Telangana High Court
Dr. Kothamasu Janardhan Rao vs The State Of Telangana And 4 Others on 22 June, 2022
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
WRIT PETITION No.35524 of 2021
ORDER :
Heard learned counsel for petitioner and learned Government Pleader for Prohibition and Excise appearing for respondent Nos.1 to 5.
2. The present Writ Petition is filed by the petitioner herein to issue a Writ of Mandamus declaring the action of respondent Nos.2 to 5 in not canceling the licence of the 6th respondent wine shop and not ordering for removal of the same from Kotha Masu Somaiah Towers, Huzurnagar Road, Kodad Town and Mandal, Suryapet District on the ground that it is situated beside petitioner's hospital viz., K.S. Orthopedic Centre and Multi Speciality Hospital within a radius of 57 sq. ft, as being illegal, arbitrary and unjust.
3. Petitioner contends that Rule 25(1) of the Andhra Pradesh Excise (Grant of Licence of Selling by Shop and Conditions of Licence) Rules, 2012 (for short 'the Rules') specifies that suitable premises for sale of IMFL and FL within the Municipal Corporation, Municipality, village/town/city or area/locality as the 2 case may be, as notified in the District Gazette shall be at least 100 meters away from the places of Public worship, Educational Institutions, Hospitals and 50 meters away from Highways.
4. Petitioner contends that petitioner is running hospital by name K.S. Orthopedic Centre and Multi Speciality Hospital and 6th respondent wine shop is well within 100 meters radius of petitioner's hospital and in fact is situated adjacent to petitioner hospital within a distance of 57 feet and in fact is situated adjacent to petitioner's hospital within a distance of 57 feet and thus the respondents have contravened Rule 25 of the Rules.
5. It is further contended that Rule 25(1)(d) of the Rules defines "Hospital" and includes a private hospital having provision of at least 30 beds. It is also contended that petitioner's hospital is 50 bedded hospital and therefore Rule 25 of the Rules would be applicable and therefore, the respondent-Authorities ought not to have granted permission for 6th respondent to run the wine shop in the subject premises and ought to have taken steps of its removal therefrom.
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6. Learned Government Pleader for Prohibition and Excise appearing for respondent Nos.1 to 5 on the other hand submits that when official respondents selected the 6th respondent as applicant for grant of licence, upon which the applicant selected the subject premises as suitable for sale of IMFL/FL, licence has been granted to effect sale therefrom during the licence period as defined in 2(n) of the Rules..
7. Learned Government Pleader would further submit that Rule 25 of the Rules would stand attracted when a premises is selected for grant of licence for setting up of shop for sale of IMFL and FL which would imply that the said Rule would apply at the initial stage of selection of premises for granting licence and not to any of the places/Institutions coming up or being established thereafter, after the premises is selected and licence is granted to run therefrom.
8. Learned Government Pleader would further submit that petitioner's Hospital has got its approval only on 27-11-2021 i.e. after the 6th respondent had selected the premises and was granted licence to run a wine shop therein, upon the commencement of licence period.
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9. I have taken note of respective contentions urged.
10. In order to appreciate the subject issue, it is necessary to reproduce Rule 25 of the Rules, reading as under:
"25. Selection of Premises.- (1) Subject to the approval of the Prohibition & Excise Superintendent the selected applicant shall select suitable premises for sale of IMFL and FL within the Municipal Corporation, Municipality, Nagar Panchayat or Mandal, as the case may be, as notified in the District Gazette. It shall be at least 100 meters away from the places of Public worship, Educational Institutions and Hospitals and 50 Meters away from Highways.
Explanation: For the purpose of this rule.
xxxx xxxxx xxxx xxxxx xxxx xxxxx
(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.
xxxxxxxx (3) The distances referred above shall be measured from the mid-point of the entrance of the Licensed premises along the nearest path by which a pedestrian would ordinarily reach the mid-point of the nearest gate of the institution or a place of public worship, if there is a compound wall and if there is no compound wall to the mid-point of the nearest entrance of the Institution/place of public worship.
xxxx"
11. A reading of the above Rule would firstly indicate that the prescription of distance of 100 meters away from the places of public worship, educational institutions, hospitals and 50 meters 5 away from Highways thereunder would be applicable at the stage of selection of suitable premises for sale of IMFL and FL.
12. As rightly contended by the leaned Government Pleader, the 6th respondent shop has been granted licence even prior to petitioner's hospital was approved by the appropriate Government Authority, which admittedly is only on 27-11-2021. Prior to petitioner's hospital getting approved as "Hospital" as defined in Rule 25(1) Explanation (d) having requisite number of Beds prescribed, the petitioner's clinic did not met the criteria for it to be considered as hospital. The petitioner, having got approval after 6th respondent has established its shop by obtaining necessary permission/licence, he cannot be permitted to contend or compel the 6th respondent to vacate the subject premises on account of petitioner setting up a hospital. Thus, the claim of the petitioner that there has been contravention of Rule 25 of the Rules appears to be far fetched and is liable to be rejected.
13. The purport of Rule 25 of the Rules as noted above is to ensure that when a premises is being selected for sale of IMFL and FL, the Authorities are required to ensure that it is not within the prescribed distance of any of the places mentioned therein, and 6 would not stand attracted where Institutions and other places, come up subsequent to grant of licence/approval in favour of an applicant, as in the present case.
14. As noted above, since petitioner has got approval for his premises as "hospital" subsequent to the 6th respondent selecting the premises and being granted licence permitting sale of IMFL/FL therefrom, the restriction imposed in Rule 25 of the Rules would not be applicable for the petitioner to claim that respondent- Authorities should take steps to evict the 6th respondent from carrying on the business from the subject premises. Thus, the claim of the petitioner of contravention of Rule 25 of the Rules cannot be countenanced.
15. Thus, considered from any angle the Writ Petition is devoid of merits and it is accordingly dismissed with costs of Rs.5,000/- (Rupees Five Thousand only). The costs shall be paid to the Telangana State Legal Services Committee within two (02) weeks from the date of receipt of a copy of the order.
16. List the matter on 10-08-2022 for reporting compliance. 7
17. Consequently, miscellaneous petitions, if any pending, shall stand closed.
___________________ T. VINOD KUMAR, J Date : 22-06-2022.
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