HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 13970 OF 2011 . DATED 29th July, 2011. BETWEEN Toddy Tappers Cooperative Society, Nizampet, Nizampet (Village), Narayankhet Mandal,Medak District, Rep. By its President Mr.Yella Goud …Petitioner And The Deputy Commissioner of Proh & Excise, Govt. of AP, Sangareddy Division, At Sangareddy,Medak and ors. ….Respondents. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 13970 of 2011 ORDER: The petitioner, Toddy Tappers Co-operative Society, Nizampet Village, Narayankhed Mandal, Medak District, represented by its President, calls in question the order in Cr.No.B1/95/2011 dated 05.05.2011 issued by the Prohibition and Excise Superintendent, Sangareddy, Medak Distict, the second respondent herein, whereby the licence granted in favour of the petitioner was cancelled, as illegal, arbitrary and against the principles of natural justice. It is the case of the petitioner that licence bearing No.5 dated 24.10.2007 was granted in his favour for the sale of toddy for the period from 01.10.2007 to 30.09.2012 and that the members of the petitioner society are eking out their livelihood by way of tapping and selling pure toddy. While so, it is the case of the petitioner that the second respondent suspended his licence by order dated 18.04.2011 basing on an inspection conducted on 15.02.2011 by the third respondent in his shop when he found that the toddy was adulterated and samples were drawn and sent to the Chemical Examiner of Regional Excise Laboratory of Excise Department; and that a show cause notice was issued calling upon him to show cause as to why his licence for the rest of the lease period should not be cancelled to which the petitioner submitted his explanation dated 28.04.2011. Dissatisfied with the explanation offered by the petitioner, the second respondent cancelled the petitioner’s licence for the rest of the lease period on the ground that the report of the Chemical Examiner proved beyond doubt that the licencee has indulged in selling adulterated toddy with chloral hydrate. Hence, the writ petition. It is also the case of the petitioner that at the scene of offence the toddy was found free from adulteration and chloral hydrate was absent but to get over the same an allegation is made that toddy was mixed with diazepam and that the said allegation is incorrect. He stated that the third respondent did not inspect his licenced premises and no samples were drawn from the counter in his presence and no papers are furnished to him; and that the alleged drawal of samples and the so-called inspection are contrary to Rule 27 of the Andhra Pradesh Excise ( Grant of Licence to Sell toddy, Conditions of Licence and Tapping of Excise Trees) Rules, 2007. He also stated that the vendor/accused No.1 is no way connected to the petitioner society and that he has not violated or contravened any rules. He therefore sought that an enquiry be conducted by affording him an opportunity to participate therein to examine the panch witness, investigating officer and the accused vendor in order to prove his innocence in the matter. It is his further case that he came to know about the alleged drawal of samples on 29.03.2011 and he immediately made an application for sending second sample to an independent laboratory by enclosing a demand draft for requisite fee but the third respondent rejected his application on the premise that the same is belated. It is stated that challenging the order of suspension and issuance of show cause notice the petitioner filed two writ petitions before this Court in WPSR Nos.70321 and 70323 of 2001 on 30.04.2011 and the same are stated to be pending. While things stood thus, the impugned cancellation order came to be issued by the third respondent. Denying the above allegations, the second respondent filed a counter affidavit on his behalf as well as the first and third respondents. It is averred that against the order of cancellation an effective and efficacious remedy of statutory appeal is provided under Section 63 of the Andhra Pradesh Excise Act, 1968 (for short ‘the 1968 Act’) and that without availing and exhausting the statutory appellate remedy the petitioner straightaway approached this Court and on that ground alone the writ petition is liable to be dismissed in limine. On facts, it is averred that the third respondent inspected the toddy shop of the petitioner on 15.02.2011 and found one person, namely P.Sailu, sitting on the sale counter and conducting sale of toddy and on demand he produced a copy of licence bearing No.5 dated 24.10.2007 issued by the second respondent which is valid upto 30.09.2012 and that on verification the third respondent found the boundaries of the shop vis-à-vis copy of the licence tallied. On suspicion, panchanama was conducted and samples were drawn