IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY NINETH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 14031 of 2008 Between: S. Prabhakar Reddy S/o. Muthyam Reddy Ward No.51, Shop No. 145, Akbar Bagh, Hyderabad. ..... PETITIONER AND 1 Govt. of A.P., rep. by its Secretary, Department of Prohibition and Excise, Secretariat, Hyderabad. 2 The district Collector, Hyderabad 3 the Commissioner of Prohibition and Excise, Govt. of A.P. Hyderabad. 4 The Prohibition and Excise Superintendent, Doolpet, Hyderabad 5 M. Vijayabhaskar Reddy S/o. Muthyam Reddy R/o. 16-11-685 & 686, Gaddiannaram, Dilsukhnagar, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue writ of mandamus of any other appropriate writ declaring the action of the respondents in granting licence to 5th respondent for running retail shop to sell Indian Made/ foreign liquor in Ward No.51 of Akbar Bagh Area, Malakpet, Hyderabad as illegal, arbitrary and against the notiﬁcation dt. 06-06-2008 issued under Rule 5 of A.P. (Lease of right of selling by shop and conditions of licence ) Rule, 2005. Counsel for the Petitioner : MR. A.RAJASEKHAR REDDY Counsel for the Respondents : GP FOR PROHIBITION & EXCISE The Court made the following : THE HON’BLE Ms. JUSTICE G.ROHINI WRIT PETITION No.14031 OF 2008 ORDER: The 2n d respondent herein – Collector & District Magistrate, Hyderabad District, issued a Notice of Auction, dated 6.6.2008 inviting sealed tenders to grant lease of right to sell Indian made foreign liquor/Foreign liquor by shop under Rule 5 of A.P. Excise (Lease of Right of Selling by Shop and Conditions of Licence) Rules, 2005 (for short, ‘the Rules’) for the lease period from 1.7.2008 to 30.6.2010 in respect of 212 shops situated in Hyderabad Revenue District. The writ petitioner was declared as the successful bidder in respect of the shop situated in Ward No.51, Akbar Bagh, notiﬁed at Sl.No.145 of the Auction Notice. Pursuant thereto, he was also issued licence in Form-A4 dated 28.6.2008. While so, the petitioner came to know that the 5th respondent herein was also granted similar licence in Form-A4 in Ward No.51, though he was the successful bidder in respect of Shop No.2 of Saidabad, which was notiﬁed at Sl.No.140 of the Auction Notice. Aggrieved by the same, the present writ petition is ﬁled seeking a declaration that the action of the respondents 1 to 4 in granting licence to the respondent No.5 for running a shop in Ward No.51 of Akbar Bagh Area, Malakpet, Hyderabad is arbitrary, illegal and contrary to the notification dated 6.6.2008 issued under Rule 5 of the Rules and also to declare the auction notiﬁcation dated 6.6.2008 issued by the 2nd respondent insofar as Shop at Sl.No.140 is concerned is wholly illogical, illegal, arbitrary and against the provisions of the A.P. Excise Act and the Rules made thereunder. It is contended by the petitioner that the action of the respondents in granting two licences in Akbar Bagh Area in favour of the petitioner and the 5th respondent ignoring the fact that the said shops were notified in the Auction Notice in diﬀerent locations is illegal. On behalf of the respondents, the Commissioner of Prohibition & Excise, Government of A.P. ﬁled a counter- affidavit stating that since the lease period 2006-08 was coming to an end by 30.06.2008, the 3rd respondent issued administrative instructions vide Cr.No.4572/2008/CPE/G2, dated 02.06.2008 requesting all the Deputy Commissioners and Prohibition and Excise Superintendent of the State to submit the ﬁnal proposals for establishment of ‘A4’ shops for the purpose of conducting auction along with the changes in the location of the existing shops and rationalization of the upset price for approval. Accordingly, all the Station House Oﬃcers of the Dhoolpet Excise Station i.e., the Station House Oﬃcers of Narayanaguda, Malakpet, Dhoolpet and Charminar were directed to submit their reports. Pursuant thereto, the Station House Oﬃcers of Narayanaguda, Malakpet, Dhoolpet and Charminar submitted their reports without change or addition of wards of the existing ‘A4’ shops in their station limits. However, the Station House Oﬃcer of Malakpet vide Cr.No.SPL/2008/MPT, dated 2.6.2008 submitted his report stating that at present only one ‘A4’ shop is functioning in Ward No.51 and there is scope for establishment of another ‘A4’ shop in the said ward. He further reported that at present 6 shops are functioning in Ward No.50 and the distance between the shops is very less. Therefore, it was suggested that Ward No.51 can be added to the Gazette Sl.No.140 in addition to the existing Ward No.50. After duly considering the recommendations of the District Level Oﬃcer, the location of the shop at Gazette Sl.No.140 i.e., Saidabad No.2 was mentioned as Ward No.50/51. Therefore, the successful bidder in respect of Saidabad No.2 at Gazette Sl.No.140 can establish his shop either in Ward No.50 or 51. The 3rd respondent further submitted that a wider area i.e., Ward Nos.50 & 51 was given to Saidabad No.2 shop taking into consideration the number of shops existing in Ward Nos.50 & 51. Therefore, a choice was given to the successful bidder of Saidabad Shop No.2 either to establish his shop in Ward No.50 or 51. Hence, the petitioner cannot object if the successful tenderer in respect of Saidabad No.2 at Gazette Sl.No.140 chooses to establish his shop in Ward No.51. The 5th respondent ﬁled a separate