*THE HON’BLE THE CHIEF JUSTICE SHRI NISAR AHMAD KAKRU AND THE HON’BLE SHRI JUSTICE VILAS V.AFZULPURKAR +WRIT APPEAL NO.709 OF 2010 % 29-09-2010 # M/S.BRAMARAMBHA WINES, D.NO.1-9-113/3/1/C/1, DAYANAND NAGAR, VIDYANAGAR, BAGH LINGAMPALLY, HYDERABAD (NEW ADDRESS D.NO.3-4-242 TO 244, BARKATPURA, HYDERABAD) REP. BY ITS PROPRIETOR S.BAL REDDY … Petitioner And $ K.DEVARAJ GOUD AND OTHERS … Respondents !Counsel for the petitioners : M/s.Bharadwaj Associates 16-1-24/B/1/A, Adjacent More Super Bazar, Saidabad Colony Hyderabad. ^Counsel for the Respondents : Sri.A.Prabhakar Rao for R1 & R2 Govt. Pleader for Proh. & Excise For R3 to R6. <Gist : >Head Note: ? Cases referred: 1. (2007) 14 SCC 439 2. (2008) 9 SCC 161 3. (2008) 1 SCC 379 THE HON’BLE THE CHIEF JUSTICE SHRI NISAR AHMAD KAKRU AND THE HON’BLE SHRI JUSTICE VILAS V.AFZULPURKAR WRIT APPEAL NO.709 OF 2010 29th September, 2010. Between: M/S.BRAMARAMBHA WINES, D.NO.1-9-113/3/1/C/1, DAYANAND NAGAR, VIDYANAGAR, BAGH LINGAMPALLY, HYDERABAD (NEW ADDRESS D.NO.3-4-242 TO 244, BARKATPURA, HYDERABAD) REP. BY ITS PROPRIETOR S.BAL REDDY .. APPELLANT AND K.DEVARAJ GOUD AND OTHERS .. RESPONDENTS THE HON’BLE THE CHIEF JUSTICE SHRI NISAR AHMAD KAKRU AND THE HON’BLE SHRI JUSTICE VILAS V.AFZULPURKAR WRIT APPEAL NO.709 OF 2010 O R D E R: (PER THE HON’BLE THE CHIEF JUSTICE SHRI NISAR AHMAD KAKRU) 1. Shifting of appellant’s licensed premises (a retail wine shop) from Ward No.88 Baghlingampally Hyderabad, having become inevitable for the reasons beyond the control of the appellant, consequently an application by him (appellant), seeking shifting of his licensed premises to Ward No.81, Barkatpura, Hyderabad which was granted vide order dated 24.8.2010, by the competent authority, the respondent-Commissioner, Prohibition and Excise, Hyderabad but not to the liking of the competitors respondents 1 and 2 herein (writ petitioners) & another, therefore invocation of extra ordinary writ jurisdiction by the said respondents through W.P.Nos.21399 and 21492 of 2010. Alongside, miscellaneous petitions were also filed, consideration whereof resulted in an interim direction by the writ court, suspending the impugned order of shifting. Being aggrieved, the respondent therein (appellant herein) invoked the appellate jurisdiction of the High Court against the interim direction through Writ Appeal Nos.656 and 657 of 2010 and on the consensus of the learned counsel for the parties, the very writ petitions were taken up by the Division Bench for consideration and were disposed of finally vide judgment dated 7.9.2010, directing the respondent-Commissioner, Prohibition and Excise, Hyderabad to reconsider the application of the appellant seeking shifting of the licensed premises. In compliance therewith, the Commissioner reconsidered the appellant’s application and granted him the permission for shifting of the licensed premises from Ward No.88, Baghlingampally, Hyderabad to Ward No.81, Barkatpura, Hyderabad vide order No. Cr.No.12374/2010/CPE/G2 dated 18-9-2010. The permission was again challenged by respondents 1 and 2, giving rise to the second round of litigation through W.P.No.23317 of 2010, which has been allowed setting aside the impugned shifting order, with liberty to the respondents to reconsider the shifting of the licensed premises of the appellant to any other nearby location vide judgment dated 20-9-2010, impugned by medium of writ appeal on hand and when it came up for consideration for admission, Sri D. Prakash Reddy, learned senior Advocate entered appearance for respondents 1 and 2 (writ petitioners) to contest the grant of interim relief. In that view of the matter, we have taken up writ appeal itself for final disposal with the consent of the learned counsel for the parties. 2. We have gone through the judgment of the writ court very minutely. An in-depth examination thereof reveals that the impugned order of shifting of the licensed premises has been set aside by the writ court on the likelihood of affecting the business of the writ petitioners (respondents 1 and 2 herein) adversely. Contention is refuted by Sri.V. Venkataramana learned senior Advocate appearing for the appellant, on the basis of admitted facts, that there were three retail wine shops in ward No. 82 Kachiguda including one belonging to the appellant which was shifted to ward 81, resultantly only two remain in place and according to him exclusion of the appellant from ward 88 and locating him in Ward 81 Barkatpura would