SOMDEV KAPOORversusSTATE OF WEST BENGAL & ORS.

                         [2013] 10 S.C.R. 452


A                         SOMDEV KAPOOR
                                    v.
                 STATE OF WEST BENGAL & ORS.
                   (Civil Appeal No. 9016 of 2013)
                          OCTOBER 7, 2013
B
          [K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]

        West Bengal Excise (Selection of New Sites and Grant
  of Licence for Retail Sale of Liquor and Certain Other
c Intoxicants) Rules, 2003 - r.8 (as amended in 2004) -
  Application for issuance of licence for retail sale of liquor
  made in 1992 - Granted in 2006 - PIL seeking cancellation
  of licence being in violation of amended r. 8 - High Court held
  that licence was in violation of amended r. 8 which prohibited
0 grant  of licence for retail sale of liquor at a new site within 1000
  feet from educational institutions/religious places - On appeal,
  plea that application having been made in 1992 rules
  applicable at that time were applicable and not subsequent
  amended rules - Held: Rules which are prevalent on the date
E when the application is considered are to be applied and not
  the date when the application is made - In view of the facts,
  application of the appellant was to be governed by new Rules
  of 2003, as amended in 2004 - On the basis of the amended
  new Rules, appellant could not have been granted the licence
  - West Bengal Excise Rules, 1993 - r. 8 - Circular dated
F 28.9.2005 issued by the Excise Commissioner, West Bengal.

       The appellant made an application on 28.8.1992
  before Collector of Excise, for issuance of licence to
  operate foreign liquor bar and restaurant. He sent
G another application on 8.9.2005 giving reference to the
  earlier application. Thereafter, he was given temporary
  licence to run the liquor bar. Respondent Nos.5 and 6, a
  Society and its President respectively, filed writ petition
  as Public Interest Litigation seeking cancellation of the
H                                  452
SOMDEV KAPOOR v. STATE OF WEST BENGAL & 453
                  ORS.
licence, on the ground that the licence was in violation          A
of r.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, as amended Jn the year
2004, whereby there was bar on grant of license for the
retail sale of liquor or any other intoxicant at a new site       B
within 1000 feet from any college/educational institution/
religious places. High Court allowed the petition. Hence
the present appeal.

    Dismissing the appeal, the Court
                                                                  c
     HELD: 1. West Bengal Excise Rules, 1993 were
promulgated vide Notification dated 22nd March 1993. As
per Rule 8 of Rules 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              D
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 West Bengal Excise (Selection of             E
New Sites and Grant of License for Retail Sale of Liquor
and Certain other Intoxicants) Rules, 2003 came into
force in supersession of earlier Rules of 1993 with effect
from 29.9.2003, the words "close proximity" were
replaced by the expression "vicinity". The term "vicinity"        F
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            G
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.
                                                                  H
    454     SUPREME COURT REPORTS            (2013] 10 S.C.R.


A in the unamended Rule 8 of Rules, 2003 and increased
  to 1000 ft. by way of amendment in the year 2004, from
  educational institution and religious places. [Para 6] [458-
  E-H; 459-A-B]
       2. It cannot be said that in view of the Circular dated
8 28.9.2005 issued by the Excise Commissioner, West
  Bengal to its functionaries, pending applications were to
  be considered on the basis of unaamended Rules, 2003.
  This circular has no application to the facts of the present
  case. The circular deals with the situation where
C applications for grant of license had been submitted after
  29.7.2003 ·when Rules, 2003 were promulgated
  prescribing a distance of 300 ft. in Rule 8(1) of those
  Rules to define 'vicinity' and before this definition of
  "vicinity" was amended vide Notification dated 2.4.2004.
D [Paras 7-9] [459-E-F; 461-G-H; 462-A]
         3. Though the application of the appellant was made
    in the year 1992, it was processed much after 2004 and
    the license is also granted after 2004. The application of
E   ijle af'pellant, was submitted in 1992 but had not been
    taken up for consideration at all for number of years, even
    the appellant had 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
F   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, issued clarification in the year
G   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, the
    circular was totally unconnected and unrelated to the
H   case of the appellant, at this stage, the appellant woke up
                                                     .:-; '


