IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FIRST DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE GODA RAGHURAM WRIT PETITION NO : 18204 of 2006 Between: M/s. Himayalay Restaurant & Bar, A Registered Partnership firm Rep. by its S/o. Drl. G. Ramgopal Reddy, aged 30 years, Occ:Business R/o. Plot No. 57, Durganagar Colony, Panjagutta, Hyderabad. ..... PETITIONER AND 1 The Excise Superintendent, Prohibition & Excise Department, Hyderabad. 2 The Commissioner of Police, Basheerbagh, Hyderabad. 3 The Assistant Commissioner of Police, Punjagutta Circle, Hyderabad. 4 The Station House Officer, Banjara Hills Police Station, Banjara Hills, Hyderabad. .....RESPONDENTS 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 issue a writ order or direction more particularly one in the nature of Mandamus declaring the action of the Respondent in interfering with the business hours for the petitioner as illegal, arbitrary and contrary to the conditions of 15 of G.O.Ms.No. 997 dt. 24-5-2005 and consequently direct the respondent not to interfering with the business of the petitioner Restaurant & Bar in Premises No. 8-3-833/304 & 305/2, 1st Floor, Harini Plaza, Phase 2, Kamalapuri Colony, Hyderabad and pass such other order or orders as this Hon'ble Court may deem ﬁt and proper in the circumstances of the case. Counsel for the Petitioner:SMT.S.V.INDIRA Counsel for the Respondents.: GP FOR PROHIBITION & EXCISE The Court made the following : THE HON'BLE SRI JUSTICE GODA RAGHURAM WRIT PETITION No. 18204 of 2006 ORDER: M/s. Himalaya Restaurant & Bar seeks a direction to the respondents not to interfere with “the business hours for the petitioner as illegal, arbitrary and contrary to the conditions of 15 of G.O.Ms.No. 997, dt. 24.5.2005 and consequently direct the respondent not to interfering with the business of the petitioner Restaurant & Bar in Premises No. 8-3-833/304 & 305/2, 1st Floor, Harini Plaza, Phase 2, Kamalapuri Colony, Hyderabad and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case”. The petitioner is a Form 2-B licensee with a licence granted under the Andhra Pradesh Excise (Grant of Licence of Selling by Bar Conditions of Licence) Rules, 2005 (for short ‘the Rules). Rule 6(1)(i)(f) of the said Rules enjoins that a licence would not be granted unless there is an “adequate vehicle parking arrangement”. The Rule is delightfully vague as to the parameters on the basis of which adequate vehicle parking arrangement satisfaction is arrived at by the licensing Authority. But then, it does not appear that the happiness and well being of the habitants of the locality, in terms of congestion potential by the parking requirements of a Bar and Restaurant was a concern with this Rule making Authority. Before the licence was granted and the petitioner pursued its business thereunder, it would appear that the police oﬃcials were frequently visiting the premises and verifying the availability of parking space for the customers of the petitioner. In 2005, when the petitioner applied to the 2nd respondent for grant of Police Licence to run the Restaurant and Bar, the 2 nd respondent rejected the same on 3.5.2005 on the ground that the petitioner did not provide suﬃcient parking space. Aggrieved thereby, the petitioner ﬁled W.P. No. 24988 of 2005. This writ petition was disposed of by the order dated 23.2.2006 directing the police authorities to re-consider the application of the petitioner for grant of a police licence after notice to the petitioner, while setting aside the order of rejection. Thereafter, an enquiry by the police into the extent of parking provided by the petitioner was held. The petitioner submitted some documents. The 2nd respondent did not issue any police licence. Alleging continued interference by the police with the business of the petitioner, it ﬁled W.P. No. 14615 of 2006. Thereupon, this Court passed an interim direction directing the police not to interfere with the petitioner’s business except in accordance with the provisions of G.O. Ms. No. 997, dated 24.5.2005. It requires to be noticed that the provisions set out in G.O. Ms. No. 997, dated 24.5.2005 are the Rules regulating the grant of licence and other regulations pertaining to Bar and Restaurants. As already noticed, Rule 6(1)(i)(f) of the Rules contains an ambiguous, open textured and extremely ﬂexible provision with regard to provision of “adequate parking arrangement”. The petitioner contends that since the 1st respondent had issued a license on 06-07-2006 for sale of Indian liquor by Bar which is valid up to 06-07-2006 it is entitled to run its business and also for the reason that the Municipal Corporation of Hyderabad issued a provisional Trade Registration License. Responding to the allegations in the writ petition, the 2nd respondent has ﬁled a counter aﬃdavit. The counter sates that the petitioner applied for a Police License on 20-12-2004 and this application was rejected by an order dated 03-05-2005 on the ground of non-availability of required parking place. Aggrieved thereby the Managing Director of the petitioner ﬁled W.P.No. 24988 of 2005. A counter aﬃdavit was ﬁled to this writ petition (W.P.No. 24988 of 2005), on 20-12-2005. This writ petition was disposed of by this Court on 23-02-2006 directing the answering respondent to conduct a fresh enquiry and pass appropriate orders, in three weeks. Pursuant to the above directions, the Additional Commissioner of Police, Traﬃc and Deputy Commissioner of Police, West Zone were instructed by the answering respondent to conduct a