# Bishop Johnson School & College & anr v. The Excise Commissioner & others

- **Citation:** (2010) 1 ILRA 195
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-02-02
- **Case number:** Civil Misc. Writ Petition No. 39914 of 2009
- **Bench:** Ashok Bhushan, R.A. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bishop-johnson-school-college-anr-v-the-excise-commissioner-others-41548
- **Pages:** 21

## Headnote

Constitution of India, Article 226-view of
U.P. Number and Location of Excise
Shop, (forth Amendment) Rules 2008
Rule 5 (4)-challenged-the restrictions of
100 meters-prescribed by judgment of
Apex Court in Manoj Kumar Dwivedi
Case-reduced to 50 meters without any
rational basis-such amendment in rules
clearly an eye wash and contrary to very
object and purpose of rule making
authority-deserves to stuck down being
unreasonable and arbitrary.

Held: Para 36

From the foregoing discussions, it is
clear that amendments as made by the
State in Rule 5(4) by 2008 amendments,
is manifestly unreasonable and arbitrary.
It clearly defeats the very purpose and
object of the policy of the Statute and
the purpose for which the State was
clothed with the rule making power to
effectuate the policy. It is not the case of
the
respondents
that
they
have
withdrawn the policy or there is no more
policy of the Statute that excise shop
196 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
shall not be located near the place of
public resort, school, hospital, place of
worship or factory, or to the entrance to
a Bazar or a residential colony. The
amendment of the rule is clearly an
eyewash and is contrary to the very
object and purpose for which rule
making authority was empowered to
frame the rules. Therefore, we are of the
clear view that amendments 2008 under
rule 5(4) deserves to be struck down as
being
manifestly
unreasonable
and
arbitrary.
Case law discussed:
(2008) 4 SCC 111, (1976) 4 SCC 750, 1993
Supp (1) SCC 96 (II), 2005(7) SCC 584,
(1996) 3 SCC 709, (1985) 1 SCC 641, (2006) 4
SCC 517, (2006) 3 SCC 434, (1997) 2 SCC
453, (2007) 1 SCC 732, (1981) 4 SCC 675,
(1974) 1 SCC 19, AIR 1952 SC 123, AIR 1960
S.C. 457, AIR 1954 SC 220, (1890) 34 Law Ed.
620 (A), (1995) 1 SCC 574, (1996) 3 SCC 709.

## Text

_Characters 0–39,774 of 73,358. This is a partial read: ask again with offset=39774 for what follows._

1 All] Bishop Johnson School & College & anr. V. The Excise Commissioner & others
195
granted to the petitioner and he is capable
to repay the same.

19. The public money entrusted to
the bank's cannot be permitted to be
misutilised. Respondent bank is bound by
the norms set up for the purposes of grant
of loan. No writ or direction can be issued
as prayed for to grant loan if the bank is
not satisfied with the credit worthiness of
the petitioner.

20. In view of the above discussions,
the respondents have rightly refused to
concede the proposal of the petitioner for
loan especially in view of the fact that the
petitioner has failed to disclose his
residential address either in the papers
produced for loan or in this writ petition.
He has also failed to furnish the
documents as required by the respondents
in order to grant loan to him. In his
rejoinder affidavit the petitioner has also
failed to deny the allegations made in para
11 of the counter affidavit wherein it has
been mentioned specifically that the
petitioner has taken loan from Syndicate
Bank, Dholpura Branch, Agra, which is
also running highly irregular on account
of default of the petitioner.

21. Under these circumstances, this
Court is not inclined to allow this writ
petition, which is devoid of merits and
based
on
imaginary
grounds.
Consequently
this
writ
petition
is
dismissed. But no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.02.2010

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE R.A. SINGH, J.

Civil Misc. Writ Petition No. 39914 of 2009

Bishop Johnson School and College and
another

 ...Petitioners
Versus
The Excise Commissioner, State of U.P.
and others

 ...Respondents

Counsel for the Petitioner:
Sri A.D. Saunders

Counsel for the Respondents:
Sri Satish Chaturvedi (Advocate General)
Sri S.P. Kesharwani (Addl. C.S.C.)
Sri Mukesh Prasad

Constitution of India, Article 226-view of
U.P. Number and Location of Excise
Shop, (forth Amendment) Rules 2008
Rule 5 (4)-challenged-the restrictions of
100 meters-prescribed by judgment of
Apex Court in Manoj Kumar Dwivedi
Case-reduced to 50 meters without any
rational basis-such amendment in rules
clearly an eye wash and contrary to very
object and purpose of rule making
authority-deserves to stuck down being
unreasonable and arbitrary.

