Andhra HC (Pre-Telangana)
M/S. Bhaskara Wines I vs The State Of A.P. Rep., By Its Principal ... on 13 August, 2018
Equivalent citations: AIRONLINE 2018 HYD 122
Author: M. Seetharama Murti
Bench: M. Seetharama Murti
THE HON'BLE SRI JUSTICE M. SEETHARAMA MURTI Writ Petition No.22851 of 2018 13.08.2018 M/s. Bhaskara Wines I . Petitioner The State of A.P. rep., by its Principal Secretary, Revenue Department (Excise), Secretariat, Velagapudi, Guntur District & Counsel for the petitioner: Sri K. Venugopal Reddy Counsel for the Respondents 1 to 4 : Government Pleader for Proh.& Excise Counsel for the respondent no.5 : Sri N. Siva Reddy <Gist : >Head Note: ? Cases referred: 1.1996(1) ALD 476 (DB) 2.2003 (4) ALD 519 3.2008(1) ALD 138 4.AIR 2008 SC 2594 5.2007(3) ALD 128 (DB) THE HONBLE SRI JUSTICE M.SEETHARAMA MURTI Writ Petition No.22851 of 2018 ORDER:
This writ petition, under Article 226 of the Constitution of India, is filed by the petitioner requesting to issue a writ of mandamus declaring the action of the 2nd respondent in permitting the shifting of the 5th respondent A-4 shop vide proceedings, dated 25.06.2018, in C.R.No.210/2018/CPE/F2, without issuing notice to the petitioner and without properly considering the objections of the petitioner despite the directions, dated 23.04.2018, given by this Court in IA.No.1 of 2018 in WP.No.14266 of 2018, as arbitrary, illegal, unjust and contrary to the provisions of A.P. Excise Act, 1968. A consequential direction not to permit the 5th respondent Shop to conduct operations in the new premises near the petitioner-A4 shop is also sought.
2. I have heard the submissions of Sri K. Venugopal Reddy, learned counsel appearing for the petitioner, of the learned Government Pleader for Prohibition & Excise appearing for the respondents 1 to 4; and, of Sri N. Siva Reddy, learned counsel appearing for the 5th respondent. I have perused the material record.
3. From the facts pleaded, submissions made and contents of the material documents placed on record, the following basic facts are discernable: The petitioner shop was granted licence in Form A4 under the provisions of the A.P. Excise (Grant of Licence of selling by shop and conditions of licence) Rules, 2012 [hereinafter the Rules, for short] vide licence bearing no.12/2017- 19 for the period from 01.07.2017 to 30.06.2019. And, the petitioner A4 shop is being run under the name and style of M/s.Bhaskara Wines I at the premises bearing door no.4/56-13, Old Bus Stand, Kadapa, YSR Kadapa District. The 5th respondent A-4 shop was granted licence for carrying on business in Door no.1/443-2, Kotireddy Circle, YSR Kadapa District. While so, an application was made by the licencee of the 5th respondent A4 shop for shifting the said shop from the said premises to the premises bearing door no.4/505, Old Bus Stand, Kadapa, on the ground that the owner of the premises, where the shop is presently existing, wanted to demolish the building, which is in dilapidated condition, and that she is compelling the licencee of the 5th respondent shop to vacate the building. The Deputy Commissioner of Prohibtion & Excise/the 3rd respondent recommended for such shifting. While so, the licence holder of the petitioner-A4 shop submitted objections for the proposed shifting. The petitioner also filed WP.No.1398 of 2018. This Court, by order, dated 19.01.2018, directed the Commissioner of Prohibition & Excise, that is, the 2nd respondent to consider the objections of the petitioner and pass orders. Accordingly, the request for proposed shifting of 5th respondent shop was examined in the light of the objections filed by the petitioner; and, the request of the 5th respondent was rejected vide rejection orders, dated 23.02.2018, in C.R.No.210/2018/CPE/F2 on the ground that there are no compelling and valid reasons for considering the request for shifting of the 5th respondent shop from the existing premises to the proposed premises. Later, the licencee of the 5th respondent shop filed another application requesting for permission to shift the 5th respondent shop to a new premises situated in the building bearing door no.4/498-14 & 15. When the said application of the 5th respondent is pending consideration before the authority concerned, the licence holder of the petitioner shop filed WP.No.14266 of 2018. This Court, by an interim order, dated 23.04.2018, directed the Commissioner to consider the objections of the writ petitioner before passing any orders on the application in respect of the request for shifting of the 5th respondent shop. The 2nd respondent, having considered the application and also the objections, passed the impugned orders according permission for shifting of the 5th respondent shop from its existing premises to the afore-stated new premises. Aggrieved thereof, the petitioner filed the present writ petition.
