Local Authorities Must Conduct On-Spot Assessment Prior To Grant Of Excise License: PIL In Calcutta High Court Against Resto-Bar Near School, Temple

A PIL has been filed before the Calcutta High Court challenging the grant of a “restriction-free” license to a restaurant-cum-bar located near an educational institution and temple.

The challenge is made under the Bengal Excise Act. According to the petitioner, under Section 85 and 86 of the Act, various rules governing the grant of excise licenses such as the West Bengal Excise (Selection of New Sites and Grant of License for Retail Sale of Liquor and Certain Other Intoxicants) Act and Rules 2003, have been framed. One of these rules, Rule 8, provides that no license shall be granted for a new site for the sale of liquor or any other intoxicants, when the site is located within the ‘vicinity of an educational institution recognized by the State Government or the Central Government, or any college or institution affiliated to any university established by law, traditional place of public worship and hospital for public use. For the purpose of this Rule, the word " vicinity" means a distance of 1000 ft.’

According to the petitioners, the establishment under challenge, which is in the nature of a restaurant-cum-bar, was set up within seven-hundred feet of the Nischinatpur Rakhaldas High School, therefore falling within the thousand-feet threshold. The petitioners have also challenged the immediate vicinity of the establishment to a religious place of worship, frequented by worshippers, being within two-hundred feet of the same.

A bench of Chief Justice T.S. Sivagnaman and Justice Hiranmay Bhattacharya admitted the PIL and addressed the dispute on their being two gates to the school, one being a thousand feet away from the establishment, and another being seven-hundred feet away.

According to the Justice Sivagnaman, regardless of the gate that the school has been using “mostly”, the test for vicinity must be through the eyes of an “ordinary prudent man.” By applying this test, it is clear that the school may employ the use of either gate on different occasions, on a need-basis. Therefore, the vicinity of the liquor store to either gate, under a thousand-feet could not have led to the grant of a “restriction-free” license by the State Excise Authorities, Justice Sivagnaman said.

The bench observed, “The sale of liquor is Res Extra Commercium. [It is] not a fundamental or a constitutional right, but merely a legal right. Hence it may be regulated strictly and in accordance with the rules as notified.”

The bench was pleased to order the District Magistrate to intervene in the matter, and to conduct an on-spot evaluation of the area and submit a report to the Court. The matter has been listed for further orders once the report of the District Magistrate is received.

Case Title: Altab Hossen Molla v State of West Bengal [WPA(P) 221 of 2023]