IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY FIRST DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No: 26803 of 2001 BETWEEN: L. Lacha Goud, S/o. Narsa Goud, R/o. Janagam Village and Mandal, Nizamabad District. ... PETITIONER AND 1 The Government of Andhra Pradesh, Rep. by its Secretary for Home, Secretariat, Hyderabad. 2 The Commissioner of Excise, Government of Andhra Pradesh, J.N.Road, Hyderabad. 3 The Excise Superintendent, Nizamabad, Nizamabad District. 4 Sub-Inspector of Excise, Excise Department, Domakonda, Nizamabad District. ...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 of Mandamus or any other appropriate Writ, or order or direction in the nature of a Writ, declaring the action of the respondents in demanding the excise arrears of the year 1989-90 from the petitioner in respect of shop at Janagam Village and Mandal, Nizamabad District, even without notice as highly illegal, arbitrary, unjust and violative of the principles of natural justice and violative of Art.14 and 300-A of the Constitution of India and to direct the respondents not to collect the said alleged arrears of 1989- 90 and to pass such other order or orders. Counsel for the Petitioner: MR.J.V.PRASAD Counsel for the Respondents: GP FOR PROHIBITION & EXCISE The Court made the following: ORDER: Petitioner submits that he was arrack contractor during the excise year 1989-1990 in respect of one of the shops at Jangam, Jangam Mandal, Nizamabad District for the period commencing from 01.10.1989 to 31.09.1990. He further submits that he could not carry on the business due to threat from Naxalites and as the said shop was burnt on 11.11.1989. After receiving the information about the burning of the shop though the Excise Sub-Inspector visited his shop, no action was taken therefore the shop was kept closed. He further submits that he could not carry on the business from 11.11.1989 and the excise authorities have not passed any orders either canceling the licence for non-payment of rental or raised any demand. 2. Petitioner further submits that unless there is accepted demand and the demand is finalized by issuing a show cause notice and final orders are passed under the Excise Act, the question of initiating recovery proceedings under the Andhra Pradesh Revenue Recovery Act does not arise. The respondents have straightaway initiated proceedings by issuing a distraint order and therefore, the proceedings initiated under the A.P. Revenue Recovery Act are illegal and arbitrary. 3. Counter has been filed stating that petitioner obtained arrack shop at Jangam and he failed to pay the arrears for a sum of Rs.66,922/- as he could not lift the arrack stock for the year commencing from 01.10.1989 to 31.09.1990; therefore, as per the provisions of the Excise Act and the Rules made thereunder, the petitioner is liable to pay the arrears. 4. Nowhere in the counter it is stated that the amounts were determined by passing order under the Andhra Pradesh Excise Act. If that be so, I am of the opinion that the excise arrears, which have not been finally determined under the Excise Act cannot be recovered under the Andhra Pradesh Revenue Recovery Act. It appears that the State has not taken any measures to recover the damages. As per the provisions of the AP Excise Act and the Rules made thereunder if any rental or arrears towards arrack shop had not been paid by the petitioner, there should have been a demand either to pay the arrears or for cancellation of the license, but no proceedings have been initiated either for cancellation of the licence or for determining the final demand. Having regard to the facts and circumstances of the case and for the aforesaid reasons, the writ petition is allowed as prayed for. However, it is open to the respondents to determine the final demand under the provisions of the Andhra Pradesh Excise Act after giving reasonable opportunity to the petitioner, if they are entitled to do so at this point of time, in accordance with law. There shall be no order as to costs. ______________ V. ESWARAIAH, J April 21, 2008 DSK