Hon’ble Ashok Bhushan, J.—Heard Sri A.D. Saunders, learned counsel for the petitioner and Sri Satish Chaturvedi, learned Additional Advocate General assisted by Sri S.P. Kesharwani, learned Additional Chief Standing Counsel for the State and Sri Mukesh Prasad, Advocate appearing for the respondent No. 2.

2. Counter affidavit and rejoinder affidavit have been exchanged between the parties and with the consent of learned counsel for the parties, the writ petition is being finally decided.

3. Brief facts of the case necessary to be noted for deciding the present writ petition are that writ petitioner No. 1 is a minority institution recognized by Board of Council for the Indian Schools Certificate Examination, New Delhi. The petitioner No. 2 is the Principal of the college. More than 3000 students are studying in institution from class I to class XII . The institution is situated at Mahatma Gandhi Marg in the city of Allahabad. Across the road in front of the institution a beer shop is running, whose location is being objected by the petitioners.

4. The State of U.P. in exercise of power under Section 40 of the U.P. Excise Act, 1910 has framed the rules namely; U.P. Number and Location of Excise Shop Rules 1968. Under Rule 5(4) there is prohibition of opening a shop in close proximity to a place of public resort, school, hospital, place of worship or factory, or to the entrance to a Bazar or a residential colony. A public Interest Litigation was filed at Lucknow Bench of this Court objecting indiscriminate opening of beer shops in close proximity to a place of public resort, school, hospital, place of worship or factory, or to the entrance to a Bazar or a residential colony. The Lucknow Bench of this Court entertained the public interest litigation and took the view that no shop within 100 meters of the close proximity of a place of public resort, school, hospital, place of worship or factory or to the entrance to a Bazar or a residential colony be opened. Against the Division Bench judgment of the Lucknow Bench of this Court, State of U.P. filed an appeal in the Apex Court which appeal was decided approving the view taken by the High Court that no shop be allowed to run in a radius of 100 meters or 300 fits approximately of a place of public resort, school, hospital, place of worship or factory or to the entrance to a Bazar or a residential colony. The Apex Court however, allowed the existing shops to continue till 31.3.2008 and thereafter it was directed that no shop within 100 meters of above places be allowed to run. The judgment of the Apex Court in State of U.P. v. Manoj Kumar Dwivedi and others, (2008) 4 SCC 111.

5. The present writ petition was filed by the petitioners stating that inspite of the aforesaid judgment of the Apex Court, no steps are being taken by the Excise Commissioner in closing the shop, which is within radius of 50 meters of the petitioners’ institution. The petitioner after coming to know that 1968 Rules above mentioned has been amended by the State of U.P. vide notification dated 20.3.2008 by U.P. Number and Location of Excise Shops (Fourth Amendment)Rules, 2008 by which Rule 5(4) has been substituted was permitted to amend the writ petition challenging the Rule 5(4) as amended by 2008 Amendment Rules. The petitioners vide amendment application made in the writ petition, has also challenged Rule 5(4). Following reliefs have been claimed in the writ petition :

“(A) To issue a writ order or direction in the nature of mandamus calling upon the respondent No. 1 to take appropriate steps in accordance with law laid down by the Apex Court in the matter of State of U.P. and others v. Manoj Kumar Dwivedi and others, reported in AIR 2008 SCW 1912.

(B) To issue a writ order or direction in the nature of mandamus directing the respondents to remove the beer shop situate near Bishop Johnson School and College, Mahatma Gandhi Marg, Civil Lines, Allahabad.

(iv) to issue appropriate writ, order or direction d