IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HUDERABAD (Special Original Jurisdiction) WEDNESDAY, THE 6T H DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON’BLE SRI JUSTICE GODA RAGHURAM WRIT PETITION NO. 17029 OF 2008 Between: Sai Restaurant & Bar, D.No.16-5-19, Kandukur Municipality, Prakasam District, rep by its Licencee Sri Podapati Srinivasa Rao, S/o Malakondaiah, aged about 36 years, Occ: Business, R/o Kondamudusupalem, Kandukur Mandal, Prakasam District … PETITIONER And : 1. The Government of Andhra Pradesh, rep by its Principal Secretary, Revenue (Excise-II) Department, Secretariat, Hyderabad. 2. The Commissioner of Prohibition & Excise, Government of Andhra Pradesh, (Excise Bhavan), J.N.Road, Nampally, Hyderabad 3. The Deputy Commissioner of Prohibition & Excise, Nellore Division at Nellore. 4. The Prohibition & Excise Superintendent, Markapuram at Markapuram, Prakasam District. … RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the aﬃdavit ﬁled herein the High Court will be pleased to issue a writ order or direction more particularly one in the nature of Writ of Mandamus declare the action of the 2nd respondent in issuing proceedings Cr.No. 7576/2008/CPE/T3, dt 25.7.2008 in rejecting the petitioner’s request for issue / renew the 2B licence (Bar Licence) No. 16/2005-2006 of the petitioner as illegal, unjust, arbitrary, discriminatory and violative of Articles 14, 19(1)(g) of the Constitution of India and also contrary to the Rules issued in G.O.Ms.No. 997 Revenue (Ex.II) dt 24.05.2005 and consequently set aside the same and further direct the respondents 1 to 4 for grant/issue the 2B licence (Bar Licence) No. 16/2005-2006 for the present excise year 2008-2010 by accepting the licence fee in accordance with existing Rules and pass such other order or orders as the Hon’ble Court may deem ﬁt and proper in the circumstances of the case. Counsel for the Petitioner: Mr. B.Sai Ram Goud Counsel for the Respondent: GP for Excise The Court made the following : THE HON’BLE SRI JUSTICE GODA RAGHURAM WRIT PETITION NO. 17029 OF 2008 ORAL ORDER: Heard Sri Sairam Goud, the learned counsel for the petitioner and the learned Government Pleader for Excise. The petitioner had a Bar and Restaurant license for the excise year 2004-05 and 2005-06. During the excise years 2006-07 the petitioner did not apply for or obtain a license, nor even for the year 2007-08. By an application dated 19.06.2008 the petitioner sought a license for establishing a Bar and Restaurant, under the provisions of the Andhra Pradesh Excise (Grant of License for Selling by Bar and Conditions of License) Rules 2005 issued in G.O.Ms. No. 997 Revenue (Ex.II) Department dated 24.05.2005 (the Rules). The application was addressed to the 2nd respondent. The 4th respondent by a report dated 26.07.2008 intimated to the 2nd respondent that already four Bar and Restaurants and ﬁve A4 Shops were functioning (for the Excise year 2008-2010) in Kandukur Municipality, the same locality where the petitioner sought a license in Form 2B i.e., for a Bar and Restaurant. By the impugned order dated 25.07.2008 the 2nd respondent declined grant of prior clearance for enabling establishment of a Bar and Restaurant at D.No. 16-5-19, Kandukur Municipality, Prakasam District. Aggrieved the petitioner is before this court. It is contended by Sri Sairam Goud, the learned counsel for the petitioner that as there is no ceiling on the number of Bar and Restaurants that could be granted in the State and as the number of renewals that have been issued in the current year as against the number of licenses issued in the previous Excise year are less by a hundred, there is ample scope for grant of 100 more licenses to correspond to the licenses issued in the previous year and therefore the rejection by the 2nd respondent is irrational and arbitrary. The impugned order is issued by the 2nd respondent in exercise of the discretion available under Rule 5 (2) of the Rules. Rule 5 deals with applications for license and Rule 5(2) inheres in the 2nd respondent a discretion to grant prior clearance in Form 2A to such of the applicants who submit an application in Form 1A to the 2nd respondent, specifying an intention to establish a Bar and Restaurant. The discretion conferred on the 2nd respondent under Rule 5(2) is amplitudinous. The breadth of the discretion conferred is “having due regard to the requirement and other factors as he deems ﬁt”. Requirement of grant of license for establishing a Bar and Restaurant and also the other factors that are considered appropriate by the Commissioner are relevant to the exercise of discretion for granting a prior clearance. On the basis of the report of the 4th respondent, the 2nd respondent records in the impugned order that in view of the existence of four Bar and Restaurants and ﬁve A5 Shops, there is no requirement nor is it necessary to grant prior clearance for establishment of another Bar and Restaurant by the petitioner, in Kandukur Municipality. The law is well established that there is no fundamental right conferred on any individual to pursue the business of trade in liquor. Trade in liquor is considered re extra commercium. However, the law recognizes an exclusive right in the State to farm out its exclusive privilege, of the manufacture, trade or commerce in liquor in accordance with the State policy. Consistent with such exclusive privilege and in exercise of such privilege the State has enacted the Andhra Pradesh Excise Act 1968, which enables the formulation of Rules to govern and regulate diﬀerent aspects of trade in liquor and other intoxicants. The Rules are one of such raft of regulations in respect of trade in liquor under the rubric of a Bar and Restaurant. In exercise of the broad discretion and privilege under Rule 5(2) of the Rules, the 2 nd respondent – the Commissioner of Excise may grant prior clearance for enabling the establishment of Bar and Restaurant. The only statutory guideline is the Commissioner must have due regard to the requirement and other factors as he considers appropriate and ﬁt. The petitioner does not challenge the validity of Rule 5(2) of the Rules and thus concedes the wide discretion available to the Commissioner. Within the spectrum of such wide discretion the impugned order of the 2nd respondent records that in view of the existence of what the 2nd respondent considers adequate facilities for the vending of liquor both by Bar and Restaurant and by Shops i.e., 2B and A4, there is no further requirement, warranting or justifying grant of prior clearance for establishment of another Bar and Restaurant. No allegations of malice in fact are made against the 2nd respondent. The discretion exercised by the 2nd respondent as reﬂected in the impugned order and in the context of the reasons recorded for declining grant of clearance cannot be gainfully impeached. For the above reasons this court discerns no merits in the writ petition. The writ petition is according dismissed at the stage of admission. No order as to costs. Dated: 06.08.2008 ----------------------------- ---- CC as soon as possible Justice G. Raghuram B/o Pvsn To 1. Principal Secretary, the Government of Andhra Pradesh, Revenue (Excise-II) Department, Secretariat, Hyderabad. 2. The Commissioner of Prohibition & Excise, Government of Andhra Pradesh, (Excise Bhavan), J.N.Road, Nampally, Hyderabad 3. The Deputy Commissioner of Prohibition & Excise, Nellore Division at Nellore. 4. The Prohibition & Excise Superintendent, Markapuram at Markapuram, Prakasam District. 5. 2 CCs to 6. 2 CD copies