THE HON’BLE SRI JUSTICE C.Y.SOMAYAJULU WRIT PETITION No.12133 of 2001 Between: Maganti Nagaraju, S/o.Subbarayudu, 29 years, prop. M/s.Vennala Wines, Kavali, R/o.Bottavari street, Kavali, Nellore District. …Petitioner AND Government of Andhra Pradesh rep. by its Principal Secretary, Revenue (Ex) Department, Secretariat, Hyderabad and others. …Respondents. THE HON’BLE SRI JUSTICE C.Y.SOMAYAJULU WRIT PETITION No.12133 of 2001 ORDER: 1. On the ground that petitioner, who carries on business in the name and style of Vennela Wines, resorted to loose sales in his shop, his IL-24 licence for 1998-99 was suspended and his shop was directed to be closed from 18.07.1998 and thereafter his licence was cancelled on 24.11.1998. Questioning that cancellation petitioner preferred an appeal to the Deputy Commissioner of Excise, which was dismissed on 22.3.1999. Further appeal by him to the Commissioner of Excise was dismissed on 26.07.1999, questioning which he moved the Government by way of revision which was allowed on 29.07.2000, and consequently his licence was renewed for the year 2000-01 Thereafter, he applied for refund of the licence fee for the period 18.07.1998 to 31.03.1999 i.e. during the period he could not conduct his business due to wrongful suspension of his licence and the order of cancellation of his licence passed by the excise authorities, which was set aside by the Government in the revision, on which the Superintendent of Excise sought instructions of the Commissioner of Excise, who in turn sought instructions of the Government. As the Government did not issue any instructions and as the excise officials did not pass any order on his application, petitioner filed this writ petition for refund of the proportionate licence fee for the period 18.07.1998 to 31.03.1999. 2. Officer on Special Duty in the excise department filed his common counter affidavit on behalf of the respondents in this petition and a connected Writ Petition, inter alia contending that inasmuch as the enquiry conducted by the Sub-Divisional Prohibition and Excise Officer, Kavali, revealed that the petitioner was indulging in sale of liquor in loose in the licenced premises and as the Nowkarnama holder present in the shop at the time of enquiry also admitted that he was selling liquor in loose, and as the licencee is not entitled to any compensation for cancellation or suspension of the licence nor refund of any fees paid or deposit made in view of Section 31 (3) of the A.P. Excise Act, 1968, (for short ‘the Act’) petitioner is not entitled to any refund. Though G.O.Ms.No.122 Revenue (Excise.III) Department, dated 02.03.2000, permits the Commissioner of Prohibition and Excise to refund proportionate licence fee to IL-24 shops for the period during which licence of the shops were suspended or cancelled under Rule 6 of the Andhra Pradesh Excise (Indian and Foreign Liquor Retail Sale Conditions of Licences) Rules, 1993 (for short ‘the 1993 Rules’) in cases where such suspension or cancellation of licence stood revoked in an appeal after re-measurement or on the ground that the consumption of liquor was outside the licenced premises, petitioner is not entitled to the benefit of the said G.O. as consumption of liquor in this case was within the licenced premises, and as the appeal preferred by the petitioner was rejected by the appellate authorities. 2A. In his counter affidavit the deponent, after extracting the order dated 04.07.2001 passed by a learned Judge of this Court directing the 1st respondent “to file an affidavit as to what is intended by the use of expression ‘taking lenient view’ and what has been the analysis of evidence before 23.07.2001”, stated that while disposing of the revision petitions filed by various licencees, the Government in exercise of its power under Section 64 of the Act, passed orders, after considering the factual position and legal position, by calling for recent reports in some cases where it felt the necessity, and allowed some cases by giving benefit of doubt and by taking a lenient view. For using the expression ‘benefit of doubt’ or ‘lenient view’, for giving the benefit Government considered: (1) People consuming liquor not being apprehended. (2) Seating arrangements like tables, chairs, empty/half filled glasses with liquor not being found. (3) Consumption of liquor outside the business premises i.e. either on the road or public place and those people fleeing on seeing the officers of the Excise Department leaving behind empty glasses/half empty bottles etc., In case where there is no clinching and conclusive evidence to show that loose sales of liquor took place benefit of doubt was given to the licencee. In some cases lenient view was taken as it was represented that they who came from lower middle class families invested substantial amount for carrying on the business, but could not run the shop for sufficient length of time even to recover their expenditure. 