* THE HON’BLE SRI JUSTICE V.ESWARAIAH <+ WRIT PETITION No.21633 of 2004 % MONDAY, THE TWENTY THIRD DAY OF JUNE, TWO THOUSAND A EIGHT. # M/s.Gowda Brandy Shop Kondagunta village Gudur Rural Mandal, Nellore District, Rep.by its Licensee Smt.A.Sarasamma ….Petitioner Versus $ The Government of Andhra Pradesh, Revenue (Excise-III) Dept. rep.by its Spl.Chief Secretary, Secretariat Building, Hyderabad and 2 others …..Respondents. ! Counsel for the petitioner : Mr.B.SAI RAM GOUD ^ Counsel for the respondents : GP FOR PROHIBITION & EXCISE < Gist : > Head Note: ? Cases Referred: 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.21633 of 2004 Between: M/s. Gowda Brandy Shop Kondagunta Village, Gudur Rural Mandal, Nellore District, Rep by its Licensee Smt. A. Sarasamma, W/o. Late A. Subrahmanyam ..... PETITIONER AND 1 The Government of Andhra Pradesh, Revenue(Excise-III) Dept. rep by its Spl, Chief Secretary, Secretariat Building, Hyderabad. 2 The Commissioner of Prohibition & Excise Government of Andhra Pradesh at Nampally, J.N. Road, Opp. Exhibition Grounds, Nampally, Hyderabad. 3 The Superintendent of Prohibition & Excise, Nellore District, at Nellore. .....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 to issue an order or direction more particularly one in the nature of WRIT OF MANDAMUS declaring the impugned proceedings vide G.O.Rt. No. 1636 Revenue (Ex-III) Department dt. 12-10-2004 and the proceedings No. 1217/2003/GPE/G2, dated 19-2-2003 issued by the 1st and 2nd respondent in respect of M/s. Gowda Brandy Shop, Kondagunta Village, Gudur Rural Mandal, Nellore District, as illegal and consequently direct the respondents No. 1 and 2 either to refund or adjust in the further licence fee a sum of Rs. 2,92,000/- paid excess by the petitioner in respect of M/s. Gowda Brandy Shop, KOndagunta Village, Gudur Rural Mandal, Nellore District and pass Counsel for the Petitioner:MR.B.SAI RAM GOUD Counsel for the Respondent No.: GP FOR PROHIBITION & EXCISE The Court made the following: Form-NIC-OGS/WP{RLD} THE HON'BLE SRI JUSTICE V.ESWARAIAH WRIT PETITION No.21633 of 2004 ORDER: The petitioner filed the present writ petition seeking to issue a Writ of Mandamus, declaring the Order of the Government in G.O.Rt.No.1636 Revenue (EX.III) Department, dated 12.10.2004 in rejecting the request of the petitioner for refund of the licece fee paid for the unlicensed period i.e. prior to grant of licence for the excise year 2002-03, amounting to Rs.2,92,000/-, as illegal and arbitrary and to set aside the same, directing the respondents 1 and 2 to refund the said amount. 2. The facts of the case are that the husband of the petitioner namely A.Subramanyam was the original licencee of IL-24 in the name and style of M/s.Gowda Brandy shop situated at Pothupalem of Guduru Rural Mandal, Nellore District for the excise year 1998-99, vide licence No.94/98-99. He paid the entire licence fee of Rs.2 lakhs for the said year of 1998-99. After completion of the lease year, he did not come forward for the renewal of the licence for the year 1999-2000 as he expired on 10.04.1998. After the death of original licencee, his wife, the petitioner herein namely A.Sarasamma filed a revision before the Government, requesting to permit her to run the wine shop, expressing her ignorance about the legal obligation of intimating to the licensing authority about the death of her husband. It is stated that she intimated the Excise Superintendent, Nellore about the death of her husband on 27.03.1999 and requested to permit her to run the shop. 3. It is pertinent to note that the shop was run as per the licence for the excise year 1998-99 i.e. upto 31.03.1999. It is not in dispute that the licence was not at all renewed for the excise year 1999-2000 and 2000-01. The petitioner filed a representation/revision only on 17.10.2000 i.e. after expiry of the licence period 1999-2000. The revision filed by the petitioner was allowed by the Government, vide G.O.Rt.No.1745, Revenue (Excise- III) Department, dated 11.09.2001. A perusal of the said order goes to show that the action of the Prohibition and Excise Superintendent, Nellore, in refusing to transfer the licence in the name of the petitioner was set aside, duly permitting the petitioner to establish a shop in a location subject to fulfilling the conditions laid down in Rule-6 of the A.P.Excise (IL & FL) Retail Sale Conditions of Licences) Rules, 1993. In the said order, it is also noticed that though the death of the husband of the petitioner was intimated vide representation dated 27.03.1999 to the Prohibition and Excise Superintendent, requesting him to permit her to run the shop, he did not consider her request for renewal of the shop. 4. After expiry of the licence period for the excise year 1998-99, admittedly, there was no any renewal of the licence for the excise year 1999-2000, 2000-01 and 2001-02 and the petitioner ultimately secured a shop in conformity with Rule-6 at Nellatur village of Gudur Mandal for establishing IL-24 shop for the excise year 2002-03, as the location of the premises at Pothupalem where the husband of the petitioner run the business was not in conformity with Rules-6. 