BRAMARAMBHA WINES Vs. K DEVARAJ GOUD

JUDGEMENT

(1.) Shifting of Appellant's licensed premises (a retail wine shop) from Ward No. 88 Baghlingampally Hyderabad, having become inevitable for the reasons beyond the control of the Appellant, consequently an application by him (Appellant), seeking shifting of his licensed premises to Ward No. 81, Barkatpura, Hyderabad which was granted vide order dated 24.8.2010, by the competent authority, the Respondent-Commissioner, Prohibition and Excise, Hyderabad but not to the liking of the competitors Respondents 1 and 2 herein (writ Petitioners) & another, therefore invocation of extra ordinary writ jurisdiction by the said Respondents through W.P. Nos. 21399 and 21492 of 2010. Alongside, miscellaneous petitions were also filed, consideration whereof resulted in an interim direction by the writ court, suspending the impugned order of shifting. Being aggrieved, the Respondent therein (Appellant herein) invoked the appellate jurisdiction of the High Court against the interim direction through Writ Appeal Nos. 656 and 657 of 2010 and on the consensus of the learned Counsel for the parties, the very writ petitions were taken up by the Division Bench for consideration and were disposed of finally vide judgment dated 7.9.2010, directing the respondent-Commissioner, Prohibition and Excise, Hyderabad to reconsider the application of the Appellant seeking shifting of the licensed premises. In compliance therewith, the Commissioner reconsidered the Appellant's application and granted him the permission for shifting of the licensed premises from Ward No. 88, Baghlingampally, Hyderabad to Ward No. 81, Barkatpura, Hyderabad vide order No. Cr. No. 12374/2010/CPE/G2 dated 18-9-2010. The permission was again challenged by Respondents 1 and 2, giving rise to the second round of litigation through W.P. No. 23317 of 2010, which has been allowed setting aside the impugned shifting order, with liberty to the Respondents to reconsider the shifting of the licensed premises of the Appellant to any other nearby location vide judgment dated 20-9-2010, impugned by medium of writ appeal on hand and when it came up for consideration for admission, Sri. D. Prakash Reddy, learned senior Advocate entered appearance for Respondents 1 and 2 (writ Petitioners) to contest the grant of interim relief. In that view of the matter, we have taken up writ appeal itself for final disposal with the consent of the learned Counsel for the parties.

(2.) We have gone through the judgment of the writ court very minutely. An in-depth examination thereof reveals that the impugned order of shifting of the licensed premises has been set aside by the writ court on the likelihood of affecting the business of the writ Petitioners (Respondents 1 and 2 herein) adversely. Contention is refuted by Sri. V. Venkataramana learned senior Advocate appearing for the Appellant, on the basis of admitted facts, that there were three retail wine shops in ward No. 82 Kachiguda including one belonging to the Appellant which was shifted to ward 81, resultantly only two remain in place and according to him exclusion of the Appellant: from ward 88 and locating him in Ward 81 Barkatpura would not be to the detriment of the writ Petitioners' business. Be that as it may, there is a categorical finding by the Commissioner, depicting that the business of the writ Petitioner is not likely to be affected substantially by change of location of the Appellant's shop and it is this finding which is substituted by the writ court by its own finding, reversing the decision of the Commissioner and we regret not to be persuaded to agree with the view so taken by the writ court, because it is the decision-making process alone which falls within the scope of judicial review under Article 226 of the constitution and not the correctness of the decision. Whereas in the case on hand, the writ court has set aside the decision based on findings of fact which it could not, for, it is neither a fact finding court nor a court of appeal. Similar was the argument of Sri v. Venkataramana, learned senior counsel appearing for the Appellant which he supported by judicial pronouncements handed down by the apex court in Suresh Estates (P) Ltd v. Municipal Corporation of Greater Mumbai, 2007 14 Scale 572 Bachan Singh v. Union of India, 2008 9 SCC 161 and Swapan Kumar Pal v. Achintya Kumar Nayak, 2008 1 SCC 379 Faced with the legal position Sri D. Prakash Redely, learned senior Advocate for the Respondents, relied on a particular sentence of the judgment dated 7.9.2010 of the Division Bench in Writ Appeal Nos. 656 and 657 of 2010, which is reproduced as under;

(3.) Relying on the sentence extracted from the judgment, Sri D. Prakash Reddy, learned senior Advocate for the Respondents contended that in view of the earlier judgment of the Division Bench, the economic aspect had to be taken into account by the Commissioner and according to him the Commissioner has ignored the observation and has failed to take it into account, despite direction of the Division Bench but fact remains otherwise as transpires from the order of the Commissioner, impugned before the writ court which makes it very clear that Commissioner was not only alive to the judgment of the Division Bench but has duly considered the economic aspect and such consideration alone brought him to the conclusion, that shifting does not substantially affect the writ Petitioners' business. Apparently contention aims at an endeavour on the part of the learned Counsel for the Respondents to riggle out of the, obligation, requiring him to justify the sustainability of the impugned judgment in view of the judicial decisions supra relied upon by Sri v. Venkataramana learned Counsel for the Respondents as is evident from a verbatim reproduction from the judgment of the Division Bench relied upon by Sri D. Prakash Reddy which in essence requires the Commissioner to give reasons in support of his order. Nothing more, nothing less. Has Commissioner discharged this obligation, apposite it is to extract the relevant paragraph from shifting order passed by the Commissioner;