- (1.) BY this public interest litigation, the writ-petitioner, claiming to be a social worker, has prayed for the following relief: " (a) A writ of and/or a writ in the nature of Mandamus commanding the respondents to forthwith withdraw, cancel and rescind:- (i) The Rule dated 29th July, 2003 which has been published on 30th July, 2003 in the Kolkata Gazette; (ii) Notification and/or Office Memo No. 2s-30/2003-04/2736 (21)E dated 21st November, 2003 being Annexure 'p-4' hereto; (iii) Circular/memo No. 2s-30/03-04/3369 (20) dated 20th January, 2004 being Annexure 'p-6' hereto; and all licences issued through out the State of West Bengal pursuant to and in furtherance of the above mentioned Notifications and Memos since January, 2004; (b) A writ of and/or a writ in the nature of Certiorari commanding the respondents and each of them, their men, agents and subordinates to certify and transmit the records relating to the case to this Hon'ble Court for doing conscionable justice by quashing:- (i) The Rule dated 29th July, 2003 which has been published on 30th July, 2003 in the Kolkata Gazette; (ii) Notification and/or Office Memo No. 2s-30/2003-04/2736/ (21)E dated 21st November, 2003 being Annexure 'p-4' hereto; (iii) Circular/memo No. 2s-30/03-04/3369 (20)E dated 20th January, 2004 being Annexure 'p-6' hereto; and all licences issued through out the State of West Bengal pursuant to and in the furtherance of the above mentioned Notifications and Memos since January, 2004; (c) A writ of and/or a writ in the nature of Prohibition commanding the respondents and each of them, their men, agents and sub-ordinates to forbear from giving any effect or further effect pursuant to and in furtherance of: (i) The Rule dated 29th July, 2003 which has published on 30th July, 2003 in the Kolkata Gazette; (ii) Notification and/or Office Memo No. 2s-30/2003-04/2736/ (21)E dated 21st November, 2003 being Annexure 'p-4' hereto; (iii) Circular/memo No. 2s-30/03-04/3369 (20)E dated 20th January, 2004 being Annexure 'p-6' hereto; and all licences issued through out the State of West Bengal pursuant to and in the furtherance of the above mentioned Notifications and Memos since January, 2004; (d) An order or direction be issued upon the respondents that the respondents shall endeavour in making any law or rule or policy relating to manufacturing, production and sale of liquor fit for human consumption and they shall strictly adhere to the principles enshrined in Article 47 of the Constitution of India. (e) Rule NISI in terms of prayers (a), (b), (c) and (d) hereto; (f) Rule be made absolute; (g) Injunction restraining the respondents and each of them their men, agents, and sub-ordinates from giving any effect and/or further effect and/or from taking any step or further steps pursuant to and in furtherance of: (i) The Rule dated 29th July, 2003 which has published on 30th July, 2003 in the Kolkata Gazette; (ii) Notification and/or Office Memo No. 2s-30/2003-04/2736/ (21)E dated 21st November, 2003 being Annexure 'p-4' hereto; (iii) Circular/memo No. 2s-30/03-04/3369 (20)E dated 20th January, 2004 being Annexure 'p-6' hereto; and all licences issued through out the State of West Bengal pursuant to and in the furtherance of the above mentioned Notifications and Memos since January, 2004; (h) Direction upon the respondents and each of them their men, agents and subordinates to withdraw and/or cancel the licence for opening of new liquor shop and/or to hereof running in new liquor shops pursuant and in furtherance of:- (i) The Rule dated 29th July, 2003 which has published on 30th July, 2003 in the Kolkata Gazette; (ii) Notification and/or Office Memo No. 2s-30/2003-04/2736/ (21)E dated 21st November, 2003 being Annexure 'p-4' hereto; (iii) Circular/memo No. 2s-30/03-04/3369 (20)E dated 20th January, 2004 being Annexure 'p-6' hereto; and all licences issued through out the State of West Bengal pursuant to and in the furtherance of the above mentioned Notifications and Memos since January, 2004; (i) Ad-interim order in respect of prayer (f) and (g) above; (j) Costs; (k) Such further order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper. "
(2.) THE case made out by the writ-petitioner may be summed up thus: (a) As a social worker, the writ-petitioner had been painfully noticing that the government of West Bengal have adopted a policy to grant and/or issue liquor licence indiscriminately for establishing new liquor-shops throughout the State of West Bengal in order to augment the revenue. According to the writ-petitioner, the Government of West Bengal had adopted the said policy by totally violating, flouting and ignoring the constitutional mandate enshrined in Article 47 of the Constitution of India without looking into the health, socio-economic condition, culture and welfare, particularly, of the poorer section of the inhabitants and citizens of the State of West Bengal. (b) It would appear from the history of the Legislation that it was always the policy of the Government to strictly regulate the production and sale of liquor and to prevent its consumption, particularly, by the younger people by prohibiting the sale in the areas where such people needs to congregate particularly like educational institutions etc. and accordingly, under section 85 of the Bengal Excise Act, 1909, the State Government had in the past promulgated the Rules from time to time which carry strict stipulations over the sale of such items. (c) From the Rules of 1993 framed under the Act, it is evident that for opening a new site no licence was granted under sub-rule (1) of Rule 8 of the Rules of 1993. If the site was situated near the educational institution, hospital etc. and even from the earlier provision, it would appear that if a proposed site for opening liquor-shop was situated in close proximity to an educational institution recognised by the State Government or the Central government or any College or Institute affiliated to any University established by law or traditional place of public worship, hospital or bathing ghat, licence would not be issued. (d) As per Clause 9 (4) of the Rules of 1993, various public authorities like m. L. A. , Sabhadhipati of the Zilla Parisad, Chairman of its Municipality, the municipal Commissioner or the Chief Executive Officer of each municipality, Commissioner and the Chief Executive Officer of its notified area were mandatorily required to be consulted by the Collectors before granting any new licence as well as notice intended to invite public objection was also required to be put up for the said purpose. (e) The respondents now have been trying to use sale of such deleterious products in order to earn