IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTIETH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 23056 of 2008 Between: Toddy Tapper Cooperative Society (Regd. No. 651/T.H) Datharpally, Post Datharpally Mandal, Yadagirigutta District, Nalgonda, Rep. by its President R. Shankaraiah ..... PETITIONER AND 1 The Government of Andhra Pradesh Rep. by its Principal Secretary Department of Revenue (Excise-II) Secretariat, Hyderabad. 2 The Commissioner of Excise, Excise Bhavan, Opp. Exhibition Grounds, Nampally, Hyderabad. 3 The Superintendent of Excise & Prohibition Excise Department, Nalgonda, Nalgonda District. 4 Bairagani Prakash S/o. B. Naraiah R/o. Vikalangula Colony, Yadagirigutta, Nalgonda District. 5 Tholpunoori Muthyalu S/o. T. Ramaswamy R/o. Vikalangula Colony, Yadagirigutta, Nalgonda District. 6 Pala Dhashartha S/o. Mallaiah R/o. Pata (Old ) Gutta, Post: Datharpally Mandal, Yadagirigutta, Nalgonda District. 7 Budigi Ravi S/o. B. Sambaiah R/o. Gollagudiselu, Post: Datharpally Mandal, Yadagirigutta, Nalgonda District. 8 Panjala Srisailam S/o. P. Mallaiah R/o. Gollagudiselu, Post: Datharpally Mandal, Yadagirigutta, Nalgonda District. 9 Panjala Raju S/o. P. Mallaiah R/o. Gollagudiselu, Post: Datharpally Mandal, Yadagirigutta, Nalgonda District. 10 Panjala Pochaiah S/o. P. Aagaiah R/o. Gollagudiselu, Post: Datharpally Mandal, Yadagirigutta, Nalgonda District. 11 Pala Sathaiah S/o. P. Lingaiah R/o. Gollagudiselu, Post: Datharpally Mandal, Yadagirigutta, Nalgonda District. 12 Katkuri Venkataiah S/o. Sathaiah R/o. Gollagudiselu, Post: Datharpally Mandal, Yadagirigutta, Nalgonda District. .....RESPONDENTS 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 to issue an appropriate writ or direction particularly one in the nature of writ of Mandamus declaring the action of the 3rd Respondent in issuing the T.F.T. License No. 136/2008/E dt. 6-10-2008 to the 4th Respondent and other unofficial respondents No. 5 to 12 as illegal, arbitrary capricious and in violation of rules framed by the 1st Respondent Government as well as in violation of Art. 14 & 21 of the Constitution of India in the interest of justice and fair play. Counsel for the Petitioner:MR.V.NARASIMHA GOUD Counsel for the Respondent No.: GP FOR PROHIBITION & EXCISE The Court made the following : THE HON’BLE MS JUSTICE G.ROHINI W.P.NO.23056 of 2008 ORDER The petitioner is a Toddy Tapper Cooperative Society registered under the A.P. Cooperative Societies Act,1964 on 17.08.1965. It is stated that the members of the society included the residents of Datharpally village as well as its hamlet Gollagudiselu, which is situated within a half-a-kilometer from Datharpally. It is claimed that from the date of registration the petitioner-society was holding a TCS licence and toddy trees spread over the territorial land of Datharpally village and its hamlet Gollagudiselu were being allotted for tapping. It is also claimed that as per the latest renewal dated.03-10-2007 the licence in favour of the petitioner is valid for a further period of five years up to 30-09-2012 and accordingly the trees allotted to the society are being tapped by its members. While so, on 15-10-2008 it was found that the 6th respondent herein who is a resident of Patagutta village and not a member of the petitioner-society was tapping the trees allotted to the petitioner-society. Since the members of the petitioner-society could not restrain him from tapping, they were constrained to lodge a complaint with the Yadagiriutta P.S. During the enquiry, it was revealed that the 3rd respondent granted Tree For Tapper (TFT) licences dated.06.10.2008 to the respondents 4 to 12 to establish shops at Gollagudiselu village. Aggrieved by the same this writ petition is filed seeking a declaration that the action of the 3rd respondent-Superintendent of Excise & Prohibition, Nzalgonda in issuing T.F.T. licences dated.06-10- 2008 to the respondents 4 to 12 as arbitrary, illegal apart from being in violation of Articles 14 and 21 of the Constitution of India. While claiming that the toddy trees allotted to the petitioner-society are spread over not only in the village of Datharpally but also its hamlet Gollagudiselu, it is contended by the petitioner that no fresh TFT licence can be granted in Gollagudiselu particularly without giving an opportunity to the petitioner-society to raise their objections. It is also contended that since the statutory Rules permit grant of licence either under TCS system or TFT system and the petitioner is already holding a TCS licence for Datharpally village and its hamlet Gollagudiselu, there cannot be any further TFT licence in favour of the respondents 4 to 12. In the counter-affidavit filed by the 3rd respondent-Prohibition and Excise Superintendent, Nalgonda, it is stated that as per TCS licence dated.3-10-2007 granted to the petitioner-society ration