and a case was registered in COR No.400/2010-11 under Rule 27(1) of the 2007 Rules. Thereafter, the third respondent deposited the samples in the concerned Court and one of the samples was sent to the Government Chemical Examiner, Regional Prohibition and Excise Laboratory, Nizamabad and his report dated 22.03.2011 was received wherein it is stated that the sample was fermented toddy adulterated with chloral hydrate. Thereafter, the petitioner’s licence was initially suspended and show cause notice was issued to him calling upon to show cause as to why his licence should not be cancelled. The petitioner submitted his explanation thereto. As the explanation is neither convincing nor satisfactory, the second respondent considering the circumstances of the case and material available on record came to the conclusion that the petitioner society indulged in selling of adulterated toddy with chloral hydrate and accordingly cancelled the licence of the petitioner under the impugned order dated 05.05.2001. He therefore prayed that the writ petition may be dismissed. The petitioner also filed a reply affidavit. While reiterating what has been stated in the affidavit filed in support of the writ petition, he mainly stated that filing of a statutory appeal is not an efficacious alternative remedy on all occasions. Heard the learned counsel for the petitioner and the learned Government Pleader for Prohibition and Excise for respondents. Perused the entire case file. The learned counsel for the petitioner submitted that no inspection of the petitioner’s shop by the third respondent as alleged was conducted and no samples were drawn in his presence and no papers were furnished to him. Therefore, the alleged drawal of samples and inspection are contrary to Rule 27 of the 2007 Rules. The learned counsel asserted that filing of an appeal is not effective alternative remedy in all circumstances and therefore the present writ petition is maintainable in absence of availing the appellate remedy provided under Section 63 of the 1968 Act. He also contended that as this Court granted an interim order on 07.06.2011, in the two writ petitions earlier filed by the petitioner challenging the order suspending licence and issuance of show cause notice respectively, directing the second respondent to send the sample to the independent laboratory and the report therefor is awaited; the writ petition may be allowed by setting aside the impugned cancellation order dated 05.05.2011. Refuting the above contention, the learned Government Pleader for Prohibition and Excise while reiterating the averments made in the counter affidavit submitted that the writ petition is liable to be dismissed in limine on the short ground that a statutory appellate remedy is available to the petitioner to challenge the impugned cancellation order under Section 63 of the 1968 Act and without availing and exhausting the said remedy the present writ petition is not maintainable. On facts, he contended that after following the due procedure prescribed in law, in the first instance the petitioner’s licence was suspended and then a show cause notice was issued to him and after receiving his explanation and due consideration thereof, the third respondent issued the impugned cancellation order. He therefore prayed that the impugned order does not warrant interference by this Court. Admittedly, the petitioner was granted licence bearing No.5 dated 24.10.2007 for the sale of toddy for the period from 01.10.2007 to 30.09.2012 and is conducting business in the premises mentioned in the licence. It is the case of the petitioner that no inspection was conducted by the third respondent on 15.02.2011 and no samples were drawn in his presence and no papers were furnished to him and the same are contrary to Rule 27 of the 2007 Rules. However, it is the case of the respondents that the third respondent inspected the toddy shop of the petitioner on 15.02.2011 and found one P.Sailu sitting on the sale counter and conducting sale of toddy and the third respondent demanded him to produce licence, the said Sailu produced a copy of licence bearing No.5 dated 24.10.2007 issued by the second respondent which is valid upto 30.09.2012 and that on verification the third respondent found that the boundaries of the shop are in consonance with the particulars mentioned in that regard in the copy of the licence. However, on suspicion the third respondent conducted panchanama and samples were drawn and a case was registered under Rule 27(1) of the 2007 Rules. The third respondent accordingly deposited the samples in the Court of Judicial Magistrate of First Class, Narayankhed and one of the samples was sent to the Government Chemical Examiner and the report dated 22.03.2011 therefor was received wherein it is opined that the sample was fermented