Andhra HC (Pre-Telangana)
Asst. Commissioner Of Prohibition & ... vs K. Vidya Sagar on 28 October, 1998
Equivalent citations: 1998(6)ALD807, 1998(6)ALT706, 1999 A I H C 2381, (1998) 6 ANDHLD 807 (1998) 6 ANDH LT 706, (1998) 6 ANDH LT 706
Author: Umesh Chandra Banerjee
Bench: Umesh Chandra Banerjee
ORDER Umesh Chandra Banerjee, C.J.
1. The modern trend as regards judicial reviewability is judicial restraint in administrative action. The law is well settled since the decision of the Supreme Court in the case of Syed Yakoob v. Radhakrishnan, , culminating in its decision in Tata Cellular v. Union of India, , that the Court docs not sit as a Court of appeal, but merely reviews the manner in which the decision was taken by an administrative authority. It is not the decision which can be reviewed, but the decision-making process that can be called in question, and in the event, the law Courts find such a process to be arbitrary and not in accordance with the known principles of law, it would be a plain exercise of judicial power to set aside the administrative action. This is, more so by reason of the fact that the Court does not have the expertise to sit over the order or correct the administrative decision, and in the event, a review of the decision is permitted, it would be substituting its own decision without necessary expertise, which itself may be fallible. The observations of the Supreme Court in Tata Cellular's case (supra) lend support to the above.
2. It would, at this juncture, be convenient for us to advert to the factual aspect of the matter. The records depict that the petitioner was granted IL 24 retail licence by the appellant herein to locate the shop at premises bearing No.9-34/B & C, Gaddiannaram, Rangareddy District. The licence, however, was suspended by the appropriate agency on the ground that the premises was offending Rule 6 of the Andhra Pradesh Excise (Indian and Foreign Liquor Retail Sale Conditions of Licences) Rules, 1993 (for short '1993 Rules'). The writ petitioner-respondent herein, finding himself aggrieved with such an order of suspension, moved this Court under Article 226 of the Constitution of India by way of a writ petition being WP No.14382 of 1998, and this Court by order dated 28-5-1998 in WP MP No.17303 of 1998, did pass an order of suspension of the said order, as issued by the respondent-authority. The respondent-authority being aggrieved, challenged the interim order in WA No.988 of 1988, and by order dated 1-6-1998, this Court allowed the appeal and set aside the order of the learned single Judge. While allowing the writ appeal, this Court observed that it would be open to the respondent-writ petitioner to make a representation for shifting of his shop, and if such a representation is made, the appellate-authority was directed to take a decision on the same within one week from the date of receipt of the representation. The records further depict that the writ petitioner, in terms of the order of the appellate Court, did make a representation on 3-6-1998 for shifting of his shop into the new premises bearing No.4-61/7, Rajadhani Theatre Complex, Gaddiannaram. The respondent-authority, however, on such representation did pass an order rejecting the application for relocation of the shop at the proposed premises on the ground that there were in fact some objections from the neighbours, and as the proposed premises was located on N.H. No.9, near Dilsuknagar Bus Depot, it would create law and order problems. This order was impugned in the writ petition. For convenience sake, the relevant portion of the order dated 15-6-1998, as passed by the appellate-authority is extracted hereunder :
"..... In pursuance of the above orders issued by the Hon'ble High Court, the licensee of M/s. Jaideep Wines, Gaddiannaram submitted an application dated 4-6-1998 along with other documents to accord permission to shift IL 24 shop from the present premises bearing No.9-34/B & C to the new premises bearing No.4-61/17, Rajdhani Theatre Complex, Gaddiannaram.
The application and other documents were sent to the SHO, Saroomagar for enquiry into the matter and for submission of report.
Accordingly, the SHO, Saroomagar has submitted his report stating that the proposed premises is on N.H. No.9, near Dilsuknagar Bus Depot and it will create law and order problem to the public. Further the public and neighbours of the above proposed mulgi have made objection that if the wine shop is established in this locality, no ladies and children can come to their shop and it reflects on their business.
