THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.92 OF 2011, WRIT PETITION No.587 OF 2011, AND WRIT PETITION No.1126 OF 2011. DATED: 28.09.2011 In Writ Petition No.92 OF 2011: 1. M. Lakshma Reddy and 2 others. … Petitioners And 1. The State of A.P., Prohibition & Excise Department, Rep. by its Secretary, Secretariat Buildings, Hyderabad., And 4 others. … Respondents In Writ Petition No.587 OF 2011: P. Murali … Petitioner And 1. The State of A.P., Prohibition & Excise Department, Rep. by its Principal Secretary, Secretariat Buildings, Hyderabad.,and 4 others. … Respondents A N D In Writ Petition No.1126 OF 2011: 1. G. V. Ram Reddy and 2 others. … Petitioners And 1. The State of A.P., Prohibition & Excise Department, Rep. by its Secretary, Secretariat Buildings, Hyderabad., And 4 others. … Respondents THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.92 OF 2011, WRIT PETITION No.587 OF 2011, AND WRIT PETITION No.1126 OF 2011. COMMON ORDER : Since common questions of fact and law arise for consideration, all these writ petitions are heard together and decided by this common order. For the sake of convenience, the parties shall hereinafter be referred to as they are arrayed in W.P.No.92 of 2011. The facts, in brief, are as under: The petitioners in W.P.No.92 of 2011 are the Form A-4 licensees for sale of Indian made foreign liquor and foreign liquor by shop at Khanapur Village and Mandal, Adilabad District for the period from 1.7.2010 to 30.06.2012. The 5th respondent is also a licensee for sale of Indian made foreign liquor and foreign liquor by shop from 1.7.2010 to 30.06.2012 at Pembi Village of Adilabad District and he has been carrying on the business in the name and style of M/s. Telangana Wines at Pembi. By order dated 29.12.2010 passed by the Commissioner, Prohibition & Excise, Hyderabad, the 5th respondent was accorded permission to shift his shop – M/s. Telangana Wines – from Pembi to Sathanapally Village under Rule 29 of The Andhra Pradesh Excise (Lease of Right of Selling by Shop and Conditions of Licence) Rules, 2005 (for short, ‘the Rules’). Aggrieved by the said order, dated 29.12.2010, W.P.No.92 of 2011 has been filed. Challenging the very same order dated 29.12.2010 three other Form A-4 licensees carrying on business at Kadem Village and Mamda Village of Adilabad District filed W.P.No.1126 of 2011. It appears that the petitioners in W.P.No.92 of 2011 had simultaneously filed a Revision Petition before the Government of A.P. against the order dated 29.12.2010 passed by the Commissioner of Prohibition & Excise. Having entertained the Revision Petition, the Government by order dated 10.01.2011 stayed the Commissioner’s order dated 29.12.2010 until further orders. Challenging the said order, dated 10.01.2011 the 5th respondent in W.P.No.92 of 2011 filed W.P.No.587 of 2011. I have heard Sri D. Prakash Reddy, the learned Senior Counsel appearing for the petitioners in W.P.No.92 of 2011 and W.P.No.1126 of 2011. I have also heard Sri P. Venugopal, the learned counsel appearing for the 5th respondent in W.P.No.92 of 2011 / petitioner in W.P.No.587 of 2011 as well as the learned Government Pleader for Prohibition & Excise appearing for the State. The material available on record shows that the 5th respondent had initially sought permission for shifting of his licensed premises from Pembi Village to Tarlapad Village. The petitioners submitted their objections opposing the request of the respondent No.5 on the ground that Tarlapad village is situated just 2.5 kms away from Khanapur village and therefore if the permission is granted to the 5th respondent to shift his licensed premises to Tarlapad village, they would sustain huge loss. The Prohibition & Excise Superintendent, Adilabad, after conducting the necessary enquiry submitted his report dated 3.11.2010 stating that the proposed shifting would effect the business of Form A-4 licensees at Khanapur village and moreover there was no justifiable reason to shift the A-4 shop at Pembi which was in existence since last 10 years. The 5th respondent made another representation dated 15.11.2010 seeking permission for shifting of his shop from Pembi to Sathanapally village. Pursuant thereto, after visiting Sathanapally Village and after enquiring about the distance between Khanapur and Sathanapally, the Assistant Prohibition & Excise Superintendent, Adilabad submitted his report dated 14.12.2010 stating as under: “I invite kind attention to the subject and reference cited, I submit that, in Khanapur Mandal (4) IML A4 shops were notified, there are (3) shops at Khanapur town and (1) A4 shop at Pembi Village it is 18 kms from Khanapur town. All the A4 shops were disposed successfully and running their businesses w.e.f. 1.7.2010 and the IML shop in Pembi is functioning for the last (10) years. In this regard, I submit that I have proceeded to Sathanpally village along with SHO Nirmal and enquired the distance of existing IML shops at Khanapur and the distance between