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 Nos.23849 and 33589 of 2014 BETWEEN V. Papaiah and others.
AND ... PETITIONERS The Government of Andhra Pradesh, Rep. by its Principal Secretary, Prohibition and Excise Department, Secretariat, Hyderabad and others.
...RESPONDENTS Counsel for the Petitioners: MR. M.KARTHIK PAVAN KUMAR MR. G.P. HARSHAVARDHAN Counsel for the Respondents: GP FOR PROHIBITION & EXCISE MR. SIVARAJU SRINIVAS The Court made the following:
COMMON ORDER:
WP.No.23849 of 2014 is filed by the petitioner, licensee of A4 shop at Sl.No.218 Chillakur Mandal, Gummalladibba village whereas shop of respondent No.5 is shop at Sl.No.222 at Chillakur Mandal, Momidi village. The said shop of respondent No.5 was permitted to be shifted by respondent No.2 under his impugned proceedings dated 12.08.2014 from the existing premises to Varagali village of the same Mandal and the said impugned order is, therefore, questioned by the petitioner. WP.No.33589 of 2014 is filed by eight villagers of Varagali Village challenging the very same impugned order as arbitrary and illegal. Hence, since both the writ petitions question the same impugned order, they are heard together and are disposed of by this common order.
WP.No.23849 of 2014:
2. Learned counsel for the petitioner submits that the petitioner is a licensee of shop at Gummalladibba village and contends that Varagali village falls within the notified area of Gummalladibba village and the distance between the said village and Varagali village is just about 1.5 KMs. Learned counsel states that the petitioner has objected to the proposed shift in his objections dated 06.08.2014.
Learned counsel also submits that the villagers of Varagali village are also opposed to the shifting and as such, the impugned order is questioned on the ground that no reasons much less valid reasons are mentioned in the impugned order by the Commissioner and is contrary to the requirement under Rule 28(3) of the A.P. Excise (Grant of License of selling by shops and Conditions of License) Rules, 2012 (for short ‘the Rules’). Learned counsel also contends that the shops were notified with a population of 10,000 around Gummalladibba village and as such, location of shop within the jurisdiction of said village by respondent No.5 would seriously affect the petitioner.
3. The order impugned is necessary to be extracted in view of the contentions centered round the question that no reasons are mentioned in the order.
OFFICE OF THE COMMISSIONER OF PROH & EXCISE, A.P. HYDERABAD Cr.No.5408/2014/CPE/T3 Dated 12.08.2014.
Shamsheer Singh Rawat, I.A.S. Commissioner of Proh. & Excise Sub: - Proh & Excise Department – Gudur Excise Dist., - Proh. & Excise Station, Gudur – M/s.Gazette S.No.222, Momidi (V) – Requesting to shift the shop from the existing premises at D.No.36/1, Momidi to proposed premises at D.No.5/3 of Varagali in the same Chillakur Mandal – permission Ref:- 1) The Deputy Commissioner of Prohibition & Excise, Prakasam Rc.No.257/2014/A2 Dated 1.8.2014 2) Rule 28(3) of A.P. Excise (Grant of License of selling by shops and Conditions of License) Rules, 2012 @ @ @ In view of the representation of the Licensee of M/s. Gazette S.No.222, Momidi village of Chillakur Mandal of SPSR Nellore District and on the recommendation of the Deputy Commissioner of Prohibition & Excise, Nellore, permission is hereby accorded fro shifting of A4 shop licenced premises from the existing premises at D.No.36/1, Momidi to proposed premises at D.No.5/3 of Varagali in the same Chillakur Mandal under Rule 28(3) of A.P. Excise (Grant of License of selling by shops and Conditions of License) Rules, 2012 subject to fulfillment of the conditions and payment of shifting fee as per rules.
The Proh & Excise Superintendent, Gudur and the Deputy Commissioner of Proh & Excise, Nellore are directed to take necessary action as per rules accordingly.
