Section 3(1) of the Andhra Pradesh Excise Act, 1968 (for short 'the Act')=shifting of shop = Under Rule 28(3) of the Rules, the jurisdiction to permit shifting of the shops is exclusively vested in respondent No.1. In this case, this Court is not really concerned as to whether the decision of respondent No.1 to permit the petitioner to shift the shop to ward No.14 is strictly in conformity with the said Rule or not because the legality or otherwise of the order passed by him on 14.11.2012 permitting the petitioner to shift the shop is not in question in this writ petition. This Court is only concerned with the non-implementation of the order passed by respondent No.1. As noted hereinbefore, the main reason for respondent No.1 for not ensuring implementation of his own order is that ward No.14 is included in the list of wards, where location of A4 shops is prohibited. However, as noted hereinbefore, there are as many as two proceedings dated 06.11.2012 and 06.12.2012, whereby respondent No.1 has opined that ward No.14 is not a prohibited ward. Therefore, I do not find any justification whatsoever for the respondents in not permitting the petitioner to shift the shop to ward No.14. Having issued the proceedings dated 14.11.2012, which are still holding the field, it is the bounden duty and obligation of respondent No.1 to ensure that his subordinates carry out his orders in letter and sprit. Respondent No.3 has indeed meddled with the issue over which he has neither authority nor jurisdiction whatsoever by purporting to reject the petitioner's application by passing an order on 01.12.2012. Such an action on the part of respondent No.3 ought not to have been endorsed by respondent No.1. For the aforementioned reasons, respondent No.3 is directed to permit the petitioner to shift the A-4 shop to D.No.13-1-1091/A, P.K.street, ward No.14 of Tirupati Municipal Corporation in terms of the proceedings dated 14.11.2012 of respondent No.1 within two weeks from the date of receipt of a copy of this order.

reported/published inhttp://judis.nic.in/judis_andhra/filename=9890

THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY          

WRIT PETITION No.38320 of 2012  

23.04.2013

T.Hari Prasad   ...Petitioner

Vs.

The Commissioner of Prohibition & Excise, Hyderabad and others  ...Respondents        

Counsel for the petitioner: Sri M.P.Chandramouli

Counsel for respondents: Government Pleader for Prohibition and Excise

<Gist :

>Head Note:

?Cases referred:

ORDER:                        
This writ petition is filed for a mandamus to declare the action of the
respondents in 
not granting permission to the petitioner to establish A-4 shop
at door No.13-1-1091/A, P.K.street, ward No.14, Tirupati Municipal Corporation
as illegal and arbitrary.
The petitioner sought for a 
consequential direction
to the respondents to permit him to shift the A-4 shop to the abovementioned
premises from S.N.puram, Rajeevnagar, Panchayat, Tirupati Urban Mandal.

I have heard Sri M.P.Chandramouli, learned counsel for the petitioner, and the
learned Assistant Government Pleader for Prohibition and Excise.

