In a far-reaching judgment, which will strengthen gram sabha in tribal areas of both Telugu States, a bench of Hyderabad High Court on Thursday ruled that retail wine shops and bars in scheduled area villages be permitted only after gram sabha gave its consentThe 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 RatnamHe had filed writ petition before single-judge, challenging the action of superintendent of 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 of grama sabhas.
He contended that the rules issued by the excise department provide for prior intimation to each gram sabha and then, based upon the resolution, licence should be issued. The unilateral notification calling for applications before this process was over was bad. The single-judge had asked the excise department to follow the rules framed under the excise act scrupulously.
Mr Ratnam filed a writ appeal, contending that prior consent of gram sabha is a must and that the excise department could not be permitted to invoke ‘deemed consent’ clause under the guise of excise rules.
The bench dealt at length with the letter and spirit of the 73rd constitutional amendment and the application of the Panchayat Raj (Extension to Scheduled Areas) Act, popularly known as PESA. The bench reminded that the State government framed PESA rules under AP Panchayat Raj Act, dealing with powers of gram sabha in villages in scheduled areas. In these rules, the gram sabha was given the final authority regarding sale of liquor in village.
The rules framed under excise act stipulate that the excise officer sends intimation to the village about the proposal of retail IMFL outlet and if there is no intimation from gram panchayat within 30 days, it is deemed that there is consent from gram sabha.
The bench observed that this deemed clause fell foul of the PESA rules. There could be no deemed consent. The decision of the gram sabha is final. No IMFL outlet or bar can be set up without explicit resolution of ram sabha, accepting such a proposal from the excise department, the bench said. The orders of single-judge were modified to this extent. The PESA rules were framed prior to bifurcation of the state and this ruling is equally applicable to both Andhra Pradesh and Telangana.