Sathanapally and Khanapur is about 4.5 kms only. The existing Licensees i.e., G.No.68, 69 & 70 are having a License fees of Rs.76,00,000-00, 76,50,000-00 and Rs.90,00,000-00 respectively and if the A4 shop is notified to Sathanapally from Pembi, clearly effect the business of Khanapur IML shop and problem may arise in payment of huge installments. Earlier the Licensee of Pembi is tried to shift the A4 shop to Tarlapad which is 2.5 kms from Khanapur and the Licensee of Khanapur and the Licensees of Khanapur A4 shops knowing this lodged an objection. Now the same Licensee of Pembi A4 shop represented for shifting to Sathanapally and this is also clearly effect the business of Khanapur A4 shops. I further submit that the Licensee of A4 shops of Khanapur villagde in their representation dated 13.12.2010 stated that they have obtained A4 shops bidding for more than 2 times of Upset price and Licensee of Pembi shop with a mala fide intention is trying to shift A4 shop from Pembi to Sathanpally which clearly effects their business and except this he has no reason for shifting his shop.” Thus the Assistant Prohibition & Excise Superintendent recommended for rejection of shifting of the 5th respondent’s licensed premises from Pembi to Sathanapally. However without referring to the said report, dated 14.12.2010 the 2nd respondent granted permission to the 5th respondent for shifting of his A-4 shop from Pembi to Sathanapally on the basis of a distance certificate submitted by the 5th respondent himself along with his representation dated 15.11.2010. In the light of the above said facts borne out of the record, Sri D. Prakash Reddy, the learned Senior Counsel appearing for the petitioners, vehemently contended that the impugned order which was passed by the 2nd respondent without application of mind to the relevant factors amounts to arbitrary exercise of power and therefore the said order cannot be sustained under law. On the other hand, Sri P. Venugopal, the learned counsel appearing for the respondent No.5 contended that the impugned order being a discretionary administrative order does not warrant interference by this Court in exercise of the writ jurisdiction under Article 226 of the Constitution of India. It is also contended that even assuming that the shifting of the 5th respondent’s licensed premises from Pembi to Sathanapally would result in loss of business to the petitioners who are the existing licensees at Khanapur village, the same cannot be a valid ground for refusing the 5th respondent’s request for shifting of his licensed premises. The learned Government Pleader for Prohibition & Excise while seeking to justify the impugned order dated 29.12.2010 passed by the 2nd respondent further submitted that since the Revision Petition preferred by the petitioners against the said order is pending before the 1st respondent, the interference by this Court is not warranted at this stage. Rule 29 of the Rules reads as under: “29. Sale permitted at the licensed premises only:- (1) The lease holder shall sell the liquor only at the premises specified in the licence. (2) No change or alteration of the licensed premises shall be made nor the licensed premises shifted elsewhere. (3) Shifting of the licensed premises may be permitted for valid reasons and subject to conditions as may be specified by the Commissioner of Prohibition & Excise subject to payment of Rs.10,000/-.” As could be seen, sub-rule (3) which empowers the Commissioner of Prohibition & Excise to permit shifting of the licensed premises is an exception to Rule 29 (1), according to which the leaseholder shall sell the liquor only at the premises specified in the licence. It is also relevant to note that shifting of the licensed premises under Rule 29 (3) is permissible only for valid reasons, but not as a matter of course. A perusal of the impugned order dated 29.12.2010 shows that though there was a reference to the report of the Deputy Commissioner of Prohibition & Excise, dated 3.11.2010 wherein it was stated that the proposed shifting of the 5th respondent’s licensed premises to Sathanapally would effect the business of the A-4 shops at Khanapur village since the distance between Sathanapally and Khanapur was only 4.5 kms., ignoring the said report the 2nd respondent had chosen to grant permission for shifting on the basis of the distance certificate given by the Assistant Executive Engineer, R & B Department. In fact, even as per the said certificate of the R & B Department which was submitted by the 5th respondent himself along with his application, the distance between Sathanapally village and Khanapur village was 10 kms. when it is measured through R & B road. The specific case of the petitioners that apart from R & B road, other roads are existing between Khanapur and Sathanapally could not be disputed by the respondents. Therefore it is un-understandable as to how the 2nd respondent relied upon the certificate produced by the 5th respondent showing that the