JUDGMENT
1. All these Writ Petitioners are IL-24 (retail) shop vendors om Guntur District. The licences for the retail sale of all kinds of Indian Liquor/Foreign Liquor and Beer in the Form of IL-24 were granted to the petitioners at various places of Guntur District for the Excise Year 1998-99 on complying with all the formalities as per the Rules. The Excise Year of 1998-99 is from 1-4-1998 ending by 31-3-1999. Immediately after one month of the
commencement of business, the licensing authority suspended the licences of the petitioners on the ground that the location of their premises are contrary to Rule 6 of Andhra Pradesh Excise (Indian and Foreign Liquor Retail Sale Conditions of Licences) Rules, 1993 (hereinafter referred to as ‘Rules 1993’). Questioning the suspension orders, writ petitions have been filed, which were disposed of by this Court directing the authorities to consider the representations of the petitioners and on the instructions issued by the Commissioner, Prohibition and Excise, the reverification was made in which, it was found that all the licenced premises of the petitioners are in accordance with the aforesaid Rule 6, and therefore, the suspension orders have been revoked permitting the petitioners to carry on their business.
2. The petitioners filed representations for grant of remission of proportionate rental and the licence fee and pending the representations, they have also filed Writ Petition No.29719 of 1998 which was disposed of by this Court on 28-10-1998 directing the respondents to immediately dispose of their representations. Pursuant to the directions issued by this Court, the representations of the petitioners were considered and rejected by the Prohibition and Excise Superintendent, Guntur District vide his orders in RC No.919/98/B3 dated 29-11-1998.
3. Questioning the said order of the 3rd respondent, the petitioners filed this writ petition claiming for the proportionate remission of rental as well as the licence fee for the period during which their shops were remained closed on account of the illegal suspension by the 3rd respondent. The petitioners 1 to 27 were the petitioners in the earlier writ petition, whose representations have been rejected by the impugned order. Petitioners 28 to 32 are the similarly situated persons, therefore, all of them have filed a common writ petition
by paying separate Court fee, raising a common question of law as common issues are involved.
4. A counter has been filed on behalf of the respondents stating that as per the instructions of the Commissioner of Prohibition and Excise, Andhra Pradesh, Hyderabad, after grant of licences, all the Sub-Divisional Prohibition and Excise Officers in the District have verified the licenced premises of all the Indian Liquor shops and reported that the concerned premises are contrary to Rule 6(1) of Rules, 1993 and as per instructions of the Commissioner of Prohibition and Excise, the licences of the petitioners have been suspended on 25-5-1998 pending enquiry under Section 31 of Andhra Pradesh Excise Act (for short ‘the Act’) and show-cause notices were given subsequently. The petitioners filed writ petitions questioning the suspension orders, which were disposed directing the authorities to consider their representations and take appropriate action and pursuant to the said representations of the petitioners requesting to remeasure/ reverify the licenced premises and as per the instructions of the Commissioner of Prohibition and excise issued in Cr. No.7451/ CPE/98/G2, dated 31-7-1998 for remeasurement /reverification of the licenced premises, the Assistant Commissioner of Prohibition and excise, Guntur, has remeasure/reverified the premises of the petitioners and certified that all shops are found to be in conformity with Rule 6 of the Rules 1993.
5. Based on the verification reports of the Assistant Commissioner of Prohibition and Excise, Guntur, the licensing authority i.e., the 3rd respondent had revoked the suspension orders of IL-24 licences of the petitioners in the month of August, 1998 and permitted the petitioners to continue the business as per their licences.
6. It is stated in the counter that the representations of the petitioners were
considered pursuant to the direction of this Court and the same is rejected which is impugned in this writ petition on the ground that there is no provision in the Act to grant remission to the petitioners for the suspension period and under Section 31(3) of the Act, the licence holders shall not be entitled for the refund of any fee or deposit made in respect thereof for the suspension period.
7. The point for consideration is whether there is any provision in the Act for grant of remission of proportionate rental and licence fee for the period during which their shops suspended and revoked on the ground on which the suspension was made is found to be incorrect.
8. As per Section 15 of the Act, no person shall sell or buy any intoxicant except under the authority and in accordance with the terms and conditions of the licence granted in this behalf. It is settled law that it is exclusive privilege of the Government to manufacture and possess and sell the intoxicant liquor and that exclusive privilege can be parted in favour of a private individual on a stipulated sum or consideration and accordingly the rental and licence fee is fixed in respect of IL-24 licence for granting the licences in favour of the petitioners as contemplated under Sections 17 and 23 of the Act and the relevant rules made under the Act.
9. Section 20 empowers the District Collector in certain cases to order for the closure of the shops and on such closure, the licencees are not entitled for any compensation but they are entitled for the proportionate remission of licence fee as per Section 20(3) of the Act.
