A.K. Sikri, J.
1. Both these writ petitions have common factual background and raise identical legal issues. They were heard together and are disposed of by this judgment. For the sake of convenience, facts of CWP. No. 497 are noted in detail.
2. For last number of years sale of liquor in Delhi was controlled through Government Agencies like Delhi Tourism and Transportation Development Corporation Ltd. (DTTDC); Delhi State Civil Supplies Corporation Ltd. (DSCSC); Delhi Consumers' Co-operative Wholesale Stores Ltd. (DCCWS); and Delhi State Industrial Development Corporation Ltd. (DSIDC). The Government of NCT of Delhi took a decision in the year 2002 to liberalise this policy and decided to give licenses in the private sector also i.e to the general public for opening of liquor vends. As a squatter thereto on 20.7.2002 Government of NCT of Delhi through its Department of Excise invited applications from the general public for grant of L-52 license for opening liquor vends in Revenue District in Delhi. Number of persons responded to this advertisement by purchasing brochure priced at Rs. 5,000/- per copy containing application form and the terms and conditions for applying for grant of the licenses. There was enthusiastic response and several hundreds of applications were submitted. These persons included petitioners as well. The applications were scrutinised and a list of eligible candidates was drawn. As the number of even these eligible candidates far exceeded the number of licenses to be allotted, the respondents decided to hold draw of lots. On 12.11.2002 draw of lots was held at 2PM in Andhra Bhawan New Delhi. List of those declared successful for grant of L-52 licenses, as a result of draw, was prepared. The petitioners found their names in the list. In November and December, 2002, physical spot/site inspection by the expert team of the respondents was carried out to ascertain whether the vends offered by the petitioners satisfy all the terms and conditions and the criteria for location etc as laid down in the rule. The petitioners herein passed this test also.
3. The petitioners were now awaiting the grant of license to enable them to start their venture as they had completed all the formalities in this behalf. They found to their dismay that although many other persons in the list of successful candidates were granted such license, the petitioners' wait was not getting over. They accordingly submitted representations to the Department of Excise requesting to expedite the process. In response letter dated 10.1.2003 was received by the petitioner No. 1 stating that since people of the area had objected to the opening of the vends, the respondents were not giving the petitioners requisite license. Although other petitioners were not given any such letter as they found that denial of their licenses was also for the same reason. In this back drop all these petitioners have filed the instant writ petition challenging the communication dated 10.1.2003 and are seeking directions to the respondents to issue them license for opening of the vends in accordance with the policy and rules. This petition is filed by as many as 12 petitioners. It may be mentioned at this stage that petitioner nos.4,5,7 and 8 have withdrawn from the petition. Another petition is also filed in identical circumstances as CWP. No. 748 of 2003.
4. In the counter-affidavit filed on behalf of respondents factual aspects as stated in the writ petition and noted above are by and large admitted. It is also admitted that because of strong public resentment by various social organizations and also through area MLAs, decision has been taken not to grant license to those successful private vendors where there is public resentment/opposition and to give them the license at some other site. The respondents have sought to justify this decision by contending that there is no illegality or unconstitutionality in such a decision of the Government which has been taken as a regularity measure in the best interest and welfare of the children/public.
5. How this decision came to be taken, may be noted at this stage to appreciate the controversy more appropriately. After the advertisement was issued in July, 2002 for inviting applications from general public for grant of L-52 licenses, a writ petition in public interest by way of `Public Interest Litigation' No. CWP. 4046/2002 entitled Salekh Chand Jain v. Govt. of National Capital Territory of Delhi was filed in this Court. Preliminary objection was to the proposed move for opening such liquor vends in the residential areas. This writ petition was decided by a Division Bench of this Court vide judgment and order dated 4.12.2002. Directions were given for not permitting/opening of any liquor shop in the areas earmarked for residential purposes except departmental stores allocated in the market. The operative part of the judgment reads thus:
'Learned counsel for the petitioner submits that liquor shops will not be allowed to be opened in residential colonies or in residential premises as that would be vocative of the master plan of Delhi and the building by-laws. We see force in the submission of a learned counsel for the petitioner. No shop, much less a liquor shop should be allowed to be opened in areas earmarked for residential purposes. However, exceptions can be made in respect of Departmental Stores allocated in market areas. In the circumstances, thereforee, a direction is required to be issued to the respondent Excise Department, that no opening of liquor shops including shops for sale of beer in areas earmarked for residential purposes except Departmental Stores allocated in market areas. We, accordingly, dispose of the writ petition with the aforesaid directions.'
