IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRD DAY OF MARCH NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION NO : 11212 of 2005 Between: 1 E. Balakishan Goud, s/o Venka Goud, R/o Hanuman Mandir Road, Kamareddy, Nizamabad District. 2 M. Laxmaiah, s/o Rajaiah, R/o Rajiv Nagar Colony, Kamareddy, Nizamabad District. 3 M. Ravinder Goud, s/o Venka Goud, R/o Hanuman Mandir Road, Kamareddy, Nizamabad District. 4 U. Saya Goud, S/o Bala Goud, R/o Bhavani Road, Kamareddy, Nizamabad District. 5 P. Gangaiah, s/o Ashaiah, R/o Gollavada Colony, Kamareddy, Nizamabad District. 6 K. Bal Raj Goud, S/o Ganga goud, R/o Muthempet Village, Domakonda Mandal, Nizamabad District. 7 K. Bal Raj Goud, S/o Ganga Goud, R/o Bhavani Road, Kamareddy, Nizamabad District. 8 R. Lingam, s/o Bhumaiah, R/o Islampura Road, Kamareddy, Nizamabad District. 9 M. Srinivasa Goud, S/o Sri Balraj Goud, R/o Kamareddy, Nizamabad District. 10 K. Pocha Goud, S/o Sri Hanuma Goud, R/o Kamareddy, Nizamabad District. (All are Petiioners are occ: Tody Tapper Business). ..... PETITIONERS AND 1 The Sub Divisional Prohibition & Excise Officer at Kamareddy. 2 Commissioner, Prohibition & Excise, Gagan Vihar, Hyderabad. 3 Government of Andhra Pradesh, Rep. by Principal Secretary, Prohibition and Excise, Secretariat Buildings, Hyderabad. .....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 a writ or direction more particularly one in the nature mandamus calling for the records relating to and in connection with the impugned similar distraint orders drawn in prescribed Form-I served on the petitioners on 29-4-2005 and on 28-4-2005 though appears to have been drawn up as long back as October 2004 signed on 20-10-2004 , 31-3-2004 in his D3/607, 609, 610, 611/92 and set aside the same as illegal, utter disregard of a judgment and order of this Hon'ble Court , which has become ﬁnal dated 15-11-2002 and pass such other appropriate order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner:MR.T.JAGDISH 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.11212 of 2005 ORDER: The petitioners, who are statedly toddy tappers, filed instant writ petition. They obtained arrack shops in the Village of Kama Reddy for 1989-1990. The grant of such licence/privilege to them is subject to payment of excise duty, licence/privilege fee and cost of arrack for minimum guarantee quota (MGQ). They allege that due to rampant extremists’ activities, they could not carry on business. They could not pay the licence fee and issue price on arrack. They further stated that the respondents initiated action under the Andhra Pradesh Revenue Recovery Act, 1864 (RR Act, for brevity). When such notices were issued to similarly situated persons, they ﬁled writ petitions before this Court challenging the distraint orders issued by the Prohibition and Excise Inspector. This Court disposed of those writ petitions holding that the Inspector of Prohibition and Excise has no power to issue distraint orders. Be that as it is Sub Divisional Oﬃcer, Prohibition and Excise Department, Kama Reddy Village issued notices in Form I under Section 8 of RR Act. All the petitioners ﬁled instant writ petition claiming that they are entitled to ﬁle one writ petition under Rule 4A of the Writ Proceedings Rules, 1977 of Andhra Pradesh High Court. The petitioners contend that impugned notices for recovery of arrears of excise are barred by limitation, that the impugned notices are contrary to earlier judgment of this Court and that the Sub-Divisional Oﬃcer has no jurisdiction to issue distraint orders. The Assistant Prohibition and Excise Superintendent ﬁled a counter-aﬃdavit revealing the following background of the case. The petitioners obtained arrack contract licences at Kama Reddy Village and other Villages for excise year 1989-1990 for sale of arrack in retail in ten shops. They also executed counter part agreement as required under Rule 21 of the Andhra Pradesh Excise (Lease of Right to Sell Liquor in Retail) Rules, 1969. They failed to pay privilege fee and issue price