In view of the above, since there is objection from the neighbours as also proposed premises is located on N.H. No.9 near Dilsuknagar Bus Depot, it will create law and order problem to the public. Therefore, the request of the licensee of M/s. Jaideep Wines, IL 24 for shifting of IL 24 shop from the premises bearing No.9-45/B & C to the premises bearing No.4-61/7, Rajdhani Theatre Complex, Gaddiannaram, is hereby rejected."
3. It is this order which was challenged before the learned single Judge, and the learned single Judge upon recording the contextual facts observed as follows :
"...... It is common knowledge that wine shops are raided for various offences, and that cannot be a valid ground at all for refusal of the location of the shop when it is not contrary to the conditions laid down in Rule 6 of 1993 Rules. It should be noticed that liquor is not consumed at the shop premises. It should be purchased in the bottles or cartons and loose sales are prohibited. It is also necessary to mention that the consumption of liquor in public places is prohibited by law. Hence, it cannot be visualised how law and order problem would arise if the wine shop is permitted to be located at a particular place. The State Government is fully geared up to deal with the problems of law and order as and when they arise. Indeed, the source of law and order problem is not the location of a wine shop but the intoxicated effect of wine itself. The ground of objection by neighbours is also arbitrary and without any basis. Several bars and restaurants are permitted in thickly populated areas and also on the main roads. It is significant to notice that Rule 2 of the Andhra Pradesh Excise (Lease of Right to Sell Indian Liquor, Foreign Liquor and Beer in Retail Under IL-24 Licence) Rules, 1998 (for short '1998 Rules'), deals with grant of licences to retail dealers under IL-24 for the year 1998-99. They shall be governed by the conditions and procedure prescribed under 1993 Rules and A.P. Indian Liquor and Foreign Liquor Rules, 1970 (for short '1970 Rules'). As per Rule 29 (iii) of 1970 Rules, IL 24 licences can also be granted if the proposed bar premises is located on a main road used for shopping purposes. It is not in dispute that commercial activities are being carried on the main road of Gaddiannaram. Hence, rejection on the ground of objections by the neighbourhood is not tenable. Thus, the impugned order appears to be wholly arbitrary and passed only on the grounds not germane to the selection of the premises. Thus, the 1st respondent acted in excess of his authority."
4. The learned single Judge further went on to observe as follows :
"..... It is tme, as contended by the learned Advocate-General, that it is impermissible for this Court to embark upon an enquiry into the facts to adjudge the suitability or otherwise of the present premises upon a reappraisal of the evidence thus coming to a finding contrary to that reached by the 1st respondent (Bishnu Ram Borah v.
Pamg Saikia, AIR 1954 SC 898. It is, however, permissible for this Court to examine whether the impugned order was in accordance with the rules and whether the impugned order was one in accordance with the rules and whether there was any material on record to come to the conclusion that was reached by the 1st respondent that the conclusions are arbitrary or mala fide. I am of the view that the 1st respondent exceeded his authority and violated Rule 6 of the 1993 Rules, which is the only provision referrable for selection of a shop."
5. It we recapitulate the law on the subject of reviewability so far as the writ Courts are concerned, we do find that the High Court exercising jurisdiction under Article 226 of the Constitution, would not otherwise be authorised in law to sit as the appellate authority or an appellate forum, and as a matter of fact, the decision of the administrative authority, cannot possibly be reviewed by the High Court in exercise of its jurisdiction under Article 226 of the Constitution. The intervention of the High Court is restrictive in nature, and it is only when a decision-making process is tainted with some arbitrariness, the High Court would be otherwise competent to entertain such a petition. The factual context, as noted above, and more so by reason of the report of the SHO that establishment of wine shop might create law and order problem, and on the face of objections from the neighbours by reason of the fact that ladies and children being around in the area during the most part of the day, and the location being a crowded area, the matter shall have to be. examined on the above perspectives as to whether the administrative action can be termed to be arbitrary or not. The learned single Judge, however, unfortunately has not been able to appreciate this aspect of the matter. The learned single Judge took upon himself to decide that there cannot be any law and order problem by reason of the user of the following words as noticed above as well :
"..... Hence it cannot be visualised how law and order problem would arise if the wine shop is permitted to be located at a particular place......."
