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Judgment
In this writ petition, a writ of mandamus is sought declaring the action of the respondents 2 to 4 in permitting the 6th respondent to change the location of the retail shop for sale of Indian liquor and Foreign Liquor from Varikuntapadu to Bhogyamvaripalli (Timmareddypalli) Nellore District as illegal, arbitrary and without jurisdiction and a consequential direction to respondents 2 to 4 to relocate the shop of the 6th respondent as per the Nellore District Gazette Notification dated 5-4-1997.
According to the petitioner, auction for selling Indian Liquor and Foreign-Liquor in retail was held in the month of April, 1997 and he became the highest bidder for shop No.1, located in Pamuru, Pamuru Mandal, bearing Gazette No. 100 of Nellore District Gazette. The auction amount was Rs. 22,50,000/- and the upset price fixed by the respondents was Rs. 4,00,000/-. After completing the necessary formalities, petitioner has been carrying on the business from 25-4-1997 in Pamuru village.
According to the petitioner, right to sell Indian Liquor and Foreign Liquor in retail, in Nellore District was notified on 5-4-1997 and auctions were held on 18-4-1997. In the District Gazette of Nellore, dated 5-4-1997, the shop at Varikuntapadu was notified at Sl.No. 97 and its location as fixed in the District Gazette is at Bust stop centre. The upset price for the said shop was also fixed at Rs. 40,00,000/-. The 6th respondent hearin was granted licence for the said shop as he became the highest bidder. According to the petitioner, Varikuntapadu shop has to be located in the Bust Stop Centre in the said village as per the notification issued in the Gazette of Nellore dated 5-4-1997. Petitioner alleges that respondents 1 to 4 instead of insisting the 6th respondent to establish his shop at the Bus Stop Centre in Varikuntapadu village as contemplated in the District Gazette Notification, have permitted the 6th respondent to locate the shop at Bbogyamvaripalle, which is entirely different village and is 10 kilo metres away from Varikuntapadu village.
Petitioner complains that as a result of the action of the respondents 1 to 4 in permitting the 6th respondent to locate his shop at Bhogyamvaripalli, he is put to heavy financial loss as the shop of the 6th respondent at Bhogyamvaripalli is just three kilo metres away from petitioner''s shop and as such petitioner''s business is adversely affected.
According to the petitioner, when localities where shops are to be established are specified and on which basis licences are issued, the power either to modify or shifting the shop from one locality to another, is vested with Commissioner of Excise, Government of Andhra Pradesh, as provided under Rule 4(2) of the A.P. Excise (Lease of Right to Sell Indian Liquor and Foreign Liquor in Retail) Rules, 1993. Petitioner states that the action of the second respondent in permitting the 6th respondent to relocate his shop from Varikuntapadu to Bhogyamvaripalli is without jurisdiction and contrary to rules and therefore, seeks to set aside the impugned order.
Detailed counters have been filed by the respondents 1 to 5 and the 6th respondent separately.
In the counter filed by respondents 1 to 5, it is admitted that the 6th respondent was granted licence to locate his shop in Varikuntapadu village at Bus Stop Centre. It is also admitted that the petitioner is permitted to locate his shop at Pamur village. It is stated that on a representation made by the 6th respondent, the second respondent having found that the grievances of the 6th respondent as genuine, permitted to shift the shop of the 6th respondent from Varikunlapadu to Bhogyamvaripalli. It is further stated that the second respondent is competent under the relevant rules and to permit shifting of the shop in the interest of Government Revenue and as such the petitioner has no right to approach this Court assailing such order.
In the counter filed by the 6th respondent, he admitted the facts stated by the petitioner, However, the 6th respondent pleaded that the petitioner being his business rival cannot approach this court under Article 226 of the Constitution of India as he has no cause of action and the writ petition is not maintainable. Alternatively, the 6th respondent has pleaded that if this Court holds that the petitioner has locus-standi to file the writ petition, still the petitioner cannot be an aggrieved party and cannot have any grievances against the action of the official respondents. The 6th respondent has therefore, pleaded that the writ petition could be dismissed.
I have heard Sri C. V. Mohan Reddy, learned Counsel for the petitioner, learned Government Pleader for Excise for respondents 1 to 5 and Sri M. V. Ramana Reddy, learned senior Counsel, on behalf of Sri Ravindranath Reddy, Counsel for the 6th respondent.
In the wake of the submission that the writ petition is not maintainable as the petitioner has no locus standi, it is well settled by now that a writ petition could be maintained by a person though not directly interested in the litigation. In this case, the petitioner being the successful bidder in the auction for the shop at Pamur, has been granted licence. On account of the action of the second respondent permitting the 6th respondent to relocate his shop from Varikuntapadu village to Bhogyamvaripalli which is just three kilo metres away from the shop of the petitioner at Pamuru, the revenue inflow of the petitioner has been adversely affected and he is put to financial loss. As the petitioner''s business is affected by the action of the second respondent, he is certainly an aggrieved party and is able to maintain the writ petition, Accordingly, I hold that the petitioner is the aggrieved party and has got locus standi to maintain the writ petition in this Court.
Learned Counsel for the petitioner as well as the learned Government Pleader for Excise have posted this Court with the rule position governing the location and auctioning of the shops. Rule 3 of Andhra Pradesh Excise (Lease of right to sell Indian Liquor and Foreign Liquor in Retail) Rules, 1993 provides for auctioning and locating the number of shops in a particular area and their location. Explanation Provided to this rule makes it clear that the Commissioner of Excise, before publication of auction notice under Rule 4 of the said Rules, shall fix the number of shops to be established in a particular area and their location.
