Judgment:
THE HONBLE Sr.JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION Nos.24556 of 2014 13-03-2015 M/s Victory Bar and Restaurant, Rep.
by its Propritrix P.Anjana Devi .Petitioner The Government of Andhra Pradesh Rep.
by its Principal Secretary, Revenue (Excise-II) and others.Respondents Counsel for the Petitioner: M/s Bharadwaj Associates.Counsel for Respondents: Government Pleader for Prohibition and Excise #M/s Anand Nilayam Hotels PVT.Ltd Rep.
by its Managing Director Smt.P.Swarnalatha .Petitioner $The Government of Andhra Pradesh Rep.
by its Principal Secretary, and others.Respondents !Counsel for the Petitioner: Indus Law Firm Counsel for Respondents: Government Pleader for Prohibition and Excise : ?.
Cases referred: (1975) 2 SCR861THE HONBLE Sr.JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION Nos.24556, 20384, 16417, 23451, 23501, 23508, 23453 and 23575 of 2014
Common Order:In all these cases the petitioners challenge the action of the respondents in not renewing the licences granted in their favour for running a Bar in Ward Nos.5, 6 and 15 of Tirupathi City.
The petitioners herein were all granted the necessary licences in Form-2B to run and operate Bar and Restaurant at the premises mentioned in the respective licences, which are all located either in Ward Nos.5, 6 or 15, as the case be in Tirupathi City.
These licences were granted in terms of and in accordance with A.P.Excise (Grant of Licence of Selling by Bar and Conditions of Licence) Rules, 2005 (hereinafter for brevity referred to as Rules) during the year 2013- 14.
For the ensuing Excise Year 2014-15 they sought for renewal of the licences.
In response thereto the petitioners have been informed that the renewal of the licences will not be accorded unless the premises are shifted out of Ward Nos.5, 6 or 15 as the case be.
Hence, these writ petitions are instituted.
It will be relevant to note that during the Excise Year 2012-13 retail outlets of liquor-A4 licensed shops were not notified in certain wards of Tirupathi City.
In those very localities the 7 BaRs.which are granted licences are now ordered to be relocated.
Heard Sr.D.Prakash Reddy, learned senior counsel, Sr.Vedula Venkata Ramana, learned senior counsel, Sr.O.Manohar Reddy, learned senior counsel, Sr.S.Laxmi Narayana Reddy and Sr.B.P.Mohan on behalf of the writ petitioners and Sr.Moola Vijay Bhaskar, learned Government Pleader for Prohibition and Excise.
Learned Senior Counsels have attacked the decision of the non-renewal of the Bar licences of the petitioners by urging that there is no policy decision taken by the State Government for completely banning the establishment or operation of Bars in certain localities or wards of Tirupathi City and in the absence of any such policy decision, the refusal to renew the Bar licences notwithstanding the compliance with all other requirements of the Rules, which enable renewal of the licence, amounts to whimsical and arbitrary decision on the part of the officers of the Excise Department.
It is further contended that grant of licences and their renewals is wholly regulated by the 2005 Rules.
Therefore, so long as there is no provision available in the rules for unilateral decision to be taken for non-renewal of the licences, the decision not to renew the licences would amount to acting contrary to the legal regime.
Further liquor trade is a regulatory trade and hence any regulatory measure must necessarily flow from the Statute or the Rules made thereunder and in the absence of any such rule or provision in the Statute by an executive fiat the renewal of the licence cannot be denied.
It is further contended by the learned senior counsels that only retail shops are agreed not to be granted licences in certain localities/wards of Tirupathi City and such a decision was taken keeping in view the sentiments of the pilgrim public who visit Tirupathi City enroute to the shrine at Tirumala.
It is significant to note that only retail outlets of liquor are decided not to be allowed in certain localities which are normally used by the pilgrims to reach Tirumala.
The sale of retail liquor in the City, as a whole, has not been banned.
The decision taken by the State Government in this regard is not relevant in so far as the Bars are concerned.
