IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE THIRTY FIRST DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION NO : 9771 of 2005 Between: M/s.Manjeera Wines, Rep by its Proprietor Sri.A.Srinivas Goud. Damaracherla Mandal, Nalgonda District A.P. ..... PETITIONER AND 1 Govt of A.P, Revenue (Excise-II) Dept. Rep by its Prl.Secretary. Secretariat , Hyderabad. 2 The Commissioner of Prohibition and Excise, A.P., Nampally, Hyderabad. 3 The Prohibition and Excise superintendent, Nalgonda Dist , Nalgonda. 4 Sub-Divisional Inspector, Prohibition and excise Miryalaguda , Nalgonda , Secunderabad. .....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 issue any appropriate writ , order or direction, preferably a writ in the nature of Mandamus decalring the action of the respondents in raising a demand of Rs.1,50,000/- each for the excise year 2002-2003 and 2003-2004 and the arbitrary action of the 1st respondent in writing of Rs.1,00,000/- paid towards 1/3 licence fee for the excise year 2004-2005 appropriating towards diﬀerential licence fee as illegal, arbitrary and in ﬂagrant Violation of Art. 14,19 and 21 of the Constitution of India and in Violation of the A.P.Excise Act and the Rules Made thereunder and pass such other further or other orders. Counsel for the Petitioner: MR.D.HANUMANTHA RAO Counsel for the Respondents: GP FOR PROHIBITION & EXCISE The Court made the following : THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.9771 OF 2005 ORDER: The petitioner ﬁled instant writ petition seeking a writ of Mandamus declaring the action of respondents in raising a demand of Rs.1,50,000/- each year for excise years 2002-203 and 2003-2004 as illegal and arbitrary. Petitioner was granted IL 24 licence under Andhra Pradesh Indian Liquor and Foreign Liquor Rules, 1970 (the Rules, for brevity). The licence enables petitioner to carry on the business of sale of liquor in retail at Damaracherla. At the time of granting licence as per the relevant Rules based on the population of Damaracherla village, the petitioner was asked to pay annual licence fee of Rs.3,00,000/-. The licence issued in the year 2001-2002 was also renewed for subsequent years upto 2003-2004. For the year, 2004-2005, petitioner remitted one-third licence fee as per Rule 25(9) of the Rules treating licence fee as Rs.3,00,000/-. The third respondent by communication, dated 22.03.2004 asked petitioner to pay diﬀerential licence fee of Rs.1,50,000/- for 2002-2003 and 2003-2004 (total Rs.3,00,000/-), aggrieved by which, present writ petition is filed. Petitioner mainly contends that population of Damaracherla village as per 1991 census is 7,213 and therefore, based on the provisional census ﬁgures for 2001, licence fee cannot be demanded nor enhanced at Rs.4,50,000/- per annum. The petitioner also disputes that population of Damaracherla is more than 10,000 and he contends that population of Damaracherla revenue village is 11,049, which cannot be the basis for levying licence fee under Rule 25(1) of the Rules read with Schedule under the Rules. Fourth respondent ﬁled counter aﬃdavit opposing the writ petition. The grant of licence or renewal of the same is not denied. It is however stated that as per Census 2001, the population of Damaracherla village is 11,049 and therefore, petitioner is liable to pay the licence fee of Rs.4,50,000/-. It is also alleged that as per the instructions of second respondent Census 2001 ﬁgures were obtained from Director of Census, Hyderabad, and while granting licence an undertaking was obtained from petitioner that he would pay diﬀerential licence fee if warranted due to increase of population at the place of licence. The contention of petitioner cannot be accepted. As per Rule 25(1) of the Rules, the annual licence fee for licence IL 24 shall be as amended from time to time at the rates as shown in the Schedule appended to the Rules. Serial No.8 of Schedule deals with IL 24 retail licence and stipulates four slabs depending on population. If population of revenue village and its hamlets/municipality/municipal corporations is above 10,000 but does not exceed 50,000/-, the slab rate is Rs.4,50,000/- is attracted. As the population of Damaracherla revenue village is 11,049, there is no inﬁrmity in third respondent demanding diﬀerential licence fee. Secondly, as rightly pointed out by learned Assistant Government Pleader, petitioner gave an undertaking to pay the diﬀerential licence fee and he is bound by the same as held by this Court in Swagath v Excise Superintendent[1]. The question whether the excise authorities can rely on provisional census figures published is no more res integra. In M / s . Tirumala Balaji Wines v Commissioner of Prohibition and Excise, Hyderabad[2], wherein