IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY NINETH DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.11789 of 2002 Between: 1 M/s. Ekasila Wines, Rep. by its Lisence G. Malhar Rao, S/o.Anka Rao, Bhupalpally (V&M), Warangal District, License No. (193/2002-2003). 2 M/s. Srinivasa Wines, Rep.by its Licensee D.Srinivas, S/o.Papa Rao, Bhupalpally (V&M), Warangal District, License No. (192/2002-2003). 3 M/s. Maruthi Wines, Rep. by its Lisence G. Balakrishna , S/o. Ramnarsaiah, Jangedu (V), Warangal District, License No. (187/2002-2003). 4 M/s Raja Rajeshwara Wines, Rep. by its Lisencee B.Bikshapathi, S/o.Durgaaiah, Bhupalpally (V&M), Warangal District, License No. (212/2002-2003). 5 M/s. Laxmi Wines, Rep. by its Smt P. Laxmamma, W/o. Ramulu, R/o. Bhupalpally, Warangal District, License No. (225/2002-2003). ..... PETITIONERS AND 1 The Government of Andhra Pradesh, Principal Secretary, Revenue (Excise) Department, Secretariat Buildings, Hyderabad. 2 The Commissioner of Prohibition & Excise, Principal Secretary, Revenue (Excise) Department, Nampally, Hyderabad, Andhra Pradesh. 3 The Prohibition & Excise Superintendent, Warangal, Warangal 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 will be pleased to issue an appropriate writ, order or direction more particularly in the nature of writ of mandamus declaring the action of the respondents in demanding the petitioners to pay the license fee at the rate of Rs. 4,50,000/- towards licence fee in respect of Form IL24 shops at Bhupalpally(V), Warangal District for the excise year 2002-2003 basing on the provisional population ﬁgures pertaining to 2001 census as illegal, arbitrary, discriminatory and without jurisdiction and consequently direct the respondents to collect the annual license fee @ Rs. 3,00,000/- from the petitioner basing on the population ﬁgures of 1991 census for the excise year 2002-2003 and further direct the 3rd respondent to collect the proportionate license fee for next installment, and to pass such other order or orders as this Hon’ble Court may deem ﬁt and proper in the circumstances of the case, in the interest of justice. Counsel for the Petitioner: SRI A.RAVINDER Counsel for the Respondents: GP FOR PROHIBITION & EXCISE The Court made the following : THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.11789 of 2002 ORDER: The ﬁve petitioners obtained licence in Form IL-24 under the Andhra Pradesh Indian Liquor and Foreign Liquor Rules, 1970 (the Rules, for brevity), for the purpose of doing business in retail liquor shop. As per Rule 25 of the Rules read with the Schedule to the Rules, where the population of the place of business does not exceed 10,000 the licence fee is Rs.3,00,000/- per annum and if the population exceeds 10,000 and does not exceed 50,000 it is Rs.4,50,000/-. Petitioners were asked to pay the said amount of Rs.4,50,000/- based on the provisional decennial census ﬁgures. They also allege that the shop of the third petitioner is situated at a distance of 3 Kms from Bhupalpally, the population of which is 9500 as per 2001 provisional census. The petitioners’ grievance is that unless and until ﬁnal census ﬁgures are published in the gazette, licensing authority cannot insist payment of Rs.4,50,000/-. There is no dispute that by amendment issued to the Rules vide G.O.Ms.No.283, dated 28.05.2002, Rule 3(q) of the Rules (deﬁnition of ‘population’) was amended so as to read “population means as provisionally published in Census of India, 2001”. Learned Counsel for the petitioners is fair enough to bring to the notice of this Court a decision on the point in Tirumala Balaji Wines v Commissioner of Prohibition and Excise, Hyderabad[1], wherein it was held that when the delegated legislation mandates provisionally published census as basis for ﬁxing the prescribed slab rate of licence fee under Schedule to the Rules, licensing authority has no discretion. He, however, submits that this decision is subject matter of a writ appeal. Learned Government Pleader for Excise brought to the notice of this Court an unreported decision of a Division Bench of this Court in CH.V.Ranta Reddy v Secretary, Revenue (Excise), Hyderabad (W.A.No.1610 of 2002 and batch dated 31.03.2003) wherein it was held that ﬁxation of licence fee based on provisional census is appropriate. A learned Judge of this Court in P.Narasimha Rao v Government of Andhra Pradesh[2] while dealing with similar aspect held as under. …Substitution of proviso to Rule 3(q) does not indicate either provisional publication or ﬁnal publication. The asinine consequence of accepting the interpretation placed by the learned counsel will amount to amending Rule 3(q) by adding ‘ﬁnal’ before the word ‘population’. It is well settled that while interpreting the provision in its true meaning the Courts cannot