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 No. 23829 AND 24910 of 2014 BETWEEN Y.Ramesh AND ... PETITIONER 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:
W.P.No.23829 of 2014 is filed questioning the recommendations made by the Superintendent of Prohibition & Excise-respondent No.5 in his letter dated 14.08.2014 for shifting of shop of respondent No.6 from Division No.40 to Division No.34 of Vijayawada Municipal Corporation. During the pendency of the said writ petition, the Commissioner, Prohibition & Excise Department- respondent No.2 passed an order dated 20.08.2014 permitting the shifting of shop of respondent No.6 from Division No.40 to Division No.34 of Vijayawada Municipal Corporation. Questioning the order of respondent No.2, W.P.No.24910 of 2014 is filed by the same petitioner. Though the first writ petition became infructuous by the order impugned in the second writ petition, both these writ petitions were heard together and are disposed of by this common order.
2. The petitioner in W.P.No.24910 of 2014 applied for shop shown at Sl.No.232 in Gazette No. 25/14 dated 23.06.2014 by which applications were invited for grant of licence under A.P. Excise (Grant of License of selling by shop and conditions of License) Rules, 2012 (for short, “the Rules”). The petitioner claims that he was awarded shop No.232 in the area/locality notified under column No.3 and described as Division Nos.32 and 34 of Vijayawada Municipal Corporation. The respondent No.6, on the other hand, was awarded shop at Sl.No.228 in the area/locality of Division No.40 of Vijayawada Municipal Corporation. The petitioner states that he has already established his shop after depositing all the necessary amounts and the licence fee and accordingly, he was given provisional licence on 28.06.2014 and commenced the business on 01.07.2014. Similarly, the respondent No.6 established a shop in Division No.40. However, respondent No.6 requested for shifting of the said shop from Division No.40 to 34 on account of the objections by the local residents to open the shop at Division No.40. Recommendations were also made by respondent No.5 for shifting of the shop accordingly which is subject matter of W.P.No.23829 of 2014. Subsequently the Commissioner- respondent No.2 permitted the shifting of shop of respondent No.6, by order, dated 20.08.2014 on the ground that there is uproar by local residents against establishment of A4 shop at Division No.40.
3. Learned counsel for the petitioner states that the shop of respondent No.6 has to be located within the notified area and there are no valid reasons for the Commissioner to permit the shifting of shop within the area of Division No.32 and 34, which are the areas within the operation of the petitioner. He also submits that the order for shifting of shop of respondent No.6 cannot be in such a way so as to affect the existing shop of the petitioner. It is also stated that even without commencing the business in the notified area i.e., at Division No.40, respondent No.6 was allegedly claiming that public were agitating against the opening of shop in Division No.40 and the said allegation is completely denied by the petitioner. The present writ petition, therefore, is filed alleging that petitioner’s shop will be adversely affected and the order as to shifting passed by the Commissioner is contrary to Rule 28(3) of the Rules, referred to above. It is also stated that petitioner has already filed his objections before the Commissioner on 16.08.2014, but without reference to the said objection, the impugned order was passed.
4. Respondent No.5 has filed a counter and it is accepted that petitioner was selected in the lot and he was awarded Sl.No.232 and similarly, respondent No.6 was awarded shop at Sl.No.228. It is also stated that petitioner opted to establish his shop at Division No.32 and Division No.34 which was vacant. So far as the shop allotted to respondent No.6 in Division No.40 is concerned, it is stated that the respondent No.6 had paid the necessary amounts and he was issued a licence. It is stated that the local residents of Division No.40 and the Convener of Nava Samaj Seva Samithi, Islampet, Vijayawada opposed the opening of the shop at D.No.9-61-13, BRP Road, Division No.40, Vijayawada and huge agitations and Dharnas were conducted by them and communal feelings were also flared up leading to law and order problem and on account of several objections by public and social organizations, the respondent No.6 submitted a representation that he could not transact the business, as the shop was not even allowed to open and function, and requested for permission to shift the shop to Division No.34. It is stated that the said representation was thoroughly examined and as there was no possibility of opening and doing business by respondent No.6 in Division No.40, permission was granted by the Commissioner to shift the premises to plot No.34. It is stated that the location of the shop in Division No.34 by the respondent No.6 is in conformity with Rule 25 of the Rules and no distance limit is prescribed in the Rules for establishment of shop. It is further submitted that even in the previous excise year, A4 shop was existing in Division No.40 and it was only in the current excise year that respondent No.6 was unable to establish shop in Division No.40 on account of the agitations by local public and social organizations and hence, the order for shifting was necessary to be passed. It is also asserted that the order passed by the Commissioner is in conformity with Rule 28(3) of the Rules.
5. I have heard the learned counsel for the parties. The learned counsel for the petitioner has vehemently contended that by permitting the shifting of respondent No.6 shop to Division No.34, the very sanctity of the notification issued has been defeated. He submits that the petitioner had opted to take shop No.232 as the area/locality specified against the said shop was Division Nos.32 and 34 and if he had known that another shop was going to be established in Division No.34, he would not have opted for the shop in Sl.No.232. He further submits that the very purpose of notifying the area and locality with respect to each shop will be defeated if another shop is allowed to come in the area where petitioner has located his shop. He submits that the respondent No.6 opted for shop No.228 in Division No.40 and, as such, he could not turn round and set up a shop in the petitioner’s area of division No.34.
