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Judgment
W.P.No.20955 OF 2017
1-a. This Writ Petition is filed seeking to call for the records relating to the Form C-1 license bearing No.01/2017-18 dated 14.07.2017 granted by the
District Prohibition and Excise Officer, Hyderabad, in favour of the 5th respondent recreation club and quash the same being contrary to the Rule 7(2)
(a)(ii) of the Telangana Excise (Grant of License of Selling by In-House and Conditions of License) Rules, 2005(for short, ‘the Rules’).
W.P.No.7825 OF 2019
1-b. This Writ Petition is filed seeking a direction to the 3rd respondent â€" The Commissioner of Prohibition and Excise, to cancel the Form C1
license bearing No.16/2018-19, dated 26.11.2018 granted to the 6th respondent for the period from 01.07.2018 to 30.06.2019 on account of being in
violation of the Rules, and also direct the 3rd respondent to refrain from renewing the said License for the future period.
Since ‘the Srinagar Colony Recreation Club’ is 5th respondent in W.P.No.20955 of 2017 and the 6th respondent in W.P.No.7825 of 2019, the
same is hereinafter referred to as ‘the Club’ for sake of convenience.
Heard Sri Karthik Ramana, learned representing Sri S.Dwarakanath, learned counsel for the petitioner, learned Government Pleader for Prohibition
& Excise, Sri Avinash Reddy, learned counsel, representing Sri N.Harinath, learned counsel appearing for the 6th respondent. In both the Writ
Petitions, since the parties and the lis involved is common, these two Writ Petitions are heard in common and disposed of with the following common
order.
FACTS OF THE CASE
i) The petitioner M/s Srinagar Colony Welfare Association (hereinafter called as ‘the petitioner Society’) is engaged in welfare activities of the
residents of Srinagar Colony. The Gazetted Officers Cooperative House Building Society (for short, ‘the Gazetted Officers Society’) had
formed a lay out of housing plots for allotment to its Members and the said lay out was approved by the Director, Town Planning, Hyderabad vide LP
No.93/62.
ii) The Club was established with an objective of providing recreation facilities without any discrimination of any sort to its Members.
iii) The said Club has obtained a registered gift deed vide doc.No.1144 of 1987 dated 16.06.1987 from the Andhra Pradesh Government Gazetted
Officers Society.
iv) The said gift deed was cancelled by way of registered cancellation of gift settlement deed vide doc.No.289 of 2003, dated 27.01.2003.
v) The said cancellation of gift settlement deed is the subject matter of appeal vide CCCA No.97 of 2012.
vi) Under the above said gift deed, the Club claims to be the owner of the 1000sq.yards.
vii) The Club has constructed a building consisting of ground + two upper floors after obtaining necessary permission dated 20.06.2008 from the
GHMC.
viii) Thereafter, the Club has obtained permission from the concerned authorities for the purpose of running a Bar.
ix) It has been running said Bar for several years.
x) The present Writ Petitions are filed seeking to close the said Bar and cancel the license granted in favour of the said Club.
CONTENTIONS OF THE PETITONER
i) The Club had obtained said Form C-1 license in violation of Rule 7(2)(a)(ii) of the Rules.
ii) By virtue of the gift deed, the Club claims ownership over the 1000sq.yards (846sq.meters) only and land admeasuring 110sq.yards was lost in the
road widening scheme.
iii) Thus, the Club is now having 890sq.yards after losing in the road widening scheme.
iv) To obtain Form-C1 license, minimum 1500sq.meters of land is required, whereas, the Club is not having the said extent of land.
v) Without considering the same, the District Prohibition Officer, has granted said Form â€"C1 license in favour of the Club.
vi) The said gift settlement deed bearing No.1144 of 1989 was cancelled by way of execution of registered cancellation of gift settlement deed vide
doc.No.289 of 2003, dated 27.01.2003.
vii) The said cancellation of gift settlement deed was under challenge and it is the subject matter in CCCA No.97 of 2012.
viii) The Club is located in a clear residential area where family â€" dwelling apartments and houses are merely 10 meters away from the Club
premises and it is causing nuisance to the public and also to the residents of the locality.
ix) Several educational institutions are also located and therefore grant of Form-C1 license is in violation of Rule 7(2)(a)(ii) of the Rules, and the same
is liable to be set aside.
x) The Club is operating without renewal of police permission from the year 2011 and it has been managing police authorities.
xi) The Club is not having legal title over the subject property.
xii) Granting Form â€"C1 license in favour of the Club is in violation of the orders passed by this Court in W.P.No.21816 of 2018.
