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1999 Supreme(AP) 1022
Andhra Pradesh High Court
Judges : ELIPE DHARMA RAO
Ch.Jyothi Srinivas - Appellant
Versus
Commissioner of Prohibition and excise, A.P., hyderabad - Respondent
Decided On : 11-12-99
Headnote:
A. P. Excise Act, 1968 – Section 3 - A. P. Indian Liquor and Foreign Liquor rules, 1970 - Rule 35 - A. P. Excise Rules, 1993 - Rule 8 –Licences for Shop – Transferring shop - Facts of case are that petitioner was granted licence for retail shop IL-24 for excise and he started shop in name and style and commenced business - Before granting above said licence, concerned authorities have conducted enquiries for establishment of shop in locality - Subsequent to establishment of shop of petitioner, residents made some complaints that shop is located adjacent to bus stand causing nuisance - Local Gram Panchayath and mahila Mandali also passed resolutions to effect that shop should be shifted from its place - So petitioner, without entering intorany controversy has decided to shift his shop. Therefore, addressed a letter to superintendant, Prohibition and Excise, requesting him to recommend his case for shifting of shop - Accordingly, Inspector, prohibition and Excise recommended for shifting of shop through his proceedings which was endorsed by Sub-Divisional Prohibition and Excise Officer, Chodavaram - Second respondent, who is competent authority to issue licence instead of taking a decision approached Commissioner for prohibition and Excise to pass appropriate orders for shifting of shop from kasimkota village to Desapatrunipalem village - As no orders were passed by respondents and Excise was coming to an end, he approached this court and filed which was disposed of by this Court directing second respondent to dispose of representation within a period of four weeks - It is however, mentioned that during pendency of writ petition, first respondent by his order, rejected request made by petitioner without assigning any reasons. When petitioner approached local M. L. A. and Government, Government directed first respondent to pass orders allowing petitioner to shift premises of shop. In obedience of orders passed by Government, first respondent by his letter modified proceedings and passed orders directing second respondent to permit licencee of M/s. Durga Wines, i. e. petitioner to shift shop to any other unobjectionable location within same village - Petitioner was not interested to shift his shop to any other unobjectionable location of same village - Therefore, questioning orders passed by first respondent, present writ petition is filed – Held , It is pertinent to note here that contemplates appointment of Commissioner, that government may, by notification appoint an Officer as Commissioner of Excise for State, who subject to general or special orders of Government in this behalf, shall be Chief Controlling authority in all matters connected with administration of this hereof, empowers Commissioner who was appointed to exercise all powers of collector under Act and shall have control of administration of Excise department - Therefore it is clear from above said section that Commissioner is Controller of Excise Department in State and he has got powers to take suitable decision to meet exigencies in Department empowers commissioner to grant approval for shifting of shop from one place to another, he is expected to take an independant decision on basis of recommendations made by sub-Divisional Officer, Prohibition and Excise - But in present case, Commissioner instead of doing so, rejected request of petitioner on ground that government has not given any instructions on subject - Therefore, decision arrived at by Commissioner, first respondent herein, is contrary to powers given to him under Act and rules - It is also pertinent to note that when Legislature in its wisdom has empowered Commissioner, Prohibition and Excise, to examine issue and give approval for shifting of shop from one place to another, Commissioner is expected to take an independant decision after applying his mind without looking for instructions from Government - Contention of petitioner is that when designate Supreintendant, prohibition and Excise, as licensing authority, competent to approve proposal for shifting shop from one place to another, said power has been abdicated by second respondent to first respondent, who passed impugned order - It appears that petitioner is ignorant of amendment brought about to effect that no change or alteration of licensed premises shall be made nor licensed premises shifted elsewhere without prior approval of Commissioner of prohibition and Excise, i. e. , transfering power from Superintendant to commissioner, Prohibition and Excise - Writ petition is allowed
( 1 ) QUESTIONING the impugned order dt. 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. Rc. No. 1834/98/ a-1 dt. 29-6-1999 rejecting the request made by the petitioner - the licence 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.
( 2 ) THE brief facts of the case are that the petitioner was granted licence for the 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 nuisance. 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 intorany 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 dt. 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 1998-99 was coming to an end, he approached this court and filed W. P. No. 10353 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 M. L. A. 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, i. 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 to any 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 despatrunipalem 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.
( 3 ) IN reply to the averments made in the affidavit, the respondents filed counter stating that the Ci
