Allowed

Tcs, Mahabubnagar, Mahabubnagar District, rep by v. State of a.P., rep by Principal Secretary

Telangana HC2 Apr 2009WA/521/2008

Case brief

AI extract

What is this about?

This court allowed a writ appeal and petition by a Tillery Cooperative Society. The authorities had cancelled the company's license citing irregularities from a previous license period. The Supreme Court held that fresh irregularities could not invalidate a new license granted under new rules and remanded the case for fresh disposal on merits.

What did the court decide?

Impugned orders dated 10-12-2007 and 2-2-2008 are set aside; the writ petition and appeal are allowed; matter remanded for fresh disposal in accordance with law after notice.

Tcs, Mahabubnagar, Mahabubnagar District, rep by Vs… — Service and Employment | Telangana HC (2009)

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THE HONOURABLE SRI JUSTICE B.PRAKASH RAO AND THE HONOURABLE SRI JUSTICE B.CHANDRA KUMAR W.A.No.521 of 2008 And W.P.No.8609 of 2008

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JUDGMENT: (Per the Hon’ble Sri Justice B.Prakash Rao)

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This appeal in W.A.No.521 of 2008 is at the instance of the writ

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petitioner aggrieved against the interim orders passed in W.P.M.P.No.11419/2008 in W.P.No.8609 of 2008, dated 7-5-2008.

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At the time when this appeal was being heard and by taking into account the question as involved which requires to be gone into in the main writ petition as well, the counsel on either side requested this Court to take up the main writ petition itself for disposal along with this appeal. Hence, the main writ petition also was heard and being taken up for disposal together.

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To sum up, the facts which are necessary are that the writ petitioner/appellant (for brevity hereafter called as ‘petitioner’) is a Toddy Cooperative Society, Mahaboobnagar formed under the provisions of the A.P Cooperative Societies Act and carrying on the tapping business as a livelihood for the members of the society. The petitioner was granted the T.C.S License for the earlier period with effect from 3-10-2002 to 31-3-2007. However, having regard to certain irregularities found in an inspection conducted on

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19-10-2004, the said license was suspended by the authorities. Thereupon, the petitioner has filed a writ in W.P.No.9369/2007 challenging the said orders wherein this Court initially has granted interim directions on 7-4-2007 to run the business. However, having regard to the expiry of the period of license by 31-3-2007, the said writ has become infructuous. Further, in the meanwhile since new rules viz., the A.P. Excise (Grant of Licence to Sell Toddy, Conditions of Licence and Tapping of Excise Trees) Rules, 2007 have also come into force with effect from 1-10-2007, issued under G.O.Ms.No.1228, dated 19-9-2007 as published in the Gazette on 30-92007, the said writ petition was withdrawn by the petitioner as per the orders dated

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2-11-2007. Meanwhile, according to the petitioner fresh license was granted to the petitioner on 1-10-2007 for a period from 1-10-2007 to 30-92012. However, having regard to the dismissal of the writ petition as mentioned above, the impugned orders were passed by the authorities on 10-12-2007 relying on the earlier irregularities found with the petitioner and directing that there is automatic cancellation of the license and for surrender thereof. The appeal preferred against the said order was also dismissed by the appellate authority on 2-2-2008. Challenging these proceedings, the petitioner has filed the above writ petition in WP.8609 of 2008 inter alia on various grounds, especially, to the effect that in view of the enforcement of the new rules and the grant of license thereunder, the earlier incidents

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cannot be countenanced or put against the petitioner and cancel the latter licenses.

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Pending the writ petition, the petitioner has filed interim application in WPMP.No.11419 of 2008 for a direction to permit to operate the business of its 17 TCS shops by staying the impugned orders dated 2-2-2008 and 10-

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12-2007. After contest, the learned Single Judge by taking into account the various submissions made from both sides, disposed of the said application WPMP.No.11419 of 2008 with certain directions to the following effect:

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(1) Respondent No.3 shall examine the petitioner’s case in the light of and applying the two provisos to Rule 39;

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(2) Before proceeding to take action as indicated in Clause (1) Supra, respondent No.3 is entitled to take a decision on the analysis report of the Government Chemical Examiner on the samples drawn from the petitioner’s shop on 13-11-2007 after following due procedure prescribed under proviso to Section 31 (1) of the Act;

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(3) After completing the process indicated in Clauses (1) and (2) supra, respondent No.3 shall take appropriate decision and pass order either under first proviso or under second proviso to Rule 39, as the case may be, depending upon the outcome of the decision qua the inspection dated 123-11-2007 and the analysis report on the samples drawn during the said inspection; and

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(4) Respondent No.3 shall complete the entire process as indicated supra within a period of four weeks from the date of receipt of a copy of this order and till then status quo obtaining as on today shall be maintained.

