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1996 Supreme(AP) 867
Andhra Pradesh High Court
Judges : B.S.A.SWAMY
Toddy Tappers Co-operative Society, Kukatpally, rep.by its President,sri C.Satyanarayana - Appellant
Versus
Govt.of A.F., rep.by its Prl.Secretary, Revenue (Proh.and Excise) Department, Secretariat Bldgs., hyderabad - Respondent
Decided On : 09-10-96
The government is entitled to propound a scheme or abandon a scheme. But so long as the scheme is in existence as a general scheme, it is not open to the State Government to give special instructions in derogation of the general scheme.
Headnote:
The action of the government in establishing a new toddy shop in the impugned order is not activated with bonafides and there is no public interest involved in the same.
Fact of the Case:
The petitioner society is the licencee of the toddy shops situated in kukatpally Municipality for the excise year 1994-95 and under the present policy of the Government for the excise year 1995-96 licences automatically get renewed for one more year and valid upto 20-09-1996. The area of operation of the petitioner Society extended over the area included in the Municipality which came into existence in the year 1987 vide G. O. No. 232 MA, dated 19-02-1987. The said Municipality s area of operation extended over the Villages 1. Kukatpally 2. Balanagar 3. Moosapet 4. Fathenagar 5. Feroyguda 6. Old boinpally 7. Hasmathpeta 8. Bagh Ameer, which were in existence till then and after their inclusion in the Municipality they were de-notified as gram- panchayats. While things stood thus, to the utter surprise of the members of the petitioners Society the 1st respondent issued G. O. RLNo. 50, dated 11-01-1996 wherein he accorded sanction for establishing a new toddy shops for shamsiguda and Bagh Ameer villages which formed part of Kukatpally municipality at the instance of the 6th respondent and decided to lease out the same to Tappers Co-operative Society under the Chief Promotership of 6th respondent.
Finding of the Court:
The action of the respondents in issuing the impugned order is contrary to the general policy and not in furtherance of the object to help the poor tappers but for extraneous consideration. Such an action is arbitrary and violative of Article 14 of the Constitution of India.
Issues: 1. Whether the action of the government in establishing a new toddy shop in the impugned order is activated with bonafides and whether there is any public interest involved in the same. 2. Whether the excise policy permits formation of any number of tappers Co-operative Societies within a given municipality as the population can permit and the same will be in furtherance of the policy of the Government to benefit the tappers.
Ratio Decidendi: 1. The government is entitled to propound a scheme or abandon a scheme. But so long as the scheme is in existence as a general scheme, it is not open to the State Government to give special instructions in derogation of the general scheme. 2. The Excise Policy issued by the Commissioner with the approval of the government is traceable to proviso to Rule 3 of the lease rules and the power exercised by the Commissioner must be held to be one conferred by the statute itself and it is not comparable with the exercise of ordinary executive power outside the statute. 3. The word "tappers Co-operative Societies" occuring in Clause 1. 2 of the policy should be read with reference to municipalities in their plural sense but not for a single municipality. 4. Formation of more than one Tappers Co-operative Society for the same area results in creating unhealthy competition between two groups of individuals belonging to the same class and runs counter to the laudable object underlying the Co-operative movement and defeat the very purpose of formation of Co-operative Societies.
Final Decision: Rule Nisi issued in this writ petition is made absolute and a writ of Mandamus is issued in setting aside the order issued in G. O. Rt. No. 50, revenue (Ex. II) Department, dated 11-1-1996. It is needless to observe that the government shall not proceed with the consideration of the application of the 7th respondent for establishment of new toddy shop in part of Kukatpalli municipality by whatever nomenclature they may assaign to the local area as long as it forms part of Kukatpalli Municipality.
( 2 ) IN the ordinary course the Writ Petition would have been disposed within 5 minutes. But, as the Minister concerned was made party-respondent and an allegation is made in the affidavit filed in support of the Writ Petition by the petitioner. In para-10 of the affidavit in the following terms:"it is one of the scams in which there is huge money involved in establishing the new toddy shops in the thickly populated areas. It is submitted that never in the history of the Excise Department, new toddy shops are opened in the middle of the excise year without notifying in the gazette. "the case assumed important.
( 3 ) WHILE the Advocate General appeared for the Government the government Pleader for Prohibition and Excise Commissioner and his subord inates R-3, R-4 and R-5, Sri M. V. Ramana Reddy senior counsel appeared for Sri O. Manohar Reddy counsel for R-2 and the Minister concerned and another senior counsel Mr. E. Manohar appeared for Mr. Sairam Goud counsel for R-6 and R-7 in the Writ Petition. While the arguments on behalf of the counsel for the petitioners wereoverin ten minutes, the arguments of the senior counsels were spread over for ten hours and if I accept any of the contentions raised by the counsels for the respondents, I am afraid that I have to propound a new law brushing aside the decisions of the Supreme Court as well as this court for over five decades, covering every arguments addressed by these counsels. But, as they raised these contentions I am bound to advert to the mand record my findings to each of their contentions. To avoid repetition and to pronounce the orders in shorter form Ipropose to deal with the pleadings along with the relevant rules and other material placed on record while considering each of their contentions.
( 4 ) HAVING noticed the actions of the executive with some un-easyness while issuing the impugned orders in a very cavaliear fashion, First, I propose to extract certain observations from the judgment of the Supreme Court on the governmental actions in a democracy governed by rule of law which may go a long way in answering the contentions raised by the respondents. In "ramana dayararn Shetty vs. The International Airport Authority of India and Others bhagwati J. speaking for the full bench observed as hereunder: "it is a well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of validation of an act in violation of them. This rule was enunciated by mr. Justice Frankfurter in Vitarelli V. Seaton (1959) 359 US 535:3 1 Ed 2d 1012 where the learned Judge said: an executive agency must be rigorously held to the standards by which it professes its action to be judged, xxxxxxxx xxxxxx xxxxxx. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword .
( 5 ) THEIR lordships held that though this rule receives support from Article 14 of the Constitution of India the same does not rest merely on that article. It has an independent existence apart from Article 14. "it is a rule of administrative law which has been judicially evolved as a check against exercise of arbitrary power by the executive authority, x x x xxx. Today with the tremendous expansion of welfare and social service functions increasing control of material and econom
