IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTIETH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI ANIL R. DAVE, THE CHIEF JUSTICE and THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN W.P.Nos.16889, 21387 and 21910 of 2008 WRIT PETITION No: 16889 of 2008 Between: Heeranagar Welfare Association, Regd.No.6870/98 Office at 13-6-454/120, Heeranagar, Gudimalkapur, Hyderabad - 500 028, Rep. by its General Secretary G.Venkatesh Goud @ G.Venkateshwarlu S/o.Ramachandraiah, aged 41 years R/o. 13-6-455/119, Heera Nagar, Gudimalkapur, Hyderabad. ..... PETITIONER AND 1 The Government of Andhra Pradesh, rep. by its Principal Secretary to Government, Revenue (Ex.II) Department, Secretariat Buildings, Hyderabad. 2 The Commissioner, Prohibition and Excise, Hyderabad. 3 The Collector and District Magistrate, Hyderabad District at Hyderabad. 4 The Prohibition and Excise Superintendent, Hyderabad, Hyderabad District. 5 The Station House Officer, Prohibition and Excise Station, Golkonda, Hyderabad. 6 Sri.K.A.B. Sastry Hyderabad, Hyderabad District. 7 Smt.M.Jaya Laxmi W/o. M.Chandrasekhar Goud R/o.13-1-80, Razdharhhanpet, Mangalhat, Hyderabad, licensee of Sri Sai Shanthi Wines, Premises No. 12-2-416/65/4, Gudimalkapur, Hyderabad. 8 S.Ravi Kumar S/o.Yadagiri R/o.H.No.13-6-460/12, Maheshnagar, Gudimalkapur, Hyderabad, licensee of M/s. Nikitha Wines, Premises No. 12-2-416/79/2, Gudimalkapur, Hyderabad. .....RESPONDENT(S) 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 to issue any appropriate Writ, order or direction more in the nature of Writ of Mandamus directing the Respondents to take appropriate steps for implementing the Rule 27(1) of A.P. Excise (Lease of Right of Selling by Shop and Conditions of Licences) Rules, 2005 in respect of the Shops of the Respondents 7 and 8 which are located within 100 meters from the educational institutions namely Sri Chaitanya Kalasala, Gudimalkapur X Roads, Hyderabad and MNR group of High Schools, Gudimalkapur X Roads, Hyderabad by duly declaring the action of the respondents 2, 4 to 6 herein more particularly Respondent No.4 and 6 in granting licences under Rule 5 of A.P. Excise (Lease of Right of Selling by Shop and Conditions of Licences) Rules, 2005 to the Resposndents 7 and 8 who are successful tenderers for conducting business i.e., to sell Indian Made Foreign Liquor at the premises bearing Nos. 12-2-416/65/4, in the name and style of M/s. Sri Sai Shanthi Wines and 12-2- 416/79/2 in the name and style of M/s Nikitha Wines, Gudimalkapur, Hyderabad vide Proc. on Cr.No.B3/607/2008 ESH dated 2.7.2008 and Proc.on Cr.No.B3/606/2008/ESH dated 2.7.2008 respectively even though the above shops are located within 100 meters from the educational institutions namely Sri Chaitanya Kalasala, Gudimalkapur X Roads, Hyderabad and MNR group of High Schools, Gudimalkapur X Roads, Hyderabad ignoring Rule 27(1) of A.P. Excise (Lease of Right of Selling by Shop and Conditions of Licences) Rules, 2005 as illegal, arbitrary and contrary to the true intent of Rule 27(1) of A.P. Excise (Lease of Right of Selling by Shop and Conditions of Licences) Rules, 2005 and pass such further or other orders. Counsel for the Petitioner:MR.V.RAVI KIRAN RAO Counsel for the Respondent No.: GP FOR PROHIBITION & EXCISE WRIT PETITION NO : 21387 of 2008 Between: Smt. M. Jayalakshmi W/o. M. Chandrashekar Goud, Hindu Hyderabad. ..... PETITIONER AND 1 The Superintendent Prohibition & Excise, Mozamjahi Market, Hyderabad. 2 G. Venkatesh Goud @ Venkateswarlu S/o. Ramachandraiah, Hindu R/o. 13-6-455, Heeranagar, Gudimalkapur, Hyderabad. .....RESPONDENT(S) 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 to issue a writ of Mandamus or any other appropriate writ order or direction declaring the proceedings of the 1st respondent in C.R.No. B3/607/08/ESH-1 dt. 22-9-2008 is illegal, arbitrary and issued in violative of principles of Natural Justice and the same is contrary to law and consequently to set asid the same and pass such other order or orders Counsel for the Petitioner:MR.K.CHIDAMBARAM Counsel for the Respondent No.: GP FOR PROHIBITION & EXCISE WRIT PETITION NO : 21910 of 2008 Between: S. Ravi Kumar (Hindu) S/o. Yadaiah R/o. 13-6-460/12, Mahesh Nagar, Gudimalkapur, Hyderabad. ..... PETITIONER AND 1 The Superintendent Prohibition & Excise Mozamjahi Market, Hyderabad. 