Mohalla Sudhar Samiti (Regd.) v. Govt of NCT of Delhi & Ors

Order No. and date vide which inspection has been ordered Order No. F.No. L-6/EX/IMFL/2022-23/944-49 dated 02.08.2022 issued by Commissioner, Excise Deptt.

¶2Date of insepction

19.08.2022

¶3Address of the proposed L-6 Vend inspected Property No. D-310, Khasra No. 794, Block-D, West Vinod Nagar, Delhi-110092

¶4Floor at which the proposed L-6 Vend is located Ground Floor

¶5Whether the landlord of the premises is in legal and physical possession of the proposed L-6 Vend, documentary proof to be attached Yes (copy enclosed)

¶6Detail of lease/rent agreement regarding the proposed L-6 Vend with documentary proof No information

¶7Whether the proposed L-6 Vend is in approved Commercial Complex (enclosed documentary proof) Yes (no documentary proof provided)

¶8Whether the proposed L-6 Vend is pucca structure Yes

¶9Measurement of total carpet area 700 Sq. Feet (approx.)

of the proposed L-6 Vend in Sq. Feet

¶10Whether the premises have electrical fitting and conform to Rule 51(1) of Delhi Excise Rules, 2010 Yes

¶11Whether the site map of the proposed shop/premises enclosed Yes (copy enclosed)

¶12Whether the proposed L-6 Vend conform to Rule 51(1) of Delhi Excise Rules, 2010. If not, then reasons be specified Yes However, adjacent to premises of the proposed vend, Apex City Hospital (42 bedded) is running and another hospital namely Mahesh Hospital (20 bedded) is running within 100 mtr.

¶13Other information

(a) Nearst residential colonies in and around the proposed L-6 Vend with distance I.P. Extn. Patparganj, Mandawali

(b) No. of Liquor Vend in and around the proposed L-6 Vend with distance (give No.

details)

(c) Whether the proposed L-6 Vend is in use at present and if so, the nature of the present business Presently, General Store (Bakery & Confectionary) is running at the premises

¶14Observation of the inspecting team (whether the proposed L-6 Vend is suitable as per the terms and conditions and Delhi Excise Rules, 2010). In case the premises is not found suitable, the reasons be specified. Premises suitable for opening of L-6 Vend. However, adjacent to premises of the proposed vend, Apex City Hospital (42 bedded) is running and another hospital namely Mahesh Hospital (20 bedded) is running within 100 mtr.

¶15List of documents obtained from the applicant

¶1Copy of GPA

¶2Site Map

¶3Property Tax Receipt

¶4Copy of Conversion Charge

¶5Copy of Aadhar Card & PAN Card

¶6Copy of Regn. Certificate of Apex City Hospital (42 bedded)

¶7Copy of Regn. Certificate of Mahesh Hospital (20 bedded).

¶16Other information (if any) N. A. Signature of Inspection Team

¶1Sh. Kaushal Kishore Jha, Excise Inspector (Member Secretary)

¶2Sh. R.K. Mittal, Tehsildar, Preet Vihar (Member)

¶3Sh. Ashish Aggarwal, Inspecting Officer, Labour Deptt. (Member)

¶4Sh. Rajendar Kumar, SDM, Preet Vihar (Chairperson)"

¶25The report of the inspecting team reveals that the premises is suitable for opening L-6 vend, however, there is a 42-bed hospital i.e., Apex City Hospital within 100 meters from the proposed shop and there is another hospital i.e., Mahesh Hospital which is a 20-bed hospital which is also within 100 meters from the shop address.

¶26A Registration Certificate of the Apex Hospital dated 10.06.2022 issued by Director General, Health Services, Government of NCT of Delhi was also annexed along with the inspection report dated 19.08.2022. The registration certificate dated 10.06.2022 is reproduced as under: " "

¶27The registration certificate dated 10.06.2022 makes it very clear that the Apex Hospital was a 42-bed hospital at the time the inspection was

carried out. The Respondent Commissioner based upon the inspection report issued an offer letter to Respondent No. 6 on 19.08.2022 and finally a license was issued to Respondent No. 6 on 29.08.2022.

¶28Based upon the representations submitted by the Resident Welfare Association, the site was re-inspected on 13.09.2022, and the re-inspection report dated 13.09.2022 is reproduced as under: "RE-INSPECTION REPORT FOR GOVERNMENT RETAIL VENDS

¶1Order No. and date vide which inspection has been ordered Order No. F. No. L-6/EX/IMFL/2022-23/1944-49 dated

02.08.2022 issued by Commissioner, Excise Deppt.

¶2Date of Re-Inspection

13.09.2022

¶3Address of the proposed L-6 Vend inspected Property No. D-310, Khasra No. 794, Block-D, West Vinod Nagar, Delhi-110092

¶4Floor at which the proposed L-6 Vend is located Ground Floor

¶5Whether the landlord of the premises is in legal and physical possession of the proposed L-6 Vend, documentary proof to be attached Yes (copy enclosed)

¶6Detail of lease/ rent agreement regarding the proposed L-6 Vend with documentary proof No information

¶7Whether the proposed L-6 Vend is in approved Commercial Complex (Enclosed Yes (no documentary proof provided)

documentary proof)

¶8Whether the proposal L-6 Vend is pucca structure Yes

¶9Measurement of total carpet area of the proposed L-6 Vend in Sq. Feet 700 Sq. Feet (approx.)

