IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA & THE STATE OF ANDHRA PRADESH (Special Original Jurisdiction) FRIDAY, THE NINETEENTH DAY OF DECEMBER TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.28330 of 2014 BETWEEN Smt. T. Bhuvaneswari.
AND ... PETITIONER The State of Andhra Pradesh, Rep. by its Principal Secretary, Prohibition & Excise Department, Secretariat Buildings, Hyderabad and others.
...RESPONDENTS Counsel for the Petitioner: MR. K.G. KRISHNA MURTHY For MR. K. RAMAMOHAN MAHADEVA Counsel for the Respondents: GP FOR PROHIBITON & EXCISE MR. D. KODANDARAMI REDDY The Court made the following:
ORDER:
Petitioner questions the proceedings of the Commissioner of Prohibition and Excise in Cr.No.5995/2014/CPE/E5 dated 16.09.2014 permitting respondent No.6 to shift his A4 shop from the existing premises at Arimanipenta village to Bandarlapalli village of Ramakuppam Mandal, Chittoor District.
2. I have heard the learned senior counsel for the petitioner, learned Government Pleader for Prohibition and Excise and learned counsel for respondent No.6.
3. Brief facts, necessary to be noted, are as follows:
(a) For the year 2014-2015, the Excise Department issued notification dated 23.06.2014 for drawal of lots for grant of license to sell Indian Made Foreign Liquor and Foreign Liquor under Rule 5 of the A.P. Excise (Grant of License of Selling by Shop and Conditions of License) Rules, 2012 (for short ‘the Rules’). In the present case, we are concerned with disposal of shop at Sl.No.183, which is located at Ramakuppam village, Ramakuppam Mandal and Sl.No.185, which is located at Arimanipenta village. While the petitioner is the licensee for the shop at Sl.No.183 Ramakuppam village, respondent No.6 is licensee of shop at Sl.No.185 at Arimanipenta village.
(b) Petitioner alleges that respondent No.6 made a representation to the Commissioner requesting permission to shift his A4 ship from Arimanipenta village to Bandarlapalli village.
Petitioner states that the distance between Ramakuppam village where his shop is located and Bandarlapalli village where respondent No.6 proposes to shift his shop is only 500 meters. Hence, petitioner filed his objections not to permit shifting as sought for by respondent No.6. It is alleged that without considering the objections of the petitioner, the order impugned dated 16.09.2014 is passed permitting respondent No.6 to shift his shop from Arimanipenta to Bandarlapalli.
(c) The impugned order is, apparently, questioned on the ground that the shifting is ordered without any valid reasons and the Commissioner has not exercised the powers in accordance with Rule 28 of the Rules. Hence, the present writ petition.
4. To support the averments in the writ petition, learned senior counsel for the petitioner has pointed out that the application filed by respondent No.6 for shifting is produced by respondent No.2 along with the counter affidavit, which shows that the said request was made by respondent No.6 stating that the shop was purely dependant on belt shops and due to closure of belt shops, the business is affected and thereby, respondent No.6 is suffering losses of Rs.8,000/- per day, hence, sought for shifting from Arimanipenta to Bandarlapalli. Learned senior counsel submits on the basis of the aforesaid application that this is no ground for seeking shifting the shop from one place to another place, as even in the last excise year, the very same shop at Arimanipenta village was functioning well and the petitioner herein was the licensee of that shop.
5. Learned senior counsel submits that the order impugned, passed by the Commissioner, refers to villagers of Arimanipenta village opposing establishment of A4 shop and that Members of ZPTC and MPTC also opposed the existence of shop at Arimanipenta.
Learned senior counsel, however, submits that no such material is evident from the application made for shifting by respondent No.6, as referred to above. Hence, the reasons given by the Commissioner, under the impugned order, are wholly unsustainable and therefore, questions the power exercised by the Commissioner under Rule 28 of the Rules as contrary to requirement of ‘valid reasons’.
