Milothu Venkatlal, v. The State Of Telangana,Rep. By Its Principal Secretary

THE HON'BLE SRI JUSTICE M. SEETHARAMA MURTI Writ Petition No.39143 of 2017 ORDER:

In this writ petition under Article 226 of the Constitution of India filed by the petitioner, who is the President of Mandal Praja Parishad, Garla, Garla Mandal, a declaration was sought to declare the resolution, dated 06.11.2017, of the Grama Sabha of Garla recommending to set up two wine shops in the village as illegal and in violation of the statutory rules and issue a writ of Mandamus setting aside the said resolution and direct the District Collector, Mahabubabad and the District Prohibition & Excise Officer/4th respondent not to grant licences to respondents 9 & 10, who intended to start wine business and submitted applications in response to the notification, dated 13.09.2017, calling applications from Scheduled Tribe people for granting licences.

2.

I have heard the submissions of Sri V.V. Raghavan, learned counsel appearing for the petitioner, of learned Government Pleader for Prohibition & Excise appearing for the respondents 1, 2 & 4, learned Government Pleader for Revenue appearing for the 3rd respondent, Sri G. Narender Reddy, learned standing counsel representing the 6th respondent and of Sri V. Praveen Kumar, learned counsel appearing for the respondents 9 & 10. 3.

The petitioner contends as follows: - 'The Panchayats Extension to Scheduled Areas (PESA) Rules, 2011 (hereinafter referred to as "the PESA Rules") were notified in G.O. Ms. No. 66 dated 24.3.2011. Rule 8(I)(b) of the PESA Rules, requires the Gram Sabha to be consulted before the grant of any licence to open liquor shop in the village. The licence should be

granted to local Scheduled Tribe (ST) only. Rule 4 (iv) postulates that the quorum of the Gram Sabha meeting shall be not less than 1/3rd of the members of Gram Sabha of whom at least 50% shall be ST members. Every village shall have a Gram Sabha comprising of adult members, whose names are included in the electoral rolls at the village level. Pursuant to the notification calling for applications from Scheduled Tribe for granting of licences, the respondents 9 & 10 also made their applications. On the suggestion of the 4th respondent, a meeting of the Gram Sabha was called for, on 20.09.2017.

The Sarpach, in his minutes recorded that total voters of Garla village are 4436 and that out of which 1/3rd number is 1478 and that half of the same comes to 739, but, 58 voters alone attended the meeting and that out of them 8 belong to Scheduled Tribe and hence, there is no quorum for the meeting as per the norms of PESA Rules. He also recorded that total number of ST voters in the village is 253. Thus, he recorded that there is no quorum and Gram Sabha could not be conducted. On receiving the said report, the then Mandal Parishad Development Officer [MPDO] submitted a report, dated 20.09.2017, to the 4th respondent mentioning the above facts and stating that there is no possibility to have quorum and hence, Gram Sabha has not been convened.

However, the District Collector drew lots of the names of the applicants and the 4th respondent issued provisional confirmation letter, dated 23.10.2017. Thereupon, the petitioner filed WP.No.37352 of 2017 to declare the said action of the District Collector in drawing the lots and the further action of the 4th respondent in issuing the provisional confirmation letter as illegal, arbitrary and in violation of the provisions of the Constitution of India.

dated 08.11.2017, in the said writ petition directing the official respondents not to issue any licence for any shop in Garla village without following the PESA Rules and securing the resolution from the Gram Sabha under the said Rules. Some influential persons having control over the wine shops in the District brought pressure on the MPDO, Secretary, Garla Gram Panchayat, and Sarpanch of Garla village. The Panchayat Secretary and the Sarpanch managed to bring into existence a resolution of the Gram Panchayat with an ante date, that is, 06.11.2017, recommending for setting up wine shops.

In the said resolution, they mentioned that total number of adults of Gram Sabha as per PESA Rules is 4436 and that 1593 number of adults attended and that the total number of Scheduled Tribe people is 602 and that the total number of Scheduled Tribe people attended is 356 and that it is unanimously resolved for setting up two wine shops in Garla village. The contents of the said resolution are false. They both forged the thumb impressions and signatures of the voters in the list enclosed to the resolution. Even if any such meeting were held, 356 voters of Scheduled Tribe could not have attended as the reports of the Sarpanch and MPDO, dated 20.09.2017, read that there are only 253 Scheduled Tribe voters in the village. The resolution is invalid. However, MPDO submitted report, dated 15.11.

