IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA & THE STATE OF ANDHRA PRADESH (Special Original Jurisdiction) SATURDAY, THE TWENTY SEVENTH DAY OF DECEMBER TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION Nos. 32171 AND 35761 of 2014 BETWEEN Valavala Pullayya Naidu and another AND ... PETITIONERS The State of Andhra Pradesh, Rep. by its Principal Secretary (Department of Revenue), A.P. Secretariat Building, Hyderabad and others.
...RESPONDENTS The Court made the following:
COMMON ORDER:
The issue involved in these writ petitions is interrelated.
Hence, these writ petitions were heard together and are being disposed of by this common order.
WP.No.32171 of 2014:
2. This writ petition is filed by two petitioners, who claim to be residents of Kanakayalanka Village, opposing the shifting of A4 shop allotted to Respondent No.5 from Burugupalli Village to Kanakayalanka Village and thereby, they have questioned the order of the Commissioner of Prohibition & Excise, respondent No.2, being C.R.No.6789/2014/CPE/E3 dated 20.10.2014. Petitioners state that respondent No.5 was allotted a shop as per the notification issued in Gazette No.92/2014 dated 18.09.2014 and the said shop in G.Sl.No.396 was proposed to be established at Burugupalli Village of Yelamanchili Mandal. The said shop of respondent No.5 is now proposed to be shifted to Kanakayalanka as per the request of respondent No.5 and the same is stated to have been recommended by respondent Nos.3 and 4 by pointing out that the shop at Burugupalli was a shop under lower slab, whereas at Kanakayalanka, where the shop is proposed to be shifted, is in a higher slab. Petitioners state that though the Commissioner has power to order shifting of a shop, it is conditional upon the Commissioner to satisfy himself of the valid reasons in supporting the shifting.
Petitioners specifically state in paragraph 6 of the affidavit that there is no material whatsoever in support of the reasons given by respondent No.2 that the Villagers of Burugupalli have opposed the establishment of said A4 shop and as such, it is contended that for non-existent reasons, the shop is proposed to be shifted and located at Kanakayalanka Village. It is also submitted that apart from the Gram Panchayat, the Women and the Villagers of Kanakayalanka have also protested against the proposed location of A4 shop in their village. Petitioners also rely upon a resolution said to have been passed by the Gram Panchayat of Kanakayalanka, as per the meeting dated 17.10.2014, to cancel the proposed establishment of the said shop.
3. A counter affidavit is filed by respondent No.4 stating that the said A4 shop was allotted to respondent No.5 as per the lots conducted on 22.09.2014 and he has also paid 1/3rd provisional licence fee and provisional licence was also issued. However, respondent No.5 could not establish the shop at Burugupalli village due to objections of the villagers. The M.L.A., Palakole, has also instructed over phone to shift the said shop to some other village in view of opposition for the villagers. Based on that, respondent No.5 submitted an application requesting for permission to shift the shop from Burugupalli Village to Kanakayalanka Village and offered his willingness to pay differential licence fee and shifting charges as per Rules. It is also stated that the villagers of Burugupalli, ZPTC and MPTC and other political leaders have supported the request of the villagers and that the villagers also reported to the District Collector, West Godavari District, and superior officers of Prohibition and Excise Department and on account of their resistance, the shop could not be established by respondent No.5 at Burugupalli. It is accepted that the licence fee for the shop at Burugupalli is Rs.32.50 lakhs, in view of the population being 2699, whereas at Kanakayalanka Village, the licence fee would be Rs.36.00 lakhs in view of the population being 13956. It is further stated that based on the request of respondent No.5 and the report submitted by the Station House Officer, proposals were submitted to the Commissioner on 13.10.2014 to consider the request of the licensee. The Commissioner, in turn, after considering all these aspects passed the impugned order permitting the shifting of the said shop.
4. It is also stated that there is no A4 shop within the radius of 4 KMs from Kanakayalanka and, as such, no other licencee would be affected. The total number of notified shops for the said Mandal is also not being affected and the proposed shift was considered only on account of the opposition from the villagers of Burugupalli. Hence, the allegation of the petitioners that there was no material for shifting of the said shop, is denied. So far as the opposition from the villagers of Kanakayalanka, as referred to by the petitioners, is concerned, it is stated that a report was received from the Station House Officer, Prohibition and Excise Station, Narsapuram, which shows that complaints from Dwakra Group women and Panchayat authorities are only of recent origin and it appears to have been engineered and financed by the existing licencee of A4 shop in the name of M/s. Sri Lakshmi Brandi Shop, Chakalipalem Village. On the contrary, one S. Venkatesh and 67 villagers of Kanakayalanka stated to have requested for establishment of A4 shop to avoid sale of spurious and harmful illegal liquor sales. The counter affidavit, therefore, specifically states that the licencee of the said M/s. Sri Lakshmi Brandi Shop is behind the agitation and Dharnas, which are projected as if from the villagers of Kanakayalanka village, by the petitioners.
