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Judgment
Questioning the impugned order dated 21-6-1999 of the first respondent, the Commissioner of Prohibition and Excise, A.P., Hyderabad and the consequential order passed by the second respondent-the Superintendant, Prohibition and Excise, Visakhapatnam, in Proc. Re. No.1834/98/A-l dated 29-6-1999 rejecting the request made by the petitioner-the licencee of IL-24 for shifting his wine shop - M/s. Durga Wines, Kasimkota to any other unobjectionable location at Desapatrunipalem, Visakhapatnam as illegal and unconstitutional, the present writ petition is filed.
The brief facts of the case are that the petitioner was granted licence for retail shop IL-24 for the Excise Year 1998-99 and he started the shop in the name and style of M/s. Durga Wines, at Kasimkota village and commenced the business. Before granting the above said licence, the concerned authorities have conducted enquiries for the establishment of the shop in the locality. Subsequent to the establishment of the shop of the petitioner, the residents of Kasimkota village made some complaints that the shop is located adjacent to the bus stand causing inconvenience to the youngsters especially women and students. The local Gram Panchayath and Mahila Mandali also passed resolutions to the effect that the shop should be shifted from its place. So the petitioner, without entering into any controversy has decided to shift his shop. Therefore, addressed a letter dated 26-12-1998 to the Superintendant Prohibition and Excise, Visakhapatnam, requesting him to recommend his case for shifting of the shop. Accordingly, the Inspector, prohibition and Excise recommended for the shifting of the shop through his proceedings dated 30-12-1998, which was endorsed by the Sub-Divisional Prohibition and Excise Officer, Chodavaram. The second respondent, who is the competent authority to issue licence instead of taking a decision approached the Commissioner for Prohibition and Excise to pass appropriate orders for shifting of the shop from Kasimkota village to Desapatrunipalem village. As no orders were passed by the respondents and the Excise Year 1998-1999 was coming to an end, he approached this Court and filed Writ Petition No.I0353 of 1999 which was disposed of by this Court on 17-6-1999 directing the second respondent to dispose of the representation dated 15-4-1999 within a period of four weeks. It is however, mentioned that during the pendency of the writ petition, the first respondent by his order dated 28-5-1999, rejected the request made by the petitioner without assigning any reasons. When the petitioner approached the local MLA and the Government, the Government directed the first respondent to pass orders allowing the petitioner to shift the premises of the shop. In obedience of the orders passed by the Government, the first respondent by his letter dated 21-6-1999 modified the proceedings and passed orders directing the second respondent to permit the licencee of M/s. Durga Wines,/.e., the petitioner to shift the shop to any other unobjectionable location within the same village. The petitioner was not interested to shift his shop in other unobjectionable location of the same village. The contention of the petitioner is that under Rule 35(2) of the A.P. Indian Liquor and Foreign Liquor Rules, 1970 (hereinafter referred to as Rules, 1970) any change or alteration of the licenced premises has to be done with the approval of the authority who granted the licence. In exercise of the powers under Rule 35(2) of the Rules, 1970 the Superintendant Prohibition and Excise is the licensing authority and he should have exercised the power and passed appropriate orders for shifting the shop from the present locality to Desapatrunipalem village, which is within the jurisdiction of the licensing authority.
Therefore, questioning the orders passed by the first respondent, the present writ petition is filed.
