K. J. Thomas v. State of Kerala — 1990 DIGILAW 439 (KER)

JUDGMENT K. Sukumaran, J. 1. These appeals are by the arrack traders. In the abkari auctions of the years 1980-81 and 1981-82, they willingly participated. Their bids were accepted. Shops were opened. The trade was started. Later came the rub. According to the traders, they did not have as copious a supply of arrack for distribution among their patrons, (of course, for money). The resultant loss, or diminution in profits, is to be compensated by the Government who defaulted delivery of the indented quantity of arrack, - they demanded. The Government did not budge. It pressed for payment of the kits. The demand, not honoured, was soon followed by the coercive process of revenue recovery. (That process is available under the relevant Act for realisation of abkari dues). It became too hot for the traders. They sought to resist it with the aid of the Code and orders of the Court. Interim injunction was so obtained in suits for permanent injunctions instituted on payment of nominal court fee. Ultimately, the suits ended in dismissal. That did not deter the tour to the appellate court. Interim injunctions were granted by this Court which entertained the appeals; in some cases conditionally; and in some others wholly unconditionally. 2. In the mean time, a Bench decision of this Court considered some contentions raised by the community of contractors who approached this Court by writ petitions. The decision (Issac v. Asst. Excise Commissioner, 1984 KLT 88 ) held that the Government's failure in the supply of arrack, disabled it from demanding the auction amount. The demands were declared illegal; the recovery process was halted. The writ petitioners got away that way. That was not the end of it. The State lookup the matter to the Supreme Court. Special Leave was granted. The traders had to part with some money. The Supreme Court stipulated payment of moiety while disposing of the interlocutory petitions filed by the Government for the stay of the operation of the judgment of the High Court. 3. Ordinarily, when a contention has been evaluated by this Court and a decision rendered thereon, that will be taken as the law governing similar transactions. A single Judge is doubtless bound by the decision. If he entertains a doubt on the correctness of the decision, the matter can be referred to a Division Bench. 3. Ordinarily, when a contention has been evaluated by this Court and a decision rendered thereon, that will be taken as the law governing similar transactions. A single Judge is doubtless bound by the decision. If he entertains a doubt on the correctness of the decision, the matter can be referred to a Division Bench. The Division Bench also cannot take a view different from that which had been already declared by another Bench. Judicial discipline and institutional decorum demand that even in the case of serious doubt about the correctness of the conclusion taken on the earlier occasion, it can only direct the matter be considered by a Full Bench of the Court. That should have been, normally, the procedure to be adopted in this batch of appeals, even if we entertained - and, as will be presently demonstrated, we do entertain- serious and strong views that the earlier decision is incorrect. Things will be, however, different if any other or additional point is involved in the appeals, and if it is so strong and fundamental as to tilt the balance in favour of the State. One such point had been pointedly raised and prominently discussed by the courts below. The decision was adverse to the contractors. If that decision is sustained, the dismissal of the suit will have to be maintained, Issac's case notwithstanding. In that eventuality, the appeals and the suits themselves would stand dismissed. 4. The limited contention is based on R.6(26) of the Kerala Abkari Shops (Disposal in Auction) R.1974. It is agreed at all hands that this rule had not been relied upon by the State while defending the attack on the recovery process in the earlier batch of writ petitions. If the question had been properly pleaded, if an issue has been rightly raised, and if a discussion and decision have been made, this Court is duty bound to devote adequate attention to it. 5. It is better to demonstrate the pleadings, issues and discussions with reference to specific facts and materials. A single and typical case would better serve for the demonstration. (Traversing slushy areas of different sets of pleadings, may only slow down the survey and impede the progress in the discussion obligated in that background). 5. It is better to demonstrate the pleadings, issues and discussions with reference to specific facts and materials. A single and typical case would better serve for the demonstration. (Traversing slushy areas of different sets of pleadings, may only slow down the survey and impede the progress in the discussion obligated in that background). We select for that purpose, A.S.No.293 of 1983 and the suit O.S.No.213 of 1981 of the Sub Court Kottayam, from which the appeal has been preferred. 