This apart the counter-affidavit filed in PIL.No.162 of 2013 clearly specified that Bars are allowed and only the retail outlets are sought to be denied from being established in certain localities of Tirupathi City.
There is an essential distinction between a retail liquor vend and a Bar.
In retail liquor vend, liquor cannot be sold in loose quantities, but it can only be sold in sealed bottles containing specified quantities, whereas in a Bar-cum-Restaurant, the liquor can only be sold in loose quantities.
While the consumption at retail liquor vend is not allowable, the consumption of liquor is only permitted at the Bar.
Therefore, taking preventive measures for sale of liquor in retail vends stands entirely on a different footing from that of consumption of alcoholic beverages at the Bar premises.
Hence, licences for Bars have got to be renewed.
It is further contended that the action of the Commissioner of Prohibition and Excise in not granting renewal of licences to the Bars in certain localities does not have any legal backing nor was it justified in any manner.
Sr.Vedula Venkata Ramana, learned senior counsel, would further urge that the Executive Power available to the State under Article 162 of the Constitution is co-terminus with the Statutory Power.
In the absence of any specific power available in the hands of the Commissioner in the Statute or the Rules made thereunder for preventing renewal of licences, which has otherwise complied with the other requisite stipulations is wholly unjust and illegal.
Sr.Vedula Venkata Ramana, learned senior counsel, would further submit that there should have been a proper aim, objective and purpose which is sought to be achieved by not granting licences to retail liquor vends, whereas obviously it is intended by the State Government to ensure that liquor bottles are not carried to the pilgrim shrine of Tirumala, whereas by renewing a Bar licence, there is no way a pilgrim can carry liquor to the pilgrim centre, Tirumala.
Therefore, the action of not renewing the Bar licences in favour of the petitioners is wholly unjust.
It is further contended that granting licences at certain localities and denying similar grant/renewal of Bar licences in certain other localities within the same city/town amounts to rank discrimination.
Sr.O.Manohar Reddy, would add that as per the proviso to Rule-6 (iii) the restrictions contained therein do not apply and hence the question of non-renewal of the Bar licence amounts to acting contrary to the Rules.
It was also further contended by Sr.O.Manohar Reddy that the petitioner is a 3-star hotel and therefore it provides food and accommodation to its guests.
Tirupathi being an important commercial destination in the region, several persons, other than those who undertake a pilgrimage to Tirumala, would be visiting Tirupathi City.
As a part of hospitality services, that are normally associated with a 3-star hotel, the petitioner is required to provide the facility for consumption of alcoholic beverages at its hotel premises.
If the Bar licence of the petitioner is not to be renewed, the petitioner-hotel would suffer loss of patronage by its guests and consequently the petitioners rating as a 3-star hotel would become redundant.
Learned counsel would all uniformly contend that so long as the requirement of the rules is complied with, the non-renewal of the Bar Licence amounts to discrimination and illegal on the part of the respondents.
A detailed counter-affidavit has been filed by the Superintendent, Prohibition and Excise, Tirupathi, Chittor District, on behalf of the respondents.
The stand of the respondents in detail is explained in paragraph No.3 of the counter-affidavit.
It appears an assurance has been held out by the Government of Andhra Pradesh before the Andhra Pradesh Legislative Council with regard to sale of liquor in certain localities in Tirupathi City.
For securing implementation of the assurance held out by the Government of Andhra Pradesh, the APLC Assurance Committee met on several occasions and reviewed the arrangements made in that respect.
When one such meeting took place on 09.04.2012 relating to Assurance No.301-A relating to ban on liquor sales in Tirupathi city, it was recorded by the Assurance Committee to take necessary action not to permit establishment of retail liquor shops on the approach roads to the entry points of Tirumala Hills while granting licences for the retail shops in future.
The Government accepted the recommendations made by the Committee and accordingly the Commissioner of Prohibition and Excise has been directed to take necessary action by passing on instruction for the subordinate officers while undertaking the exercise for granting licences for shops during the Excise Year 2012-13 itself.
Consequently, several shops in certain areas/localities leading to Tirumala have not been notified.
