The High Court · 2025

THE HON'BLE SRI JUSTICE T. VINOD KUMAR Writ Petition No.39326 of 2013 Heard learned counsel for the petltioner, learned Government Pleader for Prohibition and Excise appearing for respondent Nos.1 to 4 and perused the record.

2. By the present Writ Petition, the petitioner has assailed the action of the 1* respondent authority in ordering the petitioner to pay 10o/o of additional licence fee i.e. a sum of Rs.3,80,000/- for excise year 2012-73 within seven days from the date of receipt of a copy of the order, Failing which, the petitioner was informed that the said additional licence fee will be recovered from the bank guarantee furnished by the petitioner as licensee under the provisions of the Andhra Pradesh Excise Act, 1968 ( for short, 'the Act') read with the Andhra Pradesh Excise (Grant of License of selling by Bar and Conditions of Licence ) Rules,2005 (for short, 'the Rules').

3. Briefly stated, the case of the petitioner is that it was granted 28 Bar Licence No.7112006-07 dt.29.11.2006 for establishment of Bar and Restaurant at premises bearing Door Nos.7-7-63717 and l-7-640 situated at Subedari, Hanamkonda, Warangal District, by the respondents, in terms of Rules 5 and 11 of the Rules; that the aforesaid licence was renewed I ! I I I i I I I 2 from time to tilc by collecting the prescribed fee; and that th r licence is also renewed fc' the year 70L3-74. 4, it is thr fufther case of the petltioner that the re ipondents- authorities, vuhi r: granting 2B licence for establishing bar arrd -estaurant, have approved,:re plan showing the enclosures, whereat -h( petitioner was permitted () serve liquor for consumption of its custonrer;, which is clearly idenritle< ,rs liquor serving area.

5. It is the lirfther case of the petitioner that as per RJI€ 10 of the Rules, the area rvhich is earmarked as liquor serving area n letitioner's premises is conlr!luous right from the beginning when ticencc r,\ as granted to it in the year 2006-07 and continued as sLcr; that the 1't respondent ;luthority basing on the audit objection ttat it had raised/constr rct,-i:1 hut in open place of the licensed premise,; a iC as such construction/ rai: trg of hut iS non-contiguous to the liquor serving area, had booked a c| se, vrdeCOR No.206/2013-14 on 31.05.201:i; that on the aforesaid case L:: ng booked by the respondents-a uthorities, lh( petitioner had compound€:l the same, videproceedings dt.21.06.201: bu paying a fee of Rs.1,1:)0,.1)0/-; and that upon such payment, the ca;e booked against the petit : ner was closed.

6. It is tlre 1-t1her case of the petitioner that the hut \,\,a i c )nstructed in the open ;pirrte of the premises in the month of Febru;rry 2013 for 3 serving food and the said hut was removed on 04.06.2013 after the 1st respondent booked a case vide COR No.206/2013-14 on 31.05.2013 and even during the short period of its existence, the same was not put to use for serving liquor; and that since, the petitioner had compounded the said case booked against it by paying the compounding fee, the respondents-authorities cannot seek to levy 10o/o of the licence fee as additional licence fee towards non-contiguous enclosure as per Rule 10(2) of the Rules.

7. Petitioner further contends that on the respondents-authorities issuing a show cause notice dt.14.06.2013 calling upon the petitioner to submit explanation to the aforesaid proposal seeking to levy 107o of the licence fee as additional licence fee, it had submitted its reply dt.18.06.2013; and that in addition to submitting explanation to the aforesaid notice, the petitioner had also approached the 3'd respondent authority and submitted representation, which has not been considered. B. Petitioner further contends that while the representation submitted to the 3'd respondent is pending consideration, the 1s respondent had issued the impugned proceeding directing the petitioner to pay 10% additional licence fee for the year 2072-13 based on the audit objection without applying its independent mind and thus, the impugned demand of payment of additional licence fee is without independent exercise of mind by the ld respondent authority and is vitiated. '\ .t/ t I ! ; I iI Z 4 Pertiti .ner further contends that the respondenEl-;l ut lorities having

9. accepted k compound the case booked against the retitroner vide proceedings r]t.21.06.2013, cannot seek to demand/lev/ .0% additional licence fee, , r; the same would amount to double jeopardy.