6. K. J. Thomas (Thomas Jacob) was the plaintiff in that suit. He had bid the shops in Kanjirappally Abkari Range for Rs.40,48,000/-. The notification under which the abkari auction was held was published in the Gazette dated 22-2-1980. The terms and conditions of auction are gatherable from that notification. One important condition is the supply of arrack by the Government. A dichotomy is involved in the supply portion. The Government 'shall' is one portion; it may is another portion. The former obligation was carried out in full; the latter only in part. The State has got its own reasons about the background in which supply became so constricted. We are unconcerned about the morality of State behaviour. The legality is, however, a question which requires examination with some concentration. The amounts involved are not small. Consequently, alike for the individual plaintiff and the common defendant State, the matter is of great importance. 7. In the present case, the contention based on R.6(26) had been specifically referred to in Para.4 of the judgment. It reads: "Rule 6(26) says that no remission or abatement of the rental shall be claimable by the licensee on any account whatsoever." 8. As noted earlier, the conclusion come to by the court below is that the suit is not maintainable at all, in view of the peremptory prohibition against an abkari contractor from claiming damages against the Government in relation to the liabilities incurred under the auction arrangement. The soundness of the view so taken by the court below comes up for adjudication under these auspices. The amount of bid, the quantity of arrack to be supplied under the two categories, and the shortfall that had happened, and the monetary involvement,, if any, of the default, naturally vary from case to case. The finding on the common theme, however, is decisive of the fate of these appeals. 9. The amount of bid, the quantity of arrack to be supplied under the two categories, and the shortfall that had happened, and the monetary involvement,, if any, of the default, naturally vary from case to case. The finding on the common theme, however, is decisive of the fate of these appeals. 9. The setting in which the salient provisions occur in the Abkari Act and the Rules may generally be referred to, though in a more compressed space than had been attempted on earlier occasions. That is for the reason that the pointed controversy lies in a limited range. 10. R.6(26) of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974, as it stood at the time, can be usefully extracted, lest any part of it, should be overlooked by the court: "Rule 6(26): No remission or abatement of the rental shall be claimable by the licensee on any account whatsoever." (emphasis supplied) 11. Apart from the reliance on the earlier Division Bench, it was contended that the rule is unfair, unreasonable and irrational, and consequently should be shot down by the court, as an alternate submission. The contention is important and deserves to be tackled before its scope and ambit of the rule is examined. If the rule cannot survive an attack on the ground of constitutional incompatibility, that will extinguish the vitality of the State's defence. A consideration whether a particular law is valid or not, is a matter for the court to declare. We therefore proceed to consider that constitutional argument first. 12. There is a two pronged attack on the rule: from the point of view of Art.14 and from the view point of Art.19. 13. While considering the validity of a rule which impinges upon the right of a citizen to carry on a trade, all relevant and attendant facts connected with the trade will have to be considered. A bottle of arrack is not the same thing as a pot of potatoes. 14. Arrack naturally claims to be a kin of its liquor cousins. Possibly, a poor relation. It has, however, a vitality characteristic of the poor when they are not totally over powered by another powerful spell. It is better to learn about it from those who had occasion to know it at close quarters, and taste its use and test its users. Possibly, a poor relation. It has, however, a vitality characteristic of the poor when they are not totally over powered by another powerful spell. It is better to learn about it from those who had occasion to know it at close quarters, and taste its use and test its users. Some of the early records of clearer observations have been made by foreign rulers. Indigenous people were indifferent calligraphers; and many of them were not literate enough, even after Caxton had made a revolution in the dissemination of knowledge. 15. The observations of a European administrator appear to be apposite. He stated his views from the angle of the Europeans: "The greatest enemy to the Europeans was the sun, aided by the intoxicating arrack of the country. Besides the poison contained in the spirit, its deadly effect on the brain deprived its victim of all prudence, and he fell by the roadside in drunken sleep; the pitiless Indian sun completing the deadly work the arrack had begun." (See 'Fort St. George Madras' By Mrs. Frank Penny, P. 172) To a Royal Commission appointed in 1863 to examine the sanitary state of the Army in India, Florence Nightingale gave an answer to the question, why the record of death was so terrible as indicated by the figures. She supplied a lengthy series of observations, the grave men of which she summed up as: Drains and dram-drinking. (See THE SAHIBS AND THE LOTUS, The British in India by Michael Edwardes P. 253). 