IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 27.02.2008 Coram : THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN and THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN Writ Appeal No.3254 of 2004 1. The Collector, Thiruvaiyaru Taluk, Thanjavur District. 2. The Assistant Commissioner (Excise), Thanjavur District. Appellants / Respondents in WP No.45414/02. v. S.Swaminathan Respondent / Petitioner in do Writ appeal filed under clause 15 of the Letters Patent against the order of this Court dated 19.12.2002 made in writ petition No.45414 of 2002,presented Under Article 226 of the consitution of India to issue a writ of Certiorarified Mandamus, calling for the records comprised in proceedings No. Na.Ka.No.83813/2002/X.5 on the file of the Assistant Commissioner (Excise) Thanjavur/2nd respondent dated 02.12.2002 and to quash the same and consequently direct the respondents to refund the amount remitted by the petitioner in regard to the INFL shop No.78 Thiruvaiyaru Town, Thanjavur District together with interest at 24% P.A. Within a reasonable time as fixed by this court. For appellants : Mr.Edwin Prabhakar, Government Advocate For respondent : Mr.K.Selvaraju https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT (Judgment of the Court was delivered by K.RAVIRAJA PANDIAN, J.) The respondent herein filed a writ petition seeking for the relief of writ of certiorarified mandamus to quash the order of the second appellant – the Assistant Commissioner of Excise, Thanjavur District dated 02.12.2002 and direct the appellants to refund the amount remitted by the respondent in regard to IMFL shop No.78, Thiruvaiyaru town, Thanjavur district together with interest at the rate of 24% per annum within a reasonable time. 2. The said relief was sought for on the premise that the appellants herein notified in Form I of the Tamil Nadu Liquor Retail Vending Rules, 1989 (IMFL Rules) in Notification dated 10.07.2002 number of shops for granting of IMFL licence for the excise year 2002- 03 under lot system in respect of Thanjavur district. Four shops have been notified for Thiruvaiyaru area which is part of the Thanjavur district as against three shops notified for the previous excise year. The respondent applied for shop No.78 at Thiruvaiyaru and deposited 50% of the privilege amount, i.e., Rs.5,17,500/-. He was declared as successful bidder in the lot. As the issue regarding granting of licence was seized of by the apex Court, it appears that the respondent requested the appellants to postpone the time for applying for licence until the Supreme Court finally decides the issue. But the licensing authorities issued letter directing the respondent to locate the shop immediately. In the circumstances so prevailing the respondent was compelled to apply for temporary licence upto 13.11.2002 as per the interim orders of this Court. 3. It is the further case of the respondent/writ petitioner that there were five shops being run against four notified shops in Thiruvaiyar area which resulted in sustaining loss in the liquor vending business. Hence, the respondent made a representation before the second appellant seeking refund of the amount paid by him with regard to shop No.78. By the order impugned in the writ petition dated 02.12.2002 the request of the respondent was rejected on the ground that the Supreme Court in the case of State of Tamil Nadu v. K.Ramanathan, dated 13.11.2002 made in SLP (C) No.19277/02 held against similar request made by the writ petitioner. The learned single Judge, upon haring the arguments on either side, has ultimately come to the conclusion that the respondent was entitled to withdraw from the bid and directed the appellants to refund the entire amount due to the respondent/writ petitioner within one month from the date of receipt of a copy of that order. In default, the impugned order stated that the respondent would be entitled to receive interest on the amount due to him at the rate of 6% per annum. The correctness of the said order is now canvassed before us on the ground that as per the Supreme Court judgment only one person is entitled to go out of the bid if the number of shops offered for vending is more than the notified shops. https://hcservices.ecourts.gov.in/hcservices/ 4. We heard the parties and perused the materials and the judgment of the Supreme Court referred to above. 5. On a reading of the Supreme Court judgment referred to supra, we are not able to accept the contention of the learned counsel for the appellants. 6. In the Supreme Court judgment, having regard to the change of policy of the appellants in bringing the IMFL shop for public auction every year from the block period of once in three years, the Supreme Court has held that it would be open for any of the existing licensees as well as new allottees to opt out from their offers if it is found that the continuance of the privilege to be onerous in any area where the number of shops exceeds the number of notified for a particular area. 6. From the above observations of the Supreme Court, we are not able to concur with the contention of the appellants that only one existing licencee or only one new allottee can be allowed to opt out of the lot. It is the general observation not pertaining to allottees but pertaining to the number of the shop, in the sense that if the number of offered for vending IMFL is more than the shop notified in the notification for a particular area, then the existing licensees and the new allottees were allowed to opt out. The terminology employed 'licencees' and 'allottees' used in plural would indicate that it would be open to any of the licencees and the new allottees to opt out of the lot if they intend to do so in the stated contingency. Hence, the argument advanced on behalf of the appellants has to be rejected and the same is rejected. The writ appeal is dismissed. No costs. The connected miscellaneous petition is consequently dismissed. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar mf To 1. The Collector, Thanjavur District. 2. The Assistant Commissioner (Excise), Thanjavur District. +1 cc to Mr.K.Selvaraj, Advocate, SR.No.10564. 1 cc To The Government Pleader, SR.10948. jrg (Co) krd / 13.03.08 W.A.No.3254 of 2004 https://hcservices.ecourts.gov.in/hcservices/