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Residents Welfare Association (Regd.) , Virender Kumar Gupta Versus Govt of NCT of Delhi, Department Of Excise (GNCT of Delhi) & Others

2015 (5) TMI 438 - DELHI HIGH COURT

Permissibility of a liquor vend in a “Convenient Shopping Centre” - Held that:- on what basis DDA has taken a stand that a liquor vend though is permitted in a LSC is not permitted in a CSC. If both, LSC and CSC can be situated in the midst of a cluster of houses, whether housing 5000 or 1000 persons and naming thereof as LSC or CSC is dependent only on the area of land on which it is constructed, the problem / nuisance highlighting which both proceedings have been filed will persist, whether it .....

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ce centres like travel agents, car rentals, clinics, laboratories, banks, restaurants etc. and which will be frequented by residents of several surrounding localities and may be by others as well. In such case it could have been said that as per our culture, there ought not to be a liquor vend in a CSC. However we do not find the MPD-2021, though having the nomenclature of CSC and LSC to have made any such distinction. The draftsman of the Master Plan, after drawing the five tier system of comme .....

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in a CSC, we fail to see on what basis DDA can say that retail of liquor is not permitted from therein. Not only so, restaurants have been permitted in both, LSC and CSC.

Though the concerns expressed by the petitioner/appellant cannot be said to be totally unfounded but cannot be addressed on the basis of MPD-2021, pegging on which the Court has been approached. The same is the position under the Excise Act and the Rules framed thereunder. Though care has been taken therein to proh .....

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uisance associated with consumption of liquor around CSCs in residential neighbourhood. The same be done preferably within a period of four months - Petition disposed of. - LPA No. 166/2015 & CM No. 5395/2015, W. P. (C) No. 4909/2013 - Dated:- 8-5-2015 - The Chief Justice Hon'ble Mr. Justice Rajiv Sahai Endlaw,J. For the Appellant : Mr. Anshum Jain & Ms. Isha Agarwal, Adv. For the Respondent : Mrs. Zubeda Begum & Ms. Sana Ansari, Advs. for R-1. Mr. Arjun Pant, Adv. for R-2. Mr. Abhim .....

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10, to the existence of a liquor vend in a CSC. 2. WP(C) No. 4909/2013, though not labeled as a Public Interest Litigation but ordered to be treated as a Public Interest Litigation upon it being found that the petitioner therein does not claim any personal interest in the matter except to the extent that he is also a resident of the locality in which the liquor vend had been opened, has been filed impugning the grant of L-7 licence for retail sale of liquor from Shops No.43 and 45, CSC (Sunder P .....

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hops such as mother diary, general stores etc where the small kids and women of the neighbouring area visit regularly for buying the household goods; (ii) that as per the policy of the Delhi Development Authority (DDA) and direction issued to the Excise Department, it is impermissible to open liquor vend for selling hard liquor in CSC; (iii) that the liquor vend had been opened by amalgamating two shops and which itself is illegal and of which one of the shops had been earmarked for a flour mill .....

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case of the appellant in LPA No.166/2015, (i) that the liquor vend was illegally allowed to operate for last several years and which has resulted in complaints from the residents, with regard to the safety of children and women because of bad atmosphere in and around the liquor vend; (ii) that DDA in reply to RTI query has stated that wine shops are not permissible in CSC built by DDA; (iii) that the basic purpose of developing the CSC for each block of the colony is to meet the basic daily nee .....

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and, (vii) that this Court vide order dated 15th December, 2011 in WP(C) No. 7983/2010 titled Sarita Vihar Pocket A Resident Welfare Association Vs. Government of NCT of Delhi had ordered closure of the liquor vend in the CSC of the said Pocket of the colony of Sarita Vihar. 6. Both proceedings were filed after the complaints and representations of the petitioner/appellant met with no success and seeking a direction for closure of the respective liquor vends. 7. DDA, in its counter affidavit in .....

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has stated, (i) that the licence for the liquor vend at Sunder Plaza Market, Pachim Vihar was issued in accordance with the rules and regulations and after spot inspection and satisfying that the same is not within the prohibited distance from any major educational institution or religious place and hospital with 50 beds and above; (ii) that the Excise Department, GNCTD, before issuing the licence for the said liquor vend, had also satisfied itself that the land use of the shops with respect to .....

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ter receiving the complaint, clarification had been sought from the DDA and the response was awaited. 10. GNCTD and the Commissioner of Excise, NCT of Delhi in their joint counter affidavit to the writ petition from which LPA 166/2015 arises stated, (i) that the subject liquor licence at CSC, East of Kailash was issued way back in 1986-87 under the then prevailing Punjab Excise Act, 1914 and on the basis of the prevailing DLLR 1976 which only prohibited liquor licence within the prohibited dista .....

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ctions issued by the Excise Commissioner from time to time; (iv) that presently fresh license are not being issued in CSC; however where liquor licenses have already been issued as per past practice and then permissible use, the licenses have not been disturbed; (v) further, the Government has requested the Ministry of Urban Development to amend the MPD-2021 for allowing the opening of liquor shops in area other than the approved commercial area, so as to bring the MPD in consonance with the cur .....

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) that the restriction of not allowing liquor shop in CSC should not affect the licenses which were already granted prior to the time, the said restrictions became applicable. 11. The licensee of the liquor vend subject matter of W.P.(C) No.4909/2013 has also filed an affidavit pleading, (a) that the petition is motivated as the petitioner is a close relative of one Sh. Sanjeev Mittal who himself had earlier applied for a license for vending liquor from the subject premises but which request was .....