Hence, the retail liquor vends for which A-4 licences have been granted in Ward Nos.3, 6, 13, 15, 16 and 22 were re-located during the Excise Year 2012-13 itself and those wards have been treated as liquor free wards.
In these wards of Tirupathi city 7 Restaurant- cum-Bars are existing.
In view of the assurance held out by the Government of Andhra Pradesh for securing certain areas as liquor free areas in Tirupathi City, the renewal of Bar Licences for the Excise Year 2014-15 has not been undertaken.
It is clear from the stand taken by the respondents that the State is desirous of ensuring certain areas/localities of Tirupathi City are rendered free from availability of liquor.
For reaching the Hills shrine of Tirumala, all pilgrims will have to pass through Tirupathi city.
The Hill shrine of Tirumala can be reached either by road or by foot.
Therefore, certain areas/localities which are normally treated as essentially used routes for this purpose, if, are to be rendered liquor free, then there is no alternative except to re-locate the A-4 retail shops and bars also.
Accordingly, the retail shops were relocated.
There are 7 Bars which have been identified as lying in these very localities.
In this context it would be appropriate to notice that Article 47 of the Constitution of India castes a duty on the State to endeavour to bring about prohibition of the consumption, except for medicinal purposes, of intoxicating drinks which are injurious to health.
Therefore, the State must take all necessary steps for purposes of directing its policy which will help in securing the prohibition of consumption of alcoholic beverages at any rate to the extent it is appropriate and feasible.
It is not merely the revenue generation from the trade linked to sale of liquor, that would be the paramount consideration for the State but the injury that is likely to visit the society is of paramount consideration.
The State, if it can secure to its citizens as few opportunities as is permissible for consumption of alcoholic beverages, it would be promoting the wellbeing and welfare of the society.
The contention that there is no provision for imposing a ban on sale of liquor does not hold much weight.
It is beyond any pale of doubt, in view of the authoritative pronouncement of Supreme Court in NASHIRWAR SETHI WINE STORES P RAMACHANDRA JOSEPH MICHAEL T GOVINDAN KUTTY MENON P M CHOKO versus STATE OF MADHYA PRADESH after considering its earlier judgment in Cooverjee B.
Bharucha v.
Excise ComMr.and the Chief Commr., Ajmer (AIR1954SC220 held that no fundamental right is available with regard to sale of intoxicants.
It is wholly appropriate to take notice of the following passages therefrom.
This Court in Cooverjee B.
Bharucha v.
Excise ComMr.and the Chief Commr., Ajmer, 1954 SCR873= (AIR1954SC220 held that the grant of a lease either by public auction or for a sum is a regulation pertaining to liquor.
It was contended on behalf of the citizen in Bharucha's case (supra) that every person has an inherent right to carry on trade in intoxicating liquors and that the State has no right to create a monopoly in them.
In Bharucha's case (supra) the auction sale of country liquor shop under Excise Regulation 1 of 1915 was challenged on the ground that the provisions of the Excise Regulation and the auction rules were ultra vires because the same purported to grant monopoly to trade to a few persons.
The Excise Regulation 1915 in that case provided that the Chief Commissioner might lease to any person the right of manufacturing or of supplying or of selling by wholesale or retail any country liquor or intoxicating drug within any special area.
This Court said that laws prohibiting trades in noxious or dangerous goods cannot be held to be illegal as enacting a prohibition and not a mere regulation.
In Bharucha's case 1954 SCR873= (AIR1954SC220 (supra) this Court concurred with the observations in Crowley v.
Christensen, (1890) 34 Law Ed 620.
Those observations indicate that the sale of liquor has been at all times considered as the proper subject of legislative regulation.
A license may be exacted and restrictions may be imposed as to sale of liquor.
There may be absolute prohibition of sale of liquor.
At the root lies public expediency and public morality.
The sanction is the police power of the State to regulate business and to mitigate evils.
The observations in Crowley's case (1890) 34 Law Ed 620 (supra) which were laid down as a ruling of this Court in Bharucha's case l954 SCR873= (AIR1954SC220 (supra) are these.
