HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 4668 OF 2011 . DATED 20th June, 2011. BETWEEN K.Vijay Kumar …Petitioner And Government of AP, rep. by its Secretary, Excise Department, Secretariat, Hyderabad and ors. ….Respondents. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 4668 of 2011 ORDER: Heard the learned Counsel for the petitioner, the learned Government Pleader for Excise appearing for respondents 1 to 3 and Sri K.Rathangapani Reddy, learned Counsel appearing for the fourth respondent. The petitioner is the A-4 licence holder in respect of shop at Gazette Sl.No.62 for the sale of Indian Made Foreign Liquor/Indian Liquor at premises bearing No.411B/1, G.Singavaram village, Kurnool Mandal and District, for the lease period from 1.7.2010 to 30.06.2012. While so, the fourth respondent had made an application for shifting of his licensed premises from Sy.No. 91 of Sunkesula village, Kurnool Mandal and District to the premises bearing D.No. 4-105, Kasa Street, Remata Village, within Kurnool Mandal and District and necessary permission was granted by the respondent authorities under the impugned order. It is the grievance of the petitioner that the premises to which the fourth respondent was granted permission to shift his licensed premises is not a notified area and that shifting of the licensed premises pursuant to the impugned order dated 3.2.2011adversely affects his business and the same creates unhealthy competition. It is the case of the petitioner that the impugned order is not a speaking order in as much as the same is bereft of sufficient and valid reasons permitting the fourth respondent to shift his licensed shop to the proposed premises and therefore the same is liable to be set aside. It is his further case that in the absence of any provision under the A.P. Excise Act and the Rules made thereunder, providing for change of area/locality in respect of which the leases were granted, the impugned action of the respondents is arbitrary, illegal and without jurisdiction. In the counter filed on behalf of the official respondents, it is stated that from the beginning of the lease year, the residents of Sunkesula village did not allow the fourth respondent to establish A-4 shop and they created as many problems as they could in securing suitable premises for commencing business and at last the fourth respondent could secure premises which is in the outskirts of Sunkesula village where at there is no human habitation. In the counter affidavit, the official respondents have mentioned the statistical particulars of liquor stocks lifted by the petitioner vis-à-vis the fourth respondent from July, 2010 to January, 2011, which abundantly exhibit the decrease in the business of the fourth respondent. Pursuant to the poor profits from the shop of the fourth respondent, the Station House Officer, Kurnool, reported under his letter dated 6.10.2010 to the third respondent stating that due to non- availability of the suitable premises and obstructions created by the henchmen of the local political leaders, the sales made by the shop of the fourth respondent are not upto the mark. While supporting the issuance of permission to the fourth respondent under the impugned order, it is stated that the same has been passed considering the circumstances and following the procedure laid down under the Andhra Pradesh Excise ( Lease of Right of Selling by Shops and Conditions of Licences) Rules, 2005 ( for short ‘the Rules of 2005’). Fourth respondent also filed a counter, wherein it is stated that henchmen of some political leaders were not being allowed him to carry on his business from the licensed liquor shop. It is stated that upon a complaint given by the fourth respondent against the persons who were not allowing him to carry on licensed liquor business, two cases in Cr.No. 52 of 2010 and Cr.No. 49 of 2010 were registered and the same are said to be pending consideration before the competent Criminal Court. It is stated that pursuant to the representation given by him, the second respondent passed impugned order permitting him to shift his licensed liquor shop to the proposed premises, which is nearly twenty kilometers away from the location of the shop of the petitioner. It is further stated that shifting of the licensed shop of the fourth respondent to the proposed premises does not affect the petitioner’s business in as much as the people of Sunkesula and R.Kunthalapadu would prefer the shop of the petitioner at G.Singhavaram which is at a distance of 13 kilometers as there are sufficient transport facilities by way of number of RTC busses and autos plying in the route, whereas the road existing to the proposed shop of the petitioner is a kacha (cart) road and there are no sufficient transport facilities to