Held: Para 36

From the foregoing discussions, it is
clear that amendments as made by the
State in Rule 5(4) by 2008 amendments,
is manifestly unreasonable and arbitrary.
It clearly defeats the very purpose and
object of the policy of the Statute and
the purpose for which the State was
clothed with the rule making power to
effectuate the policy. It is not the case of
the
respondents
that
they
have
withdrawn the policy or there is no more
policy of the Statute that excise shop
196 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
shall not be located near the place of
public resort, school, hospital, place of
worship or factory, or to the entrance to
a Bazar or a residential colony. The
amendment of the rule is clearly an
eyewash and is contrary to the very
object and purpose for which rule
making authority was empowered to
frame the rules. Therefore, we are of the
clear view that amendments 2008 under
rule 5(4) deserves to be struck down as
being
manifestly
unreasonable
and
arbitrary.
Case law discussed:
(2008) 4 SCC 111, (1976) 4 SCC 750, 1993
Supp (1) SCC 96 (II), 2005(7) SCC 584,
(1996) 3 SCC 709, (1985) 1 SCC 641, (2006) 4
SCC 517, (2006) 3 SCC 434, (1997) 2 SCC
453, (2007) 1 SCC 732, (1981) 4 SCC 675,
(1974) 1 SCC 19, AIR 1952 SC 123, AIR 1960
S.C. 457, AIR 1954 SC 220, (1890) 34 Law Ed.
620 (A), (1995) 1 SCC 574, (1996) 3 SCC 709.

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri A.D. Saunders, learned
counsel for the petitioner and Sri Satish
Chaturvedi, learned Additional Advocate
General assisted by Sri S.P. Kesharwani,
learned Additional Chief Standing Counsel
for the State and Sri Mukesh Prasad,
Advocate appearing for the respondent no.
2.

2. Counter affidavit and rejoinder
affidavit have been exchanged between the
parties and with the consent of learned
counsel for the parties, the writ petition is
being finally decided.

3. Brief facts of the case necessary to
be noted for deciding the present writ
petition are that writ petitioner No. 1 is a
minority institution recognized by Board
of Council for the Indian Schools
Certificate Examination, New Delhi. The
petitioner no. 2 is the Principal of the
college. More than 3000 students are
studying in institution from class I to class
XII. The institution is situated at Mahatma
Gandhi Marg in the city of Allahabad.
Across the road in front of the institution a
beer shop is running, whose location is
being objected by the petitioners.

4. The State of U.P. in exercise of
power under Section 40 of the U.P. Excise
Act, 1910 has framed the rules namely;
U.P. Number and Location of Excise Shop
Rules 1968. Under Rule 5(4) there is
prohibition of opening a shop in close
proximity to a place of public resort,
school, hospital, place of worship or
factory, or to the entrance to a Bazar or a
residential colony. A public Interest
Litigation was filed at Lucknow Bench of
this Court objecting indiscriminate opening
of beer shops in close proximity to a place
of public resort, school, hospital, place of
worship or factory, or to the entrance to a
Bazar or a residential colony. The
Lucknow Bench of this Court entertained
the public interest litigation and took the
view that no shop within 100 meters of the
close proximity of a place of public resort,
school, hospital, place of worship or
factory or to the entrance to a Bazar or a
residential colony be opened. Against the
Division Bench judgment of the Lucknow
Bench of this Court, State of U.P. filed an
appeal in the apex Court which appeal was
decided approving the view taken by the
High Court that no shop be allowed to run
in a radius of 100 meters or 300 fits
approximately of a place of public resort,
school, hospital, place of worship or
factory or to the entrance to a Bazar or a
residential
colony.
The
apex
Court
however, allowed the existing shops to
continue till 31.3.2008 and thereafter it
was directed that no shop within 100
meters of above places be allowed to run.
The judgment of the apex Court is reported
1 All] Bishop Johnson School & College & anr. V. The Excise Commissioner & others
197
in (2008) 4 SCC 111 State of U.P. Vs.
Manoj Kumar Dwivedi and others.

5. The present writ petition was filed
by the petitioners stating that inspite of the
aforesaid judgment of the apex Court, no
steps are being taken by the Excise
Commissioner in closing the shop, which
is within radius of 50 meters of the
petitioners' institution. The petitioner after
coming to know that 1968 Rules above
mentioned has been amended by the State
of U.P. vide notification dated 20.3.2008
by U.P. Number and Location of Excise
Shops (Fourth Amendment) Rules, 2008
by which Rule 5(4) has been substituted
was permitted to amend the writ petition
challenging the Rule 5(4) as amended by
2008 Amendment Rules. The petitioners
vide amendment application made in the
writ petition, has also challenged Rule 5(4)
. Following reliefs have been claimed in
the writ petition:

"A) To issue a writ order or direction in
the nature of mandamus calling upon the
respondent No. 1 to take appropriate steps
in accordance with law laid down by the
Apex Court in the matter of State of U.P.
and others Vs. Manoj Kumar Dwivedi and
others, reported in AIR 2008 SCW 1912.