16. In reality, therefore, the Indian situation in relation to a potable alcohol like arrack is entirely different from what had been described by Bernard Shaw when he said that drinking is the chloroform that enables the poor to endure the painful operation of living. (The Supreme Court referred to those Shavian observations in P.N. Kaushal v. Union of India, AIR 1978 SC 1457 ). There is all the difference between a milder brew in a cooler clime with slower consumption and the agile gulp made in a torrid zone to get a quicker kick. The consumer and his family would be in perpetual misery. Pictures have been drawn of "wailing workers, weeping wives and crying children" when a victim succumbs to a killer brew. Even during their life,, the alcoholic, unmindful of consequences, "snatches from his family members, their two morsels, their health, nutrition arid standard of living." 17. The consumer and his family would be in perpetual misery. Pictures have been drawn of "wailing workers, weeping wives and crying children" when a victim succumbs to a killer brew. Even during their life,, the alcoholic, unmindful of consequences, "snatches from his family members, their two morsels, their health, nutrition arid standard of living." 17. Courts are not directly concerned with the philosophy of prohibition or its implementation. They have to look into the Constitution, and oversee the" functioning of those who discharged powers and duties conferred on or assigned to them, under the Constitution. On the scheme of the Constitution in its various manifestations in relation to alcohol, consumable and industrial, thoughts have been expressed in the decisions ranging from Balsara's case, AIR 1951 SC 318 to Synthetics and Chemicals Ltd. v. State of U.P., 1990 (1) SCC 109 . The decision in Narula's case, AIR 1967 SC 1368 need not dim the vision in the light of the later blaze of light showered by Har Shankar's case, AIR 1975 SC 1121 . Synthetics case supra, noted the wider observations seen in Narula's case supra (where it was held that there was right to do business even in potable liquor) but made a guarded statement that it is not necessary to say whether it is good law or not. This Court need not cry a halt in the formulation of the principles, when the clarity is available from the later decision in Har Shankar's case. 18. Some propositions of the law on liquor admit of no doubt. There is no fundamental right to do trade or business in intoxicants. The State has the right to prohibit, even absolutely, every form of activity in relation to intoxicants. Elimination and exclusion from business is inherent in the nature of the State's right. No person has an absolute right to deal in liquor. All forms of dealings in liquor have been treated as a class by themselves by all civilised communities. The American position is stated pithily in American Jurisprudence, Volume 38: "higher the fee is imposed for a licence, better is the regulation." 19. Some earlier decisions of the Supreme Court referred to the police power of the State in keeping arrack trade cribbed cabined and confined. Synthetics case would clarify that in the scheme of the Constitution of India, reference to police power would be inapposite. Some earlier decisions of the Supreme Court referred to the police power of the State in keeping arrack trade cribbed cabined and confined. Synthetics case would clarify that in the scheme of the Constitution of India, reference to police power would be inapposite. A 'sovereign power of the State' would be a better expression, according to that decision. No denudation or diminution in the power of the State is envisioned by this preferential reference to the State's power as a sovereign one in contra distinction to the police power. 20. Different considerations arise when the commodity concerned is potable alcohol used for human consumption on the one hand and industrial alcohol on the other. The difference has been demonstrated by the Synthetics case, particularly in relation to the imposition of tax on the commodity of industrial alcohol. 21. This peculiar nature of activities in alcohol trade, especially the indigenous potable type, has to be borne in mind while discussing the spirited questions. The background of an unfavourable attitude of the Constitution and the State towards liquor should not be missed at all. Our Constitution, in particular, indicates the direction in which the State has to proceed. Art.47 declares prohibition as the ultimate goal. Art.47 has also a bearing to the extent it strives to better the health of the people and the nutrition for making them better human beings, physically and culturally. An addiction to liquor creates imponderable obstructions in the realisation of the Constitutional ideals. These Constitutional factors and forces have their projections in processing the contentions of the abkari contractor. Some of the States like Bombay and Madras had introduced total prohibition in the implementation of the constitutional objectives. Idealism, however, yielded to the requirements of the State for larger funds in connection with its activities. The perpetual conflict between