"There is no inherent right in a citizen to sell intoxicating liquors by retail; it is not a privilege of a citizen of the State or of a citizen of the United States.
As it is a business attended with danger to the community, it may, as already said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evil.
The manner and extent of regulation rest in the discretion of the governing authority".
There is an earlier decision of this Court in State of Assam v.A.N.
Kidwai, 1957 SCR295= (AIR1957SC414 where it is said that no person has any absolute right to sell liquor.
In Kidwai's case (supra) this Court said that the purpose of the Act and the Rules is to control and restrict the consumption of intoxicating liquor.
Such control and restriction is said by this Court to be necessary for the preservation of public health and morals and to raise revenue.
There are three principal reasons to hold that there is no fundamental right of citizen to carry on trade or to do business in liquor.
First, there is the police power of the State to enforce public morality to prohibit trades in noxious or dangerous goods.
Second, there is power of the State to enforce an absolute prohibition of manufacture or sale of intoxicating liquor.
Article 47 states that the State shall endeavour to bring about prohibition of the consumption except for medicinal purpose of intoxicating drinks and of drugs which are injurious to health.
Third, the history of excise law shows that the state has the exclusive right or privilege of manufacture or sale of liquor.
Sale of intoxicants is a completely regulated trade.
Sale of liquor can be resorted to only under a licence granted.
When once sale of liquor is a completely regulated trade, the essence of such regulation lies in, bearing in mind the larger interest of the society.
It is one thing to say that the rules on the subject have prohibited the establishment of liquor vends in certain areas or in certain circumstances.
It is another aspect of the matter that a particular locality/area/premises is not suitable for establishment of liquor vend.
It is altogether a different thing to render certain areas/localities as free from sale of liquor.
A quick scan of the provisions contained in the Andhra Pradesh Excise Act, 1968 (henceforth for short the Act) is essential.
The expression Bar is defined in sub-section (1-A) of Section 2 of the Act as the privilege granted under the Act to an establishment, where food is served, for sale of Indian Made Foreign Liquor and Foreign Liquor in loose for consumption on the licenced premises.
It is thus, clear that a privilege to sell liquor in loose quantities is required to be granted under the Act to an establishment where food is essentially served.
So that liquor can also be sold in loose for consumption on the said premises.
Firstly, it must be an establishment where food is permitted to be served in accordance with a license/permit granted by the local body concerned such as a Municipal Corporation, Municipality or Gram Panchayat in accordance with the provisions contained in the enactments concerning them and secondly a privilege is required to be granted for sale of liquor in loose quantities for consumption there under the Act.
The expression Liquor is defined in sub-section 21 of Section 2, in very vide terMs.It includes spirits of wine, denatured spirits, methylated spirits, rectified spirit, wine, beer, toddy and every liquid consisting of or containing alcohol apart from such other intoxicating substances which the Government may, by notification, declare to be liquor for the purpose of the Act.
Under sub-section (1) of Section 3, the Government is the competent authority to appoint an officer as the Commissioner of Prohibition and Excise for the State, who subject to the general or special orders of the Government shall be the chief controlling authority in all matters connected with the administration of the Act.
The Commissioner so appointed shall have control of the administration of the Prohibition and Excise Department.
Section 13 of the Act prohibited the manufacture of excisable articles except under a licence.
Section 15 of the Act prohibited the sale or buying of excisable articles without a licence.
Section 17 of the Act empowered the Government to grant exclusive privilege for a fixed period to any person.
The said exclusive privilege can be for manufacturing or supplying or selling by wholesale, selling by shop, selling by Bar, etc., any liquor or intoxicant specified in such order.
Sub-section 4 of Section 17 made it very clear that no grantee of any privilege under sub-section (1) shall exercise the same unless the Commissioner of Prohibition and Excise or any other officer authorized in that behalf issues a licence.
Therefore, Section 17 of the Act regulated the exercise of granting the exclusive privilege for selling any liquor by Bar.
Section 17 in turn is conditioned by Section 28 as well as the rules made by the Government.
