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1967 DIGILAW 191 (KER)

STATE OF KERALA v. K. SREEDHARAN

1967-08-07

M.S.MENON, S.VELU PILLAI

body1967
Judgment :- 1. The State of Kerala represented by the Chief Secretary to Government, Trivandrum, and the Board of Revenue represented by the Secretary to the Board of Revenue, Trivandrum, are the appellants before us. They were the respondents in O. P. No. 3378 of 1964. 2. The petitioner in O. P. No. 3378 of 1964 was the managing partner of the General Supplies Company, Cantonment, Trivandrum. He is the respondent in this writ appeal. 3. The contention of the petitioner relates to the gallonage fees demanded by the State in respect of the period from 1-4-1958 to 31-3-1961. The amount demanded has been paid by the petitioner. 4. The demand was in pursuance of the petitioner's licence "for possession and sale of bottled foreign liquor and Indian-made foreign spirits". The licence is in form No. XV of the forms prescribed by the Government under the Travancore-Cochin Prohibition Act, 1950. The form embodies the "conditions and stipulations" subject to which the licence is issued. No.11 of those "conditions and stipulations" reads as follows: "Gallonage fees at the following rates shall be levied quarterly on the quantity of liquor sold by the licensee in each quarter to permit holders. Table:#1 For this purpose, the licensee shall submit to (h the Commissioner and (ii) the Assistant Excise Commissioner concerned on or before the 5th of the month immediately following each quarter, a statement showing the stock on hand at the beginning of the quarter, the quantity received and the quantity sold during the quarter and the balance on hand at the end of the quarter. The licensee shall pay into a Government Treasury within 14 days of demand, the fees fixed by the Commissioner." 5. The liquor sold by the petitioner and in controversy in this case was sold in quart bottles. According to the State the petitioner should pay gallonage fees at the rate of Rs. 16-14-0 for every six quart bottles sold by him irrespective of the actual quantity of liquor contained in those bottles. The amount demanded by the State and paid by the petitioner was on this basis. According to the petitioner the actual quantity of liquor contained in the quart bottles sold by him should be added up and the gallonage fees charged on the total at the rate of Rs. 16-14-0 per imperial gallon thereof. The amount demanded by the State and paid by the petitioner was on this basis. According to the petitioner the actual quantity of liquor contained in the quart bottles sold by him should be added up and the gallonage fees charged on the total at the rate of Rs. 16-14-0 per imperial gallon thereof. The contention of the petitioner has been accepted in the judgment under appeal. 6. An imperial gallon consists of four quarts. A quart consists of two pints or. 25 of a gallon. The actual quantity of liquor normally present in a quart bottle is not. 25 gallon but 165 gallon or 750 milli litres. In other words the actual contents of six quart bottles and not of four will come up to an imperial gallon. 7. This must be the reason for fixing the gallonage fees on the basis of an "imperial gallon or six quart bottles". In so fixing the rate the normal contents of the quart bottles of liquor have been taken into account and we see no reason to hold that the State is not justified in charging the petitioner at the rate of 16-14-0 for every six quart bottles sold by him. The actual contents of the bottles have been taken into account when six quart bottles and not four have been fixed as the equivalent of an imperial gallon of liquor and the petitioner cannot possibly claim any further reduction in this matter. 8. There can be no doubt that the unit for calculating the gallonage fees when a licensee sells in quart bottles is the container and not the quantity contained, and all that the State has to do, and which it has done, is to find out the number of quart bottles sold and collect the fees thereon at the rate of Rs. 16-14-0 for every six of the quart bottles sold. We are unable to find anything in the Travancore-Cochin Prohibition Act, 1950, or the rules framed thereunder which militates against this conclusion. 9. No. 14 of the "conditions and stipulations" says that "true accounts shall be maintained from day to day in ink in the Form in Annexure B". It was submitted on behalf of the petitioner that the entries to be filled up according to Annexure B are not in consonance with the contention of the State. 9. No. 14 of the "conditions and stipulations" says that "true accounts shall be maintained from day to day in ink in the Form in Annexure B". It was submitted on behalf of the petitioner that the entries to be filled up according to Annexure B are not in consonance with the contention of the State. We do not agree; but even if such is the case, the "conditions and stipulations" of the licence should certainly prevail over any form for the maintenance of accounts that has been prescribed by the State. 10. In a recent English case, Trow v. Inde Coope (West Midlands) Ltd., and another (The Times, May 3, 1967), a writ issued in the from prescribed by R. S. C. Ord. 1, R.9, came up for consideration. The form said: "This writ may not be served more than twelve calendar months after the above date (the date of issue) unless renewed by order or the court". According to the direction on the form September 10, 1966 would have been the last day on which the writ could have been served validly whereas by Ord. 6, R.8 (1), September 9, 1966 would have been the last day. Lord Justice Harman said that since the form and the rule were manifestly irreconcilable, and it was therefore necessary to choose between them, the rule must prevail. The same principle should apply if there is a conflict between the "conditions and stipulations" of the licence and any form prescribed for the maintenance of accounts in pursuance of the licence. 11. In the light of what is stated above this writ appeal has to be allowed and we do so. In the circumstances of the case, however, there will be no order as to costs. 12. The State has a contention that O. P. No. 3378 of 1964 was not maintainable as the gallonage fees demanded have been paid by the petitioner without any protest on his part. In the view we have taken it is unnecessary to consider this question and it is not considered in this judgment.