3. After the case was listed for final hearing, petitioner filed W.P.M.P.No.23490 of 2007 to receive certain documents as additional evidence. That petition was allowed by the Hon’ble the Chief Justice on 12.09.2007 and those documents were marked as Exs.P.9 to P.14. 4 . The contention of the learned Counsel for the petitioner is that in view of G.O.Ms.No.122, dated 02.03.2000, and inasmuch as Ex.P.12A, letter addressed by the Sub-Divisional Prohibition and Excise Officer, Kavali, to the Prohibition and Excise Superintendent, Nellore, shows that his discrete enquiries revealed that the consumption of the liquor took place outside the premises of M/s.Vennela Wines, it is clear that consumption did not take place within the licenced premises of the petitioner, and as the Government, in the revision preferred to it by the petitioner, set aside the order of the Commissioner of Prohibition and Excise dated 26.07.1999, due to absence of any independent witnesses to corroborate the special report and as the shop is located on the main road, petitioner is entitled to the relief sought, by relying on Macharla Rammurthy v. The Prohibition and Excise Superintendent, Warangal[1], Ch.Rambabu v. The Government of Andhra Pradesh[2], Government of Andhra Pradesh v. Ch.Rambabu[3], Kummineni Hanumantha Rao v. Government of A.P.,[4] S.Nageswara Rao v. Government of A.P.[5] 5. The contention of the learned Government Pleader is that the respondents filed a common counter affidavit in this petition and W.P.No.12132 of 2001 filed on similar facts, and as W.P.No.12132 of 2001 was dismissed on 19.07.2006 holding that order of the Government allowing a revision by taking a lenient view does not amount to the Government holding that the licencee is not guilty of the charge leveled against him, petitioner also is not entitled to the relief sought. Relying on G.Yadagiri v. The Prohibition and Excise Superintendent, Medak District[6], SRI NARSIMHA WINES AND OTHERS V. PROHIBITION AND EXCISE SUPERINTENDENT, MEDAK DISTRICT[7], M/s.S.L.V.Wines v. State of A.P.[8], he contended that the petitioner, in any event, is not entitled to the relief sought in view of Section 31 (3) of the Act which disentitles the licencee seeking refund due to cancellation. 6. In reply, the contention of the learned Counsel for the petitioner is that the ratio in Sri Narsimha Wines (7 supra) does not apply to the facts of this case because in that case cancellation of licence was on a different ground and contended that in view of the ratio in the COMMISSIONER OF EXCISE V. MANOJ ALI[9], the petitioner is entitled to the refund sought and even assuming that the ratio in M/s.SLV Wines case (8 supra) applies to the facts of this case, inasmuch as the licence of the petitioner was suspended on 04.07.1998 and his shop was closed on 18.07.1998 and the licence was cancelled on 24.11.1998, petitioner may not be entitled to refund of the licence fee only for the period 18.07.1998 to 24.11.1998, and in any event, inasmuch as Rule 25 (11) of the A.P. Indian Liquor and Foreign Liquor Rules, 1970, contemplates an order of forfeiture being passed, and as no such order of forfeiture is passed, question of forfeiting the licence fee of the petitioner does not arise and relied o n B.SURESH GOUD V. COLLECTOR[10], and O.SHANKAR REDDY V. PROHIBITION AND EXCISE SUPERINTENDENT, KURNOOL DISTRICT[11]. 7. The point for consideration is whether the petitioner is entitled to refund of the licence fees in view of G.O.Ms.No.122, Revenue, dated 02.03.2000. 8. For disposal of this petition, it is not necessary to refer in detail to all of the decisions relied on by the learned Counsel for both the sides because the documents produced by the petitioner as additional evidence clinch the point for consideration in this petition. Ex.P.12A contains the Part-I Diary of the Sub-Divisional Prohibition and Excise Officer, Kavali, and the letter of the Sub-Divisional Prohibition and Excise Officer, Kavali, addressed to the Prohibition and Excise Superintendent, Nellore. In page 3 of the Part-I Diary it is stated “during my discrete enquiry it is revealed that neither licencee nor Noukarnama violated the licence conditions. Moreover the licencee paid compounding fee as per oral instructions of the then S.H.O.” In his letter addressed to the Prohibition and Excise Superintendent, the Sub-Divisional Prohibition and Excise Officer, Kavali stated that the consumption of liquor took place outside the premises of M/s.Vennala Wines, Kavali Town, and the consumers’ statements recorded earlier also show the same. 9. The contention of the learned Government Pleader that inasmuch as W.P.No.12132 of 2001 filed with this petition in which the respondents filed a common counter affidavit, was dismissed this petition also is liable to be dismissed cannot be accepted because the learned