 SOMDEV KAPOOR v. STATE OF WEST BENGAL & 455
                   ORS.
  from slumber and started insisting that his application       A
  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           B
  rules. [Paras 7 and 10] [459-D; 462-E-H; 463-A-B]

     4. The application of the year 1992 was not even
proper and valid application as no fee etc. was paid along
with the said application. That would be the reason that        C
the said application was never processed. The
application has to be supported by appropriate fee which
was not given earlier. Such a fee was deposited only in
the year 2006 in compliance with the provisions of Rule
9 of the Rules, 2003. As per the copy of letter which he
enclosed along with communication dated 1.11.2004 and           D
it shows that only a letter was submitted, though, as per
the Rules, application was also not made in Form I or
Form II annexed with these Rules. [Para 10] [463-B-D]

     5. Rules which are prevalent on the date when the E
application is considered are to be applied and not the
date when the application is made. Thus the appellant had
first made applicati.on on 28.8.1992 and then again on
8.9.2005 giving reference to the first application. The first
application was not even proper application and second F
application was dated 8.9.2005. It had to be governed by
the new Rules, namely, Rules 2003, as amended in 2004.
On the basis of these Rules, the appellant could· not have
been granted for foreign liquor bar and restaurant license
as there were many religious and educational institutions G
witl1in the 1000 ft. of place from where the appellant was
operating. [Paras _11-13] [463-E-G; 464-G]

   State of Kera/a and Ors. vs. Kandath Distilleries 2013 (2)
SCALE 789 - relied on.
                                                                H
    456       SUPREME COURT REPORTS                [2013] 10 S.C.R.


A                         Case Law Reference:
          2013 (2) SCALE 789       relied on              Para 12
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    9016 of 2013.
B
        From the Judgment and Order dated 14.12.2012 of the
    High Court at Calcutta in a Public Interest Litigation being W.P.
    No. 9 of 2011.

      K.K. Venugopal, Jaideep Gupta, Kailash Vasdev, Kalyaan
C Bandopadhyay, R. Aggarwal, Yadunandan Bansal, Abhijat P.
  Medh, Shneyans Singhvi, Umrao Singh Rawat, Saurabh Trivedi,
  Anip Sachthey, Snonik Singhvi, Suryanarayana Singh, Pragati
  Neekhra for the appearing parties.

D         The Judgment of the Court was delivered by

          A.K. SIKRI, J. 1. Leave granted.

       2. The appellant herein is a proprietor of a Hotel and
  Restaurant under the name and style of "BHIMSAIN VAISHNAV'
E which is being run since 1954. On 28th August 1992, he made
  an application before the Collector of Excise, Calcutta (now
  known as Kolkata) for issuance of license to operate foreign
  liquor bar and restaurant. This application, for the reasons not
  available on record, kept pending for number of years.
F Thereafter, on 1.11.2004 he made a request that his earlier
  application dated 28th August 1992 may be processed and he
  be granted foreign liquor bar and restaurant license. It was
  followed by another reminder dated 8.9.2005. Thereafter, the
  appellant was given temporary license to run the liquor bar in
G January 2006, purportedly on the basis of his application
  submitted in the year 1992.

      3. Respondent Nos. 5 and 6 herein, namely, Muslim
  Khawateem Khilafat Tanzeem, a Society and Nazia Elahi Khan,
H President of the said society respectively, filed a Writ Petition
SOMDEV KAPOOR v. STATE OF WEST BENGAL & 457
           ORS. [A.K. SIKRI, J.]
as Public Interest Litigation, with the prayers to cancel, rescind A
and revoke lbe aforesaid temporary license issued to the
appellant. The ·-pfea raised was t~at 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 B
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             c
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 D
arnended in the year 2004. Amended Rule 8 of the said Rules
imposed a ban on the grant of license for the retail sale of liquor
or any other intoxicant at a new site which is within 1000 feet
from any college/educational institution /religious places. This
plea has been accepted by the High Court and vide impugned
judgment dated 14th December 2012, the Excise Department E
is directed not to renew the license of the appellant which was
expiring in the month of January 2013.

