Telangana High Court
Bandaru Srinivasa Rao, vs The Collector And District Magistrate, on 6 June, 2022
Author: T.Vinod Kumar
Bench: T.Vinod Kumar
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD
FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
FRIDAY, THE TWENTY SEVENTH DAY OF JUNE,
TWO THOUSAND AND FOURTEEN
:PRESENT:
THE HON'BLE SRI JUSTICE: NOOTY RAMAMOHANA RAO
WP .NOS: 17563, 17675 & 17678 of 2014
WP.No. 17563 of 2014:
Between:
Badavath Rajender, S/o. Mukunda
..... Petitioner
AND
1. The Government of Telangana, rep .by its Principal Secretary, Revenue (Excise) Department, Secretariat,
Hyderabad.
2. The Commissioner of Prohibition and Excise, Telangana, Nampalli, Hyderabad.
3. The Collector and District Magistrate, Khammam District, Khammam.
4. The Prohibition and Excise Superintendent, H.No. 4-2-461, Police Housing Colony, Rotary Nagar, Khammam -
507 002.
5. Sri Kappakula Sreenu, S/o. Bhadraiah, Seethampeta Village and Mandal, Khammam District.
.....Respondents
Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed
herein, the High Court may be pleased to issue a Writ, Order or direction more in the nature of Mandamus declaring the
action of the respondents in conducting drawl of lots for grant of licence to sell Indian Made Foreign Liquor & Foreign Liquor
by Gazette Shop No. 75 A4 at Garla Village (GP) of Scheduled Area without there being any consent from the Grama
Sabha of Garla Gram Panchayat is illegal, arbitrary and in utter violation of Clause (b) of Rule 8 of Andhra Pradesh
Panchayats Extension to Scheduled Areas (PESA) Rules, 2011 issued in G.O.Ms.No. 66 Panchayat Raj and Rural
Development (MDL.I Department dated. 24-3-2011 and contrary to Rule 24 of A.P. Excise (Grant of Licence of Selling by
Shop and Conditions of Licence) Rules, 2012 and consequently direct the Respondents to cancel the drawl of lots for
Gazette Shop No. 75 A4 at Garla Village and Mandal of Khammam District.
The petition coming on for hearing, upon perusing the Petition and the affidavit filed herein and upon hearing the
arguments of Sri P.V.Ramana, Advocate for the Petitioner and of G.P. for Prohibition and Excise for the Respondents 1 to
4.
WP.No. 17675 of 2014:
Between:
Bandaru Srinivasa Rao, S/o. Narayana
..... Petitioner
AND
1. The Collector and District Magistrate, Khammam District, Khammam.
2. The Government of Telangana, rep. by its Principal Secretary (Panchayat Raj) Department, Secretariat,
Hyderabad.
3. The Commissioner, Prohibition and Excise, Govt. of A.P., Nampalli, Hyderabad.
4. The Prohibition and Excise Superintendent, H.No. 4-2-461, Police Housing Colony, Rotary Nagar, Khammam -
507 002.
.....Respondents
..2..
Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed
herein, the High Court may be pleased to issue a Writ, Order or direction more in the nature of Mandamus declaring the
action of the District Collector, Khammam in issuing Gazette Notification No. A4/08/2014 dated. 14-06-2014 for relocating
the A4 liquor shop of 2014-2015 ie., Manuguru Shop No. 1 to 6 of Manuguru Village and Mandal of Khammam District in
the absence of conducting Grama Sabha of Manuguru Village, is illegal, arbitrary and in utter violation of statutory Rules
provided under Andhra Pradesh Panchayatas Extension to Scheduled Areas (PESA) rules, 2011 issued in G.O.Ms.No.66,
Panchayat Raj and Rural Development (MDL.I) Department dated. 24-03-2011 and Rule 24 of the Andhra Pradesh Excise
(Grant of Licence of Selling by Shop and Conditions of Licence) Rules 2012 and consequently declare that the
respondents cannot conduct any auctions for allocating Manuguru Shop No.1 to 6.
The petition coming on for hearing, upon perusing the Petition and the affidavit filed herein and upon hearing the
arguments of Sri Ponnam Ashok Goud, Advocate for the Petitioner, G.P. for Prohibition and Excise for the Respondents 1,
3 & 4 and of G.P. for Panchayat Raj for the Respondent No.2.
