Judgment :- Common Order: 1. By G.O.Ms.128, Prohibition and Excise Department dated 08-07-2002, the Government inter alia increased the number of retail vending shops, withdrew the right of renewal of lease, re-categorized shops and refixed the privilege amount. This gave rise to numerous writ petitions. G.O.Ms.129 and 130 were also passed in furtherance of the new Government Policy. 2. Under Clause 5 of the said G.O., the Government directed that the notification for grant of privilege for retail vending of IMFL shall be published on 10-07-2002, the last date for receipt of applications was 18-07-2002 and the drawal of lots to be conducted on 22-07-2002 and if necessary, 23-07-2002 also and the licence should be issued before 31-07-2002. This Clause and the consequent notification are crucial for this writ petition. The Schedule to this Government Order indicated that the newly licensed shops should start functioning from 01-08-2002. The notification is important because by dispensing with the right of renewal the Government had decided to allot all the shops afresh as per G.O.Ms.115 Prohibition and Excise Department dated 22-06-2001. 3. In the writ petitions filed challenging the constitutionality of G.O.Ms.128, 129 and 130, the First Bench of this Court considered the issue of curtailment of the right to renew the licence, the increase in the number of shops, the raise in the privilege amount and the re-categorization of shops. 4. As regards the issues of increase in the shops, re-categorization for the purpose of levy of privilege fee and also increase of deposit of privilege amount, the Division Bench held that they touched upon the fiscal policy of the Government and they had nexus with the object of increasing the public revenue and so, refused to term it as arbitrary. But as regards the repeal of the right of renewal of the existing licensees the Division Bench was of the opinion that this had no nexus with the object of increasing public revenue since the petitioners were willing to get the renewal of the licences on payment of the prescribed privilege fee. Therefore, without quashing any of the three Government Orders the writ petitions were disposed of with the following directions: (i) The Government is at liberty to go ahead with the grant of privilege of retail vending of Indian Made Foreign Liquor to the extent of 7,000 shops as decided. Therefore, without quashing any of the three Government Orders the writ petitions were disposed of with the following directions: (i) The Government is at liberty to go ahead with the grant of privilege of retail vending of Indian Made Foreign Liquor to the extent of 7,000 shops as decided. (ii) But the Government shall adhere to the places of retail vending which have been licenced for the excise year 2001 - 2002 and held by the petitioners and renew the licence of the petitioners for the excise year 2002 – 2003 on the petitioners' remittance of the privilege amount on the basis of the amount fixed in G.O.Ms.No.129, dated 8.7.2002 and also taking into account the re-categorisation of the shops for the purpose of levy of the privilege amount. (iii) The above facility of renewal to the petitioners shall be made available if the petitioners remit the requisite amounts on or before 31st of July, 2002. (iv) For any reason, if there is a delay in renewal, the petitioners shall be entitled to vend the Indian Made Foreign Liquor in retail on payment of the proportionate privilege amount till the grant of licence. (v)The government, the Commissioner and all the District Collectors shall be entitled to re-locate the shops out of 7,000, at the places they feel expedient, but only after safeguarding the shops which are being run by the petitioners. 5. Against this, the existing licensees, who asserted their right of renewal or who sought for quashing of the said Government Orders did not file an appeal. It was the State which filed the Special Leave Petition before the Supreme Court. The Supreme Court disposed of the Special Leave Petition on 26-08-2002 confirming the order of the Division Bench insofar as the clauses (i) and (v) above were concerned, but modifying Clauses (ii), (iii) and (iv) to this extent, since the Supreme Court held that the decision to renew should be left to the appropriate authority to be dealt with in accordance with law. The following paragraph which was in modification of Clause (ii), (iii) and (iv) above is extracted as follows: "The competent authority/the State Government shall consider the application for renewal of the licence in accordance with law and would be entitled to include all conditions in the licence, including the condition of minimum off-take. The following paragraph which was in modification of Clause (ii), (iii) and (iv) above is extracted as follows: "The competent authority/the State Government shall consider the application for renewal of the licence