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2022 DIGILAW 963 (AP)

Buddha Suri Babu, S/o. Late Chandar Rao v. State of Andhra Pradesh, Rep. by its Principal Secretary Department of Excise and Prohibition

2022-09-30

K.SREENIVASA REDDY

body2022
ORDER : The present Writ Petition is filed seeking the following relief : “…to issue a writ of mandamus or any other appropriate writ, order or direction to declare the action of the respondents No.2 to 5 in not conducting re-auction for Twenty (20) Bars out of one hundred and twenty (120) Bars in Greater Visakhapatnam Municipal Corporation (GVMC) as per Rule 18 of the A.P. Excise (Lease of Right of Selling by Bar, Grant and Conditions of Licence) Rules, 2022 even though the respondents No.6 to 11 have failed to deposit the lease amount on the same day of auction i.e. 30.07.2022 as per Rule 17 of the A.P. Excise (Lease of Right of Selling by Bar, Grant and Conditions of Licence) Rules, 2022 as being illegal, arbitrary and in contravention of Rule 17 and 18 of the A.P. Excise (Lease of Right of Selling by Bar, Grant and Conditions of Licence) Rules, 2022 and consequently direct the respondent No.2 to 5 to conduct re-auction for Twenty (20) Bars in Greater Visakhapatnam Municipal Corporation (GVMC) as per Rule 18 of the A.P. Excise (Lease of Right of Selling by Bar, Grant and Conditions of Licence) Rules, 2022…” 2. It is stated in the affidavit filed in support of the Writ Petition as follows : Respondent No.2 issued auction proceedings in Cr.No.2199/2022/CPE/E3, dated 21.07.2022 calling for bidders to participate in auction of Bars in the State of Andhra Pradesh, classifying into four zones and Visakhapatnam district is part of Zone-I. Auction for 128 Bars in Visakhapatnam Municipal Corporation of Visakhapatnam district was conducted on 30.07.2022 for the licence period of 01.09.2022 to 31.08.2025, with the prescribed licence fee. Though petitioner is one of the aspirants to participate in the auction, because of Rule 17 of the Andhra Pradesh Excise (Lease of Right of Selling by Bar, Grant and Conditions of Licence) Rules, 2022 (for short, ‘the Rules, 2022’) stipulating payment of lease amount in lump sum, he did not participate in the said auction. 120 bidders, who participated in the auction, were selected for 120 Bars and the auction for remaining 8 bars was not conducted. Petitioner’s enquiries revealed that 100 out of 120 selected bidders paid the lease/licence fee in terms of Rule 17 of the Rules, 2022. Respondents 6 to 11 did not pay the lease amount in terms of Rule 17 of the Rules, 2022. Petitioner’s enquiries revealed that 100 out of 120 selected bidders paid the lease/licence fee in terms of Rule 17 of the Rules, 2022. Respondents 6 to 11 did not pay the lease amount in terms of Rule 17 of the Rules, 2022. Still, 5th respondent failed to conduct re-auction as per Rule 18 of the Rules, 2022 in respect of the said Bars. Had the re-auction been conducted by 5th respondent, petitioner would have participated in the same and would have become the highest bidder. Hence, the Writ Petition. 3. 1st respondent issued a Notification, vide G.O.Ms.No.527, Revenue (Excise) Department, dated 13.07.2022, framing the Rules, 2022. 2nd respondent issued a Notification Cr.No.2199/2022/CPE/E3, dated 21.07.2022 issuing a Notice of e-auction to grant lease of right to sell Indian made foreign liquor and foreign liquor by Bar, under the Rules, 2022. As per Condition No.9 of the said Notification dated 21.07.2022, the auction purchaser / successful bidder shall pay the lease amount in one lump sum on the day of auction or in case the day of auction is a bank holiday, on the immediate next working day. As per Condition No.10 thereof, in case the auction purchaser / successful bidder fails to pay the lease amount as stipulated in Rule 17 of the Rules, 2022, the lease shall be cancelled without any notice and same shall be put to re-auction. The date of auction was fixed on 30.07.2022. 