ORDER P.T. Raman Nayar, J. 1. These petitions under Article 226 of the Constitution are directed against similar notifications issued by the 1st respondent, State Government directing that the privilege of manufacturing and vending toddy during the period from 1st April 1960 to 31st March 1961 in the shops of the Kunnathur Taluk of the former Travancore State and of the Trichur Taluk of the former Cochin State be sold in public auction. The notifications purport to be in exercise of the rule-making power in S.26 of the Travancore Abkari Act IV of 1073 and in S.29 of the Cochin Abkari Act I of 1077. (The relevant provisions of the two Acts are identical; only the numbering of the sections is different; the facts of the two cases are similar and the discussion hereafter with reference to one of them, O. P. 313 of 1960, is equally applicable to the other). Under S.15 of the Cochin Abkari Act, no liquor or intoxicating drug shall be sold without a licence from the Commissioner. This is obviously by way of regulation of a dangerous trade. S.16 says that, "it shall be lawful for the Government to grant to any person or persons on such conditions and for such period as may seem fit the exclusive or other privilege of manufacturing or supplying by wholesale or selling by retail any country liquor". And to make it clear that the grant does not dispense with compliance with S.15, it adds that, "the grantee of any privilege under the section shall not exercise the same until he has received a licence from the Commissioner". Obviously S.16 proceeds on the footing that the exclusive privilege of vending toddy or other country liquor vests in the Government, in other words, is the property of the Government, and doubtless it is in exercise of the power under S.16 that the notification in question has been issued although the Government have chosen to do so in the shape of rules. 2. The established practice in this, as in other States, is to sell this privilege, of making and selling toddy, by public auction. But in 1957 the State Government departed from this practice to some extent as an experimental measure and made the sales in certain areas by private negotiation in favour of Cooperative societies composed of toddy tappers. The petitioner is one such society. But in 1957 the State Government departed from this practice to some extent as an experimental measure and made the sales in certain areas by private negotiation in favour of Cooperative societies composed of toddy tappers. The petitioner is one such society. It obtained such a grant by negotiation for the current year, namely, the year ending this day, in respect of the Trichur Taluk, and it is its case that it has obtained a similar grant or, in other words, that there has been a sale in its favour also for the year ending 31st March 1961. If there has not been a concluded grant, there has at least been an enforceable agreement to make the grant; at least a contract to sell if not of sale; and the action of the State Government in putting up the same privilege for sale by public auction is in violation of the rights acquired by the petitioner. The petitioner therefore prays for : (1) a writ of certiorari or other appropriate writ to quash the impugned notification and, (2) the issue of a writ of mandamus or other writ directing the 1st respondent State Government and the 2nd respondent Board of Revenue, to issue the petitioner the necessary licence for the manufacture and sale of toddy in the concerned taluk. 3. It goes without saying that the second relief cannot, in any event, be granted ; for the acquisition of a grant under S.16 of the Act does not carry with it the right to obtain a licence under S.15. A licence under S.15 is to be issued on different considerations; and it is not even alleged that the petitioner has fulfilled the conditions required for obtaining such a licence or that such a licence has been refused to it. It would also appear, although the matter has not been fully investigated, that although a member of the Board is ex officio Commissioner, the Board itself is not the Commissioner. If that be so, the Commissioner, who is authority to issue the licence, is not even a party. 4. So far as the first relief is concerned, it is, of course, denied by the respondents that there has been any concluded sale, or even an agreement to sell, in favour of the petitioner. If that be so, the Commissioner, who is authority to issue the licence, is not even a party. 4. So far as the first relief is concerned, it is, of course, denied by the respondents that there has been any concluded sale, or even an agreement to sell, in favour of the petitioner. The investigation of a disputed question of fact is not ordinarily undertaken in proceedings under Article 226 of the Constitution. But, since the petitioner is content to rely on certain admitted documents to make out its case, I think such an investigation may be undertaken on those documents alone. By a G. O. dated the 7th January 1960 (marked as Ext. P. 1), the State Government said that they had decided to continue the experiment of giving shops on a negotiated basis to Tappers' Cooperative Societies in the areas where they were already functioning, subject to certain conditions among which were that, in addition to an enhancement of rental by 5% from that of the current year, 50% of the profits were to be paid to the Government. The G. O. also stated that Orders defining, "profit" for this purpose would issue separately. There were a number of other conditions which it is not necessary to specify and the Board