IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY THIRD DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No: 1423 of 2002 BETWEEN: 1 Krishna Lal, S/o. Mohan Lal, (Died), R/o. 4-3-166, Hanumantekdi, Hyderabad. 2 Shanthi, w/o. Late Krishna Lal, R/o. 4-3-166, Hanumantekdi, Hyderabad. 3 Jogesh, S/o. Late Krishna Lal, R/o. 4-3-166, Hanumantekdi, Hyderabad. ... PETITIONERS AND 1 Government of A.P., Rep. by its Secretary Excise Department, Secretariat Buildings, Hyderabad. 2 The Commissioner of prohibition Excise, Government of A.P., Hyderabad. 3 Excise Superintendent, Hyderabad. 4 The District Collector, 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 may be pleased to issue an order direction or writ particularly one in the nature of writ of 'Certiorari' calling for records relating to the proceedings of the 4th respondent in CR. NO. A1/2083/97ACH dated 5-1-2002 as being illegal, arbitrary and unconstitutional and quash the same and consequently direct the respondent to forthwith repay the petitioner the sum of Rs.2,01,862/- by granting a remission of the licence fees for the relevant period of 52 days in respect of the petitioner’s licence No. 133 dated 9-6-1997 and pass such other order or orders. Counsel for the Petitioners: MR.S.NIRANJAN REDDY Counsel for the Respondents: GP FOR PROHIBITION & EXCISE The Court made the following: ORDER: Petitioners, the legal heirs of the first petitioner, question the rejection order of the fourth respondent dated 05.01.2002 in rejecting to refund the proportional licence fee for the period during which the licence was not issued to the premises selected by the petitioner at Door No.5-3-809 and 810, Toopkhana, Osmangunj, which is within the notified Ward No.5 of Nampally area of Hyderabad vide Gazette No.18 dated 04.04.1997. 2. (a) The undisputed facts are that the Collector and District Magistrate, Hyderabad District issued a Gazette No.20 dated 23.04.1997 for the year 1997-98 under Rule 4 of the Andhra Pradesh Excise (Lease of right to sell Indian Liquor and Foreign Liquor in Retail) Rules, 1993 (for short ‘the Retail Rules’), for grant of lease for the period commencing from 30.04.1997 to 31.03.1998 and the upset price was also mentioned for the said period but not from 18.04.1997 to 31.03.1998. As per the annexure to the said notification the establishment of Indian Liquor and Foreign Liquor shop was to be auctioned by inviting sealed tenders for the year 1997-98 and the number of shops; serial number, name of place/village, locality and ward and upset price have been fixed. The petitioner became the highest bidder in respect of shop at Sl.No.133, Nampally No.5 near Seena Bakery, Osmangunj, Ward No.5 and the upset price being Rs.12,00,000/- the petitioner had quoted an amount of Rs.13,51,000/- and selected the premises bearing No.5-3-809 & 810, Toopkhana, Hyderabad. The Station House Officer, Narayanguda and the Sub-Divisional Prohibition and Excise Officer, Hyderabad after inspecting the proposed premises reported that the said premises is 500 meters away from the locality as per the Gazette notification; the request of the petitioner was rejected and accordingly a notice in Cr.No.A1/2083/97/ACH dated 16.05.1997 was issued to the petitioner to select some other suitable premises as the premised selected by the petitioner is against the location notified in the District Gazette No.20 dated 23.04.1997. (b) As against the said rejection order the petitioner approached the Commissioner of Prohibition & Excise, Hyderabad and on the representation of the petitioner, the Commissioner – second respondent passed orders in Cr.No.8266/97/CPE/G1 dated 26.05.1997 requesting the Assistant Commissioner of Prohibition & Excise to personally inspect the premises. Accordingly the Assistant Commissioner personally inspected the premises along with the SDPO, P&E, on 27.05.1997 to check up whether any premises is available in and around Seena Bakery and found one Mulgi bearing No.5-2-448 opposite to the bakery and by the side of the bakery in a commercial complex namely Sherza Estate owners six mulgies were found vacant. It is stated that the petitioner insisted to issue licence in the premises by him without mentioning the steps taken by him to secure any other premises nearby Seena Bakery. However, the Commissioner of P&E, vide Cr.No.8266/CPE/G1 dated 09.06.1997 accorded permission to locate IL & FL shop No.133 in the premises chosen by the petitioner. Accordingly, the licence was issued on 09.06.1997. 