B VENKATARAMANA Vs. COMMISSIONER OF PROHIBITION AND EXCISE

JUDGEMENT

(1.) THE petitioner, who was the licensee to sell Indian Liquor and Foreign Liquor (IL and FL) by shop in respect of Shop No. 2, Ward no. 2 of Madhira Village, Khammam district for the period from 1. 7. 2005 to 30. 6. 2006, filed the present writ petition for a writ of mandamus to declare the action of respondents in collecting licence fee for the period from 1. 7. 2005 to 30. 11. 2005 as illegal. He also sought for a consequential direction to refund the licence fee paid for the said period.

(2.) THE undisputed facts are stated as under: respondent No. 2 issued notification, published in Khammam District Gazette no. 19 of 2005 dated 26. 5. 2005 calling for tenders for grant of lease of right to sell IL and fl by shop under Rule 5 of the Andhra pradesh Excise (Lease of Right of Selling by shop and Conditions of License) Rules 2005 (for short "the Rules" ). The petitioner filed his tender for shop No. 2, Ward No. 2 of Madhira village and he became the highest bidder in the auction conducted on 2. 6. 2005, having offered a sum of Rs. 7,00,999/- as annual lease fees. The petitioner remitted 1/3rd of the lease amount by 2. 6. 2005 as required under the tender conditions and furnished bank guarantee for Rs. 4,67,000/- representing 2/3rd of the lease amount on 11. 6. 2005. Condition No. XXIII of the tender conditions stipulates that the successful auction purchaser after fulfilling the formalities under rules 18, 19, and 22 and before obtaining licence shall select suitable premises for sale of IL and FL inconformity with Rule 27 and obtain a licence in Form-A4 from the prohibition and Excise Superintendent to commence business from 1. 7. 2005. The petitioner submitted his application to respondent No. 3 on 2. 6. 2005 to approve premises bearing Door No. 1 -198 of Madhira village for locating his shop. As no approval was received by the petitioner before the date of commencement of the excise year, i. e. , 1. 7. 2005, the petitioner approached respondent No. 1 on 5. 7. 2005, but in vain. Therefore, he filed W. P. no. 14987 of 2005 in this Court which came to be disposed of on 19. 7. 2005 with the direction that respondent no. 1 shall consider representation dated 5. 7. 2005 filed by the petitioner for approving the premises bearing Door No. 1 -198 within a period of one month from the date of receipt of a copy of the order. However, four and half months after disposal of the writ petition, respondent No. 3 granted licence on 2. 12. 2005 permitting the petitioner to open the shop at the same premises which was proposed by the petitioner in his application dated 2. 6. 2005. A counterpart agreement was entered into on 2. 12. 2005 and even before the grant of licence and execution of counterpart agreement, the second instalment of licence fee was recovered by invoking the bank guarantee on 1. 10. 2005. The petitioner filed the present writ petition on 21. 12. 2005 and this Court while ordering notice passed an order in w. P. M. P. No. 35045 of 2005 filed for restraining the respondents from invoking the bank guarantee, directing that furnishing of any bank guarantee towards payment of licence fee prior to the granting of licence will be subject to further orders.

