*THE HONOURABLE MR JUSTICE V ESWARAIAH THE HONOURABLE MR JUSTICE G KRISHNA MOHAN REDDY +WRIT APPEAL NO. 452 OF 2011 %29.09.2011 #Chinta Lacha Reddy ….petitioner Vs. $The Commissioner of Prohibition & Excise, A.P. Hyderabad and ors …. Respondents !Counsel for the Appellants: Sri S Lakshminarayana Reddy Counsel for the Respondents: The Advocate General <Gist : >Head Note: ? Cases referred: 1. AIR 1971 SC 246 2. AIR 1976 SC 578 3. WA 1336 OF 2006 DT 12.2.2007 (APHC) 4. WA 657 OF 2010 BATCH DT 7.9.2010 (APHC) 5 2008 (2) ALT 421 (D.B.) 6. 2000 (7) SCC 552 7. 2007 (4) ALD 388 (FB) 8. 2002 (2) ALD 29 9. (2000—(7)—SCC 552) .. THE HON'BLE MR JUSTICE V ESWARAIAH THE HON’BLE MR JUSTICE G KRISHNA MOHAN REDDY WRIT APPEAL NO. 452 of 2011 DT.29.09.2011 Between: Chinta Lacha Reddy … Petitioners And The Commissioner of Prohibition & Excise, A P Hyd & ors Respondents Counsel for the Petitioners: Sri S Lakshminarayana Reddy Counsel for respondent: The Court made the following ORDER: THE HON'BLE MR JUSTICE V ESWARAIAH THE HON’BLE MR JUSTICE G KRISHNA MOHAN REDDY WRIT APPEAL NO. 452 of 2011 JUDGMENT : (Per Sri Justice V Eswaraiah) This appeal is filed against the order of learned Single Judge dated 15.6.2011 in W.P. No. 2053 of 2011 in dismissing the writ petition filed by the petitioner, questioning the proceedings No. Cr.No.615/2011/CPE/G3 dated 24.01.2011 issued by the Commissioner of prohibition and Excise, Andhra Pradesh, Hyderabad, the first respondent herein, permitting the 5th respondent to shift his licensed premises of A4 shop running under the name and style of “M/s.Jagadamba Wines” L.No.163/10-12 from the existing premises at D.No.98/3, Jeelugumilli Village and Mandal to newly proposed premises at D.No.4-15, Lakshmipuram Village, Jeelugumilli Mandal, under Rule 29(3) of the Andhra Pradesh Excise (Lease of Right of Selling by Shop and Conditions of Licence) Rules, 2005 (for short the Rules). 2. Briefly stated, the facts of the case necessary for the disposal of this appeal are as follows; 3. The petitioner is the licence holder of the shop covered by Sl.No.156 of the relevant Gazette for the Locality/Area – Taduvai Village of Jangareddygudem Mandal under lease period from 01.07.2010 to 30.06.2012. He has been running his business under the name and style of “M/s.Srija Wines”. On the other hand, the 5th respondent herein is the license holder of shop no. 163 of Jeelugumilli village, she has been running her business under the name and style of “M/s. Jagadamba Wines”. While so, the 5th respondent made a representation on 19.08.2010 to the first respondent seeking permission to shift her wine shop from Jeelugumill Village to Lakshmipuram Village, on the premise that she was incurring loss in her business. On coming to know about the same, the petitioner/appellant submitted his objections dated 30.08.2010 to the District Collector, West Godavari, in which it is claimed that Laxmipuram Village is very near to his shop and if the fifth respondent’s wine shop is permitted to be shifted to Laxmipuram Village he would be made to suffer heavy loss in his business and therefore his shop may also be permitted to be shifted to Jangareddygudem Village. 4. The first respondent, on the consideration of the matter issued the impugned proceedings dated 24.01.2011 granting permission to the fifth respondent to shift his licenced premises of A4 shop to Laxmipuram Village of Jeelugumill Mandal under Rule 29 (3) of A.P. Excise (Lease of Right of Selling by Shop and Licence Conditions) Rules, 2005. Aggrieved by the same, the petitioner, approached this Court by filing W.P. No. 2053 of 2011. Initially, while admitting the writ petition, interim suspension of the impugned proceedings was granted by the learned Single Judge by order dated 2.2.2011. 