6. With this judgment, those whose shops fall in the residential areas cannot claim such a license. The Government has given them option to shift their sites to some non-residential areas where opening of liquor vends are permitted. Many such successful persons who had declared their sites in residential area have towed the line by shifting their vends to permitted areas and are granted license. The respondents have granted such persons license after satisfying that new sites earmarked by such persons fulfill all necessary criteria.
7. After the aforesaid judgment, naturally, license for opening such liquor vends cannot be granted in residential areas. It would, thereforee, normally be in commercial areas. However, it may be mentioned here that under the policy the respondents had also permitted opening of the vends in the areas known as 'commercial by user'. We shall advert to the meaning of the term 'commercial by user' at appropriate stage. What is relevant to point out here that the petitioners in these writ petitions have their vends in 'commercial' or 'commercial by user' areas and not residential areas. Some of these areas are surrounded by thickly residential population, particularly, those which are 'commercial complex by usage'.
8. In normal course, as per policy, license should have been granted by the authorities in this area for which there was no embargo put even by Salekh Chand Jain's (supra) case. However, even in respect of some such sites in the vicinity of residential areas, there was a public outcry opposing opening of liquor vends. Many social organisations, NGOs and members of public started objecting to the proposed move. MLAs of such areas also represented against opening of liquor vends. This uproar followed by representations received the attention of the authorities at highest level. Matter was discussed in the presence of the Chief Minister, the Finance Minister, the Commissioner (Excise) and other officials. Government felt that it had to be little more sensitive to the public sentiments while dealing with such issues. It resulted into taking of decision dated 3.1.2003 as contained in the noting of the Finance Minister, the relevant portion of which reads as under:
'Hence it has been decided that it would be more appropriate for competent authority not to grant licenses if public resentment/objection have been received through the area MLA, for opening of a particular vend. However, the applicant may be allowed to shift the vend to some other location within the same district.'
9. It is stated by the respondents that since in respect of the areas where vends of the petitioners are located, representations have been received through the area MLA as per the aforesaid decision, these petitioners cannot be granted L-52 license. They are, thereforee, allowed to shift the vends to some other location within the same district
10. The picture that emerges from the aforesaid discussion may be summarised now.
11. As per the policy and consequent advertisement issued by the respondents, applications were invited for grant of L-52 license for opening of liquor vends. The petitioners after undergoing the necessary drill, have been found to be eligible and successful in all respects. Sites offered by them are suitable as per the policy. However, public opinion has prompted the Government to take decision not to grant license in respect of those vends where there is public resentment and objections have been received through area MLA. It is because of this reason, petitioners are denied L-52 license. The question, thereforee, which falls for determination is as to whether decision dated 3.1.2003 of the Government is valid and proper and on this ground of public resentment expressed through area MLA, respondents can deny the petitioners' requisite license. Before embarking on this enquiry, it would be necessary to take stock of legal provisions. The legislative field is covered by Punjab Excise Act which extends to National Capital Territory of Delhi with some necessary modifications. As during discussion reference will have to be made to the provisions of Section 35 of this Act, it may be useful to reproduce this Section at this stage:
'35. Grant of licenses for sale:
(1) Subject to the rules made by the Excise Commissioner under the powers conferred by this Act, the Collector may grant licenses for the sale of any intoxicant within his district.
(2) Ascertainment of public opinion-Before any license is granted in any year for the retail sale of liquor for consumption on any premises which have not been so licensed in the preceding year, the Collector shall take such measures, in accordance with rules to be made by the Lieutenant Governor of Delhi in this behalf, as may best enable him to ascertain local public opinion in regard to the licensing of such premises.'