10. Wrthr - t prejudice to the above said content ons, the petitioner also contends th,, since it had constructed the hut in the oterr place only in the month r'February, 2013 and used the same for sh,trt period of four months, ha\ ng removed the same on 04.06.2013, the ev7 of additional fee of 10"/o ;n the licence fee paid for the year 2012-13 ftr he whole year is unjustifie. and at the most, the authorities can |€:\ry the said fee proportionat ,r y to that of the short period of four month; . nd not for the entire year.

11. ,pe. c'.t,1tra, learned Government Pleader for Pronilit on and Excise appearinlt o'r behalf of the respondents would submit thi t as per plan approved by 1he respondents-authorities while grantinq 2B Bar licence to the petitionr I an area admeasuring 283.64 square metr:s was approved as liquor sell/ ng area in respect of two premises bearin; llunicipal Door Nos.1-7-637 I & l-7-640; and that the petitioner i1 a(dition to the aforesaid pe-'ritted liquor serving area had erected/con stru( ted hut in the Open area/ i:rlmeasur'ng 144 Square metres, and was us ing the Same aS part and oar:r:l of the licenced premises, For serving liclucr rn violation of licence r:ond'.ons, for which the respondents have boo<erl a case vide I I t' i: l{ ( 5 COR No.206/2013-14 dt.31.05.2013 and on booking of the aforesaid case, the petitioner having come fonrvard to compound the said ofFence, itself goes to show the petitioner has accepted the violation.

12. On behalf of the respondents, it is further contended that though the petitioner had claimed of it having constructed the aforesaid hut in the month of February, 2013 only, no documentary evidence is placed to show that such construction in Fact having been made in the month of February, 2013 by obtaining any permission from the concerned municipal authorities, as permission is required to be obtained from the concerned municipal authorities for the respondents-authorities to accept the aforesaid plea of the petitioner.

13. On behalf of the respondents, it is also contended that as per proviso to Rule 10(2) of the Rules enclosures which are not contiguous shall attract an additional 1070 licence fee for each such additional enclosure; and that the hut which is constructed by the petitioner in the open space being non-contiguous to the liquor serving area in the building plan as approved, the petitioner is liable to pay 10o/o of the licence fee as additional licence fee.

14. On behalf of the respondents, it is contended that the petitioner having made use of the open space by constructing hut therein is liable to pay additional licence fee in terms of the Rules for the year 2OL2-13, 6 a which but f-, the inspection caused by the 1st respon'Jerrt pursuant to audit object :rr could have escaped the levy.

15. Crr b.)1alF of the respondents, it is further corterrded that the petitioner t I his own admission by his letter :;r, bn ritted to the 3'd respondrr-rt had admitted to the fact of he ha,,in ; made such construction due to lack of knowledge and compo rnr led the COR registeri:C 6rlainst him and thus, cannot now claim of lre n tt being liable to pay adCiti .rral fee.

16. On b,ralf of the respondents, it is also contenled that the 1st respond,.)it authority before issuing the impugne j proceeding demanding t.ri payment of additional licence fee of 100,/0, hird followed all the cancns 6 i principles of natural justice - firstly, by issuing a show cause notice, sec(ndly, by considering the explanation surnitted by the petitioner an:l thus, it is not open for the petitioner tc (;ortend that the 1st responde nt authority has merely acted on the ba,;is of the audit objection \/i1 hout independent exercise of mind by itselt, tnd thus, the respondents ,r:ek for dismissal of the Writ petition. t7. I hirv€ taken note of the respective contentions urg:d

18. Thoug't on behalf of the petitioner it has been crtrrterded that the construction of hut was temporary in nature and is m tdt: only in the month of Fer-uary, 2013 and removed on 04.06.2013, nt material is I I 7 placed either before the authority in reply to the show cause notice or before this Court to show that such construction having been made only in the month of February, 2013, by obtaining permission more particularly, considering the fact that the definition of 'building' under the relevant municipal laws also includes a hut.