5. In the writ petition, the second respondent filed a counter affidavit on his behalf as well as on behalf of the respondents 1, 3 and 4 interalia in which it is admitted that the petitioner is licence holder of shop No.156 at Taduvai Village of Jangareddigudem Mandal for the lease period from 01.07.2010 to 30.06.2012 whereas the fifth respondent is the licensee in respect of shop notified at Gazette Sl.No.163 at Jeelugumulli Village and mandal. Further it is stated as follows:- 6. Whereas, the fifth respondent submitted a representation for the shifting of her wine shop from Jeelugumulli Village to Laxmipuram Village of same Jeelugumulli Mandal, the fourth respondent upon making necessary enquiries reported that as there were two liquor shops at Jeelugumilli Village, the fifth respondent was incurring loss in her business duly quoting the lifting of IMFL cases by both the licensees of the said village and recommended for the shifting of the shop from Jeelugumilli Village to Laxmipuram Village; that Laxmipuram Village is not very near to the petitioner’s shop at Taduvai Village as the distance in between them is 4 K.Ms., that Taduvai Village comes under Jangareddigudem Mandal whereas Laxmipuram Village comes under Jeelugumilli Mandal; that the request of the petitioner to shift his shop to Jangareddygudem in the case of shifting the shop of the 5th respondent, could not be considered as there were already seven liquor shops running in Jangareddygudem Village and it may cause unhealthy competition. It is thus contended that upon the consideration of the matter, the first respondent exercising the powers conferred on him issued the proceedings according permission to shift the shop of the fifth respondent from Jeelugumilli Village to Laxmipuram Village of the same Mandal in accordance with the provisions of Rule 29(3) of the Rules of 2005. 7. The fifth respondent also filed a counter affidavit interalia stating that the first respondent, duly taking into consideration the report of the Deputy Commissioner of Prohibition, Eluru, West Godavari District, third respondent herein passed the impugned order in exercise of the powers conferred upon him under the provisions of Rule 29(3) of the Rules of 2005 and issued the proceedings dated 24.01.2011 according permission to shift her A4 shop from Jeelugumill Village to Laxmipuram Village and that the petitioner got no locus standi to question the impugned proceedings dated 24.01.2011. 8. The learned Single Judge, upon the consideration of the rival contentions, and following the decisions of the Supreme Court in THE NAGAR RICE AND FLOUR MILLS v. N.TEEKAPPA GOWDA[1] and JASBHAI MOTIBHAI DESAI v. ROSHAN KUMAR, HAJI BASHIR AHMED[2] by order dated 15.6.2011 has dismissed the writ petition holding that the petitioner has no locus standi to question the proceedings dated 24.01.2011 of the first respondent in as much as no right vested in the petitioner has been violated by doing so. Whereas, having aggrieved by the said order, the present appeal is filed. 9. The learned counsel for appellant submits that the dismissal of the writ petition without dealing with the validity and legality of the impugned order passed by the first respondent on the ground that the petitioner has no locus-standi to challenge the said order is illegal and unsustainable. In support of his contentions, the learned counsel for petitioner has relied upon the judgments in D.P. Sridhar Naidu Vs. The Commissioner of Prohibition and Excise and others[3], M/s. Bramarambha Wines Vs. A.Rajesh and othrs[4], S. Malleshwar Rao Vs. Commissioner of Prohibition and Excise and others [5], M.S. Jayaraj Vs. Commissioner of Excise and others [6], M.Vanaja Vs.B.Balaseshanna and others [7], and Vishwanatha Ravi Kumar Vs. Government of A.P.,[8]. 10. Before considering the applicability of the law laid down in the aforesaid judgments to the present facts of the case, we would consider the locus standi of the appellant to challenge the impugned orders passed by the first respondent dated 24.1.2011 permitting the 5th respondent to shift his shop. 11. Under the provisions of A.P. Excise Act, the manufacture, possession, transportation and sale of the intoxicating liquors are prohibited, except under the licence granted under the Act and the Rules made thereunder. The sale or buying of the excisable articles without licence is also prohibited. Under Section 17 of the Act, 1968 subject to the provisions of Section 28 of the Act and the Rules made thereunder, the Government may, subject to such conditions as they may deem fit to impose, grant for a fixed period to any person, either jointly or severally, at any place, within any such area in the State as may be specified, a lease or licence or both for the exclusive privilege of various types such as tapping, drawing toddy from any excise tree, manufacturing, supplying or selling by wholesale or of both, selling by shop, selling by Bar, selling by in-house etc, for a period of two years at a time. No citizen has got any fundamental right to carry on the business in respect of intoxicating liquors in view of the obnoxious nature of trade. 