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2003 DIGILAW 1117 (AP)

Todday Tappers Co-operative Society, Secunderabad v. Commissioner, Prohibition and Excise, Hyderabad

2003-09-03

L.NARASIMHA REDDY

body2003
L. NARASIMHA REDDY, J. ( 1 ) THE petitioner is a Toddy tappers Co-operative Society having its activity at Secunderabad. It holds a licence issued under the A. P. Excise (Arrack and Toddy Licences General Conditions) rules, 1969 (for short the Rules ), valid up to 31-3-2007. It was running its business in the Kakaguda area of Secunderabad in a portion of the premises bearing No. 3-7-99. The Prohibition and Excise Superintendent, hyderabad, the 2nd respondent had addressed letter dated 1-5-2003 taking exception to the running of the toddy shop in the said premises on the basis of the complaints said to have been received from various women organisations of the locality, and it was in this context the petitioner had obtained a lease in respect of premises bearing sy. No. 170 (Part of Mudfort, Secunderabad) from the 3rd respondent. On the selection of the premises by the petitioner, the 2nd respondent has issued a fresh licence to the petitioner in respect of the newly selected premises. ( 2 ) THE petitioner contends that when it was about to open the shop in the newly selected premises on the strength of the licence, the 4th respondent has objected to the same and did not permit it to establish the shop. The petitioner challenges the action of the respondents and seeks a direction to them to permit it to carry on the business in the newly approved premises. ( 3 ) THE 4th respondent, Executive officer, Secunderabad Cantonment Board, has filed counter-affidavit. The objections raised by the 4th respondent are threefold. Firstly it is contended that under section 210 of the Cantonment Act, 1924 (for short the Act ), licence is necessary for the establishment of the shop in question. Secondly it is contended that series of representations have been received objecting to the toddy shop in that area. Thirdly it is urged that the premises in respect of which the shifting licence was issued, in fact, belongs to the Cantonment board, and the 3rd respondent has not right or title over the said premises. ( 4 ) SRI P. Venugopal, learned Counsel for the petitioner submits that the petitioner was compelled to shift its shop from the portion of the premises bearing No. 3-7-99, and when it had secured alternative premises, which are approved by the Respondents 1 and 2, the 4th respondent has objected for the same. ( 4 ) SRI P. Venugopal, learned Counsel for the petitioner submits that the petitioner was compelled to shift its shop from the portion of the premises bearing No. 3-7-99, and when it had secured alternative premises, which are approved by the Respondents 1 and 2, the 4th respondent has objected for the same. According to him, Section 210 of the Act has no application, since the establishment of a toddy shop does not fall into any of the activities referred therein. As regards the objection raised by the 4th respondent about the title of the 3rd respondent he submits that the 3rd respondent holds valid sale deed, and it is not at all open to the 4th respondent to claim any rival title, that too, at this stage. It is also his contention that since the location of the premises is not opposed to any of the provisions of any Rules, no objections can be raised on the basis of complaints received from third parties. ( 5 ) LEARNED Government Pleader for excise submits that the petitioner was required to shift the shop from the portion of the premises bearing No. 3-7-99, in view of the objections raised by the residents of the locality. He contends that shifting licence was issued to the petitioner in respect of alternative premises and the department cannot be found fault with for the objections, which the petitioner is facing from the 4th respondent. ( 6 ) SRI Deepak Bhattacharjee, learned standing Counsel for the 4th respondent submits that vending of toddy comes within the activity contemplated under Section 210 of the Act, and unless the petitioner obtains a licence, it cannot be permitted to carry on the business in the Cantonment Area. He also submits that several representations from individuals and organisations have been received expressing their objections for establishment of a toddy shop in the premises in question. He also reiterates the contention of the Cantonment Board as regards the title in respect of the said premises. ( 7 ) AS observed earlier, the petitioner was required to shift the shop from the portion of the premises bearing No. 3-7-99, in view of the objections raised by the residents. It was in that context the petitioner had secured alternative premises belonging to the 3rd respondent. ( 7 ) AS observed earlier, the petitioner was required to shift the shop from the portion of the premises bearing No. 3-7-99, in view of the objections raised by the residents. It was in that context the petitioner had secured alternative premises belonging to the 3rd respondent. Now the objection is only almost exclusively from the 4th respondent for the running of the shop by the petitioner. ( 8 ) THE 1st objection is as regards absence of licence under Section 210 of the act in favour of the petitioner. Section 210 (i) of the Cantonment Act, insofar as it is alleged to be applicable to the activity of the petitioner, reads as under:"vendors of any medicines, drugs or articles of food or drink for human consumption (other than the flesh of pigs, milk, butter, bread, biscuits, cake, fruit, vegetables, aerated or other potable waters or ice of ice-cream) which are of a perishable nature. " ( 9 ) THE leaned Counsel for the petitioner disputes the applicability of this provision on the ground that toddy cannot be treated either as food or drink. This court is not convinced to agree with the learned Counsel. The expression "articles of food or drink for human consumption" is too wide in its purport. It takes in itself all articles of food or drink, which are for human consumption. The provision does not refer either to the nutritive or intoxicant value of the solid or liquid stuffs. It is not in dispute that toddy is a liquid, meant for human consumption. Therefore, it certainly falls in this category, thereby, it is mandatory for the petitioner to obtain licence under section 210 of the Act. ( 10 ) THE second objection was on the basis of the representations submitted by the local residents. It is too early to enter into any discussion on that aspect. The 4th respondent is yet to react through any written order on the basis of such objections. Similarly, the title dispute as regards premises in Sy. No. 170 (part) mudfort, Secunderabad, cannot be the subject-matter of adjudication in this writ petition. As and when the petitioner makes an application for grant of licence, the 4th respondent can certainly express its views or invite clarification from the petitioner, such a continuance has not arisen as yet. Similarly, the title dispute as regards premises in Sy. No. 170 (part) mudfort, Secunderabad, cannot be the subject-matter of adjudication in this writ petition. As and when the petitioner makes an application for grant of licence, the 4th respondent can certainly express its views or invite clarification from the petitioner, such a continuance has not arisen as yet. ( 11 ) UNDER these circumstances, the writ petition is disposed of leaving it open to the petitioner to apply to the 4th respondent for grant of licence under Section 210 of the act, in accordance with the prescribed procedure. On such application being made, the 4th respondent shall consider the same and take appropriate action expeditiously and not later than ten days from today. It shall be open to the 4th respondent to require such further information, or particulars, as it may feel necessary. ( 12 ) THE learned Counsel for the petitioner also contends that the petitioner could not conduct any business beyond 14th august, 2003, and therefore, it is entitled for remission of the licence fee. This aspect cannot be adjudicated by this Court. It is for the petitioner to make an application in this regard to the 2nd respondent, who in turn shall consider the same and pass appropriate orders. No costs.