B) To issue a writ order or direction in the
nature
of
mandamus
directing
the
respondents to remove the beer shop
situate near Bishop Johnson School and
College, Mahatma Gandhi Marg, Civil
Lines, Allahabad.

(iv) to issue appropriate writ, order or
direction declaring Rule 5(4) as amended
vide notification dated 20th March, 2009
to be void being ultra-virus of the
Constitution of India."

6. The petitioners' case in the writ
petition is that the Rule as amended in
2008 does not by any means carry out the
purpose and object of the Excise Rules
framed thereunder rather it frustrate the
very object of the Excise Rules itself. The
amended rule is wholly arbitrary, illegal
and beyond the scope of rule making
power. The object of the amended rule is
not to protect or preserve sanctity of place
of public resort, school, hospital, place of
worship or factory or to the entrance to a
Bazar or a residential colony but in other
way the action of the State in amending the
Rule is contempt of the orders passed by
the apex Court in Manoj Kumar Dwivedi's
case (supra). A beer shop in so close
proximity of the institution has poor and
adverse impact on the students particularly
to the senior students. At times, young
boys are seen drinking beer near and
around the beer shop.

7. A counter affidavit has been filed
on behalf of the State stating thereunder
that beer shop has been licensed to
respondent no. 2 for the year 2009-10. The
shop is being run since the year 2001. The
beer shop is situated at a distance of 120
meters from the main entrance gate, 70
meters from another gate of the petitioner's
college, about 178 meters from St.
Cathedral Church, 350 meters from the
Bishop Hall and 67 meters from the house
of the principal. Challenge to the validity
of the amended Rule 5(4) is wholly devoid
of substance. Rule 5 (4) has been amended
by notification dated 20.3.2008, which was
within the legislative competence of the
Rule making authority. In the unamended
Rule words "close proximity" was not
defined which was left to the discretion of
the authorities and now by the amendment,
the minimum distance of 50 meters (in
case of the area within the limits of the
198 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
City Corporation) has been fixed so as to
remove any uncertainty or vagueness.
Different distances have been fixed with
regard to Corporation, Nagar Palika
Parishad and Nagar Panchayat. There are
other States in the country namely; State of
Tamil Nadu and State of Maharashtra,
which have also framed rules to the similar
effect. The judgment of the apex Court in
Manoj Kumar Dwivedi's case (supra) does
not prohibit the competent Legislature
from
making
provisions
regarding
distances. By notification dated 20.3.2008,
the lacuna in the rules have been removed
and there is always presumption in favour
of the Constitutional validity of the
Statutes.

8. A counter affidavit has also been
filed on behalf of the respondent no. 2, the
licensee of the beer shop, in which it has
been stated that after the 4th Amendment
Rules 2008, the decision of the apex Court
in Manoj Kumar Dwivedi's case (supra) is
not applicable and the beer shop in
question is to be governed by the
provisions of the 4th Amended Rules,
2008. The site of the shop of the
respondent no. 2 is in accordance with the
provisions of the 4th Amendment Rules
and there is no illegality.

9. The petitioners have filed rejoinder
affidavit reiterating the pleas raised in the
writ petition. It has been stated that the
Legislative competence is not being
questioned but the exercise is to defeat and
nullify the judgment of the apex Court,
which is nothing but sheer abuse of the
power vested in the authority concerned.
Instead of promoting the spirit of the
judgment of the apex court in ensuring a
clean and pure environment around the
institutions and residential areas, the State
in an act of vindictiveness has reduced the
distance of "close proximity" bringing
beer/liquor shops to the very gates of the
institutions and doorsteps of residential
houses. There is neither any justification
nor any cogent reason to reduce the
distance of close proximity. The example
quoted regarding other States have no
applicability in the instant case.

10. Sri A.D. Saunders, learned
counsel for the petitioner made following
submissions in support of the writ petition:

(i) Amendment Rules, 2008 by which
Rule 5(4) has been substituted is in
teeth of judgment of the apex Court in
Manoj Kumar Dwivedi's case and on
this ground alone the amended Rule is
liable to be struck down.
(ii) The amended Rule 5(4) does not
protect the petitioners' college rather
the definition of the school given in
Rule 5(4) explanation (ii) includes the
colleges owned or managed or
recognized by any local authority or
Central
Government
which
is
discriminatory and arbitrary.
(iii) The Rule 5(4) by which distance for
opening the shop has been reduced to
50
meters
in
Corporation
is
unreasonable, arbitrary and against
the
object
and
policy
of
the
Legislature for not opening the liquor
shop near place of worship or school
or hospital or residential colony.