not be to the detriment of the writ petitioners’ business. Be that as it may, there is a categorical finding by the Commissioner, depicting that the business of the writ petitioner is not likely to be affected substantially by change of location of the appellant’s shop and it is this finding which is substituted by the writ court by its own finding, reversing the decision of the Commissioner and we regret not to be persuaded to agree with the view so taken by the writ court, because it is the decision-making process alone which falls within the scope of judicial review under article 226 of the constitution and not the correctness of the decision. Whereas in the case on hand, the writ court has set aside the decision based on findings of fact which it could not, for, it is neither a fact finding court nor a court of appeal. Similar was the argument of Sri V. Venkataramana, learned senior counsel appearing for the appellant which he supported by judicial pronouncements handed down by the apex court in SURESH ESTATES (P) LTD v. MUNICIPAL CORPN. OF GREATER MUMBAI[1], BACHAN SINGH V. UNION OF INDIA[2] and SWAPAN KUMAR PAL v. ACHINTYA KUMAR NAYAK[3]. Faced with the legal position Sri D. Prakash Reddy, learned senior Advocate for the respondents, relied on a particular sentence of the judgment dated 7.9.2010 of the Division Bench in Writ Appeal Nos.656 and 657 of 2010, which is reproduced as under; “ ..As the writ petitioners had objected to any permission being given for shifting of the shop, as this would adversely affect their economic situation, the Commissioner was enjoined to record reasons so as to enable any aggrieved person to test the validity of the exercise of such a discretionary power by the Commissioner…..” 3. Relying on the sentence extracted from the judgment, Sri D. Prakash Reddy, learned senior Advocate for the respondents contended that in view of the earlier judgment of the Division Bench, the economic aspect had to be taken into account by the Commissioner and according to him the Commissioner has ignored the observation and has failed to take it into account, despite direction of the Division Bench but fact remains otherwise as transpires from the order of the Commissioner, impugned before the writ court which makes it very clear that Commissioner was not only alive to the judgment of the Division Bench but has duly considered the economic aspect and such consideration alone brought him to the conclusion, that shifting does not substantially affect the writ petitioners’ business. Apparently contention aims at an endeavour on the part of the learned counsel for the respondents to riggle out of the obligation, requiring him to justify the sustainability of the impugned judgment in view of the judicial decisions supra relied upon by Sri V. Venkataramana learned counsel for the respondents as is evident from a verbatim reproduction from the judgment of the Division Bench relied upon by Sri D. Prakash Reddy which in essence requires the Commissioner to give reasons in support of his order. Nothing more, nothing less. Has Commissioner discharged this obligation, apposite it is to extract the relevant paragraph from shifting order passed by the Commissioner; “ The reasons reported by the P & E.S, Secunderabad for shifting of the shop from the notified area of ward No.88, Baghlingampally are as follows: 1) The local people of Nagamaiah Kunta, Baghlingampally objected to the establishment of A4 shop. 2) The Inspector of Police, Police Station, Nallakunta, Hyderabad wrote a letter to the P & E.S, Secunderabad with a request to shift the shop in view of the conditions prevailing in that area. With regard to reasons for proposing shifting to the ward No.81, Barkatpura, the P & E.S, Secunderabad has reported that (3) shops were notified for 2010-12, in Kachiguda (Ward No.82) and one of them is already shifted to Barkatpura (Ward No.81), and therefore, the petitioners in W.P.No.21492 of 2010 shall not have any grievance against the proposed shifting though the proposed premises comes close to them. He has also stated that the shop shifted from Kachiguda (ward No.82) registered a sale of (47,707) cases liquor for 2008-10 and thus the potentiality for another shop still remains there in that area. He has further reported that the A4 shop of Sri.A.Rajesh another petitioner in W.P.No.21399 of 2010 is 2 KM away from the proposed premises.” The reasons detailed in the shifting permission by the Commissioner, upon