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Aggrieved thereby, the petitioner has filed appeal. As stated above the

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writ petition also is being taken up for disposal.

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After hearing the counsel on either side and on perusal of the material,

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the short point that arises for consideration in the writ petition is as to the effect of the new Rules and the license granted there-under on the earlier incidents or irregularities found under the earlier license. According to the petitioner, though several contentions have been urged at both parties level, this aspect was not considered and simply the petitioner has withdrawn the earlier writ petition against those orders in respect of the earlier license. Therefore, once again the authorities sought to cancel the license on the self-same grounds, which is not legal. Further, the license having been issued fresh and under the new Rules, cannot be tinkered with nor there exists any power or authority or jurisdiction to rely on those earlier incidents and cancel the same. It has been pointed out that most of those grounds which have been urged in the writ petition as well as in the appeal before us, have not been taken into consideration by the authorities and neither any finding is given nor much less reasons. Therefore, the impugned orders are liable to be set aside and further as being directed earlier the petitioner is entitled to the business of the shops.

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These submissions were sought to be repelled on behalf of the respondents herein denying any substance in those pleas as set forth. By taking into account these arguments, it is quite amply clear, especially, after perusal of both the orders of the authorities viz., dated 10-12-2007 and 2-22008, the sole basis on which the license is sought to be cancelled is on the ground that the writ petition filed by the petitioner was dismissed on 2-11-

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2007 and the license though granted fresh on 1-10-2007 being subject to the result in the said writ petition, hence, it warrants such a serious action. Prima facie, we are of the view that such approach is not correct nor there exists any basis to arrive at such conclusion, especially, where there is no consideration on merits and any findings against the petitioner while disposing of the writ petition on 2-4-2007. It is only a simplicitor with-drawl at the instance of the petitioner having regard to the fact that the period of license was already expired and further new Rules have come into force with effect from 1-10-2007 and therefore the writ having become infructuous they withdrew the same. In view of these subsequent circumstances, which seriously goes to the root of the case, it cannot be said that the said dismissal is on merits and it would go against the petitioner.

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There is no denial to the fact that the license, which is granted on 1-102007 is under new Rules and the earlier license was already expired. Therefore any attribution or irregularities at the time when the earlier license was in force cannot be carried forward or apply to for taking any action against the fresh license issued. Merely because, it was stated that the said license granted on 1-10-2007 is subject to the result in the said writ petition that itself would not in any way effect the legal incidents which flow therefrom. It is a license granted under the new Rules and it will have its own limitations and the parameters as provided for under the new Rules. Therefore, borrowing anything from the earlier period does not warrant nor

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can be made applicable.

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Secondly, it is also clear from the record that the factum of coming in force of the new Rules with effect from 1-10-2007 and the license having been granted thereunder vis-à-vis the earlier proceedings have not been

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given any attention or consideration and no findings are found in any of these orders. In view of the same, we deem it more appropriate that the matter requires consideration on merits and in accordance with law. Though the question is of purely that of law, however, having regard to the fact that such a question going to the very root of the case, necessarily, authorities need to apply their mind and consider in a more apt way, we are inclined to send the matter back to the authorities for disposal afresh, without expressing any opinion.

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In view of the aforesaid circumstances, the writ appeal and the writ petition, both, are allowed and the impugned orders dated 10-12-2007 and 2-2-2008 passed by the respondents 3 and 2, respectively,

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are set aside and the matter is sent back to the respondent No.3 for fresh disposal, in accordance with law, after giving due notice and opportunity to the petitioner and the parties. No costs.

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___________________ (B.PRAKASH RAO, J)

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___________________ (B.CHANDRA KUMAR,J)

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2^nd April, 2009

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*grk

Tcs, Mahabubnagar, Mahabubnagar District, rep by v. State of a.P., rep by Principal Secretary

Case brief

What is this about?

What did the court decide?

Tcs, Mahabubnagar, Mahabubnagar District, rep by v. State of a.P., rep by Principal Secretary

Case brief

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What did the court decide?

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