G NAGAIAH Vs. GOVERNMENT OF ANDHRA PRADESH

JUDGEMENT

(1.) THE petitioner sought for a Writ of Mandamus for declaring the notification dated 11.07.2014 issued by the Prohibition and Excise Superintendent, Anantapur, insofar as relocating the Shop bearing Gazette Serial No. 84, Rayadurg Municipality at B.K. Samudram Mandal, Singanamala Excise Station, as illegal and arbitrary. The petitioner was granted a license for retail sale of Indian Made Foreign Liquor and Foreign Liquor, known as A -4 License, in respect of Shop No. 124, B.K. Samudram Mandal, Anantapur Municipal Corporation, 5 kms. belt area limits for the current year 2014 -15. It is the further case of the petitioner that only three shops were initially notified for B.K. Samudram Mandal and they are notified at Serial Nos. 124, 125 and 130 of the Gazette. The license fee fixed for Shop Nos. 124 and 125 is Rs. 45.00 lakhs per annum, for Shop No. 130 it was Rs. 32.50 lakhs per annum. By virtue of the license granted, the petitioner is operating a retail sale vend notified at Serial No. 124 in terms and in accordance with the conditions contained in the license. It is the contention of the petitioner that, as per Rule 4 of A.P. Excise (Grant of License of Selling by Shop and Conditions of License) Rules, 2012, henceforth referred to as 'Shop Rules'; the Commissioner of Prohibition and Excise having due regard to the requirement, public order, health, safety and other factors as he thinks fit, may fix the total number of shops to be established in an area/locality before the publication of notification under Rule 5 and may relocate any undisposed shops from any area/locality as he thinks fit. Since the Commissioner of Prohibition and Excise has decided and fixed three number of shops to be established at B.K. Samudram and accordingly published the notification as per Rule 5 of the Shop Rules, no further addition to this number is authorized. It is the further case of the petitioner that, as per Sub -clause (9) of Rule 16 of Shop Rules, a privilege fee at 8% on the turn -over of sales will have to be paid, provided the turn -over of sales has exceeded 7 times the annual license fee. Therefore, as a policy, unless sales turn -over of more than 7 times the license fee is recorded, addition of one more shop to the area/locality should not be authorized. Whereas, the Excise Superintendent, Anantapur, through the impugned notification has proposed to relocate Shop at Serial No. 84 of the first Gazette notification which is originally intended to be established at Rayadurg Municipality, Municipal Election Ward No. 10 within the Municipal Limits of Anantapur, within the 5 kms belt area near at the Collectorate Anantapur now. Consequently, the total number of shops in B.K. Samudram Mandal increased to 4 from 3 and this is impermissible. Further, the sales statistics maintained by the A.P. Beverages Corporation Limited, IML Depot, Anantapur, clearly bring out that the sales turn -over of the retailers in B.K. Samudram Mandal for the previous Excise Year 2013 -2014 has not crossed 7 times the annual license fee. Therefore, relocation of Rayadurgam Shop to B.K. Samudram Mandal is grossly illegal. It is also contended that there are several other areas and localities in Anantapur District where the annual sales/turn -over have exceeded 7 times the license fee and therefore it is in such areas, the relocation of Rayadurgam Shop should have been ordered.

(2.) THE Prohibition & Excise Superintendent, Anantapur filed a detailed counter affidavit. In paragraph 4 of the said counter affidavit, it is contended that what Rule 16(9) of the Shop Rules contemplates is levy of privilege fee together with Value Added Tax thereon, whenever the annual sales turn -over of any licensee exceeds 7 times. Such a stipulation is not a guiding factor for purposes of ordering relocation of undisposed shops. It is further contended that, the shop which is originally notified for Rayadurgam Municipality remained undisposed even during the second round of call. Therefore, the Commissioner of Prohibition & Excise thought it appropriate to relocate it near the Collectorate Anantapur and on that basis, the third round notification was issued. It is further contended that Shop No. 124 of B.K. Samudram Mandal is now located within the 5 kms belt area limits of Municipal Corporation of Anantapur. Hence, the writ petitioner instead of establishing the shop near Collectorate, has preferred to locate his shop at B.K. Samudram Headquarters. Similarly, the licensee of Shop No. 125 also preferred to establish his shop at B.K. Samudram Headquarters falling with in the 5 Kms belt area of Ananthapur. The counter affidavit in paragraph 4 has disclosed the off -take particulars by the three licensees of B.K. Samudram for the Excise Year 2013 -2014. Further, in paragraph 8, it is set out that the consumption potential of a locality or an area and the convenience of the public and simultaneously to ensure that the potential consumers do not fall prey to adulterated intoxicants, all on account of non -availability of licensed shop and further, to ensure that the government does not suffer loss of revenue are all factors which weighed in the matter of relocation of the undisposed Rayadurgam shop to near Collectorate, Anantapur. It was further pointed out in the counter affidavit that the distance between the shop of the writ petitioner and the present proposed location near Collectorate is more than 3 kms. It is therefore contended that there is no infirmity whatsoever in ordering for relocation of the shop. These very contentions are reiterated by the fifth respondent as well.

(3.) IT is contended by Sri Kamalakar that unless a retail shopkeeper indulges in trade turn -over which exceeds 7 times the license fee, he will not be achieving the minimum profit. That is the reason why as a rule of policy, new shops are allowed to be added to such area/locality where the sales turn -over has crossed 7 times. Further, the spirit behind Rule 16(9) clearly indicates that only when the sales turn -over exceeds 7 times the license fee, in such locality/area alone relocation of shop can be ordered. Learned counsel for the petitioner in support of his plea has also placed reliance upon the Judgment rendered by my learned Brother Justice Ramesh Ranganathan in B. Venkateswarlu and others v. Government of A.P. and others : 2014 (5) ALT 506 : 2014 (2) ALT (Crl.) 340 (A.P.) : 2014 Lawsuit (AP) 159.