4. On 05.07.2018, this Court, while admitting the writ petition, granted interim suspension as prayed for in IA.No.1 of 2018.
5. Seeking vacation of the said interim suspension order, respondents 1 to 4 filed IA.No.3 of 2018; and, the 5th respondent filed IA.No.2 of 2018. Nonetheless, learned counsel for both the sides requested to dispose of the writ petition instead of the vacate petition.
6. It is pertinent to note that one of the contentions of the 5th respondent is that the 5th respondent lodged a caveat and the same was duly registered by the Registry of the Court, on 03.07.2018, but, without prior notice to the counsel for the caveator 5th respondent, the afore-stated interim order was granted for the reason that the name of the counsel for the caveator is not printed in the cause list and further, as the name of the District was also wrongly shown as Guntur in the cause list. Be that as it may.
7. In the above stated backdrop, the question to be examined is whether the impugned order of the 2nd respondent granting permission for shifting of the 5th respondent A4 shop is valid and is sustainable under facts and circumstances of the case?
7.1 I shall now deal with the contentions of the petitioner in seriatim and examine whether all or any of the contentions of the petitioner merit consideration.
8. The first set of contentions of the petitioner are as under: -
After rejection of the first request for grant of permission for shifting of the 5th respondent shop from the existing premises to another premises, the licencee of the 5th respondent shop having filed another application before the 2nd respondent brought political pressure upon the 2nd respondent. The licencee of the 5th respondent shop relied upon false averments and placed fake material before the 2nd respondent, in collusion with the Prohibition & Excise Superintendent, Excise Unit, that is, the 4th respondent. The licencee of the 5th respondent shop relied upon fraudulent documents obtained from the municipal corporation to falsely show that the building is in dilapidated condition. The licencee of the 5th respondent shop misrepresented that the landlady/owner of the building made an application for removal of the building on the ground that it is in a dilapidated condition and that she requested him to vacate the premises in which the 5th respondent shop is being run. In-fact, the said owner of the building wrote a letter to the 2nd respondent stating that she never requested the licencee of the 5th respondent shop to vacate her building and that her building is not in a dilapidated condition and that she never paid any amount by way of challan to the municipal authority requesting for demolition of the above building and that the building is in good condition. The copy of the affidavit said to be of the said owner of the said building is also filed along with the writ petition. Thus, the 4th and 5th respondents collusively created false documents to support the request for proposed shifting of the 5th respondent shop.
8.1 Per contra, the case of the 5th respondent, in brief, is this: - The allegations made against respondents 4 & 5 are all false. The allegations that the licencee of the 5th respondent shop brought political pressure upon the 2nd respondent and colluded with the 4th respondent and misrepresented the facts and relied upon fraudulent documents etcetera are all false. Pursuant to the impugned orders of the 2nd respondent and the revised licence issued by the 4th respondent, the 5th respondent shop has already been shifted, on 29.06.2018 itself, to the new premises and the licence holder of the 5th respondent shop is continuing the business in the new premises. The allegations that the owner of the house did not make payment vide challan for demolition/removal of the building and that the building is in good condition are all false. In-fact, the application was made by this respondent to the 2nd respondent requesting to permit shifting of the 5th respondent shop by duly enclosing the notice issued by the owner of the building and the connected certificates. The landlady supported the case of the licencee of the 5th respondent shop by making a categorical statement at the time of enquiry made by the authority concerned pursuant to the application and the objections raised by the licence holder of the petitioner A4 shop.
8.2 Dealing with this first aspect, it is to be reiterated that the petitioner contends that the landlady, who is the owner of the premises in which the 5th respondent A4 shop is originally situated has never demanded the licence holder of the 5th respondent shop to vacate her building on the ground that it is in a dilapidated condition and that on the other hand, she submitted to the authority concerned that her building is in good condition and that she never paid an amount of Rs.3,000/- vide challan no.1013/CH/1140/17, on 22.06.2017 to the Municipal Corporation, Kadapa, seeking permission for demolition of the above said building and that she is not interested in demolition of the said building and that, therefore, the documents being relied upon by the 5th respondent are fraudulent. In-fact, the petitioner also filed self declaration affidavit said to be of the said landlady by name G.L. Vedavathi along with the material papers. He specifically contends that the building in question is ten years old. On the contrary, the request for grant of permission for shifting 5th respondent shop is based on the submissions that the building in which the licence holder of the 5th respondent shop is running the business is about 39 years old and that it is in a dilapidated condition and that the landlady is compelling him to vacate the property. The 5th respondent relies upon the statement of the landlady to substantiate its stand. The 5th respondent also produced the building owners/landladys sale deed, dated 12.08.2010, related to the subject premises in support of the contention that the building is 39 years old; and, it is particularly pointed out that in the Annexure 1A of the said document the age of the said building was mentioned as 31 years by the year 2010.