11. Learned Additional Advocate
General assisted by Sri S.P. Kesharwani,
refuting
the
submissions
of
learned
Counsel for the petitioners contends that
judgment of the apex Court in Manoj
Kumar Dwivedi's case (supra) does not
take away the power of the State
Government
to
legislate
and
by
amendment in Rule 5(4), the very basis of
1 All] Bishop Johnson School & College & anr. V. The Excise Commissioner & others
199
the judgment of Manoj Kumar Dwivedi's
case was taken away. Rule 5(4) having
been
amended
in
exercise
of
the
Legislative power of the State, there is no
question of violating the judgment of the
Supreme Court. There is no lack of
legislative
competence
to
enact
the
impugned rule. There is no allegation in
the writ petition that the impugned rules
are violative of any fundamental or
constitutional rights of the petitioners.
Fixation of distances with regard to
location of the liquor shops is Legislative
function and the State Government validly
and lawfully exercised its powers under
Section 40(2) (e) of the Excise Act, 1910.
There is always a presumption in favour of
the Constitutional validity of a legislative
enactment
including
the
delegated
legislation. The impugned rule is neither
arbitrary, nor illegal nor suffers from
legislative competence rather the distances
provided in different categories of area is
based on reasonable classification. In fact
by the impugned rules, the Legislature has
removed the deficiency in the rule by
providing the different classes depending
upon density of population which is based
on reasonable classification.

12. Sri Mukesh Prasad, learned
counsel for the respondent no. 2 submitted
that the apex Court in Manoj Kumar
Dwivedi's case (Supra) had only filled the
vacuum by giving the distance regarding
opening of liquor shops near place of
public resort, school, hospital, place of
worship or factory or to the entrance to a
Bazar or a residential colony. While
interpreting the word "close proximity" as
1968 Rules did not define the word "close
proximity", the State of U.P. has now in
exercise of power under Section 40 of the
Excise Act has amended Rule 5(4) and has
removed the word "Close proximity" and
has given the minimum distance, to which
the State is fully empowered. Although the
Legislature cannot by mere declaration
directly overrule or reverse a judicial
decision but it can at any time in exercise
of its plenary power conferred by the
Constitution, render any judicial decision
ineffective by enacting a valid law on a
topic
within
its
legislative
field
fundamentally altering or changing its
character retrospectively. The Legislature
may neutralise the effect of the earlier
decision of the Court which becomes
ineffective after change of law. The
amendment in the Rule is in consistent
with the provisions of Part III of the
Constitution
of
India.
After
the
amendment, decision of the apex Court in
State of U.P. Vs. Manoj Kumar Dwivedi is
no more applicable. No specific grounds
have been given assailing either the powers
of the State Government to amend the law
or the illegality in the validity of the Fourth
Amendment Rules.

13. Learned Counsel for the parties
have also referred to and relied on various
judgments of the apex Court, which shall
be referred to, while considering the
submissions in details.

14. We have considered the
submissions of learned counsel for the
parties and have perused the record.

15. Before we proceed to examine
the different contentions of learned counsel
for the parties, it is necessary to have a
look over the relevant rules of the Excise
Rules which are under consideration. The
challenge in the writ petition is to Rule
5(4) as amended by 2008 Amendment
Rules dated 20.3.2008. Section 40 of the
U.P. Excise Act, 1910 gives power to the
State to make rules for the purpose of
200 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
carrying out the provisions of the Act. In
exercise of power under Section 40(2)(e),
the Governor has framed the rules namely
U.P. Number and Location of Excise Shop
Rules, 1968. Rule 5 lays down the
principles which shall be observed for
determining the location and sites of the
liquor shops.

16. The rule 5(4) relevant for the
present case indicates that the object and
policy incorporated in the Rules were to the
effect that no liquor shop shall be licensed
in "close proximity" to a place of public
resort, school, hospital, place of worship or
factory or to the entrance to a Bazar or a
residential colony. The object and purpose
for not permitting the opening of the liquor
shops near school, hospital and place of
worship etc. was to protect the above places
from the effect of running of a liquor shop.
The present is a case where liquor shop is
situated in front of school across the road.
Large numbers of shops were being
licensed by the State Government to
augment its revenue disregard to the policy
and object as contained under Rule 5(4). A
Public Interest Litigation was filed before
the
Lucknow
Bench
of
this
Court
challenging the running of the shops in
close proximity to the place of public resort,
school, hospital, place of worship or factory
or to the entrance to a Bazar or a residential
colony. A Division Bench of this Court
fixed distance of 100 meters approximately
within which no liquor shop was to be
opened. The State of U.P. challenged the
aforesaid direction of the Division Bench
and apex Court in the said case had
occasion to consider rule 5(4) of 1968
Rules. The Apex Court laid down following
in paragraphs 11 and 12 of the judgment:

