishments were situated less than 75 metres. A Court  Commissioner was appointed to find out the factual details.  On the basis of his report, learned Single Judge dismissed the  writ petition holding that the distance of 75 metres is  mandatory as prescribed by rule 45(1-C) of the rules.  From  the report of the Commissioner it is clear two entrances (first  and third entrance) to the mosque are within the mandatory  distance of 75 metres.  In the appeal filed before the Division  Bench stand was taken that the entrances are not frequently  used and, therefore, distance of second entrance only was to  be taken into consideration for the purpose of measurement. It  was pointed out that main entrance to the mosque is from  Narsi Natha Street, which is at a distance of 98.47 metres, i.e.   more than 75 metres.  The Division Bench concurred with the  findings of the learned Single Judge.  Reference was made to  the Commissioner’s report and certified photographs.  

In support of the appeal Mr. U.U. Lalit, learned senior  counsel submitted that the language of Rule 45(1-C) makes  the position clear that reference is made to the path by which  pedestrian ordinarily reaches the religious institute.  Since the  two entrances are not ordinarily used and are only sometimes  used, the distance has to be reckoned from the second  entrance gate which is admittedly beyond 75 metres. It was  further submitted that the mosque management had no  objection to the functioning of the appellant’s restaurant.  In  fact, they have given their consent. The High Court did not  take note of the fact that in some other cases establishments  were functioning within the limit of 75 metres, and there is no  reason to make a departure so far appellant is concerned.  The  Commissioner’s order is in essence final. After long lapse of  time revision petition was filed by the police authorities and  the same should not have been entertained.   

Learned counsel for the respondent-State and its  functionaries supported the order.    Rule 45(1-C) is the pivotal provision and it reads as  follows:               

"(1-C) No licence under sub-rule (1B)  shall be granted in respect of any hotel or  restaurant which is situated within a distance  of seventy-five meters from any educational or  religious institution or from any bus stand,  station or deport of the Maharashtra State  Road Transport Corporation or from the  boundary of any National or State highway :

Provided that nothing contained in this  sub-rule shall apply in respect of an existing  hotel or restaurant for which a licence in Form  FL-III is held by the Manager or Proprietor  thereof immediately before coming into force of  the Bombay Foreign Liquor (Amendment)  Rules, 1990.

Explanation :- For the purposes of this  sub-rule \026

(i)     "educational institution" means any  pre-primary, primary, or secondary school

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managed or recognized by any local authority  or the State Government or the Central  Government and any college affiliated to any  University established by law, but does not  include any private coaching institution;

(ii)    "religious institution" means an  institution for the promotion of any religion  and includes a temple, math, mosque, church,  synagogue, agiary or other place of public  religious worship which is managed or owned  by a public trust registered under the Bombay  Public Trusts Act, 1950 (Bom   xx/x of 1950) and included such other  religious institutions as the State Government  may by order specify in this behalf;

(iii) The distance referred to in clause (a)  of this sub-rule shall be measured from the  mid-point of the entrance of the hotel or  restaurant along with the nearest path by  which the pedestraian ordinarily reaches, -

(a) the mid point of nearest gate of  the institution if there is a compound  wall and if there is no compound wall, the  midpoint of the nearest entrance of the  institution, or

(b) the mid-point of the nearest gate  of the bus stand, station or depot of the  depot of the Maharashtra State Road  Transport Corporation if there is a  compound wall and if there is no  compound wall, the nearest point of the  boundary of such bus stand, station or  depot, or

(c) the boundary of the National or  State highway".                    

A bare reading of the provisions makes the position clear  that the distance requirement is mandatory.

Initially in pursuance of an order dated 17th December  2003 passed by a learned Single Judge of the High Court, joint  measurements were taken and the report of the joint  measurement dated 19th December 2003 is that the distance  is less than 75 meters.  Again when the matter was before the  High Court for admission, an order was passed on 3rd  November, 2004, by a learned Single Judge by which the  Prothonotary and Senior Master was directed to appoint an  Architect from the panel of Architects maintained by the Court  to carry out a measurement in terms of Rule 45(1-C).  The  Architect submitted his report together with a plan before the  High Court.

The report of the Architect shows that the Hotel  belonging to the Petitioner abuts Abhaychand Gandhi Marg  and the mosque is located across the road at the junction of  Abhaychand Gandhi Marg and Narsi Natha Street. The  mosque has three entrances out of which two are from a  common passage having access to Narsi Natha Street. The  third entrance is from Abhaychand Gandhi Marg.

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The Court Commissioner has reported that distance from  the first entrance to the mosque from Narsi Natha Street upto  the establishment of the appellant is 68.45 meters. Though  the door to the mosque was closed when the Commissioner  went for inspection, the report records that the door was  opened on the request of the Commissioner and it was found  that it directly opened into the prayer hall of the mosque.

The second entrance to the mosque from Narsi Natha  Street is at a distance of 98.47 meters. The third entrance to  the mosque from Abhaychand Gandhi Marg is at a distance of  60.06 meters.  The report of the Commissioner notes that this  door is generally closed and is occasionally used as an exit.   The Commissioner has further recorded that during the course  of inspection, he was informed that generally people enter the  mosque through the second entrance.         

From the report of the Commissioner appointed by the  High Court it is clear that two entrances to the mosque are  within the mandatory distance. It may be that, as rightly  noticed by learned Single Judge, on a particular occasion one  of the entrances may be closed. It has also been noted that  one of the entrances is used as an exit. The stress is on the  nearest distance and not the most used distance.  An attempt  was made to show that the second entrance is most used one.   Though there was an earlier report, we find that the same was  not accepted by the High Court at some stage and, therefore,  the Court Commissioner was appointed.  There is no challenge  to the correctness of the Court Commissioner’s report. That  being so, the learned Single Judge and the Division Bench  were justified in their view that the restaurant is situated  within the prohibitory distance of 75 metres.   

Another plea which was emphasized was the existence of  some restaurants to whom licences have been granted.

"As highlighted by learned counsel for the appellants,  even if it is accepted that there was any improper permission,  that may render such permissions vulnerable so far as 32  vessels are concerned. But it cannot come to the aid of  respondents. It is not necessary to deal with that aspect  because two wrongs do not make one right. A party cannot  claim that since something wrong has been done in another  case; direction should be given for doing another wrong. It  would not be setting a wrong right, but would be perpetuating  another wrong. In such matters there is no discrimination  involved. The concept of equal treatment on the logic of Article  14 of the Constitution of India, 1950 (in short ’the  Constitution’) cannot be pressed into service in such cases.  What the concept of equal treatment presupposes is existence  of similar legal foothold. It does not countenance repetition of  a wrong action to bring both wrongs or par. Even if  hypothetically it is accepted that wrong has been committed  on some other cases by introducing a concept of negative  equality respondents cannot strengthen their case. They have  to estalbish strength of their case on some other basis and not  by claiming negative equality." (See Union of India and Anr. v.  International Trading Co. and Anr.  (2003 (5) SCC 435).   Stand that the revision was at the instance of police  authorities is clearly undisputed. Section 148 of the Act  empowers State Government to call for and examine records of  any proceeding before any Prohibition Officer for the purpose  of satisfying itself as to correctness, legality or propriety of any

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order passed in and as to the regularity of any such  proceedings.  The power of suo moto revision is clearly vested  in the State Government. If it acted on the basis of petition  filed by police authorities, it cannot be said that the exercise  was beyond jurisdiction.

Looked at from any angle the orders passed by learned  Single Judge and Division Bench do not suffer from any  infirmity to warrant interference.   

The appeal fails but in the circumstances without any  order as to costs.