a Government desirous of universal Temperance and Chancellor of Exchequer who wants to make the best from the liquor trade to fill up his coffers, had been noted even in countries which do not have a tradition of antipathy to liquor or a constitution commanding a progressive realisation of prohibition. Even before the advent of the Constitution, this conflict had been noticed by administrators. Even before the advent of the Constitution, this conflict had been noticed by administrators. Michael Edwardes referred to in his book already alluded to above, that conflict in the following words: "For, as might be expected, it is practically impossible to encourage and restrict an evil at the same time. Government sells the licence to sell drink in the bazaar, and orders the men not to profit by it. The present law is like lighting a fire and charging it not to burn anything." The courts would hot be sorry if the scheme of the Act and the Rules framed thereunder and the executive orders passed in furtherance of the statutory provisions, all go to discourage even in a deadly manner, those who dare to dabble in that trade. In other words if a provision is even destructively discouraging in relation to the actual carrying on of the trade, the heart of the court will not vibrate with a sympathy, nor will it fill the well of the eyes. 22. We shall now consider the contention that under R.6(26), the contractors cannot have a cause of action at all against the State. 23. Before embarking upon that difficult task, the scheme of the Abkari Act may briefly be referred to. 24. S.3 of the Act is in tune with this Constitutional vision. The Section refers to the privilege of vending arrack among other things. Auction is a process by which that privilege is parted with by the State, of course, for an attractive price. 25. 'Rental' is defined under S.3(23) as rental payable under S.18A in consideration of the grant of an exclusive or other privilege of manufacturing, supplying or selling any liquor or intoxicating drugs. S.18A deals with the Government's power to grant exclusive privilege to any person or persons. The rental therefore is what has been stipulated in the accepted bid, adverted to in the agreement executed and reflected in the licence issued thereafter. 26. The Act understandably leaves it to the rules to work out the details of the privilege of the vending. Abkari Shops (Disposal in Auction) Rules have been framed for the effective implementation of the policy of parting with the privilege. 27. Chapter V contains general conditions applicable to licensees including those dealing in arrack. 26. The Act understandably leaves it to the rules to work out the details of the privilege of the vending. Abkari Shops (Disposal in Auction) Rules have been framed for the effective implementation of the policy of parting with the privilege. 27. Chapter V contains general conditions applicable to licensees including those dealing in arrack. Under R.5(3)(a), the officer conducting the sale shall cause notice regarding sale to be read out in the auction room before he commences the sale. When the bid is accepted, he has to execute initially a temporary agreement and later a permanent agreement. The agreements also referred to the notification in pursuance of which the auction is held. Under R.6(25). the amount for which privilege has been purchased shall be payable by the licensee in the manner prescribed therein. R.5(18) stipulates that the amount for which the privilege is sold, shall represent the dues for the period from 1st April of the year to 31st March of the year following. The obligations of the licensee include the duty to furnish returns and information to the Department and to maintain an inspection note book for recording the remarks of the departmental officials. It is after a fairly exhaustive enumeration of the conditions under which the successful bidder is to operate, that sub-rule (26) of R.6 has been introduced. It reads: "Rule 6(26) No remission or abatement of the rental shall be claimable by the licensee on any account whatsoever." 28. The term "under any circumstances whatever" is extremely wide, and engulfs all enumerable or imaginable types of circumstances and reasons. Neither the qualitative charisma of the reason nor the quantum-mass of the aggregate of different reasons will have the slightest impact in slashing or submerging the rental liability declared in the auction hall as ultimately approved of by the Governmental authorities. The rule no doubt is rigid and hard. Such rigidity and harshness, which may pose questions of fairness, rationality or reasonableness in cases of ordinary trade, will not be frowned upon, when used in relation to the liquor trade. As noted earlier the more drastic the provision is, the better it is for the public weal. We reject the contention that it offends the Constitutional rights of the appellants. 29. As noted earlier the more drastic the provision is, the better it is for the public weal. We reject the contention that it offends the Constitutional rights of the appellants. 29. The above provision has the effect of barring at the threshold, an allegation or substantiation thereof, as regards adventitious factors justifying a downward revision or virtual write off of the rental liability incurred by the abkari auctioneer under the successful bid he could make with the Government. 