of 1250 trees in terms of Sendhi trees situated in the tope of Datharpally village has been fixed. The plea of the petitioner that Gollagudiselu is a hamlet of Datharpally village has been specifically denied and it is stated that the distance between Datharpally and Gollagudiselu is 2.20 k.m as per the certificate issued by the Assistant Engineer, Panchayat Raj of Yadagirigutta. The plea of the petitioner-society that it was allotted about 730 to 750 trees of toddy which were spread over the territorial land of Gollagudiselu has also been denied and it is stated that as per the licence the ration fixed for the petitioner-society is 1250 trees and all the said trees are situated in the tope of Datharpally village. It is further stated that as per the provisions of A.P. Excise (Grant of Licence to Sell Toddy, Conditions of Licence and Tapping of Excise Trees) Rules, 2007 (for short “Toddy Rules, 2007”) read with administrative instructions dated.19-09-2007 issued by the Commissioner, Prohibition and Excise, Hyderabad new shops can be sanctioned depending on the requirement and availability of trees within 50 Kms and for sanctioning for such new shops preference should be given to TFT. The instructions further provided that TFT shops shall be given in rural areas and minimum distance of 2 KM from an existing shop shall be observed while proposing a new toddy shop. Sofar as the respondents 4 to 12 are concerned, it is explained that they applied for grant of licence under the TFT scheme as per the Toddy Rules,2007 and pursuant thereto the SHO Aler conducted an enquiry and found that though the respondents 4 to 12 were initially members of the petitioner-society they submitted their resignations on 05-10-2007 and that they were genuine tappers. It was also found that 30 Sendhi Trees and 100 Toddy trees were available in Gollagudiselu for tapping and there was no toddy shop allotted within a radius of 2 K.M. Having considered the said report submitted by the SHO, Aler, necessary proposals were sent to the 2nd respondent and the same were accepted according permission for sanction of new TFT licences at Gollagudiselu village. Accordingly licences were granted to the respondents 4 to 12 and two others on 06- 10-2008. As per the said licence a ration of 163 trees in terms of Sendhi is to be shared equally by the TFT holders from the tope situated in Gollagudiselu village. It is further made clear that by virtue of said TFT licence the ration fixed to the petitioner-society in the tope of Datharpally has not been disturbed and that all the trees allotted to the respondents 4 to 12 are situated in the tope of Gollagudiselu. Thus it is contended that the impugned action of the 3rd respondent is in accordance law and at any rate since no prejudice is caused to the petitioner-society by grant of impugned TFT licences, the interference by this Court is not warranted. A separate counter-affidavit has been filed by the respondents 4 to 12 on the same lines contending that the licences were granted in their favour by the 3rd respondent after being satisfied as to their eligibility and the said licences are in accordance with law. I have heard the learned counsel for both the parties and perused the material on record. It is to be noted that A.P. Excise (Grant of Licence to Sell Toddy, Conditions of Licence and Tapping of Excise Trees) Rules, 2007 are made under G.O.Ms.No.1228, Revenue (Excise.II) dated.09.09.2007 thereby superceding different sets of Rules that were in force earlier. Having regard to the new Rules issued w.e.f 09-09-2007 the petitioner- society was granted a fresh TCS licence dated.03-10-2007 in Form.TS- 1 under Rule.5(4) of the Toddy Rules,2007 for retail sale of toddy for the period from 03-10-2007 to 30-09-2012 at Datharpally village, Nalgonda District in the premises the boundaries of which were specified there under. At the outset, it is to be noted that the licence dated.03-10-2007 granted to the petitioner-society is a fresh licence under the new Toddy Rules,2007 and it is not a renewal of the TCS licence held by the petitioner-society earlier. The specific case of the licensing authority (3rd respondent) is that as per the licence dated.03.10.2007 the ration fixed for the petitioner-society is 1250 trees, which are situated in the tope of Datharpally village. The petitioner could not place before this Court any material to contradict the same except pleading that Gollagudiselu is a hamlet of Datharpally village and as per the licence held by the society from the year 1965 which was renewed from time to time the petitioner-society was being allotted toddy trees spread over in both Datharpally and Gollagudiselu villages and that the members of the petitioner-society were tapping the same. Even assuming that the trees allotted to the petitioner-society under the old licence were spread over