PALAGANI SUDHAKARA RAO Vs. GOVT OF A P

JUDGEMENT

(1.) The petitioners who are dealing in liquor and carrying on business of Bar and restaurants, under valid licence granted by the respondents under FL 17 and 24, seek to invoke extraordinary jurisdiction under Article 226 of the Constitution of India to issue a writ of mandamus declaring paragraph/Rule 5 of G.O. Ms. No.16 Revenue (Ex.II) Department dated 12.1.1995 as ultra vires to the provisions of A.P. Prohibition Act, 1995 and Rules framed thereunder and violative of Articles 14, 19(l)(g), 21 and 300A of the Constitution of India.

(2.) It is averred that while the petitioners were conducting business in terms of their licences, the Government with a laudable object, imposed prohibition in the State of Andhra Pradesh and the State Legislature enacted The Andhra Pradesh Prohibition Act, 1995 introducing prohibition of sale and consumption of intoxicating liquors and matters connected therewith which received assent of the President on 17. 2.1995 and first Gazetted on 20-2-1995 in the A.P. Gazette and the Act replaced the Ordinance No. 19 of 1994 i.e., The Andhra Pradesh Prohibition Ordinance, 1994. Chapter III deals with prohibition and penalties. Section 7 prohibits selling, buying and consumption of liquor otherwise than in accordance with the provisions of the Act. Section 7-A thereof prohibits manufacture of liquor and Section 8 is penal provision. Section 9 prescribes punishment for being found in a state of intoxication. Section 31 of the Act speaks of overriding effect with a savings provision notwithstanding anything inconsistent contained in the provisions of the A.P Excise Act, 1968, with a saving clause under Section 32. Section 33 of the Act confers powers on the Government, by notification, to make Rules for carrying out all or any of the purpose of this Act.

(3.) While the matters stood thus, the Governor of Andhra Pradesh in exercise of the powers conferred under sub-sections (3) and (4) of Section 13 read with Section 20 of the A.P. Prohibition Ordinance, has framed the Rules, under G.O. Ms. No. 16 Revenue (Ex-II) Department dated 12.1.1995 which was published in the A.P. Gazette Part-II Extraordinary dated 13.1.1995 for Surrender of Quantities of Liquor held by the individuals as on the date of commencement of Ordinance. Rule 1 of the Ordinance mandates that whoever is in possession of liquor at the commencement of the Ordinance i.e., 16.1.1995 and desirous of retaining the quantity of liquor not exceeding one quart bottle (750 ML) shall obtain a certificate issued by a Civil Surgeon appointed by the Government of Andhra Pradesh as to his/her need of periodic consumption of liquor for preservation and maintenance of health and shall surrender the remaining quantity to the Excise Sub-Inspector, under Rule 2 thereof. Rule 3 speaks that any person who has been licensee under the A.P. (Foreign Liquor and Indian Liquor) Rules, 1970 under any category of licence i.e., FL 17 of 24, shall file a written declaration of the quantity of stocks of various brands of liquor held by him as at the time of the expiry of licence on withdrawal by the competent authority, with 24 hours of such expiry of the licence and shall also -obtain a transport permit from the Prohibition and Excise Sub-Inspector and transport such liquor so declared, to the premises of the Excise Station and surrender the same to the Excise Sub-Inspector and obtain an acknowledgment thereof within three days from the expiry of the licence. The petitioners are aggrieved of Rule 5 of the Rules which reads as under: