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1984 DIGILAW 180 (KER)

KRISHNAN v. STATE OF KERALA

1984-07-06

V.SIVARAMAN NAIR

body1984
Judgment :- 1. The petitioner is an abkari contractor. He bid some Arrack Shops in Chathannur Range for an amount of Rs 55,20,000 and in Quilon Range for an amount of Rs. 1,52,62,100. These shops were bid during the previous year for Rs. 15,25,300 and Rs. 74,50,600respectively. The petitioner submits that the State is obliged under R.8 of the Kerala Abkari Shops (Disposal in Auction) Rules to supply as much of additional quota of arrack as the contractor asks for and if such additional quantity of arrack is not supplied, the State is not entitled to demand or recover the instalments of kist from the petitioner. There is no case for the petitioner that the monthly quota of arrack, which it is obligatory for the respondents to supply the petitioner, has not been given to him. His submission is that he bid the shops for high amounts on the basis of the representation that whatever additional quantity of arrack was demanded by him, would be supplied by the State. The petitioner relied on the decision reported in 1984 KLT. 88 in this regard. A Division Bench of this Court held in that decision that if the conditions of sale and the conditions of the licence indicated an obligation on the part of the State to supply such additional quantity of arrack as was demanded by the contractor, but was not so supplied, the State will not be entitled to demand the entire amount for which the privilege of vending arrack was auctioned out to the contractor. 2. Apparently, as a consequence of this decision, the Government issued orders altering the terms of the special conditions of licence. Along with the notice of programme of auction dated 20th February 1984 and published in Kerala Gazette dated 22nd February 1984 the guidelines for the conduct of auction were also published. 2. Apparently, as a consequence of this decision, the Government issued orders altering the terms of the special conditions of licence. Along with the notice of programme of auction dated 20th February 1984 and published in Kerala Gazette dated 22nd February 1984 the guidelines for the conduct of auction were also published. Some of the clauses in the guidelines so published were: "(a) it should be announced that there is no obligation at all on the part of the Government to give arrack in excess of the announced quota, (b) additional quantity over this quota might be supplied free of any commission according to availability." By G.O. (Ms.) 31084/TD., dated 22nd February 1984 the licence conditions were amended with the changes to the effect that the Assistant Excise Commissioner may supply additional quantity of arrack instead of the pre-existing condition that the Assistant Excise Commissioner would permit supply of additional quantity of arrack. The effect of these Government orders dated 22nd February 1984 is that the provisions contained in R.8 (1) of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974, the conditions for auction sale and the special conditions for the licence are brought to be in conformity with each other, making it optional for the Excise Commissioner to issue additional quantity of arrack. This was also made clear by the notification of the guidelines to the effect that it should be announced that there is no obligation at all on the part of the Government to give arrack in excess of the announced quota. In the decision reported in 1984 KLT. 88 the Division Bench proceeded on the basis that even though R.8(1) made it optional for the Assistant Excise Commissioner to supply additional quantity of arrack, required by the contractor, the special condition in the licence and the context in which the contract was entered into indicated that it was obligatory on the part of the State to supply the additional quantities as requisitioned by the contractor. The position now having been altered by the notifications and the amendment of the license conditions referred to above, the petitioner is not entitled to insist that he is not obliged to pay the amount of Kist since the respondents bad not fulfilled their obligation to supply additional quantities of arrack as demanded by him, in addition to the announced monthly quota. 3.The effect of the notification and the Government Orders dated 22nd February 1984 has been considered by me in my judgment in O. P. No. 1900/84. It was held by me in that decision that: "It is precisely for the purpose of avoiding a situation which was visualised in the Bench decision that the State intimates the intending bidders in advance that the bids are not related to any assumed obligation on the part of the State to supply additional quantity of arrack. Counsel for the petitioner submits that this attempt on the part of the State to spell out its obligation in clearer terms is in contravention of the findings of the Division Bench. I plead my inability to accept this submission. 8. The attempt of the State to redefine and clarify its obligation in relation to the supply of arrack and the unconditional request that none of the participants in the auction sale need be led away by an impression that the State will be obliged to supply them as much quantity of arrack as they require, and that bids need not be made on the basis of any such assumption, cannot be understood to be an inroad into any fundamental right of the petitioner. I cannot understand this caution to the intending bidders as a violation either of R.8 of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974, nor as a violation of any of the findings or observations contained in the decision of the Division Bench. The petitioner having been given notice, in unmistakable terms of the sale it is for him to decide as to whether be shall participate in the auction on such terms. As long as the terms are not unconstitutional, illegal, opposed to public policy or contrary to commercial morality, the petitioner cannot insist that the sale by the State of its privilege to vend arrack must be not on its terms but on his terms. That contention is unreasonably far fetched and cannot be countenanced. The Original petition can only be dismissed as devoid of merits and I do so." For the same reasons as mentioned by me in my judgment as extracted above, this Original Petition also has to be dismissed. 4. That contention is unreasonably far fetched and cannot be countenanced. The Original petition can only be dismissed as devoid of merits and I do so." For the same reasons as mentioned by me in my judgment as extracted above, this Original Petition also has to be dismissed. 4. The petitioner has come to this Court within two months of commencement of the business pursuant to the auction sale of the right to vend arrack and obtained stay of collection of a substantial amount of kist. He had participated in the auction with the full awareness of the sale notification and the guidelines published in the gazette that the State has no obligation to supply additional quantity of arrack Such is the condition of his licence also. The conduct of the petitioner in approaching this Court in spite of the altered conditions in the sale notification, guidelines and the licence obtained by him can only be considered as an attempt to abuse the process of this Court. The Original Petition is, therefore, dismissed with costs including Advocate Fees which is fixed at Rs. 500.