In a far-reaching judgment which will strengthen gram sabhas in the tribal areas of both AP and Telangana, a bench of the Hyderabad High Court on Thursday made it clear that retail wine shops and bars in scheduled area villages could be permitted only after the gram sabha gave its consent. The concept of ‘deemed consent’ coined by excise officers was frowned upon by the bench.
The bench comprising Acting Chief Justice Ramesh Ranganathan and Justice Ganga Rao was dealing with a writ appeal filed by Pode Ratnam. He filed a writ petition before a single judge challenging the action of the superintendent of the Jayashankar Bhupalpally district who issued notification calling for applications to set up retail IMFL outlets in 17 tribal villages of fifth schedule area without waiting for consent from concerned gram sabhas.
He contended that the rules issued by the Excise department provided for prior intimation to each gram sabha and then based upon the resolution licence had to be issued. The unilateral notification calling for applications was bad. The single judge asked the Excise department to follow the rules framed under the Excise Act scrupulously. Mr. Ratnam contended the Excise department cannot be permitted to invoke ‘deemed consent’ clause under the guise of excise rules. The bench dealt at length the letter and spirit of the 73rdconstitutional amendment and the application of the PESA.
It said the State government had framed the PESA rules under the AP Panchayat Raj Act dealing with powers of the gram sabha in the scheduled area. In these rules, the gram sabha was given the final authority regarding sale of liquor in the village.
The rules framed under the Excise Act stipulate that the excise officer sends intimation to the village about the proposal of the retail IMFL outlet and if there is no intimation from the gram panchayat within 30 days, it will be deemed that there is consent.
The bench said this deemed clause fell foul of the PESA rules. There could be no deemed consent. No IMFL outlet or bar be set up without the explicit resolution from the gram sabha accepting such proposal from the Excise department, the bench said.
The PESA rules had been framed prior to the bifurcation of the State and this ruling was applicable to both States.