Judge held that in the circumstances referred to in the counter affidavit filed on behalf of the respondent the petitioner is not entitled to claim the benefit of G.O.Ms.No.122, dated 02.03.2000 because the licence of the petitioner was restored after the Government allowed its revision by taking a ‘lenient view’. What is Government taking a ‘lenient view’ is stated in the counter affidavit filed on behalf of the respondents. Why the Government in that case took a ‘lenient view’ and allowed the revision is not reflected in the judgment relied on by the learned Government Pleader. But in this case there is adequate material to show that the petitioner did not violate any conditions of the licence. There is nothing on record to show that any tables or chairs or half empty or half filled glasses of liquor were found in the premises of the petitioner. Ex.P.12A referred to above clearly shows that consumption took place outside the premises of the shop of the petitioner. In G.O.Ms.No.122, dated 02.03.2000, relied on by the petitioner, there are clear instructions that if the consumption of liquor was outside the licenced premises and if the licence which was cancelled on the ground of violation of conditions or dispute is restored in appeal etc., refund of the proportionate licence fee can be made. Petitioner is seeking compliance of the said G.O. by the respondents. When the G.O., enables the Commissioner of Prohibition and Excise to refund proportionate amounts of licence fee, in cases where the licence was cancelled on the ground that there was violation of the conditions of the licence by permitting persons to consume liquor in the licenced premises, stood restored on the ground that consumption of liquor took place outside the licenced premises, respondents cannot be heard to say that inasmuch as the revision filed by the petitioner was allowed by the Government by taking a lenient view, he cannot be granted the refund sought. ‘Lenient view’, in this case, for the reasons stated above, was not taken for the grounds mentioned by the deponent to the counter affidavit filed on behalf of the respondents, but was taken on the basis of the record of the Excise Department, which itself shows that the consumption took place outside the licenced premises. 10. The ratio in SLV Wines case (8 supra) does not apply to the facts of this case because the facts in that case are entirely different from the facts of this case. Applicability of or otherwise of G.O.Ms.No.122 did not come up for consideration before the Full Bench in that case. Respondents 2 to 4 who are bound by the instructions issued by the first respondent to them, cannot say that they are not bound by instructions, more so because it is not the case of any of the respondents that those instructions were issued only to favour some persons of their choice but not to all cases. 11. In this case, the record of the excise department itself establishes that consumption of liquor did not take place in the licensed premises of the petitioner. G.O.Ms.No.122 clearly states that in all cases where the licence was restored in appeal on the ground that the consumption did not take place in the premises, the licencee is entitled to refund of proportionate amounts. Therefore, petitioner is entitled to the relief sought for in the petition and so I allow the writ petition and direct the respondents to refund proportionate amount of licence fee for the period 18.07.1998 to 31.03.1999 or adjust the said amount in the future rentals payable by the petitioner. 12. Before parting with the case, I must state that the respondents by filing the counter affidavit of the Officer on Special Duty, did not in fact comply with the direction issued by the learned Judge on 04.07.2001, calling upon the 1st respondent to file ‘his’ affidavit. Reasons for the 1st respondent not swearing to the affidavit, as per the direction given by this Court, and why the affidavit of the officer on Special Duty is filed are not explained. What was passing on in the mind of the 1st respondent while passing the order in revision can be known only to the officer concerned but not to the Officer on Special Duty and so it is for the 1st respondent to say what is meant by ‘lenient view’ and what is the evidence analysed by him for taking such lenient view. For this lapse I direct the respondents to pay Rs.1,000/- (Rupees One Thousand only) as costs to the petitioner. ______________________ (C.Y.SOMAYAJULU, J.) Date: 31-01-2008 GS [1] W.P.No.7979 of 2000, dated 03.07.2000 [2] W.P.No.2004 of 2001, dated 07.02.2001 [3] W.A.No.463 of 2001, dated 03.04.2001 [4] W.P.No.23338 of 2001, dated 30.07.2002 [5] W.P.No.24191 and 25429 of 2002, dated 23.04.2003 [6] W.P.No.25366 of 2001, dated 07.02.2003 [7] 2001 (6) ALT 240 (F.B.) [8] W.P.No.15904 of 1994, dated 17.03.2005 [9] 2006 AIR (SCW) 5584 [10] 1979 (2) ALT 81 [11] 1997 (5) ALT 177