8.3 Now the short question is which of the two versions is true? 8.4 It is apt to now examine the submissions of the official respondents which are as under: - The owner of the building in which the 5th respondent A4 shop is situated obtained structural stability or soundness certificate, dated 07.03.2018, from Municipal Corporations Licensed Structural Engineer wherein it was stated that the existing building is 39 years old and is not fit for commercial usage and that it is not structurally safe. The licence holder of the 5th respondent shop received notice, on 01.04.2018, from the owner of the premises to vacate the building so as to facilitate demolition of the building, which is in dilapidated condition. The building owner paid Rs.3,000/- vide challan no.1013/CH/1140/2017, dated 22.06.2017, for permission to demolish the building and for reconstruction. During enquiry, the Prohibition & Excise Superintendent, Kadapa, consulted the building owner and enquired with her.
The said owner, G.L. Vedavathi, reiterated that she has requested the licence holder of the 5th respondent A4 shop to vacate her building so that the building can be renovated. She gave written statement, on 19.07.2018, before the Joint Commissioner (Distilleries), Office of the Commissioner of Prohibition & Excise, Vijayawada, stating that she has given building bearing door no.1/443- 2, Kotireddy Circle, Kadapa, on rent to the licencee of the 5th respondent A4 shop, C.V. Srinath Reddy, and that her building is in dilapidated condition and that, on 01.04.2018, she gave notice to the licence holder of the 5th respondent A4 shop to vacate the building and that in the meantime an unknown person has given representation to the Commissioner, Prohibition & Excise, with her forged signature, on 14.04.2018, stating that she did not give any notice to the licencee of the 5th respondent A4 shop and that she does not know about the representation, dated 14.04.2018, said to have been given to the Commissioner, Prohibition & Excise with her forged signature and that she has given notice to the licencee of the 5th respondent A4 shop stating that the building is in dilapidated condition and that except that notice she did not give any notice or affidavit or any representation to anybody contrary to the notice given to the licencee of the 5th respondent A4 shop. To her affidavit, she enclosed the structural stability/soundness certificate issued by the Municipal Corporation Licensed Structural Engineer and demand note (challan/memo), dated 22.06.2017, for permission to demolish and reconstruct the building. Therefore, the contentions of the licence holder of the petitioner shop that the licence holder of the 5th respondent shop in collusion with the 4th respondent made false representations and submitted fraudulent documents without the knowledge of the building owner are not correct.
8.5 Thus, before the authorities concerned, the landlady/owner of the building in which the 5th respondent A4 shop is situate reiterated her true version and affirmed her version that her building is in dilapidated condition and that she paid the amount by way of challan to the municipality and that she requested the licencee of the 5th respondent A4 shop to vacate her premises and that the documents to the contra are not given by her and that the same are forged by some unknown person. She confirmed her said version in writing before the competent officer. Thus, it is sufficiently established that the impugned orders were passed after examining the reports of field officers; on securing sufficient proof that the existing premises of the 5th respondent A4 shop is in a dilapidated condition and after its said condition as affirmed by the building owner was certified by the field officer. A plain consideration of the said aspect of the matter supported by documents lays bare that the contentions of the writ petitioner are untenable, devoid of merit and need no countenance.
9. The next set of contentions of the petitioner are as under: Vide Gazette No.1260, the R.D.O., Kadapa, issued notification, on 14.03.2014, for acquiring the proposed premises and other structures in the locality for road widening for construction of high level bridge to old Bus stand area, Kadapa. Some structures acquired are already demolished. Further demolitions of acquired structures were stopped due to stay order obtained by some of the aggrieved property owners, whose properties are subject matter of acquisition. Therefore, the premises proposed for shifting of the 5th respondent shop is the subject matter of acquisition and is liable for demolition. Hence, the permission for shifting granted to the licence holder of the 5th respondent shop is not valid. The contentions of the licence holder of the 5th respondent shop, in reply, are as under: The proposed building, bearing door no.4/498/14 & 4/498/15, in old bus stand area of Kadapa is below the Buggavanka high level bridge, that is, on the service road to Ravindra Nagar at Old Bus stand area, Kadapa. Further, the bridge was inaugurated by the Minister concerned, on 15.08.2016, and the bridge is being used by the commuters and, therefore, a request was made for grant of permission for shifting of the 5th respondent A4 shop to the afore-stated building bearing D.No.4/498-14 & 4/498-15 as the said building was not affected in the acquisition proceedings. The licence holder of the 5th respondent shop also produced Form I notice calling for claims for settlement through negotiations committee related to the acquisition proceedings and also photographs of the bridge to show that the bridge is inaugurated and is under use and that the proposed building into which the 5th respondent A4 shop is already shifted is not affected by the said acquisition and that the grant of permission for shifting, which was granted after due consideration of the matter, is valid. The official respondents in the counter affidavit filed in the matter endorse the said contentions of the licence holder of the 5th respondent. Hence, on the above analysis of the matter and taking into consideration the factual position asserted and prima facie established by the 5th respondent and the official respondents, this Court finds that the contentions of the writ petitioner are untenable and are devoid of merit.