CONTENTIONS OF RESONDENT No.2
i) The Club is having more than 1500sq.meters area including the built up area of 1024 sq.meters and is in conformity with Rule 7(2)(a)(ii) of the
Rules.
ii) The petitioner Society obtained interim order by mis-interpreting the definition of premises.
iii) The Club is functioning more than 5 years in the premises No.8-3-1030/1, Srinagar Colony, Hyderabad.
iv) The Commissioner of Prohibition and Excise has granted Form-C1 license as per Rule 8 of the Rules.
v) The Form-C1 license was granted in favour of the Club strictly in accordance with the Rules.
vi) With the said submissions, the 2nd respondent sought to dismiss the present Writ Petition.
CONTENTIONS OF THE CLUB
i) It has been providing recreation facilities to its Members.
ii) There is no irregularity in obtaining Form-C1 license by the Club.
iii)The officials of Prohibition and Excise, have considered all the aspects and granted Form-C1 license in favour of the Club.
iv) The President of the petitioner Society has been filing one or the other writ petition with an intention to close the Club.
v) With the said submissions, learned counsel for the 6th respondent sought to dismiss the writ petition.
CONSIDERATION OF THE COURT
In view of the above said rival submissions, it is apt to refer the Rule 7(2)(a)(ii) of the Rules, which is as follows:-
The club is located in its own premises or premises allotted by the Government exclusively for setting up such club or located in a private premises
taken on long lease for a period of at least 10 years from the date of first application for grant of new license and having a minimum area of 1,500
Sq.Mts., including built up area of at least 500 square meters of this a minimum area of 50 square meters has to be set apart for consumption.â€
Thus, as per the said Rule, the Club should be in its own premises or premises allotted by the Government exclusively for setting up of a Club. It
should have a minimum lease period of 10 years from the date of first application for grant of license. The Club should have minimum area of 1500
square meters including 500sq.meters of built up area within which 50 meters should be set up for consumption.
As discussed above, the Club claims that it is having 1000sq.yards of land by virtue of a registered gift deed vide doc.No.1144 of 1987 dated
16.06.1987. Thereafter the said gift deed was cancelled by way of a registered cancellation of gift settlement deed vide doc.No.289 of 2003, dated
27.01.2003 and the same was under challenge and it is subject matter of the appeal vide CCCA No.97 of 2012. It is also not in dispute that 110
sq.yards out of 1000sq.yards was taken by the GHMC authorities for road widening. Thus, there remains 890sq.yards only at present. There is a
cloud over the title of the Club itself.
It is the specific case of the petitioner Society that the Gazetted Officers Society had formed a lay out of housing plots for allotment to its
Members and the said lay out was approved by the Director, Town Planning, Hyderabad vide LP No.93/62. As per the lay out scheme, the open site
of 1.5acres was earmarked for the purpose of school and playground. Out of the said open site for school and playground, an area of 100sq.yards
situated at north-west corner of the said site has been occupied by the Club which constructed two storeyed building with extra two floors comprising
pillars and slabs only. In the ground and first floor of the said building, the Club has been operating a Bar and restaurant, serving liquor, by obtaining
Form C1 license from the 2nd respondent since 2011 illegally. The said premises was specifically earmarked for school and playground as per the LP
No.92 of 1962. The petitioner Society has filed a copy of the said lay out which is not disputed by the Club. A perusal of the said lay out would reveal
that the above said land admeasuring 1.5acres was earmarked for the purpose of school and playground. The Club had obtained through the above
said registered gift deed consisting of 1000sq.yards. Thereafter, the Club constructed a building and obtained Form-C1 license from the Prohibition and
Excise Department and running a Bar and Restaurant in the ground and first floors. Thus, the said action of the Club in obtaining Form-C1 license
from the Prohibition and Excise Department is in violation of the procedure laid down under the Rules. Apart from the same, as per the Rule 7(2)(a)
(ii) of the Rules, there should be minimum area of 1500sq.meters including built up area of at least 500sq.meters. As stated above, out of
1000sq.yards, 110sq.yards was taken by the GHMC for the purpose of road widening.
It is relevant to mention the Rule 7(1)(III) of the Rules which reads as follows:-
1) A license in forms TD-1, TD-2, C-1, CS-1 and EP-1 involving consumption of liquor at the premises shall not be granted:-
I) ……..
II) …….
III) Within 500 meters of predominantly residential area but licenses may however be sanctioned if the proposed premises is located on a main road
used for shopping purposes.
The Club premises is located in a clear residential area where family-dwelling apartments and houses are merely 10 meters from the Club’s
premises. The western side of the premises faces a sub-road which is nothing but a residential road.
It is the settled law that the land which is earmarked for a particular purpose cannot be converted or put to any other use. In Bangalore Medical
Trust Vs. B.S.Muddappa AIR 1991 SC 1902, the Apex Court held that the land which is earmarked for a particular purpose cannot be converted or
put to any other use. Considering the fact that the lands were converted and used for laudable and citizen friendly facilities, such as Nursing Home
and Rythu Bazars, in Sri Ramakrishna Educational Society, Nandyal Vs.Chairman, Nandyal Municipality, Kurnool District 2006(3) ALD 242 the then
High Court of Andhra Pradesh followed the said principle and declared the conversions as illegal.
