THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.9985 of 2010 (Dated : 21-06-2010) Between: D.Narasimhulu Goud S/o Jangaiah Goud R/o Kondurgh Village and Mandal, Mahabubnagar District …Petitioner A n d The State of A.P., rep. By its Secretary, Revenue (Excise) Dept., And others …Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.9985 of 2010 ORDER: This writ petition has been filed by D.Narasimhulu Goud with a prayer to issue a writ, order or direction, more particularly one in the nature of Mandamus declaring the proceedings of the Deputy Commissioner, Prohibition & Excise, Mahabubagar in Cr.No.A/79/2010 dated 12.4.2010 confirming the order of the Prohibition and Excise Superintendent, vide Procs. Rc.No.A1/831/2007 dated 24.12.2009 in canceling license of the Toddy Toppers Co-operative Society, Kondurgh Village and Mandal as arbitrary and illegal. 2. D.Narasimhulu Goud has sworn to the affidavit filed in support of the petition. He claims to be the member of Toddy Toppers Co-operative Society, Kondurgh. Licence has been granted to Toddy Toppers Co-operative Society, Kondurgh and it is valid up to 30.09.2012. The Excise officials inspected the Toddy Toppers Co- operative Society and found some adulteration in toddy on 30.4.2009. Basing on the said allegation, license issued in favour of Toddy Toppers Co-operative Society was cancelled. Questioning the said order, the petitioner filed W.P.No.883 of 2010. The said writ petition came to be disposed of on 29.7.2010. The relevant portion of the order reads as follows:- “ In the light of the facts and circumstances, especially in the light of the language of Rule 39 of the A.P.Excise (Grant of Licence to sell toddy, condition of license and tapping of Excise Trees) Rules, 2007 liberty is given to the petitioner to prefer an appeal before the appellate authority- the Deputy Commissioner, Prohibition and Excise, Mahabubnagar District and in the light of the peculiar facts, the proceedings in Rc.No.A1/831/07 dated 24/12/2009 issued by the second respondent- Superintendent of Prohibition and Excise, Mahabubnagar is hereby suspended for a period of two (2) weeks”. 3. Pursuant to the liberty given to the petitioner, the petitioner filed an appeal before the Deputy Commissioner of Prohibition & Excise under Section 63(1) of A.P.Excise Act, 1968. The appellate authority, on reappraisal of the material brought on record, proceeded to dismiss the appeal by order dated 12.4.2010. The relevant portion of the order reads as hereunder:- “ The appellant contended that, the respondent ought to have give the benefit of Rule 39 of A.P.Excise (Grant of Licence to Sell Toddy, Conditions of Licence and Tapping of Excise Trees) Rules, 2007, either by directing the members to constitute another body to the Society or in the alternative should have nominated the body by disqualifying the earlier Managing Committee Members and in such an event, no prejudice would have caused to the appellant or similarly situated other members who were admittedly not involved in any of the malpractices. However it is open to the Appellant to utilize the provisions of Rule 39 of A.P. Excise (Grant of Licence to sell Toddy, Conditions of Licence and Tapping of Excise Trees) Rules 2007 by making representation to the respondent. It is also seen from the connected records that, on 30-4-2009 the STF officials have drawn toddy samples in the licensed premises of the appellant toddy shop in the presence of mediators and vendor duly following the procedure. The Government Chemical Examiner for Prohibition & Excise Laboratory, Hyderabad has opined vide C.E.report No.4227/2009/3 dated 8-10-2009 that the sample is fermented toddy adulterated with Diazepam which is injurious to public health and the Appellant’s society has contravened Rule 16 of A.P.Excise (Grant of Licence to sell Toddy conditions and tapping of Excise Trees) Rules 2007. The respondent also issued cancellation orders dated 24-12-2009 duly serving the Show Cause Notice duly following the procedure and the then President, TCS Kondurgh has failed to reply to the Show Cause Notice. I do not find any valid reason in interfering in the cancellation orders issued by the respondent vide his Rc.No.A1/831/07 dated 24-12-2009. Hence the appeal is dismissed.” 4. The petitioner filed this instant writ petition assailing the order passed by the appellate authority, vide Cr.No.A/79/2010 dated 12.4.2010. 5. When the writ petition came up for admission, learned Government Pleader for Prohibition and Excise takes notice on behalf of the respondents. 6. Heard learned counsel appearing for the petitioner and learned Government Pleader for Prohibition and Excise appearing for the respondents. 7. Learned counsel appearing for the petitioner submits that there is a change of the management of the society and in which case, new management of the society is entitled to claim the benefit of the 1st proviso to Rule 39 of the Andhra Pradesh Excise (Grant of Licence to sell toddy, conditions of Licence and Tapping of Excise Trees) Rules, 2007 (for short, “the Rules”). 8. Learned Government Pleader for Prohibition & Excise appearing for the respondents submits that it is for the petitioner to make a representation to the Commissioner of Prohibition & Excise, and thereupon, the Commissioner has to consider the representation of the new managing committee. In view of the contentions advanced by the learned counsel appearing for the parties, I deem it appropriate to extract Rule 39 of the Rules, which reads as hereunder:- “39. Cancellation of Licence:-In case of cancellation of licence for default of payment of any dues, the order of cancellation of licence of the shop(s) may be revoked by the Collector after satisfying himself that the defaulter has paid the entire dues together with interest payable thereon as per rules.: Provided that if the licensee of toddy shop of Toddy Co-operative Societies is found indulging in adulteration, for the first time, the members of managing committee will be disqualified and removed from the primary membership and the society may be continued with eligible tapper/members by imposing fine as prescribed by the Commissioner of Prohibition & Excise: Provided further that if the licensee of toddy shop of a TCS is found indulging in adulteration for Second time the toddy shop licence shall be cancelled after following due procedure. In case there are any eligible tappers in such society after cancellation of shop licence of Tappers Co-operative Society, licences may be granted under tree for tappers scheme and the members of the managing committee will be disqualified in getting any licence under these rules. In case of Tree for tappers scheme, when a licence is cancelled due to adulteration, the tapper shall be disqualified in getting a licence in future or becoming a member of any Tappers Co- operative Society”. 9. It is explicit from the 1st proviso to Rule 39 of the Rules that the Commissioner, Prohibition and Excise, is competent to impose penalty and permit the new management to continue the licence of the society. 10. In that view of the matter, the writ petition is disposed of permitting the petitioner to make an application to avail the benefit of 1st proviso to rule 39 of the Rules within a week and thereupon, the Commissioner, Prohibition and Excise shall consider the same and pass appropriate orders within two weeks thereafter. 11. Accordingly, the writ petition is disposed of. No costs. _____________________ B.SESHASAYANA REDDY, J Dt.21-06-2010 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.9985 of 2010 (Dated : 21-06-2010)