toddy adulterated with chloral hydrate. Thereafter, in the first instance the petitioner’s licence was suspended while issuing show cause notice calling upon him to show cause as to why his licence should not be cancelled. Responding thereto, the petitioner submitted his explanation. Dissatisfied with the explanation on the ground that same is neither convincing nor satisfactory, the second respondent, considering the facts and circumstances of the case and material available on record, cancelled the licence of the petitioner under the impugned order dated 05.05.2001 holding that the petitioner society indulged in selling of adulterated toddy with chloral hydrate. The contention of the petitioner that this Court has granted interim order in the other two writ petitions, filed by him earlier questioning the order suspending his lincence in the first instance and consequential issuance of show cause notice calling upon him to show cause as to why his licence should not be cancelled respectively, directing the second respondent to send the sample to an independent laboratory and that the report therefrom is still awaited does not have any bearing upon this writ petition as the causes of action said to have arisen therein are separate and distinct. Section 63 of the 1968 Act reads as under: “63 Appeals:(1) Any person aggrieved by an order passed by any officer, other than the Commissioner or Collector, under this Act, may within forty five days from the date of communication of such order, appeal to the Deputy Commissioner. (2) Any person aggrieved by an order passed by the Deputy Commissioner or Collector under this Act, may, within sixty days from the date of communication of such order, appeal to the Commissioner.” As per the above provision, if the petitioner is aggrieved by the impugned cancellation order, a statutory appellate remedy is provided therefor, as rightly pointed out by the respondents. However, the petitioner did not choose to avail the said statutory appellate remedy on the ground that filing of an appeal is not an efficacious alternative remedy on all occasions. This Court cannot countenance the said contention of the petitioner in view of a well settled proposition of law that Article 226 of the Constitution is not intended to be used for circumventing or short- circuiting statutory remedies. In this regard, the observations of a three Judge Bench of the Supreme Court in ASSISTANT COLLECTOR OF CENTRAL EXCISE, CHANDAN NAGAR, WEST BENGAL v. DUNLOP INDIA LTD. [AIR 1985 SC 330] are apposite: “3. ………… Article 226 is not meant to short circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Art.226 of the Constitution. But then the court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged.” [Emphasis added] The hierarchy of statutory remedies provided under the Act of 1968 is essentially designed with a view to obtain an adjudication on factual issues by and before such authorities, so that purely legal issues, if any, would remain for consideration by this Court in the event its extraordinary jurisdiction is invoked subsequent thereto. Matters factual in nature are better suited for resolution before the statutory authorities as this Court would not normally be in a position to decide disputed questions of fact. A Constitution Bench of the Supreme Court in A.R.ANTULAY v. R.S.NAYAK [AIR 1988 SC 1531] inter alia observed that the power to create or enlarge jurisdiction is legislative in character, so also the power to confer right of appeal and to take away a right of appeal. It was further stated that no Court, whether superior or inferior, can enlarge the jurisdiction of a Court or divest a person of his right of revision and appeal. This proposition is settled law and it is open to the petitioner to urge his contentions in this regard duly supported by this precedent before the appellate authority as well. Further, a two judge Bench of the Supreme Court in STAR PAPER MILLS LTD., Vs. STATE OF U.P. {[2006] 10 SCC 201}, following its erlier judgment in ASSISTANT COLLECTOR OF CENTRAL EXCISE, CHANDAN NAGAR, WEST BENGAL Vs. DUNLP INDIA LTD (referred to supra), held that where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction. In the light of the above legal environment and as the petitioner has an effective and efficacious statutory appellate remedy under Section 63 of the 1968 Act and without availing and exhausting such remedy, the petitioner cannot be permitted to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. For the foregoing reasons and without going into the merits of the case, the writ petition is dismissed leaving it open to the petitioner to avail statutory appellate remedy as stated supra if he is so advised. No order as to costs. -------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 29th July, 2011. Msnro