Andhra Pradesh High Court - Amravati
M/S. Bay Retreat Welfare Society ... vs The Government Of Andhra Pradesh, on 11 February, 2021
Bench: D Ramesh
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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI_ ~~
(SPECIAL ORIGINAL JURISDICTION) ~~ .
THURSDAY, THE ELEVENTH DAY OF FEBRUARY;
TWO THOUSAND AND TWENTY ONE
:PRESENT:
THE HONOURABLE SRI JUSTICE D RAMESH,?
A No.1 OF 2024
WRIT PETITION NO: 2811 OF 2021 mers
Between:
M/s. Bay Retreat Welfare Society Club, Rushikonda (Society No.9184/1994), Rep. by
Secretary V.V.Nageswara Rao, Rushikonda, Visakhapatnam.
vee Petitioner mo
Petitioner in WP No.2811 of 2021
on the file of the High Court
AND
4. The Government of Andhra Pradesh, Dep. of Prohibition and Excise, Rep. by its
Principal Secretary, Secretariat Buildings, Velagapudi, Amaravati, Guntur Dist.
2. The Commissioner, Prohibition and Excise of A.P., Sai Vihari Apartments,
Poultry Farm Road, Vijayawada - 2.
3. The Deputy Commissioner, Prohibition and Excise of A.P., Murali Nagar,
Madhura Nagar, Visakhapatnam - 7.
4. The Superintendent, Prohibition and Excise of A.P., H.B. Colony, Visakhapatnam
...Respondents
Petition under Section 151 CPC praying that in the circumstances stated in the
affidavit filed in support of the petition, the High Court may be pleased. ito suspend the
order C.R.No.4410/2020/CPE/E2 dated 18.01:2021, passed by the 2"° respondent, the
Commissioner of Prohibition and Excise of Andhra Pradesh, pending disposal of WP
2811 of 2021, on the file of the High Court.
The petition coming on for hearing, upon perusing the Petition and the affidavit
filed in support thereof and the order of the High Court dated 05-02-2021 & 09-02-2021
made WP No.2811 of 2021 and upon hearing the arguments of Sri Venkateswarlu
Posani, Advocate for the Petitioner and GP for Prohibition Excise for the Respondents,
the Court made the following.
ORDER:
THE HONOURABLE SRI JUSTICE D.RAMESH
I.A.No.01 of 2021 in W.P.No.2811 of 2021
ORDER:
The Interlocutory Application is filed seeking to suspend the order
in C.R.No.4410/2020/CPE/E2 dated 18.01.2021 passed by the 274
respondent, the Commissioner of Prohibition and Excise of Andhra
Pradesh.
2. Heard Sri Posani Venkateswarlu, learned Counsel for petitioner
and the learned Additional Advocate General for respondents.
3, The learned Counsel for the petitioner submits that the petitioner
society was registered under the provisions of Societies Registration
Act in the office of District Registrar, Visakhapatnam on 02.3.1998,
vide registration No.184/1998 and the name of the society was
amended on 07.6.2012. The society functions on a no-profit and no-
loss basis. The petitioner society was being granted in-house club
license under Rule 4(iii) of the Andhra Pradesh Excise (Grant of License
of Selling in-House and Condition of License) Rules, 2005 (herein after
referred to as "the Rules"). Each time license was granted for a period
of one year by the 2™ respondent i.e. the Commissioner, Prohibition
and Excise of Andhra Pradesh, who is the competent authority, after
making thorough enquiries through Deputy Commissioner of Prohibition
& Excise and Superintendent, Prohibition & Excise concerned.
Accordingly the petitioner society is paying license fee regularly and the
petitioner society has not violated any of the conditions and Rules. The
petitioner society has granted C-1 license from 2004-05 onwards till
2019-20 for every year.
4. While that being the situation, surprisingly the 2" respondent
herein has issued order on 18.01.2021 and the same was served on
the petitioner on 21.01.2021. The main allegation in the said order is
that the petitioner was granted in house club license and the Sai Priya
Resort was situated within the same compound and there was a
possibility of the liquor being served to other than members and as
such, the petitioner society ought to have taken bar license (2B)
instead of taking the in-house club license (C1) and the petitioner
society is liable to pay the differential licerise fee since 2004-05
onwards till 2020 amounting to Rs.3,94,13,000/- (Rupees three crores
ninety four lakhs and thirteen thousand only).
5, The learned Counsel mainly argued that the impugned order
dated 18.01.2021 is without having any jurisdiction and power and the
2° respondent has failed to mention the provision of law under which
the impugned order was passed. Apart from that, to rebut the
allegations made in the impugned order, the petitioner has relied on
the license granted to him on 06.8.2019 by the 2"? respondent wherein
it categorically stated that the Prohibition and Excise Superintendent,
Gajuwaka and the Deputy Commissioner of Prohibition & Excise,
Visakhapatnam have recommended for grant of license after thorough
verification and due enquiry and on the same way on 19.7.2018 also
license was granted after due verification by the competent authorities.
Answering to the 2™4 lapse pointed out by the authority in the
impugned order, the learned Counsel has relied on the proceedings of
the Commissioner of Prohibition and Excise, A.P, Hyderabad dated
04.12.2004 in which the petitioner has submitted the plan showing the
places of serving liquor and accordingly as per the plan, the
Commissioner has granted license under C-1. The learned counsel has
contended that the impugned orders are passed without notice, without
conducting any enquiry, without giving an opportunity to the petitioner
and without verifying the records and just based on the report of the
Deputy Commissioner, Visakhapatnam, report of Prohibition & Excise
Superintendent, Visakhapatnam dated 05.10.2020. He further contend
that the 2™ respondent has not stated any where in the impugned
order about the violation of any Rule of the Andhra Pradesh Excise
(Grant of License of Selling in-House and Condition of License) Rules,
2005.
