IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRD DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 24689 of 2001 Between: D.R.K.Prasad, M/s.Sai Priya Estates & Resorts Limited, Rushikonda Village, Visakhapatnam (Rural) Mandal, Visakhapatnam. ..... PETITIONER AND Prohibition and Excise Superintendent, Visakhapatnam. .....RESPONDENT 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 call for the records pertaining to the order, dt;12.11.2001 on the file of the Respondent in R.C.No.48/2001/D-1, and quash the said order, dt:12.11.2001 by issuing a Writ or Order or Direction more particularly one in the nature of Writ of Certiorari and to set aside the Demand Notice in Rc.No.48/2001/D-1, dt:12.7.2001 and pass. Counsel for the Petitioner:MR.G.RAMA GOPAL Counsel for the Respondent No.: . The Court made the following : THE HON’BLE MS JUSTICE G.ROHINI W.P.NO.24689 of 2001 ORDER The petitioner herein was granted a licence in Form IL-17, under the A.P. Indian Liquor and Foreign Liquor Rules,1970, for the year 1999-2000 to carry on the business in the name and style of M/s.Sai Priya Resorts Private Limited at Ruhikonda, Visakhapatnam District. The said licence was subsequently renewed for the years 2000-01 and 2001-2002. It is not in dispute that the petitioner paid the licence fee of Rs.2,00,000/-, Rs.2,50,000/- and Rs.3,85,000/- for the years 1999-2000, 2000-01 and 2001-2002 respectively. While so, the Prohibition and Excise Superintendent Visakhapatnam issued a notice dated.12.07.2001 informing the petitioner that as per the objections raised during the local audit by AG, the petitioner is liable to pay licence fee of Rs.3,12,500/-, Rs.4,00,000/- and Rs.5,30,000/- for the years 1999-2000, 2000-01 and 2001-2002 respectively on the basis of the population of the village where the petitioner’s licensed premises is situated. Thus the petitioner was called upon to pay a total sum of Rs.4,82,500/- towards short levy of licence fee within 15 days from the date of receipt of the said notice. Immediately thereafter, the petitioner made a representation dated.12-07-2001 disputing his liability to pay the additional licence fee as demanded in the notice dated.12-07- 2001. However, the Prohibition and Excise Superintendent, Visakhapatnam by order dated.22-10-2001 while confirming the demand made in the earlier notice dated.12-07-2001 called upon the petitioner to pay the said amount within seven(7) days. Alleging that the petitioner failed to remit the said amount, the petitioner’s licence in Form.IL-17 was cancelled under Section.31(a) of the A.P. Excise Act, 1968 with immediate effect by order dated.12.11.2001. Aggrieved by the same, the present writ petition is filed seeking a declaration that the order dated.12.11.2001 is arbitrary, illegal and to quash the same by issuing a writ of certiorari. I have heard the learned counsel for the petitioner as well as the learned Government Pleader for Excise appearing for the respondent. Rule.25 of A.P. Indian Liquor and Foreign Liquor Rules,1970 provides that the annual fee for the licence shall be at the rates shown in the Schedule appended to the Rules. Item 2 of the Schedule relating to Form IL.17 licence runs as under:- Serial No. Category of Licence Licence Fee 2. I.L.17 Star Hotel(3 Star and above Licence for the sale of all kinds of Indian Liquor and Beer to be consumed on the premises of Star Hotels ( 3 Star and above) (On licence). (a) Rs.1,87,500/- (Rupees One Lakh Eighty Thousand Five Hundred only) per year in places where the population of the village/town/city does not exceed 10,000. (b) Rs.3,12,500/- (Rupees Three Lakhs Twelve Thousand Five Hundred only) per year in places where the population of the village/town/city is above 10,000 but does not exceed 50,000 (c) …………………. ….