fresh enquiry, though a memo dated 09.03.2006. The Traﬃc Report was received on 18- 05-2006. The petitioner was called upon to submit relevant documents in proof of availability of parking place. The petitioner submitted documents i.e., blue print and an undertaking regarding parking area on 13-06-2006. On the basis of the Traﬃc Report dated 18-05-2006, the petitioner was issued a show cause notice dated 17-08-2006 calling upon the petitioner to submit proof of availability exclusive parking space to an extent of 70 square metres for further consideration. The petitioner submitted explanation dated 22-08-2006 enclosing photographs claiming to having provided the required parking place, in the cellar. The Traﬃc Branch was directed to re-inspect the premises on the basis of this representation of the petitioner. The Traﬃc Inspection Report dated 12-09-2006 revealed that the petitioner’s premises is located in a commercial complex with a built up area of 2072 square metres and a cellar area of 717 square metres. Of this, 387 square metres was found covered by the kitchen of the Green Bavarchi Hotel. Another room was constructed in an extent of 138 square metres in the cellar leaving just 192 square metres for the parking for the entire complex as against the required parking area of 518 square metres. The answering respondent further states that though the lease deed executed between the petitioner and the lessor covenants that the lessor should provide 1/3rd parking place in the total parking area of the building, there was no exclusive parking area available in fact and no such parking place is available in the building. The petitioner failed to show an exclusive parking area even to an extent of 70 square metres as against his claim of having provided for 170 square metres of parking space. The counter rightly avers that a mere mention of the extent of parking place in the lease deed does not entitle the petitioner to have a police license since parking requirement is not an instrument satisfaction, but a factual requirement. In conclusion, the 2nd respondent states that there being no adequate parking area, the Police License is refused. Section 3 (h) of the Hyderabad City Police Act, 1348-F (for short ‘the Act’) deﬁnes a “Public place of entertainment” as meaning any enclosed or open place to which the public have access and where any kind of articles of food and drink are supplied for consumption by any person or for the proﬁt of any person owning or having any interest in or managing such place and shall include a refreshment room, tea house, liquor house, boarding house, lodging house, hotel, tavern sendhi, wine, ganja, toddy, bhung, or opium shops.” Section 21 (1) (f) (i) of the Act, occurring in Chapter-III of the Act, relating to Police Regulations, Rules for Preservation of Order, empowers the Commissioner of City Police to license or regulate where any of the enumerated matters in Sub-section (1) of Section 21 of the Act are likely to cause inconvenience, delay, danger or damage to the residents or the persons passing in the vicinity, including (i) the keeping of a place of public amusement or place of public entertainment. It is not disputed on behalf of the petitioner that a license under the Act is a sine qua non for pursuit of a business, independent of grant of license by the Excise Authorities or a Trade license by the Municipal Authorities. As apparent from the counter aﬃdavit of the 2 nd respondent dated 23-10-2006 (to which no subsequent pleading in denial has been ﬁled by the petitioner), the petitioner’s premises does not have adequate parking place to the rational satisfaction of the 2nd respondent who is the competent authority under the Act. The denial of license by the 2nd respondent is therefore found to be perfectly in order. In the absence of such a license, the petitioner cannot pursue its business notwithstanding grant of license by the Excise Authorities or a Trade license by the Municipal Authorities. As an incident of the regulatory power under the Act, the Police Commissioner is not only entitled to exercise the discretion whether to grant a Police License in terms of Section 3 (h) read with Section 21 (1) (f) (i) of the Act, but integral to such discretion and statutory power, the 2nd respondent is required to ensure that no business is pursued in fact without such a Police License. The 2nd respondent may not rest content with merely denying the license if no case is made out for grant of Police License. It is the concomitant duty and the statutory obligation of the Commissioner of Police to ensure that no business is carried on without a licence, which requires such a License as in the case on hand. It shall be the statutory obligation of the Commissioner of City Police to ensure cessation of the business notwithstanding the grant of a license by the Excise and the Municipal authorities. On the analysis above, the petitioner has not made out any case of unlawful interference by the 2nd respondent or the Police oﬃcials. Since the petitioner has not been granted the Police License under the Act and the denial of license is seen to be justiﬁed, the Police are under the concomitant statutory obligation to prevent the business of the petitioner. The interference by the Hyderabad City Police is therefore not only lawful, but obligatory under the Act. There are no merits. The writ petition is accordingly dismissed. The interim order dated 01-09-2006 stands dissolved. No costs. ____________________ GODA RAGHURAM, J Dated: 01-08-2008 Pnb/pvks