5. Petitioners have filed a reply affidavit denying the said averments and reiterated that there is no material in support of the order of shifting.
6. When this writ petition was heard on 27.12.2014, this court had directed the learned Government Pleader to produce the records. Accordingly, the records are produced by the learned Government Pleader and I have perused the said records.
7. The order of the Commissioner, which is impugned in the writ petition, is extracted hereunder to the extent it is necessary to deal with the contentions of the petitioners.
“The licensee of A4 shop G.Sl.No.396, Burugupalli Village had applied for shifting of A4 shop from Burugupalli Village to Kanakayalanka Village of the same Elamanchili Mandal, West Godavari District as the residents of the Burugupalli Village have strongly opposed the establishment of A4 shop and was supported by the people’s representatives.
Further, the Prohibition & Excise Superintendent, Bhimavaram and the Deputy Commissioner of Prohibition & Excise, Eluru reported that
1. The proposed shifting of A4 shop is from lower slab of Rs.32.50 lakhs to higher slap of Rs.36.00 lakhs, because of which Government will get additional revenue.
2. No A4 shops have been notified for the year 2014-15 at the proposed village i.e., Kanakayalanka Village.
3. There are no A4 shops functioning within a radius of 4 Kms from the proposed village i.e., Kanakayalanka Village.
4. The proposed premises is in accordance with Rule 25 of the shop Rules 2012.
5. The licensee had given willingness for payment of requisite differential licence fee, permit room fee and shifting fee.”
From the above, it is required to be ascertained as to whether petitioners are justified in claiming that there is no material to show that there are agitations against shifting of A4 shop of respondent No.5 at Burugupalli village and that there are protests against the shifting of the said shop at Kanakayalanka Village.
8. Though the issue is factual, I have verified the records only to satisfy as to whether the decision of the Commissioner is based on any material or is an arbitrary exercise of power. The record produced by the learned Government Pleader shows that as per the notification, the shop at Burugupalli was allotted to respondent No.5 and that he applied under Form 3A and accordingly, the provisional licence was granted to him on 23.09.2014 for the period from 01.09.2014 to 30.06.2015. It is evident from the record that the letters addressed to the Collector by the Villagers of Burugupalli was received by the excise authorities on 23.09.2014. It is also mentioned about resolution of the Gram Panchayat dated 26.02.2014 and a paper publication relating to villagers’ agitation dated 25.09.2014. There was another press report also with regard to agitation by the villagers on 27.09.2014. The press reports are followed by request of respondent No.5 for shifting of the shop from Burugupalli to Kanakayalanka Village as the agitating villagers as well as the M.L.A. did not allow to open the shop.
Respondent No.5 also agreed to pay enhanced licence fee and the shifting charges as per rules. On the basis of the said request, the Station House Officer submitted his report to the Excise Superintendent on 06.10.2014 confirming that the villagers and the ZPTC & MPTC and other political leaders have supported not to open a shop at Burugupalli and recommended for shifting of the said shop to Kanakayalanka.
9. Based on above, the Superintendent of Prohibition and Excise, Burugupalli, had sent a further report to the Additional Commissioner of Prohibition through the Deputy Commissioner of Excise, Eluru dated 08.10.2014 confirming the report of the Station House Officer and that shifting would involve payment of additional licence fee as well as shifting charges and that the licencee-respondent No.5 is willing to pay the differential amount. The Superintendent of Prohibition and Excise submitted a further report on 13.10.2014 informing that there are no A4 shops within the radius of 4 KMs of the proposed Kanakayalanka Village and recommended the permission to shift the shop of respondent No.5. Based on these reports, the Commissioner of Prohibition and Excise passed the impugned order setting out the reasons, as extracted above.
10. Based on the aforesaid order of the Commissioner, the Prohibition and Excise Superintendent, Burugupalli called upon respondent No.5 to pay the necessary amounts as per the schedule mentioned in his proceedings, dated 24.10.2014. The record further shows that in the meanwhile on 01.08.2014, Crime Nos.463 and 464 of 2014-15 were registered with the Station House Officer, Prohibition and Excise Station, Narsapuram, with regard to the offence alleging distillation of illicit liquor at Kanakayalanka. The record further shows that representations opposing the shop at Kanakayalanka were made by some villagers on 16.10.2014. The Prohibition and Excise Superintendent, therefore, directed the Station House Officer, Narsapuram, to conduct enquiry into the contents of representation of Sri Kadali Satyanarayana, Sarpanch of Kanakayalanka Village, against establishment of A4 shop and submit a report.
