THE HONOURABLE SRI JUSTICE K.SREENIVASA
REDDY
WRIT PETITION No.26630 OF 2022
ORDER:
The present Writ Petition is filed seeking the following relief :
"...to issue a writ of mandamus or any other appropriate writ, order or direction to declare the action of the respondents No.2 to 5
(i) in accepting the bid amounts of respondents No.6 to 12 contrary to Condition No.9 of the Tender Notification issued in Cr.No. 2199/2022/CPE/E3 dated 21.07.2022 and Rule 17 of the A.P. Excise (Lease of Right of Selling by Bar, Grant and Conditions of Licence) Rules, 2022 and
(ii) in not cancelling the lease/bids of respondents No.6 to 12 and conducting re- auction of the Bars as per Condition No.10 of Tender Notification and Rule 18 of the A.P. Excise (Lease of Right of Selling by Bar, Grant and Conditions of Licence) Rules, 2022 even though the respondents No.6 to 12 have failed to pay the lease amount on the same day of auction i.e. 30.07.2022 as being illegal, arbitrary and in contravention of Rule 17 and 18 of the A.P. Excise 2 (Lease of Right of Selling by Bar, Grant and Conditions of Licence) Rules, 2022 and
(iii) consequently direct the respondents No.2 to 5 to cancel the auction in so far as respondents No.6 to 12 and conduct re-auction for the same in Greater Visakhapatnam Municipal Corporation (GVMC) as per Condition No.10 of Tender Notification dated 21.07.2022 and Rule 18 of the A.P. Excise (Lease of Right of Selling by Bar, Grant and Conditions of Licence) Rules, 2002, and pass..."
2. It is stated in the affidavit filed in support of the Writ Petition as follows:
The petitioner herein is running M/s. Sri Durga Restaurant and Bar situated at D.No.12-4-71/A, Pudimadaka Road, Anakapalli. He is holding a licence vide G.SL.No.VP/121, Licence No.04/2017-22, and the licence is subsisting till 31.08.2022. He has been in the business of running Bar for the past 5 years.
Respondent No.2 issued auction proceedings in Cr.No.2199/2022/CPE/E3, dated 21.07.2022 calling for bidders to participate in auction of Bars in the State of 3 Andhra Pradesh, classifying into four zones and Visakhapatnam district is part of Zone-I. Auction for 128 Bars in Visakhapatnam Municipal Corporation of Visakhapatnam district was conducted on 30.07.2022 for the licence period of 01.09.2022 to 31.08.2025, with the prescribed licence fee. The petitioner is interested in participating in e-auction of Bars but because of Conditions 9 and 10 of the Terms and Conditions of the E-auction of Bars notified in Cr. No.2199/2022/CPE/ E3, dated 21.07.2022, that the successful bidder shall pay the lease amount in one lump sum on the day of auction, he could not participate in the auction.
120 bidders, who participated in the auction, were selected for 120 Bars and the auction for remaining 8 bars was not conducted. Petitioner's enquiries revealed that 100 out of 120 selected bidders paid the lease/licence fee in terms of Rule 17 of the Rules, 2022. Rule 17 of the Andhra Pradesh Excise (Lease of Right of Selling by Bar, Grant and Conditions of Licence) Rules, 2022 (for short, 'the Rules, 2022') stipulates payment of 4 lease amount in lump sum. Respondents 6 to 12 did not pay the lease amount in terms of Rule 17 of the Rules, 2022. Still, respondents failed to conduct re-auction as per Rule 18 of the Rules, 2022 in respect of the said Bars. Hence, the Writ Petition.
3. 4th respondent filed counter affidavit denying the material averments made in the writ affidavit and stating as follows.
Petitioner has not participated in the auction of the Bars which was notified by the respondents. Petitioner is an alien to the said transaction and he has no locus standi to file the Writ Petition. The petitioner has not chosen to register in the portal or not paid the non- refundable application fee, as contemplated in the auction notification.
By the time the auction was concluded, banks were closed, and apart from that, there were several technical problems such as server problem of the concerned banks 5 faced by the successful bidders to pay the amount through online and in Banks.
Trade in liquor is not a fundamental right and the same is res extra commercium. It is a privilege of the State and it is for revenue considerations. 2nd respondent-Commissioner, on receipt of representations, accorded permission vide C.R. No.2199/2022/CPE/E3, dated 01.08.2022, to collect fees with penal interest. Accordingly, the successful bidders paid the lease amounts with penal interest, which were accepted, and they started business from 01.09.2022. The petitioner has also not chosen to participate in the auction conducted for the remaining 8 Bars conducted subsequent to the aforesaid auction. The petitioner has no bona fides, and the Writ Petition is liable to be dismissed.
4. Learned counsel for petitioner strenuously contended that there is a procedure contemplated under the Rules, 2022 that the successful bidders have to pay 6 the entire lease amount in lump sum on the schedule date and the said Rules are mandatory and the same have to be complied with strictly, but on his discreet enquiries, the petitioner came to know that the amounts have not been paid as per Condition No.10 of the Auction Notice dated 21.07.2022 and Rule 18 of the Rules, 2022, but, still the said amounts were accepted by respondents 1 to 5 on subsequent dates.
