THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA WRIT PETITION No.20172 of 2009 Between: M/s. Vijaya Durga Wines. ..... PETITIONER AND The Commissioenr of Prohibition and Excise, Government of A.P. Nampally, Hyderabad & others. .....RESPONDENTS THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA WRIT PETITION No.20172 of 2009 ORDER: This writ petition is filed seeking a writ of mandamus declaring the impugned proceedings of the first respondent dated 28.08.2009 as illegal and arbitrary. The petitioner is a licence holder to carry on business in liquor. The licence was issued to the petitioner in form-A4 from 01.07.2008 till 30.06.2010. The petitioner states that since the said shop alone was notified and as there were no other A4 shops and 2B bars, he paid huge sum towards lease amount. While so, respondents 4 and 5, with a view to establish bar and restaurant at H.No.37-72/6, J.J. Nagar, Malkajgiri, Ranga Reddy District, made an application to the first respondent requesting to grant prior clearance. The first respondent, by the impugned proceedings dated 28.08.2009, granted prior clearance for grant of licence. Questioning the said proceedings, the present writ petition is filed. The main contention of Sri K.Siva Kumar Reddy, learned counsel for the petitioner, is that issuance of prior clearance is contrary to Section 72(2)(ee) of the A.P. Excise Act, 1968 read with Rule 5(2) of the A.P. Excise (Grant of License of Selling by Bar and Conditions of Licence) Rules, 2005 (for short ‘the Rules’). Learned counsel, placing reliance on Rule 5(2) of the Rules, submits that the Commissioner has not taken into account as to whether a bar and restaurant is required at the proposed area. He further submits that though the petitioner made several representations i.e. on 10.11.2008; 01.02.2009; 22.07.2009 and 14.09.2009, requesting the authorities, particularly, the first respondent not to grant prior clearance for establishing a bar and restaurant, but the first respondent had granted prior clearance to respondents 4 and 5. He submits that the proposed bar and restaurant is within a radius of 100 meters from a recognized educational institution. He further submits that since he was given an impression that no A-4 shop or 2-B bar will be established in that area, the petitioner had paid huge sum towards lease amount and now, the establishment of bar and restaurant by respondents 4 and 5 would affect the petitioner’s bar and he cannot carry on the business effectively. A detailed counter affidavit is filed by the learned Government Pleader for Prohibition and Excise and as well as the learned counsel appearing for respondents 4 and 5 denying the allegations made by the petitioner. In view of the submissions made by the counsel, it is relevant to refer to Rule 5(2) of the Rules. Rule 5 deals with application for licence. Sub-rule 2 thereof provides that the Commissioner is the competent authority to issue required prior clearance. After grant of prior clearance, the Deputy Commissioner has to grant licence and thereafter, the Superintendent of Prohibition and Excise will grant licence in form-2B. Apart from the above provision, it is not as though issuance of prior clearance is conclusive. It is apt to refer to Sub-rule 2 of Rule 5 of the Rules: “2. The Commissioner having due regard to requirement and other factors as he deems fit, may grant a prior clearance in Form –2A to such of the applicants covered under sub-rule (1). Provided that the grant of prior clearance shall not confer any right on the application for grant of licence in Form- 2B. The holder shall not claim for any compensation or loss in case licence in Form-2B is not granted.” From the above proviso, it is clear that mere issuance of prior clearance does not confer any right for grant of licence in Form-2B. Whether the Commissioner had taken into consideration the requirement or not may not be necessary, for the reason that the issuance of prior clearance is not conclusive. It is specifically stated in the counter affidavit filed on behalf of the first respondent-Commissioner that the distance between the recognized educational institution and the proposed bar is 108 meters and not 60 meters and the question of distance between the petitioner’s premises and the proposed bar has no relevance. What all the A.P. Excise Act says is that the proposed bar or retail outlet shall be at a distance of 100 meters away from any educational institution and place of worship. Therefore, the contention advanced by the learned counsel for the petitioner that the proposed bar and restaurant is within the radius of 100 meters from the educational institution and is nearer to his licensed premises cannot be accepted. I find force in the submission of the learned counsel for the petitioner that he would be terribly effected by the establishment of bar and restaurant by respondents 4 and 5. But, however, he cannot claim as a matter of right because, time and again, the Courts held that carrying on business, particularly, in liquor cannot be treated as a fundamental right, as provided for under Article 19(1)(g) of the Constitution of India. During the course of arguments, it is brought to the notice of this Court by the learned counsel for the petitioner that one S.N. Kumara Swamy filed W.P.No. 20989 of 2009, which was disposed of by a division bench of this Court on 05.10.2009 directing the petitioner therein i.e. S.N. Kumara Swamy, to file his objections before the third respondent therein i.e. Deputy Commissioner of Prohibition and Excise, and on filing such objections, the Deputy Commissioner was directed to consider the same and take a final decision in the matter. The subject matter of the present writ petition and the aforesaid writ petition is one and the same and since the petitioner had made several representations to the official respondents, this Court would deem it appropriate to direct the petitioner to file a representation before the second respondent-Deputy Commissioner, along with his objections, within a period of ten days from today. The second respondent-deputy Commissioner, after affording an opportunity to all the parties, including respondents 4 and 5, shall pass final orders. With the above direction, the writ petition stands disposed of at the admission stage. There shall be no order as to costs. GOPALA KRISHNA TAMADA,J Date:09.11.2009 Note:Furnish copy within two days bo usd