     4. It is not in dispute that there are few religious places as
well as a school within a distance of 1000 feet from the              F
restaurant of the appellant where he runs his liquor bar as well.
The precise distance of these places from the appellant's
restaurant is as under:

           Gurudwara Bara Sikh Sangar is at a distance of             G
     430 ft., Shree Digambar Jain Vidyalaya is at a distance
     of 580 ft., Shree Jain Swetambar Panchayati Temple is at
     a distance of 630 ft., Shree Laxmi Narayan Mandir is at a
     distance of 730 ft., and Shree Shree Satya Narayanji Ka
     Mandir is at a distance of 780 ft.
                                                                      H
    458      SUPREME COURT REPORTS                [2013] 10 S.C.R.


A      5. It is also not in dispute that Rule 8 proscribes grant of
  license for retail sale of liquor or any other intoxicant at a new
  site which comes within the range of 1000 ft. However, case
  set up by the appellant is that since the application for grant of
  license was filed in the year 1992, the rules which were
B prevailing at that time would be applicable to the case of the
  appellant. Under Rules, 1993, the restriction was within a
  distance of 300 ft. from such places and since the religious
  places and school pointed out by respondent Nos. 5 and 6 are
  situated beyond the vicinity of 300 ft., the license was validly
c granted. In this scenario, the question that falls for determination
  is as to whether Rules, 1993 would govern the case of the
  appellant or the license was to be granted keeping in mind
  Rules, 2003 (as amended). Before we embark on this issue, it
  would be essential to tread the events leading to the
  promulgation of the aforesaid Rules and certain Government
0
  instructions issued in the matter.

        6. As mentioned above, the appellant had applied for
  Foreign Liquor Bar and Restaurant license on 28.8.1992.
  Within few months thereof, West Bengal Excise Rules, 1993
E were promulgated vide Notification dated 22nd March 1993.
  These Rules were made in exercise of powers conferred by
  Sections 85, 86 read with Section 30, 31, 36, 37 and 37A of
  the West Bengal Excise Act, 1909. As per Rule 8 of Rules
  1993, in its original form, there was bar for grant of license for
F 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
G 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
H 15.4.2004 and as per the amended provision, distance-of 1000
SOMDEV KAPOOR v. STATE OF WEST BENGAL & 459
           ORS. [A.K. SIKRI, J.]
ft. was prescribed in the definition of 'vicinity'. Thus, there was    A
a shift from the position contained in Rules, 1993 which
prohibited the grant of license for the retail sale of spirit or any
oth~r intoxicant in "close proximity" from the education·a1
institution and religious places etc. to the grant of license within
"vicinity of such places" and the term 'vicinity' was explicitly and   B
precisely defined to be a distance of 300 ft. in the unamended
Rule 8 of Rules, 2003 and increased to 1000 ft. by way of
amendment in the year 2004, from educational institution and
religious places.

      7. Reverting to the case of the appellant, we would also         C
like to emphasize here that Rule 8 of Rules, 1993 as well as
Rule 8 of Rules, 2003 apply only to new sites. Its implication is
that those restaurants/ hotels etc. who were already granted
license, before coming into force the respective Rules, would
not be hit by the mischief of these rules and are allowed the          D
continuation of such a bar license, as pointed out, though the
application of the appellant was made in the year 1992, it was
processed much after 2004 and the license is also granted after
2004. Therefore, normally the application would be governed
by the Rules prevalent on the date of grant of liquor license.         E
However, Mr. K.K.Venugopal, learned senior counsel
appearing for the appellant drew our attention to the Circular
dated 28.9.2005 issued by the Excise Commissioner, West
Bengal to its functionaries and on that basis, he made emphatic
plea that pending applications were to be considered on the            F
basis of un-amended Rules, 2003. Since the entire foundation
of the appellant's case rests on this communication, we would
like to reproduce the same in its entirety:

           "Sub: Settlement of Excise Licenses in favour of the        G
     applicants/licensees who have applied for the same
     before publication of the Excise Department's Notification
     No. 527-Ex dated 02.04.2004.