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striction to the liquor vend in the subject premises; (e) that the amalgamation of the shop was in consonance with the policy and was not violative of the building bye-laws; and, (f) that nobody has filed any complaint of any nuisance, for the last nearly three years since when the subject liquor vend has been operating. 12. The licensee of liquor vend subject matter of LPA No.166/2015 in its counter affidavit has stated: (I) that the concerned CSC at East of Kailash had been de-notified and DDA .....

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eding 50 in number in residential area serving a population of 5000 persons; on the contrary an LSC has been defined as a group of shops not exceeding 75 in number in a residential area serving a population of 15000 persons; and, (V) that C Block Market in East of Kailash where the subject liquor vend is situated consists of shops more than 50 in number in a residential area serving a population of more than 5000 persons and is therefore not a CSC. 13. DDA filed another affidavit dated 23rd Janu .....

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ew, such shops were not proposed to be allowed in CSC, as they primarily cater to the day to day need of the residential area; the Technical Committee agreed only to the proposal for permitting liquor shops in LSC; (D) thus liquor shops are not permitted in CSC; (E) that the area of East of Kailash stands de-notified to Municipal Corporation of Delhi (MCD) and it is the MCD which is to take action, if any. 14. The learned Single Judge, in the judgment impugned in LPA No.166/2015, has inter alia .....

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June, 2010 had decided to permit liquor vends in local shopping centres; counter arguments were raised whether the same implied rejection of the proposal to allow liquor vends in CSCs; however the same was irrelevant in as much as the decision of the Technical Committee did not translate in a review or amendment of the MPD-2021; in fact the said decision of the Technical Committee was not even approved by the Management Action Group or the Advisory Group of the DDA; the minutes of the meeting of .....

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he Excise Act and the Rules framed thereunder do not prohibit a liquor vend in a CSC; and, (g) the decision dated 15th December, 2011 of a Single Judge of this Court in W.P.(C) No.7983/2010 (supra) pertaining to the colony of Sarita Vihar was not an adjudication and was a consent order and thus has no precedential value. Accordingly the writ petition was dismissed. 15. Before us, the counsels for the parties raised the same contentions as have been recorded hereinabove. 16. We had during the hea .....

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entre; (iii) Community Centre; (iv) Local Shopping Centre; and, (v) Convenience Shopping Centre is envisaged to accommodate required shopping, commercial, office and other service activities like cinema, hotel and restaurant and various community services and facilities in an integrated manner. 19. In Table 5.1 thereunder, of the Five-Tier System of Commercial Areas, in the column titled Population‟, against the Metropolitan City Centre no population is mentioned, against District Centre p .....

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stockists and dealers of medicines and drugs, commercial offices, clinical laboratory, clinic & poly clinic, repair/services, bank, ATM, guest home, informal trade, coaching centres/training institutes, restaurant the activities permitted in CSC are described as retail shopping, local level service activities, repair, office up to 125 sqm., bank, ATM, informal trade, restaurant . 20. Table 5.4 thereunder, prescribing Development Controls-Commercial Centres‟ does not make any distinctio .....

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population of about 5000 persons and a Local Shopping Centre as a group of shops in a residential area serving a population of about 10000 persons with the activities permitted in both, as per Table 5.1 supra. 22. We have not found reference elsewhere in the Master Plan to the LSCs and CSCs. 23. The aforesaid would show that the only difference between a LSC and a CSC vis-à-vis the activities permitted therein is, that in CSC there cannot be a commercial office of a size more than 125 sq .....

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PD-2021 is of the land size over which it is constructed and the population to which it is meant to cater. Neither the petitioner / appellant nor the DDA who are contending that a liquor vend is not permitted in a CSC and that the subject premises in both proceedings are situated in a CSC, have in their pleadings given any particulars in this regard. We therefore do not know the size of the land on which the shopping centres at Paschim Vihar or at East of Kailash Market are situated i.e. whether .....

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C or a CSC. 26. It is also not as if under the Master Plan, the LSC is supposed to be at a larger distance away from the residences and a CSC is supposed to be within walking distance to be easily accessible to the residents, particularly the ladies and children. 27. We have thus wondered as to on what basis DDA has taken a stand that a liquor vend though is permitted in a LSC is not permitted in a CSC. If both, LSC and CSC can be situated in the midst of a cluster of houses, whether housing 500 .....

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eld on 23rd August, 2013 under the Chairmanship of Lt. Governor, Delhi and concur with the reasoning given by the learned Single Judge with respect thereto. 29. We, from the nomenclature understand, a CSC as a small shopping centre in the midst of the houses within the colony or a block thereof with shops therein selling items of daily need of households of perishable items and which shops ordinarily an outsider from the colony would not visit and a LSC as situated outside the residential colony .....

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f CSC and LSC to have made any such distinction. The draftsman of the Master Plan, after drawing the five tier system of commercial areas comprising inter alia of LSC and CSC, has provided retail shopping without any restriction on the size of the retail shop or on the commodities to be retailed therefrom, in both LSC and CSC and the only restrictions are on commercial offices of size more than 125 sq. mtrs., Clinical Laboratory, Polyclinic, Guesthouse, Coaching Centre, which activities though c .....

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