Section 28 merely sets out that every licence under the Act shall be issued on payment of such fee for such period subject to such restrictions and conditions and shall be in such form and shall contain such particulars as may be prescribed.
Section 31 of the Act conferred power on the authority granting any licence, the power to cancel or suspend such licence.
Sub-section (1) of Section 32, which has certain bearing upon the controveRs.at issue, reads as under: Whenever the authority which granted any licence under this Act considers that such licence should be withdrawn for any cause other than those specified in Section 31, it may withdraw the licence on the expiration of not less than thirty days notice in writing of its intention to do so.
Thus, power is conferred upon the licensing authority to withdraw any licence for any cause other than those specified in section 31.
On a careful consideration of this provision, it is clear that the licensing authority, even in such cases where he was satisfied earlier that a licence is otherwise desirable to be granted relating to sale of liquor and even after granting any such licence, has been vested with the power to withdraw such licence during its currency and subsistence, it he is satisfied that any such withdrawal is warranted.
If a licence is to be withdrawn during its currency a notice is required to be delivered to the licencee of a minimum of 30 days duration informing the licencee of the intention of licencing authority to withdraw the licence.
To my mind, it is clear sub-section (1) of Section 32 has conferred discretion on the licencing authority to withdraw a licence for any cause other than the one specified under Section 31 of the Act and such a discretion is conferred in very wide terMs.When once sub-section (1) of Section 32 conferred upon the licencing authority the power to withdraw the licence for any cause, signifying that lot of discretion has been vested in the licencing authority, does, this provision merely mean an enabling provision for withdrawing the existing licence, but it does not relate to withdrawing from indulging/exercising the very power of granting the licence itself?.
Can such a narrow approach be made to this provision?.
Where a provision, particularly in a regulatory enactment, confers power to withdraw a subsisting licence, it presupposes the existence of power to withdraw from the very act of conferring the privilege or licence at the fiRs.instance itself.
The only limitation on any such exercise conceived in the provision is when an existing licence is sought to be withdrawn during the currency of its period, a notice of 30 days duration is required to be delivered to the licencee.
In other words before the existing licence, for any reason or cause other than those specified in Section 31 of the Act is to be withdrawn, but however to mitigate any possible hardship to the licencee, a prior notice of 30 days duration is what is contemplated.
When once an existing licence itself can be withdrawn for any cause whatsoever, it is implied in that very provision necessary power in the hands of the licensing authority to withdraw or restrain himself from exercising the power to grant the privilege or the licence at the very inception itself.
The expression withdraw carries one of the meanings as to retreat.
(The living Webster Encyclopedic Dictionary).The expression withdraw, therefore, has to be given its due which would effectuate the States policy and the broader objective sought to be secured by the legislature.
I am of the opinion that the word withdraw is comprehensive enough to connote a complete retreat from granting a privilege itself.
As is now firmed up as a settled principle no person has got a fundamental right to carry on business in intoxicants.
And hence, as was noticed supra, sale of liquor can only be indulged in under a licence.
If the licensing authority, for certain reasons, considers it appropriate to withdraw from indulging in granting the very licence itself, no person who is interested or intending to carry on any such business can have any say in the matter.
In other words, no prospective tradesman can have a right to insist that the licence should invariably be granted merely on the ground that he has satisfied all other prerequisite conditions.
It is one thing to assume that the licencee has not suffered any disqualifying factors or features resulting in, in his inability to secure the licence and it is altogether a different thing to say that the licence should invariably be granted in his favour, in a mechanical manner the moment the other prerequisites are met with.
The spirit behind the contention canvassed by Sr.Prakash Reddy, Sr.Vedula Venkata Ramana learned senior counsels and Sr.O.Manoher Reddy, learned counsel is that since the premises where the licence was granted to them earlier has not attracted any of the disqualifying features, their licences are required to be automatically renewed.
It is apt to remember that renewal of a licence tantamount to granting a licence afresh.
There is no difficulty to concede the fact that the premises were the same where licence for running a Bar was granted ealier and hence it presupposes that no disqualifying features are attracted to such a premises.