of Revenue which administers the Abkari Department, was asked to obtain consent statements from the societies concerned agreeing to the conditions, and also agreeing to abide by any other conditions which may be imposed by the Government, before submitting the draft sale notification for publication in the Gazette. It was said that the consent statements should be obtained sufficiently early so that other arrangements could be made for the disposal of the shops if the societies were not agreeable to the conditions. The Board of Revenue accordingly communicated the gist of Ext. P. 1 to the petitioner among other societies by a letter dated 8-1-1960 (marked as Ext. P. 2), and it asked for the concurrence of the societies on or before the 15th January. The petitioner replied with Ext. P. 4 dated 12-1-1960 agreeing to take the shops on the conditions specified, and enclosing resolutions of its Managing Committee to that effect: and this was followed by a letter (Ext. P. 4(a) dated 31-1-1960) from its President to the same effect. Then, by the G. O. Ext. The petitioner replied with Ext. P. 4 dated 12-1-1960 agreeing to take the shops on the conditions specified, and enclosing resolutions of its Managing Committee to that effect: and this was followed by a letter (Ext. P. 4(a) dated 31-1-1960) from its President to the same effect. Then, by the G. O. Ext. R. 1 dated 18-1-1960, the Government defined "profit" as it had promised to do in Ext. P. 1 and, for that purpose, specified certain items of expenditure as the only admissible items. It would appear that subsequent to this, the adviser to the Government held a conference on the 9th February 1960 at which the matter was discussed with the representatives of a body composed of the societies in question. On 10-2-1960, the President of the petitioner society addressed a letter (marked as Ext. P. 5) to the Board agreeing to take up the contract on a negotiated basis on conditions which, so far as the definition of "profit" was concerned, were materially different from the definition in Ext. R. 1, and under which the permissible deductions on account of expenditure were larger. This letter made reference to Ext. R. 1 and stated that the conditions of the contract on a negotiated basis had been modified at the conference held on 9-2-1960 and that the letter embodied the modified terms. It is the case of the respondents that although there was a discussion with the adviser, no final decision was reached and that there was no agreement by the Government to the conditions set out in Ext. P. 5. In fact, it is their case that the entire matter was expressly left over for decision by the ministry which was to be shortly formed. And the ministry, after it was formed, decided (on what grounds it is not very germane to consider, although they have been set out in full in the counter affidavit of the 1st respondent) to give up the experimental system of a negotiated sale and revert to the established practice of sale by public auction. It was in pursuance of this decision that the impugned notification was issued. 5. It seems to me quite clear on a perusal of the documents mentioned above, that there was no concluded grant in favour of the petitioner, or to put it slightly differently, that there was no concluded contract of sale in favour of the petitioner. It was in pursuance of this decision that the impugned notification was issued. 5. It seems to me quite clear on a perusal of the documents mentioned above, that there was no concluded grant in favour of the petitioner, or to put it slightly differently, that there was no concluded contract of sale in favour of the petitioner. This seems to me quite apparent from Ext. P. 1 which only stated that the Government had decided to continue during 1960-61 the system of giving shops on a negotiated basis to Tappers' Cooperative Societies subject to certain conditions, and invited the acceptance by the societies of those conditions. What Ext. P. 2, the communication sent to the societies said was that the Government had decided to entrust toddy shops on a negotiated basis for the 1960-61 contract on the specified conditions. In both documents, it is clear that the grant was yet to be made and only the decision of the Government to make the grant, provided certain conditions were accepted, was conveyed. Ext. P. 4 by which the petitioner society accepted the conditions clearly recognised that a further order making the grant was necessary and prayed for such an order; and this is indeed apparent from the direction in Ext. P. 1 that the Board should obtain a consent statement from the societies concerned before sending the draft sale notification -- the grant is invariably by sale -- for publication in the Gazette. The practice is for any grant of the privilege under S.16 to be made by notification in the Gazette, and that there can be no doubt that in this case also it was intended that the actual grant should be made by such notification. Exts. P. 4(a) and P. 5 affirm this, for, what they say is that the petitioner society agrees to take up the contract for the year 1960-61 on a negotiated basis on the conditions mentioned. It seems to me that the position was correctly appreciated by the petitioner in paragraph 4 of its affidavit where it says that the 1st respondent issued the G. O. of the 7th January 1960 (Ext. P. 1), "incorporating the modifications subject to which the right to manufacture and vend toddy on negotiated contract will be settled upon the societies". There is hardly scope for the argument that under Exts. P. 1), "incorporating the modifications subject to which the right to manufacture and vend toddy on negotiated contract will be settled upon the societies". There is hardly scope for the argument that under Exts. P. 1 and P. 2 there was a settlement of this right on the petitioner subject to the conditions specified -- every single document speaks of a grant still to be made after the societies had communicated their acceptance of the conditions. 