2017, to the 4th respondent enclosing the said resolution of the Gram Sabha with the list of voters that are said to have attended the meeting. She did not give her opinion to grant or not to grant the licence. She should have seen that the presence of 356 voters of Scheduled Tribe does not satisfy the requirement of attendance of at-least 1/6th of total voters which comes to 739. There is no compliance of statutory rules.

given to understand that after receiving the MPDO's report, Project Officer of ITDA/5th respondent recommended for approval of the names of respondents 9 & 10 for granting licences to them and the District Collector is likely to approve the same very soon and that the 4th respondent would grant licences to the said respondents. Hence, the writ petition is filed.' 4.

The case of the respondents 9 & 10 as well as the official respondents as stated respectively in the counter affidavit of 9th and 4th respondents and the submissions made on their behalf, which are more or less common, are as follows:

The writ petition is filed with malicious intention as the petitioner could not succeed in getting a licence for any shop in and around the entire District. The Gram Sabha resolution, dated 20.09.2017, was not considered as it is not in conformity with PESA rules. The 4th respondent with the approval of the District Collector, Mahabubabad, issued notification, dated 13.09.2017, calling for applications for grant of licences for all the proposed nine Scheduled Area retail outlets-A4 shops of Mahabubabad District including two retail outlets pertaining to Garla Village and Mandal. On receiving applications, as per PESA Rules and on verification of Agency Area Certificate of Local Scheduled Tribe Candidate issued by the Tahasildars concerned, licences are being issued for the above Agency shops as per the orders of this Court in WA.No.1506 of 2017 after receiving the consent from the Gram Sabha in the form of resolution strictly following the PESA Rules. Pre selection process was conducted by the District Collector and drawl of lots was held, on 23.10.2017, and the names of these

respondents 9 & 10 are picked up subject to the condition that licences would be issued after obtaining resolution of Gram Sabha. On 20.09.2017, the Sarpanch and on 21.10.2017, the then MPDO have addressed letters to the 4th respondent stating that Gram Sabha was conducted to establish two retail liquor shops in Garla village and mandal. They further mentioned that the total number of voters is 4436 and 1/3rd of them is 1478, but, only 58 voters attended the Gram Sabha and that among them 8 belong to Scheduled Tribe and hence, there is no quorum for the meeting as per the norms of PESA Rules. They also recorded that total number of ST voters in the village is 253 and that there is no quorum and Gram Sabha could not be conducted and that there is no possibility to have quorum and hence, Gram Sabha has not been convened.

The same was not accepted by the 5th respondent. The said Gram Sabha was presided over by the Sarpanch and was not conducted by the Panchayat Secretary, Garla. As per instructions issued by the Commissioner of Prohibition & Excise/2nd respondent, Gram Sabha, Garla was conducted by Panchayat Secretary and was presided over by Sarpanch, on 06.11.2017, and a resolution was passed with the signatures of the persons/voters, who attended and the same was submitted to the 5th respondent. As per the said resolution, the total number of adults as per PESA Rules is 4436; 1593 adults attended the Gram Sabha; total number of Scheduled Tribe voters is 602; 356 number of Scheduled Tribes attended the Gram Sabha. The said resolution was accepted.

statutory rules and that the signatures and thumb impressions of the voters appended to the resolution are forged are all false. Provisional licences have been issued to the respondents 9 & 10, on 20.11.2017, on remittance of Rs.30,00,000/- each through challans towards Excise tax. Day to day Government exchequer is losing Rs.25,000/- in the shape of Excise tax per day and sale value of Rs.3,00,000/- per day. Hence, the writ petition may be dismissed.

5.

I have given earnest consideration to the facts and submissions. 6.

Before proceeding further in the matter, the legal position obtaining, which is stated in a number of decisions of this Court, may be noted, infra. Part IX of the Constitution of India relates to Panchayats and Article 243M (1) stipulates that nothing in Part IX shall apply to the Scheduled Areas referred to in Clause (1) and the Tribal Areas referred to in Clause (2) of Article 244 of the Constitution of India. Article 243M(4)(b) stipulates that, notwithstanding anything in the Constitution, Parliament may, by law, extend the provisions of Part IX of the Constitution to the Scheduled Areas and the Tribal Areas referred to in Clause (1) subject to such exceptions and modifications as may be specified in such law, and no such law shall be deemed to be an amendment of the Constitution for the purpose of Article 368.

In the exercise of its powers under Article 243M(4)(b) of the Constitution of India, Parliament enacted the Panchayats (Extension to the Scheduled Areas) Act, 1996 (hereinafter referred to as "Act 40 of 1996"). Section 3 of the said Act stipulates that the provisions of Part IX of the Constitution, relating to Panchayats, are extended to Scheduled Areas subject to such exceptions and modifications as are provided in Section 4.

modifications to Part IX of the Constitution and stipulates that, notwithstanding anything contained in Part IX of the Constitution, the Legislature of a State shall not make any law under Part - IX, which is inconsistent with the features mentioned in Section 4. Clause m(i) of Section 4 stipulates that, while endowing Panchayats in the Scheduled Areas with such powers and authority as may be necessary to enable them to function as institutions of self-government, ensure that the Panchayats, at the appropriate level, and the Gram Sabha are endowed specifically with the power to enforce prohibition or to regulate or restrict the sale and consumption of any intoxicant.