As discussed above, the said land of 1.5acres was earmarked for the purpose of a school and playground. The same cannot be converted for the
purpose of establishing a Bar.
It is relevant to note that in the proceedings dated 10.07.2015 submitted by the Prohibition and Excise Superintendent, Hyderabad to the
Commissioner of Prohibition and Excise, Telangana, Hyderabad, it is specifically mentioned that the area of premises is (843.5)sq.meters i.e.
30.65*27.52, ground floor built up area (188.30) sq.meters, first floor built up area(373.79)sq.meters, second floor built up area (304.43)sq.meters, third
floor built up area (158.27)sq.meters and total (1868.29)sq.meters.
Referring to the same, learned Government Pleader for Prohibition and Excise would submit that the premises includes the entire building and
entire built up area. Therefore, the Club complies with the requirement of area of 1500 sq.meters for grant of license.
It is also relevant to note that vide proceedings dated 23.01.2017, the GHMC has submitted report to A.P.Lokayuktha wherein it is specifically
mentioned that the connected sanctioned file is not traceable. However as per the available sanctioned plan and layout plan, it is observed that the site
under reference is reserved for school building and playground and the Society has been proposed for Club and constructed the building prior to 1985.
The subsequent permission has been accorded for additions and alterations and second floor in the year 2008 based on the strength of that the building
existing prior to 1985 with existing amenities and also earmarked for school as per the layout plan.
The petitioner Society has also filed Writ Petition vide W.P.No.21816 of 2018 seeking a direction to the Commissioner, Prohibition and Excise, to
cancel Form-C1 license dated 14.07.2017 granted to the Club from 01.07.2017 to 30.06.2018 on the ground that the same is in violation of Rule 7(2)(a)
(ii) of the Rules. In view of the said period and considering the specific allegations, this Court disposed of the said Writ Petition vide order dated
04.07.2018 directing the authorities to consider the representations, dated 24.05.2018 and 18.06.2018 submitted by the petitioner Society at the time of
considering application of the 5th respondent for renewal of Form â€"C1 license after issuing notices to all the stake holders.
Vide report dated 30.08.2018, the District Prohibition and Excise Officer, Hyderabad, submitted to the Commissioner of Prohibition and Excise
that the Club is having the area of more than 1500sq.meters and the premises is in conformity with the Rule 7(2)(a)(ii) of the Rules and the same is
certified by the GHMC registered architect. The Club is having more than 1500sq.meters area including built up area of 1024sq.meters and the club
premises is suitable for grant of Form C-1 Club license.
In view of the same, the Club should have a minimum area of 1500sq.meters. When the reference was made independently for the built up area of
500sq.meters and total area of 1500sq.meters means the extent of land. The intention of the legislature for granting Form-C1 license for Club is to
make a Club a recreation facility for the Members to come along with their families and enjoy all kinds of amenities like sporting facilities, outdoor
playing equipment for kids and library. Thus, there is need for adequate parking facilities for the Members and their guests, fire safety norms, space
for kitchen, storage of liquor and other GHMC norms. The Club is not meant only to be a Bar facility and it is meant to be used for relaxation and
recreation by the Members of all ages. For social-sporting entertainment, recreation activities and should cater to Members from all walks of Society.
The respondents have converted construction area square feet into square meters which cannot be construed as logical in reference to the Act. The
objective of the Act when it refers to the built up area of 500sq.meters is that a building should be constructed in 500sq.meters of land. This cannot be
interpreted to include the built up space of square feet of space in the various floors of the building and convert the same into square meters of land.
In view of the above said discussion, there is cloud over the title of the Club itself. It is the subject matter of the above said appeal vide CCCA
No.97 of 2012. The Club has also obtained Form-C1 license in violation of procedure laid down under Rule 7(2)(a)(ii) of the Rules. It had obtained
Formâ€"C1 license for the open space which is earmarked for the purpose of school and playground. Thus viewed from any angle, the Form-C1
license granted in favour of the Club is illegal and the same is liable to be set aside.
In the result, both the Writ Petitions are allowed setting aside the Form C-1 licenses bearing No.01/2017-18 dated 14.07.2017 and bearing
No.16/2018-19, dated 26.11.2018 granted for the period from 01.07.2018 to 30.06.2019 in favour of the 5th/6th respondent/Srinagar Colony Recreation
Club. The 2nd respondent in W.P.No.20955 of 2017 i.e. the Commissioner of Prohibition and Excise, Hyderabad, is directed not to renew Form-C1
license in favour of the said Club. There is no order as to costs.
As a sequel, miscellaneous petitions, if any, pending in these Writ Petitions shall stand closed.