30. One other rule is of crucial significance. Under R.6(39) of that rule, the licensee shall be bound by all the rules which have been passed under the Abkari Act and which may hereafter be made under the said Act or any law relating to Abkari Revenue which may hereafter be made. This sub-rule is very important. Even by way of additional precaution and greater emphasis, a binding nature of the rules on the auction purchaser is declared therein. The rules so binding on him will include R.6(26) referred to above. If he has bid the auctions, saddled with such statutory liabilities, it will not be open to him to challenge the very auction or the validity of the rules after his bid has been accepted, the agreement has been executed, the licence has been granted, and the trade has been conducted. 31. This Court had occasion to reiterate the above principle in various decisions. A Division Bench of this Court consisting of K. Bhaskaran, Ag. C.J. and P.C. Balakrishna Menon, J. said so in W.A. No. 43 of 1985. It observed: "The appellant having bid in abkari auction and obtained a licence.........he cannot now say that he is not bound to pay the amount, for each of the instalments as fixed in the agreement.........". Sivaraman Nair, J. expressed similar views in O.P.No. 1900 of 1984. The learned Judge rejected the contention that the clarification given by the State Government in relation to the auction for the succeeding years was a violation of the fundamental right or of R.8 or of the findings of the Division Bench in 1984 KLT supra; and proceeded to observe: "The petitioner having been given notice, in unmistakable terms of the sale it is for him to decide as to whether he 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 observations are reiterated by the learned Judge in Krishnan v. State of Kerala, 1985 KLT 1159 . Similar ideas have been expressed by K.P. Radhakrishna Menon, J. in K.K. John v. State of Kerala, 1985 KLT 478 and by P.C. Balakrishna Menon, J. in Devassya v. Asst. Excise Commissioner, 1987 (1) KLT 244 (See in particular, the observation contained in page 15). It reads: "I do not also see any force in the submission that the State was in a domineering position and the petitioners did not have an equal bargaining power. They had participated along with others in the public auctions held for sale of the privilege of vending arrack in the shops concerned as licensees of the Government. The terms and conditions of the auction were published well in advance and the agreements entered into between the parties are unconformity with those published terms. Having participated at such a public auction on such terms and conditions, it is not open to the petitioners now to contend after the period of the contract and after the contract itself had been performed that it was an unconscionable contract to resist enforcement of the liability arising therefrom." 32. It was contended on behalf of the appellants that obligation to supply arrack is fundamental and that R.6(26) should be given a restricted interpretation. If the licensee is to keep open a shop under R.6(14) and to maintain sufficient stock to meet the local requirements, the emphasis on the supply of stipulated quantity of arrack is clear, according to the appellants. The argument does not advance the case of the appellants. 33. It is true that a reduced quantity of supplied arrack results in a deflection -a downward one - of the abkari contractor. However he who enters the arena of arrack vending, must have reckoned, or is expected to reckon, all arracks, be they pin-pricks or sphere-thrusts. Quite often, with the connivance of obliging officialdom, as is complained of generally, liquor barons emerge stronger and stronger after successive auctions. However he who enters the arena of arrack vending, must have reckoned, or is expected to reckon, all arracks, be they pin-pricks or sphere-thrusts. Quite often, with the connivance of obliging officialdom, as is complained of generally, liquor barons emerge stronger and stronger after successive auctions. The tricks of the trade are well known to them. Even chemical compositions virtually wrecking limited safety in the arrack supplied by the Government are recklessly altered by illegitimate exercises in the manipulative preparations of the arrack. Liquor tragedies are not unknown even in this State, whether it be in the coastal belt of Vypeen or in the uplands of Punalur. Judicial decisions which furnish factual details of such cruel tragedy are available in Crl.A.Nos. 132,133,134 & 135 of 1985 & 47 of 1986. If that be the advantage he bargains for, or the calculated risk which he is prepared to run, he cannot later complain about the losses or prejudices, however, grave or serious they may be, when he had been altered about his attenuation of his rights tending to zero, as a result of the operation of R.6(26). 34. We have already held that the background of the legal developments concerning liquor and the working of the Constitutional scheme for this almost half century, does not entitle the abkari contractor to have a protective umbrella from the Court of Law. General principles relating to the unfairness in contract or unequal bargaining between the contracting parties, all will be irrelevant when we deal with a dangerous trade in arrack. 