In response to the notification issued by respondent No.4, the petitioner
applied for running retail liquor shop (A-4 shop) at S.N.Puram, Rajeev Nagar,
Panchayat, Tirupati Urban Mandal for the year 2012-13.
The petitioner was
granted licence on 02.07.2012.  
He has established a shop in S.N.puram area.
However, on the same day, on which the shop was opened certain women   organisations went on agitation for closing the shop. 
Thereupon, the petitioner
has made a representation for permission to shift the shop to ward No.14.  
The
petitioner's request was examined and reports were submitted by the Prohibition
and Excise Inspector, Tirupati Urban on 24.08.2012, the Assistant Prohibition
and Excise Superintendent, Tirupati on 25.08.2012, the Prohibition and Excise
Superintendent, Tirupati - respondent No.3 herein on 27.08.2012 and the Deputy
Superintendent of Prohibition and Excise, Tirupati - respondent No.2 herein on
30.08.2012.
Upon considering these reports, respondent No.1 has issued
proceedings dated 31.08.2012, wherein he has directed respondent No.2 to submit
a specific report considering the fact that due to recommendations of the
Assurance Committee, no shops were notified for ward Nos.13, 14 and 15.
Thereafter, the whole process was redone. The Prohibition and Excise Inspector
submitted his report on 12.09.2012, the Assistant Prohibition and Excise
Superintendent on 13.09.2012 and the Prohibition and Excise Superintendent -
respondent No.3 on 12.09.2012.
It is relevant to note that in all these two
sets of reports submitted by the officials of the Excise Department, they have
consistently recommended for grant of permission to the petitioner for shifting
the liquor shop to ward No.14.
After receiving the second set of reports,
respondent No.1 has once again issued proceedings dated 03.10.2012, wherein he
has observed that even though he has directed respondent No.2 to submit his
specific report, he has not submitted any report and therefore, he has once
again directed respondent No.2 to submit a specific report along with topoplan
duly signed by respondent No.3.  While submitting his third report dated
08.10.2012, respondent No.3 has completely changed his tenor, wherein he has
stated that even though ward No.14 is not specifically included in the list of
wards in which location of A-4 shops has been banned, inasmuch as no shop has
been notified for ward No.14, it is implied that opening of shops in the said
ward is also prohibited.
Therefore, he has opined that ward No.14 also comes
under the prohibited area and that the request of the petitioner to shift his A-
4 shop to the said ward may not be accepted.

On 19.10.2012, respondent No.1 has issued another proceeding directing
respondent No.2 to examine the objections stated to have been raised by the
residents of ward Nos.14 and 15 for opening of A-4 shop in the said wards and
ensure that the shop is established without further loss of time by personally
examining the matter.
Thereafter, respondent No.2 has submitted his report on
26.10.2012, which is on identical lines as that of respondent No.3.  Despite the
two adverse reports of respondent Nos.2 and 3, respondent No.1 has issued
proceedings dated 14.11.2012, wherein it was inter alia mentioned that the
petitioner, who was allotted shop at licence fee of Rs.46,00,000/- could not
establish A-4 shop at the notified area due to the public agitation, that he has
requested to accord permission to shift his A-4 shop to ward No.14 or to any one
of the ward Nos.11, 17, 19, 23 and 26 of Tirupati Municipal Corporation. It was
further observed by respondent No.1 that respondent Nos.2 and 3 have initially
recommended for relocation of A-4 shop to ward No.14 and that as the said ward
does not fall within prohibited wards as per the Assurance Committee guidelines
and as the petitioner could not establish A-4 shop even after lapse of four
months, he has directed respondent No.2 to permit the petitioner to establish A-
4 shop at ward No.14 or in any one of ward Nos.11, 17, 19, 23 and 26, which are
not objectionable and not against the guidelines of the Assurance Committee.

Interestingly, instead of permitting the petitioner to open A-4 shop in terms of
order dated 14.11.2012, 
respondent No.3 has passed an order on 01.12.2012, 
wherein he has rejected the petitioner's request for permission to establish his
A-4 shop in ward No.14 as the same comes within the prohibited area declared by
the Assurance Committee.  
The petitioner was instructed to procure suitable
premises and submit proposals as per Rule 28 of the Andhra Pradesh Excise (Grant 
of License of Selling by Shop and Conditions of License) Rules, 2012.  
Feeling
aggrieved by the inaction of respondent Nos.2 and 3 in implementing the order of
respondent No.1, the petitioner filed this writ petition.

During the hearing of the case, the learned Government Pleader for Prohibition
and Excise has stated that the competent authority to permit shifting of A-4
shop is respondent No.1, that respondent Nos.2 and 3 can only abide by the
directions issued by him.
As this Court felt that in view of the specific
direction issued by respondent No.1, vide his order dated 14.11.2012, to
respondent No.2 to allow the petitioner to establish A-4 shop at ward No.14 or
any one of the wards referred to above, the order dated 01.12.2012 passed by
respondent No.3 is diametrically contrary to the said order, which prima facie
constitutes grave insubordination, this Court has adjourned the case on
28.03.2012 directing respondent No.1 to file his personal affidavit indicating
his response to the order passed by respondent No.3.

