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2020 DIGILAW 731 (AP)

Parmi Naraiah v. State of Andhra Pradesh

2020-11-24

K.VIJAYA LAKSHMI

body2020
ORDER : 1. Heard Sri. O. Manoher Reddy, learned counsel for the petitioners, learned Government Pleader for Prohibition and Excise appearing for respondents 1 to 4 and Sri. Vedula Venkataramana, learned senior counsel appearing for the 5th respondent (impleaded respondent). 2. This writ petition is filed challenging the proceedings of the 4th respondent dated 28.10.2020, asking the petitioners to submit their explanation with regard to discrepancy noticed with regard to the door number and further instructing them not to transact the business until further orders. 3. Case of the petitioners is that, 1st petitioner was granted Form 2B licence under the provisions of the A.P. Excise [Grant of licence of selling by bar and conditions of license] Rules, 2017 (for short ‘the Rules, 2017’) to run a bar in the premises bearing D. No. 5-6-59/41, Sowmya complex, Vijayawada and the petitioners were running the bar and restaurant in the name and style of M/s. Vineela Sai Restaurant and Bar, they made an application to the respondents for shifting of the bar license from the present premises to premises bearing D. No. 48-16-39/6, Kamineni Nagar, Ballemvari Street, Vijayawada; the said application was considered by the respondents and a shifting order was issued by the Commissioner of Prohibition & Excise by exercising the power under Rule 17(3) of the Rules, 2017; petitioners were also permitted to change the name of the bar to M/s. Lucky's restaurant and bar and the same was communicated to the petitioners by the 4th respondent vide proceedings dated 21.10.2020 and the licence was also extended from 19.09.2020 to 30.06.2021; after issuance of the shifting orders, petitioners started conducting business in the new premises; while so, a complaint dated 27.10.2020 was filed by one S. Venkateshwara Rao, the licensee of M/s. Royal Touch Restaurant and Bar and basing on the said complaint, a report was called for by the 4th respondent from the Prohibition and Excise inspector; basing on the report from the Excise Inspector, impugned order was passed directing the petitioners to submit explanation within a period of three days with regard to the discrepancies in the door number and were, also instructed not to transact business until further orders. Challenging the same, present writ petition is filed. 4. I.A. No. 2 of 2020 is filed to permit the petitioner to implead him as 5th respondent in the main writ petition. Sri. Challenging the same, present writ petition is filed. 4. I.A. No. 2 of 2020 is filed to permit the petitioner to implead him as 5th respondent in the main writ petition. Sri. Vedula Venkataramana, learned senior counsel appearing for the implead petitioner submits that the proposed petitioner is not only a complainant but also running bar and restaurant in the premises at Kamineni Nagar, Vijayawada, where the writ petitions have also commenced the bar and restaurant. The said petition is ordered today permitting the proposed petitioner to come on record as 5th respondent in the main writ petition. 5. The said petition is ordered today permitting the proposed petitioner to come on record as 5th respondent in the main writ petition. 5. Counter-affidavit is filed by the 4th respondent stating inter-alia, that petitioners made an application to the 2nd respondent seeking shifting of the bar and restaurant and change of its name on 18.09.2019, but petitioners did not choose to specify the address proposed for shifting and failed to enclose necessary documents; later on petitioners submitted lease deed and on receipt of the documents, the 2nd respondent conducted enquiry and issued shifting orders on 20.10.2020; at this juncture, they received a complaint dated 27.10.2020 from one Sola Venkateswara Rao, licensee of M/s. Royal Touch Restaurant and Bar; on receipt of the same, they inspected the premises and enquired with regard to the said premises and learnt that the petitioners are running M/s. Lucky's restaurant and bar unauthorizedly in the premises bearing D. No. 48-16-39/6, instead of licensed premises bearing D. No. 48-16-30/8; the 4th respondent has issued notice calling for the explanation of the petitioners in accordance with Rule 9(3)(a) of the Rules, 2017; the said notice is not for cancellation or suspension of the license but only to curtail the business operations in an unauthorized premises; petitioners, instead of submitting their explanation, filed the present writ petition; application for rectification of the door number was filed by the petitioners on 02.11.2020 and the present writ petition was also filed on the same day; subsequent to the impugned notice, the respondents have inspected the premises bearing D. No. 48-16-30/8 and enquired with regard to the genuineness of the lease deed that was submitted for shifting of the bar and that they found that the very document is fabricated one and there is no such owner by name ‘Chalasani Murahkrishna’ in the premises bearing D. No. 48-16-30/8; instead of filing the lease deed from the actual owner, they filed some other document titled as lease deed, which is also fabricated one; on further enquiry, it was found that the very license submitted is also a fabricated one and hence, a detailed report was submitted to the 2nd respondent, who in turn instructed the 3rd respondent to initiate necessary action against the licensee; accordingly, the 3rd respondent issued show cause notice dated 05.11.2020 as to why license should not be cancelled on the ground of fraud and misrepresentation and prays for dismissal of the writ petition. 