in accordance with law and would be entitled to include all conditions in the licence, including the condition of minimum off-take. Needless to mention that the licensees of the privileges would be bound by the enhancement of the privilege amount as well as the re-categorisation of the shops contained in the three G.O.Ms. referred to ealier. It is also made clear that the facility of the renewal would be available to those of the existing licensees, who had remitted the requisite amount on or before 31st of July, 2002 as ordered by the High Court itself. We also further direct that the privilege fee already paid by these licensees for the Excise Year 2002-2003 shall be duly adjusted. Clauses (i) and (v) of the directions contained in the impugned judgment shall remain as it is." 6. On 30-08-2002, letter No.31093/P&E(VI)/2002-2 ('Letter' in short) was addressed by the Secretary to Government to the Commissioner of Prohibition and Excise. This has provoked the present writ petitions. In particular paragraph No.3, appears to be the "thorn in the flesh." In this paragraph, dates were given for drawal of lots and grant of licence pursuant to the dates given in Clause 5 in G.O.Ms.128 referred to above for publication of notification and last date for receipt of application. 7. Mr.K.M. Vijayan, learned Senior counsel for the petitioners would submit that the notification issued by the Government as per G.O.Ms.128 published on 08-07-2002 giving last date of receipt of applications as 18-07-2002 had become frustrated by virtue of the various orders of this Court and therefore, the Government was bound to issue fresh notifications in respect of the shops instead of issuing fresh notification only for the shops for which applications had not been received as per the aforesaid Letter. Paragraph No.3 in the above-mentioned Letter deals with the revised Schedule for scrutiny of applications for all shops, except the shops which were renewed as per the directions of the Supreme Court, for which applications have already been received; and Paragraph No.4 provided for shops for which applications have not been received and which require re-notification and for which fresh notification has been given as per the dates in the said paragraph. 8. 8. The learned Senior Counsel posed the following questions: (a) Whether G.O.Ms.128 had lapsed, (b) Whether original notification for which the excise year ended with 31-02-2002 require modification, (c) Whether the commencement of the licence from 16-09-2002 renders the existing notification in valid, and (d) Whether when the repeal of renewal of licence described in Rule 14 of the Tamil Nadu require retail vending had been quashed the entire exercise of notification should not be undertaken afresh and whether when drawal of lots is made for the 7000 shops after the change of excise that was originally notified, a fresh notification is not required. 9. The learned Senior Counsel also made it abundantly clear that the question relating to whether the persons seeking renewal had to pay the entire privilege fee for the whole year on or before 31-07-2002 in view of the alternate condition (iv) of the Division Bench order was not canvassed in this writ petition. The petitioners had filed the clarification petition before the Supreme Court and were awaiting orders. He also submitted that though the petitioners may be interested only in one shop they will have to attack the drawal of lots as a whole since the correctness of proceeding with the drawal of lots in respect of the shops mentioned in Paragraph No.3 of the Letter was the issue to be considered and therefore, the petitioners were entitled to challenge the drawal of lots in respect of the shops across the State. 10. The learned Advocate General submitted that it was not open to the petitioners to ride two horses at the same time. On the one hand, he was agitating before the Supreme Court the correctness of the condition relating to deposit of the entire privilege amount on or before 31-07-2002 as a pre-condition for renewal and at the same time he seeks to challenge the drawal of lots which will be done for those shops for which the right of renewal does not exist or has not been exercised. Therefore, when this very same matter is pending consideration before the Supreme Court, it is not open to the petitioners to give it a different mask and project it here. It was also submitted that this very issue is also under consideration before the First Bench of this Court and no interim order has been passed. 11. Therefore, when this very same matter is pending consideration before the Supreme Court, it is not open to the petitioners to give it a different mask and project it here. It was also submitted that this very issue is also under consideration before the First Bench of this Court and no interim order has been passed. 