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2002 DIGILAW 502 (AP)

R. Malla Reddy v. Government of AP, Hyderabad

2002-04-04

T.MEENA KUMARI

body2002
T. MEENA KUMARI, J. ( 1 ) THIS writ petition has been filed to declare the order of the tirst respondent passed in G. O. Rt. No. 734 revenue (Excise-Ill) Department dated 3-4-2001 and the consequential order of the third respondent passed in Proc. No. C/ 3131/98 dated 26-4-2001 planting licence in favour of the fourth respondent as illegal, arbitrary and without jurisdiction. ( 2 ) THE brief facts of the writ petition are as follows: the petitioner was granted an IL-24 licence under the provisions of the A. P. Excise Act for the excise year 1998-99 and the same was renewed for the year 2000-01. The petitioner was running the shop at cuddapah without contravening any of the conditions of the grant of licence or the provisions of the A. P. Excise Act and the rules thereunder. ( 3 ) IT is stated in the affidavit that the fourth respondent herein was also granted licence for 1998-99 and the same was suspended on 15-5-1998 by the third respondent on the ground that the fourth respondent has contravened the provisions of the A. P. Excise Act. It is stated that aggrieved by the said suspension of the licence, the fourth respondent filed w. P. No. 14503 of 1998 before this Court but the same was dismissed on 4-9-1998. Later, he also filed another W. P. No. 15827 of 2000 seeking a direction to renew the licence but the same was dismissed on 17-1-2001 as infiuctuous. Thus, the fourth respondent has no licence for the excise years 1999-2000 and 2000-2001. ( 4 ) IT is stated that the fourth respondent filed a revision before the first respondent questioning the orders of the third respondent wherein he cancelled the licence of the petitioner. The first respondent allowed the said revision on 3-4-2001 by giving benefit of doubt. It is stated that the saia order of the first respondent dated 3-4-2001 is not legal and valid. ( 5 ) IT is stated that the cancellation/suspention of the licence of the fourth respondent by the third respondent in the year 1998 became final and the fourth respondent without exhausting the appeal remedy provided under the Act has straight away invoked the revisional jurisdiction of the first respondent under Section 64 of the ap Excise Act. ( 5 ) IT is stated that the cancellation/suspention of the licence of the fourth respondent by the third respondent in the year 1998 became final and the fourth respondent without exhausting the appeal remedy provided under the Act has straight away invoked the revisional jurisdiction of the first respondent under Section 64 of the ap Excise Act. It is stated in the affidavit that as per Rule 4 of the AP Excise (Appeal and Revision) Rules, 1969, every application for revision has to be filed within 60 days from the date of the order and the proviso to rule empowers the Government to condone the delay. It is stated that the first respondent allowed the revision without there being any application filed by the fourth respondent seeking condonation of the delay. It is also stated that allowing the revision of the fourth respondent would amount to increasing the number of shops in the locality and the same is contrary to rule 28 of the AP Indian Liquor and Foreign liquor Rules, 1970 and also on the excise policy of a particular year. It is submitted that by allowing the revision by the first respondent would virtually amount to grant of fresh licence and thereby bypassing the procedure of the grant of licence provided under the Rules, the first respondent issued go Rt. No. 734, Revenue (Excise-III) department dated 3-4-2001. ( 6 ) THE learned Counsel for the petitioner submits that the fourth respondent without allowing the appeal remedy provided under the Act has directly filed the revision and the first respondent has allowed the revision though it was filed belatedly and that too without availing the appeal remedy and hence the impugned order of the first respondent is liable to be set aside. The learned counsel for the petitioners also submits that granting licence to the fourth respondent by suspending the order of the third respondent dated 15-5-1998 is contrary to rule 23 of the AP Indian Liquor and foreign Liquor Rules, 1970. ( 7 ) ON the other hand, the learned Government Pleader for Prohibition and excise submits that the writ petitioner is not aggrieved person to question GO Rt. No. 734 revenue (Excise-III) Department dated 3-4-2001. Moreover, the petitioner questioned the said order with mala fide intention and to have personal gain. ( 7 ) ON the other hand, the learned Government Pleader for Prohibition and excise submits that the writ petitioner is not aggrieved person to question GO Rt. No. 734 revenue (Excise-III) Department dated 3-4-2001. Moreover, the petitioner questioned the said order with mala fide intention and to have personal gain. This writ petition is also filed belatedly and hence the writ petition is liable to be dismissed on the ground of laches also. ( 8 ) THE material papers annexed to the petition shows that the impugned GO rt. No. 734 was issued on 3-4-2001 and the consequential order of the third respondent was issued on 26-4-2001. Though this writ petition was filed after lapse of 10 months, the petitioner did not put forth any valid reasons for not approaching this Court immediately after the third respondent passed the order. ( 9 ) IN this writ petition, the petitioner seeks a direction to declare the action of the state in allowing the revision petition filed by the fourth respondent. But, however, the petitioner has not supported his action by placing any material before this Court to term himself as an aggrieved person by the action of the State. The petitioner is a co- licencee as that of the fourth respondent . It is not his case that he is the aggrieved person because the public interest is affected by the state action and he has a right to question such a State action. It is also not the case of the petitioner that the public injury has been committed by the State by an act or omission and he is acting in bona fide and not for personal or private gain. The contentions raised in this writ petition would go to show that the petitioner has questioned the action of the State only for his personal gain and no material is placed before this Court to show that the action of the petitioner in filing the writ petition is not for personal or private gain. The contentions raised in this writ petition would go to show that the petitioner has questioned the action of the State only for his personal gain and no material is placed before this Court to show that the action of the petitioner in filing the writ petition is not for personal or private gain. ( 10 ) IN the case of S. P. Gupta and others v. President of India and others, the Supreme court held as follows: but the individual who moves the court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the court should not allow itself to be activised at the