STATE OF ANDHRA PRADESH Vs. B V NARAYANA

JUDGEMENT

(1.) The defendants in O.S. No. 28/78 on the file of the Subordinate Judge, Nandyal are the appellants. The respondent-plaintiff filed the said suit for recovery of the suit amount which was decreed by the trial court, on July 31, 1979, hence the present appeal.

(2.) The facts leading to the filing of this appeal may briefly bs stated as follows : The respondent obtained licence of 26 toddy shops of Nandyal group for the period from October 1, 1974 to September 30, 1975. In accordance with the rules, he deposited Rs. 36,800/- towards advance rentals for four months and Rs. 2708/- towards earnest money deposit. The Sub- Inspector of Excise, Nandyal filed two charge sheets against the plaintiff and others which were numbered as C.C. Nos. 58/75 and 59/75 on the file of the Additional Munsif Magistrate, Nandyal. The plaintiff's case is that on receiving the summons, he learnt that on the allegation of adulteration of toddy by mixing chloral hydrate in Shop No. 9 on 20-12-74 and Shop No. 10 on 21-12-1974 the prosecutions were launched against him. Those criminal cases resulted in acquittal of the plaintiff on October 30, 1975. Even before the judgments in the criminal cases were delivered, the 2nd defendant cancelled the licence in respect of the said toddy shops on March 12, 1975. Consequently, the plaintiff was prevented from carrying on the business. Thereafter, the said shops were re-anctioned by the 2nd defendant 01 April 27, 1975. He also collected a further sum of Rs. 6134-60 Ps. from the plaintiff and appropriated advance rentals Rs. 36,800/- and the earnsst money deposit of Rs. 2,708/-. The defendants collected some other amounts also. Thus, a total sum of Rs. 48,987/- was arbitrarily collected from the plaintiff by the 2nd defendant. As the above stated criminal cases ended in acquittal, the plaintiff says that there was no justification on the part of the 2nd defendant to retain the said amounts for repayment of the said amounts on July 19, 1976. Though the defendants received the said notice on July 25, 1976 they did not choose to repay the amounts. The plaintiff therefore laid the suit for recovery of the said amount of Rs. 48,987/- with interest and costs.

(3.) The defendants filed a common written statement admitting that the plaintiff was granted licence of 26 toddy shops of Nandyal group for the excise year 1-10-1974 to 30-9-1975. It is stated inter alia that the officer on special duty, Hyderabad paid surprise visit to Noonepally toddy shop of the plaintiff on December 20, 1974, took samples of toddy and sent the same to the Chemical Examiner, Kurnool who opined that the toddy contained chloral hydrate. On December 21, 1974, the Sub-Inspector of Excise, Nandyal range visited Nandyal group toddy shops collected sample of toddy from one of the shops situate in Moolasagaram. The report of the chemical examined disclosed that the toddy contained chloral hydrate. On these facts, the Excise Sub-Inspector, Nandyal filed charge-sheet in C.C. Nos. 58/75 and 59/75 in the court of the Additional Munsiff Magistrate, Nandyal for violation of Andhra Pradesh Excise (Tapping of trees and toddy shops special conditions) Rules, 1959 (for short 'Toddy Shops Special Conditions Rules). It is stated that the 2nd defendant in his proceedings Re. No. 9059/74/85 dated 2-1-1975 and 20-1-1975 issued show cause notices to the plaintiff as to why his licence should not be cancelled. The plaintiff filed his explanation denying his responsibility and alleging that one Madduleti was responsible for adulteration and that he was not his employee and that as the said Madduleti was found in possession of the inspection note book, he was termed as employee of the plaintiff. In reply to the second show cause notice, he stated that sample of only one shop was found to contain chloral hydrate, as such the report of the chemical examiner was defective and cannot be accepted. As the explanation submitted by the plaintiff to the show cause notices was not satisfactory on consideration of the matter, the same was rejected. Tt is stated that the adulteration of chloral hydrate is clear violation of Rule 5 of Toddy Shops Special Conditions Rules, and Rule 11 of A.P. Excise (Arrack and Toddy Licence General Conditions) Rules (for short 'Arrack and Toddy General Conditions Rules) the licence of the petitioner was rightly cancelled under Section 31-B of the A.P. Excise Act on March 12, 1975. The plainsiff filed an appeal before the Deputy Commissioner of Excise, Kurnool against the said order on 31-3-1975. The Deputy Commissioner rejected the appeal after considering the contentions raised by the plaintiff on 11-4-75. As the licence of the plaintiff was validly cancelled, the shops were re-auctioned under Rule 38 of the Arrack and Toddy General Conditions Rules, as it was not necessary for the 2nd defendant to wait for the result of the Criminal cases. It is stated that after adjusting the amounts in deposit with the defendants and after giving credit to the amounts belonging to the plaintiff in deposit with the defendants, the amounts which were found to be due on re-auction of the shops, were recovered under Rules 39 and 40 of the Arrack and Toddy General Conditions Rules. It is further stated that under Section 31(3) of of the A.P. Excise Act, the licencee is not entitled to any compensation or to any refund of fees paid by him. It is added that under Section 70 of the Excise Act the suit ought to have been filed within six months from the date of the cancellation of the licence and as the suit is filed beyond six months, the suit is barred by limitation. A further plsa is taken that without asking for declaration that the order cancelling the licence is illegal, the plaintiff cannot claim refund of the moneys deposited by him. For all these reasons, it is prayed that the suit be dismissed.