¶10Whether the premises have electrical fitting and conform to Rule 51

(1) of Delhi Excise Rules, 2010 Yes

¶11Whether the site map of the proposed shop/premises enclosed Yes (copy enclosed)

¶12Whether the proposed L-6 Vend conform to Rule 51(1) of the Delhi Excise Rules, 2010. If not, then reasons be specified Presently, vend is running by DCCWS. However, adjacent to vend, Apex City Hospital (50 bedded) is running; another hospital namely Mahesh Hospital (20 bedded) is running within 100 mtr; Madina Masjid (Backside) is situated within 120 mtr. (approx.) and (front side) within 140 mtr. (approx.) and Shiv Mandir is situated within 130 mtr. (approx.)

¶13Other Information

Nearest residential colonies in and around the proposed L-6 Vend with distance

I. P. Extn, Patparganj, Mandawali

No. of Liquor Vend in and around the proposed L-6 Vend with distance (give details)

No

Whether the proposed L-6 Vend is in use at present and if so, the nature of the present business Presently vend is running by DCCWS

¶14Observation of the inspecting team (whether the proposed L-6 Vend is suitable as per the terms and conditions and Delhi Excise Rules, 2010). In case the premises is not found suitable, the reasons be specified. Presently, vend is running by DCCWS. However, adjacent to vend. Apex City Hospital (50 bedded) is running; another hospital namely Mahesh Hospital (20 bedded) is running within 100 mtr; Madina Masjid (backside) is situated within 120 mtr. (approx.) and (front side) within 140 mtr. (approx.) and Shiv Mandir is situated within 130 mtr. (approx.)

¶15List of documents obtained from the applicant

¶1 Copy of Regn. Certificate of Apex City Hospital (50 bedded)

¶2 Copy of Regn. Certificate of Mahesh Hospital (20 bedded)

¶16Other information (if any) N. A.

Report: The site/ premises was re-inspected on 13.09.2022 with team and the information as mentioned above is re-confirmed. 02 hospitals namely Apex City Hospital (50 bedded) and Mahesh Hospital (20 bedded) are situated within 100 mtr. of the premises. Signature of Inspecting Team

¶1Sh. Kaushal Kishore Jha, Excise Inspector

¶2Sh. R. K. Mittal, Tehsildar, Preet Vihar

¶3Sh. Ashish Aggarwal, Inspecting Officer, Labour Deptt.

¶4Sh. Rajendar Kumar, SDM, Preet Vihar."

¶29The report reveals that there is Mahesh Hospital, which is a 20-bed hospital, and Apex City Hospital, which is a 50-bed hospital, both located within 100 meters from the shop in question. The report further reveals that the Madina Masjid is situated at a distance of approximately 120 meters from the backside of the shop in question and within 140 meters from the front side of the shop in question. The report also states that there is also a Shiv Mandir situated within 130 meters respectively along with an inspection report. Along with the inspection report, a certificate issued on

31.08.2022 of the Apex City Hospital was also enclosed, and the same is reproduced as under: " "

¶30The Registration certificate dated 31.08.2022 now reveals that the bed strength of the hospital was enhanced from 42 to 50 beds.

¶31The statutory provisions relating to allocation of a license to establish and run a shop for sale of liquor in Delhi is extracted in Rule 51 of the Rules, 2010. The aforesaid rule reads as under: "51. Condition dealing with licensed premises

(1) No retail vend of Indian Liquor, Foreign Liquor or Country Liquor shall be located within one hundred meters from the following, namely: —

(a) major educational institutions;

(b) religious places;

(c) hospitals with fifty beds and above: PROVIDED that the condition mentioned in clause (c) above shall not apply for retail vend of liquor for consumption "on" the premises: PROVIDED FURTHER that the condition of hundred meters shall apply for the licences granted after the commencement of these rules: PROVIDED ALSO that if any major educational institution, religious place or hospital with fifty beds or above comes into existence subsequent to the establishment of the retail vend of Indian Liquor, Foreign Liquor or Country Liquor, the aforesaid distance restrictions shall not apply."

¶32The statutory provision of law makes it very clear that no retail vend of Indian Liquor, Foreign Liquor or Country Liquor shall be located 100 meters from a major educational institution, religious place, or 50 beds and above hospitals. The 3rd proviso to Rule 51 makes it very clear that in case a hospital with 50 beds and above hospital comes into existence subsequent to the establishment of the retail vend of Indian Liquor, Foreign Liquor or Country Liquor, the aforesaid distance restrictions shall not apply.