12. Section 58 is rule making provision and empowers the Lt. Governor of N.C.T. of Delhi to frame rules. In exercise of this power, Delhi Liquor license Rules 1976 have been framed. Relevant rules for our purposes would be Rules 2, 33(1A), (8) (8A) which are reproduced below:
'2. Regulations governing the grant and renewal of licenses- The authority specified by these Rules to grant and renew licenses shall be in each case subject to the restrictions contained in the Delhi Intoxicants license and Sale Rules as to the localities in which licenses shall be granted and the number of licenses which shall be granted in any local area.'>
13. 33(1A) No retail vend for country liquor or foreign liquor for consumption 'off' the premises shall be located within 75 meters from the following namely:-
(i) irrigation projects;
(ii) matopma; highways:
(iii) major educational institutions:
(iv) religious places;
(v) factories registered under the Factories Act and Industrial Estates;
(vi) railway stations.'
xxxxxxxxxxx'33(8) The licensed premises should be a puce building in a commercial complex recognised as such by the local bodies including DDA/MCD/NDMC etc with adequate storages facilities and proper electrical fittings. The licensed premises should be duly insured against fire and other natural hazards. The licensee shall keep the premises thoroughly clean and dry and shall comply with the orders issued by the Collector of Excise for the removal of defects in the building.'
'33(8A) In the case of country liquor and foreign liquor vends the licensed premises shall be used exclusively for the storage and sale of liquor as licensed and no other business all be transacted in or from such premises.'
14. Rule 32 outlines the procedure in detail when it is decided to grant the license by tender.
15. Liberalized policy of the Government (which led to advertisement in July, 2002) necessitated some amendments in Delhi Liquor license Rules,1976. These amendments were carried out vide Notification dated 28.6.2002 known as Delhi Liquor license (Amendment) Rules 2002. In fact L-52 license is the result of this amendment which is titled 'Retail Vend of Foreign Liquor in Private Sector'. Consequent amendment was made in Rule 34 also by inserting sub Rule (20) of Rule 34 to read as under:
'(20) license in Form L-52 for the retail vend of foreign liquor in private sector.'
16. We may also notice amendment to sub-rule (1A) of Rule 33 which is relevant for our purposes and is in the following terms:
17. '(1A) no retail vend of country liquor or foreign liquor for consumption off the premises shall be located within seventy five meters from the following, namely,
(a) major educational institutions
(b) religious places;
(c) hospitals with fifty beds and above.
18. Explanationn.-1 For the purpose of clause (a) above, major educational institutions would mean middle and higher secondary schools, colleges and other institutions of higher learning recognized by the Government of NCT of Delhi or Government of India.
19. Explanationn.II For the purpose of clause (b) above, a religious place would imply a religious place having a puce structure with a covered area of more than 400 square feet.
20. Explanationn.-III The measurement of distance shall be from the mid point of the actual main entrance/door of the premises proposed for license to mid point of the actual main door/entrance of the building of the places mentioned in clauses (a), (b) and (c) above.'
21. Likewise, sub-rule (8) of Rule 33 was also amended in the following manner:
'(iii) in sub-rule (8), after the words 'DDA/MCD/NDMC etc', the following words shall be inserted, namely:- 'or commercial complex by usage'
22. Apart from aforesaid Rules, the Delhi Intoxicants license and Sales Rules,1976 have also been framed which regulate grant of license for sale of such intoxicants and inter alias provide for procedure for grant of such license. Rules 5,8,12, 13 and 13A with which we are concerned, are to the following effect:
'5. No license for the sale of liquor or drugs may be given unless either there is an ascertained demand for such liquor or drugs in the locality concerned, or it is granted to counter-act the illicit supply of liquor or drugs in that locality, nor in the case of liquor licenses for `on' consumption without the enquiry prescribed under these rules.'
'8. Procedure to be followed and matters to be ascertained before any license is granted for the retail vend of liquor for consumption `on' the premises-When it is proposed to grant a license for the retail vend of liquor for consumption on any premises which were not licensed in the preceding year, the Collector shall take all reasonable steps to ascertain the opinion of persons who reside or have property in the neighborhood and are likely to be affected by the proposal.'
'12. If any objection is preferred to the proposal, the Collector or a gazetted officer deputed by him, will enquire into it. The enquiry will, if possible, be made on the spot. If it is not possible to make the enquiry on the spot, an enquiry will be made in a formal proceeding at which evidence tendered for or against the proposal will be recorded. The date and place of the enquiry will be published in the notice prescribed above.'