WP.No. 17678 of 2014:
Between:
Podem Venkateswarlu, S/o. Mallaiah
..... Petitioner
AND
1. The Collector and District Magistrate, Khammam District, Khammam.
2. The Government of Telangana, rep. by its Principal Secretary (Panchayat Raj) Department, Secretariat,
Hyderabad.
3. The Commissioner, Prohibition and Excise, Govt. of Telangana, Nampalli, Hyderabad.
4. The Prohibition and Excise Superintendent, H.No. 4-2-461, Police Housing Colony, Rotary Nagar, Khammam -
507 002.
.....Respondents
Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed
herein, the High Court may be pleased to issue a Writ, Order or direction more in the nature of Mandamus declaring the
action of the District Collector, Khammam in issuing Gazette Notification No. A4/78/2013 dated. 14-06-2014 for allocating
the A4 liquor shop of 2014-2015 ie., Aswapuram Shop No. 1 & 2 of Aswapuram Village and Mandal of Khammam District
in the conducting Grama Sabha of Aswapuram Village without quorum, is illegal, arbitrary and in utter violation of statutory
Rules provided under Andhra Pradesh Panchayatas Extension to Scheduled Areas (PESA) rules, 2011 issued in
G.O.Ms.No.66, Panchayat Raj and Rural Development (MDL.I) Department dated. 24-03-2011 and Rule 24 of the Andhra
Pradesh Excise (Grant of Licence of Selling by Shop and Conditions of Licence) Rules 2012 and consequently declare
that the respondents cannot conduct any auctions for allocating Aswapuram Shop No.1 & 2.
The petition coming on for hearing, upon perusing the Petition and the affidavit filed herein and upon hearing the
arguments of Sri Ponnam Ashok Goud, Advocate for the Petitioner, G.P. for Prohibition and Excise for the Respondents 1,
3 & 4 and of G.P. for Panchayat Raj for the Respondent No.2, the Court made the following
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ORDER:
" The petitioners claim to be the residents of Pocharam Village in Garla Mandal, Bandarugudem Village of Munuguru Mandal and Thirumalagudem Village of Aswapuram Mandal in Khammam District. It is the assertion of the petitioners that their villages are included in the notified Scheduled Area of Khammam District.
The Andhra Pradesh Panchayat Raj Act, 1994, for the present, in terms of Section 101 read with Section 102 of the Andhra Pradesh State Reorganization Act, 2014, applies to the State of Telangana.
As is too well-known, this Panchayat Raj Act has been ushered in for the purpose of honouring the constitutional commitment spelt out in Part IX of the Constitution and in particular, Article 243-M. Therefore, it has to be construed for furthering the objective of achieving local self-governance. Section 242-A is included in Part VI-A, pursuant to their insertion through A.P. Act No.7 of 1998 which was brought into force on 16.01.1998. Section 242-A(1) of the Act makes it clear that the provisions of this Part, namely Part VI-A shall apply to the Gram Panchayats, Mandal Parishads, Zilla Parishads constituted in the Scheduled Areas in the State. Sub-section (2) thereof has given preeminence to this Part by declaring that the provisions of this Part shall prevail over anything inconsistent therewith elsewhere in the said Act. Section 242-C dealt with the functions of the Gram Sabha, whereas Section 242-I declared that the Gram Panchayat or the Gram Sabha shall exercise such powers and perform such functions in such manner and to such extent as may be prescribed in respect of certain matters, which were listed out therein. Under clause (a) thereof, it is set out as under:
" enforcement of prohibition or regulation or restriction of the sale and consumption of any intoxicant."
Therefore, power has been conferred upon the Gram Panchayat or Gram Sabha, as the case may be, located in scheduled areas for enforcing prohibition or for that matter, its regulation or restriction of sale of any intoxicant.
It is not in dispute that alcoholic beverages answer the description of 'intoxicants' as per Section 2(19) of the Andhra Pradesh Excise Act, 1968. The expression 'intoxicant' has been defined in an inclusive manner by including any liquor and as per the definition of the expression 'liquor' found in Section 2(21) of the Act, it includes spirits of wine, denatured spirits, methylated spirits, rectified spirit, wine, beer, toddy and every liquid consisting of or containing alcohol and any other intoxicating substance which the Government may, by notification, declare to be liquor for the purpose of this Act. It will also be appropriate to notice, at this stage, that the Parliament has enacted the Panchayats (Extension to the Scheduled Areas) Act, 1996, Act No.40 of 1996. Section 3 of this Act 40 of 1996 declared that the provisions of Part IX of the Constitution relating to Panchayats are extended to the Scheduled areas subject to such exceptions and modifications as are provided in Section 4 thereof. Whereas Section 4 of this Legislation begins with a non-obstante clause by declaring that notwithstanding anything contained under Part IX of the Constitution, the Legislature of a State shall not make any law under that Part which is inconsistent with any of the following features described therein. Various clauses have been spelt out under Section 4 thereof. For our inquiry, clause (m) is relevant. It reads as under:
" while endowing Panchayats in the Scheduled Areas with such powers and authority as may be necessary to enable them to function as institutions of self-government, a State Legislature shall ensure that the Panchayats at the appropriate level and the Gram Sabha are endowed specially with - (i) the power to enforce prohibition or to regulate or restrict the sale and consumption of any intoxicant. ......."
