Telangana High Court
Maddukuri Venkata Subba Rao, vs The Collector And District Magistrate, on 6 June, 2022
Author: T.Vinod Kumar
Bench: T.Vinod Kumar
HIGH COURT OF JUDICATURE AT HYDERABAD
FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
THURSDAY, THE TWENTY SIXTH DAY OF JUNE,
TWO THOUSAND AND FOURTEEN
:PRESENT:
THE HON'BLE SRI JUSTICE: NOOTY RAMAMOHANA RAO
WP .NO:17597 of 2014
Between:
Maddukuri Venkata Subba Rao, S/o Prasad,
..... Petitioner
AND
1. The Collector and District Magistrate, Khammam District, Khammam
2. The Government of Telangana, represented by its Principal
Secretary, (Panchayat Raj) Department, Secretariat, Hyderabad.
3. The Commissioner, Prohibition and Excise, Govt of Telangana.,
Nampalli, Hyderabad.
4. The Prohibitin 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.A4/08/2014 dated 14.06.2014 for allocating
the A4 liquor shop of 2014-2015 i.e. Venkatapuram Liquor Shop of
Venkatapuram village and Mandal of Khammam District, even after
unanimous resolution passed by the Grama Sabha of Venkatapuram
village by rejecting the proposal for conducting the allocation A4 Shop, 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 Venkatapuram
Liquor Shop.
The petition coming on for hearing, upon perusing the
Petition and the affidavit filed herein, and upon hearing the arguments of
SRI Ponnnam Ashok Goud, Advocate for the Petitioner, and GP for Proh &
Excise for Respondent Nos 1, 4, & 4, and GP for Panchayat Raj, for
Respondent No.2, the Court made the following.
ORDER:
The petitioner claims to be the resident of Venkatapuram Village and Mandal in Khammam District. It is the assertion of the petitioner that his village is 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 enquiry, 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. ......."
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 petitioner in this case is that the respective Gram Sabha 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.
ASSISTANT REGISTRAR //TRUE COPY// For ASSISTANT REGISTRAR To
1. The Collector and District Magistrate, Khammam District, Khammam
2. The Principal Secretary, (Panchayat Raj) Department, Govt of Telangana, Secretariat, Hyderabad.
3. The Commissioner, Prohibition and Excise, Govt of Telangana., Nampalli, Hyderabad.
4. The Prohibitin and Excise Superintendent, H.No.4-2-461, Police Housing Colony, Rotary Nagar, Khammam - 507 002. (Addressee Nos 1 to 4 by RPAD)
5. Two CCs to GP for Proh & Excise, High Court, Hyderabad (OUT)
6. Two CCs to GP for Panchayat Raj, High Court, Hyderabad (OUT)
7. One CC to Sri Ponnam Ashok Goud, Advocate (OPUC)
8. One spare copy Skm HIGH COURT NRR,J Drafted by: skm Drafted on: 27-06-2014 DATE: 26-06-2014 ORDER WP. No. 17597 of 2014 DIRECTION