HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 21425 OF 2009 . DATED 28th June, 2011 BETWEEN A.Divakar Reddy …Petitioner And Government of AP, rep. by its Principal Secretary, Excise Department, Secretariat, Hyderabad and ors. ….Respondents. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No.21425 of 2009 ORDER: Heard the learned Counsel for the petitioner and the learned Government Pleader for Excise appearing for the respondents. The petitioner was the successful bidder in respect of shop No. 50 at Lingapur village, Kaddam Mandal, Adilabad District pursuant to the notification issued by the District Collector, Adilabad, on 06.06.2008 for the excise lease to sell Indian made Foreign liquor & Foreign Liquor for the period 2008-2010 and pursuant thereto, the petitioner furnished two Fixed Deposit Receipts (FDRs) of Rs.2,69,167/- each equivalent to 1/6th of the lease amount as contemplated under Rule 19 of the A.P. Excise (Lease of Right of Selling by Shop and Conditions of Licence ) Rules, 2995 ( for brevity ‘the Excise Rules, 2005’.) and he also paid 1/6th of the bid amount on 20.10.2008. While things stood thus, the women organizations of Lingapur village started agitations to close down the petitioner’s licensed liquor shop and in the part of their agitations; they forcibly locked the shop of the petitioner and kept the keys with them. Left with no other alternative, the petitioner approached the respondent (excise as well as police) authorities requesting them to provide protection to run the shop. However, none of the respondent authorities could prevent the agitating women from threatening the petitioner and closing down the shop. In as much as there is no possibility of shifting the shop, the petitioner submitted a representation to the fifth respondent to exempt him from payment of subsequent installments and return FDRs furnished by him. The fifth respondent vide his letter 12.12.2008 intimated the second respondent as to the situation prevailing in the village in view of agitations by women organizations and consequential closure of the shop from 25.10.2008. It is the case of the petitioner that much correspondence flows in between the official respondents with regard to non-functioning of his shop and for taking further steps. Not withstanding the same, the fifth respondent issued letter dated 11.08.2009 demanding the petitioner to execute fresh Bank Guarantee/FDRs equivalent to 1/6th of the lease amount each having validity for 5 and 9 months. It is the case of the petitioner that in as much as the respondents authorities completely failed to protect the petitioner to run the licensed liquor shop, they have no right to demand the further installments and asking him to execute further bank guarantees/FDRs without returning the earlier FDRs to him. It is his further case that Section 30(3) of the A.P.Excise Act,1968 envisages that when the licensee is directed to close the shop, he is entitled to refund of the proportionate license fee for the period during which the shop is closed and that Section 32(2) thereof provides for refund of license fee in case of withdrawal. Placing reliance on the aforesaid legal provision, the petitioner submits that his case is covered by the aforesaid provisions and hence he is entitle to return of the bank guarantees/FDRs furnished by him and therefore the respondents are not entitled to demand for payment of further installments towards license fee. Counter affidavit is filed on behalf of the sixth respondent wherein he admitted the demand of the women organizations by way of agitations to close down the shop of the petitioner and the said organizations even locked the shop and retained the keys with them. In those circumstances, the petitioner was asked to select suitable alternative place for shifting of his shop, but the petitioner has not opted for the same. As the petitioner has not remitted 3rd and 4th installments of lease fee amount during February & June, 2008, the two FDRs furnished by the petitioner under Rule 19 of the Excise Rules, 2005 were adjusted towards aforesaid lease amount and the petitioner has been asked to submit two FDRs/Bank Guarantees afresh equivalent to 1/6th amount of lease each towards 5th and 6th installments. But the petitioner failed to submit the same and hence show cause notice dated 08.09.2009 was issued calling for explanation as to why his license should not be cancelled, to which, the petitioner has failed to submit his reply. The license of the petitioner’s shop was therefore cancelled under proceedings dated 3.10.2009 and the said shop was re-notified for the remaining period. It is also stated in the counter affidavit that there is no provision under the Excise law to exempt the petitioner from payment of subsequent installments and return of FDRs/Bank Guarantees furnished by him in compliance of Rule 19 of the Excise Rules, 2005. As could be seen from the case file, it is clear that in as much as the sensitive situation prevailing in the village, the petitioner was asked to select suitable alternative place for shifting of his licensed liquor shop, but, he has failed to exercise the said option given by the respondent authorities. When the respondent authorities are ready to permit him to shift his shop to any other alternative shop, having due regard to the agitations by the women organizations in the village demanding closure of his liquor shop, the petitioner could have exercised his option for the alternative arrangement offered by the respondent authorities. According to Rule 19(2) of the Excise Rules, 2005, in so far as the petitioner is concerned, he has to remit 2nd installment sum equivalent to 1/6th of the lease amount on or before 20.10.2008, 3rd installment on or before 20.02.2009, 4th installment on or before 20.06.2008 and 5th installment on or before 20.02.2010. Since the petitioner has not paid 3rd and 4th installments of lease amount during February & June, 2008, the FDRs furnished by the petitioner earlier at the time of obtaining the lease, were enchased and adjusted towards 3rd and 4th installments of lease amount. As such, once the petitioner furnished the FDRs/Bank guarantees in compliance with Rule 19 of the Excise Rules, 2005, and as the same were subsequently adjusted towards 3rd and 4th installments of lease amount, the petitioner cannot ask for return of the same. All the more so, when there is no provision under the A.P. Excise Act, 1968 exempting the petitioner from payment of subsequent installments and return of FDRs/Bank guarantees furnished by him, the petitioner cannot have any vested right to ask for the same. The claim of the petitioner that the principle underlying in the provisions of Sections 20(3) and 32(2) of the Excise Act is applicable to his case cannot be countenanced simply for the reason that the respondent authorities have neither closed nor withdrawn the license of the petitioner till 20.06.2009, the date on which the petitioner fell due for payment of 3rd and 4th installments license fee. As the petitioner failed to pay the required remaining installments of license fee, show notice was issued on 08.09.2009 calling for explanation as to why his liquor license shall not be cancelled, to which, the petitioner failed to submit his reply. Thereafter, the respondents have duly cancelled the licensed liquor lease of the petitioner under the order dated 03.10.2009. It well settled principle of law that what is prohibited under the law cannot be the subject matter of mandamus. Hence, the petitioner is not entitled to the relief of refund of the excess license fee. Fore the foregoing discussion, the Writ Petition merits no consideration and the same is accordingly dismissed. There shall be no order as to costs. ------------------------------------ -- JUSTICE ASHUTOSH MOHUNTA Dated 28th June, 2011. Msnro