5. On the other hand, learned Government Pleader, while reiterating the averments in the counter affidavit, submits that the petitioner has no locus standi to file the Writ Petition and that by the time the auction was concluded, banks were closed, and due to some technical problems such as server problem of the concerned banks faced by the successful bidders to pay the amount through online and in Banks, the amounts were accepted with penal interest.
6. Perused the record.
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7. 1st respondent declared new Excise Policy for the period from 2022 to 2025 and issued Rules vide G.O.Ms.No.527, Revenue (Excise) Department, dated 13.07.2022, framing the the Rules, 2022. In accordance with the said Rules, 2nd respondent notified number of Bars and places, district-wise, in the official Gazette of State of Andhra Pradesh vide Cr.No.2199/2022/CPE/ E3, dated 21.07.2022. By virtue of the said Notification, 128 bars were notified to grant licenses by way of e- auction and the same was held on 30.07.2022 and 31.07.2022. A perusal of the Notification, it is clear that a person has to register by paying requisite fee of Rs.10,000/- towards process fee in online portal from 22.07.2022 to 27.07.2022, in order to participate in the auction. Further, all the registered persons have to pay a non-refundable application fee of Rs.10,00,000/- and on such payment, the registered persons are allowed to participate in the e-auction.
8. It is apparent on the face of record that it is essential for a person, who intends to participate in e- 8 auction, to register by paying requisite fee of Rs.10,000/- towards process fee in online portal from 22.07.2022 to 27.07.2022 and thereafter he has to pay a non- refundable application fee of Rs.10,00,000/-, and only on payment of such non-refundable fee, a person is allowed to participate in the e-auction. In the absence of the same, a person is not entitled to participate in the e-auction. The same is evident from the Notification dated 21.07.2022 issued by 2nd respondent. Admittedly, the petitioner did not register himself or did not pay the requisite non-refundable application fee, as stipulated in the auction Notification. When such is the case, question of petitioner, on coming to know that there seems some variance in respect of collecting amounts from the successful bidders and challenging the same by way of the present Writ Petition, does not arise.
9. Admittedly, Writ Petition No.26180 of 2022 was filed by one Buddha Suri Babu, s/o. late Chandar Rao with the similar prayer. When the said case came 9 up for hearing, the learned Government Pleader pointed out that even if the aforesaid person participates in e- auction, he would not be entitled for grant of licence for the reason that he was involved in a criminal case and he also filed an application to adjudicate himself as an insolvent. When this Court expressed that the said Writ Petition is not maintainable, learned counsel for the petitioner sought adjournment in respect of the said case. Immediately, on the very second day, the present Writ Petition has come up questioning the action of official respondents in granting licence to respondents 6 to 12 herein.
10. A perusal of the counter affidavit filed by 4th respondent goes to show that the petitioner in the present Writ Petition and the petitioner in Writ Petition No.26180 of 2022 are relatives, espousing the cause of others, who have vested interest. Learned Government Pleader also contended to the effect that the successful bidders could not pay the requisite amounts on the same 10 date of auction for the reason that by time the auction was concluded, working hours of bank were closed, and in some cases, there were some technical problems such as server problem of the concerned banks faced by the successful bidders to pay the amount through online and in Banks, and it is for this reason, the said amounts could not be paid by the successful bidders within the specified date.
11. On a perusal of the material on record, this Court is of the opinion that the basic fact that the petitioner did not participate in the e-auction would go to the root of the case, irrespective of the fact whether there is any contravention of the Rules by the respondent- authorities in conducting the auction. The petitioner has no say because he did not even register himself nor pay the requisite non-refundable application fee. In the absence of paying the said amounts, the petitioner approaching this Court by way of the Writ Petition, with the prayer sought, is nothing but abuse of process of 11 Court. In such a case, if at all the petitioner feels that there is any violation of the Rules on the part of the authorities, his remedy is otherwise. In the absence of participation in the e-auction, the petitioner cannot question the same by way of the Writ Petition.
12. Learned counsel for the petitioner contended that though the petitioner is not a participant in the e- auction, he is entitled to question the impugned action and heavily placed reliance on a decision in Ramana Dayaram Shetty v. International Airport Authority of India and others1. A perusal of the said judgment would go to show that grievance of the appellant in the said case is that he was not placed on par with the successful bidders in the said case. It was specifically mentioned that the appellant therein was treated differentially and denied equal opportunity with the respondents in submitting tender. His contention in the above case is 1 (1979) 3 SCC 489 12 not fulfilment of the condition of eligibility would be no bar to consider the tender.
13. In the case on hand, there is a procedure contemplated in the Notification whereunder a person has to register himself by paying requisite fee of Rs.10,000/- and the registered persons have to pay a non-refundable application fee of Rs.10,00,000/-, in order to participate in the e-auction. It is relevant to mention here that question of eligibility does not arise in the absence of requisite fee paid by a person. Therefore, this Court is of the view that grievance made by the petitioner is not well founded. In view of the fact that the petitioner is not a party to the said e-auction, this Court has no impediment in coming to conclusion that the Writ Petition is devoid of merit and is liable to be dismissed.
14. The Writ Petition is, accordingly, dismissed. There shall be no order as to costs.
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As a sequel, interlocutory applications pending, if any, in the Writ Petition shall stand closed.
____________________________ K.SREENIVASA REDDY, J .09.2022 DRK 14 THE HONOURABLE SRI JUSTICE K.SREENIVASA REDDY WRIT PETITION No.26630 OF 2022 .09.2022 DRK