The observations of the Supreme Court in Tata Cellular's case (supra) categorically records tliat the Court does not have the expertise, and if a review of administrative decision is permitted, it will be substituting its own decision without necessary expertise, which itself may be fallible. In the event, the police authorities, who are in-charge of maintenance of law and order, come to a definite conclusion that happening of an event may lead to law and order problem, it is no part of the Court's duty to come to a finding tliat the problem would not be there and proceed accordingly. An Expert Body being a creature of the statute, is available in the city itself- When that creature of the statute comes out with a report that there may be or there is likelihood or possibility of a law and order problem, can the High Court in exercise of its jurisdiction under Article 226 of the Constitution, decry such a finding ? In our view, the question cannot, but be answered in the negative. The Court has no authority or jurisdiction to go into the issue and decry such a finding. Otherwise, the Court will be usurping the authority of a statutory creature. Admittedly, Dilsuknagar Bus Depot area is a very thickly populated one, where women and children arc available on the roads and on the streets in most part of the day and early evening. In the event, the excise authorities, having regard to the location, come to the conclusion that it will not be proper to allow a wine shop in such an area, can it be termed to be arbitrary so as to permit the intervention of the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution ? The answer again cannot, but be in the negative. Interference, as noted above, in exercise of powers under Article 226 of the Constitution is restrictive, and judicial restraint is the order of the day rather than activism. The learned advocate Mr. Chandra Mouli appearing in support of the writ petitioner-
respondent herein strongly relied upon Rule 6 of the 1993 Rules, and for convenience sake, Rule 6 is set out herein below :
Selection of premises :--(1) The auction purchaser subject to the approval of the Assistant Commissioner of Prohibition and Excise, shall select a suitable premises of the location of the shop within the village or locality, as the case may be notified in the Gazette. It shall be at least Hundred (100) metres away from the places of Public Worship, Educational Institutions, Hospitals and Highways except in the limits of Municipal Corporations.
Explanation :--For the purpose of sub-rule (1)-
(i) 'Place of Public Worship' means a temple registered with the Endowment Department, Mosque and Church and includes such other religious institutions, as the State Government may by order specify in this behalf;
(ii) 'Educational Institutions' means any Primary School, Middle School and High School recognised by the State Government or Central Government or any College affiliated to any University established by law;
(iii) ''Highway' means National Highways or State Highways and shall not include the part of the National Highway or State Highway which passes within the limits of Municipal Corporation, Municipal Council or the Gouthan in any village or Panchayat area.
(2) The distance referred in sub-rule (1) above shall be measured from the mid-point of the entrance of the shop along with the nearest path by which pedestrian ordinarily reaches to the mid-point of the nearest gate of the institution if there is compound wall and if there is no compound wall to the midpoint of the nearest entrance of the institution.
(3) The boundaries of the premises shall be indicated in the licence.
(4) There shall be only one entrance to the shop.
