HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY W.P.No.27634 of 2005 Dated 29th Day of August, 2007 Between: A.Venkataratnam and two others .. Petitioners And The Govt. of Andhra Pradesh Revenue (Excise) Department, Secretariat, Hyderabad rep. by its Secretary and three others .. Respondents O R D E R: This writ petition is filed seeking a mandamus to declare Rule- 59 of the A.P. Excise (Lease of right of selling by shop and conditions of licence) Rules, 2005 (for brevity “the Rules), as arbitrary and illegal and contrary to Section 20 of the A.P. Excise Act, 1968 (for short “the Act”), and for a consequential direction to the respondents to refund the proportionate licence fee for the period from 5.00 P.M. on 22.9.2005 to 5.00 P.M. on 24.9.2005 and from zero hours on 25.9.2005 to 01.00 P.M. on 26.9.2005 in favour of the petitioner. The averments contained in the affidavit filed in support of the writ petition show that the petitioners are holders of Form A4 licence granted for sale of Indian and Foreign Liquor by shop. The 2nd respondent issued Notification, dated 23.9.2005 in exercise of the powers under Section 20 of the Act directing the holders to close down all 2B, A4, C-1 and CS-2 licences and toddy shops in the Municipalities of Guntur and Mangalagiri limits and within 5 kms from the periphery of Guntur and Vijayawada Municipal Corporations and 2 kms from the periphery of Mangalagiri Municipality from 5.00 P.M. on 22.9.2005 to 5.00 P.M. on 24.9.2005. It is further notified that IL shops of all categories in the limits of Guntur and Mangalagiri shall be kept closed from midnight of (zero hour) on 25.9.2005 to 1.00 P.M. on 26.9.2005. This notification was issued to ensure very fair, peaceful and smooth conduct of elections to Municipalities/Nagar Panchayats in Guntur scheduled to be held on 24.9.2005. The petitioners averred that in view of the Notification, they closed their shops as they were prevented from conducting their business. It is further contended that though under Section 20(3) of the Act, the licencees are entitled to refund of the proportionate licence fee for the period during which the shops were closed, no such refund is made in their favour in view of Rule 59 of the Rules notified in G.O.Ms.No.998 (Revenue – Excise II), dated 24.5.2005. The petitioners have therefore questioned the validity of Rule 59 in the present writ petition and also sought for a direction to the respondents to refund the proportionate licence fee as envisaged under Section 20(3) of the Act. Heard Sri A.Jagannadha Rao, learned counsel for the petitioners and the learned Government Pleader for Prohibition and Excise. The learned counsel for the petitioners submitted that Section 20(3) of the Act contemplates refund of the proportionate licence fee for the period during which the licencees are required to close shops by the District Magistrate for preservation of public peace, etc. He has further submitted that Rule-59 runs counter to the Section 20(3) of the Act, and therefore, it is liable to be declared as ultravires the said provision. The learned Government Pleader has very fairly stated that there is apparent conflict between Rule-59 and Section 20(3). He also does not dispute the fact that the 2nd respondent issued Notification on 23.9.2005 under which different categories of licencees are mentioned therein which included the petitioners who were directed to close the shops during the days specified therein. It is well settled legal position which does not require reference to any authority that a Rule, which is in the nature of a subordinate legislation, cannot run counter to the main provision prescribed under a statutory enactment. For the sake of convenience, Section 20 of the Act and Rule 59 of the Rules are reproduced herein below: Section 20 of the Act:- Closing of shops for preservation of public peace:- 1. The District Magistrate may, by notice in writing to the licencee, require that any shop in which any intoxicant is sold shall be closed at such times or for such period as he may think necessary for preservation of public peace. Explanation:- (1) For the purpose of this Section, the expression of “District Magistrate” includes the Additional District Magistrate or any other person empowered to exercise the powers of District Magistrate. (2) If any riot or any unlawful assembly is apprehended or occurs in the vicinity of any such shop, any Magistrate or the first or second class may for reasons to be recorded in writing, require such shop to be kept closed for such reasonable period as he may think necessary. (3) The licencee shall not, on account of closure of his shop under this Section, be entitled to any compensation except to the refund of such licence fee paid by him in respect of the shop as is proportionate to the period which the shop is required to be kept closed under this Section. Rule-59 of the Rules:- No remission for closure:- The lease holder shall not be entitled for remission of lease amount or compensation on account of closure of licensed premises when the same is ordered to close under Section 20 of the Act. A reading of the above reproduced provisions clearly indicates that there is overt conflict between Section 20(3) and Rule-59 and therefore, Rule-59 falls foul of Section 20(3) and consequently Rule-59 is liable to be declared as ultravires Section 20(3). For the aforementioned reasons, Rule-59 is declared illegal as being ultravires Section 20(3) of the Act. The 4th respondent is directed to examine the claim of the petitioners for remission in the light of the Notification dated 23.9.2005 issued by the 2nd respondent and dispose of the same for remission within a period of four weeks from the date of receipt of a copy of this order without reference and regard to Rule-59. In the result, the writ petition is allowed. No costs. _______________ 29.08.2007 bcj