HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION Nos.18013 and 18092 of 2010 Date : 25.03.2011 Between : B. Narasa Reddy. …..Petitioner And The Commissioner, Prohibition and Excise, Nampally & others. …..Respondents HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION Nos.18013 and 18092 of 2010 COMMON ORDER : As common questions of law and facts are involved, both these writ petitions are heard together and are being disposed of by this common order. For the purpose of disposal, I refer to the facts as arise in W.P.No.18013 of 2010. 2. This writ petition is filed, seeking directions by way of Mandamus, declaring the action of respondents in measuring the distance through ‘Vengamamba Complex’ instead of measuring from the petitioner’s Bar and Restaurant to the entrance of Krishnaveni Junior College, facing the Nannaya road as was measured in the year 2009-2010, as arbitrary and illegal. 3. The short question, which falls for consideration in these writ petitions is, whether the licensed premises of petitioners to run bar and restaurants in Macherla, is in conformity with Rule 6 of the A.P. Excise (Grant of Licence of Selling by Bar and Conditions of Licence) Rules, 2005 (hereinafter referred to as ‘the Excise Rules, 2005’). Necessary facts to examine the said issue, are as under : 4. The petitioner in W.P.No.18013 of 2010 is running a bar and restaurant in the name and style of ‘M/s.Srinivasa Bar and Restaurant’ in Macherla. As per Rule 6(I)(ii) of the Excise Rules, 2005, framed under Section 72 of the A.P.Excise Act, 1968, no licence can be granted in Form No.2B, within 100 metres from educational institutions recognized by the Government, places of worship such as temples registered by the Endowments Department, Mosques registered with the Wakf Board, Churches and hospitals. In the year 2009, the Superintendent of Prohibition and Excise, Narsaraopet, Guntur District, has issued notice, dated 12th August 2009, vide proceedings Rc.No.117/2006/B1, intimating that the licence of the petitioner will not be renewed as the location of the licenced premises is within the prohibited distance from an educational institution. Questioning the same, the petitioner has filed a writ petition in W.P.No.19295 of 2009, and a learned Single Judge of this Court, by judgment dated 17th June 2010, while setting aside the aforesaid notice, directed the Prohibition and Excise Superintendent, Narsaraopet, to re-measure the distance between the bar and restaurant and the educational institute, as explained in the explanation appended to Rule 6 of the Excise Rules, 2005. There was a further direction to consider the objections of the petitioner, if any, before taking appropriate decision. 5. Pursuant to the orders of this Court, the petitioner was issued notice to attend for re-measurement of the distance between his bar and restaurant and the educational institution, on 28.06.2010. Based on such measurement and inspection, the notice, dated 29.06.2010, is issued in Rc.No.117/2006/B1, by recording a finding that the nearest pathway to the educational institution from the petitioner’s bar and restaurant is through ‘Vengamamba Complex’, where the public will access through the complex from main road to back side road to the educational institution. Accordingly, the petitioner was intimated that as per the re-measurements taken on 28.06.2010, his premises suffer disqualification under Rule 6 of the Excise Rules, 2005. When such notice is issued, the petitioner has filed the present writ petition, seeking a declaration that the action of respondents in measuring the distance through the common corridor of ‘Vengamamba Complex’, as illegal, with a further direction to measure the distance as was measured during the Excise Year 2009-2010. 6. In these writ petitions, it is submitted by the learned Senior counsel Sri T.Bali Reddy, appearing for petitioners, that the respondents have not taken measurements as per explanation to Rule 6 of the Excise Rules. It is contended by the learned counsel that the nearest pathway to the educational institution should not have been measured through the common corridor of the complex. It is submitted that in fact, there was no access to the educational institution through the common corridor of the complex, but only by demolishing the wall and by wrongly measuring the distance through the common corridor, the notice dated 29.06.2010 is issued. 7. On the other hand, it is submitted by the learned Government Pleader appearing for respondents that as per explanation to Rule 6, the distance shall be measured from the mid-point of the entrance of the proposed bar premises along with the nearest path, by which, a pedestrian ordinarily reaches to the mid-point of the nearest gate of the institution, as such, respondents have rightly measured the distance and intimated the same to the petitioners. Further, it is contended by Sri V.Ravinder Rao, learned counsel appearing for impleaded respondents that the college is located in the 1st and 2nd floors of the complex and the complex is having three stair-cases, through which, one can reach the college premises, as such, there is no reason or justification for ignoring the stair case, which is in the North-West corner of the building. It is submitted by the learned counsel that if the mid-point of the bar premises is taken into consideration, by measuring the same towards the North- Western stair case, which leads to the college, same is below 100 metres, as such, there is no reason or justification in allowing the petitioners to run bar and restaurants in the said premises. It is submitted by the learned counsel that as there were series of complaints from the parents of the students studying in the college, the respondent-authorities have refused to renew the licences. It is submitted that as much as the distance was measured from the mid-point of the bar premises to the nearest gate to enter into the complex of the college, and as the same is within the prohibited distance limits, the petitioners are not entitled for renewal of licences. 