'13. The final report will be forwarded by the Collector for the orders of the Lieutenant Governor.
13A. Procedure to be followed after any license is granted for retail vend of liquor for consumption of the premises__(i) In furtherance of the cause of prohibition if at any time during the currency of a license, more than 10 per cent of the eligible voters listed in eligible voters list of the Metropolitan Council constituency within which a particular liquor shop is located, represent in writing objecting to the shop being located in the said Metropolitan Council constituency area, the Lieutenant Governor may take steps to ascertain the opinion of the voters living in the said constituency as provided in sub-rule(ii).
(ii) In pursuance of sub-rule(i) opinion of voters living in the said constituency shall be ascertained by way of referendum which shall be carried by the Excise Commissioner or by such other officers as may be authorised by him in this behalf through a secret ballot.
(iii) If as a result of such referendum more than 50 per cent of the eligible voters have objected to the location to the shop in the said constituency the Lieutenant Governor may take suitable steps to give effect to this desire of the people.
(iv) If a particular shop is shifted to another Metropolitan Council constituency as a result of such referendum during the currency of a license on compensation shall be payable to such licensee. However, in the event of refusal of the licensee to shift, the license granted may be withdrawn or in the event of closure of the said shop for rest of the licensing year the licensee shall be given compensation in accordance with the provisions of Section 41 of the Punjab Excise Act, 1914 as applicable to the Union Territory of Delhi.
23. We may now take note of some of the clauses of the scheme formulated by the Government which led to issuance of the concerned advertisement dated 20.7.2002:
'3- GRANT OF license
3.3 All applications received in the office of the Excise Commissioner before the specified time and date will be scrutinised and eligible applications will be sorted out district-wise.
3.4 If on scrutiny, any application is found incomplete, vague, confusing or not as per the terms and conditions, the same shall be summarily rejected and the decision of the Government shall be final.'
'Clause 1.2
The applicant for L-52 license should be in actual physical possession of a shop (hereinafter referred as 'the proposed shop') measuring 500 sq. ft., and above in a commercial complex/area recognised as such by the local bodies including DDA/MCD/NDMC, etc., or in a commercial complex/area by usage.
Explanation-I A shop will be considered in a commercial complex/area by usage if more than 33% of the premises are being used in that complex/ area for commercial purposes. The area to be taken into account for this purpose would be 30 meters on either sides of the proposed shop and 60 meters on the opposite side of the proposed shop.
Explanation-II Consideration of the proposed shop for the grant of L-52 license will not entitle the shop in question to be treated as commercial establishment for any other purpose in contravention of the rules of any other local authority/statute.'
'Clause 1.3
The proposed shop should be a puce building.'
'Clause 1.6
No. L-52 vend of foreign liquor, for consumption 'off' the premises shall be located within 75 meters from the following-
a) Major educational institutions
b) Religious places
c) Hospitals with fifty beds and above.
Explanation-I For the purpose of clause (a) above, major educational institutions would mean middle and higher secondary schools, colleges and other institutions of higher learning recognised by the Government of NCT of Delhi or Government of India.
Explanation-II For the purpose of clause (b) above, a religious place would imply a religious place having a puce structure with a covered area of more than 400 square feet.'
'Clause 11. RENEWAL
11.1 The Government of National Capital Territory of Delhi has declared that, normally, the Excise Year would be from 1st July to 30th June;
11.2 L-52 license may be renewed at the sole discretion of the Government subject to payment of such license fee and compliance of such other conditions as may be prescribed from time to time.'
'Clause 13.OTHER CONDITIONS OF license
13.1 license in Form L-52 for the licensing period shall be interalia subject to the general conditions in rule 33 and special conditions in rule 34 of the Delhi Liquor license Rules, 1976 (hereinafter referred to as the 'Rules'). The holders of L-52 license shall abide by the provisions of the said Act and the rules framed and orders issued there under and any other law/rules in force in the National Capital Territory of Delhi relating to liquor.'