5. A perusal of the record further goes to show that the petitioner herself expressed her inability to complete the formalities and take the licence for the years 1999-2000 to 2001-02 though consequential orders have been passed by the Prohibition and Excise Superintendent, Nellore on 25.09.2001 for restoration of the licence and a notice dated 26.12.2001 was issued by the Prohibition and Excise Inspector, Guduru for restoration of the licence. Ultimately, the petitioner made a representation, requesting to grant licence for the year 2002-03, and accordingly, the Commissioner of Prohibition and Excise, Andhra Pradesh, Hyderabad passed orders in Cr.No.3769/02/CPE/G2, dated 06.06.2002, according permission for establishment of IL-24 shop namely M/s.Gowda Brandy Shop at Nellatur village of Guduru Mandal for the year 2002-03, subject to payment of the proportionate licence fee for the year 2001-02 due after restoration of the licence by the Government, and the delay in completing the formalities was condoned. 6. Pursuant to the orders of the Commissioner of Prohibition and Excise, A.P.Hyderabad, dated 06.06.2002, it is stated that the licence at Nellatur could not be granted as the said premises was fallen within one kilometer from Guduru Mandal, and the Commissioner of Prohibition and Excise revoked the earlier orders issued and advised the petitioner to select another suitable premises beyond Gudur Municipality. Accordingly, the petitioner selected alternative premises at Kondagunta village of Guduru Rural Mandal and requested to grant licence. But even in respect of the said village also, licence was not granted. The petitioner filed a representation before the Superintendent, Prohibition and Excise, Nellore and the Commissioner of Prohibition & Excise, A.P.Hyderabad, by order in Cr.No.10610/2002/CPE/G2, dated 24.10.2002, accorded permission for establishment of M/s.Gowda Wines IL-24 shop at door No.45, Kondagunta village. Pursuant to the said order, the Superintendent, Prohibition and Excise, Nellore passed orders in Rc.No.733/02/A4, dated 25.10.2002 issuing licence in Form IL-24 for the excise year 2002-03 in favour of the petitioner w.e.f.25.10.2002 to 31.03.2003 and consequently issued licence No.408/02-03, dated 25.10.2002 at Door No.45 of Kondagunta village of Guduru Rural Mandal and the period of licence is also mentioned therein i.e. commencing from 25.10.2002 ending with 31st March, 2003. 7. The learned Government Pleader appearing for the respondents submits that as per the consequential orders of the Commissioner, Prohibition and Excise, A.P.Hyderabad dated 06.06.2002, the licencee has to pay licence fee for the year 2001-02 and though no licence was granted, licence fee of Rs.1,42,500/- was paid towards the licence fee for the year 2001-02 on 13.06.2002 and the licence fee payable for the excise year 2002-03 was also paid on 13.06.2002, and therefore, it is not permissible for the petitioner seeking refund of the licence fee for the period prior to the grant of licence. 8. On the other hand, the learned counsel appearing for the petitioner submits that as per the orders of the Government in G.O.Ms.No.1745, dated 11.09.2001 the petitioner was directed to establish a shop in a location subject to fulfilling the conditions laid down in Rule-6 of A.P.Excise (IL & FL Retail Sale conditions of licences) Rules, 1993 and the grant of licence is not in the same location or the same village and it is not a renewal of licence or restoration of licence, but it is a fresh licence to establish a shop taking into consideration of the position of the petitioner, she being the widow as her husband died and due to her financial conditions she could not get the renewal of licence for the period of three years. 