2 G. Venkatesh Goud & Venkateswarlu (Hindu) S/o. Rama Chandraiah R/o. 13-6-455, Heera Nagar, Gudimalkapur, Hyderabad. .....RESPONDENT(S) 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 to issue a writ of Mandamus or any other appropriate writ, order or direction declaring the proceedings of the 1st Respondent in C.R.No.B3/607/2008/ESH-II dt.22-09- 2008 is illegal, arbitrary and issued in violative of Principles or Natural Justice and the same is contrary to law and consequently to set aside the same. Counsel for the Petitioner:MR.K.CHIDAMBARAM Counsel for the Respondent No.: GP FOR PROHIBITION & EXCISE This court made the following: THE HON’BLE SRI ANIL R. DAVE, THE CHIEF JUSTICE and THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN W.P.Nos.16889, 21387 and 21910 of 2008 COMMON ORDER: (Per HON’BLE SRI JUSTICE RAMESH RANGANATHAN) W.P.No.16889 of 2008 is filed by Heeranagar Welfare Association, Gudimalkapur, seeking a direction to the respondents to implement Rule 27(1) of the Andhra Pradesh Excise (Lease of Right of Selling by Shop and Conditions of Licences) Rules, 2005, (hereinafter referred to as ‘Excise Rules, 2005’), in respect of the shops of respondents 7 and 8 on the ground that they are located within 100 metres from two educational institutions namely Sri Chaitanya Kalasala, Gudimalkapur X Roads, Hyderabad and MNR group of High Schools, Gudimalkapur X Roads, Hyderabad. The petitioners also seek to have the action of respondents 2, 4 to 6, in granting licences, under Rule 5 of the Excise Rules, 2005, to respondents 7 and 8 for sale of Indian Made Foreign Liquor and Foreign Liquor (IMFL & FL) at their respective premises in Gudimalkapur, vide proceedings dated 02.07.2008, declared as illegal and arbitrary. During the pendency of this writ petition, the respondent authorities, claiming to have realized their lapse in granting licences to respondents 7 and 8 contrary to Rule 27(1) of the Excise Rules, 2005, issued proceedings dated 22.09.2008 calling upon them to select another alternative premises within the notified area in conformity with Rule 27(1). Aggrieved thereby, W.P.Nos.21387 and 21910 of 2008 were filed by the 7th and 8th respondents in W.P.No.16889 of 2008 respectively. In both these writ petitions, the proceedings dated 22.09.2008 are under challenge as arbitrary, illegal and in violation of principles of natural justice. All the three writ petitions were heard together and are now being disposed of by a common order. Parties to these writ proceedings shall, hereinafter, be referred to as they are arrayed in W.P.No.16889 of 2008. Facts, in brief, are that the third respondent issued a notification dated 06.06.2008 inviting tenders for grant of licences for the period 01.07.2008 to 30.06.2010. The notified areas for the two shops, which are the subject matter of these writ petitions, were listed at Sl.Nos.127 and 128 in the said notification. A copy of the auction conditions were supplied to all prospective tenderers including respondents 7 and 8. Condition No.XXIII thereof stipulated that the premises, for sale of IMFL & FL, should be in conformity with Rule 27(1) of the Excise Rules, 2005 and that a licence in Form A-4 should be obtained, by the successful tenderers, from the Prohibition & Excise Superintendent, to commence business from 01.07.2008. Condition No.XXIV specified that such a licence was to be governed by the provisions of the A.P. Excise Act, 1968 and the various rules mentioned thereunder. Respondents 7 and 8 submitted their respective bids and were held to be the successful tenderers for the shops at Sl.Nos.127 and 128. They selected shops which, on enquiry by the Station House Officer, were found to be within 100 metres from MNR Group Schools and Sree Chaitanya Junior College at Gudimalkapur. However, on the basis of a copy of the list of recognized schools furnished by the District Educational Officer, Hyderabad and, on being informed by the Principal of Sree Chaitanya Junior College that they were running academic classes at