                                                                       H
     460          SUPREME COURT REPORTS                [2013] 10 S.C.R.


A.                Sir,

                  With reference to above noted subject, it has come
           to the notice of the undersigned that several applications
           have been received by the District Authorities for grant of
           Foreign Liquor 'On' Shop Licenses as well as shifting of
B
           the existing shop before the Excise Department's
           Notification No.527-EX dated 02.04.2004 came into force.

                  It is further noticed that some applicants/licenses who
           applied for 'On' shop License/shifting of existing licenses
c          and who were not granted licenses as the sites proposed
           by them attracted the provisions of the aforesaid
           notification, moved the Hon'ble High Court for processing
           their applications in terms of the provisions existing prior
           to coming into force or Notification No.527-EX dated
D          02.04.2004.

                                          After careful consideration of
           the matter, the following .............. ;

            (a)    All the applications received before the 15th April,
E                  2004 being the date of publication of the above
                   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
F                  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
G
                   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
H
SOMDEV KAPOOR v. STATE OF WEST BENGAL & 461
           ORS. [A.K. SIKRI, J.]
                                                                .,
            Department's Notification No.800-EX dated                      A
            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                    8
            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             C
            that several applications for grant of Foreign Liquor
            'On' Shop Licenses received by the District Excise
            Authorities are being rejected at their end.

          All such applications should be sent to the                      D
     undersigned in terms of Rule 9(3) of the Rules framed under
     Excise Department's Notification No.800-EX dated
     2~.7.2003.

           You are, therefore, requested to take necessary
     steps in the matter and ensure the compliance of these                E-
     instructions."

    8. Seeking to draw sustenance from the aforesaid circular,
Mr. Venugopal's endeavour was to make us agree to his
submission that those applications which were received before F
15th April, 2004 and had not been rejected by the time circular
dated 28.9.2005 came to be issued, were to be processed as
per unamended Rule 8 which fixed the upper limit of 300 ft. as
prohibitory limit. However, we don't feel persuaded by this plea. ·
In our view, this circular has no application to the facts of the G             J
present case for the reasons stated hereafter.                                  ()

     9. On the face of it; it is visible that the circular deals with
the situation where applications for grant of license had been
submitted after 29.7.2003 when Rules, 2003 were promulgated
                                                                           H
    462     SUPREME COURT REPORTS               [2013] 10 S.C.R.


A prescribing a distance of 300 ft. in Rule 8(1) of those Rules to
  define 'vicinity' and before this definition of "vicinity" was
  amended vide Notification dated 2.4.2004. The question was
  as to whether applications which were given after 29.7.2003
  but before 2.4.2004, were to be governed by original Rules 8(1)
B or the amended Rule 8(1). It seems that a Writ Petition was
  filed in the High Court of Calcutta by those who were not granted
  license because of the a!Jlended Rules. During the pendency
  of the said Writ Petition, the matter was considered and the
  decision was taken that all the applications received before the
c amended Rules came into force, which had not been rejected
  by the Collector, should be processed in terms of unamended
  Rules and sent to the Directorate. Even those applications
  which were received before 15th April, 2004 and had been
  rejected applying amended Rule were also directed to be sent
  to the Directorate for further consideration, after processing in
0
  terms of unamended Rules. These applications were to be sent
  in terms of Rule 9(3) of the Rules. Ex-facie, the case of the
  appellant has no such factual parity.

