IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NOs.1768, 1778 OF 2004, 1164 AND 1270 OF 2005 DATED: 24-04-2014 W.A. No.1768 of 2004:
Between:
Toddy Tappers Cooperative Society, Nizamabad … Appellant and The Prohibition & Excise Superintendent and others … Respondents W.A. No.1778 of 2004:
Between:
Toddy Tappers Cooperative Society, Nizamabad … Appellant and The Prohibition & Excise Superintendent and others … Respondents W.A. No.1164 of 2005:
Between:
The Prohibition & Excise Superintendent and others … Appellants and Toddy Tappers Cooperative Society, Nizamabad and another … Respondents W.A. No.1270 of 2005:
Between:
The Prohibition & Excise Superintendent and others … Appellants and Toddy Tappers Cooperative Society, Nizamabad and another … Respondents THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NOs.1768, 1778 OF 2004, 1164 AND 1270 OF 2005 COMMON JUDGMENT: (per Hon’ble Sri Justice Sanjay Kumar) These writ appeals raise common questions. They are therefore amenable to a conjoined disposal.
2. W.A. Nos.1768 of 2004 and 1270 of 2005 arise out of W.P.
No.4962 of 2003 while W.A. Nos.1778 of 2004 and 1164 of 2005 pertain to W.P. No.7858 of 2003.
3. W.P. No.4962 of 2003 was filed by the Toddy Tappers Co-operative Society, Nizamabad, challenging the proceedings dated 18-03-2003 of the Commissioner of Prohibition and Excise, Andhra Pradesh, sanctioning seven new toddy shops and forming a new Toddy Tappers Co-operative Society at Nizamabad with 67 members for the vacant wards named therein.
4. W.P. No.7858 of 2003 was filed by the Toddy Tappers Co-operative Society, Kamareddy, Nizamabad District, challenging the proceedings dated 20-03-2003 of the District Collector, Nizamabad, accepting the proposal submitted by the Deputy Commissioner of Prohibition and Excise, Nizamabad Division, and sanctioning seven new toddy shops and formation of a new Toddy Tappers Co-operative Society in Kamareddy town with 66 members for the vacant wards named therein.
5. By separate orders dated 01-11-2004, a learned single Judge allowed both the writ petitions and set aside the proceedings impugned therein.
6. W.A. No.1768 of 2004 was filed by the newly formed Toddy Tappers Co-operative Society at Nizamabad while W.A. No.1270 of 2005 was filed by the officers of the State’s Excise department challenging the order passed in W.P.No.4962 of 2003. Similarly, W.A. No.1778 of 2004 was filed by the newly formed Toddy Tappers Co- operative Society at Kamareddy and W.A. No.1164 of 2005 was filed by the officers of the State’s Excise department aggrieved by the order in W.P. No.7858 of 2003.
7. The order passed in W.P. No.4962 of 2003 manifests that the primary ground for allowing the said writ petition was that no mention had been made in the proceedings dated 18-03-2003 of the orders passed by this Court in W.P. Nos.21609 of 2002 and 25349 of 2002. The learned Judge held thereupon that the decision had been taken without giving due consideration to the orders passed in the above writ petitions and accordingly set aside the impugned proceedings. Similarly, the order passed in W.P. No.7858 of 2003 manifests that the main reason for interference was that the directions given by this Court in W.A. No.509 of 2003 had not been taken into consideration and the proceedings impugned in the said writ petition were accordingly set aside.
8. W.P. No.21609 of 2002 was filed by the petitioner in W.P. No.4962 of 2003 aggrieved by the order of the Prohibition and Excise Superintendent, Nizamabad, under Section19 of the A.P. Co-operative Societies Act, 1964, directing it to induct new members. The said writ petition was disposed of by order dated 17-03-2003, reading down the order impugned therein to mean that the applications seeking membership of the society should only be considered. The petitioner society was accordingly directed to consider the applications for membership and pass orders thereon in accordance with law within a month.
9. W.P. No.25349 of 2002 was also filed by the petitioner in W.P. No.4962 of 2003 seeking a declaration that the proposal of the Prohibition and Excise department of the State to grant a new Toddy Tappers Co-operative Society and new toddy shops at Nizamabad in the area of its operation was illegal. This writ petition was dismissed as premature on 17-03-2003.