reach the shop of the fourth respohndent. Having heard the learned Counsel on either side and having perused the case file, I have given my anxious consideration to the subject matter. It is not open even for the successful tenderer to locate the shop anywhere he intends within the notified area/locality, however, such selection of the shop shall be in conformity with Rule 27 of the Rules of 2005, which would be at least 100 meters away from the places of public worship, educational institutions, hospitals and 50 meters away from highways. Under Rule 29 of the Rules 2005 the lease holder shall sell the liquor only at the premises specified in the licence and no change or alteration of the licensed premises shall be made nor the licensed premises be shifted elsewhere. However, under Rule 29(3) of the Rules of 2005, the Commissioner, may for valid and sufficient reasons recorded in writing permit shifting of the licensed premises subject to payment of 1% of the lease amount or on collection of Rs.25,000/- whichever is higher within the same Mandal/municipality/municipal corporation without affecting the total number of notified shops in that Mandal/municipality/municipal corporation. In the case on hand, the fourth respondent was permitted to shift his licensed shop within the Kurnool mandal, without affecting the total number of notified shops in the Kurnool Mandal. The proposed premises where the fourth respondent was permitted to locate his licensed shop is nearly 20 KMs far away from the petitioner’s licensed shop and as such, the question of unhealthy competition and adverse affect of petitioner’s business do not arise. More so, location of the petitioner’s shop and proposed shop of the fourth respondent are in different villages, namely, G.Singavaram and Remata respectively and therefore, the petitioner in any event cannot have any grievance over the impugned order. It is clear from the counter of the official respondents that the Station House Officer, Kurnool inspected the proposed premises on 10.01.2011 and stated that the distance from the Sunkesula to Remata village is 10 Kms and the nearest A.4 shop is located at G.Singavaram village which is at 20 Kms distance to Remata village and there are no other A.4 shops within the radius of 20 Kms from Remata village and there is no possibility of affecting the business of other A.4 shop due to shifting the shop of the fourth respondent from Sunkesula village to Remata village. It is also clear that the distance between G.Singavaram and Sunkesula via R.Konthalapadu village is 13 Kms and sufficient busses and autos are plying in the said route, whereas the distance between Sunkesula and Remata via Tholisapuram village is 10 KMs and there is no proper transport facility being cart road and therefore people living at Sunkesula and R.Kothalapadu villages will prefer to go to S.Singavaram village rather than going to Remata village. Further it is to be seen that the shop notified in Gazette Sl.No. 62 is only at G.Singavaram and there is no other area notified except G.Singavaram village, whereas A.4 shop of Gazette Sl.No. 63 of Sunkesula village is shifted to Remata village and not to G.Singavaram village. The reliance placed by the learned Counsel for the petitioner on a Division Bench decision in the case of S.Malleswar rao Vs. Commissioner of Prohibition & Excise { 2008 (2) ALT 421} which is of no avail to the case of the petitioner. That was a case where the petitioner therein was initially permitted to shift his retail vend from one village to another and subsequently on a consideration of the entire material, the Commissioner of Prohibition & Excise cancelled the said shifting and the Division Bench of this Court while considering the same observed that the Commissioner has to assign valid reasons for cancellation of shifting of the licensed premises, but not in the case of cancellation of the shifting. The Division Bench while observing that only for valid reasons, the Commissioner may consider and permit shifting of the licensed premises, rejected the contention of the petitioner in that case that he is not in a position to carry on higher quantum of business at the initial village. In the present case, considering the reports of the Deputy Commissioner of Prohibition & Excise, Kurnool and the Prohibition & Excise Superintendent, Kurnool, as stated supra, the second respondent-Commissioner of Prohibition & Excise, in exercise of powers conferred on him, passed the impugned order permitting the petitioner to shift his licensed shop to the newly proposed premises. I do not see any merit in the Writ Petition. The Writ Petition is accordingly dismissed. There shall be no order as to costs. -------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 20th June, 2011. Msnro