"11. We fully agree with the view taken by
the High Court and we are also of the view
that 10 0 meters or 300 ft.(approx.) should
be the right criteria were the Excise
Commissioner shall not give any licence to
a shop under the Excise Act. We hope and
trust that the Excise Commissioner of the
State shall take into consideration sub- rule
(4) of Rule 5 of the U.P. Excise Rules and
see that no shops or sub- shops are opened
within radius of 100 meters or 300 ft.
(approx.) of a place of public resort, school,
hospital, place of worship or factory, or to
the entrance to a bazar or a residential
colony. The interpretation of the word
"close proximity" was vague therefore it
was misused by the authorities. But, now the
matter has been placed beyond any
vagueness.
Therefore,
with
the
interpretation of the expression "close
proximity" by the High Court, the matter
has been put in the right perspective and the
doubt has been cleared. Therefore, taking
into consideration all the facts and
circumstances of the case, we affirm the
view taken by the High Court insofar as
fixing the distance of 100 meters or 300 ft.
(approx.) from a place of public resort,
school, hospital, place of worship or
factory, or to the entrance to a bazar or a
residential colony where no shop or sub-
shop shall be opened under the U.P. Excise
Act and Rules framed thereunder.

12. However, we do not approve of the
approach of the High Court in closing the
shops without issuing notice to the affected
parties. This should not have been done.
Since the operation of the impugned
judgment and order was stayed by this
Court, these shops have continued to
operate. We direct that the interim order
dated 28.04.2006 passed by this Court
under which these shops are operating,
shall continue to operate till 31.3.2008 and
after that no shops or sub- shops under the
U.P. Excise Act shall be opened or continue
1 All] Bishop Johnson School & College & anr. V. The Excise Commissioner & others
201
to open within a radius of 100 meters or
300 ft. (approx.) of a place of public resort,
school, hospital, place of worship or
factory, or to the entrance to a bazar or a
residential colony. All the shop owners or
sub- shop owners shall close their shops on
or before 31. 3.2008 if they are within a
radius of 100 meters or 300 ft. (approx.) to
a place of public resort, school, hospital,
place of worship or factory, or to the
entrance to a bazar or a residential colony.
As there is sufficient time, the shop owners
or sub- shop owners shall make necessary
arrangement to shift their shops. If these
shops are not closed after 31. 3. 2008 the
Excise Commissioner of the State shall see
to it that the said shops are closed and no
fresh licence or renewal shall be made of a
licence if they are operating in prohibited
area."

17. As per the direction of the apex
Court, the shops which were continuing
were allowed to continue till 31.3.20008
and thereafter the shops which were within
the radius of 100 meters of a place of public
resort, school, hospital, place of worship or
factory or to the entrance to a Bazar or a
residential colony were directed to be
closed. Sufficient time was given for shop
owners to make necessary arrangement to
shift their shops. The State of U.P. instead
of following the directions of the apex
Court, choose to amend 1968 Rules. Rule
5(4) was amended by U.P. Number and
Location
of
Excise
Shops
(Fourth
Amendment) Rules, 2008 dated 20.3.2008.
Rule 5(4) as existing in 1968 Rules was
substituted by following rules:

"4(a) No shop or sub-shop shall be
licensed within a distance of 50(fifty)
meteres in case of Municipal Corporations;
within a distance of 75 (seventy-five)
meteres in case of Municipal Councils and
Nagar Panchayat; and within a distance of
100 (one hundred) meteres in other areas
from any place of public worship or school
or hospitals or residential colony:

Provided that if any place of public
worship, school, hospital, residential colony
comes into existence subsequent to the
establishment of shop or sub-shop, the
provisions of this rule shall not apply:

Provided further that the distance
restriction shall not apply in areas
designated as "commercial" or "industrial"
by the development authority/industrial
development authority or other competent
authority.

