Judgment : This appeal has been preferred against the Judgment and Decree, dated 11.04.1994 made in O.S.No.396 of 1989 on the file of the Court of Subordinate Judge, Namakkal. 2. The appellant herein is the plaintiff before the trial court, who filed the suit for restraining the respondent herein by a decree of permanent injunction from in any manner demanding and recovering any damages, including the one demanded, as per order in ROC.718/84 (B), dated 19.05.1988 on the file of the Divisional Excise Officer, Namakkal. 3. It is not in dispute that during the year 1984, the respondent herein had made a pub-lication in ROC.K.5/432/84, dated 24.04.1984 for grant of permission to run re-tail arrack shop for selling liquor (viz arrack), as provided under Rule 5 of the Tamil Nadu Toddy and Arrack Shop (Disposal in Auction) Rules 1981 (herein after be referred as the Rules). The appellant / plaintiff was one of the persons participated in the public auction held in respect of arrack shop No.1, Rasipuram and his bid was for a sum of Rs.50,000/-per month and made an Earnest Money De-posit as Rs.2,500/- as required in the terms and conditions of auction. The bid for Rs.50,000/- by the appellant was provision-ally accepted by the sales officers and the appellant was called upon to deposit Rs.25,000/-, being half of monthly rental amount, as per Rule 15 of the arrack shop Rules. Accordingly, he deposited Rs.25,000/-towards half a month rental amount. How-ever, the plaintiffs offer amount was not accepted and re-auction was ordered, as provided under Section 20 (3) of the Rules and accordingly, re-auction was held on 05.07.1984. Therefore, the respondent had to return the deposits made by the appellant. However, Rs,2,500/- paid as Earnest Money Deposit and Rs.25,000/- paid towards half month rental dues and as such a total sum of Rs.27,500/- paid by the appellant was not re-turned to the appellant. 4. The appellant has further submitted that though Rule 20(3) of the Rules empowers the defendant to fix the date and time of the re-auction, the said power is subject to the provisions contained in Rule 4 of the Arrack Shop Rules, which stipulates a minimum of 10 days notice. 4. The appellant has further submitted that though Rule 20(3) of the Rules empowers the defendant to fix the date and time of the re-auction, the said power is subject to the provisions contained in Rule 4 of the Arrack Shop Rules, which stipulates a minimum of 10 days notice. In the instant case, the respondent had not fixed the date of re-auction, as stiputed in Rule 4 of the Rules and therefore, re-auction held on 21.07.1984 is bad and nonest in the eye of law. With the above pleadings, the appellant herein has prayed, seeking a decree to set aside the summary order passed by the Divisional Excise Officer, Namakkal in R.O.C.No.718/84 (B), dated 19.05.1988 and also to declare that the appellant was not guilty of any breach of contract and sought further relief, restraining the respondent, by way of permanent injunction from in any manner demanding and recovering any damages, including the one demanded under ROC.718/84 (B) on the ground that the plaintiff was guilty of breach of contract. 5. In the written statement filed by the respondent / defendant, the public auction for retail sale of arrack shop No.1, Rasipuram and the provisional acceptance for the bid of the appellant for Rs.50,000/- have been admitted as true. According to the respondent, the said auction was held on 26.06.1984 and not on 23.05.1984. The respondent, as defendant has also admitted the fact that the appellants bid was not confirmed and resale of arrack shop No.1 was ordered by him. According to the respondent, a mistake had arisen on 05.07.1984, when auctions were held in respect of number of arrack shops. According to the respondent, the order passed by the Divisional Excise Officer, Namakkal in Proceedings ROC.No.718/84 (B), calling upon the appellant to pay damages is valid. Hence, the respondent herein pleaded for the dismissal of the suit. 6. The trial court, considering the oral and documentary evidence and also the arguments advanced by both sides, has declared that the order passed by the Divisional Excise Officer, Namakkal in R.O.C.No.718/84 (B), dated 19.05.1988 is void and unenforceable and also granted permanent consequential in-junction not to recover the amount specified under the impugned order. However, contrary to the relief granted, the trial court has held that there was a loss incurred by the Government, as there was violations of rules committed by the appellant herein. However, contrary to the relief granted, the trial court has held that there was a loss incurred by the Government, as there was violations of rules committed by the appellant herein. Hence, before deciding the compensation, proper notice shall be issued to the appellant and decide the same. Aggrieved by the aforesaid Judgment and Decree, this appeal has been preferred by the plaintiff in the suit. 7. The trial court, based on the pleadings, has framed the following issues for deciding the suit : 1. Whether the appellant (plaintiff) herein was entitled to the relief of declaration as prayed for? 2. Whether the order, dated 19.05.1988 passed by the Divisional Excise Officer, Namakkal against the appellant (plaintiff) herein is liable to be set aside? 