THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT APPEAL Nos.2104 and 2174 of 2004, WRIT APPEAL Nos.15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34 of 2005 AND WRIT PETITION Nos.6251, 9812, 9853, 9854, 9908 & 10330 of 2004 August 11, 2010 Between: M/s.New Sridhar Wines, represented by its Licensee, Mr.R.Sridhar And others …Petitioners AND The Government of Andhra Pradesh, represented by its Principal Secretary, Revenue (Excise-II) Department, Hyderabad And another …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT APPEAL Nos.2104 and 2174 of 2004, WRIT APPEAL Nos.15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34 of 2005 AND WRIT PETITION Nos.6251, 9812, 9853, 9854, 9908 & 10330 of 2004 COMMON JUDGMENT: (per Hon’ble Sri Justice V.V.S.Rao) This common order shall dispose of all the writ appeals and writ petitions mentioned in the cause title portion of the judgment above. At the outset, we may observe that the question raised is repeatedly agitated before this Court by the licencees under the Andhra Pradesh Indian Liquor and Foreign Liquor Rules, 1970 (the Rules) made under Section 72 of the Andhra Pradesh Excise Act, 1968. Though we appreciate the ingenuity that has been injected into the oral submissions by half-a-dozen able lawyers, we cannot but stick to the discipline of law. For us to decide, the slate is not clean. The issue whether the authorities under the Act (Excise Authorities) can enhance the licence fee during the currency of a licence period in different situations and context is no more res integra by reason of more than a dozen judgments including four Division Bench judgments on the subject. That way, our endeavour and exercise ought to be brief and short. All the appellants and petitioners in these cases obtained licence in Form IL 24 under Rule 23(xiii) of the Rules. The licence permits selling intoxicating Indian Liquor and Foreign Liquor (liquor) in sealed or capsuled bottles, but not for consumption on the licensed premises. Every licensee is required to pay annual licence fee at the rates as shown in the Schedule appended to the Rules. The fee structure for IL 24 licence is graded and depends on the population of village/town/city where the place of licensed shop is situated. For the sake of ready reference, we extract Sl.No.8 in the schedule relevant for IL 24 licence. IL 24 Retail licence for the sale of all k i n d s of Indian Liquor, Foreign Liquor and/or Beer not to be consumed on the premises (Off Licence). (a) Rs.3,00,000/- (Rupees three lakhs only) per year in places where the population of the village/town/city does not exceed 10,000; (b) Rs.4,50,000/- (Rupees four lakhs fifty thousand only) per year in places where the population of the village/town/city is above 10,000 but does not exceed 50,000; (c) Rs.8,25,000/- (Rupees eight lakhs twenty five thousand only) per year in places where the population of the village/town/city is above 50,000 but does not exceed 3,00,000; (d) Rs.10,35,000/- (Rupees ten lakhs thirty five thousand only) per year in places where the population of the village/town/city is above 3,00,000 but does not exceed 7,00,000; (e) Rs.12,30,000/- (Rupees twelve lakhs thirty thousand only) per year in places where the population of the village/town/city is above 7,00,000; Provided that the licence fee in respect of retail shops situated within a belt of 5 KMs, from the periphery of Municipal Corporations shall also be at the rate of fee of retail shops situated within the limits of such Corporation; Provided further that the licence fee in respect of retail shop situated within a belt of 2 KM from the periphery of Municipalities and Notified area shall also be at the rate of licence fee of retail shops situated within the limits of such Municipalities and Notified areas; Provided also where a retail shop falls within the belt area of a Corporation as well as a Municipality and Notified area the licence fee payable shall be the fee applicable to the Retail shop situated in the belt area of the Corporation. All the appellants and petitioners indisputably obtained licenses for the year 2002-2003. On the ground that the population of the area increased in the 2001 census, the Commissioner of Prohibition & Excise (P&E), issued necessary directions to field officers, namely, Deputy Commissioner and Prohibition & Excise Superintendents (PES), to collect the difference of licence fee. Accordingly the concerned PES issued notices to all the appellants/petitioners to pay the difference of licence fee. For example, if the licence fee had been collected at Rs.3,00,000/- for a place in an area with less than 10,000 population demand was made to pay Rs.4,50,000/- in view of the increase of population in 2001 census, exceeding 10,000. Aggrieved by the same, appellants/petitioners have filed these cases. The learned Judge, who heard a batch of 27 writ petitions, dismissed the cases following the judgment of the Division Bench of this Court in The Prohibition & Excise Superintendent, Nellore v D.Sudhakar Reddy[1], Ch.V.Ratna Reddy v Government of A.P.[2] and yet another decision of a Division Bench in The Commissioner of P&E v M/s.Mayuri Wines[3]. Being aggrieved by the judgment of learned Single Judge some of the licensees filed 22 writ appeals. The connected six writ petitions are also tagged on to this batch of cases. The Counsel for the licensees and the Government Pleader for Excise made elaborate submissions. They also relied on three unreported judgments of Division Bench referred to herein above and Swagath v Excise Superintendent[4], Sri Rama Wines v Excise Superintendent[5], P.Narasimha Rao v Government of A.P.