35. The notice, relating to the auction during the relevant period contained in the crucial statement in its last paragraph: "The auction sale will be held subject to the conditions set up under the Abkari Shops (Disposal in Auction) Rules, 1974". It is this notice, which is read by the auctioning authority, to the intending bidders. One who is expected to read through the Rules and one who is amongst the captive audience listening to the notice and the reference to the rules, cannot thereafter have another alibi for ignoring or impugning R.6(26). 36. The lethal provision in the form of R.6(26) however, happened to be missed by the Division Bench when it declared the law in 1984 KLT 88 supra. The suits are cases where reliance had been so placed on the clause. 36. The lethal provision in the form of R.6(26) however, happened to be missed by the Division Bench when it declared the law in 1984 KLT 88 supra. The suits are cases where reliance had been so placed on the clause. Reliance by the State on the clause was found to be justified by the courts below. In view of the strong springs of logic, the defence of the state does not dry up. The provision unfortunately happened to be overlooked by the Division Bench when it rendered the decision in 1984 KLT 88 supra. 37. We are clearly of the view that the decision in 1984 KLT 88 does not help the appellants. 38. Another ground on which the Division bench granted relief to the abkari contractors was promissory estoppel. Here again, a learned Judge of this Court, Radhakrishna Menon, J. took the view that the Division Bench was clearly in error in the light of the pronouncement of the Supreme Court in Chingleput Bottlers v. Majestic Bottling Company, (1984) 3 SCC 258 , on the promissory estoppel. 39. We are in agreement with the above view. Here again we must indicate that notwithstanding our strongest dissent (simultaneously with profound respect for the Division Bench) with the view of the Division Bench, we would have remitted the matter for consideration by a larger Bench, if it had become absolutely essential to pronounce on that point. The overlooking of the salient provisions by the Division Bench was emphasised in John v. State of Kerala, 1985 KLT 478 = 1985 (2) ILR Kerala 385 by Radhakrishna Menon, J. The portion of the judgment reads: "23. Sub clause (26) of R.6 reads: No remission or abatement of the rental shall be claimable by the licensee on any account whatsoever. "On any account whatsoever" in the context in which they are used, mean that under no circumstance the grantee is entitled to claim any remission or abatement of the rental, he has agreed to remit on his being granted the privilege to vend arrack in terms of S.18A(1). And that a licensee is bound by the above rule is further indicated in sub clause (39) of R.6. And that a licensee is bound by the above rule is further indicated in sub clause (39) of R.6. The said sub clause provides: "The licensees shall be bound by all the rules which have been passed under the Abkari Act and which may hereafter be made under the said Act or under any law relating to Abkari Revenue which may hereafter be made." 24. These aspects, the Division Bench had no occasion to consider and therefore I am of the view that the decision in lssac's case ( 1984 KLT 88 ) should confine to the facts of that case. It has no application here." We are clearly of the view that R.6(26) blasts the edifice on the case as attempted by the Abkari dealers. It would then follow that the suits will entail dismissal. We accordingly uphold the judgments of the court below when it held that the plaintiff cannot claim any abatement or remission in the rental due from them. On this sole reason the appeals will have to be dismissed. We do so. The State will have its costs including Advocate Fee which we fix in the sum of Rs.1,000/- in separate set in every case. 40. The appellants apparently felt like having a walk over in their fight against the State, as they were equipped with a powerful missile in the form of a decision in Issac v. Asst. Excise Commissioner, 1984 KLT 88 . Consequently the correctness of the decision was also canvassed. After considering the question in great detail, we are of the view that the decision does not lay down the correct law, in its interpretation of R.8(1) and (3). If the cases had to be decided on the basis of that rule, judicial decision and institutional propriety would have impelled us to refer the matter for consideration by a larger bench. It is not necessary to resort to that course, in view of the conclusion already recorded. Our views on Issac's case can, however, be indicated. 41. The Division Bench noticed the fact that the State was unable to amass the requisite quantity of arrack for distribution to the various dealers, over and above the mandatory quota. It observed that "one could appreciate the predicament in which the State was placed..........". Our views on Issac's case can, however, be indicated. 