9. I have considered the rival contentions of the respective parties. Admittedly, the licence which was granted in favour of the husband of the petitioner for the excise year 1998-99 had expired by 31.03.1999 and the said licence was not renewed for the three subsequent years i.e. 1999- 2000, 2000-01 and 2001-02, but a fresh licence has been issued only on 25.10.2002 commencing the lease period from 25.10.2002 to 31.03.2003 in favour of the petitioner. The learned Government Pleader submits that the grant of licence for establishment of new shop is only subject to payment of licence fee for the excise year 2001-02 and therefore, the petitioner is liable to pay the licence fee for the whole excise year of 2001- 02 and for the period of grant of licence for the excise year 2002-03. 10. As already stated that it was not the case of the restoration of the licence or renewal of the licence or the transfer of the same in favour of the petitioner, and it is the case of the grant of fresh licence. Of course though the order of the Government do not specify the payment of the licence fee for the excise year 2001-02, but the commissioner passed the consequential order dated 06.06.2002 stating that the petitioner has to pay the proportionate licence fee for the year 2001-02. In this regard it is also pertinent to note that as ordered by the Commissioner of Prohibition and Excise permitting the petitioner to establish a shop at Nellatur, admittedly, the petitioner could not take the licence at Nellatur as it was objectionable place. However, it is pertinent to note that the orders of the Commissioner, Prohibition and Excise dated 06.06.2002 could not be acted upon as no shop has been established at Nellatur as the Nellature village was coming within one kilometer of belt area of Guduru Mandal, therefore, another village was selected which was approved by the Commissioner, directing the Excise Superintendent to permit the petitioner to establish a shop. Accordingly, a new shop was established for the first time by the petitioner after the death of her husband only on 25.10.2002. 11. To resolve the controversy with regard to legal liability to pay the licence fee/rental as the case may be, it is required to peruse the following relevant definitions enunciated under Rule-3 of the Andhra Pradesh Indian Liquor & Foreign Liquor Rules, 1970: Rule-3(ee) ‘lease year’ means a period of twelve months beginning from the first day of April of the year and ending with the 31st March of the following year. Rule-3(eee) ‘Lease period’ means actual lease period in a lease year or part thereof; Rule-3(f) ‘licence’ means a licence granted under these rules; Rule-3(ff) ‘License Fee’ means annual license fee as shown in the schedule appended to these rules and includes proportionate license fee; Rule-3(fff) ‘Proportionate License Fee’ means license fee calculated proportionately to the whole months of the lease period in a lease year; Rule-3(g) ‘licencee’ means holder of such licence; Rule-3(h) ‘Off License’ means a license granted under these rules for sale of the liquor in sealed or capsuled bottles or in any other manner without permitting consumption on the licensed premises; Rule-3(j) ‘permit’ means a permit issue under these rules and includes a pass and an authorisation; Rule-3(k) ‘retail licence’ in relation to the sale of liquor means in sealed or capsuled bottles to individual consumers of quantities not exceeding those specified under Section 14 of the Act, at any one time or in one transaction and the word ‘retail’ shall be construed accordingly; 12. Under Rule 25(9) of the Andhra Pradesh Indian Liquor & Foreign Liquor Rules, 1970, where the licence granted in respect of IL-24 during the month in a lease year, the licence fee shall be proportionately collected from the 1st to the month in which the licence is granted, for example, fee payable shall be for 11 months of the annual licence of that year. As per the legal obligation, under Rule 25(9) proviso, the petitioner has to pay the licence fee from the beginning of the month during which the licence is granted. In the instant case, the licence was granted on 25.10.2002 and therefore, the licence fee payable by the petitioner is only from 01.10.2002 to 31.03.2003. 