instance of such person and must reject his application at the threshold, whether it be in the form of a letter addressed to the court or even in the form of a regular writ petition filed in court. As a matter of prudence and not as a rule of law, the court may confine this strategic exercise of jurisdiction to cases where legal wrong or legal injury is caused to a determinate class or group of persons of the constitutional or legal right of such determinate class or group of persons or the constitutional or legal right of such determinate class or group of persons is violated and as far as possible, not entertain cases of judicial redress. This rule in regard to locus standi thus postulates a right-duty pattern which is commonly to be found in private law litigation. ( 11 ) IN this case, it is obvious from the averments in the affidavit that the allegations made against the State are purely of personal in nature and hence the petitioner cannot be categorized as an aggrieved person in view of the law laid down by this Court in the case of s. P. Gupta. ( 12 ) IT is also to be noted that the petitioner is doing business in liquor and his contention that he should be heard prior to grant of licence or refusal of licence to another person. This Court, in the case of coastal Papers Limited v, Govt. ( 12 ) IT is also to be noted that the petitioner is doing business in liquor and his contention that he should be heard prior to grant of licence or refusal of licence to another person. This Court, in the case of coastal Papers Limited v, Govt. of India and others held as follows: a rival trader cannot challenge the permit or licence issued to a competitor in the field. There is no vested right of monopoly in the business of starting of sugar units. Unhealthy competition and tendency towards monopoly and corruption deserve to be discouraged. Contentions that by granting licence to other, his right to carry on the business is affected, or would result in losses to him etc. , will be of no avail. To maintain that licence or permission granted to others has resulted in causing some loss, which would not have been caused if licence or permission not granted has to be established. Apart from this one has to show the subsisting justiciable right and his locus standi. Challenge, if any, only when permission is granted by authorities ignoring the statutory requirements or by an authority who does not have competency, and not otherwise ( 13 ) IN this writ petition, the petitioner is a trader doing business in intoxicating liquors and thus he is a rival trader to the fourth respondent. It is also manifestly clear that the A. P. Excise Act and Rules do not envisage that the rival trader shall be heard before grant of licence. In the above case, it has been held that a rival trader cannot challenge the permit or licence issued to a competitor in the field, as there is no vested right of monopoly. It is also held in the above case that the contentions that by granting licence to others, his right to carry on the business is affected or would result in losses to him etc. will be of no avail. Thus, In view of the above decision of this Court in the case of Coastal Papers Ltd. (2nd cited supra) it has to be held that a rival trader is not entitled to be heard prior to grant of licence. ( 14 ) IT is not the case of the petitioner that the authorities have no powers whatsoever to issue the licence or renew the licence under the A. P, Excise Act. ( 14 ) IT is not the case of the petitioner that the authorities have no powers whatsoever to issue the licence or renew the licence under the A. P, Excise Act. It has to be observed that the State has treated the unofficial respondent i. e. , the fourth respondent whose licence has been cancelled/suspended in the year 1998 as a separate class and the petitioner is not able to substantiate his contention by placing any material before this Court that also stands on the same footing as that of the unofficial respondent. It is also not the case of the petitioner that he has been discriminated against while issuing the licence to the fourth respondent. Under the above circumstances, it has to be held that the writ petitioner is not an aggrieved person and that he questioned the action of the State not bona fidely and only for personal or private gain. ( 15 ) THE Supreme Court in the case of Har Shankar v. Dy. E and T. Commissioner held as follows: these unanimous decisions of five constitution Benches uniformly emphasized after a careful consideration of the problem involved that the State has the power to prohibit trades which are injurious to the health and welfare of the public, that elimination and exclusion from business is inherent in the nature of liquor business, that no person has an obsolute right to deal in liquor and that all forms of dealings in liquor have, from their inherent nature, been treated as a class by themselves by all civilized communities. The contention that the citizen had either a natural or a fundamental right to carry on trade or business in liquor thus stood rejected ( 16 ) THE Supreme Court reiterated the same view in the case of State of Andhra pradesh v. MC. Dowell and Co that a citizen has no fundamental right to trade in intoxicating liquors. Thus, the petitioner has no right to question that impugned GO issued by the first respondent and the consequential order of the third respondent restoring the licence issued to the fourth respondent and that he is in no way affected by allowing the revision of the fourth respondent. Thus, the petitioner has no right to question that impugned GO issued by the first respondent and the consequential order of the third respondent restoring the licence issued to the fourth respondent and that he is in no way affected by allowing the revision of the fourth respondent. ( 17 ) THE other contention advanced by the writ petitioner is that by allowing the revision of the fourth respondent and granting licence to him would violate rule 28 of the AP Indian Liquor and Foreign liqour Rules, 1970. In this writ petition, the petitioner did not mention as to how many number of shops have to be located in that area and how many shops are presently existing. Without giving any data, the petitioner s contention that by allowing the revision filed by the fourth respondent, there would be an increase in the number of shops and it is contrary to the excise policy of the Government can not be countenanced. Since the petitioner did not mention the particulars of the shops existing and other relevant facts, this Court feels that the contention raised by the petitioner in this regard has no merits. ( 18 ) IN this case, the first respondent has allowed the revision by giving benefit of doubt by exercising its discretion. The petitioner failed to show how the impugned order of the first respondent is contrary to the A. P. Excise Act. ( 19 ) FOR the foregoing discussion, the writ petition fails on merits apart from delay and laches. Accordingly it is dismissed at the admission stage.