THE HONOURABLE SRI JUSTICE V. ESWARAIAH WRIT PETITION No.2494 OF 2007 DATED: -03-2007 BETWEEN M/s. Saptagiri Bar & Restaurant, Dr.No.28/1663, Venkateswarapuram, Nellore, Nellore District, rep. by its Proprietor M. Dinesh, S/o. Ramaiah, R/o. Nellore, Nellore District. …PETITIONER AND The Commissioner of Prohibition & Excise, Hyderabad and others. ...RESPONDENTS ORDER: Pursuant to the notice issued before admission on 13.02.2007 with a direction to submit the records, the learned Government Pleader produced the records. At the consent of both the parties the matter is taken up for final disposal. 2. Heard the learned counsel for the petitioner as well as the learned Government Pleader for Prohibition and Excise appearing for the respondents. 3. Petitioner questions the order of the Commissioner of Prohibition and Excise, Hyderabad dated 22.01.2007 in canceling the prior clearance granted in his favour for grant of bar licence at D.No.281/1662 & 1663 situated at Venkateswarapuram, Nellore Town. It is stated that he was granted IL-17 licence under Andhra Pradesh (Indian Liquor and Foreign Liquor) Rules, 1970 on 25.07.2001 for a period of one year in the name and style of “M/s. Saptagiri Bar & Restaurant” in the aforementioned premises. After making necessary enquiry and as the said premises was situated outside the prohibited distance the licence has been renewed from time to time and year to year. For the excise year 2004-2005 the renewal was done for a period of two months from 31.07.2004 to 30.09.2004. While so, the Commissioner of Prohibition and Excise issued a memo dated 29.08.2004 withdrawing the licence on the ground that objections have been received from the local public alleging that a recognized temple is located within 100 meters from the petitioner’s bar and restaurant. Questioning the said order the petitioner filed W.P.No.15803 of 2004 and this Court by order dated 09.09.2004 suspended the said order and ultimately the writ petition was allowed on the ground that the Commissioner passed the said order without following due procedure, however, it was left open to take appropriate by initiating fresh proceedings. 4. The Rules 1970 have been repealed and new rules viz, the Andhra Pradesh Excise (Grant of Licence of Selling by Bar & Conditions of Licence) Rules, 2005 (for short ‘the Rules’) came into force. Rule 6 of the Rules restricts the grant of licence within the prohibited distance of 100 meters from educational institutions 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 prohibited distance was limited to 50 meters. The relevant Rule in the instant case is Rule 6(1)(ii), which prohibits the grant of bar licence within 100 meters from the educational institutions recognized by the Government and places for public worship such as temples registered by the Endowments Department. 5. It is stated that the distance between the shop of the petitioner and the registered temple is more than 100 meters. The petitioner filed an application along with requisite fee on 21.06.2006 for grant of bar licence under the Rules but the application has not been considered on the ground that local MLA submitted a representation making several allegations including that the distance between the petitioner’s premises and the registered temple is less than 100 meters. On the said representation of the local MLA, the Prohibition and Excise Superintendent, Nellore conducted enquiry and submitted a report dated 18.07.2006 before the Deputy Commissioner of Prohibition & Excise, Nellore stating that when the measurement is perpendicularly in “Z” shape, the distance is 101 meters between the bar and the temple and if it is made diagonally on straight line, the distance is 81 meters. The Deputy Commissioner in turn submitted a report dated 31.07.2006 to the Commissioner showing the aforesaid distance between the petitioner’s shop and the temple and the Commissioner after considering the said report granted prior clearance vide proceedings dated 07.08.2006. The prior clearance is valid for 45 days and the petitioner was directed to apply separately for the grant of licence after fulfilling the requirements pursuant to the said order of the Commissioner. Accordingly, the petitioner presented an application after complying with all the formalities and paying necessary fee of Rs.10,000/- by way of challan on 08.08.2006, but the Prohibition and Excise Superintendent, Nellore has not granted the licence on the ground that the local MLA objected for the grant of licence. Aggrieved by the said action in not granting licence, petitioner filed W.P.No.17369 of 2006, which was disposed of on 05.09.2006 leaving it open to the respondents to take appropriate action on the letter dated 25.08.2006 addressed by the Deputy Commissioner to the Commissioner requesting to reject the prior clearance granted earlier. Thereafter, the Commissioner passed orders on 07.09.2006 cancelling the prior clearance granted on 07.08.2006. 