Andhra HC (Pre-Telangana)
Toddy Tappers Co-Operative Society, ... vs Government Of A.P. Revenue Department, ... on 22 January, 1999
Equivalent citations: 1999(1)ALD655, 1999(1)ALT725
Author: Y.V. Narayana
Bench: B. Subhashan Reddy, Y.V. Narayana
ORDER Y.V. Narayana, J.
1. This writ petition is filed for issuance of a wit of mandamus declaring the action of the respondents in establishing new toddy shops at Shamshiguda-Bagh Ameer and at New Kukatpally (KPHB) in Balanagar Mandal of Ranga Reddy District, as illegal, arbitrary and against the Excise Policy of the Government and also in violation of the provisions of A.P. Excise (Lease of Right to Sell Liquor in Retail) Rules, 1969, and for a direction to the respondents 1 to 5 not to permit respondents 6 and 7 to carry on business in the said shops.
2. The matter was earlier heard by a learned single Judge of this Court, who, by his Judgment dated 10-9-1996, allowed the writ petition. The said judgment was also reported in Toddy Tappers Co-operative Society v. Government of A.P., !996 (2) An.W.R. 549. But, on appeal by the respondents, a Division Bench of this Court, by Judgment dated 26-9-1996, in Writ Appeal Nos.1103, 1113 and 1115 of 1996, set aside the Judgment of the learned single Judge and remitted the writ petition back to the writ Court for fresh hearing. The Division Bench, however, directed the matter to be posted before another Division Bench for final hearing. That is how the matter came up before us.
3. After the remand of the writ petition and before the matter could be taken up by us for hearing, learned Counsel for the writ petitioner filed VVPMP No.26919 of 1996 praying to dispose of the writ petition without going into the merits of the case in view of the agreement entered into between the petitioner and the 6th respondent. In the affidavit filed in support of the said petition, it is asserted that the President of the 6th respondent-society entered into an agreement on 6-10-1996 and 7-10-1996 pursuant to which, the 6th respondent shifted the 6th respondent-toddy shop to Shamshiguda area/ village and the President of the 6th respondent-society consequently claimed no right or interest in Bagh Ameer area. Learned Counsel for the 6th respondent also did not dispute the said factum. But, in view of the allegations levelled against the Government, especially against the 2nd respondent, learned Counsel for the 2nd respondent prayed that the matter be disposed of on merits.
4. The brief facts of the case are as follows: The petitioner, a toddy tappers cooperative society, having been granted lease by the Government to sell toddy in retail in Kukatpally, is carrying on business in Kukatpally area. According to the petitioner, Kukatpally consists of Kukatpally Housing Board, Shamshiguda, Bagli Ameer, Janata Nagar near 1DPL, Seetaram Basthi etc. As per the Excise Policy for the year 1995-96, which is the true replica of the Excise Policy of the Government for the previous year i.e., 1994-95, no new toddy shops shall be established anywhere in the State. The number of shops thai were sanctioned through out the State during that year are - 13,185. As per the petitioner, only those shops which were closed owing to cancellation of licence during the previous excise year can be revived in case a new toddy tappers co-operative society conies forward1. While so, it is alleged by the petitioner that contrary to the above excise policy, upon an application filed by the President of the 6tK respondent-society before the 2nd respondent, the 2nd respondent took unusual interest in the matter and moved the whole governmental machinery for getting the said application processed at various levels and ultimately succeeded in getting a governmental order issued by the Government (G.O.Rt. No.50 dated 11-1-1996) under which permission to establish a new toddy shop at Shamshiguda and Bagh Ameer was accorded. It is submitted that the policy does not permit such establishment in the middle of the Excise Year. It is further submitted that the 6th respondent-shop is situated just one kilometer away from the toddy shop of the petitioner-society and that the Government is not entitled to permit establishment of new toddy shop within a distance of 2 K.M. from the existing toddy shop. It is, therefore, alleged that the Government, especially the 2nd respondent, showed undue favour in granting leasehold rights to the 6th respondent-society by completely ignoring the excise policy which was introduced by his own Government. Consequent upon the establishment of the new shop, it is submitted that the petitioner-society is incurring huge losses every day. Hence, this writ petition.