8. At the time of admission, this Court, by order, dated 27.07.2010, while recording a finding that the distance should be measured from the petitioners’ bar and restaurants along with the nearest path by which a pedestrian ordinarily reaches the educational institution, and as such, the measurement taken from the corridor of the complex cannot be termed as a ‘path of access’ by which a pedestrian could cross from the main road to the rear road, granted directions to measure the distance again and take steps. It is submitted that pursuant to the directions of this Court, by taking the measurements again, the licences of petitioners were renewed for the Excise Year 2010-2011. 9. When the approved building plan and the site plan are examined, it is clear that there are two roads to the shopping complex by name ‘Vengamamba Shopping Complex’. The building faces the main road on one side which is the Guntur-Hyderabad highway road, facing North, and there is another small road on back side of the building, which is called ‘Municipal road’. From inside the complex, there is a common corridor from North to South. The college is the lessee of the building, which is being run on the 1st and 2nd floors of the complex. There are three stair cases for the building, one at the South-West, one at North-West and the other one in the Centre of the building. Both the licenced premises of petitioners in these writ petitions are on the main road on either side of the building, facing North. It appears, while issuing the notice, dated 29.06.2010, respondents have measured the distance from the mid-point of the entry of the bar premises to the mid-point of the college entry from common corridor of the shopping complex. At the same time, it is also to be noticed that there is also a stair case on North-Western corner of the building, from which, there is access to the college, which is being run on the 1st and 2nd floors of the building. The authorities have erred in measuring the distance limits from the centre point of the entry into the bar premises to the entry of the college from the common corridor of the complex from North to South. As per the explanation to Rule 6 of the Excise Rules, 2005, the distance has to be measured from the mid-point of the entrance of the bar premises along with the nearest path, by which, a pedestrian ordinarily reaches to the mid- point of the nearest gate of the institution. In that view of the matter, it is clear that the respondent-authorities have not measured the distance in conformity with the explanation to Rule 6 of the Excise Rules, 2005. While computing the distance, the corridor, which is inside the complex, cannot be taken as basis for the purpose of measurements. The measurements which are taken from the corridor which is inside the complex, cannot be termed as nearest path, by which, pedestrian ordinarily reaches to the mid-point of the nearest gate of the institution from the bar premises. In that view of the matter, the measurements undertook by the respondents while issuing the notice, dated 29.06.2010, is to be held in not conformity with the explanation to Rule 6 of the Excise Rules. But, at the same time, as it is brought to the notice of this Court by the impleaded respondents representing the college and parents, that when there is another stair case on the North-Western side of the building, from which, there is access to 1st and 2nd floors of the complex where the college is being run, there is no reason for ignoring such entry for computing the distance limits. In that view of the matter, it is to be held that the action of respondents to the extent of measuring the distance through ‘Vengamamba Complex’, as illegal and as not in conformity with the Excise Rules, 2005, but at the same time, no direction can be granted to the respondents to measure the distance as was measured during the Excise Year 2009-2010. As it is stated that the licences of petitioners are already renewed for the current Excise Year, I deem it appropriate to dispose of the writ petitions, directing the respondents to undertake measurements for the purpose of distance limits once again in conformity with the explanation to Rule 6 of the Excise Rules, 2005, by measuring from the mid-point of the entrance of the bar premises to the mid-point of the nearest gate of the institution i.e. through the stair case on the North-Western side of ‘Vengamamba Shopping Complex’, and to take steps accordingly for the ensuing Excise Year of 2011- 2012. It is made clear that if the distance limit from the mid-point of the bar premises to the mid-point of entry through the North-Western stair case is below 100 metres, the licence of petitioners shall not be renewed for the excise year 2011-2012. If the distance is found to be more than 100 metres, it is open to the respondents to take steps in accordance with Rules for renewal of petitioners’ licences. It is further clarified that while measuring the distance limits, petitioners as well as the impleaded respondents should be notified by fixing a date for such measurement. 10. Subject to the aforesaid directions, both the writ petitions are disposed of. No costs. ______________________ R. SUBHASH REDDY, J 25th March 2011 ajr