Gudimalkapur under the management of Sree Chaitanya Kalasala, Mehedipatnam, the Station House Officer came to the conclusion that MNR Group Schools and Sri Chaitanya Junior College located at Gudimalkapur were not recognized by the Education Department. The Station House Officer informed the 6th respondent that, as per the list of recognized colleges provided by the Director of the Board of Intermediate Education, there was no such college as Sree Chaitanya Kalasala at Gudimalkapur and, though these two educational institutions i.e., MNR Group Schools and Sree Chaitanya Kalasala were situated within 100 metres, there was no prohibition to establish a liquor shop since these educational institutions were not recognized either by the State or the Central Government. He came to the conclusion that the premises selected by respondents 7 and 8 were in accordance with Rule 27 of the Excise Rules, 2005. Respondents 7 and 8 were granted licences, to establish shops at the approved premises, on 02.07.2008. The petitioner sought information, under the Right to Information Act, from the Director, Board of Intermediate Education in the 1st week of September, 2008, which revealed that the Government had issued G.O.Rt.No.205 dated 29.02.2008. The said G.O. reads as under: GOVERNMENT OF ANDHRA PRADESH ABSTRACT Private Un-aided Junior Colleges – IZASTW Junior College, Langar House, Hyderabad – shifting of Junior College/Change of name of the Junior College and change of name of the Society and Management – Permission accorded – Orders – Issues ------------------------------------​------------------------------------------------- HIGHER EDUCATION (IE.II) DEPARTMENT G.O.Rt.No.205 Date: 29-2-2008 From the secretary, Board of Intermediate Education, A.P., Hyderabad Letter Rc.No.40/e-1/1994-95, dt.0-01-2007. ORDER: In the circumstances stated by the Secretary, Board of Intermediate Education, Hyderabad in the reference read above, Government after careful examination hereby accord permission to the Secretary/Correspondent, Imam-E-Zamin, Taleami Wakf, Langar House, Hyderabad to shift the premises of IZASTW, Junior College fromH.No.13-6-822/1, Langar House, Hyderabad to H.No.13-6-460, Maheshnagar, Gudimalkapur, Hyderabad and for change of name of the Society and Management from Imam-E-Zamin(A.S), Taleemi Wakf, Langar House,Hyderabad to Sri Chaitanya Educational Committee, Vijayawada as per rule 14(3) and in relaxation of rule 14(4) of G.O.Ms.No.29, Education (Rules), Department, dated 05.02.1987 and to change the name of the Junior College from IZASTW Junior College, Hyderabad to Sri Chaintayna Junior Kalasala, Hyderabad subject to fulfillment of all other terms and conditions stipulated by the Government/Board of Intermediate Education from time to time. 2. The Secretary, Board of Intermediate Education, Hyderabad is requested to take necessary action accordingly. (BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) ASUTOSH MISHRA PRINCIPAL SECRETARY TO GOVERNMENT The petitioner was also informed that the Secretary, Board of Intermediate Education, vide proceedings dated 21.06.2008, had informed the Secretary/ Correspondent of IZASTW Junior College that the decision of the Government to permit shifting of the premises to Gudimalkapur, for change of name of their Society to Sri Chaitanya Educational Committee, Vijayawada, and the change of name of the junior College from IZASTW Junior College to Sri Chaitanya Junior Kalasala, had been implemented by the Board. Thereafter, as noted hereinabove, the impugned proceedings dated 22.09.2008 was issued. Thereunder, the Prohibition and Excise Superintendent, after referring to the letter addressed by the Secretary of the Intermediate Board dated 20.09.2008 informing that G.O.Rt.No.205 dated 29.02.2008 was implemented by their office on 21.06.2008, informed the 7th and 8th respondents that, in view of the permission accorded by the Board of Intermediate Education, M/s.Sri Chaitanya Junior Kalasala, functioning at D.No.13-6-460, Gudimalkapur, Hyderabad, was a recognized institution which fell within 100 metres from the licenced premises and, thereby, the premises in which the shops were being run by respondents 