24. Mr. V.P. Singh, learned senior counsel appearing for the petitioner submitted that there could be two types of licenses for sale of liquor, namely, 'license off the premises' and 'license on the premises'. According to him Section 35 of the Act dealt with 'license on the premises' i.e where liquor could not only be sold but consumed as well at the premises. Such cases would obviously be where bar licenses are given and the license holder is permitted to serve the liquor to the consumers on the premises and consumers are able to consume the same on the premises. These may include cases of Restaurants, Bars, Hotels etc. He submitted that L-52 licenses were clearly the 'licenses off the premises' where seller was permitted only to sell the liquor but it could not be consumed at the vend from where the liquor was sold. The consumer could carry the liquor in bottle after purchase. thereforee, the licenses which were proposed to be given to the petitioners were only to carry out trade of selling the liquor and that was the reason that as per liberalised policy issued by the Government, such shops could be open not only in 'commercial complex' but also in 'commercial complex by usage' as buyer was not supposed to consume the liquor at these vends. He submitted that petitioners had submitted their applications strictly confirming to the provisions of the Delhi Liquor license Rules 1976 and Delhi Intoxicants license and Sales Rules,1976. There applications were scrutinized and found to be in order in all respects. The procedure as contained in these Rules was followed by the concerned authorities named therein and the petitioners were found to be eligible in all respects. It is only after the process of this scrutiny was over that draw of lots were held wherein the petitioners were declared successful. Once this procedure was followed and necessary enquiries on the spot or otherwise as required by the relevant Rules were gone into by the Collector or the Gazetted Officer deputed by him, the petitioners could not be denied L-52 license on the plea that there was public resentment. It was totally extraneous consideration and colourable exercise of power, argued the learned counsel. He further submitted that when Statute and Rules gave authority to particular functionary to ascertain public opinion before granting license, such power could not be exercised by any other authority, howsoever, high he/she may be. thereforee, decision taken by the Finance Minister was without any authority. Furthermore, said decision was even otherwise illegal as it entrusted the power with MLA and merely on the complaint of MLA license could not be denied even when the functionary under the Rules had recorded his satisfaction and feasibility of grant of license. He submitted that Rule 13A of the Delhi Intoxicants license & Sale Rules,1976 clearly laid down the procedure as to how public opinion is to be obtained and this statutory provision could not be given go by and another mode of obtaining public opinion introduced for this, it was necessary to amend the rules and even such rules are amended they could operate prospectively. In the instant case argued the learned counsel, after entire process of selection had been gone into and petitioners were found entitled to L-52 license, by such administrative decision dated 3.1.2003 which was in violation of the Statutory Rules, the rights accrued to the petitioners cannot be said to be thrown away. Learned counsel referred to the following judgments in his support:
1. Assistant Excise Commissioner and others Vs . Issac Peter and others : [1994]2SCR67 .
2. Chandrika Jha Vs . State of Bihar and others : [1984]1SCR646 .
3. Dutta Associates Pvt. Ltd. Vs . Indo Merchantiles Pvt. Ltd. & Others : (1997)1SCC53 .
25. Mr. Rajesh Tyagi who appeared for some of the petitioners while adopting the aforesaid arguments, additionally submitted that administrative decision dated 3.1.2003 was without application of mind and taken mechanically going by public resentment and without having regard to the legal provisions. His further submission was that making MLA as final authority amounted to delegating the authority of obtaining of public opinion to MLA which was clearly an illegal delegation not permissible under the Rules. Further acting on such representation of MLA without verification as to whether the complaint made by MLA in a particular case is valid or not was clearly improper.
