Bombay High Court Imposes ₹10K Cost On Nasik Resident For Challenging Permission For Opening Of Country Liquor Bar In Residential Area

Justice Milind N. Jadhav, while dismissing the writ petition, said the manner in which the Petition has been drafted is an abuse of the process of law. The petition had challenged Nasik Collector's decision to allow a restaurant and bar-owner's application for shifting of CL III license (License for retail sale of Country Liquor) from existing premises to the new premises. 

"It is seen that the Petition proceeds on the basis of the violation of fundamental rights of the Petitioner under Article 14 and Article 21 of the Constitution of India. However, Petitioner has not given any event or incident as to how his fundamental rights are violated. On the contrary the Respondent No. 3’s right under article 19(1)(g) to carry on trade and business by following the due process of law is in fact hampered on the allegations of the Petitioner,” said the court.

The Case

One Kailash Suryavanshi has been running a restaurant and bar Hotel Mohana Garden since 1996. It was shut down in accordance with a Supreme Court decision in 2016 as it was close to the national highway.

Later, a wall was constructed on three sides of the plot to restrict entry from the highway and a fresh application for license was made. Suryavanshi also procured CL III license under the Maharashtra Prohibition Act, 1949 for which the restriction of the distance from the highway was not applicable. He then made an application to shift his license and conduct the business of CL III license separately from the Hotel Mohana Garden Bar & Restaurant.

The Collector, State Excise Department, Nasik, with the consent of the Commissioner, permitted Suryavanshi to conduct his business separately on the basis of the CL III license and shift the license from Ozar, Taluka Niphad, District Nashik to Taluka Peth, District Nashik, on the same plot as Hotel Mohana.

Allegations

Rahul Giridhar Pathade, the petitioner, resides near Hotel Mohana. He filed a revision application challenging the Collector’s order. The Minister of State Excise upheld the Collector’s order. He then approached the high court.

Advocate Veena B. Thadani for the petitioner submitted that the Peth Nagar Parishad has not given its NOC for commencement of a country liquor bar. By virtue of shifting of the CL III license, Suryavanshi has violated the distance condition from the national highway in respect of the FL III license (License for sale at restaurant or hotel of imported and Indian manufactured foreign liquor), she argued.

Thadani also submitted, after grant of license, Suryavanshi has demolished the wall on the southern side thereby having direct access to the subject premises from the National Highway. The court was also told Suryavanshi has been permitted to commence the business of selling Country Liquor in a predominantly residential area.

Advocate Santosh L. Patil for Suryavanshi submitted that the petitioner has no locus. He has not challenged the PWD report regarding the distance of the business from the highway, the court was told. Patil further contended that the petition is not maintainable since the petitioner did not object to the application for shifting of the CL III license. It was only after it was allowed that he filed the current petition, the counsel said.

Assistant Government Pleader P. G. Sawant said that the application was verified through the inspector for state. The subject premises were at a distance of 235 metres from the national highway and there is no educational, or religious institution, or statue of any national leader within 100 metres from the premises.

Ruling

The court noted that the petition was not filed as a public interest litigation. Though, petitioner argued that having a country liquor bar in a predominantly residential area is detrimental to the residents, these submissions are not mentioned in the pleadings, the court said.

“Petitioner never objected or was not a party to the original Application seeking transfer of the CL III license from Ozar to the subject premises in Peth. The Petition as seen is not filed by the Petitioner in a representative capacity on behalf of the residents in the area. Therefore, the Petitioner has no locus standi to file the present Petition,” the court said.

The court said that petitioner alleged violation of his fundamental rights under Articles 14 and 21 of the Constitution but has not shown any event or incident to show how his rights have been violated.

The record indicates that the licensing authority followed due process of law in granting the license, the court said. All necessary documents, application, NOC, permissions, etc. have all been attached in Suryavanshi’s affidavit and is confirmed by the state, the court observed.

“Record clearly indicates that the FL III license premises and CL III license premises are both running independently from Plot No. 284 with separate entrances and there is no violation of any conditions or rule by Respondent No. 3. That both the premises are separate and distinct. Needless to state that if there is any violation by Respondent No. 3 of any rules under the Maharashtra Country Liquor Rules 1973, the Statutory Authorities shall take cognizance and action in accordance with law”.

Case no. – Writ Petition No. 12083 of 2019

Case Title – Rahul Giridhar Pathade v. Collector of Nasik, State Excise Department and Ors.

Citation: 2023 LiveLaw (Bom) 65