IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FIRST DAY OF MAY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE N.V. RAMANA WRIT PETITION NO : 1832 of 2009 Between: Sangam Wines, G.Sl.No.70, Ward No.15, Shop No.2 D.No.11-341, Madanapalli Chittoor District rep.by its prop.G.V.Chalapathi naidu ..... PETITIONER AND 1 The Government of Andhra Pradesh, rep.by its Principal Secretary, Excise Department, Secretariat Buildings Hyderabad 2 The Commissioner of Prohibition and Excise Government of Andhra Pradesh, Nampally,Hyderabad 3 The Deputy Commissioner of PRohibition and Excise Chittoor 4 The Excise Superintendent, Chittoor, Chittoor 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 issue an appropriate writ or order more particularly one in the nature of writ of mandamus declaring the orders of the 2nd respondent in Cr.No.12798/08/CPE/T1 dated 14.10.2008 as confirmed by the orders of the 1st respondent in Memo No.52736/ex.III.2/2008 dated 30.1.2009 as illegal, arbitrary, violation of Article 14 and the Constitution of India and consequently direct the respondents to accord permission for shifting of the wine Shop from Ward No.15 to Ward No.29 of Madanapalle Town, Chittoor District. Counsel for the Petitioner:MR.SRINIVAS DAMMALAPATI Counsel for the Respondent No.: GP FOR PROHIBITION & EXCISE The Court made the following : ORDER: This writ petition is filed seeking a writ of Mandamus declaring the orders of the 2nd respondent – Commissioner of Prohibition & Excise, Government of Andhra Pradesh, Nampally in Cr.No.12798/08/CPE/T1 dated 14.10.2008 confirming the orders of the 1st respondent – Principal Secretary to Government of Andhra Pradesh, Excise Department, refusing to grant permission to shift the wine shop premises. Heard the learned counsel for the petitioner and the learned Government Pleader for Prohibition and Excise. The case of the petitioner is that pursuant to the auction conducted, he became the highest bidder and was granted licence for Shop No.2 in Ward No.15 in Madanapalle Municipality to run the shop in the name and style of “M/s.Sangam Wines” in the premises situated at Door No.11-341 for the years 2008-10. While the matters stood thus, the petitioner made an application for shifting the shop from Door No.11- 341 in Ward No.15 to Ward No.29 at Door No.2-217C, Patel Road, Madanapalle, Chittoor District stating that adjacent to his shop two more wine shops are located within a short distance and thereby he is incurring huge losses and that his shop is located in an old building with zinc sheet roof and the same is in a dilapidated condition. The said application was forwarded to the higher authorities by the Inspector of Prohibition and Exicse. Vide the proceedings dated 14.10.2008 the 2nd respondent rejected the said application on the ground that the other licensee viz., M/s.Lahari Wines in Ward No.31 is objecting for granting of permission for shifting the petitioner’s premises. The said order is questioned by the petitioner before the 1st respondent by way of a revision. The said revision petition was also dismissed confirming the orders passed by the 2nd respondent and assailing those orders, the present writ petition is filed. The learned counsel for the petitioner contends that the only reasoning given for rejecting the application of the petitioner was that the other shop owner objected for the said shifting, which clearly goes to show that the 2nd respondent has failed to exercise his discretion and mainly relied on the objections raised by the other licensee even though his shop is located far away from the proposed shop of the petitioner and also ignored the recommendations of the Inspector of Prohibition and Excise, given at the time of forwarding his application. Further, there are no other shops or bar and restaurants in Ward No.29 where the petitioner sought for shifting the premises and, therefore, on the sole ground that the other licence holder objected for the shifting, the application of the petitioner cannot be rejected. It is further contended that while the cases of the other similarly situated persons was considered by the 2nd respondent and permission was granted for shifting the shops, even though the other shop owners objected for the same, the case of the petitioner was negatived only for extraneous reasons and the same suffers from arbitrariness. A counter affidavit is filed by the 2nd respondent justifying the rejection order. It is stated that pursuant to the application of the petitioner for shifting the shop, an enquiry was conducted by the Inspector of Prohibition and Excise and favourable observations were made while forwarding the petitioner’s application. However, while the said application was pending consideration, the other licensee viz., M/s.Lahari Wines of Ward No.31 (objector) filed objections for the proposed shifting and in the light of the said objections, the Station House Officer, Madanapalle again conducted an enquiry and submitted a report