11. It was submitted further by the Learned Advocate General that the directions by the Division Bench and the Supreme Court leave no room for ambiguity and more relevantly the Government Order which fixed the dates for the notification was not quashed. Instead the Government was directed to go ahead with the grant of privilege of retailment which meant that whatever steps had been taken by the Government was not disapproved. The Supreme court also confirmed direction No.1 issued by the Division Bench and therefore, there was no justification to issue a notification afresh. 12. The learned Advocate General further submitted that the prayer as framed cannot be granted and for that purpose relied on Prabodh Verma Vs. State of Uttar Pradesh ( AIR 1985 SC 167 ) where the Supreme Court held that though the High Court and the Supreme Court have the power to mould the reliefs, it does not mean that the draftsman of a writ petition could be haphazard in drafting the prayer and then request the Court to do what he should have done and that in any event, "After all, it was not a petition from a prisoner languishing in jail or from a bonded labourer or a party in person or by a public-spirited citizen seeking to bring a gross injustice to the notice of the Court." 13. It was also submitted by the learned Advocate General that the prayer itself had become infructuous since the drawal of lots took place on 02-09-2002 and therefore, mandamus cannot be granted. It was also submitted that the fact that the repeal of the right to renew was held to be invalid cannot be said to nullify or frustrate the entire notification and in any event it was only a drawal of lots and not an auction and therefore, the question of giving a fresh date does not arise. Here persons remit the necessary amount and thereafter lots are drawn and the person whose name is picked is allotted the right to vend IMFL. 14. Here persons remit the necessary amount and thereafter lots are drawn and the person whose name is picked is allotted the right to vend IMFL. 14. The learned Additional Advocate General added the following grounds to show that the prayer sought for in the writ petitions cannot be granted. In particular, Paragraph No.6 in the affidavit filed in support of the writ petitions was pointed to. The petitioners have clearly stated that they are not canvassing the correctness of fixing 31-07-2002 as last date for payment of the entire privilege fee of the last year since that is before the Supreme Court. It is only the consequential event that is challenged. On behalf of the State it was also stated across the Bar that whoever is issued the licence to vend IMFL shall be given one whole year to function from 16-09-2002 to 15-09-2003. 15. The learned Senior Counsel for the petitioners was asked before the arguments were concluded whether he would prefer the decision in this writ petition to await the final orders on the clarification petition that is said to be pending before the Supreme Court and the Senior Counsel informed that the petitioners invite a decision one way or the other in this writ petition. 16. The case of the writ petitioners proceeds on the basis that the notification issued under G.O.Ms.128 dated 08-07-2002 got frustrated. There does not appear to be any justification for coming to this conclusion. 17. Under G.O.Ms.128, the Government passed the following orders: (1) to increase of shops to 7000 (2) to repeal the provision for renewal of licences (3) to dispose of the 7000 shops as per the procedure laid down in G.O.Ms.115 dated 22-06-2001 (4) to increase the deposit of privilege amount as advance alongwith the application (5) fixing the dates relating to publication of notification, last date for receipt of applications and the conduct of drawal of lots. 18. The Division Bench held that the Government was free to go ahead with the grant of privilege of retail vending to the extent of 7000 shops and also held that they were entitled to re-locate the shops out of the 7000 shops. The only modification they made to the said Government Order was with regard to the right of renewal which they held could not be taken away. The only modification they made to the said Government Order was with regard to the right of renewal which they held could not be taken away. But while the Division Bench held that the Government shall renew the licence of the petitioners upon the petitioners remitting the privilege amount as per G.O.Ms.129 dated 08-07-2002, the Supreme Court modified it by stating that the renewal is not automatic but shall be considered in accordance with law by the authorities. The petitioners' claim is that they have a right to renew. But as per the Division Bench's order this facility of renewal is available only to those persons who remit the requisite amount on or before 31-07-2002, and if "there is a delay in renewal," the petitioners could vend IMFL in retail on payment of proportionate privilege till the grant of licence. 