WP/805/2003 of M/s.Tirumala Wines Rep by its Proprietor Vs The Commissioner of Prohibition AND Excise on 30 December 2004

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

(Special Original Jurisdiction)

THURSDAY, THE THIRTIETH DAY OF DECEMBERTWO THOUSAND AND FOUR

PRESENT

THE HON'BLE MR JUSTICE GODA RAGHURAMWRIT PETITION NO : 805 of 2003

Between:

M/s.Tirumala Wines Rep by its Proprietor N.Ramulu Goud D.No.42-172 , Anjaiahnagar, Jagadgirigutta, Qutubullapur Mandal , RR.Dist.

AND

..... PETITIONER

1 The Commissioner of Prohibition & Excise A.P , Hyderabad.

2 The Dy.Commissioner of Prohibition & Excise Hyderabad.

3 The Prohibition & Excise Superintendent RR.Dist , Narayanaguda, Hyderabad.

.....RESPONDENTS

Petition under Article 226 of the constitution of India praying that in thecircumstances stated in the Affidavit filed herein the High Court will be pleased toissue an appropriate writ order or direction preferably one in the nature of Writ ofMandamus declaring the impugned order of the 3rd respondent Dt: 16-11-2002 inCR.No.E4/10108/2002 rejecting the claim of the petitioner to refund the amount ofRs.3,00,000/- together with interest thereon collected in excess towards the licensefee for the Excise Year 1998-1999 in respect of the Petitioner Wine Shop as illegal,arbitrary , and contrary to law and consequently direct the respondents to refund thesaid excess amount collected from the petitioner to the petitioner together withinterest thereon forthwith.

Counsel for the Petitioner: MR.JALLI KANAKAIAH

Counsel for the Respondents No.1 to 3: GP FOR PROHIBITION & EXCISE.

The Court made the following:

Oral order:-

The petitioner, a proprietary firm, obtained an IL. 24 licence for retail sale of liquor inAnjaiahnagar, Jagadgirigutta, Ranga Reddy district, during the excise year 1998-99on the payment of licence fee of Rs.9,00,000-00. As per the excise policy of the saidyear, IL 24 shops located beyond 5 K.Ms., of the peripheral area of the city wereliable to pay licence fee of Rs.6,00,000-00, while those located within 5 K.Ms., ofperipheral area have to pay a licence fee of Rs.9,00,000-00. As the licence fee ofRs.9,00,000-00 was collected from the petitioner, though according to him, hispremises was located beyond 5 K.Ms., from the peripheral area of the city, thepetitioner made a representation for re-fixation of the licence fee. On hisrepresentation, there being no action or response, he filed W.P.No. 4673 of 1999,which was disposed of by this court by the order dated 09-03-1999 directing theProhibition and Excise Superintendent, Ranga Reddy district to dispose of thepetitioner’s representation dated 26-11-1998 within a fortnight from the date ofreceipt of a copy of the order of this court. In view of the orders of this court above,the 3[rd] respondent caused an inquiry into the representation of the petitioner and formeasuring the distance between the premises and the city limits. On such inquiry, itwas found that the petitioner’s licensed premises located at door No.42-172,Jagathgirigutta, Ranga Reddy district was at a distance of 5.2 K.Ms., from theperipheral area of Municipal Corporation of Hyderabad. This was substantiated bythe certificate of the Executive Engineer, R & B Department also. Thereupon, itwould appear that the 3[rd] respondent sought legal opinion from the GovernmentPleader concerned and was advised that licence fee was erroneously determinedtreating the shop in question as being located within the belt area of 5 K.Ms., fromthe peripheral area of M.C.H. On the basis of this advice, annual licence fee of thepetitioner for the subsequent year i.e., 1999-2000 was fixed at Rs.6,00,000-00 by theproceedings of the 3[rd] respondent dated 14-09-1999. The petitioner, there being noresponse to his earlier representation for re-fixation of licence fee collected from himfor the year 1998-99, made another representation/application dated 20-08-2002 forrefund of the excise licence fee collected from him for the year 1998-99. Thisapplication was rejected by the 3[rd] respondent by the order dated 16-11-2002.

Aggrieved thereby, the writ petition is filed.

As is apparent from the judgment of this court dated 09-03-1999 in W.P.No. 4673 of1999, the petitioner’s representation for re-fixation of the licence fee was made on26-11-1998, around seven (7) months from the date of issue of the IL-24 licence tohim. Thereafter, on 14-09-1999 the 3[rd] respondent determined, on the basis ofrecorded material that the appropriate licence fee that ought to be collected from thepetitioner is Rs.6,00,000-00 and not Rs.9,00,000-00. It was, therefore, incumbent onthe respondents to have refunded the excess licence fee collected from thepetitioner. They did not do so. Aggrieved by intransigent conduct of the respondentsin withholding the amount legitimately due to him, the petitioner submitted anotherrepresentation dated 20-08-2002. This representation is rejected by the 3[rd]respondent by his order dated 16-11-2002 characterizing his application ‘as timebarred’.

The chronology of events adverted to above discloses that the order dated 16-11-2002 of the 3[rd] respondent rejecting the petitioner’s request for refund of the excesslicence fee collected from him for the year 1998-99 is patently misconceived,unsustainable and arbitrary. There is no justification for denying the petitioner refundof the excess licence fee collected. An essential ingredient of rational governance isrecognition of error and correction when legitimately called upon to do so. Therespondents have erroneously collected excess licence fee from the petitioner andought to have refunded such excess amount to him, particularly, when the demandfor refund was made with expedition by the licencee-petitioner.

In the aforesaid circumstances, the writ petition is allowed. The respondents aredirected to refund the excess licence fee of Rs.3,00,000-00 (Rupees three lakhsonly) collected from the petitioner for the excise year 1998-99 in respect of the IL 24licence of the petitioner, in any event, within a period of four (4) weeks from the dateof receipt of a copy of this order. There shall be, however, no order as to costs.

___________________________

GODA RAGHURAM, J

That Rule Nisi has been made absolute, as above.

Witness the Hon’ble Sri Devinder Gupta, the Chief Justice on Thursday the 30[th] dayof December, Two thousand and four.

1 The Commissioner of Prohibition & Excise A.P , Hyderabad.

2 The Dy.Commissioner of Prohibition & Excise Hyderabad.

3 The Prohibition & Excise Superintendent RR.Dist , Narayanaguda, Hyderabad.

4.2CCs to the Government Pleader for Prohibition & Excise, A.P. High CourtBuildings, Hyderabad (OUT).

5.2CD copies

Form-NIC-OGS/WP{}