….. ………………………… A reading of Rule.25 read with the Schedule shows that where the population of village/town/city does not exceed 10,000 the annual licence fee payable is Rs.1,87,500/-. However, if the population of the village/town/city is above 10,000 but does not exceed 50,000 the annual licence fee payable shall be Rs.3,12,500/-. According to the petitioner, Rushikonda is a separate revenue village coming under Gram Panchayat of Yendada, the population of which as per 1991 census is only 1,412. Thus it is contended that Clause(a) of the Schedule is attracted and the licence fees already paid by the petitioner for all the three(3) years i.e., 1999-2000, 2000- 2001 and 2001-2002 was sufficient. However, the case of the respondent is that Rushikonda which was a village prior to 1991 census was deleted as a village and added to Chinagadili which was declared as a town after merger of four villages viz., Yendada, Rushikonda, Pothinamallyyapalem and Madhurawada. It is also stated that the said villages were termed as outgrowth to Chinagadili panchayat and they are taken as Wards to Chinagadili town. The population of Chinagadili as per 1991 census was 47,266. Therefore according to the respondent Clause.(b) of Schedule is attracted and the petitioner is liable to pay the annual licence fee of Rs.3,12,500/- for the year 1999-2000 and Rs.4,00,000/- and Rs.5,30,000/- for the subsequent years i.e., 2000-01 and 2001-2002 respectively. As noticed above the annual licence fee for the licence in Form IL.17 shall be at the rates as shown in the Schedule appended to the Rules. It is apparent that annual licence fee payable is based upon the population of the village/town/city where the licensed premises is situated. As held by a Division Bench of this Court in Writ Appeal No.1934 of 2001 and batch dated.10-06-2003 the liability to pay the licence fee under Rule.25 is automatic and the collection of the differential licence fee if any in terms of the rates shown in the Schedule does not amount to increase or revision of licence fee. As a matter of fact it is not the case of the petitioner that the collection of differential licence fee is without jurisdiction. The whole contention raised on behalf of the writ petitioner is that Clause.(b) of Schedule read with Rule.25 is not applicable since as per 1991 census Rushikonda was only a village and its population was less than 10000. The claim of the respondent that Rushikonda village forms part of Chinagadili town has been disputed by the petitioner on the basis of a Certificate dated.15-11-2001 issued by the Mandal Revenue Officer, Visakhapatnam Rural Mandal in which it was certified that Rushikonda is a separate revenue village prior to and subsequent to 1991 census. Thus it is contended by the learned counsel for the petitioner that Rushikonda village has never merged with Chinagadili town. It is also contended that Chinagadili is not a town at all and it forms part of Visakhapantam Municipal Corporation having been merged with Visakhapatnam and having been designated as Division-23 of Visakhapatnam Municipal Corporation. Various documents have been placed before this Court by the learned counsel for the petitioner in support of the said submission. Such a contentious issue involving various disputed question of fact cannot be enquired into and decided by this Court in exercise of writ jurisdiction under Article 226 of the Constitution of India. However, having regard to the specific objection raised by the petitioner that Rushikonda does not form part of Chinagadili town as claimed by the respondent, I am of the opinion that the respondent ought to have conducted a detailed enquiry and recorded a clear finding as to population of village/town/city within which the petitioner’s licensed premises is situated. Since no such enquiry was conducted and the impugned order cancelling the licence of the petitioner was passed unilaterally on the basis of the objections raised during the AG’s local audit, the impugned order dated.12-11-2001 is arbitrary, illegal and unsustainable. The demand dated.12-07-2001 towards the differential licence fee is also unsustainable and as expressed above the respondent is bound to make an enquiry after giving the petitioner an opportunity of hearing. Accordingly the impugned orders dated.12-07-2001 and 12.11.2001 are hereby set aside and the writ petition is disposed of with a direction to the respondent to conduct an enquiry and pass appropriate orders afresh in accordance with law. No costs. _____________ G.ROHINI,J 3rd FEBRUARY 2009 *TSNR