13. It is also relevant to peruse certain definitions and rules of the Andhra Pradesh Excise (Indian and Foreign Liquor retail sale conditions of licences) Rules, 1993, and they are extracted hereunder for the sake of convenience: Rule-3(1)(a) “Act” Means The Andhra Pradesh Excise Act, 1968 Rule-3(1)(b)(i) “Lease Year” means the period of twelve months commencing from the 1st April of the year and ending with the 31st March of the succeeding year; Rule-3(1)(b)(ii) “Lease Period” means actual lease period in the lease year as notified by the auctioning authority; Rule-3(1)(f) “Licensee” means a person to whom a licencee to sell IL and FL in retail has been granted under the Act; Rule-3(1)(g) “Rental” means the rent payable in respect of shops of group of IL and FL shops as part of sum in consideration of the grant of lease or licence or both under Section 23 read with Section 17 of the Act besides the Excise duty or countervailing duty payable for IL and FL; Rule-3(1)(h) “Retail Licence” in relation to the sale of IL and FL means in sealed or capsuled bottles to an individual o f quantities not exceeding those specified under Section 14 of the Act at any one time or in one transaction and the word ‘retail’ shall be construed accordingly; Rule-3(1)(j) “Shop” means the licenced premises where IL and FL is sold in retail in sealed or capsuled bottles without permitting consumption on the premises; Rule-4 Period of licence:- The licence shall be valid for a lease year commencing from the 1st April of the year or such other date, which as may be specified, in the licence and ending with the 31st March of the succeeding year; Rule-5 Commencement of business:- The issue of licence can be deferred, if it is subsequently found by the Auctioning Authority that some false documents were furnished or for any other reason affecting the Government revenue. Every licensee shall commence his business from 1st April or such other date as may be specified in the licence and shall keep the shop open every day during the hours fixed till the expiry of the term of licence unless the closure of the shop is ordered by the competent authority for the period specified; Rule-6 Selection of Premises:-……………… 14. Thus a perusal of the Andhra Pradesh Indian Liquor & Foreign Liquor Rules, 1970 and the Andhra Pradesh Excise (Indian and Foreign Liquor retail sale conditions of licences) Rules, 1993 goes to show that unless the licence is granted by the licensing authorities under Sec.14 of the Andhra Pradesh Excise Act, 1968, the lease will not commence and there is a prohibition for the sale of liquor under Sec.15 of the Andhra Pradesh Excise Act, 1968. The licence fee payable is only for the grant of privilege by the Government for the sale of liquor under the relevant rules, and unless the licence is granted, it cannot be said that a privilege has been granted in favour of the petitioner for the sale of liquor in Form IL-24. The lease will commence only on the grant of licence. 15. In the instant case, admittedly, no licence was granted and therefore, in the absence of any grant of licence commencing the lease or permission for the sale of liquor, it cannot be said that the privilege has been granted in favour of the petitioner for the sale of the liquor. In the instant case, there is no dispute that the petitioner did not carry on any business prior to grant of licence. 16. As already stated supra, if the licence is granted in the month of May, licence fee payable shall be for 11 months of the annual licence fee of that year. In the instant case, admittedly, no licence has been granted for the excise year 2001-02 and for the excise year 2002-03 there was no licence for the months of April to September 2002, and therefore, the petitioner is liable to pay the licence fee from 01.10.2002 though the licence was granted on 25.10.2002 for the period from 25.10.2002 to 31.03.2003. Thus, there is a legal obligation on the part of the petitioner to pay the licene fee only from 01.10.2002 to 31.03.2002. In the absence of any legal obligation to pay licence fee prior to the period of grant of licence, I am of the opinion that the collection of licence fee for the year 2001-02 and for the period from 01.04.2002 to 30.09.2002 i.e. prior to the period of grant of licence for excise year 2002-03, which was granted on 24.10.2002, is illegal and unsustainable. 17. Having regard to the facts of the case, I am of the opinion that the writ petition is liable to be allowed and is accordingly allowed as prayed for. No order as to costs. _____________________ V.ESWARAIAH,J Dated: 23.06.2008 Dsr Note: L.R.Copy to be marked B/o Dsr .... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Government of Andhra Pradesh, Revenue(Excise-III) Dept. rep by its Spl, Chief Secretary, Secretariat Building, Hyderabad. 2 The Commissioner of Prohibition & Excise Government of Andhra Pradesh at Nampally, J.N. Road, Opp. Exhibition Grounds, Nampally, Hyderabad. 3 The Superintendent of Prohibition & Excise, Nellore District, at Nellore. 4 2. 2CCs to 5. 2CD copies