THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.16398 OF 2010 DATED: 14.09.2010 Between : Tanjavoor Parameswara Rao, and another. … Petitioners And The Commissioner, Prohibition & Excise, Hyderabad, and 3 others. … Respondents THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.16398 OF 2010 ORDER: The petitioners herein claim to be the residents of Sivalayam Street, Venkateswarapuram, Nellore, Potti Sreeramulu District. This writ petition is filed seeking a declaration that the action of the respondents 1 and 2 in granting Form A-4 licence in favour of the 4th respondent herein for establishing a retail liquor outlet in the premises bearing No.28-1354 of Sivalayam Street is arbitrary, illegal and contrary to the order of this Court in W.P.No.657 of 2009. It is stated that the House bearing No.28/1354 is situated opposite the house of the petitioner No.1. As the said building was constructed long back and was in dilapidated condition, the owner of the said house got it demolished and started raising new structure without obtaining the permission and without leaving any open space and raising pillars on the road margins, the petitioners and other residents of the locality made a complaint to the 3rd respondent Corporation. Pursuant thereto, a show-cause notice dated 7.7.2008 under Section 461 of the Hyderabad Municipal Corporations Act, 1955 (for short, ‘HMC Act’) was issued calling upon the owner of the premises to show-cause as to why the structures raised by him should not be demolished as they were constructed contrary to the building regulations and without obtaining any approvals. Having received the said representation, the owner of the premises made an application for building permission on 26.7.2008 which was returned by the Corporation vide endorsement dated 1.8.2008. Without resubmitting the application by complying with the objections, as the owner was proceeding with further construction, the petitioners filed W.P.No.657 of 2009 to stop the illegal constructions. The petitioners also filed C.C.No.309 of 2009 alleging wilful violation of an interim order passed in W.P.No.657 of 2009. After hearing both parties, W.P.No.657 of 2009 and C.C.No.309 of 2009 were disposed of by common order dated 11.3.2010 with directions as under: “The 1st respondent-Commissioner, Municipal Corporation, Potti Sreeramulu Nellore District, is directed to initiate necessary steps for removal of the unauthorized structures, if any, made by the 2nd respondent by issuing notice. The 2nd respondent is permitted to make the constructions only after obtaining necessary permission from the Municipal Corporation. With the above directions, the writ petition is disposed of, and consequently, the contempt case is closed.” While so, the 4th respondent herein having proposed to establish a retail liquor outlet in the premises in question, made an application for grant of A-4 licence under A.P. Excise (Lease of Right of Selling by Shop and Conditions of Licence) Rules, 2005 (for short, ‘the Rules, 2005’). Having entertained the said application as the respondents 1 and 2 were about to grant the licence as sought by the 4th respondent, the present writ petition has been filed seeking a direction to the respondents 1 and 2 not to grant any permission for conducting any business in the premises bearing No.28/1354, Sivalayam street, in terms of the order passed by this Court in W.P.No.657 of 2009, dated 11.3.2010. It is contended by the petitioners that as the building bearing No.28/1354 was constructed without any permission and there was also a direction by this Court in W.P.No.657 of 2009 for removal of the unauthorized structures and the owner of the premises was permitted to make constructions only after obtaining necessary permission from the 3rd respondent, no licence can be granted to the 4th respondent for carrying on the business in the premises in question unless and until the permission is granted in terms of the order of this Court in W.P.No.657 of 2009. The 2nd respondent – Superintendent, Prohibition & Excise, Nellore – filed a counter-affidavit stating that the 4th respondent was the successful bidder for A-4 shop notified in the Gazette at Sl.No.17 situated at Ward No.50 of Nellore Municipal Corporation for the lease period 2010-2012 and that he had submitted the proposals for A-4 shop under the name and style of M/s. Venkateswara Wines at Door No.28/1354. It is further stated that after due inspection by the Station House Officer, Nellore, the said premises was recommended for establishment of the shop as the same did not attract Rule 27(1) of the Rules, 2005. Accordingly, vide proceedings dated 7.7.2010 the 2nd respondent issued Form A-4 licence to the 4th respondent. It is further stated that the premises for establishing the shop has to be selected by the successful tenderer and the licensing authority has to verify whether the boundaries of the selected premises so as to ensure that the premises is in accordance with Rule 27 of the Rules. Except that the respondents 1 and 2 are in no way concerned to verify whether the building is constructed according to the approved plan or to verify the title of the house owner. Though no counter-affidavit is filed by the 3rd respondent Corporation, the 4th respondent filed a detailed counter-affidavit denying the plea that the building in question was constructed long back and it was in dilapidated condition. It is also stated that A-4 licence has been rightly issued to him as the premises selected by him is in conformity with Rule 27 of the Rules, 2005. It is further stated that O.S.No.791 of 2008 on the file of the Court of I-Additional Junior Civil Judge, Nellore was filed by one Sunkara Chennaiah represented by his GPA Holder Sunkara Sudhakar seeking permanent injunction restraining the owner of the premises in question from making unauthorized construction. Similarly one Shaik Abdul Raheem filed O.S.No.703 of 2008 on the file of the Court of I-Additional Junior Civil Judge, Nellore. Both the said civil suits are pending and the petitioners are none other than some of the plaintiffs in O.S.No.1575 