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 : 7634 of 2005 Between: S.K. Khasim, S/o.Latif R/o. Damachla Village and Mandal, Nalgonda District Licensor of M/s Pragati Wines ..... PETITIONER AND 1 Government of Andhra Pradesh Revenue (Excise.II) Department, Secretariat, Hyderabad rep. by its Principal Secretary. 2 The Commissioner of Prohibition and Excise Andhra pradesh, Nampally, Hyderabad. 3 The Prohibition and Excise Superintgendent Nalgonda. .....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 to issue writ of mandamus or any other appropriate writ or direction declaring the proceedings of the 3rd respondent issued in Cr.No.865/2003/C2 Dt.26.6.2004 as illegal arbitrary and contrary to the provisions of the A.P.Excise Act and the rules made there under and pass such other or further orders. Counsel for the Petitioner:MR.A.JAGANNATHA RAO 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.7634 of 2005 ORDER: The petitioner was granted IL 24 licence under the provisions of the Andhra Pradesh Indian Liquor and Foreign Liquor Rules, 1970 (the Rules, for brevity) as well as the provisions of the Andhra Pradesh Excise Act, 1968 (Excise Act, for brevity). The licence for the excise year 1998-1999 was renewed from time to time up to 31- 03-2005. By virtue of the licence the petitioner was running the liquor business in the name and style of M/s Pragati Wines at Damercherla Village in Nalgonda District. At the relevant time the population of said Village was less than 10,000 and therefore, the licence fee of Rs.3,00,000/- was collected in accordance with Rule 25 read with Schedule appended to the Rules. However, by impugned communication dated 26.06.2004, the petitioner was asked to pay diﬀerential licence fee for the year 2002-2003 and 2003-2004 on the ground that the population of said village crossed 10,000 as per ﬁnal population ﬁgures published by census authorities. Aggrieved by the same, instant writ petition is ﬁled. The petitioner’s grievance is that unless and until ﬁnal census ﬁgures are published in the gazette, licensing authority cannot insist on payment of Rs.4,50,000/-. There is no dispute that by amendment issued to the Rules vide G.O.Ms.No.283, dated 28.05.2002, Rule 3(q) of the Rules (deﬁnition of ‘population’) was amended so as to read “population means as provisionally published in Census of India, 2001”. Learned counsel for the petitioner is fair enough to bring to the notice of this Court a decision on the point i n Tirumala Balaji Wines v Commissioner of Prohibition and Excise, Hyderabad[1], 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 Prohibition and Excise brought to the notice of this Court an unreported decision of a Division Bench of this Court i n 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[2] 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. I n 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 petitioner 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) 31st October, 2008 GHN To 1 Government of Andhra Pradesh Revenue (Excise.II) Department, Secretariat, Hyderabad rep. by its Principal Secretary. 2 The Commissioner of Prohibition and Excise Andhra pradesh, Nampally, Hyderabad. 3 The Prohibition and Excise Superintgendent Nalgonda. 4 2CCs to GP for Prohibition and Excise 5 2CD copies Form-NIC-OGS/WP{MPL} [1] 2003 (5) ALD 479 [2] 2002 (6) ALT 612