In view of Section 4(m)(i) of Act 40 of 1996, the State Legislature, while endowing Panchayats in the Scheduled Areas with such power as may be deemed necessary to enable them to function as institutions of selfgovernment, the State Legislature shall ensure that the Panchayats, at the appropriate level, and the Gram Sabha are endowed specifically with the power to enforce prohibition or to regulate or restrict the sale and consumption of any intoxicant.

In view of Section 4(m)(i) of Act 40 of 1996, the State Legislature, while endowing Panchayats in the Scheduled Areas with such power as may be deemed necessary to enable them to function as institutions of self-Government, was obligated to ensure that the Gram Sabhas were specifically endowed with the power to enforce prohibition or regulate or restrict the sale and consumption of any intoxicant. In exercise of the power conferred by Section 4 of Act 40 of 1996, the State Legislature amended the A.P. Panchayat Raj Act, 1994 and inserted Part VI-A thereto, by Act 7 of 1998. Part VI-A of the A.P. Panchayt Raj Act, 1994 are the special provisions relating to Panchayats and Zilla Parishads located in Scheduled Areas.

Mandal Parishads in Scheduled Areas. Under Sub-Section (i)(a) thereof, the Gram Panchayat or, as the case may be, the Gram Sabha shall exercise such powers and perform such functions, in such manner and to such extent, as may be prescribed in respect of the enforcement of prohibition or regulation or restriction of the sale and consumption of intoxicant. In the exercise of the powers conferred by Section 242-I of the PESA Rules which were notified in G.O. Ms. No. 66 dated 24.3.2011. Rule 8(I)(b), of the PESA Rules, requires the Gram Sabha to be consulted before the grant of any licence to open liquor shop in the village, for the Gram Sabha to convey its opinion in the form of a resolution within four weeks, and for the licence to be granted only to the local Scheduled Tribes.

Clause(c) of Rule 8(I) requires the concerned department to issue a speaking order for grant or non-grant of licence to open liquor shops/bars in the village under intimation to the concerned Gram Sabha, and makes the Gram Sabha resolution final and binding. Clause (d) of Rule 8(1) empowers the Gram Sabha to determine the quantity of traditional liquor that may be brewed/produced by the Scheduled Tribes living in a village for their consumption, but not for sale, having regard to the traditions, customs relating to consumption of local liquor during marriage and other social and religious ceremonies and their cultural identity. In terms of Rule 8(I)(b) of the PESA Rules, the Gram Sabha is required to be consulted before the grant of licence to open a liquor shop in a village located within the Scheduled Areas.

On being so consulted, the Gram Sabha is required to convey its opinion, in the form of a resolution, within four weeks which is final and binding.

Scheduled Tribes. As the resolution of the Gram Sabha is final and binding, no license can be granted to open a liquor shop or a bar in any village in a Scheduled Area in case the Gram Sabha resolves not to grant approval. 7.

In the light of the legal position, which is undisputed, it is to be first noted that in the instant case there are two resolutions. The first resolution reflects that the Gram Sabha met on 20.09.2017 under the presidentship of the Sarpanch of the Gram Panchayat for the desired purpose and that in that Sabha it is noticed that there is no required quorum for conducting Gram Sabha. The resolution in that regard discloses that there are total 4436 voters and that out of them, 1/3rd is 1478 and that half of that number is 739 and therefore, the said number of Scheduled Tribe voters have to attend the Sabha and that only 58 voters attended on that day and that out of them only 8 are Scheduled Tribes and that the total number of ST voters in the village is 253 and hence, there is no possibility to hold a Gram Sabhas as per PESA Rules.

However, there is another resolution, dated 06.11.2017, on which the respondents rely upon. According to this resolution, the Panchayat Secretary conducted Gram Sabha under the Presidentship of Sarpanch for seeking the opinion of the Gram Sabha for establishment of liquor shops in the village as per PESA Rules. As per this resolution, the total number of adults as per PESA Gram Sabha is 4436; the number of adults who attended the Sabha is 1593; the total number of Scheduled Tribes is 602; the total number of Scheduled Tribes who attended the Sabha is 356. The said Sabha resolved for setting up wine shops in Garla village.

8.

