IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE THIRTIETH DAY OF NOVEMBER, TWO THOUSAND AND ELEVEN PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.31615 of 2011 Between: Smt. Kudupudi Rajeswari … Petitioner And The Commissioner of Prohibition and Excise, Hyderabad & others. … Respondents Counsel for the petitioner: Sri Bellapu Nageswara Rao Party-in-person Counsel for respondents 1&2: AGP for Prohibition & Excise This Court made the following: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.31615 of 2011 ORDER:- This Writ Petition is filed for a Mandamus to declare the action of the respondents in allotting liquor shop licence in respect of shop No.3 of Srinivasa Wines, Siddantam Village, Penugonda Mandal, West Godavari District, in favour of respondent No.3 as illegal and arbitrary. The petitioner has appeared through her General Power of Attorney (GPA) by name, Bellapu Nageswara Rao. He has advanced his submissions at the hearing of the case. The petitioner alleged that her husband was done to death by a liquor syndicate in collusion with excise officials and that when the petitioner intended to file a criminal complaint, the excise department has promised her that liquor shop will be given to her on nomination basis. The petitioner felt aggrieved by the action of the respondents in not standing on the said purported promise and issuance of auction notice in respect of the abovementioned shop. The petitioner pleaded that the provisions of the Andhra Pradesh Excise (Lease of Rent of Selling by shop and Conditions of Licence) Rules, 2005 (for short, “the 2005 Rules”) violate her fundamental rights and that the very method of giving away licence through auction is in violation of her constitutional right to carry on business in liquor. At the hearing, the learned Assistant Government Pleader for Prohibition and Excise submitted that the GPA has earlier filed Writ Petition No.13488 of 2010 in this Court on behalf of another person in respect of a different shop with almost similar pleas and that the said Writ Petition was dismissed by order, dated 23.06.2010, and Writ Appeal No.819 of 2010 filed against the said order was also dismissed by a Division Bench of this Court by order, dated 06.04.2011. In my opinion, the Writ Petition, which is based on the premise that the petitioner has a fundamental right to carry on business in liquor, is wholly misconceived. As many as five Constitution Bench judgments of the Apex Court held that a citizen has no fundamental right to carry on trade in liquor, which is pernicious in nature and that the State has power to control such trade. (See Cooverjee B. Bharucha v. Excise Commissioner and the Chief Commissioner, Ajmer and others[1], Assam State v. Sristikar[2], Nagendra Nath Bora v. Commissioner of Hills Division and Appeals, Assam and others[3], Har Shankar v. Dy. Excise and Taxation Commissioner[4] and Khoday Distilleries Ltd., and others v. State of Karnataka and others[5]) GPA of the petitioner has placed reliance on the judgment of the Supreme Court in Cooverjee B. Bharucha (1 supra). A reading of this judgment would show that a contention similar to the one raised by the petitioner was conclusively rejected. Para 8 of the judgment, which is relevant for this purpose, is reproduced hereinbelow. “The contention that the effect of some of these provisions is to enable Government to confer monopoly rights on one or more persons to the exclusion of others and that creation of such monopoly rights could not be sustained under Art.19(6) is again without force. Reliance was placed on the decision in ‘Rashid Ahmad v. Municipal Board of Kairana’, AIR 1950 SC 163 (B). That decision is no authority for the proposition contended for. Elimination and exclusion from business is inherent in the nature of liquor business and it will hardly be proper to apply to such a business principles applicable to trades which all could carry. The provisions of the regulation cannot be attacked merely on the ground that they create a monopoly. Properly speaking, there can be a monopoly only when a trade which could be carried on by all persons is entrusted by law to one or more persons to the exclusion of the general public. Such, however, is not the case with the business of liquor. Reference in this connection may be made to the observations of Lord Porter in – ‘Common Wealth of Australia v. Bank of New South Wales’, 1950 AC 235 (C). This is what his Lordship said: “Yet about this as about every other proposition in this field a reservation must be made. For their Lordships do not intend to lay it down that in no circumstances would exclusion of competition so as to create a monopoly either in a State or Commonwealth agency or in some other body be justified. Every case must be judged on its own facts and in its own setting of time.” Further it seems to us that this argument suffers from a fallacy. Under the rules every member of the public who wishes to carry on trade in liquor is invited to make bids. This is the only method by which carrying on of liquor trade can be regulated. When the contract is thrown open to public auction, it cannot be said that there is exclusion of competition and thereby a monopoly is created. For all these reasons we are of opinion that the contention that the provisions of the regulation are unconstitutional as they abridge the rights of the petitioner to carry on liquor trade freely cannot be sustained.” (Emphasis added) In view of the authoritative pronouncement of the Apex Court in the decisions referred to above, I do not find any reason to hold that the provisions of 2005 Rules are in any way unconstitutional or illegal. For the abovementioned reasons, the Writ Petition is dismissed. As a sequel, WPMP.No.39229 of 2011 is also dismissed. ____________________________ C.V.NAGARJUNA REDDY, J Date: 30.11.2011 ES [1] AIR 1954 SC 220 [2] AIR 1957 SC 414 [3] AIR 1958 SC 398 [4] 1975 (1) SCC 737 [5] 1995 (1) SCC 574