Y RANGA RAO Vs. SUPERINTENDENT OF EXCISE NALGONDA

JUDGEMENT

(1.) The petitioner - the licensee of Thipparthi shop in Thipparthi Mandal, Nalgonda District is assailing the validity of sub rule (3) of Rule 16 of the Andhra Pradesh Excise (Lease of Right to Sell Arrack in Retail) Rules, 1988, for short, "the Rules", as illegal, unenforceable and contrary to the scheme of the Rules. The main contention raised by Sri Raghunadha Reddy, learned counsel for the petitioner is that Rule 3 (2) of the Rules postulates that 'the Commissioner shall, before the publication of the notice under Rule 4, fix the number of shops to be established in an area for grant of licence to sell arrack in retail under sub-rule (1) thereof; their locations the minimum guaranteed quantity of arrack of each shop, the strength of arrack and the Issue Price and privilege fee per B L of arrack payable to the Government', but sub-rule (3) of Rule 16 gives arbitrary power to the licensing authority to permit another sale point on payment of additional licence-fee of Rs. 500/- and the only rider added is that the new sale point shall not be permitted within two Kilometlrs from the boundary of the neighbouring shop and in the villages having tribal population of 53% or less in the scheduled area. Therefore, this is contrary to sub- rule (3) of Rule 3. I find no force in the contention. The Commissioner has been given power to fix the number of shops to be established in the area and for the grant of a licence to sell arrack in retail. That would be under sub-rule (1) of Rule 3 which postulates that ''Subject to the provisions of these rules" and also subject to the payment of Issue Price for the Minimum Guaranteed Quantity of arrack of the shop, privilege fee and licence fee in respect of the shop as part of sum under section 23 read with section 17 of the Act, the right to sell arrack in retail in the shops shall be granted by way of licences in Form-V." Therefore, the right to sell arrack in retail under sub-rule (1) is subject to the other rules and also subject to payment of the various amounts mentioned therein. One of the powers envisaged under Rule 16 (3) is that depending upon the viability of opening new sale points the licensee of the main shop may be granted 'B' licence for such sale point subject to payment of additional licence-fee of Rs. 500/ - for each of such a sale point. But however, it was prohibited to establish such a sale point where the distance between the new point and the shop already existing in the boundary of the neighbouring shop is within two Kilometers. Thereby the policy envisaged under sub-rule (3) of Rule 16 is that if the intervening distance between the new sale point and the existing shop in the neighbourhood is within two Kilometers, then the new sale point shall not be permitted to be established, even if the licensee of the main shop is prepared to pay additional licence-fee of Rs. 500/-. The reason is obvious. The sales in the neighbouring shops would be adversely affected if the new shop is located within two Kilometers from the existing neighbouring shop. Therefore the right of the existing shop owner of the neighbourhood is amply safeguarded by introducing the distance point viz , two Kilometers in sub-rule (3) of Rule 16. The power to issue the rules has not been questioned. Under those circumstances, I do not find any illegality in framing of sub-rule (3) of Rule 16 and also it is not inconsistent with sub-rule (2) of Rule 3 as the operation of sub-rule (2) is subject to sub-rule (1) and sub-rule (1) is also subject to the provisions of the other rules, viz, Rule 16. Considered from this perspective, I hold that Rule 16 (3) is perfectly valid and it cannot be declared to be invalid or illegal or unenforceable, nor it be declared contrary to the scheme in the Rules.

(2.) It is next contended that the shop at Kothaguda has not been notified as required under sub-rule (2) of Rule 3 and that therefore the grant of licence is illegal. It is stated in the counter-affidavit sworn to by Md. Fazulullah, Excise Superintendent, Nalgonda, at paras 2 and 5 that Kothaguda is the hamlet of Cherupally revenue village and the shop at Kothaguda is existing since past ten years. Therefore when it in the hamlet of Cherupally No. 2. and Cherupally shops have already been notified, the need to specifically notify the Kothaguda shop which is the hamlet of Cherupally is redundant.

(3.) It is next contended that as per the certificate issued by the Excise Inspector the distance is only 1.45 Kilometers and that therefore it is within the teeth of Rule 16 (3) of the Rules. In the counter-affidavit filed by the respondents it is stated that the distance is 2.60 Kilometers. Therefore, there is a dispute as regards the distance. Though the counter was served on the petitioner on December 30, 1988, no reply affidavit has been filed. When a responsible officer viz., the Excise Superitendent has sworn to the counter-affidavit, I do "'not think that he has sworn to a false averment that the distance is less than 2 Kilometers. I accept the averment of the Excise Superintendent and in view of the uncontroverted statement, I hold that the distance is 2.60 Kilometers and therefore it is beyond two kilometers, thereby, it is not offending Rule 16 (3) of the Rules.