on arrack. The arrears mounted to Rs.17,15,517/-. The lease expired on 13.09.1990, but they did not pay the excise arrears. Therefore, notices dated 16.08.1996 and 19.08.1996 were issued in Form I, which were challenged in W.P.No.26474 of 1997 and batch. This Court disposed of said batch of writ petitions giving liberty to the excise oﬃcials to proceed with the matter in accordance with law. Thereafter as per the instructions of the Commissioner of Prohibition and Excise, a detailed note was circulated through the District Collector, Nizamabad, requesting for delegation of powers to attach and auction movable properties of excise defaulters under RR Act. By proceedings dated 23.04.2002/04.04.2003, the District Collector delegated powers to Sub-Divisional Officers under Section 5 of RR Act. The other allegations made by the petitioners with regard to the alleged extremists’ activities are denied. The petitioners have not ﬁled any reply-aﬃdavit denying the counter averments. Therefore, the counter averments, which remained unrebutted, are deemed to have been admitted by the petitioners. Even otherwise they did not place any material before this Court in support of the contention that their arrack shops were not started due to extremists activities and that they were not able to pay excise duties and issue price on arrack because they could not run the business. Secondly the question whether law of limitation applies for recovery of revenue arrears under RR Act is no more res integra. Be it noted Section 65 of the Andhra Pradesh Excise Act, 1968, enables recovery of excise duties as arrears of land revenue under RR Act. That being the position the petitioners cannot escape the liability to pay excise arrears under RR Act taking the ground that the same is barred by limitation. I n Syndicate Bank v Excise Superintendent, Warangal[1] and Kotha Raghavender Goud v Proh. And Excise Supdt.[2], no limitation is prescribed for recovery of excise arrears. Lastly their submission that ﬁrst respondent has no jurisdiction or authority to issue notices cannot be accepted in view of the proceedings of the District Collector, Nizamabad, dated 04.04.2003. In the judgment of this Court in W.P.No.26474 of 1996 and batch dated 12.11.2004 it was held that unless the powers of Prohibition and Excise Superintendent are delegated, Assistant Excise Superintendent/Excise Inspector cannot issue distraint orders in Form I under Section 8 of RR Act. Proceedings of the District Collector dated 04.04.2003 read as under. Rc.No.D2/1218/2002 Date:04.04.2003 Sub: R.R. Act – Recovery of Excise Arrears under A.P.R.R. Act – Delegation of powers to SDPEOs. of Nizamabad Dist., for attachment and auction of moveable properties of the Excise Defaulters under R.R. Act – Orders - Issued. Ref: C.P.E. A.P., Hyd. D.O.No.17586/99/CPE/T2 dt.24.2.2003. O R D E R:- In exercise of the powers conferred U/s.5 of A.P. Revenue Recovery Act, the powers of distraining and auctioning of the moveable properties of the Excise defaulters is hereby delegated to all the Sub Divisional Proh. & Excise Oﬃcers of Nizamabad District for recovery of Excise Arrears together with interest and costs of process by attaching the moveable properties of the excise defaulters. Sd/-4.4.42003 Collector & Dist.Magistrate, District: Nizamabad In view of the delegation of powers of the District Collector to Sub-Divisional Prohibition and Excise Oﬃcer (Assistant Excise Superintendent) the submissions raised by the petitioners cannot be accepted. The writ petition, for the above reasons, is devoid of merits and the same is accordingly dismissed. No costs. _____________ (V.V.S.RAO, J) 03rd November, 2008 GHN ` To 1 The Sub Divisional Prohibition & Excise Officer at Kamareddy. 2 Commissioner, Prohibition & Excise, Gagan Vihar, Hyderabad. 3 Government of Andhra Pradesh, Rep. by Principal Secretary, Prohibition and Excise, Secretariat Buildings, Hyderabad. 4 2CCs to GP for Prohibition and Excise 5 2CD copies Form-NIC-OGS/WP{AVLR} [1] 2002 (4) ALD 93 [2] 2003 (6) ALT 149