       10. We would like to point out, at this stage, that when the
E application of the appellant, which was submitted in 1992 but
  had not been taken up for consideration at all for number of
  years, even the appellant had 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
F 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
G 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
H the case of the appellant, at this stage, the appellant woke up
SOMDEV KAPOOR v. STATE OF WEST BENGAL & 463
           ORS. [A.K. SIKRI, J.]
from slumber and started insisting that his application submitted    A
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     B
counsel appearing for respondent Nos. 5 and 6 is right in
submitting that his application of the year 1992 was not even
proper and valid application as no fee etc. was paid along with
the said application. That would be the reason that the said
application was never processed. The application has to be           c
supported by appropriate fee which was not given earlier. Such
a fee was deposited only in the year 2006 in compliance with
the provisions of Rule 9 of the Rules, 2003. In his letter dated
1.11.2004 the appellant referred to his application submitted
on 28.8.1992 in which the appellant stated that he had applied
                                                                     0
for the license as per the copy of letter which he enclosed along
with communication dated 1.11.2004 and it shows that only a
letter was submitted, though, as per the Rules, application was
to be made in Form I or Form II annexed with these Rules.

     11. Before filing the Writ Petition, respondent Nos. 5 and      E
6 had obtained information from the department under Right
to Information Act. Information supplied to them mentions that
the appellant had first made application on 28.8.1992 and then
again on 8.9.2005 giving reference to the first application. Thus,
we find that the first application was not even proper               F
application and second application was dated 8.9.2005. It had
to be governed by the new Rules, namely, Rules 2003, as
amended in 2004.

     12. It would also be significant to state that as per the law   G
laid down by this Court, Rules which are prevalent on the date
when the application is considered are to be applied and not
the date when the application is made. This is so held in State
of Kera/a & Ors. Vs. Kandath Distilleries 2013 (2) SCALE 789
in the following words:
                                                                     H
    464       SUPREME COURT REPORTS               [2013] 10 S.C.R.


A               'We have gone through the Government Order dated
         11.10.2006 in extenso and we are not prepared to say that
         the application of the respondent was rejected solely on
         the ground that the application dated 12.1.1987 could not
         be treated as an application put forward by a firm based
B        on a partnership deed, which came into existence on
         10.4.1991, as per Clause 3 of the Partnership Deed but
         on various other grounds as well. The State Government,
         in our view, has considered the respondent's application
         dated 12.1.1987 with regard to the conditions that existed
c        in the year 1998. The Government letter dated 28.6.1994
         would indicate that, apart from the respondent, few other
         applications were also pending 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
D
         bottling units in IMFLs in various parts of the State. The
         Excise Commissioner viqe 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
E        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."
F       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
G 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. Venugopal has tried to make an attempt to impute
H
SOMDEV KAPOOR v. STATE OF WEST BENGAL & 465
           ORS. [A.K. SIKRI, J.]
malafides on the part of the respondent Nos. 5 and 6 alleging        A
that there is another restaurant run by respondent No.4 which
is also operating from a place that is less than 1000 ft. from
religious places etc. However, proceedings against the said
respondents were dropped by respondent Nos. 5 & 6. First of
all, this argument would be of no avail to the appellant inasmuch    B
as when it is found that the appellant was not entitled for bar
license, the High Court has rightly issued mandamus not to
renew the same. Even if, we presume that some other person
is also operating in an infringing manner, that would not legalize
the license of the appellant. That apart, after going through the    c
record, we find that the case of respondent No.4 was not of a
new license but existing license. Rule 8 applied to new sites
only and in 'so far as those who were operating already and
having existing license, they are not hit by the mischief of this
Rule.
                                                                     D
     15. The result of the aforesaid discussion would be to
uphold the judgment of the High Court and dismiss the appeal
with costs. Since the license was renewed on the basis of
interim orders passed by this court, which is valid till December
2013, it would not .be renewed thereafter. We order accordingly.     E

K.K.T.                                       Appeal dismissed.