(3.) THE Prohibition and Excise Inspector, madhira filed counter affidavit and it is evident from the averments contained therein that the last instalment of licence amount was collected from the petitioner on 31. 12. 2005. In the counter affidavit it is admitted that the petitioner was the successful bidder in respect of Shop No. 2, Ward No. 2 of Madhira Gram panchayat for the lease period from 1. 7. 2005 to 30. 6. 2006 and the fact that the petitioner paid 1/3rd of the lease amount and furnished bank guarantee for the balance lease amounts is also admitted. The fact that the petitioner applied for grant of licence for running the shop in premises bearing Door No. 1-198 of madhira Gram Panchayat is also admitted. It is however averred in the counter affidavit that the said premises was falling in ward no. 1 as per certificate dated 10. 6. 2005 issued by the Secretary, Madhira Gram Panchayat and that selection of the said premises is also not in conformity with the location/area notified in Khammam district gazette no. 19/2005 dated 26. 5. 2005 besides not being in accordance with Rule-27 of the Rules. It is further averred that notice dated 5. 7. 2005 was issued to the petitioner to select the premises in Ward No. 2, that as the petitioner failed to select such a premises, another notice was issued to him on 13. 7. 2005 and that instead of selecting a premises in Ward no. 2, the petitioner filed representation dated 5. 7. 2005 to respondent No. 1 to direct respondent No. 3 to grant licence for premises bearing No. 1-198 in accordance with certificate dated 29. 6. 2005 issued by the secretary, Madhira Gram Panchayat. It was also admitted in the counter affidavit that this court in W. P. No. 14987 of 2005 directed respondent No. 1 to consider the petitioner's representation dated 5. 7. 2005. It is further stated that on the instructions issued by respondent No. 1, the Deputy Commissioner of Prohibition and Excise, Warangal Division instructed the Prohibition and Excise superintendent, Khammam to seek clarification from the District Panchayat officer, Khammam on the contradictory certificates issued by the Secretary, Madhira gram Panchayat, that the District Panchayat officer, Khammam vide his proceedings dated 5. 9. 2005 appointed Divisional Panchayat officer, Khammam to enquire into the matter and verify whether Door No. 1-198 falls in ward No. 1 or Ward No. 2, that the Divisional panchayat Officer, Khammam in his enquiry report dated 26. 9. 2005 stated that Door No. 1 -198 falls in Ward No. 2 and that based on the said enquiry report, the District Panchayat officer vide his proceedings dated 5. 10. 2005 which was addressed to respondent No. 3 stated that Door No. 1 -198 falls in Ward No. 2 as per the ward area. It is further averred that respondent No. 3 through his letter dated 14. 10. 2005 brought the said report to the notice of the Deputy Commissioner of prohibition and Excise, Warangal Division, who in turn requested respondent No. 1 through his letter dated 17. 10. 2005 to issue necessary instructions and that respondent no. 1 through his letter dated 15. 11. 2005 requested the District Collector, Khammam to sort out the issue and the District Collector, khammam in turn instructed the Joint collector, Khammam to convene a meeting of District Panchayat Officer, Khammam and prohibition and Excise Superintendent, khammam and decide the matter on merits. It is further revealed from the counter affidavit that a joint meeting was held by the Joint collector on 21. 11. 2005 in which the District panchayat Officer, Khammam stated that as per the Panchayat Raj Act and Rules Ward means territorial jurisdiction of elected ward member and therefore, premises bearing Door no. 1-198 falls in Ward No. 2 and that secretary, Madhira Gram Panchayat issued an erroneous certificate that the said premises falls in Ward No. 1. The District Collector, therefore instructed respondent No. 3 to take necessary action and accordingly the latter granted licence to the petitioner to run the retail shop in premises bearing Door No. 1-198. It is also mentioned in the counter affidavit that the petitioner signed counterpart agreement on 2. 12. 2005 agreeing to pay the entire lease amount with effect from 1. 12. 2005 and also gave an undertaking that he will not claim the refund of proportionate lease amount for the period from 1. 7. 2005 till the grant of licence. It is further stated that the petitioner is liable to pay the entire lease amount as per rule 19 of the Rules. In para-6 it is mentioned that tenderers have to select the premises under Rule 27 and that accordingly the tenderer has complied with the conditions and that licence was granted on 30. 6. 2005. (This averment on the face of it is wrong because it is the admitted position that licence was actually granted only on 2. 12. 2005 ). In the counter affidavit the respondents have taken the stand that as held by the Supreme Court, no person dealing in business of intoxicant can claim protection under Article 19 of the Constitution of India and that since the lease period is for 12 months and having entered into agreement undertaking to pay the licence fee for the entire lease period, the petitioner is not entitled to claim refund. It is also averred that the petitioner gave an undertaking to the effect that he will not claim refund of proportionate lease amount for the period from 1. 7. 2005.