6. Questioning the said order dated 07.09.2006, the petitioner filed W.P.No.19374 of 2006, which was disposed of on 03.11.2006. It was the contention of the writ-petitioner therein that the distance between the proposed bar and the registered temple, educational institutions have to be measured from the mid-point of the entrance of the bar to the mid-point of the nearest gate of the institution or a registered temple; if there is compound wall the distance shall be measured from the entrance of the proposed bar premises along with the nearest path by which pedestrian ordinarily reaches to the mid-point of the nearest gate of the institution or place of public worship and if there is no compound wall it should be measured from the mid-point of the nearest entrance of the proposed bar to the institution/place of public worship. It was further contended that while measuring the distance the excise authorities have uniformly measured the distance perpendicularly in “Z” shape. In view of the said contention the learned Judge disposed the writ petition as follows: “However, having regard to the specific assertion made by the petitioner that the respondent have been consistently following the method of measuring the distance perpendicularly, but singled out the petitioner by measuring the distance diagonally on straight line, I am of the opinion that the petitioner’s case requires reconsideration by the 1st respondent – Commissioner of Prohibition and Excise, after calling for necessary reports from all the concerned and after causing a spot inspection by independent officials, in the presence of the petitioner. Accordingly, the writ petition is disposed of with a direction to the 1st respondent to cause fresh enquiry as indicated above, taking into consideration the procedure adopted in measuring the distance in case of other licences in the State, and pass appropriate orders in accordance with law as expeditiously as possible preferably within a period of three weeks from the date of receipt of copy of this order. Basing on such order the impugned order dated 07.09.2006 shall be reviewed and fresh order be communicated to the petitioner.” 7. It is stated that insofar as 9 bar and restaurants are concerned, the respondents recommended the measurement in perpendicular “Z” shape, but if the distance is measured diagonally on straight line, the distance between the 9 bars and restaurants i.e. Bhargava Wines, Balaji Restaurant & Bar, Kalyani Wines, Sindura Bar & Restaurant, Dolfin Wines, Minerva Bar & Restaurant, Vighneswara Wines, Sri Surya Restaurant & Bar and Surya Bar & Restaurant, and the respective educational institutions, registered temples and hospitals would be within the prohibited distance; but the distance between the aforesaid bars and the educational institutions, registered temples have been measured perpendicularly in “Z” shape as contemplated under Rule 6 of the Rules. It is stated that pursuant to the orders in W.P.No.19374 of 2006 dated 03.11.2006, the Excise Officials have taken the measurements on 23.11.2006. It is stated that when the petitioner raised an objection that the measurement has to be taken as contemplated under Rule 6, the respondents deliberately measured the distance after excluding the staircase in front of the premises. It is the case of the petitioner that the mid-point of the entrance means the mid-point of the gate, which is liable to be closed and opened, but it cannot mean after excluding the stairs. However, the second respondent, after taking the measurements excluding the stairs, submitted a report dated 15.12.2006 to the first respondent stating that the distance between Sri Venkateswara Temple and the proposed bar of the petitioner, when measured perpendicularly in “Z” shape was 101 meters and it was 81 meters when measured diagonally on straight line as per the enquiry report submitted by Station House Officer and Assistant Excise Superintendent, Nellore. Thereafter on the representation of the local MLA and pursuant to the instructions of the Commissioner dated 24.07.2006, the Deputy Commissioner personally inspected and measured the distance on 28.07.2006 and found it to be 101 meters when measured perpendicularly in “Z” shape and 80.40 meters when measured diagonally on straight line. Accordingly, the Deputy Commissioner submitted a report dated 31.07.2006 based on which the Commissioner vide proceedings dated 07.08.2006 granted prior clearance for establishment of the proposed bar. Thereafter, on the instructions of the Deputy Commissioner, the Prohibition & Excise Superintendent, Nellore personally measured the distance and found it to be 101 meters when measured perpendicularly in “Z” shape and 81 meters when measured diagonally. Further he also reported that the pedestrians ordinarily reach to the mid-point of the main gate of the temple to the mid-point of the entrance of the proposed bar, which distance is 81 meters, which is measured diagonally through nearest pedestrians path, which is not in accordance with instructions dated 01.07.2006 communicated by the Commissioner and requested to reject the proposal for grant of bar licence in the name and style of M/s. Saptagiri Bar & Restaurant. 