it was held that when the delegated legislation mandates provisionally published census as basis for ﬁxing the prescribed slab rate of licence fee under Schedule to the Rules, licensing authority has no discretion. He, however, submits that this decision is subject matter of a writ appeal. Learned Government Pleader for Excise brought to the notice of this Court an unreported decision of a Division Bench of this Court in CH.V.Ranta Reddy v Secretary, Revenue (Excise), Hyderabad (W.A.No.1610 of 2002 and batch dated 31.03.2003) wherein it was held that ﬁxation of licence fee based on provisional census is appropriate. A learned Judge of this Court in P.Narasimha Rao v Government of Andhra Pradesh[3] while dealing with similar aspect held as under. …Substitution of proviso to Rule 3(q) does not indicate either provisional publication or ﬁnal publication. The asinine consequence of accepting the interpretation placed by the learned counsel will amount to amending Rule 3(q) by adding ‘ﬁnal’ before the word ‘population’. It is well settled that while interpreting the provision in its true meaning the Courts cannot supplement unless there is any ambiguity as such. When population is clearly deﬁned, namely the ﬁgures of population as oﬃcially published in the latest census is inclusive of any publication of population ﬁgures. Any other interpretation restricting it to that of ﬁnal ﬁgures published in the Census Act will amount to amendment of the Rule 3(q) of the Rules. When the word is deﬁned to bear number of inclusive meanings in the sense in which the word is used the particular provisions must be ascertained from the Scheme or the Rules, the language of the provisions and the object intended to be served thereby. From a reading of the said amendment of ‘population’ unequivocally leads to one conclusion that for the Excise Year 2002-2003 the enhanced fee will be levied basing upon the population ﬁgures as published in 2001 Census. In Tirumala Balaji Wines (supra) the question was whether licensing authority is, in law, bound to ﬁx the licensing fee taking into consideration the population as per latest census. After noticing the legislative choice as reﬂected in the Rules, this Court made the following observations. …When the delegated legislation mandates to assess the population based on the latest census of a village/town/city, it is not permissible for any licensing authority or any excise oﬃcial to assess the population in a diﬀerent manner. That subsequent to issue of licence or during the currency of the licence, the population of a village/town/city got altered or changed by reason of administrative action forming new units like villages/towns/cities, is not a justiﬁcation to ﬁx population in an indiscriminate manner. If such power is conceded to the licensing authority, it would work adverse to the interest of the licensees. If during the currency of IL-24 licence, some new villages or panchayats merge in the village/town, the licensing authority may not increase the licence fee on that ground. That is not permissible. The Legislature i.e., delegated legislation has not left any discretion to the licensing authority. The licence fee has to be prescribed by the licensing authority i.e., Commissioner of Excise relying only on the latest census ﬁgures and not otherwise. This Court, however, observes that if the State Government itself in exercise of delegated power expresses its desire speciﬁcally to take into consideration the subsequent changes which altered the population ﬁgures, it is permissible to the licensing authority to follow the same… In another unreported judgment of this Court in M/s.New Sridhar Wines v Government of Andhra Pradesh (W.P.No.7516 of 2004 and batch, dated 29.11.2004) also a similar view was expressed. The Division Bench in CH.V.Ranta Reddy (supra) approved the decision in P.Narasimha Rao (supra) and the decision in W.P.No.8559 of 1982 and batch, dated 21.01.1983, and while laying down that the provisional census ﬁgures can be the basis for ﬁxing licence fee made the following observations. 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. Therefore, the submission of learned Counsel for the petitioners that Rule 3(q) of the Rules as amended by the orders of the Government in G.O.Ms.No.283, dated 28.05.2002, is not retrospective, cannot be accepted. It may be mentioned that it is always the prerogative of the legislature to amend the law and remove the basis, which is the ground for invalidating a Rule or a provision in an Act. The Writ Petition is devoid of any merits and the same is dismissed accordingly. No costs. ______________ (V.V.S.RAO,J) 31.10.2008. pln [1] 1993 (2) AWR 601 [2] 2003 (5) ALD 479 [3] 2002 (6) ALT 612