(ORDERS HAVE BEEN ISSUED WITH APPROVAL OF COMMISSIONER OF PROH & EXCISE, A.P. HYDERABAD) Sd/- K.L. Bhaskar For Commissioner of Proh & Excise To The Proh & Excise Superintendent, Gudur Copy to the Deputy Commissioner of Proh & Excise, Nellore Copy to M/s. Gazette S.No.222, Momidi village”
4. Learned counsel for the petitioner supported the aforesaid contentions by placing reliance upon a decision of the Division Bench of this Court in WA.No.656 of 2010 and batch dated 07.09.2010 and contends that similar order passed by the Commissioner directing shifting of the shop was set aside by this Court on the ground that it did not contain any reasons. Reliance is also placed upon another decision of a Division Bench of this Court in D.R. SRIDHAR NAIDU v. COMMISSIONER OF PROHIBITION
[1]
AND EXCISE as well as decision of a learned single Judge of this Court i n A. SUNDARA RAMI REDDY v. THE DISTRICT COLLECTOR,
[2]
CHITTOOR DISTRICT and it is contended that the impugned order is wholly unsustainable.
5. The Commissioner of Prohibition and Excise has filed a counter affidavit wherein it is stated that the shop at Momidi village, which was allotted to respondent No.5 was established for the first time in 2014-2015 and prior to this, there was no such shop at Momidi village during the last year or years before. It is also stated that respondent No.5 was compelled to request for shifting of the shop based upon the reason that the Gram Panchayat, Momidi village passed a resolution not to allow establishment of A4 shop. It is, further, stated that Momidi Panchayat has population of 2,069 whereas Thamminapatnam Panchayat in which Gummaladibba village is located and where the shop of the petitioner is located, has total population of 2,517.
It is, further, stated that respondent No.5, who had established shop at Momidi village was forced to close the shop in view of resistance by the local people. Respondent No.5, therefore, shifted the shop as per the impugned order at Varagali, hamlet of Momidi revenue village, on 13.08.2014. However, as per the interim orders of this Court in this writ petition, the shop was closed with effect from 22.08.2014.
6. It is specifically stated in the counter affidavit that there is no resistance from the villagers of Varagali village where the shop of respondent No.5 is shifted. So far as the distance between the shop of the petitioner and the Vargali village is concerned, it is stated that as per the route map to reach Gummalladibba village from Varagali village one has to cross Lingavaram and Thamminapatnam and therefore, the net distance between the Varagali village and Gummalladibba village is 5.4 KMs and as such, it cannot be said that the location of shop of respondent No.5 at Vargali village would affect the petitioner. Para 9 of the counter also records that the impugned order contains typographical mistake while referring to Deputy Commissioner, Nellore and it is wrongly typed as Deputy Commissioner, Prakasam, which may kindly be ignored. Para 10 of the counter affidavit is appropriate to be extracted:
“10. In reply to Para 10 of the petitioner’s affidavit, it is humbly submitted that the impugned orders in Cr.No.5408/2014/CPE/T3 were issued by the Commissioner of Prohibition and Excise, Government of A.P., Hyderabad after examining and considering the following logical and valid reasons:
1) the Deputy Commissioner of Proh. & Excise, Nellore has recommended for shifting, after due enquiry, to the proposed premises at Door No.5/3 of Varagali in the same Chillakur Mandal, SPSR Nellore District as the residents of Momidi village are resisting the establishment of the A4 shop in the village though provisional licences had been issued.
2) The A4 shop licensee has no other alternative, except to shift the A4 shop. The licensee selected another premises at D.No.5/3, Varagali village and submitted the application for shifting.
3) The proposed premises is in accordance with Rule 25 of the A.P. Excise (Grant of License of selling by shops and Conditions of License) Rules, 2012 and was duly verified by the Station House Officer concerned.
4) The Distance between the proposed premises and the nearest A4 Shop at Gummalladibba is (5) Kms.