3. It is not in dispute that the premises selected by the petitioner is within the Ward No.5 as notified in the Gazette but it is the case of the respondents that the premises selected by the petitioner at premises bearing Door No.5- 3-809 and 810, Toopkhana, Osmangunj, is 500 meters away from the locality as per the Gazette notification, whereas the notified point is near Seena Bakery on M.J. Market to Afzalgunj Road. The petitioner is supposed to select the premises as notified in the notification but not the premises in the Goshamahal Road to Osmangunj Road. Therefore, there is lapse on the part of the petitioner in not selecting the premises in conformity with the conditions prescribed for IL 24 shop. 4. Learned Government Pleader submits that as the petitioner failed to select the premises near Seena Bakery, Osmangunj, Ward No.5, he is not entitled for any remission of rental as there was no lapse on the part of the department. 5. On the other hand, the learned counsel for the petitioner submits that though the premises selected by him may not be at the exact point as notified but the premises is admittedly within the notified ward/locality i.e. Osmangunj locality of Ward No.5 and that there is only one ward notified in the Nampally area. Therefore, there cannot be any tenable objection for any neighbouring auction purchasers of the area. 6. Learned Government Pleader further submits that the reason for rejecting the request of the petitioner is that the auction purchasers of the neighbouring shops at Sl.No.135 and Sl.No.136 of Ward No.14 raised objections. 7. I am of the opinion that the successful bidders at Ward No.14 in respect of Shop Nos.135 and 136, which are located in a different ward and different locality at Goshamahal, have no right to object for grant of licence in respect of neighbouring wards and their objections cannot be considered. More so, when there being 5 shops notified in Ward No.5, none of the auction purchasers at Ward No.5 have objected for grant of licence at the premises selected by the petitioner. Admittedly, the petitioner has complied with all the formalities for grant of licence and insofar as selection of premises is concerned, no doubt, discretion has been given to the Assistant Commissioner, Prohibition & Excise, for approval of the suitable premises for the location of the shop within the ward/locality, as the case may be, as notified in the Gazette. The only factors that have to be considered by the approving authority is whether the location of the shop is within the village or locality and whether it is 100 meters away from the places of public worship, educational institutions, hospitals and highways. Admittedly, the said premises selected by the petitioner is not an objectionable place and it is in conformity with Rule 6 of the Rules. The Commissioner in the instant case fixed the number of shops to be established in the area and their location as described in the Gazette is Ward No.5, therefore, I am of the opinion that premises selected by the petitioner is situated in Ward No.5, merely because it is 400 meters away from the notified point it cannot be said that the said premises is not in conformity with the auction notification or the Rules. 8. In view of the aforesaid facts and circumstances, it cannot be said that there is any justification on the part of the respondents in rejecting the grant of remission to the petitioner. However, the Commissioner of Prohibition & Excise rightly directed to issue licence to the said premises and accordingly the licence was issued on 09.06.1997. As the petitioner could not carry on the business for want of licence, for no fault of his, he is entitled for the refund of the proportional licence fee till the date of grant of licence. The writ petition is accordingly allowed setting aside the impugned order and the respondents are directed to calculate the amount refundable to the petitioner till the date of grant of licence and refund the same to the petitioner as expeditiously as possible without any undue delay. There shall be no order as to costs. ______________ V. ESWARAIAH, J June 23, 2008 DSK