Another rule which is relevant for the purpose of considering the issue involved in this writ petition is Rule 8 of the Andhra Pradesh Excise (Indian and Foreign Liquor Retail Sale Conditions of Licenses) Rules, 1993. According to this rule, the sale is to be conducted at the premises specified in the licence. However, Sub-Rule 2 of Rule 8 says that no change or alteration of the licenced premises Shall be made nor the licenced premises shall be shifted elsewhere without the prior approval of the authority who granted the licence and before necessary corrections are carried in the licence. Thus, this rule though contemplates changing or shifting the premises, but such shifting cannot be done without the prior approval of the authority who granted the licence and before making necessary corrections carried out in the licence.
Learned Counsel for the petitioner while drawing the attention of this Court to the above rules, contended that before auctioning of the shops in a particular area, the partie? are certain about the extent of revenue they are likely to get which depends on the factors such as location of the shop, size of the area and the population in that particular area etc. It is in this context, location of a particular shop in a specified area assume significance having regard to the income it fetches which is dependent upon the population and size of the area etc. Small variations of locating shops within the area specified is permissible under the rules but major variations such as shifting the shop from one area to a totally different area is impermissible. Learned counsel further contended that if any major variations are to be made, the competent authority is only the Comissioner of Excise and not any other officer subordinate to him and therefore, seeks to quash the impugned order of granting permission to the 6th respondent to shift his shop from Varikuntapadu to Bhogyamvaripalli.
Learned Government Pleader for Excise, appearing on behalf of the official respondents submitted that though Rule 3 of the above Rules makes it clear that the Commissioner is competent to locate the number of shops in a specified area, on administrative exigencies, it would be open to the Commissioner of Excise or such officers who are authorised by him to act upon and make variations. He further contended that the action of the second respondent permitting the 6th respondent to relocate his shop from Varikuntapadu to Bhogyamvariaplli is within the competence of the second respondent and there is no illegality in the impugned order.
Sri M. V. Ramana Reddy, learned senior Counsel appearing on behalf of the 6th respondent has submitted that the business rivalry between the petitioner and the 6th respondent cannot be a cause for this Court to interfere. He further contended that under administrative exigencies, the excise officials are entitled to make variations in the location of shops and the second respondent having been satisfied with the reasons assigned by the 6th respondent in his representation, has permitted him to shift his shops from Varikuntapadu to Bhogyamvaripalli and there is no illegality in the action of the second respondent.
In the background of these submissions, it is to be seen whether the second respondent is competent to permit the 6th respondent to relocate his shop from Varikuntapadu village to Bhogyamvaripalli?
Explanation provided to Rule 3 of A.P. Excise (Lease of Right to sell Indian Liquor and Foreign Liquor in Retail) Rules, 1993 makes it clear that it is the Commissioner of Excise alone who is competent to notify the number of shops and the location of shops to be established. Though sub-rule 2 of Rule 8 of the A.P. Excise (Indian and Foreign Liquor Retail Sale Conditions of Licenses) Rules, 1993 vests power with the authorities to shift the licenced premises, but such modification in the location shall be with the prior approval of the authority who granted licence and before necessary corrections are carried out in the licence. No such approval or corrections carried out in the licence of the 6th respondent are placed before me either by the Government Pleader for excise or by the learned senior counsel representing the 6th respondent to show that the second respondent has acted in accordance with the provisions of sub-rule 2 of Rule 8 of the said Rules. In the absence of these requirements, it is difficult for this Court to accept that the second respondent has exercised his powers as conferred by the Statute.
The excise business is a fluctuating business dependent upon so many factors, such as location, size and population of the specified area etc. Location where a particular shop is to be located plays a vital role in this regard. Basing on the location of the shop at a specified area, the profit is estimated. If a shop is permitted to be located near another shop, the profits of the latter shop would be reduced as the former shop makes a dent into the business of the latter shop. It is in this background, the authorities have specified particular locations to shops in which they are to be established. Minor variations in locating shops in a specified area on account of non-availability of proper accommodation etc., could be permitted, but major variation in locating the shop at more than five to ten kilo metres away from the actual specified area, in any circumstances, cannot be permitted.
In the present case, originally the shop of the sixth respondent is located at the Bus Stop Centre of Varikuntapadu village. The second respondent has permitted him to relocate his shop at Bhogyamvaripalli which is more than five kilo-metres from Varikuntapadu and very near to the shop of the petitioner. As a result the business of the petitioner is in jeopargy as the shop of the 6th respondent is attracting customers from the area of business of the petitioner. As discussed earlier, the second respondent has no authority or competence to permit the 6th respondent to relocate his shop from Varikuntapadu to Bhogyamvaripalli and therefore, I am inclined to hold that the action of the second respondent in according such permission to the 6th respondent is contrary to the rules and cannot be sustained. Accordingly, the impugned order issued by the second respondent to relocate the shop of the 6th respondent from Varikuntapadu to Bhogyamvaripalli is set aside. Consequently, the second respondent is directed to shift the shop of the 6th respondent from Bhogyamvaripalli village for locating the same at Bus Stop Centre of Varikuntapadu village forthwith, as per the Nellore District Gazette Notification dated 5-4-1997.
The writ petition is allowed in the above terms. No costs.