Meanwhile, respondents 1 to 4 received a legal notice from the licencee of A4 shop at Gazette No.301 located at Vadrevupalli of P. Gannavaram Mandal, East Godavari District, opposing the location of the said shop at Kanakayalanka by respondent No.5. The Station House Officer, Prohibition and Excise Station, Narsapuram, conducted enquiry as per the directions of the Prohibition and Excise Superintendent, Burugupalli and submitted a report, dated 28.10.2014, mentioning that two offences under crime Nos.463 and 463 of 2014-15 were already registered at Kanakayalanka for illicit distillation and unauthorized sales by getting stocks from M/s. Sri Lakshmi Brandi Shop, Chakalipalem Village, P.Gannavaram Mandal, and it was reported that active hand of the said licencee is found behind the agitations against respondent No.5 shop at Kanakayalanka. It was specifically recorded that the said licensee is reported to be financing some of the villagers of Kanakayalanka to ensure that his business is not affected, whereas there are many other villagers, who prefer A4 shop at Kanakayalanka, so as to ensure legal sale of IMFL rather illegal sales activities, which has already resulted in two criminal cases being registered against the accused.
A representation was also received on 29.10.2014 by the District Collector with a copy marked to the Excise Superintendent, Bhimavaram, from about 68 villagers requesting for establishment of A4 shop to avoid illegal sales of IMFL.
11. The aforesaid record, therefore, clearly discloses that the contention of the petitioners, that there was no material before the Commissioner for ordering the shifting of the shop from Burugupalli to Kanakayalanka, is factually incorrect. It is also evident from the report of the Station House Officer at Kanakayalanka that one existing licencee of a shop is suspected to be behind the agitations by some of the villagers at Kanakayalanka. The impugned order of the Commissioner ordering the shifting of the shop of respondent No.5 from Burugupalli to Kanakayalanka was, therefore, primarily ordered in view of respondent No.5 being unable to open the shop, in spite of obtaining provisional licence at Burugupalli, on account of the strong opposition by villagers.
12. In addition to the said aspect, the Commissioner also took into consideration the other aspects that there are no A4 shops functioning within the radius of 4 KMs of Kanakayalanka Village and for the year 2014-15, A4 shop was proposed and notified for Kanakayalanka Village. Hence, the Commissioner found that there is no impediment in shifting the shop. The said decision of the Commissioner, therefore, cannot be questioned by the petitioners on the ground of alleged agitations at Kanakayalanka and as the report of the Station House Officer shows that the said agitation is financed and engineered by the existing licencee of M/s. Sri Lakshmi Brandi Shop, referred to in the report. In the circumstances, taking into consideration the overall situation prevailing, the order of shifting passed by the Commissioner cannot be said to be either arbitrary or unreasoned.
Consequently, therefore, the writ petition fails and is liable to be dismissed.
W.P.No.32171 of 2014 is, accordingly, dismissed. As a sequel, the miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.
WP.No.35761 of 2014:
13. This writ petition is filed by respondent No.5 in W.P.No.32171 of 2014, whose request for shifting of A4 shop from Burugupalli to Kanakayalanka was agreed to by the Commissioner.
14 Petitioner states that he had taken on lease premises at Ambedkar Nagar, Kanakayalanka Village and the shop constructed by the lessor was handed over to him in the first week of October, 2014. It is further stated that the local villagers at the behest of licencee of Chakalipalem Village attacked and demolished the said shop on 26.10.2014, for which petitioner has already made a complaint before the Police Station, Yelamanchili and accordingly, Crime No.139 of 2014 was already registered against the accused therein.
Petitioner, however, submits that on account of the said act of the accused, he could not commence the business from 20.10.2014 and has already made a representation to the District Collector seeking protection for running of the said shop. He also submits that on account of filing of W.P.No.32171 of 2014 and the interim stay granted by this court in the said writ petition on 28.10.2014, further proceedings could not take place and the petitioner has neither received the shop nor could conduct the business. Petitioner, therefore, seeks that in these circumstances, since he could not conduct the business, the 2nd instalment of Rs.10 lakhs could not be paid by him as he is suffering loss every day and has sought a direction to defer the payment of second instalment and the proportionate permit fee.
15. When this writ petition was heard on 25.11.2014, this writ petition was directed to be listed along with W.P.No.32171 of 2014 and in the meanwhile, respondent No.4 was directed not to enforce payment of second instalment from the petitioner.
16. Since W.P.No.32171 of 2014 is already dismissed, as above, for the reasons mentioned therein, this writ petition is disposed of directing respondent No.4 not to insist on payment of 2nd instalment and the proportionate permit fee from the petitioner for a period of thirty (30) days from the date of commencement of business by the petitioner and thereafter petitioner shall be required to pay all the requisite fee and charges to the respondents in terms of the licence.
If the petitioner has lost business on account of the circumstances, as above, it is open for him to make an appropriate application to the competent authorities for remission/reduction of the amounts payable as per the lease.
With the above direction, W.P.No.35761 of 2014 is disposed of. As a sequel, the miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.
VILAS V. AFZULPURKAR, J December 27, 2014
Note:-
The original record produced by the learned Government Pleader shall be returned to him under an acknowledgment. {B/o} LMV