distance through R & B road is 10 kms. No reason is forthcoming as to why the 2nd respondent did not take into consideration the report of the Prohibition & Excise Superintendent, dated 14.12.2010, wherein it was clearly stated that the distance between Sathanapally and Khanapur was about 4.5 kms. So far as the other reason upon which the 2nd respondent granted permission i.e., the protest of Local Mahila Sangham at Pembi is concerned, it is to be noticed that except the plea of the petitioner in his representation, no material is available before the 2nd respondent to substantiate the so-called protest of Local Mahila Sangham at Pembi. As a matter of fact, the report of the Assistant Prohibition & Excise Superintendent, dated 14.12.2010 as well as the earlier report of the Prohibition & Excise Superintendent, Adilabad, dated 3.11.2010 revealed that the said A-4 shop at Pembi has been in existence for the past 10 years. For the aforesaid reasons, I find force in the submission of the learned Senior Counsel for the petitioners that the order dated 29.12.2010 which was passed without taking into consideration the two adverse reports dated 14.12.2010 and 3.11.2010 suffered from the vice of non-application of mind to the relevant factors. Therefore, the impugned order is liable to be set aside on that ground alone. So far as the contention of the learned counsel for the 5th respondent that the petitioners have no locus to invoke the jurisdiction of this Court under Article 226 of the Constitution of India is concerned, as observed in M.S. JAYARAJ v. COMMISSIONER OF EXCISE[1] a much wider concept is being adopted by the Courts regarding a person’s entitlement to move the High Court invoking the writ jurisdiction. In the said decision, in view of the finding that the order of the Excise Commissioner was passed in violation of law it was held by the Supreme Court that in the light of the expanded concept o f locus standi, it would not be proper to reject the writ petition solely on the ground of locus standi. In fact, in the present case the petitioners have been granted licenses to run A-4 shops at Sathanapally Village on payment of license fee of Rs.76 Lakhs, Rs.76,50,000/- and Rs.90 Lakhs respectively and it is their case that if the 5th respondent’s shop is shifted to Sathanapally it would effect their business and it would be difficult for them to pay the huge installments. It is also relevant to note that as per the provisions of The Andhra Pradesh Excise (Lease of Right of Selling by Shop and Conditions of Licence) Rules, 2005 the number of licenses to be granted have to be fixed by the Commissioner of Prohibition & Excise duly notifying the area/locality and thereupon the tenders would be invited from the intending tenderers for grant of lease. The high prices quoted by the petitioners in respect of the shops at Khanapur are undoubtedly on the basis of the location of their shops as well as the distance between the other shops that were notified in the area/locality. Since the change of location of any of the notified shops will adversely affect the business of the other shops situated in the area/locality, the petitioners certainly have locus to challenge the permission granted for shifting of any of the notified shops. Hence I do not find any substance in the contention raised by the learned counsel for the 5th respondent that the petitioners have no locus to maintain the writ petition. It is true that the revision petition filed by the petitioners against the order dated 29.12.2010 is pending before the 1st respondent as of today. However the pendency of the said revision petition in my considered opinion is immaterial and does not operate as a bar to exercise the jurisdiction under Article 226 of the Constitution of India since it is evident from the material placed before this Court that the 2nd respondent had failed to properly exercise the discretion conferred under Rule 29 (3) of the Rules. As expressed above, this is a case where the 2nd respondent had not only failed to apply his mind to the relevant factors as well as the objections raised by the petitioners but also arrived at an erroneous conclusion solely on the basis of a certificate said to have been issued by the R & B Department stating that the distance between Sathanapally and Khanapur was 10 kms. For the aforesaid reasons, the impugned order dated 29.12.2010 is hereby set aside. Consequently, the cause in the Revision proceedings pending before the 1st respondent does not survive and the said Revision shall stand dismissed as infructuous. Accordingly, W.P.No.587 of 2011 is hereby dismissed and W.P.Nos.92 and 1126 of 2011 are allowed with a direction to the 2nd respondent to reconsider the request of the 5th respondent in the light of the observations made above and pass appropriate orders afresh in accordance with law within four weeks from the date of receipt of this order. No costs. ______________ G. ROHINI, J. Dt. 28.09.2011 gbs [1] (2000) 7 SCC 552