IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA & THE STATE OF ANDHRA PRADESH (Special Original Jurisdiction) WEDNESDAY, THE FIFTH DAY OF NOVEMBER TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.32271 of 2014 BETWEEN Manthena Vijaya Rama Raju AND ... PETITIONER The State of Andhra Pradesh, Rep. by its Principal Secretary (Department of Revenue), A.P. Secretariat Building, Hyderabad and others.
...RESPONDENTS The Court made the following:
ORDER:
Heard Mr.O.Manohar Reddy, learned counsel for the petitioner and learned Assistant Government Pleader for Prohibition and Excise, who has received instructions in the matter on behalf of the respondents, has submitted drawing sketches as well as photographs to explain the location of the proposed shop of the petitioner.
2. The facts of the case show that petitioner was awarded licence to set up a liquor shop in ward No.46, Kakinada Municipal Corporation as per the notification published in the Gazette No.52/14, dated 11.07.2014. Petitioner states that in terms of Rule 25 of the Andhra Pradesh Excise (Grant of Licence of Selling by Shop and Conditions of Licence) Rules, 2012 (for brevity, “the Rules”), he has selected premises and sought approval from respondent No.4. Petitioner states that though the licence was granted to him on 19.07.2014, for want of suitable premises he could not set up the shop. He, therefore, proposes to set up the shop at D.No.1-14-1, Sriram Nagar, Kakinada, which is in Ward No.46. Said approval, however, was rejected by the Prohibition and Excise Superintendent, respondent No.4 herein, under the impugned proceedings, dated 25.10.2014, primarily, on the ground that a temple exists called ‘Bhanugudi’, duly registered with the Endowments Department, which is diagonally opposite to the proposed liquor shop of the petitioner and the distance between the temple and the proposed premises is found to be 52 metres. Hence, the proposed location being not within the permissible distance, petitioner’s proposal was rejected advising him to secure another suitable premises in conformity with the Rules. Said order is questioned in this writ petition.
3. Learned counsel for the petitioner has placed strong reliance upon Rule 25 of the Rules, particularly, the sub-Rule (3) thereof, which reads as follows:
“(3) The distances referred above shall be measured from the midpoint of the entrance of the Licensed premises along the nearest path by which a pedestrian would ordinarily reach the mid point of the nearest gate of the institution or a place of public worship, if there is a compound wall and if there is no compound wall to the mid-point of the nearest entrance of the institution/place of public worship.”
4. Learned counsel would, therefore, submit that even according to the impugned proceedings, there is a road divider existing in the middle of the road and though the said temple exists on one side of the road, proposed location of the petitioner is at a distance of 102 metres if measurement is taken in terms of sub-rule (3), extracted above. Learned counsel would submit that on account of the existence of the road divider it cannot be said that the proposed location is within the prohibited distance as the pedestrians cannot ordinarily reach the proposed location by crossing the divider. The order impugned nodoubt outtakes the aforesaid aspect, but respondent No.4 has proceeded to reject the proposal on the ground that the phrase “pedestrian would ordinarily reach” is not defined in the Rules and the ordinary pedestrian, particularly, the person under influence of alcohol is not expected to follow traffic rules.
5. While learned Government Pleader explains the location of the temple vis-à-vis the proposed premises, copy of the Google Map which is filed apart from photographs, on the face of it reveals that the proposed location is quiet proximate to the temple.
6. Since the petitioner is losing licence period on account of the impugned proceedings, in my view, the situation can be reviewed by appropriate physical verification of the site by a higher officer so as to reconsider the matter and take appropriate decision thereof. Under Section 63 of the A.P.Excise Act, 1968, against an order passed by respondent No.4, appeal is provided to the Deputy Commissioner Excise, respondent No.3 herein. Hence, in order to balance the equities, I deem it appropriate to dispose of the writ petition by permitting the petitioner to approach respondent No.3 by way of an appeal against the impugned proceedings of respondent No.4. If such an appeal is filed, respondent No.3 shall physically inspect the proposed premises as well as the temple and satisfy himself that the proposed premises is not within the prohibited degrees and shall take appropriate decision in the matter without any unnecessary loss of time. Respondent No.3 is, therefore, directed to act accordingly and pass appropriate orders within one week of filing of the appeal in accordance with law.
Writ petition is, accordingly, disposed of. As a sequel, the miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.
VILAS V. AFZULPURKAR, J November 5, 2014 Note:
Furnish copy by tomorrow.
{B/o} LMV