10. It is therefore clear that no directions were issued to the State in either of the writ petitions and the only direction in one case was to the petitioner society itself. The order passed in W.P. No.4962 of 2003 does not reflect consideration of the question as to whether the State was barred by the statute from forming a new co-operative society when the existing co-operative society was yet to consider applications for membership in terms of the order passed by this Court in W.P. No.21609 of 2002. Yet another issue was also left unaddressed - the learned Judge recorded in the order passed in W.P. No.4962 of 2003 that there was no dispute as to the petitioner society having its area of operation in all the 36 wards of Nizamabad. However, in an earlier paragraph of the order, the learned Judge also recorded the contention of the authorities that the shops which had been granted to the newly formed co-operative society did not fall within the area of operation of the petitioner society. In the light of this contradiction in the order, the issue as to whether the newly formed shops did actually fall within the area of operation of the existing society remained unresolved.
11. Similarly, the order passed in W.P. No.7858 of 2003 reflects that the main reason for interference was non-consideration of the directions of this Court in W.A. No.509 of 2003. The said writ appeal arose out of W.P. No.25613 of 2002. This writ petition was disposed of along with W.P. No.24341 of 2002, by common order dated 17-03-
2003. These two writ petitions were filed by the Toddy Tappers Co- operative Society, Kamareddy, the petitioner in W.P. No.7858 of 2003. In W.P. No.24341 of 2002, the challenge was to the proceedings dated 27-11-2002 bifurcating Devanpally toddy shop from the Toddy Tappers Co-operative Society group, Kamareddy, and sanctioning Devanpally toddy shop under ‘Tree for Tapper’ (TFT) scheme without cancelling the existing ‘Tree for Co-operative Society’ (TCS) licence. In W.P. No.25613 of 2002, the petitioner society sought a declaration that the State’s proposal to grant a new co-operative Society and new toddy shops at Kamareddy in the area of its operation was illegal. By common order dated 17-03-2003, the learned Judge recorded the stand of the authorities that the area of operation of the petitioner society would not be affected and only other wards and areas were being considered for providing new shops as and when genuine applications were received. The learned Judge accordingly dismissed both the writ petitions.
12. W.A. No.509 of 2003 was preferred by the petitioner society aggrieved by the dismissal of W.P. No.25613 of 2002. By order dated 26-03-2003, a learned Division Bench of this Court disposed of the appeal with directions. The appellant, being the petitioner in W.P. No.7858 of 2003, was given liberty to make a representation to the Prohibition and Excise Superintendent, Nizamabad, expressing its willingness to enrol additional members. In the event permission was accorded for enrolling such members, the Prohibition and Excise Superintendent, Nizamabad, was further directed to pass appropriate orders as regards the shop that had already been granted in Ward No.4.
13. It is therefore clear that even in the writ appeal the direction was only to consider the willingness of the petitioner society to admit new members and in the event any decision was taken thereon, suitable orders also had to be passed as regards the shop that had already been granted in Ward No.4 to five persons, who were not parties to the litigation. There was no restraint placed upon the authorities from establishing a new society or new shops without affecting the area of operation of the existing society. Further, as in the other case, the order passed in W.P. No.7858 of 2003 reflects a contradiction as the effect of the newly sanctioned shops on the area of operation of the existing society.
14. The crucial issue that fell for consideration in both the cases was whether the establishment of new shops and new societies adversely impacted the existing societies and their sanctioned areas of operation. Another issue that required resolution was as to the competence and jurisdiction of the authorities who had passed orders in this regard. Neither of these issues was decided by the learned Judge while allowing the writ petitions. The failure to mention the earlier orders passed by this Court in the impugned proceedings assumed no significance as the directions therein did not touch upon sanctioning of new shops and new societies. The controversy that actually fell for consideration was left undecided. The orders under appeal therefore cannot be sustained. As critical questions that arose for consideration in the writ petitions remained unanswered, we are of the opinion that the matters require to be heard afresh. All aspects are therefore left open and observations hereinabove on the merits shall have no binding effect.
15. The orders passed in W.P. Nos.4962 of 2003 and 7858 of 2003 are accordingly set aside and the writ petitions are remanded for fresh hearing.
16. The writ appeals are disposed of with the above direction. Pending miscellaneous petitions, if any, shall stand closed. No order as to costs.
K.J. SENGUPTA, CJ SANJAY KUMAR, J 24-04-2014 Svv