Accordingly, respondent No.1 filed his affidavit in the form of a counter-
affidavit.  It is indeed disappointing to note that respondent No.1, instead of
taking exception to the conduct of respondent No.3, has supported his action in
rejecting the request of the petitioner for relocation of the shop in ward
No.14.  It is also surprising that respondent No.1 has given undue weight to the
opinion of the District Collector, Chittoor, who is only the auctioning
authority besides being a member of the Implementation Committee of the decision
of the Assurance Committee constituted by the Andhra Pradesh Legislative Council
and who has no say in the matter of permission to locate shops upon shifting
from one place to another.

From the facts referred to above, it is evident that the petitioner has come out
with a genuine reason for shifting of the shop from S.N.puram area which falls in Tirupati Urban Mandal to any one of the wards and in particular ward No.14, where he has identified his premises. 
 While in the two sets of reports
submitted by respondent Nos.2 and 3, they have opined that ward No.14 is not
included in the list prepared by the implementation committee banning location
of the A-4 shops, suddenly they have changed their version in the third set of
reports submitted by them.  Even in these reports, it is not the specific case
of respondent Nos.2 and 3 that ward No.14 was included in the prohibited list,
but from the fact that the District Collector has not notified the said ward for
location of the shops, they have inferred that the same is included in the list
of prohibited wards.  
It is also interesting to note that in another case
pertaining to M/s Yallamuri Wines, of which one
Smt.Y.Sujatha, is the Proprietrix, respondent No.1 has issued two proceedings on
06.11.2012 and 06.12.2012.  Copies of those proceedings are filed by the
petitioner along with his reply affidavit.  While considering the request of M/s
Yallamuri Wines for permission of locating the shop in ward No.14 instead of
ward Nos.8 and 10, respondent No.1 has considered the opinion of the District
Collector, Chittoor and he has differed with his opinion.
It is relevant to
reproduce the relevant portion of the order passed by him on 06.11.2012 as
under:
"The Collector and District Magistrate has issued the following instructions
with regard to establishment of A-4 shops at 14th ward

"Ward No.14 has no shops in the previous years.  It is implied during
notification that ward No.14 is also a prohibited ward in view of the commitment
made to the assurance Committee. Therefore ward No.14 is also a prohibited ward
shall at no circumstance be considered for establishing shops.  Public have
filed their grievance that ward No.14 shall remain free of shops in the interest
of the welfare of the residents. Therefore in view of the public representation
and also the fact that ward No.14 was free of shops previously, It is decided to
prohibit shops in ward No.14 in the interest and welfare of the public.
Moreover no license was granted in ward No.14 during the auction, hence the
question of entertaining any request does not arise at this point in time, which
will violate the spirit of auction and transparency and level playing field."
Further the Deputy Commr of Proh & Excise, Chittoor has reported in the
reference cited that the telephonic instructions with regard to given permission
to shift the premises of A4 shop of M/s Yalamuri wines to 14th ward of Tirupathi
Municipal Corporation was appraised to the District Collector, Chittoor.  The
District Collector opined and endorsed that since it is already decided that
ward No.14 has to be exempted. 

The matter has been carefully examined.  The wards where there would be no shops 
were identified in the beginning of licence period of 2012-13 itself and
notified accordingly.  To insist that there shall be no shops in some more wards
may not be appropriate because it will have serious implications on the trade
and revenue.

