THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY Writ Petition No.7589 of 2009 Dated 20th April, 2011 Between: Gaineni Rajan …Petitioner And The Commissioner, Prohibition & Excise, Nampally, Hyderabad and others …Respondents Counsel for the petitioner: Sri A.Ravinder Counsel for respondents: AGP for Prohibition & Excise The Court made the following: ORDER: At the interlocutory stage, the writ petition is taken up for hearing and disposal with the consent of the learned counsel for the parties. I have heard Sri A.Ravinder, learned counsel for the petitioner, and the learned Assistant Government Pleader for Prohibition & Excise representing the respondents. The petitioner is a licencee for running a bar and restaurant at Hunter Road, Hanamkonda. On 04.04.2009, at around 8.00 pm, eight customers allegedly requested the petitioner to supply liquor to room Nos.104 and 106 of Hotel Raj, which also belongs to the petitioner. Accordingly, on the alleged instructions of the petitioner, a full bottle of whisky of Signature brand, along with three glasses, and another full bottle of whisky of Mc.Dowell brand with five glasses were supplied to room Nos.104 and 106. It is further alleged that the customers have consumed the liquor till around 10.00 pm and left 90 ml in each of the two bottles unconsumed. On these allegations, proceedings were initiated for cancellation of the petitioner’s licence by respondent No.2, vide his show-cause notice in Cr.No.743/2006/PE/B2-2, dated 07.04.2009. Simultaneously, he has suspended the petitioner’s bar and restaurant licence pending enquiry for the alleged violation of Section 36(c) of the A.P.Excise Act, 1968 (for short ‘the Act’) and Rule 4 of the A.P.Excise (Grant of Licence of Selling by Bar and Conditions of Licence) Rules, 2005 (for short ‘the Rules’). This order is assailed in this writ petition. This Court by order, dated 09.04.2009, granted interim suspension of the impugned order. A vacate stay petition has since been filed. At the hearing, Sri A.Ravinder, learned counsel for the petitioner, advanced three contentions, namely, (1) that respondent No.2 being the appellate authority, he ought not to have exercised the power of the licencing authority, (2) that no prior notice was issued by respondent No.2 before suspending the licence and (3) that the order of suspension was made on the directions of the District Election Officer and Collector, Warangal vide proceedings, dated 06.04.2009. The learned Assistant Government Pleader for Prohibition & Excise opposed the above contentions and submitted that respondent No.2 is competent to grant the privilege of bar and the Excise Superintendent is only empowered to issue licence. She further stated that there is no requirement of a prior notice, as the order of suspension was passed pending enquiry and not as a substantive penalty. She also submitted that there is nothing on record to show that respondent No.2 has acted on the directions of the District Election Officer and Collector, Warangal. I have carefully considered the respective submissions of the learned counsel. With respect to the first contention of the learned counsel for the petitioner, as rightly pointed out by the learned Assistant Government Pleader, under Rule 11 of the Rules, the Commissioner of Prohibition & Excise shall be competent to grant the privilege of bar, and the Prohibition and Excise Superintendent shall issue the licence in the prescribed form. In my opinion, issue of licence is only a ministerial act followed by grant of privilege by respondent No.2. Therefore, in legal sense, it is respondent No.2, who shall be treated as the licencing authority. Therefore, I do not find any merit in the submission of the learned counsel for the petitioner that respondent No.2 is denuded of his jurisdiction to suspend the petitioner’s licence. Even assuming that the Excise Superintendent is the licencing authority, undoubtedly respondent No.2 is the superior authority to him. Unless the statute prohibits, the superior authority can always exercise the power of subordinate authority except in cases where by such exercise, the aggrieved party is denied the right of appeal. It is not in dispute that under Section 63(2) of the Act, any person aggrieved by the order passed by the Deputy Commissioner or Collector may within 60 days from the date of its communication may appeal to the Commissioner. The right of the petitioner to file an appeal is well preserved. As such, I am not inclined to accept the first submission of the learned counsel for the petitioner. As regards the second contention, under Section 31 of the Act, the competent authority is vested with the power to cancel or suspend the licence. By construing this provision, a Full Bench of this Court in Tappers Cooperative Society, Maddur v. Superintendent of Excise, Mahaboobnagar[1], held that issuance of prior notice is necessary only in case of order of suspension passed as a measure of substantive penalty and that no such notice is required in case of an order passed pending enquiry. Therefore, there is no legal requirement for a prior notice for suspension of the petitioner’s licence pending enquiry. Whether the order of suspension was warranted on the allegations made on the facts of the case or not can only be adjudicated by the appellate authority, if an appeal is preferred against the order of suspension. Since there is a right of appeal for the petitioner to question the order of suspension, I do not find any reason whatsoever for entertaining this writ petition. Ordinarily, this Court does not entertain the writ petitions and adjudicate the disputes raised therein on merits wherever the aggrieved party has an effective alternative remedy available for questioning the orders passed against it. In the instant case, I do not find any reason for the petitioner to bypass the remedy of appeal and filing the present writ petition. Even though the learned counsel for the petitioner submitted that the impugned order contains a reference to the proceedings, dated 06.04.2009, of the District Election Officer and Collector, Warangal, there is nothing on record to show that he has given direction to suspend the petitioner’s licence. Even if such a direction was given affecting the validity of the impugned order, the appellate authority is entitled to set aside such order if it is convinced that respondent No.2 has not exercised his power by independent application of his mind. For the above-mentioned reasons, I am not inclined to adjudicate the writ petition on merits. The writ petition is accordingly dismissed with liberty to the petitioner to avail the remedy of appeal before the appellate authority. To enable him to do so, the interim order, dated 09.04.2009, shall be continued for a period of one month from today. As a sequel to dismissal of the writ petition, W.P.M.P.No.9966 of 2009 and W.V.M.P.No.3079 of 2009 are disposed of as infructuous. C.V.NAGARJUNA REDDY, J 20th April, 2011 VGB [1] 1984 (2) APLJ 1