6. Contention of the learned counsel for the petitioners is that, according to Rule 5 of the Rules, 2017, the Deputy Commissioner is the competent authority to grant the privilege of bar and the Prohibition and Excise Superintendent shall issue licence in the prescribed form and hence, the 4th respondent has no power or jurisdiction to give directions to the petitioners to stop business transactions. He further submits that before granting licence, the excise authorities would inspect the bar premises and only after satisfying that the premises is in accordance with Rule 11, the license would be granted and that only after satisfying that the proposed premises for shifting satisfies the criteria prescribed in the rules, the 2nd respondent would grant licence and that in the license, the door number was wrongly typed and the petitioners did not notice the same, till the issuance of the impugned proceedings. He further submits that Kamineni Nagar and Murali Nagar are located opposite to each other and the road in between is called the Balem Vari Veedhi and that there is no dispute with regard to identification of the premises which was inspected by the officials and for which the plan is prepared and there is typographical mistake in the door number, for which necessary application was also made to the 2nd respondent for rectification of the door number of the license premises. 7. The main contention of the learned counsel for the petitioners is that the 4th respondent does not have jurisdiction to issue impugned notice dated 28.10.2020 and that according to Rule 5 of the Rules, 2017, the Deputy Commissioner is the competent authority to grant the privilege of bar and the Prohibition & Excise Superintendent shall issue licence in the prescribed form. His contention is that privilege of bar will be granted by the 3rd respondent and the 4th respondent will issue license in the prescribed form. As seen from the Form-II B license, which is filed along with the writ affidavit, the license itself was issued by the 4th respondent and hence, as rightly contended by the learned Government Pleader, the 4th respondent is the licensing authority. Even according to Rule 9 of the Rules, 2017, as contended by Sri. As seen from the Form-II B license, which is filed along with the writ affidavit, the license itself was issued by the 4th respondent and hence, as rightly contended by the learned Government Pleader, the 4th respondent is the licensing authority. Even according to Rule 9 of the Rules, 2017, as contended by Sri. Vedula Venkataramana, learned senior counsel, appearing for the 5th respondent, an application has to be made for grant of licence to the Prohibition and Excise Superintendent concerned and hence, even according to the said rule, the licensing authority is the 4th respondent and not the 3rd respondent. As the 4th respondent is the licensing authority, he is empowered to issue impugned notice. Learned Government Pleader also contended that the impugned order is only a notice, asking for explanation with regard to discrepancy and the said notice is not an order either suspending the license or cancelling the license, and it only says that the licensee was instructed not to transact business until further orders, as their explanation is awaited with regard to discrepancy. 8. As seen from the counter-affidavit filed by the 4th respondent, petitioners filed representation on 02.11.2020 seeking rectification of the door number and they also filed writ petition on the same day. In the said representation, petitioners stated that it is only a typographical error. The lease agreement dated 01.09.2020, which is filed along with the writ petition is executed by the 1st petitioner alone, as a tenant in favour of one M. Madhu Ravisankar, who is the owner of the premises bearing D. No. 48-16-39/6. The respondents filed the copy of the lease deed submitted by the petitioners along with the counter-affidavit, wherein the name of the owner of the premises bearing D. No. 48-16-30/8, Balemvari Veedhi, Muralinagar, Vijayawada, is mentioned as Chalasani Murali Krishna. On enquiry, the respondents found that there is no such owner by name Chalasani Muralikrishna, for the premises bearing D. No. 48-16-39/6, where the bar is running. Admittedly, shifting orders were issued at D. No. 48-16-30/8, Balemvari Veedhi, Muralinagar but bar and restaurant of the petitioners was functioning at D. No. 48-16-39/6, Kamineni Nagar, Vijayawada. On enquiry, the respondents found that there is no such owner by name Chalasani Muralikrishna, for the premises bearing D. No. 48-16-39/6, where the bar is running. Admittedly, shifting orders were issued at D. No. 48-16-30/8, Balemvari Veedhi, Muralinagar but bar and restaurant of the petitioners was functioning at D. No. 48-16-39/6, Kamineni Nagar, Vijayawada. As seen from the counter-affidavit, the respondents also found that the trade license is also a fabricated one and hence, a show cause notice dated 05.11.2020 was issued to the petitioners seeking explanation as to why the license should not be cancelled on the ground of fraud and misrepresentation. Thus, it is clear that the lease deed filed by the petitioners along with the writ petition is different from the lease deed submitted to the respondents for shifting of the license of bar. 9. In view of the facts and circumstances discussed above, I see no reason to interfere with the impugned notice dated 28.10.2020 issued by the 4th respondent. The writ petition fails and is, accordingly, dismissed. No order as to costs. Miscellaneous Petitions pending, if any, in this writ petition, shall stand closed in consequence.