6. Learned senior counsel also placed strong reliance upon a decision of this Court in D.R. SRIDHAR NAIDU v. COMMISSIONER OF
[1]
PROHIBITION AND EXCISE, A.P., HYDERABAD where Rule 28(3) of the Rules was considered by the Division Bench and it was held that the expression ‘valid reasons’ used in the said provision makes it clear that shifting of licensed premises must be for good and sufficient reasons having bearing on public interest. On the facts of that case, the reason for shifting was found to be false, hence, was held not a valid reason. Reliance is also placed upon another decision of
[2]
this Court in YEDIDA SRI RAM KUMAR v. GOVERNMENT OF A.P.
wherein it was held that the location of shop has to be in one of the notified places, as per the notification issued and that Bandarlapalli, being not a notified place for location of shop, learned senior counsel states that the shifting of shop is not permissible. Reliance is also placed upon judgment of learned single Judge of this Court in A. SUNDARA RAMI REDDY v.
[3]
DISTRICT COLLECTOR, CHITTOOR where the ratio of the decision in D.R. SRIDHAR NAIDU’s case (1 supra) was followed holding that the order of shifting, passed by the Commissioner, was bereft of any reasons much less valid reasons. Hence, shifting of the shop was not permissible.
7. Learned Government Pleader for Prohibition and Excise, who has filed counter affidavit on behalf of the Commissioner, states that by permitting the shifting of shop from Arimanipenta to Bandarlapalli, the business of the petitioner will not be affected and there is no restriction of distance between the shops under the Rules.
Learned Government Pleader also states that shifting was ordered due to resistance from the villagers, self-help groups and peoples representatives against establishment of A4 shop in Arimanipenta village. It is stated that villagers requested to remove the A4 shop to maintain peace and tranquility of Arimanipenta village and representations were received on 01.09.2014, 02.09.2014 and 03.09.2014 from the villagers and therefore, the impugned order was passed, as there was huge agitation by public and raasta roko was held for removal of the wine shop, which was also published in newspapers on 03.09.2014. Hence, based on the circumstances, on 16.09.2014, under the impugned order, the shop was shifted from Arimanipenta village to Bandarlapalli village.
8. It is further stated that the Station House Officer, Kuppam, enquired into the entire issue and forwarded a report to the Deputy Commissioner of Prohibition and Excise on the agitations conducted in Arimanipenta village and after perusing the entire issue, the Deputy Commissioner of Prohibition and Excise forwarded a report to the Commissioner. The local newspapers also reported holding of a dharna on 04.09.2014. The report of the Deputy Commissioner of Prohibition and Excise dated 06.09.2014 was, therefore, examined and the Commissioner passed appropriate orders for shifting on 16.09.2014. It is also stated that objection petitions received by the Government were also forwarded to the Commissioner for enquiry and taking necessary action. Para 7 of the counter records that apart from protests by the villagers as well as Sarpanch of Arimanipenta village, Members of ZPTC and MPTC requested for shifting of shop from the said village and on recommendations of the Prohibition and Excise Superintendent, Chittoor and the Deputy Commissioner of Prohibition and Excise, the Commissioner accorded permission under the impugned order, after thoroughly examining the public order, health, safety and other relevant aspects. The sales of A4 shop at Arimanipenta village have not at all been taken into consideration, as the shifting is because of unrest in the public.
9. As stated above, the recommendations of the Prohibition and Excise Superintendent dated 16.08.2014 and objections of the petitioner dated 25.08.2014 were forwarded by the Deputy Commissioner to the Commissioner on the same day. The objections on behalf of the members of Sairam Self Help group dated 01.09.2014; objections of members of another Self Help group dated 02.09.2104; objections of members of Vivekananda Self Help group dated 03.09.2014; objections of the leaders and members of Rajeswari Self Help group dated 0309.2014; complaint of the Sarpanch, which is counter signed by ZPTC and MPP dated nil;
another representation by an MPTC dated 03.09.2014; representations by an MPP dated 03.09.2014 and one ZPTC member dated 03.09.2014 apart from the villagers representation dated 03.09.2014 etc.
which were forwarded to the Commissioner were also appended to the counter affidavit. The photographs of the dharna reported in press are also enclosed and the report of the Station House Officer addressed to the Deputy Commissioner of Prohibition and Excise is also produced along with the counter affidavit. Further reports of the Deputy Commissioner dated 03.09.2014 and 06.09.2014 are also produced.