10. As per Section 30(3) of the Act, the licence holder shall not be entitled to any compensation for its cancellation or suspension nor to the refund of any fee or deposit made in respect thereof. The said
section contemplates that if the cancellation or suspension order is legal and if the suspension itself found to be illegal, it cannot be said that the licencee is not entitled for the refund of the fee or deposit. No doubt, the question of paying compensation does not arise as per the provisions of Act, and therefore, the petitioners are not seeking any compensation, but they are seeking for proportionate remission of the rental and licence fee for the period during which their shops remain closed on account of the illegal suspension. The learned Counsel for the petitioners brought to my notice about the orders of the Government in Memo No.16170/Ex.III-2/99-2 Revenue (Ex-III) Department, dated 15-10-1999 directing the Commissioner of Prohibition and Excise, to allow deduction of proportionate licence fee for the days during which the shop was not allowed to function on account of such suspension order.
11. The licences were granted to the petitioners as per the Andhra Pradesh Excise (Lease of Right to Sell Indian Liquor, Foreign Liquor and Beer in Retail Under IL-24 Licence) Rules, 1998 and according to Rule 2 of the Rules 1998, the licences shall be granted to retail dealers in Form IL-24 prescribed in Andhra Pradesh Indian Liquor and Foreign Liquor Rules, 1970 for the year 1998-99 on open licence system and they shall be governed by the conditions and procedure prescribed in the Andhra Pradesh Excise (Indian Liquor and Foreign Liquor Retail Sale Conditions of Licences) Rules, 1993 and Rules 1970 and the other rules are not made applicable.
12. The “Lease Year” means the period of 12 months commencing from 1st April of the year and ending with 31st March of the succeeding year as defined in Rule 3(1X0 of Rules, 1993. “Licence” means a person to whom a licence to sell Indian Liquor and Foreign Liquor has been granted under the Act. “Rental” means rent payable in respect of Indian liquor shop as part of sum in
consideration of the grant of lease or licence or both under Section 23 read with Section 17 of the Act besides the Excise Duty or counterveiling duty as payable for Indian Liquor and Foreign Liquor licence. Apart from the rental fixed there is also a “licence fee” payable as per the Rule 7 of Rules, 1993.
13. As per Rule 33 of Rules where a licence is withdrawn or a shop is ordered to be closed by a competent authority under the provisions of the Act, otherwise than by cancellation or suspension, no demand of rental shall be made for the period for closure. But the licensee shall have no right to claim any damages or compensation on that account except the refund of proportionate licence fee. It is the contention of the Excise Department that as per Rule 33 of Rules, 1993 if the licence is cancelled or suspended, the licensee is not entitled for the remission of rental or the licence fee but only if the shops are ordered to be closed under Section 20 of the Act, then only no demand of rental can be made and the licensees are entitled for refund of the proportionate licence fee but they cannot claim any damages or compensation. In the instant case, no doubt, there is no such order of closure under Section 20 but the suspension order was found to be illegal by the licensing authority himself and revoked the suspension order. As the ground on which the suspension was made is subsequently found as incorrect, and therefore, it cannot be said that the suspension order is legal. As per the Scheme of the Act and the Rules made thereunder, the licences are granted for a period of 12 months on the payment of fixed amount of the rental and the licence fee relatable for the 12 months and if the licensing authority prevents the licensees from carrying on their business by reason of illegal suspension, suspending the privilege granted in favour of the individual to carry on the business and that privilege is restored by revoking the suspension orders, the licensee
are entitled for the refund of the rental as well as the licence fee for the period during which the shops were remain closed on account of illegal suspension of the privilege granted in favour of the licensees.
14. Admittedly, there is no fault on the part of the licensees causing for the suspension of the licences but the suspension of licences were made purely on the fault committed by the Excise Authorities. For the fault of the Department, the licensees cannot be penalised. The authorities rectified their mistake and restored the licences but denied to grant the proportionate amounts payable for the suspension period, and therefore, I hold that the action of the respondents in refusing to grant remission of rentals and licence fee is illegal and contrary to Rule 33 of the Rules, 1993.
15. Accordingly, I set aside the order of the Prohibition and Excise Superintendent, Guntur, made in RC No.919/98/B3 dated 29-11-1998 and direct the respondents to refund the rental and licence fee for the period during which the shops of the petitioners were kept closed. It is made clear that while calculating the rental and licence fee, the authorities shall verify that from which date the suspension orders are given effect to and on which date the shops were permitted to open pursuant to the revocation of the suspension orders and refund the same to the licensees within two months from the date of receipt of a copy of this order if the refundable amounts have not already been adjusted.
16. Accordingly, the writ petition is
allowed. No costs.