which shifting order is founded, makes obedience of the judgment of the Division Bench manifest, leaving no room for an argument to the contrary, obviously contention urged is bereft of any substance having no sanction of law. 4. Indubitably power to exercise discretion for shifting of a licensed premises flows to the Commissioner from rule 29 of the A.P. Excise (Lease of Right of Selling by Shop and Conditions of License) Rules, 2005” therefore it is within the powers of the writ court to direct the Commissioner respondent to exercise the discretion in accordance with said rule but it could not have directed the Commissioner to exercise its discretion in a particular manner. Yet another error, traceable to the view taken by the writ court, invalidating the shifting order on the ground that such shifting is likely to affect the liquor trade of the competitors (respondents 1 and 2 - writ petitioners) adversely, apparently contrary to the rule 29 of 2005 Rules. Not only that. While taking a view that the Division Bench judgment required the Commissioner to consider the economic aspect, the writ court overlooked the mandate of judgment of the Division Bench spelt out in its concluding paragraph which is reproduced for facility of reference hereunder; “ In the facts and circumstances of the case however, we direct the Commissioner, Prohibition and Excise/the 3rd respondent herein to de novo consider the application of the non-official respondent (M/s.Bramarambha Wines) for shifting of his premises from Vidyanagar, Bagh Lingampally to Barkatpura expeditiously and to pass appropriate orders in accordance with law………….” 5. A plain reading of the operative portion of the judgment speaks of grant of a writ by the Division Bench commanding the statutory authority (Commissioner-Respondent) to perform its duty by exercising the discretion in accordance with law and the law relevant to the shifting of licensed premises is, Rule 29 of the A.P. Excise (Lease of Right of Selling by Shop and Conditions of License) Rules, 2005” which reads; “ 29. Sale permitted at the licensed premises only: (1) The lease holder shall sell the liquor only at the premises specified in the license. (2) No change or alteration of the licensed premises shall be made nor the licensed premises shifted elsewhere. (3) Shifting of the licensed premises may be permitted for valid reasons within the notified area and subject to conditions as may be specified by the Commissioner of Prohibition & Excise, subject to payment of 1 % of the lease amount or Rs.25,000/- whichever is higher. Provided that the Commissioner may consider and permit for valid reasons shifting of the licensed premises, not withstanding the notified area of the licensed premises, within the same Mandal or Municipality or Municipal Corporation without affecting the total number of Notified shops in the said Mandal or Municipality or Municipal Corporation subject to conditions as specified by the Commissioner and subject to payment of 1 % of lease amount or Rs.25,000/- whichever is higher.” 6. On a plain reading of clause (3), it is discernable that the Commissioner is invested with the power to permit shifting of the licensed premises within the notified area and the proviso to Rule 29 of Rules, 2005 unveils the power of the Commissioner to permit shifting of the licensed premises even beyond the notified area but for valid reasons. The valid reasons being apparent on the face of the shifting order, we find no fault with the decision making process as also shifting order relating to the licensed premises impugned before the writ court. 7. Thus examining from any angle, we are satisfied that the writ court has erred by entering into the merit of the decision, assuming power of a court of appeal unto itself notwithstanding the fact that such power does not fall with in the ambit of judicial review. 8. For the reasons stated herein above, this writ appeal succeeds and is allowed. Judgment of the learned single Judge dated 20th September 2010 passed in Writ Petition No.23317 of 2010 is set aside. No order as to costs. (VILAS V.AFZULPURKAR,J) (NISAR AHMAD KAKRU, CJ) 29th September, 2010. LR COPY TO BE MARKED Nagesh babu THE HON’BLE THE CHIEF JUSTICE SHRI NISAR AHMAD KAKRU AND THE HON’BLE SHRI JUSTICE VILAS V.AFZULPURKAR WRIT APPEAL NO.709 OF 2010 (PER THE HON’BLE THE CHIEF JUSTICE SHRI NISAR AHMAD KAKRU) 29th September, 2010. [1] (2007) 14 SCC 439 [2] (2008) 9 SCC 161 [3] (2008) 1 SCC 379