4. It is the case of the petitioner that because of the aforesaid condition stipulating payment of the lease amount in one lump sum, he could not participate in the auction for the notified bars in GVMC on 30.07.2022 as he was unable to arrange funds. It is his further case that out of the notified bars, only 120 bidders participated in the said auction and they were selected, and out of the 120 bidders, who were selected, only 100 bidders paid the bid amounts as per Condition No.9 of the Auction Notice dated 21.07.2022 and Rule 17 of the Rules, 2022 and by virtue of the same, the respondents accepted their bids. In respect of 8 bars, the auction was not conducted as there were no tenders offered. In respect of 8 bars, the auction was not conducted as there were no tenders offered. It is also stated by the petitioner that on his discreet enquiries, he came to know that the respondents 6 to 11 did not pay the amounts as per Rule 17 of the Rules, 2022, and inspite of the same, respondent No.5, who is the Authorized Officer, failed to conduct re-auction in respect of the said Bars as per Condition No.10 of the Auction Notice dated 21.07.2022 and Rule 18 of the Rules, 2022. 5. Learned counsel for petitioner strenuously contended that there is a procedure contemplated under the Rules, 2022 that the successful bidders have to pay the entire lease amount in lump sum on the schedule date and the said Rules are mandatory and the same have to be complied with strictly, but on his discreet enquiries, the petitioner came to know that the amounts have not been paid as per Condition No.10 of the Auction Notice dated 21.07.2022 and Rule 18 of the Rules, 2022, but, still the said amounts were accepted by respondents 1 to 5 on subsequent dates. 6. On the other hand, learned Government Pleader submits that the writ petitioner has no locus standi to file the Writ Petition for the reason that he is not a participant in the subject auction. It is his further submission that even accepting that the petitioner is a participant and even if he is a successful bidder, he would not be entitled for grant of licence for the reason that there are cases as against the petitioner viz. the petitioner is A.14 in crime No.15 of 2018 of Prohibition and Excise Station, Anakapalli registered for the offences punishable under Sections 34 (a) & (e), 36 (1) (b) and and 37 (a) of the A.P. Excise Act, 1968. The learned Government Pleader further submits that petitioner herein filed Insolvency Petition (IP) No.39 of 2016 on the file of the II Additional Senior Civil Judge, Visakhapatnam seeking to declare him as an insolvent and to administer the assets and liabilities summarily. He submitted that the petitioner suppressed these facts and filed the Writ Petition. 7. Having heard both the counsel and perusing the material available on record, it is found that the petitioner is not a participant in the auction conducted on 30.07.2022. He submitted that the petitioner suppressed these facts and filed the Writ Petition. 7. Having heard both the counsel and perusing the material available on record, it is found that the petitioner is not a participant in the auction conducted on 30.07.2022. More so, a criminal case in crime No.15 of 2018 of Prohibition and Excise Station, Anakapalli registered for the offences punishable under Sections 34 (a) & (e), 36 (1) (b) and and 37 (a) of the A.P. Excise Act, 1968 is pending against him. It is also stated that he filed an Insolvency Petition (IP) No.39 of 2016 before the learned II Additional Senior Civil Judge, Visakhapatnam. According to the learned Government Pleader, even if the petitioner participates in the auction and becomes the highest bidder and pays the lease amount in lumpsum on the same day, the question of considering grant of licence in his favour by the respondents would not arise. The petitioner suppressed all the aforesaid facts before this Court and filed the present Writ Petition with a mala fide intention. The petitioner has not come to the Court with clean hands. Therefore, the conduct of the petitioner disentitles him for any discretionary relief under Article 226 of the Constitution of India. In views of the same, this Court is not inclined to go into details of the case. 8. The Writ Petition suffers from laches and is dismissed, with costs, quantified at Rs.10,000/- payable by the petitioner to the Andhra Pradesh High Court Legal Services Committee, Amaravati. As a sequel, interlocutory applications pending, if any, in the Writ Petition shall stand closed.