..4..
Therefore, when Section 4(m) of Act 40 of 1996 is read with Section 242-A of the Andhra Pradesh Panchayat Raj Act, 1994, it becomes clear that a Gram Sabha or a Gram Panchayat located in Scheduled Areas is entitled to enforce complete prohibition or even regulate the sale of intoxicants.
The grievance of the petitioners in all these cases is that the respective Gram Sabhas have been convened and met and passed unanimous resolutions not to allow any sale of intoxicants in the respective Gram Panchayat areas. In the face of such resolutions, I am of the opinion that the Commissioner of Prohibition & Excise cannot independently exercise his powers and grant the necessary licences in terms of or in accordance with Section 13(f) read with Section 15 of the Andhra Pradesh Excise Act, 1968. The powers of the Commissioner of Prohibition & Excise or his subordinate officers is therefore, subject to the overriding power conferred upon the respective Gram Panchayats or Gram Sabhas, as the case may be in the aforementioned provisions contained in Act 40 of 1996.
I have therefore, no hesitation to suspend the operation of the notification issued on 14.06.2014 by the Prohibition & Excise Superintendent, Khammam and Kothagudem units respectively. This suspension of the notification would apply in respect of such Gram Panchayat/Gram Sabha areas where similar resolutions are passed like in the instant case. Therefore, the respective Superintendents of Prohibition & Excise, Khammam and Kothagudem are directed to verify by themselves all the Gram Panchayat/Gram Sabha areas situate in the Scheduled Areas and in case, a similar resolution is passed, immediately notify on the office notice board that they are withdrawing the said Gram Panchayat/ Gram Sabha area from the notification issued on 14.06.2014. This measure is adopted to prevent all the Gram Panchayats and Gram Sabhas queuing up before this Court for this very relief.
The Excise Superintendents will ensure that the resolutions passed by the respective Gram Panchayats/G ram Sabhas are in conformity with the quorum of attendance and only in respect of such resolutions, which are passed then alone, the necessary action may be taken based thereon."
ASSISTANT REGISTRAR //TRUE COPY// for ASSISTANT REGISTRAR To
1. The Principal Secretary, Revenue (Excise) Department, Government of Telangana, Secretariat, Hyderabad.
2. The Commissioner of Prohibition and Excise, Telangana, Nampalli, Hyderabad.
3. The Collector and District Magistrate, Khammam District, Khammam.
4. The Prohibition and Excise Superintendent, H.No. 4-2-461, Police Housing Colony, Rotary Nagar, Khammam - 507 002.
5. Sri Kappakula Sreenu, S/o. Bhadraiah, Seethampeta Village and Mandal, Khammam District.
6. The Principal Secretary (Panchayat Raj) Department, Govt. of Telangana, Secretariat, Hyderabad.
7. The Commissioner, Prohibition and Excise, Govt. of A.P., Nampalli, Hyderabad.
..5..
8. The Superintendent, Prohibition and Excise, Kothagudem, Khammam District.
9. Two CCs to G.P. for Prohibition & Excise, High Court, Hyd(OUT)
10. Two CCs to G.P. for Panchayat Raj, High Court, Hyd(OUT)
11. One CC to Sri P.V.Ramana, Advocate(OPUC)
12. One CC to Sri Ponnam Ashok Goud, Advocate(OPUC)
13. One spare copy.
SAH HIGH COURT NRRJ DATED: 27-06-2014 ORDER WP.NOS. 17563, 17675 & 17678 OF 2014 DIRECTION DRAFTED BY: SAH APPROVED BY:
DRAFTED ON: 28-06-2014 HIGH COURT NRRJ DATED: 27-06-2014 ORDER WP.NOS. 17563, 17675 & 17678 OF 2014 DIRECTION