10. The next contention of the licence holder of the petitioner A4 shop is that if the 5th respondent shop is permitted to be shifted to the new proposed premises, which is in the same area of his shop, it would affect his business adversely and that he is likely to suffer loss in his business. The respondents contentions are that it is not for the rival contender to prevent the grant of licence or shifting of shop of another licence holder on the ground that the rival contender would suffer business loss in case of such shifting and that the petitioner is having vested interest and not any genuine concern. It is also urged that the objections of the licence holder of the rival A4 shop are not tenable for the reason that he, being a rival businessman/competitor, has no locus standi in the light of the ratio in the decision of the Supreme Court in The Nagar Rice and Flour Mills and others v. N.Teekappa Gowda and Bros. & others [AIR 1971 SC 246]. In the said decision, the facts reflect that when a competitor in business sought to prevent change of location of another rice mill, the Supreme Court held that a competitor in the business cannot seek to prevent the owner of the other rice mill from exercising their right to carry on business as the right to carry on business is a fundamental right guaranteed under Article 19(1)(g) of the Constitution and such exercise of right is subject only to restrictions imposed by law in the interests of general public under Article 19(6)(i) of the Constitution of India. In support of the same proposition, reliance was also placed upon the following decisions of this Court: (i) Rajappa Kawati v. G.Hanumantha Rao & Ors. (ii) Ramya Wines v. Government of AP and others ; and, (iii) Venkata Ramana Agencies, HPCL Dealers, Kakinada v. District Collector, East Godavari, Kakinada and others . In Rajappas case [1 supra], a Division Bench of this Court held that a business rival has no locus standi to question the grant of permit to another person under the provisions of Motor Vehicles Act, 1988. In Ramya Wines case [2 supra], the petitioners therein questioned the notifications issued by the licensing authority inviting applications for grant of new licences for sale of Indian made foreign liquor to new applicants; however, this Court held that there cannot be any dispute with the legal proposition that the petitioners, who are aggrieved of grant of licence to the other shops in the area where the petitioners are running the shops, cannot be permitted to invoke the jurisdiction of this Court. In Venkata Ramana Agencies case [ 3 supra] the facts and ratio are as under: A dealer of a retail outlet of HPCL approached this Court seeking a declaration that the proposed action of the respondents 1 to 3 therein and others in permitting the non-official respondents to start a new retail outlet by issuing no objection certificate without considering the objections of the petitioner as illegal; the non-official 5th respondent contended that the writ petition is not maintainable at the instance of a rival trader; this Court has taken note of a Four-Judge Bench decision of the Supreme Court in J.M.Desai v. Roshan Kumar [AIR 1976 SC 578] wherein the Supreme Court held as follows:
The instant case falls well-nigh within the ratio of this Court's decision in Nagar Rice and Flour Mills v. N.T. Gowda [1970]3SCR846 wherein it was held that a rice mill-owner has no locus standi to challenge under Article 226, the setting up of a new rice-mill by another - even if such setting up be in contravention of Section 8(3) (c) of the Rice Milling Industry (Regulation) Act, 1958 - because no right vested in such an applicant is infringed.
51. For all the foregoing reasons, we are of opinion that the appellant had no locus standi to invoke this special jurisdiction under Article 226 of the Constitution. Accordingly, we answer the question posed at the commencement of this judgment, in the negative and on that ground, without entering upon the merits of the case, dismiss this appeal with costs.