7 and 8 attracted Rule 27(1) of the Excise Rules, 2005. Respondents 7 and 8 were directed to select another alternative premises, in conformity with Rule 27(1), within the notified ward, and submit an application for permission being accorded to the shop. Sri V.Ravikiran Rao, learned counsel for the petitioner, would submit that, in support of their claim to have locus standi to file this writ petition, the petitioner had given details of the activities of their association and the various welfare activities taken up by them for upliftment and maintaining better living standards of the inhabitants of Heeranagar, Gudimalkapur, and its surrounding areas of Hyderabad, that the deponent, of the affidavit filed in support of the writ petition, was not holding any licence granted under Form A4 for carrying on business in IMFL & FL in any shop, that he was one of the partners in a Bar and Restaurant namely M/s New Narmada Bar and Restaurant situated at Maheshnagar which was nearly ½ KM away from the shop of the 8th respondent, that the licence, for running the Bar, was granted in the year 2006, that the same had been renewed for the excise year 01.07.2008 to 30.06.2009, that the deponent was the Secretary of the Petitioner-association and that the members of the association had passed a resolution dated 07.07.2008 authorizing him to espouse their cause by filing a writ petition. Learned counsel would submit that children of the members of the petitioner-association were prosecuting studies in the two educational institutions, that a list of such children was annexed to the affidavit filed in support of the petition, that the members of their association, whose children were prosecuting studies in these two educational institutions, were undergoing mental agony with regards their children’s welfare as consumption of liquor had become a fashion and they were concerned that their children may also get attracted thereto. Both Sri Koka Raghava Rao, learned senior counsel and Sri K.Chidambaram, learned counsel appearing on behalf of the 7th and 8th respondents, would contend that the deponent of the affidavit, G.Venkatesh Goud @ G.Venkateswarlu was a business rival for the past more than two decades, that he was carrying on his business on the same road, called the main road in Gudimalkapur, on which the 7th and 8th respondents had been carrying on their business for the past several years, that W.P.No.16889 of 2008 was filed only to somehow ensure that the licences granted to respondents 7 and 8 were cancelled, that Sree Chaitanya Junior Kalasala was not found in the list of recognized junior colleges, that the said college did not fall within the definition of ‘educational institutions’ under Rule 27 of the Excise Rules, 2005, that the Excise Rules, 2005 did not provide for shifting of a shop for which a licence had already been granted, that the action of the Superintendent, Prohibition and Excise, was one sided without prior notice or enquiry, that an enquiry was conducted by the Station House Officer, before granting permission to respondents 7 and 8 to set up their shops, and it was found that Rule 27 had not been violated as the educational institutions were not recognized, that there was nothing to show that the Government had granted recognition to these institutions, that in the list of educational institutions recognized by the Government of Andhra Pradesh, secured by respondents 7 and 8 from the web site, the names of these two educational institutions did not find place which would establish that were not recognized by the Government of Andhra Pradesh, that, even assuming that the said educational institution was recognized, respondents 7 and 8 had spent huge amounts, developed goodwill during the past two decades and could not, therefore, be coerced to shift the shops from the premises in which they had been carrying on the same business for the past 18 years. According to the learned counsel, the educational institution being run by Sri Chaitanya Educational Committee was on the other side of the 80 ft. wide road passing from Mehdipatnam to Gudimalkapur and was located in a three storied building commencing from the 1st