19. Further, the claim of the petitioner that the aforesaid construction was undertaken by him due to lack of knowledge and ls only intended for supply of food in summer season but not to serve liquor, and for the said reason, the petitioner having compounded the COR registered against it by paying a sum of Rs.1,00,000/-, the representation dt.03.08.2013 submitted to the 3'd respondent would indicate that the petitioner is nowise to the trade or the procedures that it is required to follow. In fact, at an earlier point of time, against the action of the respondents- authorities in treating both the premises as non-contiguous, he having invoked the jurisdiction of this Court by filing a Writ petition, vide W.P.No.13043 of 2010, the said claim of the pefltioner does not appeal to this Court for being accepted.

20. Further, it is to be noted that since the petitioner has been issued with a 28 Bar licence under the provisions of the Act, it is required to serve liquor only in the area which is earmarked as a liquor serving area in the plan approved by the excise authorities and serving of liquor beyond 8 r- the liqu,:r s:rving area would result in the petitioner ,tor travening the rules and thr icence conditions.

21. Th;uf on behalf of the petitioner, it is cont.erded that the aforesaid hu. was constructed only to serve the food dur nc summer, and liquor has n<,- been served in the aforesaid hut consirucl:ed, rvhich claim of the petitione- on the other hand, is disputed by the r(splndents, such disputed qui:r;tion of fact cannot be gone into by this Court in a Writ Petition filec under Article 226 of the Constitution of India, for which the petitioner is |equired to avail the remedies provided und:r the Act by adducing ne r(rssary documentary evidence.

22. Since Ihe respondents claim that the petitioner h;virrg constructed hut in ther o[ : n area, of the licensed premises without of ta ning any prior permission a'rC using the same as an extension to its 2U ice nce premises, such usaqe :f premises would require the petitioner tt )ay additional Iicence fec (:1,07o of licence fee for each such separate e tcl tsure in terms of Rules r3 ,l)(c) of the Rules which clearly stipulates tlrat licensee shall sell liquor or,/ at the premises specified in the licence. Siin{:e, the licence granted and [he plan annexed thereto as approved by tlte authorities on

30.10.2006 (':es not show existence of any hut therein ',ai riclr is treated as liquor servir :1 area and on the other hand majority of th: area in the building for r',hich approval has been granted only consist of liquor serving area admeasrtring 283.6 square metres, the claim of th,l I etitioner of it I t i I I I I $ * i I t i , I 9 not serving liquor in the hut constructed by it and only being used for serving food, without there being a separate area earmarked in the plan approved for serving food exclusively as restaurant, the claim put foth by the petitioner does not appeal to this Court for being accepted.

23. In view of the above, this Court is of the view that the action of the respondents-authorities in seeking to lew additional licence fee at 10% of licence fee for constructing hut as part of the licensed premises under the impugned proceeding cannot be said as being contrary to Rules 10 and 13 of the Rules and also contrary to the provisions of the Act for this Couft to set aside the same.

24. In view of the above, the present Writ Petition as filed assailing the action of the respondents-authorities is devoid of merit and it is accordingly dismissed. No order as to costs.

25. Miscellaneous petiiions, if any, pending in this writ petition shall stand closed. //TRUE COPY// SD/.T. TIRUMALA DEVI EPUTY REGISTRAR SECTION OFFICER To, W 1 One CC to SRI NANDIGAM KRISHNA RA oAd ate I oPUCI

2. fwo CCs to GP FOR PROHIBITION & EXCISE ,High Court for the State of Telangana. [OUT]

3. Two CD Copies KKS BS i I r HIGH COURII DATED:2810512025 ! {- \-. I l, .Ul'i ?ffi -i'1. ', ,,'," 't;'r)u"' ORDER WP.No.39326 of 2013 DISMISSING THE WRIT PETITION WITHOUT COSTS 15 b "I