Therefore, the District Collector and Magistrate, Chittoor is requested to act
accordingly in this matter."                    
(emphasis added)

As the said order was not implemented, the licensee has once again approached
respondent No.1 after respondent No.3 has rejected her request, as in the
present case, by an identical order passed on 01.12.2012.
  Respondent No.1 has
issued another proceeding on 06.12.2012, wherein he has clearly opined as under:
"The matter is once again examined, and it is observed that Ward No.14 is not
one among the 6 wards denotified earlier for establishing the A4 shops.  As such
CPE accorded permission to the applicant to shift her A4 shop to 14th ward.
Therefore, the Deputy Commissioner of Proh & Excise, Chittoor is requested to
convince the collector to implement the orders of the Commissioner of Proh &
Excise, A.P. Hyderabad issued in the reference 2nd cited."
(emphasis added)

The above discussed two orders of respondent No.1 would clinchingly establish
that he differed with the opinion of the District Collector, Chittoor, that ward
No.14 is included among the prohibited wards for establishment of A4 shops.  By
expressing this opinion in express terms, respondent No.1 directed respondent
No.2 to convince the District Collector, Chittoor to agree for opening of the A-
4 shop at ward No.14 by implementing his earlier order dated 06.11.2012.
Regrettably, in this case, respondent No.1 has taken a different stand in his
counter-affidavit even though in his proceeding dated 14.11.2012, he has
permitted the petitioner to shift the shop to ward No.14 or any other ward
Nos.11, 17, 19, 23 and 26.  Thus, I find grave inconsistency in the stand of
respondent No.1 between the pre and post filing of the writ petition.
Respondent No.1 being the Chief Controlling Authority in all matters connected
with the administration under Section 3(1) of the Andhra Pradesh Excise Act,
1968 (for short 'the Act') and competent to exercise all the powers of Collector
under the Act, he has failed to assert himself and ensure that his order
permitting the petitioner to shift the shop at ward No.14 is implemented by his
subordinate officers.
On the contrary, when respondent No.3 who is not vested
with the power or authority whatsoever to consider, leave alone, reject the
request for shifting of the shops has passed an order on 01.12.2012
diametrically contrary to the order passed by respondent No.1, instead of taking
a serious view of the conduct of respondent No.3, respondent No.1 goes to the
extent of supporting the indefensible act of respondent No.3.  This Court is
thoroughly dissatisfied with the manner in which respondent No.1 has dealt with
the patently illegal order passed by respondent No.3 even though he was given an
opportunity to take corrective steps.

Under Rule 28(3) of the Rules, the jurisdiction to permit shifting of the shops
is exclusively vested in respondent No.1. In this case, this Court is not really
concerned as to whether the decision of respondent No.1 to permit the petitioner
to shift the shop to ward No.14 is strictly in conformity with the said Rule or
not because the legality or otherwise of the order passed by him on 14.11.2012
permitting the petitioner to shift the shop is not in question in this writ
petition.  
This Court is only concerned with the non-implementation of the order
passed by respondent No.1.  As noted hereinbefore, the main reason for
respondent No.1 for not ensuring implementation of his own order is that ward
No.14 is included in the list of wards, where location of A4 shops is
prohibited.  However, as noted hereinbefore, there are as many as two
proceedings dated 06.11.2012 and 06.12.2012, whereby respondent No.1 has opined   
that ward No.14 is not a prohibited ward.  Therefore, I do not find any
justification whatsoever for the respondents in not permitting the petitioner to
shift the shop to ward No.14.  Having issued the proceedings dated 14.11.2012,
which are still holding the field, it is the bounden duty and obligation of
respondent No.1 to ensure that his subordinates carry out his orders in letter
and sprit.  
Respondent No.3 has indeed meddled with the issue over which he has
neither authority nor jurisdiction whatsoever by purporting to reject the
petitioner's application by passing an order on 01.12.2012.  
Such an action on
the part of respondent No.3 ought not to have been endorsed by respondent No.1.

For the aforementioned reasons, respondent No.3 is directed to permit the
petitioner to shift the A-4 shop to D.No.13-1-1091/A, P.K.street, ward No.14 of
Tirupati Municipal Corporation in terms of the proceedings dated 14.11.2012 of
respondent No.1 within two weeks from the date of receipt of a copy of this
order.

Subject to the above direction, the Writ Petition is allowed.

As a sequel to allowing the writ petition, W.P.M.P.No.48588 of 2012 filed by the
petitioner for interim relief shall stand disposed of as infructuous.
       
__________________________  
(C.V.NAGARJUNA REDDY, J)    
23rd April, 2013