additional revenue and according to her, the proposal in the Budget for the year 2003-04 the State has an aim to raise rs. 100 crore through the sale of those products. (f) The intention of issuing more licences for opening new liquor-shop with the object of raising revenue would enormously damage the public health and individual economy causing irreparable loss to the society whereby instead of pursuing a policy of regulated drinks-habit, it is going to spread the bad habit to younger generation. (g) There was an ambiguity as regards the definition of the expression "proximity" in the 1993 Rules and it was not specified what would be the area, which would come within the ambit of the expression "proximity" and a Division Bench of this Court in the case of Sri Arindam Ghosh and anr. Vs. State of West Bengal and Ors. in W. P. No. 17144 (W) of 2001 held that the close proximity would not be less than a distance of at least 300 yards which is equivalent to 1000 ft. (h) The State Government in order to do away with the impact of the decision of this Court, promulgated a new Rule called West Bengal Excise (Selection of New Sites and grant of License for retail sale of liquor and certain other intoxicant) Rules, 2003 in utter disregard to the corresponding provision of the earlier Rule and has decided to issue licences indiscriminately to both 'on' and 'off' liquor-shops totally disregarding the selection of site Rules by deleting the salutary provision of 1993 Rules and such new provision in 2003 Rule is inconsistent with the directive policy enshrined in Article 47 of the Constitution of India. (i) By amending the 1993 Rules by way of deletion of the provision inviting objections from the elected representatives of the people of the area, the state has acted in a manner which is against the public policy of the constitutional Provision protected in Article 47 of the Constitution and such policies of indiscriminate and illegal growth of liquor-shop by relaxing the corresponding Rules have grown to serious proportions and will have a disastrous effect on social, economy, health and morality of the general people at large in the State of West Bengal. (j) Under the influence of liquor several families are ruined particularly in the poor and lower middle class group and the workmen and labourers in the factory and workshop, upon receiving their weekly or monthly remuneration, spend substantial amount on the same day in purchasing and consuming liquor with their friends and associates at the cost of their family. (k) By liberalizing the issue of excise licence, particularly, based on population-parameter, the Government of West Bengal is provoking the people to be addicted to drinking liquor. (l) The right to health is part of the rights of the Citizens of India has enshrined in Article 21 of the Constitution of India and the Rule of 2003, if given effect to, would severely prejudice the health of the individuals in the state leading to more expenditure on account of medical expenses and starvation of the poor people.
(3.) THE petitioner, consequently, prays for the relief claimed in the writ-application as indicated above. This writ-application is opposed by the State of West Bengal by filing affidavit-in-opposition and the defence taken by the State of West Bengal may be summarized thus: (i) The petition styled as public interest litigation is nothing but a camouflage to foster the disputes of a particular coterie and/or group or existing licence holders. There is neither any real or genuine public interest involved in the litigation nor is there any concrete or credible basis for maintaining any cause before the Court. The proceedings have been invoked by a person set up by the existing licensees or the Association representing the said licensees to further their cause. (ii) The writ-petitioner has approached the Court with unclean hands and the same does not involve any matter in which public or the community at large has any interest by which their legal rights have been affected. The writ-petitioner has no locus standi or legal capacity in relation to any specific remedy sought for in the petition and really, is an intervener representing a group having private profit and other oblique consideration of mind. (iii) The writ-petitioner seeks to espouse her purported grievance with regard to Government policy and as engagement in liquor trade is not a fundamental right and is subject to Government control, so long as there is no violation of the fundamental rights guaranteed under Part iii of the Constitution and the principles of natural justice are not offended, the writ-petitioner cannot have any cause of action or locus standi. The State policy with regard to grant of liquor-licences is for the State to determine depending upon its own overall assessment of the requirement of the situation and the legislature and/or the subordinate regulation making body have an affirmative responsibility of evolving policy. (iv) There is no lack of legislative competence in the matter nor is there any legal infirmity in the sense of its being beyond the scope of the powers conferred by the Statute or its being inconsistent with any of the provisions of the parent enactment or in violation of the limitations imposed by the Constitution. There being no fundamental right to carry on trade or business in liquor, the State formulates its policy for grant of privilege for manufacture and sale of liquor and the trade in liquor is no longer res extra commercium. Accordingly, the dispute also involves the economic policy of the State and the legislation, particularly in economic matters, is essentially empiric. (v) The writ-petitioner is under a misconception that licences are being issued by the State in terms of the Circular dated January 20, 2004 but in fact, the said circular was only in the nature of an initial communication. Ultimately, in recommending the additional sites, the Collectors have made their recommendation strictly according to public demand and realizable revenue potential taking into consideration the trade of illicit liquor prevailing in the districts. The recommendations are strictly in accordance with the Bengal Excise act and the Rules framed thereunder. The State had decided that it would be to the best interest of the public if licensed outlets were made easily accessible to the intending consumers. In the process, they would avoid illicit liquor as it transpired that in most of the cases in the districts, illicit liquor was flourished due to non-availability of authorized outlets. By filing affidavit-in-reply, the writ-petitioner has virtually reiterated her stance taken in the writ-application. ;