IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THUURSDAY, THE SIXTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION NO : 9741 of 2005 Between: M. Kasivaswanadham, S/o Naganna, Vetlapalem Proprietor M/s. Krishna Wines, Vetlapalem, Samalkota Mandal East Godavari District ..... PETITIONER AND 1 The State of Andhra Pradesh rep by Secretary Excise Department, Secretariat, Hyderabad 2 The Commissioner of Prohibition & Excise, M.J. Market, Hyderabad 3 The Superintendent Prohibition & Excise Kakinada, East Godavari District .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to pass an order or orders or writ more particularly one in the nature of writ of Mandamus declaring the action of the respondnets in demanding the differential licence fee in respect of the Petitioner IL-24 licence granted Vetlapalem Village, Samalkota Mandal, East Godavari District treating on par with licence fee payable in Samalkot Municipality Area as aRbitrary illegal, and in violation of Article 14 and 19 (1) (g) of the Constitution of India and consequently set a side teh same and pass such other order or orders as this Hon'ble Court may deems fit and proper Counsel for the Petitioner:M/S C.KODANDA RAM Counsel for the Respondents: GP FOR PROHIBITION & EXCISE The Court made the following Order: THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.9741 of 2005 ORDER: The petitioner was granted IL 24 licence under the Andhra Pradesh Excise Act, 1968 (Excise Act, for brevity) and the Andhra Pradesh Indian Liquor and Foreign Liquor Rules, 1970 (the Rules, for brevity) during 1998-1999 for business at Vetapalem Village. The licence was renewed for subsequent years up to 2004-2005. For the next excise year i.e., 2005-2006, the petitioner applied for renewal when he was asked to pay the licence fee at Rs.8.25lakhs. Be it noted that the petitioner was granted licence in 1998 and the same was renewed subsequently, that Vetapalem Village is within a distance of one kilo meter from Samalkota municipality and therefore, the petitioner disputed the licence fee at Rs.8.25lakhs. He was informed that from excise year 2003-2004 licence fee for Vetapalem Village which is within two kilo meters from peripheral limits of Samalkot municipality is Rs.8.25 lakhs and he was asked to pay licence fee for 2005-2006 at Rs.8.25 lakhs and also the diﬀerential licence fee for 2003-2004 and 2004-2005 at Rs.3.25 lakhs for each year. By impugned communication/order dated 20.04.2005 he was called upon by third respondent to pay Rs.8,43,750/- which includes licence fee for three months for the excise year 2005-2006 and diﬀerential licence fee for 2003-2004 and 2004-2005. Aggrieved by the same the petitioner is before this Court seeking a writ of Mandamus declaring the action of the respondents in demanding differential licence fee from 2003-2004. Learned counsel for the petitioner submits that as per Rule 23 (xv) of the Rules, the distance of the petitioner’s shop to periphery municipality limits has to be measured in a straight line on horizontal plane after giving notice to the petitioner, but the same was not done by the Station House Oﬃcer. He secondly submits that serial No.8 to the schedule appended to the Rules was amended with eﬀect from 10.02.2005 and therefore, the assessment for 2003-2004 and 2004-2005 is illegal and unauthorized. Nextly he contended that the demand was not preceded by show cause notice. Per contra, learned Government Pleader for Prohibition and Excise submits that though initially Government issued G.O.Ms.No.389 dated 13.03.2003 extending peripheral belt area from one kilo meter to two kilo meters, by subsequent orders dated 22.03.2003 issued in G.O.Ms.No.449, the schedule was amended subsisting one kilo meter with two kilo meters from periphery of municipalities and notiﬁed areas. He has also placed a copy of the same before this Court. He, however, does not dispute that SHO, Excise Station, did not any notice before conducting survey to ﬁnd out the actual distance of the petitioner’s shop up to municipal limits of Samalkot. Rule 25 of the Rules provides that annual licence fee for IL 24 licence shall be as amended from time to time at the rates shown in the schedule appended to the Rules. Serial No.8 of the schedule deals with the licence fee for IL 24 shops. If the population of the revenue village/municipality/municipal corporation is above 50,000 but does not exceed 3,00,000 the licence fee is Rs.8.25 lakhs. The proviso stipulates that licence fee in respect of retail shop situated within belt of two kilo meters from peripheral limits of municipalities, notiﬁed areas and villages with population of 25,000 and above shall also be at the rate of licence fee of retail shops situated within the limits of such municipalities, notiﬁed areas and villages. It is no doubt true when the petitioner was initially granted licence in 1998 the eﬀect of proviso was to apply the same licence fee as applicable to municipalities only if the shop is within distance of one kilo meter from peripheral limits of municipality. The same was amended with eﬀect from 22.03.2003. Therefore, the petitioner is bound to pay the diﬀerential licence fee. Be it noted under Rule 25(1) of the Rules as well as conditions of licence, the petitioner is obliged to pay licence fee as amended from time to time. The relevant slab rate to the petitioner’s shop at Vetapalem Village would be applicable only when the shop is within two kilo meters from peripheral limits of Samalkot municipality. This needs to be veriﬁed. It is no doubt that excise oﬃcials already came to a conclusion by taking measurement of the distance. The petitioner complains that measurement was not made in his presence. Fairness requires that a survey should be conducted in the presence of the petitioner, especially when he disputes the measurement. This Court is of the considered opinion that second respondent can take necessary steps to measure the distance after giving notice to the petitioner and then take appropriate action to recover diﬀerential licence fee, if the petitioner’s shop falls within two kilo meters from peripheral limits of Samalkot municipality. Accordingly the writ petition is allowed and the impugned order dated 20.04.2005 is set aside. Second respondent is directed to conduct survey to measure the distance of the petitioner’s shop up to the Samalkot municipality limits after giving notice to the petitioner. No costs. _____________ (V.V.S.RAO, J) 06th November, 2008 GHN To 1 The State of Andhra Pradesh rep by Secretary Excise Department, Secretariat, Hyderabad 2 The Commissioner of Prohibition & Excise, M.J. Market, Hyderabad 3 The Superintendent Prohibition & Excise Kakinada, East Godavari District 4 2CCs to Prohibition and Excise 5 2CD copies Form-NIC-OGS/WP{TRT}