5. Respondents 1, 2 and 6 filed their respective counters. On behalf of Respondents 3 to 5, Respondent No.5 filed counter. It is the case of the official respondents that as per Clause 7(b) of the Excise Policy for the year 1995-96, the Government is entitled to permit establishment of new toddy shops also in the State till the total number of shops established in the State does not exceed the limit fixed in the policy, i.e., 13,185. It is contended that since the number of shops which are functioning in the State is less than the limit stipulated in the excise policy, the Government is entitled to permit establishment of new toddy shops. Insofar as 7th respondent is concerned, it is submitted that his application is still pending with the Government and he is not yet granted any lease.
6. Respondent No.6 filed counter stating that Kukatpally village and Shamshiguda & Bagh Ameer villages are separate revenue villages. The Government is entitled to issue licence for establishment of one toddy shop in each revenue village and that since Kukatpally is a separate revenue village, which has no connection with Shamshiguda & Bagh Ameer revenue villages, the Government has got a right to permit establishment of a new toddy shop at Shamshiguda &Baghameer revenue villages. It is also submitted that para 7(b) of the policy is not a bar to the Government's power of establishing a new toddy shop as long as the Government does not cross the limit fixed in the policy. It is further submitted that permission was given by the excise authorities to establish the present shop only after considering various factors including the aspect of growing demand and the availability of tapping trees in the locality. It is, therefore, submitted that the allegation that the 2nd respondent has shown undue favour in the matter is without any basis and is motivated with evil intentions.
7. In the light of above rival contentions, the point that arises for our consideration would be whether the Government has got power to establish new toddy shops in the middle of an excise year.
8. As has been held by the Supreme Court in Nashirwar v. Slate of M.P., , the State has the exclusive right or privilege of manufacturing and selling liquor. It grants such right or privilege in the shape of a licence or a lease. The State has the power to hold a public auction for grant of such right or privilege and accept payment of a sunj in consideration of grant of lease. It further held that:
"The history of excise law shows that the State has the exclusive right or privilege of manufacture or sale of liquor. Trade in liquor has historically stood on a different footing from other trades. Restrictions which are not permissible in other trades are lawful and reasonable so far as the trade in liquor is concerned."
9. It is the common knowledge of all of us that mere enactment of laws does not always bring in the effect which the Legislative Body wishes. Therefore, if one wants to achieve results from out of such an enactment, one should take the burden of implementation of such an enactment also. Therefore, the executive body has got a salutary duty to see that the legislation is implemented properly. In its attempt to achieve the objects that are put forth in the particular enactment, the State is at liberty to come forward with a fool-proof policy introducing suitable guidelines/norms. In fact, the survival of any Government which is elected in a democratic polity very much depends upon the policies of such a Government. Therefore, it will be (he primary object of any democratic Government to strive hard for the welfare of the people by suitably introducing and, if need be, by changing its policies from time to time. If the Government is of the opinion that the particular policy which is introduced by it does not suit to the requirements of the people in view of any change in the circumstances, it is bound to relax any clause or clauses in the policy and pass suitable orders by duly responding to the changed circumstances. Thus, it cannot be said that the Government is not entitled to deviate from its own policies and if the circumstances so warrant any change of the existing policy, we are of the view that, the Government is bound to deviate from the original policy and can pass suitable orders accordingly which would best serve the interests of the people. It must not also be forgotten here that the policy decisions are not statutes and therefore thy do not have any statulory force of binding effect upon the Government. Still, it is needless to point out that, all the policy decisions must necessarily be within the broad framework of the particular enactment following which such policies are evolved and power of judicial review is always available if any policy is challenged as being violative of any enactment or violative of any of the fundamental rights guaranteed by the Constitution. For these reasons, we are not ready to accept the contention advanced on behalf of the petitioner that the Government has no power to either bye-pass or relax any of the clause or clauses of its own policy in dealing with any individual case. Be that as it may, even otherwise also, having minutely examined the excise policy for the relevant year, we are not inclined to uphold the contention of the learned Counsel for the petitioner that the Government has either by-passed or relaxed any clause or clauses of the Excise Policy for the year 1995-96 in issuing the impugned G.O. We shall now deal with that aspect.
