IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE FIRST DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO : 3387 of 2009 Between: M/s. Kumar Wines, situate in Sy.No.21/8A, ward No.8, Uthukota-Satyavedu Road, Dasukuppam Village, Sathyavedu Mandal, Chittoor District rep. by its Proprietor, P. Chandra Sekhar Reddy, S/o. Chenchurami Reddy, Age 40 Yrs, Occ: Business, R/o.Dasukuppam Village, Sathyavedu Mandal, Chittoor District ..... PETITIONER AND 1 State of Andhra Pradesh, rep. by its Secretary, Excise & Prohibition Department, Secretariat Buildings, Hyderabad. 2 The Commissioner, Excise & Prohibition Hyderabad. 3 The Superintendent of Excise & Prohibition Tirupati, Chittoor District. 4 The Inspector, Excise & Prohibition Sathyavedu, Chittoor District. 5 M/s. Teja Wines, Situate at Utukota-Nagalapuram Road, Ward No.9, Dasukuppam Village, Sathyavedu Mandal, Chittoor District rep. by its Proprietor Naga Mohan Reddy, S/o. Not Known to the petitioner, Age 45 Yrs, Occ: Business, R/o.Dasukuppam Village, Sathyavedu Mandal, Chittoor District .....RESPONDENTS Counsel for the Petitioner: MR.P.VENUGOPAL Counsel for Respondent Nos.1 to 4: GP FOR PROHIBITION & EXCISE Counsel for Respondent No.5: MR.G.SUDHEER The Court made the following : ORDER: This Writ Petition is filed for a writ of Mandamus to declare the inaction of respondent Nos.1 to 4, in passing orders on representations dated 23-01-2009 and 27-01- 2009 of the petitioner, as illegal and arbitrary. Heard Sri P.Venugopal, learned Counsel for the petitioner, the learned Assistant Government Pleader for Prohibition and Excise for respondent Nos.1 to 4 and Sri G.Sudheer, learned Counsel for respondent No.5. Perused the record. The petitioner has been granted license to sell liquor in retail and the license is valid till 30-06-2010. Respondent No.5 was also granted a similar license. Both these licenses were granted in respect of two different shops situated in Dasukuppam Village, Sathyavedu Mandal, Chittoor District. On respondent No.5 approaching respondent Nos.2 and 3 for permitting it to shift the shop from the place where it was originally located, the petitioner submitted its objections. The main grievance of the petitioner is that the representations made by it are still pending with respondent No.2, but efforts are being made to permit respondent No.5 to shift the shop to a place which is near the place of the petitioner’s business. In the counter-affidavit filed by respondent No.3, it is inter alia stated that thirteen shops were notified in Dasukuppam Village, Sathyavedu Mandal, Chittoor District vide Gazette No.174/2008, dated 06-06-2008 and that separate locations were not notified in respect of those shops and that successful tenderers selected their respective premises in accordance with Rule 27 of the A.P.Excise (Lease of right of selling by Shop and conditions of license) Rules, 2005 (for short “2005 rules”). It is further stated that the petitioner was a successful tenderer in respect of shop No.5 while respondent No.5 was successful tenderer in respect of shop No.9 and that respondent No.5 is entitled to establish a shop anywhere in Dasukuppam Village, which is a notified area, subject to the fulfillment of conditions prescribed under Rule 27 of the 2005 Rules. Respondent No.3 specifically denied the allegation that if the proposed shifting of shop by respondent No.5 is permitted, it will violate the distance rule prescribed under Rule 27 of the 2005 Rules. It is stated, in this connection, that there are no educational institutions, places of worship and hospitals within hundred meters of the proposed location. Respondent No.5 also filed a counter-affidavit, which is almost on identical lines to the counter filed by respondent No.3. At the hearing, Sri P.Venugopal, learned Counsel for the petitioner, submitted that the very request of respondent No.5 to permit it to shift the shop on the ground that it is making losses cannot be sustained and the same is contrary to the judgment of a Division Bench of this Court reported in S.Malleswar Rao vs. Commissioner of Prohibition and Excise, Government of A.P., and others[1]. He alternatively submitted that even if respondent Nos.2 and 3 are vested with the power to permit shifting of shop, such power shall be exercised subject to compliance of the provisions of Rule 27 of the 2005 Rules. The learned Counsel invited the attention of the Court to the sketch submitted by respondent No.3 along with the counter-affidavit and pointed out that the very measurement of distances in the sketch appears to be arbitrarily done and that if the distances are properly measured, the proposed location will fall within hundred meters of a mosque. The learned Assistant Government Pleader and the learned Counsel for respondent No.5 opposed the contention of the learned Counsel for the petitioner and submitted that there is no prohibition under the provisions of the Act and the relevant Rules on respondents Nos.2 and 3 to permit shifting. They also submitted that the proposed location is not in violation of the distance Rule envisaged under Rule 27 of the 2005 Rules. As regards the first contention of the learned Counsel for the petitioner, it is required to be kept in mind that the shops were not notified ward-wise and that all thirteen shops were notified for Dasukuppam Village. Therefore, the petitioner cannot curtail the right of respondent Nos.2 and 3 to consider the request of respondent No.5 for shifting, if they are satisfied that such a request is reasonable. Therefore, on the facts of this case, the judgment of the Division Bench cannot be pressed into service. With regard to the second contention, the power of respondent Nos.2 and 3 to permit shifting of an existing shop shall always be subject to compliance of the requirements of Rule 27 of the 2005 Rules. There is a serious dispute on this aspect between the parties. No doubt, in the sketch filed along with the counter-affidavit filed by respondent No.3, the mosque is shown beyond hundred meters from the place where respondent No.5 is proposing to locate its shop. This aspect, however, falls within the realm of disputed question of fact, which can be properly ascertained by respondent No.2 by calling for report from the competent authority. Admittedly, the representation made by the petitioner is pending before respondent No.2. Therefore, in my considered view, interests of justice would be met if respondent No.2 disposes of the petitioner’s representations by calling for necessary report regarding the distance from the place where respondent No.5 is proposing to locate its shop to the existing mosque. If, on a proper computation of distance in accordance with the provisions of Rule 27 of the 2005 Rules, it is found that the proposed location is within hundred meters of the mosque, respondent No.5 cannot be permitted to shift his shop to that place. If, on the other hand, the distance is beyond hundred meters, it is needless to observe, respondent No.2 is entitled to permit shifting of shop by respondent No.5. Accordingly, the Writ Petition is disposed of with the direction to respondent No.2 to dispose of the petitioner’s representation, by passing appropriate order on the above aspect, within a period of four weeks from the date of receipt of copy of this order and communicate the same to the petitioner and respondent No.5. As a sequel to disposal of the Writ Petition, WPMP.No.4405 of 2009 filed by the petitioner for interim relief is dismissed as infructuous. ___________________________ (C.V.NAGARJUNA REDDY, J) 1st June, 2008 LUR [1] 2008 (2) ALT 421 (D.B.)