In reply to the averments made in the affidavit, the respondents filed counter stating that the Circle Inspector and the Inspector of Prohibition and Excise have recommended for the shifting of the shop in question as it was located near to the bus stand point and the Sub-Divisional Officer, Prohibition and Excise also agreed for the shifting of the shop. The Superintendant, Prohibition and Excise, Visakhapatnam submitted a proposal to the first respondent, who after considering the circumstances, informed the second respondent that the shifting proposals of IL-24 from Kasimkota to Desapatrunipalem of Parvada Mandal will be taken up in the New Excise Year as per the guidelines that will be issued in due course. It is further stated that in compliance of the directions of this Court in Writ Petition No. 10353 of 1999, dated 17-6-1999, the proposal was examined by the Commissioner and in view of the guidelines issued in Cr.No.15718/98 CPE/G1, dated 15-9-1998 stating that the shifting shall be confined within the same village or town, as the case may be, the request of the petitioner was rejected. It is further stated that at the instant of Government, the matter was reconsidered and the petitioner was permitted to shift his shop to another unobjectionable location within the same village. The respondents further stated that as per G.O. Ms. No.97 Revenue (Ex-III) Department, dated 3-2-99, an amendment to sub-rule (2) of Rule 8 of the A.P. Excise (Indian Liquor and Foreign Liquor Retail Sale Conditions of Licences) Rule, 1993 (for short the Rules of 1993) was issued to the effect that no change or alteration of the licensed premises shall be made nor the licensed premises shifted elsewhere without the prior approval of the Commissioner of Prohibition and Excise, and thus prayed to dismiss the writ petition.
Heard the learned Counsel for the petitioner and the respondents.
It is pertinent to note here that u/s 3 of the A.P. Excise Act, 1968, contemplates the appointment of Commissioner, that the Government may, by notification appoint an officer as the Commissioner of Excise for the State, who subject to the general or special orders of the Government in this behalf, shall be Chief Controlling Authority in all matters connected with the administration of this Act. Sub-section (2) hereof, empowers the Commissioner who was appointed under sub-section (1) of Section 3 to exercise all the powers of the Collector under the Act and shall have the control of the administration of the Excise Department. Therefore, it is clear from the above said section that the Commissioner who is the Controller of the Excise Department in the State has got the powers to take suitable decision to meet the exigencies in the Department. Sub-rule (2) of Rule 8 of the Rules of 1970 empowers the Commissioner to grant approval for shifting of the shop from one place to another. He is expected to take an independent decision on the basis of the recommendations made by the Sub-Divisional Officer, Prohibition and Excise. But in the present case, the Commissioner instead of doing so, rejected the request of the petitioner on the ground that the Government has not given any instructions on the subject. Therefore, the decision arrived at by the Commissioner, the first respondent herein, is contrary to the powers given to him under the Act and Rules. It is also pertinent to note that when the Legislature in its widow has empowered the Commissioner, Prohibition and Excise, to examine the issue and give approval for the shifting of the shop from one place to another, the Commissioner is expected to take an independent decision after applying his mind without looking for the instructions from the Government.
The contention of the petitioner is that when sub-rule (2) of Rule 35 of the Rules, 1970 designate the Superintendent, Prohibition and Excise, as the licensing authority, competent to approve the proposal for shifting the shop from one place to another, the said power has been abdicated by the second respondent to the first respondent, who passed the impugned order. It appears the petitioner is ignorant of the amendment brought about by G.O. Ms. No.98 Revenue Ex.(III), dated 3-2-1999 to Rule 35(2) to the effect that no change or alteration of the licensed premises shall be made nor the licensed premises shifted elsewhere without the prior approval of the Commissioner of Prohibition and Excise, i.e., transferring power from Superintendant to the Commissioner, Prohibition and Excise.
Therefore, for the foregoing reasons, I am of the considered view that the decision taken by the first respondent herein is not in accordance with law; he should have considered the proposal for shifting the shop of the petitioner from circumstances of the case, more so as recommended by the Inspector of Prohibition and Excise which was endorsed by Sub-Divisional Prohibition and Excise Officer for shifting the shop of the petitioner from Kasimkota to Desapatrunipalem as per the provisions of Rule 35(2) of the Rules, 1970.
Accordingly, the writ petition is allowed directing the first respondent herein to pass appropriate orders as per the proposals submitted by the Inspector, Prohibition and Excise, which were approved and forwarded by the Sub-Divisional Officer, Prohibition and Excise, Chodavaram, within two weeks from the date of receipt of the order. No costs.