26. Mr. Kailash Gambhir learned counsel appearing for the respondents on the other hand submitted that there were three kinds of licenses stipulated in Punjab Excise Act namely, license for manufacture of liquor, license for wholesale trade in liquor and license for sale on retail basis. In the present case, we are concerned with third kind of license and for grant of license for sale on retail basis, there was no distinction of license 'on the premises' or 'off the premises'. His submission was that Section 35 of the Act clearly stipulated that before any license is granted for retail sale of liquor, the Collector could ascertain local public opinion in regard to licensing of such premises. Such opinions were to be taken in accordance with rules and these rules were to be made by the Lt. Governor of Delhi. Thus it was the Executive which was given power to make the rules to ascertain the public opinion. No rules were framed as to how public opinion is to be taken for grant of license of the premises. In the absence of such rules, if the Executive took administrative decision on 3.1.2003 providing for the manner of taking public opinion, no fault could be found therein. He submitted that no public opinion was obtained in all these cases including that of the petitioners before they were held eligible for grant of license by draw of lots. According to him, Rule 13A of the Delhi Intoxicants license & Sale Rules,1976 had no application as that Rule related to ascertainment of public opinion after the license had been granted. Thus when no public opinion was taken in these cases and the Government in its administrative authority decided to take public opinion before granting successful applicants like the petitioners and the prescribed mode for complaints/representations given through MLA was adopted, it was perfectly valid and was not contrary to any statute or rules. He concluded his submission by submitting that no rights of the petitioners were affected thereby as respondents were still willing to grant them licenses provided they shift their sites to places where land use was permitted and within the same zone/revenue estate. He also relied upon following judgments to support his submission that Government was free to take policy decision and when such policy was unanimously applies without any discrimination and was not unreasonable, irrational or arbitrary, the Court would not interfere with the same:
1. State of Punjab & Ors. v. Ram Lubhaya Bagga etc. 1998 II AD (S.C.) 449.
2. M.P. Oil Extraction Vs . State of M.P. : (1997)7SCC592 .
3. Rai Sahib Ram Jawaya Kapur and others Vs . The State of Punjab : [1955]2SCR225 .
4. M/s.Khoday Distilleries Ltd. Etc. Vs . State of Karnataka & Ors. : (1995)1SCC574 .
27. I have bestowed thoughtful consideration to the submissions of counsel appearing on either side with reference to the record. Various provisions for grant of license for sale of intoxicants/liquor have already been reproduced above. It was found, after undertaking the necessary process, that petitioners were eligible for grant of L-52 license. thereforee, it would be implicit that petitioners fulfill various conditions stipulated in the statutory provisions as well as rules and scheme etc. and that is why they were found eligible for grant of license. The entire controversy relates to the ascertainment of public opinion. According to the petitioners such public opinion is to be obtained only where the license is to be granted for retail vend of liquor for consumption 'on the premise' i.e. when the intention is to not only sell the liquor at the said premises but the consumption of liquor is also allowed at the premises. On the other hand such a public opinion is required irrespective of the fact whether the license is for the retail vend of liquor on the premise or 'off the premise'. In fact according to the respondents there is no such distinction.
28. First question which falls for determination is as to whether there is any distinction between the two types of licenses viz. 'off the premises' and 'on the premises'. Mr. Kailash Gambhir argued that there are three kinds of licenses stipulated in Punjab Excise Act namely, license for manufacture of liquor, license for wholesale trade in liquor and license for sale on retail basis. There is no dispute about the same. However, it appears that the last category is again divided in two categories. That can be clearly inferred from the reading of relevant Rules in this behalf.
29. Section 35 of the Punjab Excise Act deals with grant of license for sale and stipulates that subject to the rule made by the Excise Commissioner under the powers conferred by the Act, the Collector may grant license for sale of any intoxicants within his District. Sub-Section 2 of Section 35 deals with ascertainment of public opinion in accordance with rule to be made by Lt. Governor of Delhi in his behalf. This rule speaks of grant of license for retail sale of liquor for consumption on any premises. Thus when the liquor is to be consumed on the premises, rule about ascertainment of public opinion would be applicable.
30. Rule 33 of Delhi Intoxicants license and Sales Rules 1976 deals with the procedure to be followed before any license is granted for the retail vend of liquor for consumption 'on the premises' and, inter alia, specifies that the Collector would take all reasonable steps to ascertain opinion of the persons who reside or have property in the neighborhood and are likely to be affected by the proposal. As is clear from the language of the rule, it is meant for those vends of liquor where there is consumption 'on the premises'. thereforee, the petitioners are correct in their submission that this rule would not be applicable where the retail vend of liquor is not meant for consumption on the premises. Thus Section 35 of the Act or Rule-8 deal with ascertainment of public opinion only in those cases where retail license is to be given for sale of liquor for consumption on any premises.