12. The State of Andhra Pradesh in exercise of its powers conferred under Section 72 read with Section 17, 28 and 29 of the Act, 1968 made the Rules called as “The Andhra Pradesh Excise (Lease of Right of Selling by Shop and Conditions of Licence ) Rules, 2005 (for short the Rules, 2005). Rule 2 (l) defines “lease amount” as means the amount payable in respect of a shop as part of sum in consideration of the grant of lease payable under Section 23 read with Section 17 of the Act. Rule 2 (m) defines “lease period” as means the period of two years commencing from first July of the first year of the period or part thereof. Rule 2 (o) defines “Licence” as means a licence issued to a leaseholder under the said Rules. Rule 2 (p) defines “Licensed premises” as means the place where IMFL and FL is permitted to be sold by the lease holder. Rule 2 (t) defines “shop” as means a preivilege granted under the said Rules for the sale of IMFL and FL in sealed or capsuled bottles or packages or tins to an individual in quantities not exceeding the limits as prescribed without permitting consumption on the licensed premises. 13. Rule 3 of the Rules 2005, deals with “lease of right to sell IMFL and FL, which reads as under: “3. Lease of Right to sell Indian Made Foreign Liquor and Foreign Liquor:_ Subject to the provisions of these rules the grant of lease of right to sell Indian Made Foreign Liquor and Foreign Liquor by shop shall ordinarily be granted by inviting sealed tenders from the public after due notification. The lease shall be for a period of two years or part thereof; Provided that where the Commissioner considers it expedient to grant the lease of right to sell Indian Made Foreign Liquor and Foreign Liquor by shop in any other manner, he shall for the reasons to be recorded in writing, do so.” 14. Rule 5 of the Rules, 2005 deals with “auction notice” which reads as under; “5. Auction Notice:-- (1) Where it is proposed to grant the lease for sale of Indian Made Foreign Liquor and Foreign Liquor by shop a notice of the proposed auction containing the particulars mentioned in sub-rule (2) shall be published, at lease (7) seven days in advance of the date of auction, by the Collector of the District in the District Gazette or in such other manner as the Collector may deem fit. (2).. The auction notice shall contain the following particulars; (i).. Serial number and the name of the area/locality where the shop will be established. (ii).. The last date, time and place for receipt of tenders. (iii).. The place of auction with time and date. (iv).. The conditions governing the auction. (v).. The lease period and (vi).. Any other matter which may be considered necessary by the auctioning authority. 15. Thus, under auction notice, the particulars such as serial number, name of the area or locality where the shop will be established etc shall be published. It is not in dispute that the Auctioning authority issued the notification published in the District Gazettee of West Godavari district for the information of the public and the intending tenderers giving the shops on lease for the period from 1.7.2010 to 30.6.2012. In the said notification the shops covered by Serial Nos. 149 to 156 relate to the shops situated within Jangareddygudem mandal alone, out of which the shop at Serial No. 156/ allotted to the petitioner, is for Taduvai village of Jangareddygudem mandal. It is to be noticed that leaving apart the shop no. 156, for the other shops i.e. shop nos. 149 to 155 the area of operation is Jangareddygudem mandal and no specific village name is prescribed and shop numbers from 1 to 6 were allotted. Further, the Shop at serial no.163 is described as Shop No.1 of Jeelugumilli Mandal and the shop at serial No. 164 is described as Shop No.2 of Jeelugumilli Mandal, whereas, the 5th respondent is the lease holder of shop no.1 at serial no.163. 16. Thus, on the perusal of the notification it is clear that the area of operation of the 5th respondent’s shop at serial no.163 is not within the area or locality of the operation of the shop of the petitioner at serial no.156 is located in a different mandal i.e., Jangareddygudem mandal. The prescribed form of licence in form A4 indicates about the locality of the village or the town in which the licence is required to be granted. 