6. The learned Government Pleader for Prohibition and Excise, on the other hand, contends that petitioner’s shop is already functioning and he is not any way affected by the opening of shop of respondent No.6, whereas respondent No.6 could not even transact the business in the notified area in spite of complying with all the requirements of obtaining licence by paying all the necessary amounts to the Department and obtaining a provisional licence. It is in these circumstances the request of respondent No.6 for shifting the shop from Division No.40 to division No.34 was accepted. The learned Government Pleader for Prohibition and Excise has also brought to the notice of the Court that the it is specifically mentioned in the original licence granted to the petitioner that the said licence was issued to him for the period from 01.07.2014 to 30.06.2015 for premises No.2-1-24, K.T.Road, Division No.32, Chittinagar, Vijayawada and, as such, the petitioner’s business would not be affected in any manner.
In support of the said contention, the learned Government Pleader also submitted statistics of sales with respect to the petitioner’s shop for the period from 01.07.2013 to 30.11.2013 for the previous excise year at Sl.No.
237 and also for the current excise for the period from 01.07.2014 to 30.11.2014 for shop at Sl.No.232 and compared the sales of current excise year so far with reference to the sales for the shop of respondent No.6 at Sl.No.228 for the same period, when it shows that petitioner’s turnover is far more than that of respondent No.6 even in the aforesaid period. The learned Government Pleader, therefore, contends that even the statistics of sales for the last five months show an upward trend so far as the petitioner is concerned and therefore, it is incorrect for the petitioner to contend that he will be affected by the establishment of shop in division No.34.
7. Copy of the report filed by the Station House Officer, which was under consideration of the Commissioner along with the reports of Superintendent of Excise and Deputy Commissioner is also produced. In the said report, the Station House Officer, Prohibition and Excise, reported to the Excise Superintendent that he has examined A4 shop of respondent No.6 at Division No.40 and reported that people of the locality irrespective of caste and community, everyone is opposing the opening of A4 shop in the aforesaid premises in Division No.40. The local people also expressed fear that opening of A4 shop in the locality will lead to communal tensions and it will disturb peaceful atmosphere and will lead to law and order problem.
8. I have considered the aforesaid contentions on either side. In my view, the primary contention of the petitioner that shop No.232 was allotted to him with reference to the area/locality of division No.32 and 34, does not mean that petitioner has to confine his business only to Division No.32 and 34. The shop number and the area and locality mentioned is only for the purpose of establishment of shop and any licencee can do business unrestricted by the locality or area for which a shop is established. In other words, the petitioner is entitled to transact the business by entertaining any customer from any area and it is not as if that only the customers from Division Nos.32 and 34 alone are required to purchase from the petitioner’s shop. Consequently, therefore, the contention of the learned counsel for the petitioner that Division Nos.32 and 34 are exclusively meant for the petitioner is not correct and the said area and locality is only for the purpose of identifying the shop.
9. The second contention of the learned counsel for the petitioner that by the establishment of respondent No.6’s shop in Division No.34 he would be seriously affected, cannot also be accepted in view of sales figures produced by the learned Government Pleader with respect to the petitioner’s shop for the last five months, which show comparatively much higher turnover than that of respondent No.6.
10. Thirdly, the fact that respondent No.6 was unable to open or run the shop in Division No.40 is not contraverted and, on the contrary, it is established by the reports of the Station House Officer and the counter affidavit filed by the respondent that there was serious opposition from all the people in the locality without reference to caste or creed and an apprehension was expressed that opening of shop would lead to law and order problem. That apart, admittedly in the previous excise year there was no shop established in Division No.40 and it is for the first time that respondent No.6 had opted to open a shop in Sl.No.228 in Division No.40. It is also not contraverted that respondent No.6 paid all the payments and obtained a licence from the excise department for the said shop but was unable to carry on any business. It is on account of these circumstances that the shifting of his shop was permitted by the Commissioner after taking into consideration the reports sent to him by the sub-ordinate officers. Therefore, it cannot be said that the Commissioner has permitted the shifting of the shop of respondent No.6 without any valid reasons and, as such, the impugned order is clearly within the powers of the Commissioner under Rule 28(3) of the Rules.
11. So far as objections of petitioner against shifting is concerned, though a copy is produced along with the writ petition showing that that was filed on 16.08.2014, petitioner is unable to produce any acknowledgment or proof of filing. Impugned order was passed on 20.08.2014 and it is not possible to infer that petitioner’s objections were ignored while passing the impugned order.
12. Apart from all these factors respondent No.6 is already functioning and carrying on business in Division No.34. At this stage, therefore, it is neither just nor proper to interdict the order passed by the Commissioner in view of the validity of licence itself is from 01.07.2014 to 30.06.2015 and already six months have gone by.
13. In the circumstances, I do not find any merits in the contentions of the learned counsel for the petitioner.
Hence, both these writ petitions are dismissed, along with miscellaneous applications, if any. There shall be no order as to costs.
VILAS V. AFZULPURKAR, J December 27, 2014 LMV