¶33In the present case, the undisputed facts make it very clear that the hospital in the locality i.e., Apex City Hospital, at the time the liquor shop was established and license was granted, was a 42 bedded hospital and Mahesh Hospital was 20 bedded hospital. Therefore, the 50 bedded hospital

has come into existence subsequent to the establishment of the retail vend. Further, the educational institutions and religious places are not within 100 meters of the shop. Hence, the restriction as per Rule 51(1) of the Act, 2009 will not be applicable in respect of the L-6 license already granted to Respondent No. 6 on 29.08.2022 under the Act, 2009 and the Rules, 2010 framed thereunder.

¶34In the present case, the first inspection of the shop in question was carried out on 19.08.2022 and at the relevant point, the Apex Hospital was a 42 bedded hospital and Mahesh Hospital was a 20 bedded hospital. Based upon the inspection report dated 19.08.2022, an offer letter was issued to Respondent No. 6 on 19.08.2022 and after depositing the license fee, an L-6 license was granted in favour of DCCWS on 29.08.2022. Therefore, the grounds raised by the Petitioner in the present PIL do not make out a case for this Court to grant relief to the Petitioner as prayed for. Therefore, the question of quashing the license dated 29.08.2022 i.e., L-6 license issued under the Act, 2009 read with Rule, 2010 does not arise.

¶35In view of the above, the present PIL stands dismissed.

SATISH CHANDRA SHARMA, CJ

SANJEEV NARULA, J. AUGUST 24, 2023 aks

* IN THE HIGH COURT OF DELHI AT NEW DELHI + Date of Decision: 24.08.2023 % W.P.(C) 13824/2022 and C.M. No. 42303/2022 MOHALLA SUDHAR SAMITI (REGD.) ..... Petitioner Through: Mr. V. S. Dubey, Advocate versus GOVT OF NCT OF DELHI & ORS. ..... Respondents Through: Mr. Santosh Kumar Tripathi, Standing Counsel (Civil), GNCTD with Mr. Pradyumn Rao, Ms. Prashansha Sharma, Mr. Arun Panwar, Mr. Utkarsh Singh and Mr. Kartik Sharma, Advocates for GNCTD. Mr. Harshit Chopra, Advocate for Respondent No. 6 with Mr. Anil Kumar, ASO. Ms. Monika Arora, Mr. Yash Tyagi and Mr. Subhrodeep Saha, Advocates for MCD. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJEEV NARULA SATISH CHANDRA SHARMA, CJ. (ORAL) 1. The present writ petition has been filed under Article 226 of the Constitution of India as a Public Interest Litigation (PIL) by the Petitioner Mohalla Sudhar Samiti which is a Resident Welfare Organization (RWA) registered under the Societies Registration Act, 1860 (hereinafter to be referred as "Registration Act, 1860"). 2. The Petitioner is aggrieved by the action of Commissioner of Excise, Entertainment and Luxury Tax, Government of NCT of Delhi (Respondent Nos. 1 & 2) in granting a license to Respondent No. 5 for opening and operating a liquor shop in the locality at D-310, West Vinod Nagar, Delhi, 110092 (hereinafter referred to as "shop address"). 3. The Petitioner's contention is that the liquor shop is situated in the vicinity of a Hospital, Masjid and Mandir. It has been stated that the Madina Masjid and two madrasas are situated within 50 meters from the liquor shop. It is further stated that Smart Learning classes, Yam Guru Academy and Mahesh Hospital are also situated within 50 meters of the liquor shop. 4. The Petitioner has stated that Respondent No.1, Government of NCT of Delhi has issued a license to Respondent No. 5 which is in complete violation of Delhi Excise Rules, 2010 (hereinafter to be referred to as "Rules, 2010"), specifically Rule 51 of the Rules, 2010. 5. The Petitioner has further stated that in a residential locality, a liquor shop has been established in complete violation of the Rules, 2010 which is causing great hardship to the families residing in the area. It has been further stated that the liquor business is being run by "Mafia Type" people who want to make Delhi a liquor hub and not an educational hub. 6. It has been further stated that the Residents of the locality are peaceful citizens and they have submitted a large number of representations from time to time to the authorities. However, nothing has been done in the matter and therefore, the Petitioners, left with no other choice have knocked the doors of this Court praying for the following reliefs: "(i) Issue an appropriate writs, order or directions directing the Respondent no. 1 to 3 to remove/cancel the license of Respondent no. 5 Liquor Shop at Shop No. D-310 West Vinod Nagar Delhi-110092. Issue writ or any other, orders or directions in favour of the petitioner and against the Respondents thereby to stop the liquor shop opened by Respondent no. 5 for safety and further of children and Women in the locality in the interest of justice; or (ii) Pass any other order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the present case." 7. This Court has issued notice in the matter on 26.09.2022 and the Government of NCT of Delhi (GNCTD) has filed a detailed counter- affidavit in the matter. The counter-affidavit filed on behalf of the Respondent Nos. 1 & 2 reveals that the GNCTD formulated a policy for retail sale of Indian Liquor/Foreign Liquor and Beer in National Capital Territory of Delhi for the year 2022-23 and the same has been implemented with effect from 01.09.2022. It has been further stated that a L-6 license has been granted in favour of Respondent No. 6 herein, i.e., Delhi Consumer"s Cooperative Wholesale Store Limited (DCCWS) keeping in view the Delhi Excise Act, 2009 (hereinafter