011-SLLR-SLLR-1999-V-2-SAMADASA-v.-WIJERATNE-COMMISSIONER-GENERAL-OF-EXCISE-AND-OTHERS.pdf
SC Samadasa v. Wijeratne, Commissioner-General of Excise and Others 85
SAMADASA
v.WIJERATNE, COMMISSIONER-GENERAL OF EXCISEAND OTHERS
SUPREME COURTAMERASINGHE. J.,
WADUGODAPITIYA, J. ANDGUNAWARDANA, J.
S.C. APPLICATION NO. 495/97 WITHS.C. APPLICATION NO. 172/98NOVEMBER 4, 1998.
Fundamental rights – Refusal of a liquor licence – Abdication of authority by thelicensing authority – Article 12 (1) of the Constitution.
The petitioner's application for a liquor licence was recommended by the GramaSeva Niladhari, the OIC in charge of the area police station and the exciseauthorities. It was objected to by the Divisional Secretary on the ground of apossible breach of the peace and religious, and moral considerations. However,on the recommendation of the SLFP organiser for the area, a licence had beengranted to one Ariyasena without weighing such considerations, Besides,four other liquor stores had been permitted to operate in Matara in close proximityto one another.
Held :
There was no rational basis for treating the petitioner's applicationdifferently.
The 1st respondent, Commissioner-General of Excise was theperson empowered by law to issue or refuse the licence. He hadabdicated his authority by blindly accepting the recommendation of theDivisional Secretary.
In the circumstances the respondent had violated the petitioner's rightsguaranteed by Article 12 (1) of the Constitution.
APPLICATION for relief for infhngement of fundamental rights.
L C. Seneviratne, PC with Ronald Perera for petitioner.
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Sri Lanka Law Reports
[1999] 2 Sri LR.
K. Siripavan, DSG with Harsha Fernando, SC for respondents.
Cur. adv. vutt.
November 17, 1998.
AMERASINGHE, J.
These two connected matters were heard together. The petitionerapplied to the Commissioner-General of Excise in January, 1997, fora licence in respect of the sale of liquor at premises No. 85,Sri Ratnapala Mawatha, Izzadeen Town, Matara. The application wasrefused and the petitioner instituted Fundamental Rights ApplicationNo. 55/97 in the Supreme Court praying, inter alia, for a declarationthat there had been a violation of the fundamental rights of thepetitioner under Articles 12 (1), 12 (2) and 14 (1) (c) and (g) of theConstitution. When the matter was supported before this Court on the30th January, 1997, learned counsel for the respondents stated thatthe licence for 1997 would be issued to the petitioner forthwith onpayment of the necessary charges. The Court made order accordingly.
However, it was found that the premises had in the meantime beenoccupied by another tenant to whom a licence had been issued despitethe existence of a valid contract of tenancy between the petitionerand the landlord of the said premises. When the petitioner complainedabout this to the Divisional Secretary, Matara, the petitioner wasadvised to find alternate premises to carry on his retail liquor business.The petitioner found alternate premises at Jayanthi Buth Kade, GalleRoad, Kamburugamuwa and made an application to the CommissionerGeneral of Excise requesting permission to carry on his business atthe new premises. By his letter dated the 2nd of April, 1977, theCommissioner-General of Excise directed the Divisional Secretary,Divisional Secretariat, Weligama, to make her recommendations withregard to the petitioner's application. On the 4th of April, 1997, the6th respondent wrote to the Grama Seva Niladhari and on the 6thof April, 1997, the Grama Seva Niladhari of Kamburugamuwarecommended the issue of the licence. On the 7th of April, 1997, theGrama Seva Niladari of Weragampitiya also recommended the issue
SC Samadasa v. Wijeratne, Commissioner-General of Excise and Others
(Amerasinghe, J.)87
of the licence. On the 10th of April, 1997, the officer in charge ofthe Matara Police station too recommended the granting of thelicence stating that after due investigation, there was no likelihood inhis opinion, of a breach of the peace as a result of the establishmentof the proposed liquor retail store.
On the 5th of April, 1997, the 7th respondent, one SamanWeeraman, the Sri Lanka Freedom Party Organiser for Weligama anda Member of the Southern Provincial Council, wrote to theHeadquarters Inspector of Matara stating that he objected to thelicence being granted to the petitioner as he had not recommendedthe grant of the licence at the location of the proposed liquor shop.He stated that the proposed shop was in his electorate. On the 24thof April, 1997, the Superintendent of Excise, Galle and the AssistantCommissioner-General of Excise (Southern Province) considered theobjections of the 7th respondent, but nevertheless recommended theissue of the licence. On the 5th of May, 1997, the AssistantCommissioner of Excise also recommended the issue of the licence.
The Divisional Secretary, notwithstanding these reports, took it uponhimself to advise the Commissioner-General of Excise against theissue of the licence in her letter 1R5 dated 7th of July, 1997. Shepointed out that there had been public protests against the issueof the licence because the applicant happened to be "an outsider"and because of the close proximity of the proposed premises to otherpremises that had already been licensed. She stated that there wouldbe a breach of the peace and that religious and moral considerationstood in the way of the issue of the licence to the petitioner.
The Divisional Secretary's reasons for refusing the licence areuntenable. As we have seen the Police, who might be expected tobe in the best position to assess and comment upon the questionof a likely breach of the peace had, after investigations, ruled outthat possibility. Moreover, the question of religious and moralconsiderations should have applied equally to Ariyasena who hadalready been granted a licence: no explanation is given as to why
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such considerations did not weigh in the case of the licence grantedto Ariyasena but weighed against the petitioner. The real differenceit seems is to be found in the fact that Ariyasena was a personrecommended by the 7th respondent, Saman Weeraman. Moreover,it has been pointed out in para 38 of the petition in SC FR 172/98that four liquor stores have been permitted to operate in doseproximity to each other. Eg In the case of Sunil Wine Stores andFredrica Wine Stores at Hakmana Road, Matara and in the case of
S.K. Oriental Wine Stores and City Wine Stores, New Tangalle Road,Matara. There is no rational basis for treating the application of thepetitioner differently.
First respondent, the Commissioner-General of Excise, was theperson empowered by law to issue or refuse the licence. He has inmy view abdicated his authority by blindly accepting therecommendation of the Divisional Secretary, with the result that hehas acted in violation of the petitioner's rights to equal treatmentunder the law. In the circumstances, the respondent has violated thepetitioner's fundamental rights guaranteed by Article 12 (1) of theConstitution. I declare that the petitioner is entitled to the issue ofthe liquor licence for 1998.
I make order that State shall pay the petitioner a sum of Rs. 50,000as compensation and Rs. 5,000 as costs.
WADUGODAPITIYA, J. – I agree.GUNAWARDANA, J. -1 agree.Relief granted.