6. Learned Additional Advocate General appearing on behalf of the
respondent has mainly relied on the Rule 7(2) of A.P.Excise (Grant of
License of selling by in-house and conditions of license) Rules, 2005
which reads as follows:
Rule 7(2) of A.P.Excise (Grant of License of selling by in-house
and conditions of license) Rules, 2005
No licence shall be granted: -
(a) In Form C-1 ("Club Licence) unless
(i) the applicant is a registered club under the Societies Registration
Act, 1860 with a bona fide membership of not less than 500 members
and functioned as a club for not less than three years.
Provided that the club which are not registered under the Societies
Registration Act, 1860 and which are not proprietary and are managed
by a duly elected body of persons shall also be considered for grant of
license subject to the condition that all the funds received by them are
duly accounted for running the club and the profits are not distributed
and appropriated by any individual or firm as per their bye-laws.
Provided further that the clubs which are not registered under Societies
Registration Act, 1860 and which are proprietary in nature i.e., owned
by individuals, Partnership firm or Companies shall also be considered
for grant of license on payment of license fee on par with a Licence in
form IL-2B.
(ii) the club is located in its own premises or premises allotted by the
Government exclusively for setting up such club or located in a private
premises taken on long lease for a period of at least 10 years from the
date of first application for grant of new license and having a minimum
area of 1,500 Sq.Mts. including built up area of at least 500 Sq.Mts. of
this a minimum area of 50 Sq.Mts. has to be set apart for consumption.
(iii) the club has facility for not less than three items out of the
following items; namely: -
(a) Billiards,
(b) Lawn tennis or Table tennis.
(c) Shuttle Badminton or Ball Badminton,
(d) Gymnasium or Health Club,
(e) Swimming pool.
(b) In Form CS-1 (In-house consumption in Military canteens), unless
the Officer in Command of the Station with the prior approval of
Military Canteen Department makes the application;
Provided that the Commissioner may refuse grant of licence for reasons
to be recorded.
(c) In Form CS-2 (In-house sale in Military Canteen) unless the officer
in command of the Station with the prior approval of the Military
Canteen Department makes the application.
(d) [Not given).
(e) In Form CS-3 (Canteen Stores (In-house Storage and supply)
unless the Military Officer in-charge of the Military Canteen Stores
Department makes the application.
Basing on the above Rule, the Additional Advocate General has
stated that the licensee has to follow the conditions stipulated in Rule
7(2) of A.P.Excise (Grant of License of selling by in-house and
conditions of license) Rules, 2005. But in the instant case he has taken
license under form C-1 and sold the liquor side by resort. Hence the
authority has calculated the above differential license fee amount and
issued notice for payment. Further he stated that as per law laid down
by the Apex Court in Assistant Collector of Central Excise,
Chandan Nagar, West Bengal v. Dunlop India Ltd. and Ors.' just
because of the petitioner is able to establish the prima-facie case, the
Court should not grant any interim order and deprive the Government
of its legitimate revenue.
7. Having heard both the Counsel, Rule 7(2) of A.P. Excise (Grant of
License of selling by in-house and conditions of license) Rules, 2005
clearly stipulates that before granting of license, the authorities have to
verify all the conditions and if any condition of the said Rules are not
complied, no license shall be granted to them. But in the instant case,
the petitioner was granted license every year from 2004-05 to till
2019-20 based on the recommendations made by the concerned
authorities. On perusal of the material filed along with the writ petition
i
I
'
' AIR 1985 SC 330 |
clearly discloses that on each and every year basing on verification and
recommendations made by the concerned authorities, the competent
authority has been granting license in form C-1 to the petitioner. On
perusal of the impugned order it clearly shows that no opportunity has
been given to the petitioner and it also discloses that no enquiry
conducted by the competent authorities. Considering the facts of this
case, the ratio laid down by the Apex Court in the above referred
judgment is not applicable to the present case. Infact in the said
judgment, the Apex Court categorically stated that the stay should be
granted where gross violation of law and injustices are perpetrated or
about to be perpetrated.
8. Considering the submissions and the relevant rules, there shall
be interim suspension of the order dated 18.01.2021 issued by the 2™
respondent.
Sd/-V.Satyanarayana
~ de REGISTRAR
/ITRUE COPY// SECTION-OFFICER
For.
To
1. The Principal Secretary, Government of Andhra Pradesh, Dep. of Prohibition and
Excise, Secretariat Buildings, Velagapudi, Amaravati, Guntur Dist.
2. The Commissioner, Prohibition and Excise of A.P., Sai Vihari Apartments,
Poultry Farm Road; Vijayawada - 2.
3. The Deputy Commissioner, Prohibition and Excise of A.P., Murali Nagar,
Madhura Nagar, Visakhapatnam - 7.
4. The Superinfendent, Prohibition and Excise of A.P., H.B. Colony, Visakhapatnam
(Addresses 1 to 4 by RPAD)
One CC to Sri. Venkateswarlu Posani, Advocate [OPUC]
Two CCs to GP for Prohibition Excise, High Court of Andhra Pradesh. [OUT]
One spare copy
NOOO
Tvr
HIGH COURT
DRJ
DATED:11/02/2021
ORDER
1.A No.1 OF 2021
IN
WRIT PETITION NO: 2811 OF 2021
we
wo
INTERIM SUSPENSION