10. In exercise of the power contained in Entry 8 of List II in Schedule VII of the Constitution, the Legislature of the State enacted the law relating to the production, manufacture, possession, transport, purchase and sale of intoxicating liquor and drugs, levy of dulies of excise and countervailing duties on alcoholic liquors for human consumption and opium, Indian hemp and other narcotic drugs and narcotics and matters connected therewith, which is called as the Andhra Pradesli Excise Act, 1968, (for short, 'the Act1)' Chapter IV deals with manufacturing, possession and sale of excisable articles. Subsection (1) of Section 13 prohibits manufacturing and possession of all excisable articles including tapping of an excise tree, except under a licence. Section 17empowers the Government to grant lease of licence to any person, subject to any conditions that may be fixed in that regard, either to manufacture or sell by wholesale or by retail any intoxicant in the State. Section 23 authorises levy of excise duty or fees, as the case may be, in consideration of the grant of lease or licence for the exclusive privilege in respect of liquor or any other intoxicant under Section 17. Section 73 enables framing of Rules for the purpose of proper implementation of the Act. Insofar as toddy is concerned, the following are the Rules which are in force: 1) A.P. Excise (Arrack & Toddy Licences Genera! Conditions) Rules, 1969; 2) A.P. Excise (Lease of Right to Sell Liquor in Retail) Rules, 1969 and 3) The A.P. Excise (Tapping of Trees & Toddy Shops - Special Conditions of Licence) Rules, 1969. The provisions of the Act and the various Rules framed under the Act virtually gave monopoly to the State in the manufacture and sale of intoxicant liquors in the State which, in fact, is the intention of the Constitution. With a view to carry on the avowed object for which the Act and the Rules are broughtforth, the Government of the State use to formulate its own policies in the matter of manufacture or sale of the intoxicating liquors every year prescribing certain guidelines, norms and also necessary conditions for establishing new toddy shops in the State, fixing licence fee, fixing maximum limit of the number of shops and for such other purposes which the Government feels it necessary to be included in the policy. Para 1.2 of the Excise Policy on Toddy for the year 1994-95 (which is adopted for the excise year 1995-96) stipulates that in all Municipalities and Municipal Corporations, toddy shops shall be allotted only to Toddy Tappers Cooperative Societies (TCSs). As per para 1.4, the shops which are closed due to cancellation of licenses during the current year and in cases where no applications are received in the previous lease year and which are in the sanctioned list for the existing year can be permitted to be revived if new TCS or TFT comes forward. Para 2 deals with licensing of toddy shops to the Tappers Cooperative Society/Tree For Tapper Scheme. Para 2.4 deals with establishment of TCSs in hamlets. As per para 2.5, where there are more than one Gram Panchayat in a revenue village, a separate Tappers Co-operative Society/Tree for Tapper Scheme may be considered for each Gram Panchayat, subject to the approval of the Commissioner of Excise on merits of each case. Para 2.7 laid down procedure for disposal of toddy shops. As per para 2.8, the Collector (Excise) shall select new Tappers Co-operative Society/Tree for Tapper Scheme and allot them to TCS/TFT. During this excise year also, as was done in the previous year, the Government decided to continue the existing total number of toddy shops (i.e,, 13,185). Para 7 (a) reflects the above decision. In the very same para, it is further stipulated that the above figure includes the 567 villages where toddy shops were sanctioned but could not be licenced during the previous excise year for want of applications either for TCS/TFT. There is an express prohibition under Para 7 (b) against the establishment of new toddy shops other than as mentioned above in the policy. It is necessary to exlract para 7 (b) hereunder which reads thus:
"7 (b) No New Toddy shops other than as mentioned above shall be proposed for 1994-95."
11. Thus, as per the policy for the year 1995-96, no new toddy shops other than as mentioned in the said policy shall be proposed during that year. A plain reading of various paras of the above excise policy leaves no doubt in our mind about the establishment of new toddy shops in the State. In para 7 (a), the Government fixed the maximum limit on the total number of toddy shops in the State as 13,185 and wanted that only those shops be run. One of the main objects of the excise policy, 1995-96 is that the total number of shops fixed in the policy does not exceed the limit fixed in the policy. But, when the said target fixed in the policy could not be reached at the beginning of the excise year, and if any Tappers Co-operative Society comes forward subsequently seeking licence from the Government for establing a new shop in a village where there is no shop in existence, the Government is at liberty to pass orders granting licence to such Tappers Co-operative Society, provided all other conditions/norms fixed in the Act/Rules/Policy are fulfilled and we are of the view that the Government committed no illegality in granting permission to establish a new shop by issuing the impugned G.O. The contention raised by the learned Counsel is, therefore, rejected.