6. On a reference to the above rule, Mr. Chandm Mouli contended that on the wake of the legislative requirement, as contained therein, question of there being a discretion in the matter of selection of premises, does not and cannot arise. He further contended that in the event there is compliance with the formalities, as required under Rule 6, no amount of discretion would be left with the authority concerned to reject an application in the matter of selection of site. We are, however, unable to record our concurrence therewith. Rule 6 having the force of a statute, expressly lays down the words "suitable premises", and the location shall be "subject to the approval" of the Assistant Commissioner of Prohibition and Excise. In the event, the Legislature intended to confer Rule 6 a meaning, as is being contended by the learned advocate in support of the writ petition, the Legislature, in our view, would not have used the words "suitable premises", as without the same, the contention would have been fully justified. But addition of these two words "suitable premises" has really altered the situation. The word "suitable" has a much wider connotation, and has to be construed in its proper perspective being the location of a retail outlet for sale of intoxicants. In common English acceptance, the word "suitable" means and implies "that suits" (Chambers Dictionary), and that read with the words "subject to the approval" of the Assistant Commissioner of Prohibition and Excise, means and implies a total discretionary order, depending upon the situation. One should not only read discretion in Rule 6, but a very wide discretion, more so. by reason of the factum of the user of the word "suitable", which means and implies "well fitted for the purpose". Common English grammatical meaning of the words used "suitable premises" read with the words "subject to the approval" of the Assistant Commissioner of Prohibition and Excise, makes the situation altogether different from what has been contended in support of the writ petition. Incidentally, be it noted, that requirement of Rule 6 cannot possibly be said to be a hard and fast requirement having due regard to the language used, as noticed above, and as such, we feel it convenient to record that the same is merely illustrative in nature. A suitable place has to be selected having due regard to the requirement, as laid down in Rule 6, but that docs not mean and imply that the chapter ends there, otherwise the words "suitable" and "subject to approval", would be rendered totally otiose and nugatory.
7. Some amount of discretion ought to be there having due regard to the fact that the same amounts to legal licence, and admittedly there is no fundamental right in a matter of carrying on trade of intoxicants. It is a grant of privilege by the State Government to a licensee, and in the event, the concerned authority feels it expedient that a particular place or location, would not be suitable, question of interference does not arise, and it is where the Court would like to satisfy itself whether the decision of the State Government is informed with reasons or not. In the contextual facts, we do find that reliance was placed on the report of the SHO. The SHO being a creature of the statute and being in-charge of the law and order, in our view, question of ascribing the same to be arbitrary or not being in accordance with law, does not and cannot arise.
8. Mr. Chandra Mouli further contended that while it is true that the Court cannot sit in judgment over the wisdom of the Legislature, but in the event, of an administrative action, judicial review is permitted in the event of the same being unreasonable and it is on this aspect of the matter that Mr. Chandra Mouli has placed strong reliance on the decision of the Supreme Court in the case of State of Andhra Pradesh v. Mc. Dowell & Co., . Jeevan Reddy, J,, in the last cited decision did however exercise a caution to the effect that it should be remembered that in the case of administrative action, the scope of judicial review is limited. Let us now, however, deal with the three tests laid down by the Supreme Court as below :
Re (1) - Unreasonableness : The Supreme Court itself clarified this and attributed a meaning to the word 'unreasonableness' as irrationality. The issue arises whether in the contextual facts the administrative action called in question can be termed to be totally an irrational one. Depending upon the report of the SHO and passing an order of rejection, in our view, cannot be termed to be an irrational order.
Re (2) and (3) - Illegality and Procedural Impropriety; No illegality has been attributed to the order of the appellate-authority, neither any procedural impropriety and in any event there is no factual support in regard thereto. In that view of the matter, we need not dilate much on this score.
9. Incidentally, grant of approval as regards selection of premises ought to be read with necessary concomittance and variations, otherwise the law Courts would not be attributing a proper and true effect of the legislative intent. It has to be noted further, and as noticed above, there is no right as such, but a privilege being granted by the State Government, and to read Rule 6 of 1993 Rules as not being capable of any relaxation, and to read it as rigid, would be a violent departure to the intent of the Legislature, and as such, we are unable to record our concurrence with the submissions of Mr. Chandra Mouli that Rule 6 ought to be followed with utmost strictness and no laxity can be permitted in regard to selection of premises for housing the shop for sale of intoxicants. Unfortunately, this aspect of the matter has not been appreciated by the learned single Judge and as such fell into an error.
10. In the premise, this writ appeal succeeds. The writ appeal is allowed and the writ petition is dismissed. The order of the learned single Judge stands set aside and quashed. It is, however, made clear that further selection of premises can be had, and in the event of such a representation, the appellant-authority would deal with the same in accordance with law upon affording opportunity of hearing. No order as to costs.