IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY FIRST DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No: 7693 of 2003 BETWEEN: V. Venkatrami Reddy, S/o. Jayarami Reddy, D.No.1-49-5/3, Main Road, Tagarapuvalasa, Bheemunipatnam, Visakhapatnam Dist. ... PETITIONER AND 1 The Commissioner of Prohibition and Excise, Nampally, A.P., Hyderabad-500001. 2 The Prohibition and Excise, Visakhapatnam, Visakhapatnam 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 may be pleased to pass appropriate Writ order or direction particularly one in the nature Writ of Mandamus declaring the action of the 1st respondent in issuing proceedings Cr.No.15268/2002/CPE/G2 dt.1-2-2003 rejecting the claim of the petitioner for refund of licence fee for the period from 8-5-2002 to 25-7-2002 as illegal, improper, arbitrary unreasonable and set aside the same by directing the respondents to refund the licence fee for the intergnum period from 8-5-2002 to 25-7-2002 during which the petitioner has not done the business and pass such other order or orders. Counsel for the Petitioner: MR.V.MADHUSUDANA RAO Counsel for the Respondents: GP FOR PROHIBITION & EXCISE The Court made the following: ORDER: Petitioner questions the action of the Commissioner of Prohibition and Excise/first respondent in issuing proceedings in Cr.No.15268/2002/CPE/G2 dated 01.02.2003 rejecting his claim for refund of licence fee for the period from 08.50.2002 to 25.07.2002 during which period his licence was suspended as illegal and arbitrary. 2. The undisputed facts are that one K. Krishna Murthy was the licence holder of M/s. Sai Ram Wines situated at Tagarapuvalasa, Bheemunipatnam, Visakhapatnam vide licence No.64/1998-99 for the year 1998-99 and the said premises belongs to one Smt. K. Ramayamma and the said K. Krishna Murthy is the younger brother of Sri K. Venkatanarayana. On the request of the licencee, the said licence was transferred to in favour of the petitioner during August 2001 and when the licence was renewed during 2000-2001 in the name of K. Krishna Murthy, his brother did not raise any objection, but subsequently, the said K. Venkatanarayana claiming to be the owner of the said premises of the shop got issued legal notices dated 10.12.2001 and 28.01.2002 calling upon the Prohibition & Excise Superintendent not to renew the licence in favour of the petitioner herein. However, the licence of the petitioner was renewed on 03.04.2002, thereafter, K. Venkatanarayana filed WP.No.5596 of 2002 and this Court is said to have granted direction directing the Prohibition & Excise Superintendent not to renew the licence for two months. Prior to the receipt of the said order, the licence was already renewed, as such, the said K. Venkatanarayana filed a contempt case in C.C.No.574 of 2002 and this Court in the contempt application by order dated 25.04.2002 suspended the proceedings dated 03.04.2002 on which date the licence was renewed. Pursuant to the said orders in the contempt case, the licence of the petitioner was suspended from 08.05.2002 to 25.07.2002. Aggrieved by the said order, the petitioner preferred an appeal against the orders in the contempt case and this court suspended the orders in the contempt case dated 23.07.2002 and the licence was restored only on 25.07.2002. Thus, the petitioner was prevented from carrying on the business from 08.05.2002 to 25.07.2002. 3. I am of the opinion that the Department is not at all responsible for the suspension of the licence, as the licence was suspended only pursuant to the interim orders of this Court at the instance of K. Venkatanarayana. Therefore, if the said Venkatanarayana is not entitled to litigate or prevent the petitioner from carrying on the business, the said person alone is liable to pay the damages caused to the petitioner. It is open to the petitioner to proceed against the said Venkatanarayana, who filed the writ petition and contempt case and at whose instance alone the licence of the petitioner was suspended in the contempt case. Therefore, I am of the opinion that without impleading the said K. Venkatanarayana and without establishing his fault, the petitioner is not entitled to seek refund of the licence fee from the Excise Department, as the fault cannot be attributable to the department. The writ petition is accordingly dismissed with a liberty to the petitioner to proceed against K. Venkatanarayana, who filed WP.No.5596 of 2002 and C.C.No.574 of 2002. There shall be no order as to costs. ______________ V. ESWARAIAH, J July 21, 2008 DSK