recommending to reject the application of the petitioner for the proposed shifting. It is also stated that the objector viz., Lahari Wines offered an amount of Rs.59,59,816/- for the shop in Ward No.31, only in view of the fact that there are no ‘A4’ shops or Bar licenses in 9 wards surrounding Ward No.31 and that the said lease amount is more than 140% when compared to the lease amount offered by the petitioner and that if the proposed shifting of the shop of the petitioner is permitted, it would only mean that the business of M/s.Lahari Wines in Ward No.31 will be shared by both the licensees i.e., the petitioner and the objector and thus, the business of the objector would be deprived legitimately. It is further stated that the application of the petitioner was considered taking into consideration of the observations made by this Court in W.A.No.898 of 2006 dated 30.6.2006 and the subsequent guidelines issued in Circular No.10639/2006/CPE/G4 dated 17.1.2007. In regard to granting permission to other licensees for shifting the premises is concerned, it is stated that the shifting of the licensed premises of M/s.Sri Sai Wines was permitted from Ward No.12 to Ward No.10 after duly collecting the shifting fee as per Rule 29 of the Shop Rules,2005 and also basing on the ‘no objection’ given by the other shop owners for the proposed shifting. Ultimately it is stated that the application of the petitioner was rejected only after enquiring into the objections raised by the licensee of Ward No.31 and also taking into consideration and relevant rules. Rule 29 of the Andhra Pradesh Excise (Lease of Right by Selling by Shop and Conditions of Licence) Rules, 2005 empowers the 2nd respondent – Commissioner of Prohibition and Excise for granting permission for shifting of the premises. Sub-Rule (3) of Rule 29, inserted vide G.O.Ms.No.598 dated 26.5.2006 enables the Commissioner to consider and permit for valid reasons, shifting of the licensed premises notwithstanding the notified area of the licensed premises within the same Mandal or Municipality or Municipal Corporation without effecting the total number of notified shops in the said Mandal. A perusal of the guidelines for selection of the premises under Rule 27 lay down that it should not lead to unhealthy competition and unnecessary litigation and location in the peripheral area should be avoided. Though the 2nd respondent has filed a detailed counter affidavit enumerating various factors relating to the financial loss that may occur to the objector if the application of the petitioner is accepted and also stated that after taking into consideration the relevant rules the application of the petitioner was rejected, those facts were not reflected in the order passed by the 2nd respondent. A perusal of the impugned order indicates that the same was passed only basing on the objections raised by the other licensee. Even though it is contended by the learned Government Pleader that only in extraordinary circumstances, shifting of the shop outside the notified area would be permitted that too subject to payment of certain fees and that there is no matter of right whatsoever for the petitioner for insisting that his application for shifting the shop should be accepted by the authorities irrespective of the objections raised by the other licensees and, therefore, the request of the petitioner was rightly rejected by the authorities, a perusal of the material placed on record indicates that the application of the petitioner was forwarded by the Inspector of Prohibition and Excise with favourable observations but subsequently the Station House Officer, Madanapelli gave a report to reject the request of the petitioner in view of the financial loss that may occur to the other licence holder and basing on the said report, the request of the petitioner was rejected ignoring the first report submitted by the Inspector of Prohibition and Excise while forwarding the petitioner’s application. No reasons are forthcoming for ignoring the first report. That apart, except stating that the other licensee objected for the shifting of the petitioner’s shop and, therefore, the request of the petitioner was negatived, no material whatsoever is placed before this court which indicates that rival businessmen has any right to object for the shifting of the shop while the rule position indicates that shifting can be permitted notwithstanding the notified area of the licensed premises within the same Mandal or Municipality or Municipal Corporation without effecting the total number of notified shops in the said Mandal, Municipality or Municipal Corporation. For the foregoing reasons, the writ petition is allowed and the matter is remanded to the 2nd respondent to examine the whole issue once again without being influenced by the objections raised by the other licence holder and pass appropriate orders within a period of four weeks from the date of receipt of a copy of this order. N.V.RAMANA,J DT.1.5.2009 msv