Otherwise, the license would not have been granted at the very fiRs.instance.
That is not the only reason for granting a licence.
To sub serve larger public interest and sometimes with a view to respect the sentiments of the general public, the Commissioner or for that matter the Government may consider that it is not desirable to grant a licence at all.
In such an event, the power behind any such decision becomes clearly traceable to Section 32(1) of the Act.
I am, therefore, clearly of the opinion that the decision exercised by the Commissioner not to renew the bar licences in certain localities of Tirupati amounts to withdrawing from indulging in the very exercise of granting licence.
The Legislative bodies in a democratic polity are the best places where the aspirations of the people receive necessary attention and later on manifest as the line of policy to be followed by the State.
In a democracy the State functions through various institutions.
Every State prefers to conduct its business subject to the guidance secured through legislative exercise where the collective will of the people will prevail and subject to the corresponding legislative control.
Once an attempt is made to regulate the activity of the State by a legislature, the State prefers to carry on its business within the bounds of authority and guidance conferred upon it by the legislature.
Sometimes, the State willingly subjects itself to certain sanctions and injunctions by the Legislature, so that the larger good of the society is achieved through such process.
One need not attribute any sinister motive or objective to any such legislative guidance.
In the instant case, the Legislature has been urging the State to regulate the sale of liquor in Tirupathi.
Hence, a corresponding assurance has been held out by the State.
Learned counsel for the petitioners have strenuously urged that the Legislature only wanted prevention of sale of liquor by retail shops and that it never intended to prevent sale of liquor in loose quantities, which is what is done at a licenced bar premises.
I am of the opinion that the distinction sought to be driven in this regard by the learned counsel for the petitioners is an artificial one.
If the State Legislature intended to make sure that liquor is not sold in retail, at least in certain localities of Tirupathi, particularly those which lead to Alipiri, the foothill of the holy abode of the presiding deity of Tirumala, the intention of the legislature is clearly manifest there.
It wants to make sure that liquor does not become available for consumption for such of those people who are on their way to Alipiri, the foothill of Tirumala.
It is not merely intended to prevent people from carrying liquor uphills.
If that is the only intention of the Legislative Council, they could have as well urged the State Government to increase the screening points at various places on the way to Tirumala so that carrying liquor bottles to Tirumala can be very effectively prevented and achieved.
For that purpose, license to A-4 Retail Shops need not be withheld or withdrawn.
By not granting A-4 Retail Licenses, in certain localities, the State Legislature wanted to secure non-availability of liquor for consumption.
I quite see that all those who visit Tirupathi may not necessarily go to Tirumala and consequently they may not even require to approach Alipiri at all.
Keeping this factor in mind, perhaps, the State Government and the Commissioner of Prohibition and Excise have not completely banished sale of liquor either in retail or in loose for consumption in the entire Tirupathi City.
They only wanted to make sure that liquor does not become available in certain localities for consumption to those who are likely to approach Alipiri.
Hence, those areas which are proximately close to Alipiri or the roads in those localities which lead to Alipiri have been chosen for this purpose.
Simultaneously by allowing sale of liquor by retail and also in loose quantities on the premises of the bars in various other localities, the State and its Commissioner of Prohibition and Excise have ensured that the other consumers are not put to any excessive hardship for securing the required quantities of liquor for their personal consumption.
Hence, the contention canvassed about discrimination is out of context.
In my opinion, steps taken by the Commissioner, Prohibition and Excise by not renewing the Bar licence in few localities of Tirupathi, the legislative sanction for ensuring non availability of liquor for consumption for those who are likely to proceed towards Alipiri is what is sought to be achieved.
Hence, no sinister motive needs to be attributed to the Commissioner.
I do not find any merit in the contentions canvassed before me.
Accordingly, the writ petitions are dismissed.
No order as to costs.
The miscellaneous petitions, if any pending in these writ petitions, shall stand closed.
_______________________________________ JUSTICE NOOTY RAMAMOHANA RAO1303.2015