In the light of the ratios in the decisions of the Supreme Court and our High Court, it follows that the licence holder of the petitioner A4 shop, who is a rival businessman/competitor, has no locus standi to file the writ petition. In this regard, the respondents also rely on the amended Rule position which is not disputed. Further, the 5th respondent also filed the notification vide G.O.Ms.No.112, Revenue (Excise-II) Department, dated 22.03.2017, whereby the Rules of 2012 were amended. It is also clear from the contentions of the official respondents that there will not be any revenue loss also to the Government as the proposed new premises and the old premises of the 5th respondent shop are within the same licence fee slab and as the proposed new premises is also within the same Municipal Corporation area. Thus, it is apparent that permission for shifting of the 5th respondent shop is accorded in accordance with Rule 25 of A.P. Excise (Grant of Licence of Selling by Shop conditions) Rules, 2012. The licence holder of the petitioner A4 shop could not show that the permission for shifting accorded to the licence holder of the 5th respondent shop is not in accord with the provision of Rule 25 of the said Rules of 2012 or any other Rule. Therefore, the contentions of the licence holder of the petitioner A4 shop are untenable and devoid of merit. And, it follows that it is not for the rival contender, that is, the licence holder of the petitioner shop to prevent grant of permission to the licence holder of the 5th respondent shop for its shifting.
11. Before parting, it is to be noted that the learned counsel for the petitioner placed reliance on the following decisions: (i) The decision in State Bank of India and Ors. V. S.N.Goyal was relied upon in support of the proposition that when once the request for shifting of the 5th respondent A4 shop was rejected, the authority concerned has become functus officio and that the said authority cannot review its decision and consider the fresh application of the licence holder for shifting of his shop, viz., the 5th respondent A4 shop. A perusal of the decision shows that the question involved was as to when the appointing authority in that case became functus officio. In this decision, it was observed that when once an authority exercising quasi judicial power, takes a final decision, such authority cannot review its decision unless the relevant statute or rules permit such review. The further question was as to at what stage such an authority becomes functus officio in regard to an order made by him. On facts, it was held that the appointing authority in that case has not become functus officio. Reverting to the facts of the present case, it is to be noted that the statute and the rules do not prohibit entertaining a second application. Further, the proposed premises in the first application, which was rejected, and the proposed premises in the second application, in respect of which permission was granted, are different premises with different door numbers and the quasi judicial order granting permission was made on ascertaining true facts and under different set of circumstances, which are already adverted to supra while dealing with the various contentions of the parties. Therefore, the above decision is not helpful to the petitioner. (ii) The facts in the decision in D.R.Sridhar Naidu v. Commissioner of Prohibition and Excise, AP, Hyderabad and others , reflect that the reason namely, the demolition of shop by the owner, which was pleaded in support of the request for shifting of shop from one ward to another, was found to be a non-existent and concocted ground. Whereas, in the case on hand, after detailed enquiry and reports from Field Officers, it was found that the reason assigned is valid. Such a conclusion was arrived at after taking into consideration the statement of the owner/landlady of the building where the 5th respondent A4 shop was originally situated. (iii) An unreported decision, dated 05.01.2018, rendered by a Division Bench in W.A.no.30 of 2018 in W.P.no.43151 of 2017, was also relied upon in support of the contention that the authority granting permission for shifting of the shop must exercise the power for valid reasons and such reasons must be his and not that of the applicant or the recommending authorities. In the case on hand, the impugned order reflects that the 2nd respondent passed the impugned orders as directed by this Court, nevertheless, by exercising his power independently after going through the material record placed before him including the proofs produced with regard to the soundness of the building, namely, the certificate of the Municipal Corporations Structural Engineer, challan for demolition of the building, and the statement of the landlady. Obviously, the impugned order was passed on consideration of such proofs, which disclosed that the existing premises of the 5th respondent A4 shop is in dilapidated condition and that the landlady who wanted to demolish the building had paid the amount under a challan to the Municipal Corporation and requested the licence holder of the 5th respondent shop to vacate the said premises. Further, the 2nd respondent recorded detailed reasons in the impugned order. Therefore, the order impugned reflects that it is one passed on independent exercise of the power but not on mere asking of the licence holder of the 5th respondent shop and on recommendations of the recommending authorities. Viewed thus, this Court finds that the decisions relied upon by the licence holder of the petitioner A4 shop, who has no locus standi, do not advance the case of the petitioner any further. Further, it is to be restated that pursuant to the impugned order, the 5th respondent shop is already shifted to the new premises.
12. To sum up: On due consideration of the facts and the Rule position obtaining and on the above analysis, this Court finds that the impugned order is passed for valid reasons and hence, the same does not warrant interference.
13. Accordingly, the Writ Petition is dismissed. There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
__________________________ M.SEETHARAMA MURTI, J 13.08.2018