10. On the basis of the aforesaid documents, it is submitted by the learned Government Pleader that the Commissioner considered all the aforesaid aspects and also kept in mind the unrest among the villagers of Arimanipenta village before passing the impugned order dated 16.09.2014. Learned Government Pleader, further, submits that the opening paragraph of the impugned order mentions about all these objections and it cannot be said the impugned order is without any reason much less without valid reasons. Learned Government Pleader also placed reliance upon an unreported judgment of this Court in WP.Nos.19468 and 24530 of 2014 dated 08.10.2014 wherein it is held that the order as to shifting involves administrative exercise and no
lis is involved with the writ petitioner. It was further held that in the absence of any proven malafide exercise of powers, the order of the Commissioner under Rule 28(3) of the Rules is hardly amenable to writ jurisdiction and directed that if at all the writ petitioner is aggrieved, he must question the action of the Commissioner by filing a revision before the Government under Rule 64 of the Rules but not seek a judicial review. Learned Government
also relied upon a judgment of the Division Bench in WA.No.1343 of 2014 dated 29.10.2014, which confirmed the said view of the learned single Judge.
Another Division Bench judgment in WA.No.656 of 2010 and batch dated 07.09.2010 is also relied upon wherein the order of the Commissioner, which was extracted, would show that no reasons were mentioned. Hence, this Court interfered and set aside the order, however, gave liberty to the Commissioner to de novo consider the application for shifting and pass appropriate orders in accordance with law. Another decision of the learned single Judge in WP.No.2053 of 2011 dated 15.06.2011 was also relied upon wherein the learned single Judge held on the facts of that case that the petitioner has no locus standi to challenge the proceedings issued by the Commissioner in a writ jurisdiction. It is stated that the said order was confirmed by a Division Bench in WA.No.452 of 2012 dated 29.09.2011.
11. I have considered the aforesaid contentions on either side.
12. It is true that in the initial application of respondent No.6, he sought shifting of the shop only on the ground that he has suffered loss on account of closure of belt shops. Learned senior counsel for the petitioner is right in contending that such an allegation cannot be a ground for permitting shifting of the shop. However, the documents produced by the learned Government Pleader along with the counter affidavit, which are referred to above, clearly show that there are number of other records and representations by various members of the public including the reports of Station House Officer, Prohibition and Excise Superintendent and the Deputy Commissioner of Prohibition and Excise, which were all taken into consideration by the Commissioner before passing the impugned order. All the said reports were sent to the Commissioner and it is also mentioned in the counter affidavit that the representations received by the Government seeking the shifting of shop were also forwarded to the Commissioner for appropriate action.
13. Keeping all these aspects, the opening para of the impugned order mentions the reasons for shifting viz. unrest of the public, agitations by the public and the demand for shifting made by villagers; self-help groups, members of MPTC and ZPTC etc. It cannot, therefore, be said that the order impugned is bereft of any valid reasons, as required under Rule 28(3) of the Rules and as such, is in conformity with Rule 28(3) of the Rules. So far as the legal position is concerned, the decisions in D.R. SRIDHAR NAIDU’s case (1 supra) and A. SUNDARA RAMI REDDY’s case (3 supra) are concerned, the present case is distinguishable as the order impugned contains valid reasons and as such, the ratio of the said decisions would not apply to the facts of the present case. Secondly, since the writ petition is entertained by this Court and interim order was passed in the initial stage, having heard the learned senior counsel for the petitioner and learned counsel for the contesting respondents on merits, in my view, relegating the petitioner to the remedy of revision, at this stage, by declining to entertain this writ petition is not justified.
14. So far as the distance alleged between the shop of the petitioner at Ramakuppam village and that of respondent No.6 at Bandarlapalli village is concerned, it cannot be said that under the Rules there is any distance restriction and since the shifting of the shop is within the same Mandal, it cannot be said the order impugned is otherwise unsustainable for any reason.
15. It is also not in dispute that Rule 4 of the Rules has recently been amended empowering the Commissioner to shift a shop from one area or locality to another as he thinks fit and as such, there are no restrictions on the power of the Commissioner in directing shifting of the premises. The decision relied upon by the learned senior counsel for the petitioner in YEDIDA SRI RAM KUMAR’s case (2 supra) would, therefore, have no application, as the unamended Rule 4 was under consideration in the said case. That apart, the power exercised by the Commissioner having been found to be for good reasons, interference by this Court with the impugned order is not called for.
The writ petition, therefore, fails and is accordingly dismissed. As a sequel, miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.
VILAS V. AFZULPURKAR, J December 19, 2014 DSK
[1] 2007 (3) ALD 128 (DB)
[2] 2005 (6) ALD 74
[3] 2013 (6) ALD 423