IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY THURSDAY, THE FOURTH DAY OF JUNE, TWO THOUSAND NINE ONLY WRIT PETITION No.7003 of 2009 Between: M/S. B.K.V.V.Restaurant & Bar, reptd., by its Licensee-M.V.Ranga Rao, S/o. Narayana Rao, 45 yrs, Business, r/o.11-1155, Chammanagiripeta, Machilipatnam, Krishna District. … Petitioner And The Commissioner of Prohibition and Excise, A.P., Hyderabad and three others. … Respondents Counsel for the petitioner: Mrs. S.Nanda. Counsel for the respondents: AGP for Prohibition & Excise. This Court made the following: ORDER:- This Writ Petition is filed for a Writ of Mandamus to set aside order dated 28-3-2009 passed by respondent No.1, whereby the petitioner’s request for shifting of Bar has been rejected. The petitioner has been granted license to run a Bar at Door No.11/1155 of Chemmanagiripet, Machilipatnam, Krishna District. As the owner of the premises, which was leased out to the petitioner, sought to demolish the said structure with a view to reconstruct the same on account of its dilapidated condition, the petitioner applied for shifting of the Bar to Door No.11/738 and 739 of Jagannadhapuram, Machilipatnam, Krishna District. By proceedings dated 25-9-2008 the Commissioner, Machilipatnam Municipality, whose impleadment is sought by the petitioner vide WPMP No.11932 of 2009, issued no objection certificate for shifting of the petitioner’s Bar to the above mentioned premises. One Sri Thota Krishna Murthy, an A-4 Licensee and running a liquor shop in the name of M/s.City Wine Corner, Machilipatnam, filed objections to the proposed shifting of the Bar before respondent No.3 on the ground that the same is situated within 250 meters. Respondent No.2 evidently inspected the place in question and submitted a detailed report on 2-12-2008 stating that the distance between the proposed location of Bar and the premises where Sri Thota Krishna Murthy is running the liquor shop is 400 meters and there can be no objection for shifting the Bar. Apprehending that the Bar will be permitted to be shifted, the said Krishna Murthy filed Writ Petition No.26920 of 2008. Respondent No.2 herein, who is respondent No.3 in the said Writ Petition, filed a counter-affidavit, wherein it is, inter alia, averred that though the Commissioner, Machilipatnam Municipality, conveyed his objection that shifting of the Bar will cause inconvenience to public in view of existence of fish market, it was found that fish market was not officially opened. He has also taken the specific stand that there is no restriction in granting a Bar near the fish market. As the impugned order was issued when the said Writ Petition was pending, the same was closed as infructuous. In the counter-affidavit filed by respondent No.1 he justified rejection of shifting of Bar by the petitioner on the sole ground that the local authority i.e., Commissioner of Machilipatnam Municipality, raised an objection for shifting of the Bar and that in view of Rule 13(3) of the A.P. Excise (Grant of License of Selling by Bar and Conditions of License) Rules, 2005 (for short “the Bar Rules, 2005”), the Bar cannot be shifted. Though the learned Standing Counsel for the proposed respondent No.4 viz., Commissioner, Machilipatnam Municipality, took time on 29-4-2009 for filing counter-affidavit, neither the counter-affidavit is filed nor the Standing Counsel was present at the time of hearing of the Writ Petition. A perusal of the record shows that though the Commissioner, Machilipatnam Municipality issued no objection certificate on 25-9-2008, within two days thereafter he addressed a letter on 27-9-2008 to respondent No.2 (wrongly addressed as “the Superintendent of Police” instead of “Prohibition and Excise Superintendent”), wherein it is mentioned as under: “Ref: 26-9-08 proceedings of Commissioner. Sri M.V.Ranga Rao, S/o.Narayana Rao is running Restaurant and Bar at premises No.11/1155, Chammanagiripeta within the premises of Machilipatnam Municipality. He applied on 25-9-08 for shifting his business to No.11/738/739, Jagannadhapuram, Machilipatnam, it is bring to our notice that the existence of B.K.V.V.Restaurant & Bar at newly started fish market is detrimental to the public. Hence, it is informed you that the no objection issued by the health department in favour of B.K.V.V.Restaurant & Bar, will not be valid after the opening the fish market”. At the hearing, it is admitted by the learned Assistant Government Pleader for Prohibition and Excise that there is no legal bar on permitting the Bar to be located either in the market or near the market place. The restrictions, that are envisaged under the Bar Rules, 2005, are contained in Rule 6(ii), which reads as under: “The proposed premises shall not be granted within 100 meters from educational institution recognized by the Government, places for public worship, such as temples registered by the Endowments Department, Mosques registered with the Wakf Board, Churches and Hospitals. Provided that in the limits of Municipal Corporations and within the belt area of 5 KMs of the periphery of Municipal Corporations, the distance restriction mentioned above shall be 50 meters”. In tune with the rule position as above, respondent No.2 has come out with a categorical stand in the Writ Petition filed by Sri Thota Krishna Murthy that there is no restriction for location of the Bar near the fish market. Apart from absence of any restriction under the extant legal provisions, the very stand taken by the Commissioner, Machilipatnam Municipality, that location of a Bar in fish market causes inconvenience to the public militates against commonsense. The activity of Bar is commercial in nature. If at all, a market is the most ideal place for locating a Bar. Having given the certificate on 25-9-2008 that there is no objection for running of Bar at the proposed place, the Commissioner changed his heart in two days’ time and came out with the objection, which is wholly ill-conceived. In the considered view of the Court, the objection raised by the Commissioner, Machilipatnam Municipality, is obviously intended to prevent the petitioner from shifting the Bar from the proposed place without there being any rational or legal basis for raising such an objection. Respondent No.2, who has taken an unequivocal stand that law does not prevent locating the Bar near the fish market, made a sudden volteface in opposing the shifting on the ground that the Commissioner, Machilipatnam Municipality, has conveyed his objection, vide his letter dated 27-9-2008. In the absence of any legal impediment for locating the Bar at a place where the fish market was proposed to be located in future, I find no justification whatsoever in not permitting shifting of the Bar of the petitioner to the proposed premises. For the above-mentioned reasons, the Writ Petition is allowed. Respondents 1 and 2 are directed to permit the petitioner to shift the Bar to Door No.11/738 and 739 of Jagannadhapuram, Machilipatnam, subject to the petitioner complying with all legal formalities within a period of four weeks from the date of receipt of a copy of this order. ------------------------------------ C.V.NAGARJUNA REDDY,J Date:04-6-2009 MNR