supplement unless there is any ambiguity as such. When population is clearly deﬁned, namely the ﬁgures of population as oﬃcially published in the latest census is inclusive of any publication of population figures. Any other interpretation restricting it to that of ﬁnal ﬁgures published in the Census Act will amount to amendment of the Rule 3(q) of the Rules. When the word is deﬁned to bear number of inclusive meanings in the sense in which the word is used the particular provisions must be ascertained from the Scheme or the Rules, the language of the provisions and the object intended to be served thereby. From a reading of the said amendment of ‘population’ unequivocally leads to one conclusion that for the Excise Year 2002-2003 the enhanced fee will be levied basing upon the population ﬁgures as published in 2001 Census. In Tirumala Balaji Wines (supra) the question was whether licensing authority is, in law, bound to ﬁx the licensing fee taking into consideration the population as per latest census. After noticing the legislative choice as reﬂected in the Rules, this Court made the following observations. …When the delegated legislation mandates to assess the population based on the latest census of a village/town/city, it is not permissible for any licensing authority or any excise oﬃcial to assess the population in a diﬀerent manner. That subsequent to issue of licence or during the currency of the licence, the population of a village/town/city got altered or changed by reason of administrative action forming new units like villages/towns/cities, is not a justification to ﬁx population in an indiscriminate manner. If such power is conceded to the licensing authority, it would work adverse to the interest of the licensees. If during the currency of IL-24 licence, some new villages or panchayats merge in the village/town, the licensing authority may not increase the licence fee on that ground. That is not permissible. The Legislature i.e., delegated legislation has not left any discretion to the licensing authority. The licence fee has to be prescribed by the licensing authority i.e., Commissioner of Excise relying only on the latest census ﬁgures and not otherwise. This Court, however, observes that if the State Government itself in exercise of delegated power expresses its desire speciﬁcally to take into consideration the subsequent changes which altered the population ﬁgures, it is permissible to the licensing authority to follow the same… In another unreported judgment of this Court in M/s.New Sridhar Wines v Government of Andhra Pradesh (W.P.No.7516 of 2004 and batch, dated 29.11.2004) also a similar view was expressed. The Division Bench in CH.V.Ranta Reddy (supra) approved the decision in P.Narasimha Rao (supra) and the decision in W.P.No.8559 of 1982 and batch, dated 21.01.1983, and while laying down that the provisional census ﬁgures can be the basis for fixing licence fee made the following observations. We have no doubt whatsoever in our mind to hold that the further amendment made to the proviso to Rule 3 (q) by the notiﬁcation in G.O.Ms.No.283, dated 28-5-2002 is merely explanatory in its nature. Even the un-amended rule 3 (q), substituted by G.O.Ms.No.234, dated 30-3-2001, would have been suﬃcient to levy and collect the licence fee based on the ﬁgures of population as published in the 2001 Census, since the said rule does not speak about any ﬁnal or provisional publication. The said rule was in force as on the date when the excise year 2002-2003 commenced. The amendment made to the proviso to clause (q) of Rule 3 vide G.O.Ms.No.283, dated 28-5- 2002 is merely explanatory in its nature explaining the scope and amplitude of the un-amended rule. Precisely for the said reason, the rule making authority made further amendments by way of substitution. Therefore, the submission of learned Counsel for the petitioners that Rule 3(q) of the Rules as amended by the orders of the Government in G.O.Ms.No.283, dated 28.05.2002, is not retrospective, cannot be accepted. It may be mentioned that it is always the prerogative of the legislature to amend the law and remove the basis, which is the ground for invalidating a Rule or a provision in an Act. The Writ Petition is devoid of any merits and the same is dismissed accordingly. No costs. ____________ (V.V.S.RAO, J) 29.10.2008 vs To 1 The Government of Andhra Pradesh, Principal Secretary, Revenue (Excise) Department, Secretariat Buildings, Hyderabad. 2 The Commissioner of Prohibition & Excise, Principal Secretary, Revenue (Excise) Department, Nampally, Hyderabad, Andhra Pradesh. 3 The Prohibition & Excise Superintendent, Warangal, Warangal District. 4 2CCs to G.P for Prohibition and Excise, High Court of A.P., Hyderabad. 5 2CD copies Form-NIC-OGS/WP{PRASAD} [1] 2003 (5) ALD 479 [2] 2002 (6) ALT 612