17. Under Rule 26, the Prohibition And Excise Superintendent is the competent authority to issue licence and once the licence is granted by the auctioning authority the issuance of the licence shall be in the prescribed form A.4. The only prohibition for the selection of the shop under Rule 27 is that the shop notified shall be al least 100 meters away from the places of public worship, educational institutions, hospitals and 50 Meters away from the Highways. 18. Under Rule 29 the lease holder shall sell the liquor only in the premises specified in the licence. Rule 29 (3) deals with shifting of the premises subject to certain condition, which reads as under; “…….. Shifting of the licensed premises may be permitted for valid reasons within the notified area and subject to conditions as may be specified by the Commissioner subject to payment of one percent of the lease amount or Rs.25,000/- whichever is higher. Provided that the Commissioner may consider and permit for valid reasons shifting of the licensed premises, notwithstanding the notified area of the licensed premises, within the same Mandal or Municipality or Municipal Corporation without affecting the total number of notified shops in the said Mandal or Municipality or Municipal Corporation subject to condition as specified by the Commissioner and subject to payment of 1% of lease amount or Rs.25,000/- whichever is higher.” 19. Whereas, in the instant case, only one shop i.e., the shop of the appellant is notified for Taduvai village of Jangareddygudem mandal, and the other seven shops at the serial Nos. 149 to 155 are notified for Jangareddygudem mandal and the shops at serial nos. 163 and 164 are notified and described as the shop no.1 and shop no.2 of Jeelugumilli mandal and the 5th respondent is the lease holder for the shop no. 1 which is at the serial no.163 of Jeelugumilli mandal, therefore, it cannot be said that the Commissioner got no power to permit the shifting of the shop at serial no.163 relating to the 5th respondent which is at Jeelugumilli mandal which is altogether a different mandal from that of Jangareddygudem mandal where the shop of the petitioner is situated. 20. What the learned counsel for the petitioner contends that the 5th respondent has sought for the shifting of her shop on the ground that there is another wine shop in the village and as two shops are existing adjacent to each other within a distance of 100 yards, her business is not running, is not permissible. In this regard, it is to be noted that the proposed place where the shop of the 5th respondent was shifted is admittedly in a different mandal and is 4 kilometers away from the licenced premises of the petitioner/appellant, as is evident from the report of the Prohibition and Excise Superintendent in proceedings RC.No. 636/2010/B5 dated 11.11.2010. The said report further discloses that the shop of the petitioner at Taduvai village is in a commercial area and the Laxmipuram village i.e., the shop of the 5th respondent is in a non commercial area and as such, the public of Taduvai area will not go to Laxmipuram village for the consumption of liquor. 21. In view of the said recommendations which are made after making necessary enquiries by the respondents 2 to 4, the first respondent- Commissioner in exercise of his powers under Rule 29 (3) had permitted shifting of the shop of the 5th respondent subject to the payment of shifting fee as prescribed under the Rules, which cannot be said to be illegal warranting any interference. Further, it is also to be noted whether the reasons mentioned in the application and the recommendations made by the concerned authorities are valid or not will depend upon the right of the petitioner/appellant to question the said order. Therefore, the locus standi of the petitioner-appellant requires to be considered, as was rightly considered by the learned Single Judge. 