[6] and Siva Krishna Wines v Commissioner of P&E[7]. The controversy is focussed on Rule 25 of the Rules and the Schedule, which provide that IL 24 retail licence fee shall be as per the population of the Village/Town/City. As per Rule 3(q) of the Rules, “‘population’ means the figure of population as officially published in the latest Census.” By G.O.Ms.No.151, dated 30.3.2002, a proviso was added thereto to the effect that “for the lease year 2002-2003 the population would mean the figures of population as provisionally published in Census of India 2001.” The corresponding amendment was also made to Rule 3 (r) of the Rules, which defines ‘village/town/city’ by adding a proviso that for the year 2002-2003 there shall be as defined in 2001 Census. Within a period of two months after issue of G.O. Ms.No.151, another amendment was made vide G.O.Ms.No.283, dated 28.5.2002 to the effect that ‘population’ means “the figure of population as provisionally published in the Census of India.” The contention of appellants is that once the “population” as defined in Rule 3(q) of the Rules means the population as per latest Census, the authorities have to reckon the population as finally officially published on the date of issue of licence and the 1991 Census alone should be taken into consideration. The submission cannot be accepted. A similar argument was rejected by the Division Bench in Mayuri Wines and it was laid down as follows. We have no doubt whatsoever in our mind to hold that the further amendment made to the proviso to Rule 3(q) by the notification in G.O.Ms.No.283, dated 28.5.2002 is merely explanatory in its nature. Even the un-amended rule 3(q), substituted by G.O.Ms.No.234, dated 30.3.2001, would have been sufficient to levy and collect the licence fee based on the figures of population as published in the 2001 Census, since the said rule does not speak about any final or provisional publication. The said rule was in force as on the date when the excise year 2002-2003 commenced. The amendment made to the proviso to clause (q) of Rule 3 vide G.O.Ms.No.283, dated 28.5.2002 is merely explanatory in its nature explaining the scope and amplitude of the un-amended rule. Precisely for the said reason, the rule making authority made further amendments by way of substitution. … It is fairly well settled that a proviso, which is explanatory in its nature, normally, should be so read as to harmonise with and clear up any ambiguity in the main section and should not be so construed as to restrict or widen the ambit of the section. … We have already noticed that Rule 3(q) defines ‘population’ and according to it ‘population’ means the figure of population as officially published in the latest Census. The expression in the amendment “population as provisionally published in the Census of India 2001” in no manner runs contrary or counter to the definition of ‘population’ in Rule 3(q). The provisional publication is also an official publication. Officially the figures of population are provisionally published. Neither Rule 3(q) nor the provisos amended from time to time speak about any final publication. The rule making authority as an abundant caution explained as what is otherwise inbuilt in the un-amended proviso and substituted “population as provisionally published in Census of India 2001”. It is not intended to effect or bring about any change in the law, but was intended to be a mere legislative exposition of what the law has always been. It has been introduced as an abundant caution in order to clear any mental ‘cobwebs’ surrounding the meaning of the un-amended proviso. It is intended to convey what the rule making authority considers to be the true meaning beyond controversy or doubt. All the licensees, in these matters, were granted IL 24 licence for the excise year 2002-2003 i.e., from 01.4.2002 to 31.3.2003. They contend that, as on the date of granting of licence, there was no publication of either provisional census or final census and, therefore, enhancement based on unpublished census is bad. This submission is without any merit. Indisputably all the licensees executed undertaking at the time of obtaining liences. In fact the impugned demand itself refers to the undertaking given by the liensees. The undertaking reads as under. UNDERTAKING I, , S/o. , R/o. , age years, is hereby solemnly affirm and state on oath as under: I/We am/are the licensee (s) of , in form IL-24 hereby undertake to pay the differential licence fee if warranted due to increase of population level of the place of licence without any objection whatsoever as per 2001 census as soon as they are published without reference to the date of renewal of my/our licence. Sd/- xxx Deponent (Licensee(s)) The undertaking would show that the licensing authority and the licensees were very much aware of the impending decennial census as per Census Act, 1948. They were aware of the increase of population of the village/town/city. Therefore, legally all the licensees accepted the liability. The impugned demand for difference licence fee is to enforce such pre-existing liability of the licensees. This aspect of the matter has been considered by a learned Single Judge of this Court in Swagath Wines with which we respectfully concur. Therein, it was held that, “the undertaking is nothing more than a recognition and acknowledgment of the liability created by the rule itself and it is meant to cover a situation arising from the immediate non-availability of official population figures. Such undertaking does not in any way run counter to the Act or the Rules. In the absence of a specific provision enabling the Excise officials to refix and revise the demand for licence fee, the Excise authorities can legitimately rely upon this undertaking and enforce the acknowledged liability in terms of the undertaking. Obtaining an undertaking in a situation like this can be treated as an incidental or ancillary function exercised by the Excise Authorities invested with the power to administer the Act and to recover the licence fee.” Therefore even if the population figures were not provisional or finally published in respect of the places where the licensees were granted, it has no effect on the power of excise authorities to demand difference of licence fee. Before we part with these matters, we also place on record that though the cases were argued by the Counsel for appellants leaving no stone unturned, ultimately they do not seriously dispute the legal position as explored in the cited precedents. In the result, for the above reasons, the writ appeals and writ petitions are dismissed without any order as to costs. __________________ (V.V.S.RAO, J) _______________________________ (RAMESH RANGANATHAN, J) August 11, 2010. YS [1] W.A.Nos.1934 of 2001 and batch, dated 10.6.2003 [2] W.A.No.1610 of 2002 and batch, dated 31.3.2003 [3] W.A.No.1978 of 2002, dated 27.11.2003 [4] 1993(2) An.W.R. 601 [5] 1997 (5) ALT 788 (DB) [6] 2002 (6) ALT 612 [7] 2007(2) ALT 31