K. Vidyasagar vs Assistant Commissioner of Prohibition and Excise, Rangareddy District and another

The instant writ petition is filed seeking writ of certiorari to quash the order passed by the Assistant Commissioner of Prohibition and Excise, R.R. District, 1st respondent herein, and to direct him to grant permission to the petitioner for shifting of 1L 24 Shop from the present premises to the premises at Rajadhani Theatre Complex, Gaddiannaram.

The facts lie in a short compass: The petitioner was granted 1L 24 retail licence by the 1st respondent to locate the shop in premises bearing No.9-34/B&C, Gaddiannaram, R.R. District. .The licence, however, was suspended by the 1st respondent by order dated 23-5-1998 on the ground that the premises was offending Rule 6 of The Andhra Pradesh Excise (Indian and Foreign Liquor Retail Sale Conditions of Licenses) Rules, 1993, hereinafter called ''1993 Rules''. Challenging the said order, the petitioner filed W.P. 14382/98 and this Court by order dated 28-5-1998 in W.P.M.P. 17303/98 suspended the said order of suspension. The respondents challenged the said interim order in W.A.No.988/98 and by order dated 1-6-1998 this Court allowed the Writ Appeal and the order of the learned single Judge was set aside. The Division Bench, however, while allowing the Writ Appeal, observed that it was open to the respondent (petitioner herein) to make a representation for shifting of his shop and if such representation is made the appellants (respondents herein) are directed to take a decision on the same within one week from the date of receipt of the representation. Accordingly, the petitioner, it is stated, made a representation dated 3-6-1998, for shifting his shop into the new premises bearing No.4-61/7, Rajadhani Theatre Complex, Gaddiannaram. The petitioner states that he had taken care to see that Rule 6 of 1993 Rules does not apply to the new premises. The 1st respondent passed the impugned order rejecting the application for re-location of the shop at the proposed premises on the ground that there was objection from the neighbours and also as the proposed premises was located on National Highway No.9, near Dilsukhnagar Bus Depot it would create law and order problems. The 1 st respondent in coming to the above conclusions relied upon the report submitted by the S.H.O., Saroornagar P.S. This order is under challenge in this writ petition.

Learned Senior Counsel for the petitioner seriously contends that both the grounds are wholly untenable and contrary to the Rules. Inasmuch as liquor is not consumed at the shop premises and no loose sales are permitted under the Rules, no law and order problem would arise if the shop is permitted to be located in the proposed premises. The entire stretch of either side of the National Highway is commercial and there are no residential houses. Hence the question of objection by neighbours would not also arise. The petitioner has complied with the relevant rules for obtaining the licence. The refusal to re-locate the premises is therefore wholly illegal and mala fide,

Learned Advocate-General appearing for the respondents submits that the petitioner lias no right to seek for the establishment of a shop. Trade in liquor is the exclusive privilege of the Government and cannot be sought as a matter of right. The authorities having taken into consideration the location of bus stand, National Highway, large number of schools and other institutions in and around the area, rejected the proposal for re-location of the shop and the said decision was taken as per the report of the concerned Station House Officer. The reasons therefore, cannot be termed as violative of the Rules or arbitrary. It is also contended that it is not permissible to this Court for reappraisal of the impugned order in exercising the jurisdiction under Article 226 of the Constitution.

In order to appreciate the above contentions, the impugned order has to be considered before the Rules are examined. The 1 st respondent rejected the proposal to re-locate the shop on two grounds, viz., (1) objection of the neighbours and (2) in view of the location of the shop on N.H. No. 9 near Dilsukhnagar Bus Depot, it would create law and order problem. The impugned order also speaks of the report submitted by the S.H.O., Saroornagar P.S. raising the above second objection for the location of the shop. The 1st respondent relied upon the said report implicitly in passing the impugned order. The contention of the learned senior Counsel for the petitioner being that the objections are contrary to the Rules, it would become necessary to consider Rule 6 of the 1993 Rules. As per sub-rule(l) of Rule 6, the premises should be so selected as to be atleast 100 mts., away from the Highway. The term ''Highway'' was defined in the explanation, which means National Highway or State Highway. But it shall not include the part of the National Highway or State Highway which passes within the limits of Municipal Corporation, Municipal Council or Gouthan or Panchayat area. It is not in dispute that Gaddiannaram is a Panchayat area and the proposed premises is in Grampanchayat area of Gaddiannaram. In view of the definition, ''Highway'' N.H.9 does not come within the mischief of sub-rule (l) of Rule 6. The part of the National Highway within the limits of Gaddiannaram Gram Panchayat cannot be taken into account. Hence the proposed premises near National Highway No.9 is not objectionable. No other ground is shown in the impugned order as having violated Rule.6. The objections raised are therefore extraneous to the Rules.