6. The petition cannot be maintained on the footing of a concluded grant or sale in favour of the petitioner. 7. Coming to the alternative ground that there was a concluded contract to make a grant (and this seems to be the ground really taken in the petition, although it is explained that what was meant was a contract of grant and not merely a contract to grant). I can scarcely conceive of Article 226 of the Constitution as a machinery for specifically enforcing a contract which is what petitioner seeks to do. A contract may, no doubt, be property, but the impugned notification -- it is rightly pointed out that the notification purports to be a rule having the force of law -- does not seek to deprive the petitioner of its contract. At the worst what can be said is that it threatens a breach of the contract, but the petitioner has still its rights under the contract which it can enjoy or enforce in the ordinary way. (See AIR 1956 Supreme Court, page 17 and 1959 KLT (Supreme Court) page 1). 8. All this apart, on a consideration of the entire material I am inclined to agree with the contention of the respondents that all that the documents disclose are negotiations for the purpose of making a grant to the petitioners among other societies, and I think it would be difficult to spell out a concluded contract to make a grant. There is also the difficulty that, although Ext. P. 1 is issued in the name of the Governor, even on the petitioner's showing, that did not make a contract, but was only an offer which, on acceptance by it, became a concluded contract. The concluded contract therefore is not one expressed to be made by the Governor and is therefore not an agreement which can bind the State in view of Article 299 of the Constitution. The concluded contract therefore is not one expressed to be made by the Governor and is therefore not an agreement which can bind the State in view of Article 299 of the Constitution. Chattubhui Vithaldas v. Moreshwar Parashram (AIR 1954 Supreme Court 236) and Thawardas v. Union of India (AIR 1955 Supreme Court 468) are cases in point. 9. I do not think that the petitioner has acquired any legal right which is threatened by the impugned notification. This, by itself, is sufficient to dispose of the petition, but I may briefly deal with certain other charges levelled against the notification. In the first place it is said to be discriminatory. The complaint of the petitioner is that while cooperative societies are required to produce a certificate from the concerned Deputy Registrar of Cooperative Societies to the effect that they are sound and capable of discharging their obligations before taking part in the auction, no such certificate is required of other persons. But it seems to me that this is a special provision for cooperative societies which are placed in a special position and that it is designed to take the place of sub-rules 5 and 7 of rule 4 of the rules in the notification which give the officer conducting the auction the liberty to exclude any intending bidder on the ground that he is not a person of good repute or on the ground that he is a person of doubtful solvency. Once a certificate is produced by a cooperative society I cannot conceive of an officer conducting a sale excluding the society on these grounds. Then again we find that, by rule 69, Cooperative societies are given certain substantial concessions which again places them in a different position from the ordinary bidder and justifies the classification by which a certificate from the Deputy Registrar is required. Obviously neither the concessions nor the right to bid in auction should be available to a society which is unsound and incapable of discharging its obligations. 10. The second charge levelled is that rule 4 confers a nacked power on the officer conducting the sale to exclude any intending bidder; but, I find that the rule states in full the circumstances and the conditions under which the exclusion can be made. 10. The second charge levelled is that rule 4 confers a nacked power on the officer conducting the sale to exclude any intending bidder; but, I find that the rule states in full the circumstances and the conditions under which the exclusion can be made. To give the officer the right to determine whether or not a person is solvent and of good repute, is certainly not to confer on him an arbitrary or naked power even if the possibility of a mala fide exercise of the power is there. The presumption is that the power will be properly exercised, and it will be time enough for a person to come forward with a charge of discrimination when he is able to say that there has, in fact, been a mala fide exercise of the power. And if sub-rules 5 and 7 of rule 4 give the officer an unfettered discretion to exclude, it seems to me that this operates in favour of societies like petitioner society rather than otherwise, for, as I have already remarked, if a society produces the required certificate from the Deputy Registrar there seems to me to be no possibility of any exclusion under sub-rule 5 or 7 of rule 4. 11. I dismiss the petitions with costs. Advocate's fee Rs, 250/-in each.