5) Six A4 shops were notified in Chillakur Mandal and all the six A5 shops have been disposed.
6) The proposed shifting does not affect the business of any of the other A4 shops.
7) The population of both Momidi village and Varagali village is less than 5,000 persons.
Thus, it is submitted that order of shifting the A4 shop was based on cogent reasons and after duly examining all the relevant facts and circumstances. I, after due application of mind to the extant circumstances and the relevant provisions of the Rules and after duly having evaluated all the pros and cons of the issues had duly authorized the shifting of premises from D.No.36/1 Momidi Village to D.No.5/3 Varagali Village of Chillakuru Mandal, duly recording in my office records all the aforesaid reasons. I accept that all those findings, are inadvertently, not reflected in the impugned orders in Cr.No.504/2014/CPE/T3. I humbly submit to the Hon’ble Court that if the Hon’ble Court so permits me, I shall make a fresh order duly mentioning the reasons as detailed supra.”
7. Respondent No.5 also filed a counter affidavit wherein he states that on the application of the petitioner, the Station House Officer, Gudur, conducted an enquiry and submitted a report dated 21.07.2014 confirming the unanimous resolution passed by the Gram Panchayat, Momidi village and the objections of the public for continuation of A4 shop of respondent No.5 at Momidi village. A reference is also made to the report of Prohibition and Excise Superintendent together with the No Objection Certificate from the Gram Panchayat, Varagali for establishment of shop. Respondent No.5 has also enclosed copy of the said report along with the counter affidavit. Apart from that, the report of the Deputy Commissioner of Prohibition and Excise dated 30.07.2014 is also appended.
8. The legal position, in the matter, is well settled that the Commissioner is required to record valid reasons while permitting the shifting of the shop. All the decisions, referred to above, therefore, mandate that valid reasons are a must for shifting of A4 shop.
The order impugned, in this case, which is extracted above, shows that the representation of the licensee and the recommendation of the Deputy Commissioner, were all taken into consideration.
The recommendation of the Deputy Commissioner of Prohibition and Excise, being on record, apart from other reports of the Station House Officer and the Prohibition and Excise Superintendent, therefore, form part of the material on the basis of which the Commissioner ordered shifting of A4 shop.
9. The counter affidavit of the Commissioner, further, accepts the necessity for passing the order for shifting and that was also reflected in the reports considered by the Commissioner, which was referred to in the impugned order. It, therefore, cannot be said that the impugned order is bereft of any reasons and no valid reasons are mentioned. The order impugned in isolation may appear to contain no reasons but read with the documents, referred to above, available on record, which were examined by the Commissioner, give valid reasons. Evidently there being no prejudice to the petitioner in view of the distance of almost 5 KMs between his shop and that of respondent No.5, in my view, the challenge to the order impugned made by the petitioner is devoid of any merit.
WP.No.33589 of 2014:
10. So far as the eight villagers of Varagali village, who chose to file the present writ petition, also reiterate and support the writ petitioner in WP.No.23849 of 2014 and in addition, contend that the Sarpanch of Varagali village is the wife of respondent No.5, as such, the resolution passed by the Gram Panchayat, Varagali cannot be taken advantage of by respondent No.5.
11. In my view, the said contention cannot be sustained inasmuch the fact that there is serious public opposition to the establishment of shop at Momidi village coupled with the fact that there was no such shop in the previous year in the Momidi village shows that respondent No.5 had to close down the shop at Momidi village, which necessitated its shifting to another location. Since the Gram Panchayat, Varagali has endorsed no objection for respondent No.5 to open the shop, it cannot be said that the eight petitioners, who filed this writ petition, have any substance in their claim, as the Gram Panchayat, which represents the entire village, has no objection. Hence, except supporting the licensee, who is petitioner in WP.No.23849 of 2014, this writ petition is also not tenable and is liable to be dismissed.
In the result, the writ petitions are 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] 2013 (6) ALD 423