12. The petitioner raised another stale contention that before conferring the right of lease to sell toddy in retail in favour of any Society, the Government has to publish a gazette notification but in the case of 6th respondent, the said practice is given a go-bye. But, this contention is to be mentioned only for its rejection because issuance of notification would arise only when the shops are put to public auction. Since the said system of auctioning was withdrawn by the Government long back, which decision appears to have been taken with a view to avoid unhealthy competition among the tapping community, question of publication of notification does not arise in this case.
13. The other contention of the petitioner is that the distance between the petitioner's shop and the 6th respondent's shop is only one kilometer; that Shamshiguda and Bagh Ameer fall within the area of Kukatpally Municipality within those local limits the petitioner's shop is functioning and that since no new shop shall be established in Municipalities within a distance of one K..M., from the existing shop, the action of the Government in permitting establishment of shop by 6th respondent is impermissible under the policy. But, we must say that this contention is only synthetic. Learned Counsel for the respondent produced before us copy of Gazette Extra-ordinary Notification dated 5-12-1991 wherein the jurisdiction of revenue villages has been determined. As seen from the said Gazette notification, Kukatpally-I, Kukatpally-II, Bagh Ameer and Shamshiguda are shown as four separate revenue villages. When the policy permits establishment of one toddy shop in each revenue village and when Kukatpally where the petitioner's shop is located and Bagh Ameer & Shamshiguda where the new shop is established are separate revenue villages, we do not find any illegality in establishing the new shop at Shamshiguda and Bagh Ameer villages. Therefore, this contention is also rejected.
14. The last aspect which we are called upon to decide is about the wild allegations levelled by the petitioner against the 2nd respondent, viz., a Minister of the State. It is alleged by the petitioner that the 2nd respondent was tlie person who was instrumental behind establishment of new shop by 6th respondent. It is alleged that the speed at which the file moved at various facets would itself speak volumes about the degree of favouritism shown by the high dignitary in favour of 6th respondent and therefore contends that 2nd respondent failed to discharge the functions which he is expected to do in exercise of the sovereign power entrusted to him by the Constitution. In reply to the said allegation, learned Counsel for the 2nd respondent contended that there is absolutely no favouritism shown by 2nd respondent in favour of 6th respondent. It is explained on his behalf that generally when anybody approaches a Minister of the Chief Minister and submits any representation requesting to ventilate his grievances, such representations will be received by such Minister or the Chief Minister, as the case may be, and an endorsement of its receipt would be made immediately thereon and in an attempt to solve the grievance or problem, suitable directions to the concerned authorities are given then and there itself by making a written endorsement on the representation and, if already a file is pending, a written direction to the concerned office to put up the concerned file is issued. In this case also, it is submitted that the 2nd respondent did the'same thing when the 6th respondent approached him with a representation. It is contended that the 6th respondent is not the only person who was permitted to establish a new toddy shop, but there were as many as 198 shops which were established in such a manner. It is, therefore, submitted that the allegation levelled against the 2nd respondent is baseless and designed with evil motives.
15. As has been held by the Supreme Court in M/s. Kasturi Lal v. State of J & K, , the burden is very heavy upon the person who challenges the validity of any action taken by any governmental authority to show that such action is wanting in unreasonableness or is unconstitutional, by placing proper and adequate material. In this case, except levelling a bald allegation against the 2nd respondent that the 2nd respondent caused the file to move at an unusually rapid pace, there is no malerial whatsoever which raises an iota of suspicion against 2nd respondent. Moreover, we have perused the various G.Os. wherein orders which are similar to the impugned G.O. were issued establishing new shops. Some G.Os. were issued within 2 to 4 months after the Government issues memo calling for remarks from the Excise authorities and some were issued even before 2 months. In the case on hand, the governmental memo was issued on 28-10-1995 and the impugned G.O. was issued on 11-1-1996 i.e., nearly after a lapse of two and half months period. It all depends upon the lime taken by the authorities at the lower rung in processing the application filed by a particular society. In view of the above and for the reasons stated in the forgoing paragraphs, we hold that the 2nd respondent committed no mala fides in the matter of granting of licence in favour of the 6th respondent. There are no merits in the writ petition.
16. The writ petition is accordingly dismissed. No costs.