K V Murali Krishna vs The State Of Andhra Pradesh
2022 Latest Caselaw 7522 AP

    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

(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

(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

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

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

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

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.

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-

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

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

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

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

(1979) 3 SCC 489

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.

As a sequel, interlocutory applications pending, if

any, in the Writ Petition shall stand closed.

____________________________ K.SREENIVASA REDDY, J .09.2022 DRK

THE HONOURABLE SRI JUSTICE K.SREENIVASA REDDY

WRIT PETITION No.26630 OF 2022

.09.2022 DRK