19. The petitioners obviously seek inspiration from the interim orders passed by this Court on 16-07-2002 in writ petitions, which directed the respondents to renew the licence, insofar as the petitioners therein alone as an adhoc measure for a period of three months by payment of a proportionate privilege amount, and G.O.Ms.117 dated 30-07-2002 and G.O.Ms.180 dated 12-08-2002 and G.O.Ms.189 dated 29-08-2002 which were all passed pending the Special Leave Petition before the Supreme Court of India extending the period of the existing licences on payment of proportionate licence fee. By the first Government Order the extension was upto 15-08-2002; by the second Government Order above-mentioned, it was extended to 31-08-2002 and by the third G.O. Upto 15-09-2002. So according to the writ petitioners, their right of renewal has not been lost by not remitting the requisite amount on or before 31-07-2002 since he had been continuously paying the proportionate privilege amount and getting extension. But as stated earlier this is not the grievance of the petitioners here. The grievance is the action of the Government in proceeding to draw lots in respect of those shops for which applications were received based on the earlier notification as per G.O.Ms.128 dated 08-07-2002. 20. There is nothing in the judgment of the Division Bench of this Court or the Supreme Court to indicate that by declaring that the repeal of the right of renewal as illegal the Government Order itself had become invalid and also the notification issued thereunder. 20. There is nothing in the judgment of the Division Bench of this Court or the Supreme Court to indicate that by declaring that the repeal of the right of renewal as illegal the Government Order itself had become invalid and also the notification issued thereunder. The Division Bench had merely disposed of the writ petitions with certain directions and had not quashed the Government Order as illegal or arbitrary. The Division Bench had also specifically directed the Government to go ahead with the grant of privilege of retail vending to the extent of 7000 shops as decided. It is relevant to note that the Division Bench had specifically referred to the entire number of 7000 shops though it had modified the Government Order with regard to those shops for which a right of renewal existed. 21. The Supreme Court also had not made any change in this regard and had clearly stated that the facility of the renewal of the licence would be available to those shops who had remitted the privilege amount on or before 31-07-2002. The Supreme Court also declared that the licensees would be bound by the enhancement of the privilege amount as well as the re-categorization of the shops contained in the three Government Orders referred to earlier. Therefore, barring the renewal clause it is safe to presume that the three Government Orders referred to above received the seal of approval. 22. In these circumstances, it is difficult to accept the petitioners' submission that the notification has become frustrated. In fact, the petitioners have so drafted the prayer that it appears as if that the frustration of the notification is something that is a fait accompli and all that is required of this Court is to issue a writ of mandamus to stop the drawal of lots. This appears to be a classic case of putting a cart before the horse. The notification has not become frustrated and at any rate has not been held by the Division Bench of this Court as well as the learned Judges of the Supreme Court as bad or as having become lapsed. 23. A reading of the judgment of the Supreme Court shows that an undertaking was obtained from the state that they will be willing to consider the grant of renewal of certain conditions. 23. A reading of the judgment of the Supreme Court shows that an undertaking was obtained from the state that they will be willing to consider the grant of renewal of certain conditions. The notification issued as per G.O.Ms.128 was staring before the eyes of the petitioners both while the matter was argued before the Division Bench and again before the Supreme Court. They could have sought for a direction for fresh notification superceding paragraph 5 of G.O.128. They did not. At no point of time had they urged that in the event of their right to renewal being denied to them they should be atleast given an opportunity to participate in the drawal of lots and therefore, a fresh notification alone would meet the ends of justice. This was a point that they could have urged in the earlier writ petitions and in fact ought to have urged. But they did not do so. If this is a matter that can be resolved,it can only be by seeking clarification from the Supreme Court. When the direction is to the Government to go ahead with the grant of privilege for all the 7000 shops there is no need to consider it as a direction to the Government to proceed afresh with the grant of privilege of retail vending. 