IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FOURTH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM WRIT PETITION NO : 13130 of 2008 Between: 1 Sugreve Chiranjeeva Rao, S/o. Subba Rao, R/o. 12th Ward, Gudivada, Krishna District, Licensce of M/S Sri Durga Restaurant and Bar 2 Yerra Shiva Shankar Vara Prasad, S/o. Subba Rao, Satyanarayana Puram, 15th Ward, Krishna District, Licensce of M/S Pavan Kumar Restaurant and Bar. 3 nanduri Veera Venkata Prasad, S/o. Swamulu, R/o. D.No.16/129,Satyanarayana Puram, Gudivada Krishna District, Licensce of M/S Sri Jaya Restaurant and Bar. 4 Boppana Rajendra Prasad, S/o. Ranga rao, R/o. 10th Ward, Rajendra Nagar,Gudivada Krishna District, Licensce of M/S Lakshmi Restaurant and Bar. ..... PETITIONER(S) AND 1 The Government of Andhra Pradesh, Rep by its Commissioner of Excise, Hyderabad. 2 Deputy commissioner for Prohibition and Excise, Vijayawada, Krishna District. 3 The Prohibition and Excise Suerintendent, Machilipatnam, Krishna Dsitrict. 4 The Station House Officer, Excise Department, Gudivada, Krishna Dsitrict. .....RESPONDENT(S) 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 to issue a writ of mandamus or any other appropriate writ or direction declaring the action ofthe 3rd Respondent in issuing proceedings in Rc.No.169/2008/A2 dated 18-05-2008 in respect of the Petitioners restaurant and bars shown at SI.No.9, 7, 10 and 6 respectively as illegal, arbitrary and one without jurisdiction and pass Counsel for the Petitioner:MR.O.MANOHER REDDY Counsel for the Respondent No.: GP FOR PROHIBITION & EXCISE The Court made the following : ORAL ORDER: Heard the learned counsel for the petitioners and the learned Government Pleader for Prohibition and Excise. The four petitioners were granted licences under the Andhra Pradesh Excise Act and the Andhra Pradesh Excise (Grant of Licence of Selling by Bar and Conditions of Licence), Rules, 2005 in Form-2B to pursue the business of Bar and Restaurant for the period from 1-7-2006 to 31-6-2007. After the conclusion of the licence period and by the impugned order of the 3rd respondent, dated 18-5-2008, they were called upon to pay the amount stipulated in the order in respect of each of their licences towards 10% additional licence fee on the ground that the office of the Accountant General of Andhra Pradesh had recorded an audit objection in the audit report that 10% additional licence fee for non- contiguous consumption rooms in their licenced premises was not levied from the petitioners. In para 7 of the writ petition, the petitioners specifically pleaded that the premises of each of them in respect of which the licence was granted does not have non-contiguous enclosures and, therefore, the petitioners are not liable to pay the 10% additional licence fee. The petitioners allege that the impugned order wasissued without notice or opportunity to them and is therefore, unsustainable. By the order impugned, the S.H.Os. concerned are directed to collect the stipulated 10% additional licence fee for non-contiguous enclosures from each of the petitioners. The learned Government Pleader for Excise concedes the factual position that the order was issued without notice or opportunity to the petitioners. The order also does not disclose that any such notice or opportunity preceded the issuance of it. Since the petitioners are seriously contesting and disputing the factual position and since the pursuit of the Bar and Restaurant business by the petitioners in premises having non-contiguous enclosures is a factual condition precedent for the entitlement of the respondents to levy and the corollary obligation of the petitioners to pay the 10% additional licence fee, no order ought to have been passed by the 3rd respondent without notice or opportunity to the petitioners. The impugned order is therefore, per se, unsustainable. However, to obviate a dilatory procedural ritual, it is declared that the impugned order shall be treated by the parties herein as a show-cause notice, intimating to the petitioners that they have pursued the business during the relevant year in non-contiguous enclosures in the licenced premises. The petitioners may lodge their objections treating the impugned order as the show-cause notice within a period of one week from the date of receipt of a copy of this order. On receipt of such objections from the petitioners, if any filed within the time stipulated above, the respondents may pass an appropriate order and shall communicate the same to the petitioners. The petitioners shall not be liable to pay the amount stipulated in the impugned order in respect of each of them till such fresh order is passed by the 3rd respondent. The writ petition is disposed of as above, at the stage of admission. There shall be no order as to costs. ________________________ GODA RAGHURAM, J 24th June, 2008 GRR