Andhra Pradesh High Court - Amravati

Nagiri Duggaiah, vs The State Of Andhra Pradesh, Rep. ... on 13 April, 2023

      IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

     HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE
                                   &
                 HON'BLE MR. JUSTICE NINALA JAYASURYA

                      WRIT APPEAL No.1330 of 2016
                            (Through physical mode)

Nagiri Duggaiah, S/o.Bala Duggaiah,
Aged about 60 years, Occ: Proprietor of
M/s.Bhairava Wines, Sitaramapuram Village
& Mandal, Nellore District.               .....Appellant/writ petitioner
Versus
The State of Andhra Pradesh,
Rep.by its Deputy Secretary,
Revenue(Ex.II) Department,
Secretariat, Hyderabad and 2 others.        ....Respondents/Respondents

Counsel for the appellant             : Mr. L.J.Veera Reddy

Counsel for respondents               : Government Pleader for
                                        Prohibition & Excise
                                 JUDGMENT

Dt. 13.04.2023.

(Per Ninala Jayasurya, J)

Aggrieved by the order of the learned Single Judge dated 03.03.2016

in dismissing the Writ Petition No.14608 of 2007, the present appeal has

been preferred.

2. For the sake of convenience, parties are referred to as arrayed in the

Writ Petition.

3. The petitioner/ appellant filed the Writ Petition seeking to declare the

action of the respondents particularly the 1st respondent in rejecting to

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refund the proportionate license fee and F.D.R., amount to the petitioner on

suspension and cancellation of license of M/s.Bhairava Wines shop,

proprietary concern of the petitioner as illegal, unjust, arbitrary and to set

aside the order passed by the 1st respondent vide Memo dated 22.01.2007

with a further direction to refund the proportionate license fee and F.D.R.,

amount to the petitioner/licensee.

4. By an order dated 18.12.1998, the 3rd respondent cancelled the

license, on the premise that the petitioner established a wine shop contrary

to Rule 6 of A.P.Excise(IL & FL) Retail Sales Conditions of Licenses)

Rules, 1993 (for short 'the Rules') as the distance was found 89 meters to

Zilla Parishad High School, S.R.Puram.

5. Before the learned Single Judge, it was pleaded that the license was

granted after inspection of the premises and as the petitioner has not

committed any illegality in obtaining the license and as the same was

cancelled at the instance of the respondents, the petitioner is entitled for

refund of proportionate license fee. It is also contended that in the order of

cancellation dated 18.12.1998, it was mentioned that the refund of

proportionate license fee to the licensee cannot be made as the licensee

was involved in excise Crime in P.R.No.183/97-98, that the refund is

subject to the outcome of criminal case pending against the licensee and

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as the said criminal case ended in acquittal, the petitioner is entitled for

refund of proportionate license fee. Despite the said observation, the

request of the petitioner to refund the license fee was rejected by the 2 nd

respondent through proceedings dated 23.02.2005. Subsequently, the 1st

respondent vide Memo dated 22.01.2007 informed the petitioner that the

Revision Petition seeking to refund the license fee on cancellation of

license is rejected for the reasons stated therein.

6. The learned Single Judge, while examining the matter, with reference

to the said cancellation order and the Memo referred to above vis-à-vis

Section 31(3) of the Andhra Pradesh Excise Act, 1968(for short 'the Act'),

dismissed the Writ Petition, inter alia holding that since the license issued

in favour of the petitioner was cancelled on the ground that the shop was

situated near the Educational institution and such cancellation was not

challenged, the petitioner is not entitled for refund of proportionate license

fee.

7. The learned counsel for the appellant/writ petitioner, inter alia

contends that the order of the learned Single Judge is not sustainable as

Section 31(3) of the Act has no application to the case on hand, and the

proportionate license fee has to be refunded in view of the acquittal of the

petitioner in C.C.No.310 of 2001. It is the contention of the learned counsel

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for the petitioner/appellant that as is evident from the cancellation order

dated 18.12.1998, the petitioner/appellant is entitled to refund of

proportionate license fee, subject to the outcome of criminal case pending

against him. He submits that the said case after a detailed Trial was

dismissed by an order dated 23.07.2005 and the petitioner/appellant was

acquitted. In such circumstances, the learned counsel submits that the

order passed by the Excise authorities rejecting the request of the

petitioner to refund the proportionate license fee, is unjust, arbitrary and

unsustainable. He submits that the learned Single Judge went wrong in

not appreciating these crucial aspects in a proper perspective and grossly

erred in dismissing the Writ Petition by referring to Section 31(3) of the Act.

Making the said submissions, the learned counsel seeks to set aside the

order under challenge and to allow the Writ Appeal, as prayed for.

8. The learned Government Pleader for Excise, on the other hand, while

refuting the submissions made on behalf of the petitioner, advanced

arguments to sustain the order of the learned Single Judge. It is submitted

that in view of the factual and legal position of the case, the order passed

by the learned Single Judge warrants no interference by this Court and the

Writ Appeal is liable to be dismissed.

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9. This Court has considered the submissions made by both the learned

counsel and perused the material on record. On an appreciation of the rival

contentions, there is no dispute with regard to granting of license to the

petitioner for running a wine shop. However, it would appear that on an

enquiry, it transpired that the shop was established contrary to Rule 6 of

the Rules, which imposes a restriction for establishing a wine shop within

100 meters from Educational institution recognized by the Government.

Therefore, a show cause notice dated 08.12.1998 was issued to the

petitioner calling upon him to show cause as to why his license should not

be cancelled under Section 31(1) (b) of the Act for violation of Rule 6 of the

Rules and the proportionate license fee cannot be refunded. To the said

notice, the petitioner submitted explanation dated 14.12.1998 and

thereafter the license was cancelled by the 3rd respondent vide

proceedings dated 18.12.1998. No doubt, it was mentioned in the said

order that the refund of proportionate license fee cannot be made as the

licensee was involved in excise crime in P.R.No.183/97-98 and that the

refund is subject to outcome of the criminal case pending against the

licensee. But the said observation would not enure to the benefit of the

petitioner, more particularly in the light of the statutory provision in the

A.P.Excise Act.

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Section 31 of the said Act provides that:

(1) Subject to such restrictions as may be prescribed, the authority granting any licence or permit under this Act may cancel or suspend it irrespective of the period to which the licence or permit relates.

(a) .........

(b) in the event of any breach by the holder thereof, or by any of his servants or by any one acting on his behalf with his express or implied permission, of any of the terms and conditions thereof; or

(d) ........

(e) ........

(2)...........

(3) The holder of licence or permit shall not be entitled to any compensation for its cancellation or suspension nor to the refund of any fee paid or deposit made in respect thereof.

10. As noted earlier, before cancelling the license, a show cause notice

was issued to the petitioner under Section 31(1) (b) of the Act and after

considering the explanation submitted thereto, the license was cancelled.

The 3rd respondent/competent authority cancelled the license of the

petitioner on the premise that he has violated the Rule 6 of the Rules

referred to supra and the said order has not been challenged. Thus, it has

attained finality. In such circumstances, more particularly in the light of the

statutory provision referred to supra, on which the learned Single Judge

placed reliance, the order under appeal warrants no interference.

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11. Even otherwise, the crime was registered against the petitioner on the

allegation that he indulged in illegal sales by opening the shop when an