41. The Division Bench noticed the fact that the State was unable to amass the requisite quantity of arrack for distribution to the various dealers, over and above the mandatory quota. It observed that "one could appreciate the predicament in which the State was placed..........". The findings in the case rule out an arbitrary or vindicative exercise of a discretionary power by the State or its agencies. There was a sheer in ability on the part of the State to commandeer arrack of the requisite quantity for distribution among the licensees. Consequently, no question of an arbitrary exercise of the power in the matter of distribution could be posited. The observation of the Division Bench contained in Para.7 at page 94 reads: "Even then, that discretion cannot be exercised arbitrarily or capriciously but only reasonably and fairly on an objective assessment of all the aspects of the matter with particular reference to the statutory duty, if any, and the obligation undertaken by the Assistant Excise Commissioner under the licence..........". With great respect, that would not be an applicable preposition to the facts of the case. It will be an entirely different situation, if the authorities make a discrimination in the matter of distribution, even when arrack was a plenty or available in reasonable quantity. The exercise of the discretion in distribution may then appear unfair and unreasonable, if facts justify it, whatever be the legal effect. But that proposition has no bearing on the interpretation of the terms and conditions of the licence as is suggested in the above observation. The amplitude of the State's obligation under the licence will have to be determined de hors hypothetical considerations of abuse of powers. 42. The Division Bench noted the vital distinction in the employment of 'shall' and 'may' as contained in the R.8(1) and (3). As regards the monthly quota, the State shall supply it. The Assistant Excise Commissioner may permit issue of the arrack in excess of the monthly quota. When the different words are employed in the same provision, the obvious difference should be normally assigned to the two different words. We have been taken through the entire reasoning contained in the judgment in Para.8 to 10, for making 'may' as strong as 'shall'. When the different words are employed in the same provision, the obvious difference should be normally assigned to the two different words. We have been taken through the entire reasoning contained in the judgment in Para.8 to 10, for making 'may' as strong as 'shall'. With great respect, we are unable to subscribe to the reasoning and conclusion as contained in the judgment. 43. Para.8 and 9 have extracted passages from well known authorities like Maxwell and Craies. The principles have to be applied with circumspection and care. If adequate attention had been given to the cases actually decided in relation to the interpretation involved, the conclusion would have been entirely different, is our impression. The one decision which projects the difference in the discussion is the ancient one of the Bishop of Oxford's case. ((1879-80) 5 App. Cas. 214). Its report is now available in a handy manner in Frederic Guilder Julius v. The Right Rev. The Lord Bishop of Oxford; The Rev. Thomas Thellusson Carter, (1874-80) All E.R. 43. 44. The question which arose in Julius's case, (1879-80) 5 Appeal Cases 214, was whether the court of Queen's Bench was right in issuing a writ of mandamus to the Bishop to issue a commission under the Church Discipline Act to enquire into the charge against a rector of Parish. The relevant section opened with the words: "It shall be lawful". Omitting the words which are unnecessary for the purpose of this case, the section would read: "Section 3: In every case of any clerk in holy orders who may be charged with any offence against the Laws Ecclesiastical ............it shall be lawful for the bishop..........to issue a commission.............". The Privy Council observed that "there was something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so". It was for the court to consider whether in a given situation there was a power coupled with a duty. It was for the court to consider whether in a given situation there was a power coupled with a duty. After stating the principle thus, a survey of the case law was made. One case referred to was Alderman Backwell (1 Vern. 152) decided by Lord Keeper North. Under that statute, the Chancellor "may grant a commission" of bankruptcy in specified situations. The creditors petitioned for such a commission pointing out that they would have been obviously exposed to prejudice and hazard if it had not been granted. It was held that the power was reposed in the chancellor for the benefit of those who asked for its exercise. Accordingly, the Chancellor was bound to exercise that power. This and other cases (King v. Barlow, Salk. 609 and King v. Havering-atte-Bower, 5B & A 691)give the thrust on the public benefit and its being decisive in casting a duty to exercise a power, notwithstanding that fact that the word employed in the statute is only 'may'. The principle therefore is that even when words are only empowering, in public statutes they have a compulsory force where the things are to be done for the public benefit or the advancement of public justice. It is indeed difficult to posit a case of public benefit or advancement of public justice, when it deals with the rights and obligations of an abkari contractor who participates in an auction, in which he is called upon to reckon factors influencing his individual fortune. No public interest or public justice as such is involved in such a situation. 