floor, that the ground floor consisted of commercial shops and a restaurant, that the distance between the shops, and the class rooms of the institution was more than 100 metres and that the first respondent, without conducting necessary enquiry, without measuring the distance and without notice, had passed the impugned order yielding to the pressure of the petitioner. Learned Government Pleader for Excise would submit that, basing on the report of the Station House Officer, permission was granted earlier, that later it came to light that the Government, vide G.O.Rt.No.205 dated 29.02.2008, had accorded permission to shift the premises of IZASTW Junior College from Langar House to Gudimalkapur, and, pursuant thereto, proceedings dated 20.06.2008 were issued by the Board of Intermediate Education, that instructions were issued to the Station House Officer to enquire into the matter afresh in the light of the above information, that, during this enquiry, the Station House Officer had addressed a letter to the Board of Intermediate Education seeking information whether the college i.e. Sri Chaitanya Junior Kalasala was recognized or not and, vide letter dated 20.09.2008, the Secretary, Board of Intermediate Education had informed that G.O.Rt.No.205 dated 29.02.2008 was implemented vide proceedings dated 21.06.2008, that, in view of the permission accorded by the Board of Intermediate Education, M/s.Sri Chaitanya Junior Kalasala functioning at D.No.13-6-460, Gudimalkapur, was a recognized institution falling within 100 metres distance from the licenced premises of respondents 7 and 8 and, therefore, the impugned notice was issued to respondents 7 and 8 to select an alternative premises in conformity with the Excise Rules, 2005. He would further submit that the distance between licenced premises to Sri Chaitanya Educational Kalasala was already measured by the Station House Officer, as per the procedure prescribed in sub-rule 3 of Rule 27, and the distance was found to be less than 100 metres and the allegation of respondents 7 and 8, that the distance between the licenced premises to the classrooms of the educational institution was more than 100 metres, was not correct. According to the learned Government Pleader, respondents 7 and 8 were given time to select an alternative premises and the impugned notice was issued only after being satisfied that the licensed premises was within 100 metres distance from the recognized educational institution i.e. Sri Chaitanya Educational Kalasala. Since the controversy revolves mainly around the question whether or not Sri Chaitanya Junior Kalasala is a recognized institution, it is necessary to refer to Rule 27(1) wherein this condition is prescribed. 27. Selection of premises: (1) The successful tenderer, subject to the approval of the Prohibition and Excise Superintendent, shall select suitable premises for sale of IL & FL within the Municipal Corporation, Municipality, village/town/city or area/locality as the case may be as notified in the District Gazette. It shall be at least 100 metres away from the places of Public worship, Educational Institutions, Hospitals and 50 metres away from Highways except in Municipal Corporations and 5 kms belt area of the periphery of Municipal Corporations. Explanation:- For the purpose of this rule- (a) “Place of public worship” means a temple registered with the Endowment Department, Mosque registered with Wakf Board and Church and includes such other religious institutions, as the State Government may by order specify in this be half; (b) “Educational Institutions” means any Primary School, Middle School and High School recognized by the State Government or Central Government, Junior College or any College affiliated to any University established by law; (c) “High Way” means National High Way or State Highway and shall not passes within the limits of Municipal Corporation, Municipal Council or the Gouthan in any village or Panchayat area; (d) “Hospital” means any hospital which is managed or owned by a local authority, State Government or Central Government or any private hospital having a provision of at least thirty (30) beds” While recognition, by the