counter- affidavit stating that the licence granted in his favour is in accordance with law and the contention of the petitioner that it is contrary to the locality/area notiﬁed in the auction notice is incorrect and without any basis. I have heard the learned counsel for both the parties and perused the material on record. The learned counsel for the petitioner while pointing out that whereas the locality/area of the shop notiﬁed at Sl.No.140 was shown as Saidabad No.2 with upset price of Rs.49,57,779/-, the locality/area of the shop notiﬁed at Sl.No.145 was shown as Akbar Bagh, with upset price of Rs.73,18,600/-, contended that the diﬀerence in the upset prices stipulated in the auction notice itself shows that the shops at Sl.Nos.140 & 145 pertain to two diﬀerent locations and therefore the action of the respondents 1 to 4 in granting licence to the 5th respondent in Ward No.51 of Akbar Bagh area is irrational and arbitrary. On the other hand, the learned Government pleader for Prohibition & Excise as well as the learned counsel for the 5th respondent submitted that the auction notice clearly disclosed the locality/area where the shops notiﬁed can be established and so far as the shop notiﬁed at Sl.No.140, since the locality/area was shown as Ward No.50/51, the shop can be located either in Saidabad Division or in Akbar Bagh Division. At the outset, it is to be noted that though the locality/area in respect of Sl.No.145 of the Auction Notiﬁcation was shown as Ward No.51, Akbar Bagh, admittedly the locality/area in respect of Sl.No.140 included both Ward Nos.50 and 51. In the column meant for locality/area it was described as Ward No.50/51, Saidabad Shop No.2. Thus, it is clear that the successful bidder in respect of the shop at Sl.No.140 can establish his shop either in Ward No.50 or Ward No.51. Hence, it cannot be said that the notiﬁcation is vague and misleading. Even assuming that there is any ambiguity, it is for the writ petitioner to seek clarification from the Commissioner’s Oﬃce/Collector’s Oﬃce/ Oﬃce of the Prohibition & Excise Superintendent before participating in the auction as speciﬁed in the conditions of auction itself. Having voluntarily participated in the auction without seeking any clariﬁcation, it is not open to the petitioner to question the establishment of a shop in Ward No.51 by the 5th respondent. The petitioner’s challenge to the impugned order on the ground that there was lot of disparity in the upset price ﬁxed for the Shops at Sl.Nos.140 &145 is also devoid of any merit and deserves no consideration. It is true that the shop at Sl.No.140 for which upset price of Rs.49,57,779/- was ﬁxed, fetched the bid amount of Rs.92,72,799/-, whereas the shop at Sl.No.145 for which upset price of Rs.73,18,600/- was ﬁxed, fetched the bid amount of Rs.1,17,99,999-99 ps. However, on that ground it cannot be contended that the shop notiﬁed at Sl.No.140 cannot be located in the same locality/area in which the Shop notiﬁed at Sl.No.145 is located. The upset price is ﬁxed by the 2nd respondent on the basis of the lease amount fetched during the earlier lease period for the respective shops but not on the basis of the location. Similarly, the ﬁxation of the location shall be in accordance with Rule 4 of the Rules. Nothing could be pointed out by the petitioner to show that the ﬁxation of the location/area of the shop notiﬁed at Sl.No.140 as Ward No.50/51 is contrary to Rule 4 of the Rules. Since Sl.No.140 of the Auction Notice referred to both Ward Nos.50 & 51, it is clear that the shop can be located either in Saidabad Division of Ward No.50 or Akbar Bagh Division of Ward No.51. There is no prohibition as such under the Rules to locate more than one shop in a particular locality/area. As per Rule 4 of the Rules, it is the discretion of the Commissioner of Prohibition & Excise to decide the number of shops as well as the location of the shops to be put to auction and also to prescribe the upset price. Absolutely, no case is made out to show that the said discretion exercised by the 3rd respondent in the case on hand in notifying the shop at Sl.No.140 to be located either at Ward No.50 or Ward No.51 is arbitrary or irrational. The further contention raised by the petitioner that since Saidabad does not fall under Ward No.51, the 5th respondent cannot be granted licence in Ward No.51 of Akbar Bagh Area is also without any substance. As explained by the Commissioner of Prohibition & Excise in his counter-aﬃdavit, the auction notice was issued on the basis of the reports/recommendations of the District Level Oﬃcer with regard to the need and feasibility of the changes in the location of the existing shops. Whether Saidabad falls under Ward No.51 or not being a disputed question of fact cannot be gone into and decided by this Court for the purpose of adjudicating the validity of the auction notice dated 6.6.2008. Particularly since the petitioner participated in the auction without raising any objection, he cannot now be permitted to challenge the auction notiﬁcation on that ground after the entire auction process is completed and the licences are granted to the successful bidders. For the aforesaid reasons, the Writ Petition is devoid of any merit and the same is hereby dismissed. Needless to mention that the interim order dated 14.7.2008 shall stand vacated. No costs. _____________ G. ROHINI, J. Dt. 29.09.2008 gbs