8. Pursuant to the aforesaid order of the High Court the independent officials viz. Deputy Executive Engineer, Roads & Buildings, Kovur and Mandal Surveyor, Nellore measured the distance on 23.11.2006 and found that the distance when measured perpendicularly in “Z” shape was 99 meters wherein the stairs were excluded. The Deputy Commissioner submitted the report dated 15.12.2006 narrating all the facts aforesaid and submitted that he being a second respondent in the writ petition and having already taken the measurements, it is not desirable to take measurements once again and the report submitted by the R & B authorities may treated as stands good. Based on the said report the Commissioner passed the impugned order dated 22.01.2007 confirming the earlier orders dated 07.09.2006 in cancelling the prior clearance on the ground that the location of the proposed bar of the petitioner falls within the prohibited distance of 100 meters from the registered temple. 9. It is an admitted fact that the Excise Officials have been measuring the distance between the bars and restaurants and the educational institutions, registered temples etc. in perpendicular “Z” shape only but not diagonally on straight line as was done in the case of aforesaid 9 bars and restaurants. Whether the said method adopted by the respondents is in accordance with rules 6 or not is a different question. However, I am not inclined to express any opinion with regard to the manner and method which the respondents have adopted in measuring the distance between the proposed bar and the temple as contemplated under Rule 6. 10. The question that arises for consideration is as to whether the staircase of the proposed bar of the petitioner and the stairs of the temple have to be excluded or not while taking the measurements. 11. Perusal of the report dated 23.11.2006 submitted by the Deputy Executive Engineer, R & B Sub-Division, Kovur to the Prohibition and Excise Superintendent, Nellore and the plan annexed therewith goes to show that the distance between the mid-point of the entrance of the proposed bar and the mid-point of the temple measured perpendicularly in “Z” shape is 99 meters. But the plan shows that the said measurements were taken after excluding the stairs of the proposed bar as well as the entrance of the gate of the temple. It is the case of the petitioner that if the staircase is included while taking measurements the distance would come to 101 meters. It is his further case that the Deputy Commissioner, personally measured the distance from the mid-point of the entrance of the proposed bar to the mid-point of Sri Venkateswara Temple including the gate and arrived at 101meters as per his report dated 28.07.2006. The Prohibition and Excise Superintendent, Assistant Excise Superintendent and the Deputy Commissioner of Prohibition and Excise, Nellore have measured the distance from the mid-point of the entrance of the proposed bar to the mid-point of the main gate of the temple and found the same to be 101 meters, when measured perpendicularly in “Z” shape, which was the method adopted in respect of all other bars and restaurants. There is no dispute that while measuring the distance, the Deputy Executive Engineer, R & B and the Mandal Suveyor, have excluded the stairs of both the premises and reported that the distance was 99 meters. I am of the opinion that excluding the stairs while measuring the distance between the proposed bar of the petitioner and the temple is contrary to the practice and the manner and method adopted by the respondents in measuring the distance between the bars and restaurants and the educational institutions, registered temples etc. Therefore, there is no justification on the part of the respondents in ignoring the report submitted by the Deputy Commissioner of Prohibition and Excise dated 31.07.2006 to the Commissioner of the Prohibition and Excise, based on which prior clearance dated 07.08.2006 was granted in favour of the petitioner and cancelling prior clearance by order dated 07.09.2006. 12. Having regard to the facts and circumstances of the case, the impugned order dated 22.01.2007, confirming the order dated 07.09.2006 in canceling the earlier prior clearance granted in favour of the petitioner, is set aside. The earlier order dated 07.08.2006 passed by the Commissioner of Prohibition and Excise, granting prior clearance in favour of the petitioner based on the report of the Deputy Commissioner, Prohibition and Excise, dated 31.07.2006 holds good. The third respondent is directed to process the application of the petitioner, pursuant to the prior clearance dated 07.08.2006 granted by the first respondent, from the stage where it was discontinued. The writ petition is accordingly allowed. There shall be no order as to costs. ______________ V. ESWARAIAH, J March , 2007 DSK