31. This conclusion becomes abundantly clear when we take note of the decision of the Government of NCT of Delhi taken in the year 2002 to liberalise the liquor policy and with this purpose in mind it decided to give license in Private Sector also. For this purpose not only liberalise policy was announced, consequential amendments in Delhi Liquor license Rules 1976 were also carried out vide Notification dated 28.6.2002. L-52 license has been introduced by this amendment by introducing sub-Rule 20 of Rule 34. Amendment to sub-Rule-1A of 33 as well as sub-Rule 8 of Rule 33 of Delhi Liquor license (Amendment Rules) 2002 would further suggest the following:
1. Certain restrictions are introduced for giving retail license for retail vend of country liquor or foreign liquor for consumption 'off the premises'. This amendment specifically deals with license for consumption 'off the premises'. Thus the concept of license for retail vend for consumption off the premises is specifically introduced in contrast with the consumption 'on the premises'. thereforee, contention of learned counsel for the respondents that there is no distinction of license 'on the premises' and 'of f the premises' would not be correct.
2. Restrictions relate only to distance of such premises from specified places, namely, major educational institutions, religious places and hospitals with 50 beds or above.
3. license can be granted at a place which is ' commercial complex by usage'. Thus apart from strictly commercial complex even those areas which are used as commercial complex, license can be granted which shows that the intention was to liberalize the liquor policy by awarding license in such areas as well.
32. Significantly, no provision is made for ascertainment of public opinion in respect of L-52 license or license for retail vend of country liquor or foreign liquor for consumption 'off the premises'..
33. It appears that even respondents' own understanding of the policy amendment in the rule was that as far as L-52 licenses are required the public opinion is not to be ascertained. It is because of this reason that in the entire process from inviting applications till the draw of lots wherein the petitioners were found entitled to license, the public opinion was not ascertained. Otherwise respondents would have undertaken this exercise before considering the applications of all such applicants including that of the petitioners. It further appears that only after the Division Bench rendered the judgment in the case of Salekh Chand Jain (supra) proscribing grant of license in residential areas, there was public resentment even in respect of some other sites which are not otherwise located in the residential areas and in view of such resentment, matter was reconsidered by the Government wherein impugned decision was taken not to grant licenses in respect of those vends where there is public resentment and objections have been received through MLAs. Non-grant of license on this ground which is not specified in the rules, thereforee, may not be proper. The view I have taken, it may not be necessary to deal with the contention as to whether taking of public opinion through MLA would be proper or not is not required to be gone into.
34. Even while holding the aforesaid view, question would be as to whether the mandamus of the nature prayed for by the petitioners should be granted in exercise of powers under Article 226 of the Constitution of India which is a discretionary relief. No doubt the petitioners were found successful for grant of license. However, before license could be issued, the respondents at the highest level took a policy decision on 3.1.2003 that for grant of license in such areas, public opinion is to be respected and provided for the manner of taking such public opinion. The respondents have placed on record the objections received by the Government in all these cases which are by various residents or NGOs. Or other organisations. If on that ground the respondents have decided not to grant license to the petitioners, in my considered opinion, it would not be proper to issue mandamus to the Government to grant license to the petitioners for opening of liquor vends at such sites. It is more so when trade in liquor is not fundamental right of the petitioners under Article 19(1)(g) of the Constitution of India. However, as going by the representation/advertisement of the respondents, petitioners applied for these license for which they even selected sites. Some of these petitioners took these vends on rent for which they have been payi ng huge rent even those who are owners of the vends have not utilised the same and kept it vacant for doing the business after getting L-52 license for which they were selected as well. Because of non grant of license petitioners would definitely suffer damages and it is the respondents who are responsible for the same. Following the ratio of the Division Bench judgment of this Court in the case of Bharat Catering Corporation & Anr. Vs . Union of India & Ors. : 100(2002)DLT640 , I deem it proper to grant damages in the sum of Rs. 50,000/- to each petitioners in these cases. In addition, these petitioners shall be at liberty to file appropriate civil suit against the respondents for claiming such damages. It may be mentioned at this stage that in other similar cases the respondents have allowed such persons to challenge the location of their vends and grant them licenses if the new location is permissible under the rules. Needless to say, the petitioners were also be entitled to exercise such an option. If they so desire, the petitioners would make an application in this behalf within one week and on making this application the same shall be considered by the respondents within two weeks thereafter. The petitioners shall also be entitled to costs fixed at Rs. 5,000/- per petitioner in each case.
35. These writ petitions are disposed of with the aforesaid directions.