State Government or Central Government, is required for schools, no such requirement has been stipulated, under explanation (b) of Rule 27(1), for junior colleges. Even if the requirement of recognition is read into Rule 27(1) of the Excise Rules, 2005, it is evident that Sri Chaitanya Junior Kalasala is merely a change of name of IZASTW Junior College which was recognized both by the State Government and the Board of Intermediate Education. Even in the list of junior colleges, furnished by the respondents 7 and 8 along with the writ petitions filed by them, IZASTW Junior College, Langer House, is shown at Sl.No.75 and Sri Chaitanya Junior Kalasala, LIC Colony is shown at Sl.No.90. A feeble attempt is made by Sri K.Chidambaram, learned counsel appearing for respondents 7 and 8, to submit that the distance between Sri Chaitanya Junior Kalasala and their shops is more than 100 metres. This allegation is denied both by the petitioner in W.P.No.16889 of 2008 and by the official respondents. It is evident from the material on record that the distance was measured by the Station House Officer in accordance with Rule 27(3) of the Excise Rules, 2005, and was found to be less than 100 metres. Even earlier, when licences were granted to respondents 7 and 8, the Station House Officer had made a favourable recommendation, despite the fact that the distance between the licenced premises and Sri Chaitanya Junior Kalasala was less than 100 metres, only on the ground that the said college was not recognized. If, indeed, as claimed by them the distance between their licenced premises and the junior college was more than 100 metres, respondents 7 and 8 should have given details of the actual distance and not rest their contention on a bare averment that the distance was beyond 100 metres, more so in the light of their admission that the said junior college was located in a building, on the other side of the 80 ft. wide road, opposite their licenced premises. It is, therefore, evident that location of the shops of respondents 7 and 8 is in violation of Rule 27(1) of the Excise Rules, 2005, as they are not located 100 metres away from a recognized educational institution. In the light of these indisputable facts, the question which requires examination is whether failure to put respondents 7 and 8 on notice, before the impugned proceedings dated 22.09.2008 was passed, necessitates the said order being set aside on the ground of violation of principles of natural justice. It is well settled that rules of natural justice are not embodied rules. It cannot be put in a straight jacket formula. (Syndicate Bank vs. Venkatesh Gururao Kurati[1] and State Bank of Patiala vs. S. K. Sharma[2]). It is not possible to lay down rigid rules as to when principles of natural justice are to apply, nor as to their scope and extent. There is no such thing as merely a technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules, the subject-matter to be dealt with, and so forth. (Wade’s Administrative Law 5th Edn. Pp.472-75; K.L.Tripathi v. State Bank of India[3]; Aligarh Muslim University v. Mansoor Ali Khan[4]). Principles of natural justice is no unruly horse. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. When facts are admitted, an enquiry would be an empty formality. (State of Punjab v. Jagir Singh[5], Karnataka SRTC v. S.G. Kotturappa[6]; Gurjeewan Garewal (Dr.) v. Dr.Sumitra Dash[7]; Viveka Nand Sethi v. Chairman, J&K Bank Ltd.[8]). Where on admitted or indisputable facts only one conclusion is possible, the court may not issue its writ to compel the observance of natural justice, not because it approves the non- observance of natural justice but because courts do not issue futile writs. (S.L. Kapoor v. Jagmohan[9]; M.C.Mehta v. Union of India[10]]. Where facts are not in dispute an inquiry would be an empty formality. (Anil Bajaj (Dr) v. Postgraduate Institute of Medical Education & Research[11]; Dr.Gurjeewan Garewal7). Even in cases where the facts are not all admitted or beyond dispute, there is considerable unanimity that the courts can, in exercise of their “discretion”, refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. (M.C. Mehta10). It