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2002 DIGILAW 105 (AP)

Khoday India Ltd. v. Govt. of A. P. , Revenue (Excise-II) Dept.

2002-01-29

S.R.NAYAK

body2002
ORDER : (Per S.R. Nayak, J.) In these Review WP MPs, the petitioners seek review of our order dated 31-7-2001 made in the above writ petitions, placing reliance on the Judgments of the Apex Court in I.D.L. Chemicals Ltd v. Union of India, (1996) 5 SCC 373 , and Assistant General Manager, Central Bank of India and others v. Commissioner, Municipal Corporation for the City of Ahmedabad andothers, (1995) 4 SCC 696 . 2. What persuaded us to hold against the locus standi of the petitioners to assail the constitutional validity of sub-rules (4), (5)and (6) of Rule 10 of A.P. Indian Liquor and Foreign Liquor Rules, 1970 (for short, the Rules), is found in the judgment, It reads-'However, Mr. Naidu would contend that though that is the position under the Act and the Rules, since the liability placed on the importer under the impugned Rules has been taken over by the petitioners in these cases, it cannot be said that the petitioners are not the aggrieved persons, and therefore, the writ petitions filed by them are maintainable. We do not agree with the learned counsel. We would have appreciated the submission of the learned counsel, provided the petitioners herein were obliged in law to enter into agreements with the A.P. Beverages Corporation Limited, the importer for taking over the liability of the latter to pay the import fees and the countervailing duty in performance of a legal obligation flowing from the Act or the Rules made thereunder.'- 3. The above two authorities cited by the learned counsel for the petitioners, in our considered opinion, in no way support the contention of the petitioners that they have locus standi to challenge the constitutional validity of the impugned rules. Suffice it to state that in I.D.L. Chemicals Ltd. case(1 supra), the reclassification of Ammonium Nitrate by the order of the Central Board dated November, 1980 casts upon the appellants therein the obligation to pay the excise duty that is leviable as a result. The Apex Court found that such an obligation does not arise merely by reason of an agreement between SAIL and the appellants, but also by virtue of the provisions of Chapter X of the Central Excise Rules, 1944. In that view of the matter, the apex Court held that since the appellants suffered adverse civil consequences, they had locus to challenge the reclassification. In that view of the matter, the apex Court held that since the appellants suffered adverse civil consequences, they had locus to challenge the reclassification. In the instant cases, it is nobody's case that the obligation of the petitioners to pay import fee and countervailing duty is cast on them by virtue of the impugned rules or an statute. 4. The Judgment of the Apex Court in Commissioner, Municipal Corporation of the City of Ahmedabad (2 supra) was, in fact, considered by the apex Court in I.D.L. Chemicals Ltd. case (1 supra). The Judgment of the Apex Court in Commissioner, Municipal Corporation of the City of Ahmedabad case (2 supra) also in no way advance the case of the petitioners. What fell for consideration before the apex Court in that case was the right to complain and appeal against the increase in the property tax. The apex Court after examining the relevant statute found that the burden of payment of increased property tax can validly be passed by the landlord to the tenant under the relevant statute and, therefore, a tenant cannot be denied the right to complain and appeal against the increase in the property tax. However, Sri C.V. Mohan Reddy, learned counsel for the petitioners drawingour attention to the following observation of the apex Court in Commissioner, Municipal Corporation of the City of Ahmedabad case (2 supra)-'.....Even where the Bombay Rent Act is not applicable to a particular building, the existence and proof of such an agreement would enable the tenant to claim the requisite locus standi. Holding otherwise would be grossly unjust to the tenant. While he is made liable statutorily or by private treaty, for the enhancement in the property taxes, he is not being allowed to question the same.....'-would contend that the above observations would make it very clear that even persons like the petitioners who have incurred liability to pay the import fee and countervailing duty under the agreement, but not under any statute, would maintain the writ petitions. We do not think that the above contention of the learned counsel for the petitioners is well founded. First, the above observations of the apex Court can be distinguished on facts also. In that case, not only the obligation to pay the increased property tax was cast on the lessee under an existing agreement, but also by force of the relevant statute. First, the above observations of the apex Court can be distinguished on facts also. In that case, not only the obligation to pay the increased property tax was cast on the lessee under an existing agreement, but also by force of the relevant statute. Secondly, wshat fell for consideration of the apex Court in that case was the tenant's right to complain and appeal against the increase in the property tax. Such a right of a tenant cannot be equated to a right of a person to assail the constitutional validity of a statute. In order to assail the constitutional validity of a statute, the mover of the writ application should demonstrate that he is affected by the impugned statute. It is not the case of the petitioners nor the argument of the learned counsel appearing for them that the impugned rules themselves impose any obligation on the petitioners to pay the import fee and countervailing duty. No ground is made out warranting review of our order dated 31-7-2001. 5. The Review WPMPs are, therefore, dismissed. No costs.