In this backdrop, it is necessary to examine the rule position obtaining. The Gram Sabha shall comprise of adult members, whose names are included

in the electoral rolls at the village level. The latter resolution, dated 06.11.2017, only reflects the number of adults but not the number of adult members whose names are included in the electoral rolls at the village level. As per PESA Rules, the quorum for the Gram Sabha meeting shall be not less than 1/3rd of the members of Gram Sabha of whom atleast 50% shall be ST members. As per the first resolution, the total number of voters is 4436 and 1/3rd out of it is 1478; half of it comes to 739 and therefore, the requirement of number of Scheduled Tribes at the Gram Sabha shall be 739, but, there are only 253 Scheduled Tribe voters. This fact was intimated by the then MPDO, Mandal Praja Parishad, Garla, to the 4th respondent. He also stated that there is no possibility to have quorum and hence, Gram Sabha is not convened. 9.

Be that as it may. In the second resolution, the Sarpanch and Panchayat Secretary stated that total number of adults is 4436; total number of adults attended is 1593; total number of Scheduled Tribes is 602; and, total number of Scheduled Tribes attended the Sabha is 356. If one goes by these numbers, the 1/3rd of 4436 is about 1478. Half of it is 739. In the first resolution, it is stated by the Sarpanch as well as the then MPDO that there are only 253 ST voters in the village, whereas, in the subsequent resolution, it is stated that 356 Scheduled Tribe people attended the Sabha. Thus, the successor MPDO in her letter, dated 15.11.2017, stated that a direction was given to once again hold Gram Sabha and that Gram Sabha was held, on 06.11.2017, and that there are 4436 voters in all and that out of them 1593 attended the Sabha and that out of them 356 are Scheduled Tribes. It is apt to note that the Gram Sabha must comprise of adult members whose names are included in the electoral rolls at the village level. In the first place, it is unexplained as to how the number of Scheduled

Tribe voters in the village swelled upto 356 by the date of the next Gram Sabha when both the Sarpanch and the then MPDO in the first resolution, dated 20.09.2017, in one voice said that there are only 253 Scheduled Tribe voters in the village. Going by the figures in the second resolution, the total number of the adults is 4436. 1/3rd of the same is 1478. 50 per cent of it is 739. However, the second resolution reflects that out of the total voters attended, 356 belong to Scheduled Tribe. Therefore, the requirement of quorum is not satisfied is the contention of the writ petitioner.

In the light of the fact that as per the first submission of the Sarpanch and the then MPDO there are only 253 Schedule Tribe voters in the village and in the light of the further fact that no explanation is forth coming from the successor MPDO as to how the number of ST voters swelled up to 356, the submission that the requirement of quorum by the presence of required number of ST voters is not satisfied merits consideration. Therefore, this Court finds that the official respondents are not justified in giving provisional licences to the respondents 9 & 10.

The copy of the Aadhar card of the 9th respondent and the copy of his Agency Area Certificate issued by the Tahasildar disclose that he is a resident of a place near Annapurna rice Mill of Bayyaram Village and Mandal of Mahabubabad District; and, the copy of the Aadhar card of the 10th respondent and the copy of his certificate issued by the Tahasildar disclose that he is a resident of Pulluru village of Garla Mandal. Therefore, the petitioner contends that both the respondents 9 & 10 are ineligible for grant of licences. Though the learned Government Pleader brought to the notice of the Court G.O.Ms.No.3, dated 10.01.

said notification, the 'local Scheduled Tribe candidate' means the candidate belonging to the Scheduled Tribes notified as such under Article 342 of the Constitution of India and the candidates themselves or their parents have been continuously residing in the Scheduled Areas of the District in which they are residents till to date since the 26th January, 1950, the said explanation is of no avail to the respondents 9 & 10 as the said GO relates to appointment of teachers and reservations in that regard in favour of local Scheduled Tribes and as the present matter is governed by the PESA rules. Rule 8(I)(b) of the PESA Rules postulates that license shall be granted to local Scheduled Tribe only.

Further, Rule 3 (II) of the said Rules postulates that a village may consist of habitation/hamlet or groups thereof comprising of a community or communities managing their affairs in accordance with their traditions and customs. The respondents 9 & 10 could not show that they belong to Garla village or its habitation/hamlet or groups thereof. On the above analysis and for the reasons, this Court finds that respondents 9 & 10 are not entitled to grant of licences to start wine businesses in Garla village. 10.

Viewed thus, this Court finds that the writ petitioner made out valid and sufficient grounds for granting the relief prayed for. 11.

Accordingly, the Writ Petition is allowed as prayed for. No costs. Miscellaneous petitions, pending if any, shall stand closed. __________________________ M. SEETHARAMA MURTI, J 18.01.2018 Note: Issue CC by 22.01.2018.

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