45. The decision of the Supreme Court referred to in the judgment in Para.10 is a converse case where the word 'shall' employed in the Bombay Industrial Relations Act, 1946, in that context, was held to be not mandatory but only directory. We are not concerned with such a situation in the present case. One other decision relied on by the Division Bench is State of Uttar Pradesh v. Jogendra Singh, AIR 1963 SC 1619. Mark the words contained in that decision: "There is no doubt that the word 'may' generally does not mean 'must' or 'shall'." It was thereafter that the court proceeded to observe that the word 'may' is capable of meaning 'must' or 'shall' in the light of the context. Mark the words contained in that decision: "There is no doubt that the word 'may' generally does not mean 'must' or 'shall'." It was thereafter that the court proceeded to observe that the word 'may' is capable of meaning 'must' or 'shall' in the light of the context. That context too was indicated in the next sentence, as one where a discretion is conferred upon a public authority coupled with an obligation. This observation has to be understood in the light of the legal position which had emerged over centuries. We have noted that the situations are all cases where public interest or public justice had to be protected or promoted. Such is not the present case. The only other situation indicated in that decision is where the word 'may' is used out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed. We cannot, with great respect, persuade ourselves to assume that the Assistant Commissioner of Excise is such a high authority to impel the Legislature or the rule making authority to employ the term 'may' out of deference for him. 46. In Para.11, the Division Bench attempted to translate the Malayalam word Malayalam type 'contained in the licence as: "that the Assistant Excise Commissioner would permit. Here again with respect, we disagree. The word is equivocal. It is a translation of the words 'may permit' as contained in the rules. R.8(1) reads: "The monthly quota which shall be allowed for the shop that is put up to auction shall be announced by the auctioning officer. The Assistant Excise Commissioner may however permit the issue of arrack in excess of the announced monthly quota ..........". So understood, the translation naturally and plainly should be the Assistant Excise Commissioner may permit. Reliance was placed on the last paragraph relating to the notice in the auction reading: "The auction sale will be held subject to the conditions set up under the Abkari Shops (Disposal in Auction) Rules, 1974." It does not in anyway advance the case of abkari contractors. On the contrary, it precludes them from claiming larger rights than those visualised under the rules. On the contrary, it precludes them from claiming larger rights than those visualised under the rules. That provision does not automatically lead to the conferment of a right on the successful bidders to claim the discretionary quota in addition to the mandatory monthly quota, announced by the Assistant Excise Commissioner. There is absolutely no justification for assuming the existence of a contract for the supply of the arrack in excess of the monthly quota, when the relevant provisions of the statute, rules, agreement and the licence do not provide for the same. The Division Bench was aware of the absence of a specific contract granting a right to issue arrack in excess of the announced monthly quota. This is evident from the last sentence of Para.11 reading: "Even where such rights and obligations are not specifically mentioned in the contract,................". 47. The Supreme Court had indicated that a bidder in an abkari auction could not be permitted to avoid contractual obligations voluntarily incurred and to work the licences on terms as he finds convenient. Decisions about the exercise of a power by an authority in relation to an ordinary trade could not have any application, when no legal right had been posited on the materials and in the peculiar constitutional set up in relation to trade in intoxicating liquors. Looked that way, the later decision of the Supreme Court in State of Haryana v. Jage Ram, MR 1980 S.C. 2018, contains helpful observations to discountenance the plea put forward by the abkari contractors. It was emphasised in that decision that the amount which the contractors agreed to pay to the State Government under the terms of the auction was neither a fee nor excise duty. The State could have as well stipulated a lumpsum payment, and directed the issue of licence to be conditional on the payment of such sum. The contractor was obliged to pay the amount as the price of a privilege with the State parted with in favour of the contractor. We are of the view that Issac's case does not lay down the correct law. The appeals are disposed of as above with the observation as contained in the judgment.