23. Go Ahead: The meaning of "go ahead" as given in New Websters Dictionary signifies "permission to advance." Therefore, the Government's right to advance further with its decision as expressed in G.O.Ms.128, 129 and 130 was curtailed only with regard to its right to proceed further in respect of those shops where the licensees had the right to renew and had also complied with the condition. According to the petitioners, the requisite amount would only be the total amount less the proportionate privilege fee that had been subsequently paid. The Supreme Court has clarified that the facility of renewal is only for those who paid the requisite amount on or before 31-07-2002 and the privilege fee paid by those licensees shall be duly adjusted. The proportionate privilege fee that was paid by them were all for the period subsequent to 31-07-2002. Therefore, it is extremely doubtful if the petitioners can claim that they are entitled to adjust the amounts paid after 31-07-2002 towards amount that they should have remitted on or before 31-07-2002. The proportionate privilege fee that was paid by them were all for the period subsequent to 31-07-2002. Therefore, it is extremely doubtful if the petitioners can claim that they are entitled to adjust the amounts paid after 31-07-2002 towards amount that they should have remitted on or before 31-07-2002. But this is a matter which is pending clarification before the Supreme Court and the learned Senior Counsel also said that, that was not his grievance in the present writ petition. 24. It is really not clear what the grievance of the writ petitioner is. He has obviously not remitted the amount on or before 31-07-2002. Whether he is entitled to renewal in spite of that is awaiting the decision of the Supreme Court. According to him, because he had filed the writ petitions he did not send in his application as per G.O.Ms.128. It is relevant to note that G.O.Ms.128 is dated 08-07-2002 in which the right to renew the licence was dispensed with. So on and from the date the petitioners knew that his right of renewal has been withdrawn by the Government. 25. Even assuming he had filed the writ petitions challenging these Government Orders he evidently took the risk of not applying, for the grant of privilege on or before 18-07-2002 and rather decided to await his possibility of success in the writ petitions with regard to his right of renewal. He could have boarded two buses. He missed one bus by not remitting the requisite amount on or before 31-07-2002 and the other bus, by not filing his application on or before 18-07-2002 as per G.O.Ms.128. Now finding himself stranded with no possible way to move forward, he has made this last ditch effort to forbear the respondents from proceeding with the drawal of lots on 02-09-2002. 26. I fail to comprehend how that can be done. A notification was published on 10-07-2002 and applications had to be received on or before 18-07-2002. Applications were also received. The drawal of lots could not be done as per G.O.Ms.128 dated 08-07-2002, because the validity of the said Government Order was pending consideration. The said Government Order was not entirely quashed, it was held to be valid on many counts except insofar as withdrawal of the right to renewal. Therefore, the Government did, what it was bidden to do by the Division Bench that was to "go ahead". The said Government Order was not entirely quashed, it was held to be valid on many counts except insofar as withdrawal of the right to renewal. Therefore, the Government did, what it was bidden to do by the Division Bench that was to "go ahead". They have received the applications and they have gone ahead by fixing drawal of lots. 27. In those circumstances, a mandamus cannot be issued when on the face of it it appears that the Government had acted in accordance with the directions of this Court. In this case, the petitioners have neither exercised their right of renewal within the time nor have they applied for allotment, set down by the Division Bench and confirmed by the Supreme Court, within the time specified. Such a person, cannot demand that the Government cannot proceed with this decision to grant the privilege of retail vending in accordance with the directions of this Court as well as the Supreme Court. When the drawal of lots has also been done on 02-09-2002, unless it is a case such as specified in AIR 1985 SC 167 (cited supra) relating to a person whose human rights are violated or when there is grave injustice the indulgent hand of this Court cannot be extended to mould the relief. None of the questions posed by the learned Senior Counsel for the petitioners are answered in their favour. 28. The writ petitions are therefore, dismissed. No costs. Consequently, the connected miscellaneous petitions are closed.