M RAJ KUMAR Vs. EXCISE SUPERINTENDENT

JUDGEMENT

(1.) The petitioner was the highest bidder in the auction held on 15-9-90 for the arrack unit twin cities group of 128 arrack shops for the excise year 1990-91. The auction was knocked down in his favour. The petitioner complied with all the formalities for issuing of the licence. However the licence for Osmanshahi arrack shop was not issued to the petitioner. Challenging the action of the 1st respondent in not issuing the licence, he filed W.P. No. 13977/90 on 24-9-90. On 5-10-90 this court disposed of the writ petition with a direction to the 1st respondent to issue licence for the shop at Osraanshahi in the existing premises. The respondents carried the matter in appeal, W.A. No. 1223/90. On 29-10-90 a Divission Bench of this court dismissed the writ appeal. The petitioner says that he could not transact any business on account of not issuing of the licence and that he sustained heavy loss. He was thus constrained to issue notice to the respondents proposing to initiate proceeding under the Contempt of Courts Act. It was then licence No. 19 in respect of the said Osmanshahi Shop was issued on 17-11-90. The petitioner says that in spite of the direction of this court the respondents have not issued the licence till 17-11-1990 and that till that date he had not transacted any business or located the. shop in respect of Osmanshahi arrack shop. He further says that under Section 15 of the Andhra Pradesh Excise Act the 1st respondent is the competent authority to issue licence and until a licence is issued the lease will not take effect having regard to the Explanation to sub-sec. (1) of Sec. 17 of the A.P. Excise Act (for short "the Apt") and Rule 22 of the A.P. Excise (Lease of Right to sell Liquor in retail) Rules (for short "the rules"). On these facts the petitioner claims remission of rentals for the period from 1-10-90 to 17-11-90 praying a writ of Mandamus directing the respondents to grant remission of rentals and all other obligations for the said period in respect of Osmanshahi arrrack shop for the Exise Year 1990-91.

(2.) Notice before admission was ordered on the writ petition on 13-12-1990.

(3.) The respondents filed a counter-affidavit stating, inter alia, that the petitioner and 8 others were the highest bidders-the auction purchasers in respect of arrack unit Twin cities, Hyderabad, consisting of 128 arrack shops for the lease period from 1-10-90 to 30-9-1991. In view of the objection taken by xhe Municipal Corporation of Hyderabad, the licence in respect of Qsmanshahi arrack shop was not issued to the petitioner. It is stated that though technically the licence was not issued to the petitioner, he has drawn the entire M.G.Q. of the group, i.e. the quota fixed for Osmanshahi for October and November, 1990 and carried on the business at the said premises without any hindrance. The excise officials made surprise checks on different dates and found that the petitioner was carrying on the business in the said shop. Having regard to the conduct of the petitioner in carrying on the business at Omanshahi shop though no licence was issued to him, and as the licensees have also lifted the entire quota of arrack fixed for the shop, the allegation of the petitioner that he had not conducted any business in respect of Osmanshahi arrack shop from 1-10-90 to 17-11-90 is a blataat lie. It is further stated that though there had been delay in granting licence by the 1st respondent under special circumstances, the petitioner transacted the business and also paid the entire demand of monthly rentals of Rs. 1,25,00,007/- for the months of October and November, 1990 voluntarily without any protest. The petitioner is also bound to pay rentals, and he is not entitled to claim fproporionate remission of the rentals in respect of Osmanshahi arrack shop. In the circumstances, it is prayed that the claim of the petitioner being1 without any justification be rejected and the writ petition be dismissed.