22. The judgments relied upon by the learned counsel for the appellant, referred above, are distinguishable, inasmuch as, the judgment of the Division Bench of this Court in D.R.Sridhar Naidu (cited supra ) relates to shifting of a shop under Rule 29 (3) from ward No. 31 of Madanapalli to Ward No. 15 of Madanapalli, therefore the licencee of the Ward No. 15 questioned the said shifting by filing a writ petition in W.P No. 17124 of 2006 and the learned Single Judge, who considered the matter, dismissed the said writ petition and on appeal in W.A. No. 1336 of 2006, the Division Bench allowed the appeal quashing the shifting, observing that, it could not be said that the licensee at ward No.15 within whose area or locality the shop was shifted therein got no locus standi to question it, but in the present case, the shop of the 5th respondent was admittedly not shifted to the area of the petitioner, and as such the said judgment is of no help to the petitioner. 23. Further, in Malleshwar Rao case (cited supra) , the question of locus standi did not fall for consideration and therefore the said judgment rendered therein is of no help to the appellant herein. 24. The judgment of the learned single Judge in Vishwanatha Ravi Kumar case (cited supra ) was with regards to locus standi relying on the judgment of the Supreme Court i n M.S. Jayaraj Vs. Commissioner of Excise[9], which is also of no help to the appellant, inasmuch as, in the aforesaid judgment the Hon’ble Supreme Court while considering locus standi, noticed that the Excise Commissioner had no authority to permit the liquor shop owner to decide the range for which it was auctioned and have his business in another range, and it would be improper to allow such an area to remain alive and operative on the sole ground that the person who filed the writ petition got strictly no locus standi to do so. But in the instant case, it is not the case of the appellant that the Commissioner got no power to shift the shop of the 5th respondent within the notified area of Jeelugumilli mandal. If the shop within the area of Jangareddygudem mandal is sought to be shifted, then undoubtedly the petitioner/appellant is entitled to question the said action by raising his objection. However, as per the scheme of the Act and the Rules made thereunder and the licence conditions, the appellant has not been given any assurance that the shifting of the shop outside the notified area will not be considered. When Rule 29 (3) clearly empowers the Commissioner of Prohibition and Excise for shifting of the shop within Jeelugumilli mandal, which admittedly is a different mandal from Jangareddymandal, where the shop of the petitioner is located, the grievance, if any, could be from the lease holders of Jeelugumelli mandal but definitely not from the appellant. 25. The judgment in Bramarambha wines case (cited supra) relates to shifting of a shop from Baghlingampalli area to Barkathpura area within the vicinity of a licensee of Barkathpura, therefore, it cannot be said that the licencee of Barkathpura, got no locus standi to question such shifting. The said judgment thereby is also of no help to the appellant herein. 26. The M.Vanaja case (cited supra) relates to the locus standi of “any person aggrieved” under Clauses 20 and 21 of the Control Order 2001, which comprehends that temporary fair price shop dealer has locus to challenge such order made under Clause 5 or under Clause 20 (1) or 20 (2) of the Control order by way of filing an appeal or revision as the case may be, under A.P. Essential Commodities Act, 195. But, in A.P. Excise Act and the Rules made thereunder, such right of appeal or revision is not provided, as such, it cannot be said that any person aggrieved is entitled to challenge the proceedings or has locus standi to do so. 27. For the foregoing reasons, we are of the opinion that the learned Single Judge, has rightly dismissed the writ petition filed by the petitioner on the ground that the petitioner has no locus standi to question the impugned orders dated 24.1.2011 passed by the first respondent. Therefore, it cannot be said that the petitioner is really aggrieved by the impugned orders passed by the first respondent. 28. The appeal fails and accordingly the same is hereby dismissed. No costs. _____________ V ESWARAIAH,J ________________________ G KRISHNA MONAH REDDY,J DATE: 29.09.2011 TVK [1] AIR 1971 SC 246 [2] AIR 1976 SC 578 [3] WA 1336 OF 2006 DT 12.2.2007 (APHC) [4] WA 657 OF 2010 BATCH DT 7.9.2010 (APHC) [5] 2008 (2) ALT 421 (D.B.) [6] 2000 (7) SCC 552 [7] 2007 (4) ALD 388 (FB) [8] 2002 (2) ALD 29 [9] (2000—(7)—SCC 552)