The petitioner stated in his affidavit that Dilsukhnagar Bus Depot is situated within the limits of Municipal Corporation of Hyderabad and the distance between the proposed shop and the Bus Depot is over 400 mts. Hence the proposed premises would not create any law and order problem. More than two or three IL Wine Shops/Bars were permitted to be located opposite to Dilsukhnagar Bus Depot prior to 1994. No law and order problem was ever existed on the ground of location of the wine shops. In reply to these allegations it is stated in the counter-affidavit that during the lease period of 1997-98 M/s. Nava Chaitanya Wines functioned within 200 mts., from the proposed premises and the shop did create law and order problem and the Saroornagar Police raided as many as 7 times within a span of 3 months and booked number of cases. The other allegations are, however, not denied. It is common knowledge that wine shops are raided for various offences and that cannot be a valid ground at all for refusal of the location of the shop, when it is not contrary to the conditions laid down in Rule 6 of 1993 Rules. It should be noticed that liquor is not consumed at the shop premises. It should be purchased in the bottles or cartons and loose sales are prohibited. It is also necessary to mention that the consumption of liquor in public places is also prohibited by law. Hence, it cannot be visualised how law and order problem would arise if the wine shop is permitted to be located at a particular place. The State Government is fully geared up to deal with the problems of law and order as and when they arise. Indeed, the source of law and order problem is not the location of a wine shop but the intoxicated effect of wine itself. The ground of objection by neighbours is also arbitrary and without any basis. Several Bars and Restaurants are permitted to sell wine in thickly populated areas and also on the main roads. It is significant to notice that Rule 2 of Andhra Pradesh Excise (Lease of Right to Sell Indian Liquor, Foreign Liquor and Beer in Retail Under IL-24 Licence) Rules, 1998 (for short'' 1998 Rules'') deals with grant of licences to retail dealers under IL-24 for the year 1998-99. They shall be governed by the conditions and procedure prescribed under 1993 Rules and A.P. Indian Liquor and Foreign Liquor Rules, 1970 (for short ''1970 Rules''). As per Rule 29(iii) of 1970 Rules, IL 24 licences can also be granted if the proposed bar premises is located on a main road used for shopping purposes. It is not in dispute that commercial activities are being carried on the main road of Gaddiannaram. Hence, rejection on the ground of objections by the neighbourhood is not tenable. Thus the impugned order appears to be wholly arbitrary and passed only on the grounds not germine to the selection of the premises. Thus, the 1st respondent acted in excess of his authority.

It should be noticed that the entire endeavour of the petitioner is to show that the 1st respondent acted utterly in violation ofRule.6 of the 1993 Rules and he has given extraneous reasons in passing the impugned order. It is true, as contended by the learned Advocate General, that it is impermissible for this Court to embark upon an enquiry into the facts to adjudge the suitability or otherwise of the present premises upon a reappraisal of the evidence thus coming to a finding contrary to that reached by the 1st respondent Bishnu Ram Borah v Parag Saikia AIR 1954 SC 898. It is, however, permissible for this Court to examine whether the impugned order was in accordance with the Rules and whether there was any material on record to come to the conclusion that was reached by the 1st respondent and that the conclusions are arbitrary or mala fide. I am of the view that the 1st respondent exceeded his authority and violated Rule.6 of the 1993 Rules, which is the only provision referrable for the selection of a shop.

Coming to the last objection raised by the learned Advocate-General that granting of licence to set up a shop, to a person, is entirely the privilege of the Government and such a privilege cannot be mandated by this Court in exercise of Jurisdiction under Article 226 of the Constitution, it is necessary to keep in view that the Government has chosen, in their wisdom, to grant licence to the petitioner. Since the said licence was suspended subsequently, a Division Bench of this Court in W.A.988/98, as stated supra, gave permission to the petitioner to make a representation for shifting of his shop and it was also made clear by the learned Judges of the Bench that if such a representation was made the respondents were directed to take a decision on the same within a particular date. The present premises was selected in accordance with the express permission granted by the Court. It is, therefore, necessary for the 1st respondent to take a ''decision'' on the selection in accordance with the Rules. The only point that has to be determined in this writ petition is whether the ''decision'' was in accordance with the Rules. It is certainly not permissible for the learned Advocate General to raise the plea of privilege of the Government at this stage. May be, the privilege of the Government is a valid objection at the time of initial grant of licence. When once the licence was granted and a decision was taken in pursuance of the direction given by a Division Bench in the above Writ Appeal, the said objection is impermissible, hi that view of the matter, I have no hesitation in rejecting the contention of the learned Advocate General in this regard.

In view of the foregoing discussion the writ petitioner succeeds. Hence, the writ petition is allowed. The impugned order is set aside. The 1st respondent is directed to consider granting of permission to the petitioner to relocate the shop at premises bearing No.4-61/7, Rajadhani Theatre Complex, Gaddiannaram, in the light of the above observations made by me in this order.

No order as to costs.