Explanation.- For the purpose of this rule:-

(i) "Place of Public Worship" means a
temple, math, mosque, gurudwara, church,
which is, as the case may be, established or
managed or owned by a Public Trust
registered under the /Charitable and
Religious Trust Act, 1920 or under the
Charitable Endowments Act, 1890 or by a
society
registered
under
Societies
Registration Act, 1860 or Wakf Board; or a
gurudwara
registered
with
competent
authority and such other places of public
worship as the State Government may , by
notification specify in this behalf from time
to time.
(ii) "School" means a pre-primary school,
primary school, middle school, high school,
inter college owned or managed or
recognised by any local authority or the
State or Central Government or any college
affiliated to or established or managed by
any University established by law.
(iii) "Hospital" means any hospital which is
managed or owned by a local authority or
the State or Central Government and
includes any private hospital having a
202 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
provision of at least 50 beds and is
registered with urban or rural local body.
(iv) "Residential Colony" means a colony
developed and constructed on legally held
land of which maps have been duly
approved by the competent authority
recognised by law.
(b) The distance referred in clause (a) shall
be measured from the mid-point of the
entrance of the shop or sub-shop along the
nearest path by which pedestrian ordinarily
reaches to the mid-point of the nearest gate
of the place of public worship or a school or
a hospital or a residential colony, if there is
a compound wall and if there is no
compound wall to the mid-point of the
nearest entrance of the place of public
worship or a school or a hospital or a
residential colony.
(c) All objections to the licensing of a shop
or sub-shop made by persons affected, shall
receive full consideration."

18. From the pleadings of the parties,
the case of the respondents is that the
location of the beer shop of the respondent
no. 2 is fully in accord with the amended
Rule 5(4). It has been stated in paragraph 5
of the counter affidavit filed on behalf of
State that shop of the respondent no. 2 is
situated at the distance of 120 meters from
the main entrance gate and 70 meters from
the another gate of the petitioner's college.
Sketch map has been annexed as Annexure1, which indicates that the beer shop is
situated across the road in front of the
college and actually shop is opposite to the
boundaries of the school and the distance of
the shop from the second gate of the college
is only 70 meters as stated in the counter
affidavit.

19. The first submission of the learned
Counsel for the petitioner is that amended
rule 5(4) is in breach of the judgment of the
apex Court and is liable to be struck down
on this ground alone. It has been submitted
by the counsel for the petitioner that in
making the rule, the State has in fact
committed contempt of the judgment of the
Apex Court in Manoj Kumar Dwivedi's
case. The judgment of the Apex Court in
the aforesaid case interpreted the rule 5(4)
as it existed before amendment. The
Division Bench of this Court held that since
according to rule, no liquor shop is to be
opened in close proximity of place of public
resort, school, hospital, place of worship or
factory or to the entrance to a Bazar or a
residential colony, all shops situated within
radius of 100 meters be closed. The Apex
Court in (1976) 4 SCC 750 I.N. Saksena
Vs. State of U.P. has laid down that
although the Legislature cannot by bare
declaration, directly overrule, reverse or
override the judicial decision, it may, at any
time, in exercise of plenary power conferred
by Articles 245 and 246 of the Constitution
of
India
render
a
judicial
decision
ineffective by enacting a valid law.
Following was laid down in paragraph 22:

"22. While, in view of this distinction
between legislature and judicial functions.
The
legislature
cannot
by
a
bare
declaration,
without
more,
directly
overrule, reverse or override a judicial
decision, it may, at any time in exercise of
the plenary powers conferred on it by
Articles 245 and 246 of the Constitution
render a judicial decision ineffective by
enacting a valid law on a topic within its
legislative field fundamentally altering or
changing with retrospective, curative or
neutralising effect the conditions on which
such decision is based. As pointed out by
Ray C. J. in Indira Nehru Gandhi v. Raj
Narain, (1975) SCC Supp 1 = (AIR 1975
SC 2299) the rendering ineffective of
judgments or orders of competent Courts
1 All] Bishop Johnson School & College & anr. V. The Excise Commissioner & others
203
and tribunals by changing their basis by
legislative enactment is a well known
pattern of all validating Acts. Such
validating legislation which removes the
causes for ineffectiveness or invalidity of
actions
or
proceedings
is
not
an
encroachment on judicial power."

20. The Apex Court In the Matter of:
Cauvery Water Disputes Tribunal 1993
Supp (1) SCC 96 (II) laid down following
in paragraph 74:

74. In this connection, we may refer to
a decision of this Court in Municipal
Corporation of the City of Ahmedabad v.
New Shorock Spg. and Wvg. Co., Ltd.
(1971) 1 SCR 288 : (AIR 1970 SC 1292).
The facts in this case were that the High
Court as well as this Court had held that
property tax collected for certain years by
the Ahmedabad Municipal Corporation was
illegal. In order to nullify the effect of the
decision, the State Government introduced
Section 152A by amendment to the Bombay
Provincial Municipal Corporation Act the
effect of which was to command the
Municipal Corporation, to refuse to refund
the amount illegally collected despite the
orders of this Court and the High Court.
This Court held that the said provision
makes a direct inroad into the judicial
powers of the State. The legislatures under
the Constitution have within the prescribed
limits, power to make laws prospectively as
well as retrospectively. By exercise of those
powers a legislature can remove the basis
of a decision rendered by a competent court
thereby rendering the decision ineffective.
But no legislature in the country has power
to ask the instrumentalities of the State to
disobey or disregard decisions given by the
courts. Consequently, the provisions of subsection 3)of Section 152A were held
repugnant to the Constitution and were
struck down. the same effect .s another
decision of this Court in Madan Mohan
Pathak v. Union of India, (1978) 3 SCR
334: (AIR 1978 SC 803). In this case a
settlement arrived at between the Life
Insurance Corporation and its employees
had become the basis of a decision of the
High Court of Calcutta. This settlement was
sought to be scuttled by the Corporation on
the
ground
that
they
had
received
instructions from the Central Government
that no payment of bonus should be made
by the Corporation to its employees without
getting
the
same
cleared
by
the
Government. The employees, therefore,
moved the High Court, and the High Court
allowed the -petition. Against that, a Letters
Patent A peal was filed and while it was
pending, the Parliament passed the Life
Insurance Corporation (Modification of
Settlement) Act, 1976 the effect of which
was to deprive the employees of bonus
payable to them in accordance with the
terms of the settlement and the decision of
the single Judge of the High Court. On this
amendment of the Act, the Corporation
withdrew its appeal and refused to pay the
bonus. The employees having approached
this Court challenging the constitutional
validity of the said legislation, the Court
held that it would be unfair to adopt
legislative procedure to undo a settlement
which had become the basis of a decision of
the High Court. Even if legislation can
remove the basis of a decision, it has to do it
by alteration of general rights of a class but
not by simply excluding the specific
settlement which had been held to be valid
and enforceable by a High Court. The
object of the Act was in effect to take away
the force of the judgment of the High Court.
The rights under the judgment would be
said to arise independently of Article 19 of
the Constitution."
204 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
21. Similar view has been expressed
by the apex Court in 2005(7) SCC 584
State Bank's, Staff Union (Madras
Circle) Vs. Union of India and others. In
view of the above pronouncement of the
Hon'ble
Supreme
Court
although
Legislature cannot overrule, reverse or
override a judicial decision but in exercise
of plenary powers conferred on it by the
Constitution, may render a judicial decision
ineffective by enacting a valid law
fundamentally altering or changing the
condition on which such decision is based.
The rule making power has been exercised
by the State under Section 40(2)(e) of the
Act by fixing distance with regard to
opening of liquor shops. In amending Rule
5(4), it cannot be said that State has
breached the judgment of the apex Court or
has committed contempt of the apex Court.
The question as to whether the amended
Rules are valid or not, is another question
which shall be separately considered
hereunder. However, the amendments
cannot be held to be invalid on the ground
that it is in breach of the judgment of the
apex Court in Manoj Kumar Dwivedi's
case (supra).

22. The Second and third submissions
of the learned Counsel for the petitioners
relates to challenge to the amended Rule
5(4) and both the submissions are being
considered together. Before considering the
submissions in details, it is relevant to refer
to the grounds for challenging the statutory
Rules.
Learned
Additional
Advocate
General has referred to and relied on the
judgment of the apex Court in (1996) 3
SCC 709, State of Andhra Pradesh Vs.
McDowell & Co. and others for the
proposition that constitutional validity of a
statute can be challenged only on two
grounds; (a) lack of legislative competence
(b) violation of the fundamental rights
guaranteed in part III of the Constitution or
of any of the constitutional provisions. In
State of Andhra Pradesh's case (supra),
the
provisions
of
Andhra
Pradesh
Prohibition (Amendment) Act, 1995 were
under challenge on the ground that the
provisions were arbitrary. Following was
laid down in paragraph 43:

"43. Sri Rohinton Nariman submitted
that inasmuch as a large number of persons
falling within the exempted categories are
allowed to consume intoxicating liquors in
the State of Andhra Pradesh, the total
prohibition of manufacture and production
of these liquors is "arbitrary" and the
amending Act is liable to be struck down on
this ground alone. Support for this
proposition is sought from a judgment of
this Court in State of Tamil Nadu v. Ananthi
Ammal, (1995 (1) SCC 519 : (1995 AIR
SCW 355). Before, however, we refer to the
holding in the said decision, it would be
appropriate to remind ourselves of certain
basic propositions in this behalf. In the
United
Kingdom,
the
Parliament
is
supreme. There are no limitations upon the
power of the Parliament. No Court in the
United Kingdom can strike down an Act
made by the Parliament on any ground. As
against this, the United States of America
has a Federal Constitution where the power
of the Congress and the State Legislatures
to make laws is limited in two ways, viz., the
division of legislative powers between the
States and the federal government and the
fundamental
rights
(Bill
of
Rights)
incorporated in the Constitution. In India,
the position is similar to the United States of
America. The power of the Parliament or
for that matter, the State Legislatures is
restricted in two ways. A law made by the
Parliament or the Legislature can be struck
down by Courts on two ground and two
grounds alone, viz., (1) lack of legislative
1 All] Bishop Johnson School & College & anr. V. The Excise Commissioner & others
205
competence and (2) violation of any of the
fundamental rights guaranteed in Part-III of
the
Constitution
or
of
any
other
constitutional provision. There is no third
ground. We do not wish to enter into a
discussion of the concepts of procedural
unreasonableness
and
substantive
unreasonableness- concepts inspired by the
decisions of United States Supreme Court.
Even in U. S. A., these concepts and in
particular the concept of substantive due
process have proved to be of unending
controversy, the latest thinking tending
towards a severe curtailment of this ground
(substantive due process). The main
criticism against the ground of substantive
due process being that it seeks to set up the
Courts as arbiters of the wisdom of the
Legislature in enacting the particular piece
of legislation. It is enough for us to say that
by whatever name it is characterised, the
ground of invalidation must fall within the
four corners of the two grounds mentioned
above. In other words, say, if an enactment
is challenged as violative of Article 14, it
can be struck down only if it is found that it
is violative of the equality clause/equal
protection
clause
enshrined
therein.
Similarly, if an enactment is challenged as
violative of any of the fundamental rights
guaranteed by Clauses (a) to (g) of Article
19(1), it can be struck down only if it is
found not saved by any of the clauses (2) to
(6) of Article 19 and so on. No enactment
can be struck down by just saying that it is
arbitrary or unreasonable. Some or other
constitutional infirmity has to be found
before invalidating an Act. An enactment
cannot be struck down on the ground that
Court thinks it unjustified. The Parliament
and the Legislatures, composed as they are
of the representatives of the people, are
supposed to know and be aware of the
needs of the people and what is good and
bad for them. The Court cannot sit in
judgment over their wisdom. "

23. The present is a case, where we
have to consider the provisions of delegated
legislation. For challenging the validity of a
subordinate legislation, apart from the
grounds noticed above, there are certain
additional grounds to challenge the validity
of the delegated legislation. The apex Court
in Indian Express News Papers (Bombay)
Private Ltd. and others Vs. Union of
India & others (1985) 1 SCC 641 had laid
down that a piece of subordinate legislation
does not carry the same dignity which is
enjoyed by a Statute passed by a competent
legislature. Following was laid down in
paragraph 75:

"75. A piece of subordinate legislation
does not carry the same degree of immunity
which is enjoyed by a statute passed by a
competent
legislature.
Subordinate
legislation may be questioned on any of the
grounds on which plenary legislation is
questioned. In addition it may also be
questioned on the ground that it does not
conform to the statute under which it is
made. It may further be questioned on the
ground that it is contrary to some other
statute. That is because subordinate
legislation must yield to plenary legislation.
It may also be questioned on the ground
that it is unreasonable, unreasonable not in
the sense of not being reasonable, but in the
sense that it is manifestly arbitrary. In
England, the Judges would say "Parliament
never intended authority to make such rules.
They are unreasonable and ultra vires". The
present position of law bearing on the
above point is stated by Diplock L. J. in
Mixnam. Properties Ltd. v. Chertsey U. D.
C., (1964) 1 QB 214 thus:-
206 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
"The
various
grounds
upon
which
subordinate legislation has sometimes been
said to be void ..............can, I think, today
be properly regarded as being particular
applications of the general rule that
subordinate legislation, to be valid, must be
shown to be within the powers conferred by
the
statute.
Thus
the
kind
of
unreasonableness which invalidates a byelaw is not the antonym of "reasonableness"
in the sense of which that expression is used
in the common law, but such manifest
arbitrariness, injustice or partiality that a
court would say : 'Parliament never
intended to give authority to make such
rules; they are unreasonable and ultra vires
......' If the courts can declare subordinate
legislation to be invalid for 'uncertainty,' as
distinct from unenforceable ............this must
be because Parliament is to be presumed
not to have intended to authorise the
subordinate legislative authority to make
changes in the existing law which are
uncertain .........."

24. The apex Court had occasion to
consider the grounds for challenging a
subordinate legislation in State of Tamil
Nadu and another Vs. P. Krishnamurthy
& others (2006) 4 SCC 517. The validity of
rule 38A of Tamilnadu Minor Mineral
Concession
Rules,
1959
was
under
challenge in the aforesaid decision. The
apex Court again reiterated the accepted
grounds to challenge the subordinate
legislation. Following was laid down in
paragraph 15,16,18 and 19.

"15.