The Hindu Business Line : Let mercy be your mosque, faith your prayer-mat

A report that is `37 minutes' old in Mail & Guardian Online, South Africa, speaks of, " `One of the worst days' in Lebanon." Distressingly, there are `1,618 related stories'. Such as this one on Reuters AlertNet, UK, `19 minutes ago': "Christian Aid warns of `underground disaster' in Lebanon."

In these circumstances, it is highly remote that anybody would remember Khalil Gibran (1883-1931) of Lebanon, who had said, "An eye for an eye, and the whole world would be blind." To Gibran, work was love made visible. "If you cannot work with love but only with distaste, it is better that you should leave your work and sit at the gate of the temple and take alms of those who work with joy," he would admonish.

Relevant to the case on hand is another quote of his: "I love you when you bow in your mosque, kneel in your temple, pray in your church. For you and I are sons of one religion, and it is the spirit." And, in Vikrama Shama Shetty vs State of Maharashtra, what one saw was the government's determination to ensure the sanctity of a place of worship, even while implementing a tax law.

The story begins with Shetty applying for licence to sell foreign made liquor in Mumbai. The place he had chosen was a restaurant abutting Abhaychand Gandhi Marg; and it was near a mosque that was located at the junction of Abhaychand Gandhi Marg and Narsi Natha Street. Though Shetty could obtain `no objection certificate' from the mosque trust for the grant of such a licence, the Commissioner of Police raised objection to the grant of the licence. "The Collector of Bombay City, State Excise Department rejected the application on the ground that there was a religious institution within 60 metres from the restaurant," informs the text of the Supreme Court's verdict dated July 20.

Shetty filed an appeal before the Commissioner of Prohibition and Excise, under the Bombay Prohibition Act, 1929. The Commissioner allowed the appeal "on the basis of certificate issued by the Chartered Architect certifying that the distance between mosque and the restaurant was 75.43 meters." As per the Appellate Authority's order, licence was granted on April 1, 1999. Subsequently, Shetty filed an application before the Collector for the issuance of public entertainment licence.

Meanwhile, the Commissioner of Police filed for revision before the Minister of State for Excise, seeking the revocation of the order passed by the Commissioner granting licence. The revisional authority set aside the order of the Commissioner, and confirmed the order of the Collector rejecting the licence. Shetty filed a writ petition before the High Court. There, the basic issue brought up before the single judge related to the distance, though there was also mention of `alleged grant of licence to similarly situated persons' whose establishments were within the 75-metre distance.

The High Court appointed a Commissioner to find out the factual details. "The mosque has three entrances out of which two are from a common passage having access to Narsi Natha Street. The third entrance is from Abhaychand Gandhi Marg," reported the Commissioner. He also stated that the distance from the first entrance to the mosque from Narsi Natha Street up to Shetty's place was 68.45 meters. The door to the mosque was closed when the Commissioner went for inspection; it was opened on his request. He found that the door directly opened into the prayer hall of the mosque.

"The second entrance to the mosque from Narsi Natha Street is at a distance of 98.47 meters. The third entrance to the mosque from Abhaychand Gandhi Marg is at a distance of 60.06 meters," noted the Commissioner. He also stated that this door was generally closed and that it was occasionally used as an exit. During the course of inspection, he was informed that generally people entered the mosque through the second entrance.

Based on the Commissioner's report, the judge dismissed the writ petition holding that the distance of 75 metres is mandatory, as prescribed by Rule 45(1-C) of the Bombay Foreign Liquor Rules, 1953.

Shetty went on appeal before the Division Bench of the High Court. His stand was that the entrances considered by the single judge were not frequently used, and that the distance of second entrance only was to be taken into consideration for the purpose of measurement. He pointed out that the main entrance to the mosque was from Narsi Natha Street, which was at a distance of 98.47 metres, that is, more than 75 metres. However, the Division Bench concurred with the findings of the single judge's decision. Challenging the legality of the judgment rendered by the Division Bench of the Bombay High Court, Shetty went to the apex court.

"Rule 45(1-C) is the pivotal provision," said the court. It states that no licence shall be granted in respect of "any hotel or restaurant which is situated within a distance of seventy-five meters from any educational or religious institution or from any bus stand, station or depot of the Maharashtra State Road Transport Corporation or from the boundary of any National or State highway."

As per Explanation to the Rule, `religious institution' means "an institution for the promotion of any religion and includes a temple, math, mosque, church, synagogue, or other place of public religious worship."

There is detailed guidance in the Rules on how the distance is to be determined. Accordingly, measurement is from the mid-point of the entrance of the hotel or restaurant along with the nearest path, by which the pedestrian ordinarily reaches, to the mid-point of the nearest gate of the institution if there is a compound wall, and if there is no compound wall, the mid-point of the nearest entrance of the institution.

At the apex court, Uday U. Lalit argued for Shetty. He said that the language of Rule 45(1-C) made the position clear that reference is made to the path by which pedestrian ordinarily reaches the religious institute. "Since the two entrances are not ordinarily used and are only sometimes used, the distance has to be reckoned from the second entrance gate which is admittedly beyond 75 metres," he submitted.

Justices Arijit Pasayat and R. V. Raveendran of the Supreme Court heard the arguments and said that the law's stress was on the nearest distance and not the most used distance. "There is no challenge to the correctness of the Court Commissioner's report. That being so, the learned Single Judge and the Division Bench were justified in their view that the restaurant is situated within the prohibitory distance of 75 metres," ruled the apex court.

On the argument of Shetty that there were other restaurants that could manage to obtain licences though in a similar situation, the court had this to say, citing the International Trading Co case: "Two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case, direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong."

To wrap, here is a quote from Sri Guru Granth Sahib, which exhorts, "Let mercy be your mosque, faith your prayer-mat, and honest living your Koran." Apt for the decision in the Shetty case, because it instils faith in the administration and the judiciary in matters about places of worship.

Tailpiece

"He doesn't pay service tax!"

"How do you know?"

"The message on his T-shirt reads, `I'm proud you pay service tax'."

http://Detaxification.blogspot.com

D. Murali

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