of 2007 on the file of the Court of III-Addl. Junior Civil Judge, Nellore filed against the Prohibition & Excise Department and the lessee of the building at that point of time so as to prevent the said licence from carrying on the business. It is also pleaded that the 2nd petitioner is not even a neighbour and his house is situated on the other side of the National Highway and the entire litigation is initiated due to trade rivalry as the petitioners have also been running the liquor business in the locality. I have heard the learned counsel for both the parties. At the outset, it is to be noticed that during the pendency of this writ petition by order dated 24.7.2010 the 3rd respondent Corporation accorded building permission as per the revised plan for existing ground + first floor of the building in question under Section 455-A of the HMC Act, 1955 read with G.O.Ms.No.302, dated 15.4.2008. Challenging the same, the petitioners herein filed W.P.No.18775 of 2010 impleading the 4th respondent herein also as a party respondent. The said writ petition was dismissed by this Court today by a separate order rejecting the contention that in view of the common order passed in W.P.No.657 of 2009 and C.C.No.309 of 2009, dated 11.03.2010 no building permission can be granted unless and until the structures already raised are removed. Be that as it may, so far as the present writ petition is concerned, the only question that requires consideration is whether form A-4 licence granted to the 4th respondent is illegal on the ground that the premises in which the shop is proposed to be located is constructed unauthorisedly. Rule 27 of the said Rules which deals with the selection of premises for establishing the shop for sale of liquor, to the extent it is relevant, runs as under : “27. Selection of Premises :- (1) The successful tenderer subject to the approval of Proh. & 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 notified in the District Gazette. It shall be at least 100 meters away from the places of Public worship, Educational Institutions, Hospitals and 50 Meters away from Highways except in Municipal Corporations and 5Kms belt area of the periphery of Municipal Corporations.(emphasis supplied) Explanation:- … … … … … … …” Having interpreted the scope of the above said rule, it was held by this Court in CH. SUBRAHMANYESWARA RAO v. COMMISSIONER, PROHIBITION AND EXCISE, HYDERABAD[1] as under: “A perusal of the above Rule, with particular reference to the words “subject to the approval” and “suitable premises” makes it clear that the Legislature intended to confer some amount of discretion on the Prohibition & Excise Superintendent in the matter of deciding suitability of the premises. There is nothing in the Rule to indicate either expressly or impliedly that once the conditions specified under Rule 29 are satisfied, the Prohibition & Excise Superintendent is bound to grant the licence. On the other hand, the words “subject to the approval” and “suitable premises”, undoubtedly indicate that while assessing the suitability of the premises selected by the successful tenderer the Prohibition & Excise Superintendent, if necessary, can go beyond the requirements specified under Rule 29. Having regard to the particular facts and circumstances, even after compliance with the requirements under Rule 29, the Prohibition & Excise Superintendent in exercise of his discretion may decline to approve the premises selected by the successful tenderer. However such exercise of discretion shall not be arbitrary or unreasonable, but must be based upon cogent material having nexus to the purpose sought to be achieved.” The said decision was upheld by a Division Bench of this Court in W.A.No.898 of 2006 holding as under : “An analysis of the above reproduced rule shows that the successful bidder is required to select suitable premises for sale of Indian liquor and foreign liquor within the Municipal Corporation, Municipality, village/town/city or area/locality, which may be notified in the District Gazette. This rule also contains a restriction on the location of premises within 100 meters from the places of public worship, educational institutions and hospitals. The expression ‘suitable premises’ has not been defined in Rule 27(1), but it has to be construed keeping in view the larger public interest. In a given case, the competent authority can refuse to approve location of the premises despite the fact that the same may be beyond 100 meters from the places of public worship, educational institutions and hospitals. The possible deterioration of law and order problem on account of location of shop in a particular premises is certainly a factor which has bearing on public interest. Similarly, unhealthy competition among the licensees is also a relevant factor which can be taken into consideration by the competent authority while deciding the application for approval of suitable premises.” From the above, it is clear that the title to the premises wherein the successful tenderer proposes to locate the shop is not a relevant factor for the purpose of granting Form-A4 licence. Having been satisfied that the premises in question, wherein the 4th respondent proposed to establish the shop was in conformity with Rule 27 of the Rules, the respondents 1 and 2 thought it fit to grant the A-4 licence in favour of the 4th respondent. I do not find any justifiable reason to hold that the discretion exercised by the respondents 1 and 2 in approving the premises in question is arbitrary or unreasonable. At any rate, the order passed by the Corporation regularizing the structures in the premises in question has been upheld by this Court in W.P.No.18775 of 2010 and as such the contention of the petitioners that the premises in question being an unauthorised and illegal structure the 4th respondent cannot be permitted to carry on the business in the said premises is liable to be rejected. Thus on that ground also the writ petition is liable to be dismissed. Accordingly, the Writ Petition is dismissed. No costs. _____________ G. ROHINI, J. Dt. 14.09.2010 gbs [1] 2005 (6) ALD 501