the villages of both Datharpally and Gollagudiselu since the said licence admittedly ceased to be in operation and as per the new licence dated.03-10-2007 the petitioner- society is granted ration of 1250 trees situated in Datharpally village only, the contention of the petitioner that no TFT licence can be granted in respect of trees in Gollagudiselu is untenable. A combined reading of Rules 3, 4 and 5 of Toddy Rules,2007 shows that under the Form TS.1 licence, the licensee is granted the right to sell toddy by assigning the toddy shops for a specific period. The said licence can be assigned either to Tappers Cooperative Society or to an individual tapper under Tree For Tappers Scheme. There is absolutely no provision under the Toddy Rules,2007 which prohibits grant of TCS licence to a Cooperative society as well as a TFT licence to an individual tapper in the same village. As could be seen the number of trees allotted to the licensee and the name of the tope shall be specified apart from specifying the name or locality of a shop or group of shops which sell toddy in the area. Though there is no specific provision under the Toddy Rules.2007 with regard to the distance to be maintained between two licensed shops, as per the instructions issued by the Commissioner of Prohibition and Excise dated.19-09-2007 it is permissible to grant TFT licences in rural areas maintaining a minimum distance of 2 K. from an existing shop. In the instant case the Assistant Engineer, Panchayat Raj Yadagirigutta Mandal issued a certificate stating that the distance between Datharpally and Gollagudiselu village is 2.2 K.M. Admittedly the licence granted infavour of the petitioner-society is to establish the toddy shop for sale of toddy in a premises situated in Datharpally village. It is categorically stated in the counter-affidavit filed by the 3rd respondent that the distance between the petitioner’s licenced shop and the TFT shops of respondents 4 to 12 is more than 2 K.M and that all the trees allotted to the petitioner-society for tapping are situated in Datharpally village only. It is also specifically pleaded that the ration fixed to the petitioner-society is not disturbed in any manner shat-so-ever by granting the TFT licences in favour of the respondents 4 to 12. However, the petitioner filed an affidavit in reply disputing the statement of the 3rd respondent that the TFT shops in respect which the respondents 4 to 12 were granted licences are at a distance of more than 2 K.M from the petitioner’s licenced shop. Pursuant to the order of this Court dated.04-12-2008 in WPMP No.34512 of 2008 appointing an Advocate Commissioner to measure the distance between the shop of the petitioner-society and the shop of the unofficial respondents, a report was filed by the Advocate Commissioner before this Court dated.12-01- 2009 stating that TFT shops of the respondents 4 to 12 are situated within 2 K.M from the petitioner’s licenced shop. Such a disputed question of fact cannot be enquired into by this Court in exercise of writ jurisdiction under Article.226 of the Constitution of India and therefore I am not inclined to express any opinion as to the correctness of the rival claims made by the parties on the said issue. It is also relevant to note that an alternative remedy of appeal is provided under Section.63 of A.P Excise Act,1968 and if aggrieved it is always open to the petitioner to challenge the grant of licences in favour of the respondents 4 to 12 by working out the remedy of appeal in which event all the disputed questions of fact can be gone into by the appellate authority. The learned Government pleader for Prohibition and Excise also pointed out that under Rule 47 of the Toddy Rules,2007 it is always open to the licensee to bring to the notice of the Prohibition and Excise Superintendent or Deputy Commissioner with regard to the dispute relating to allotment of excise trees if any and if any such intimation is made necessary enquiry will be conducted and appropriate orders will be passed. Having regard to the afore said reasons and particularly keeping in view the specific plea in the counter-affidavit that the ration allotted to the petitioner-society is in no way affected by virtue of fresh TFT licences granted to the respondents 4 to 12 in Gollagudiselu village the interference by this Court in exercise of writ jurisdiction under Article. 226 is unwarranted. However, incase the petitioner is disputing the factual position either on the ground of distance between the existing shop and the new shop or on the ground of overlapping of the trees allotted to the licensees it is open to the petitioner to work out the remedy of appeal as available under Section.63 of the A.P. Excise Act,1968. Subject to the above observation the writ petition is dismissed. No costs. --------------- G.ROHINI,J 20th March 2009 *TSNR