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2013 DIGILAW 861 (CAL)

M. R. Selvam v. Andaman & Nicobar Administration

2013-11-28

SOUMITRA PAL, TOUFIQUE UDDIN

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Judgment : Soumitra Pal, J. This appeal is directed against the order dated 8th August, 2013 passed by the learned Single Judge in W.P. No.041 of 2013 (Shri M.R. Selvam vs. The Andaman & Nicobar Administration & Ors.) whereby the writ petition challenging the order dated 1st January, 2013 passed by the Deputy Commissioner, North & Middle Andaman District, Mayabunder, rejecting the prayer for grant of Bar licence, was dismissed. The brief facts of the case are that the appellant, a recorded tenant of a plot of land situated at Kalighat village under Diglipur Tehsil, North & Middle Andaman District, had applied for the Bar licence. On the basis of the said application the Deputy Commissioner called for a report from the Tehsildar, Diglipur and from the Deputy Superintendent of Police, North Andaman. It appears that advertisement was issued seeking objections from different institutions and the people in general. The Deputy Commissioner not being satisfied with the report of the Tehsildar again directed him to re-inspect the proposed Bar premises as there was some confusion with regard to its distance of the Church. Accordingly, the Tehsildar again submitted a report which was somewhat different from the earlier report. In such backdrop, the Deputy Commissioner directed the Assistant Commissioner, Diglipur to inspect and submit a report which was submitted. However, as the distance from the proposed Bar premises to the Church entrance gate was not mentioned a further report was directed to be submitted. The Assistant Commissioner in his subsequent report stated that as the distance in between location B and E as per sketch map was only 74 metres, it was not permissible under the Guidelines of the A & N Administration for grant of Bar licence to the appellant. Accordingly, the Deputy Commissioner by the impugned order dated 1st January, 2013 rejected the prayer of the appellant. As noted, challenging the order dated 1st January, 2013 the appellant had moved the writ petition. Directions were issued to file affidavits. Affidavits were exchanged. Thereafter, the matter was heard and the learned Single Judge upheld the order dated 1st January, 2013 passed by the Deputy Commissioner rejecting the prayer of the petitioner for grant of Bar licence. Mrs. As noted, challenging the order dated 1st January, 2013 the appellant had moved the writ petition. Directions were issued to file affidavits. Affidavits were exchanged. Thereafter, the matter was heard and the learned Single Judge upheld the order dated 1st January, 2013 passed by the Deputy Commissioner rejecting the prayer of the petitioner for grant of Bar licence. Mrs. Nag, learned advocate appearing on behalf of the appellant, relying on the Grounds of Appeal submitted that the learned Single Judge failed to consider the meaning of the actual main door entrance appearing in Clause 7 of the Guidelines and had arrived at an erroneous conclusion. Mr. Rao, learned advocate appearing on behalf of the Administration, supporting the judgement passed by the learned Single Judge submitted that as the proposed Bar is to be located within 74 metres from the main gate of the Church as evident from the reports and there was non-compliance of one of the conditions of Clause No.7(i) of the Guidelines and in view of the public interest and the protest lodged by the local inhabitants, the judgement is just and legal. The only point to be considered is whether the proposed Bar is going to be located at a distance of more than 75 metres from the place of worship and is in accordance with the Guidelines framed by the Administration. Before deciding the issue it is necessary to refer to the relevant portion of the judgement of the learned Single Judge which is set out hereunder:- “Having heard the learned advocates of both the sides and going through the materials lying with the record it is clear that the petitioner has not contradicted the report and sketch map as submitted by the Assistant Commissioner, Diglipur at page 32 of the writ application by filing any affidavit-in-reply. It is also clear that the proposed Bar building is bounded by pucca compound wall. The point B is adjacent to the main road running from Kalighat to Ram Nagar and that particular place has been shown as B in the sketch map. It is also clear that the proposed Bar building is bounded by pucca compound wall. The point B is adjacent to the main road running from Kalighat to Ram Nagar and that particular place has been shown as B in the sketch map. It is also clear that for going to the point A i.e. main door of the bar building from the main road one has to enter through the point B and from point B to point E i.e. main entrance gate of the Church is 74 meters which has not been disputed by the petitioner by filing any affidavit-in-reply. It is also clear that one of the mandatory provisions of guidelines for grant of Bar Licence i.e. the distance of the proposed Bar premises to the Religious, educational and other institutions must be more than 75 meters, but it is found wanting in this case. That being the position, it is the considered view of this court that the respondent No.2, Deputy Commissioner, North and Middle Andaman District, Mayabunder was justified in rejecting the prayer of the present petitioner by the impugned order and as such it is liable to be affirmed and the writ application is, therefore, liable to be dismissed.” In order to answer the issue it is necessary to refer to the existing Guidelines and the amended Guidelines for grant of Bar licence as contained in order no.2586 dated 12th July, 2010 issued by the Andaman & Nicobar Administration. Existing Clause “7(i) That he possesses or has an arrangement for taking on rent a suitable premises for the licence and the said premises is located more than 50 metres away from any Medical Institutions, Educational Institutions, Women’s Hostel, Orphanages and Tribal Hostels.” Amendment “7(i)That he possesses or has an arrangement for taking on rent a suitable premises for the licence and the said premises is located more than 75 meters away from any medical institutions, educational institutions, religious institutions, women’s hostel, Orphanages and Tribal Hostels.” In this context, it is significant to note that no amendment was carried out with regard to Explanation IV to Clause 7(i) which deals with the manner in which the distance is to be calculated. Said Explanation IV runs thus:- “The measurement of distance shall be from the mid-point of the actual main entrance/door of the premises proposed for licence to midpoint of the actual main door/entrance of the medical institutions, educational institutions, religious institutions, women’s hostel, Orphanages and Tribal Hostels.” (Emphasis supplied) It appears that the Revenue Inspector, as evident from page 33 of the Paper Book, had calculated the distance in accordance with Explanation IV and from the sketch map prepared by him it is evident that the distance is 100 metres and it is also recorded that “the main door of Bar building to main gate of Church distance is 100 metres.” That the distance is to be calculated from the mid-point of the actual main entrance of the proposed premises and the midpoint of actual door of religious institutions is also evident from paragraph 31 of the affidavit-in-opposition filed on behalf of the respondents. Since we find that from page 33 of the Paper Book that the distance of the main door of the Church and the proposed Bar is 100 metres and is in accordance with Explanation IV of the Guidelines, in our view, the learned Single Judge had overlooked this aspect and had arrived at a wrong conclusion. Therefore, the judgement of the learned Single Judge cannot be sustained and is thus set aside and quashed. Appeal is allowed. The order dated 1st January, 2013 issued by the Deputy Commissioner, North & Middle Andaman, Mayabunder is set aside and quashed. Consequently, the Deputy Commissioner is directed to grant Bar licence to the appellant within eight weeks from the date of presentation of a copy of the certified copy of this order and upon compliance of the other formalities in the Guidelines framed by the Andaman & Nicobar Administration. Toufique Uddin, J. I agree.