3. Whether the appellant (plaintiff) is entitled to permanent injunction as prayed for? 4. Whether the suit filed by the appellant (plaintiff) was affected by Section 80 C.P.C, as there was no pre-suit notice? 5. Whether the trial court has got no jurisdiction? 6. What relief the plaintiff is entitled to? 8. Mrs. AL. Ganthimathi, learned counsel appearing for the appellant submitted that the trial court, considering the evidence both oral and documentary was pleased to grant declaratory relief and also permanent injunction as prayed for by the appellant herein, holding the issues in favour of the appellant. However, there is a finding that there was violation of rules by the appellant and therefore, there was a loss incurred by the State, for which after providing reasonable opportunity, by way of issuing notice, the damages payable by the appellant could be decided and recovered by the authority, which is contradictory to the declaration and injunction granted by the court below. 9. It is seen that the appellant himself was examined as P.W.1 before the trial court, apart from marking a copy of the notice for the public auction, dated 24.04.1984 as Ex.A.1. The notice pertaining to the re-auction of arrack shop Nos.1 and 2, Rasipuram under Rule 20(3) has been marked as Ex.A.3. As per the original of Ex.A.4, it has been ordered to re-auction the arrack shop under Rule 21 of the Rules and accordingly, one P.P. Ganapathi was granted permission to run the arrack shop, as per the re-auction. In support of the same Ex.A.5 has been marked. As per the original of Ex.A.4, it has been ordered to re-auction the arrack shop under Rule 21 of the Rules and accordingly, one P.P. Ganapathi was granted permission to run the arrack shop, as per the re-auction. In support of the same Ex.A.5 has been marked. Subsequently, Ex.A.6 notice, dated 21.03.1988 has been issued by the respondent to the appellant, whereby the appellant herein was directed to pay a sum of Rs.4,65,000/-for arrack shop No.2, Rasipuram Taluk, stating that there was a loss incurred by the Government at Rs.23,000/- per month during the year 1984-85. 10. It is seen that Ex.A.7 is the copy of the order passed by the Accountant General (Audit II), Tamil Nadu, dated 19.01.1985. The legal notice, dated 29.04.1988 sent under Section 80 CPC by the appellant to the respondent has been marked as Ex.A.8. The postal acknowledgment for the receipt of the legal notice has been marked as Ex.A.9. Ex.A.10 is the postal acknowledgment of the receipt of the said notice by the District Col-lector, Salem. The order, dated 19.05.1988 passed by the Divisional Excise Officer, Namakkal has been marked as Ex.A.11. The District Collector, Salem, by his letter, dated 111. 1994, marked as Ex.A.12 has informed the Sale Officer and the Assistant Commissioner (ULT), Salem, that the case filed in respect of arrack shop No.2, Rasipuram Taluk by the appellant herein had been dismissed and the re-sale loss will be determined only after completion of the re-sale. On the above circumstances, the District Collector, re-quested the Sale Officer and the Assistant Commissioner (ULT), Salem to refund the Earnest Money Deposit and half the month kist remitted by the appellant B. Sivanandam for arrack shop No.1 under Rule 10 of the Tamil Nadu Toddy and Arrack Shop Rules, immediately. 11. The Taluk Officer, Rasipuram, Salem District during 1984-1985, was examined as D.W.I. He has deposed in his evidence that on 05.07.1984, the appellant had participated in the public auction for arrack shop No.1, Rasipuram and was the successful bidder of the shop in the auction, however, he did not paid half month kist amount, as required. Further that was wrongly intimated in the notice that he had paid the said amount on 05.07.1984. He has admitted that only on 21.07.1984, it came to his notice that some error had been committed in the office on 05.07.1984. Further that was wrongly intimated in the notice that he had paid the said amount on 05.07.1984. He has admitted that only on 21.07.1984, it came to his notice that some error had been committed in the office on 05.07.1984. According to him, on 23.05.1984, one S. Duraisamy was the successful bidder for arrack shop No.1. On 25.06.1984, the appellant was the successful bidder for the said arrack Shop No.1 and that he had paid Rs.25,002.50/-and the same was remitted to the Government account. For Arrack shop No.2, re-auction was ordered on 21.03.1994. In his cross-examination, he has admitted that according to rule 5 of the Rules, 10 days notice should be given for conducting re-auction. The same was not complied with. 12. D.W.2, the Divisional Excise Officer, Namakkal District has deposed in his evidence that Ex.B.15, notice was issued by him relating to arrack Shop No.2, Rasipuram. According to him, the damage was calculated for 15 months at the rate of Rs.23,000/-per month. According to him, the arrack shop was not run by anybody during the period between 21.07.1984 and 15.02.1985. 13. In this appeal, it is not in dispute that the appellant was the successful bidder during the relevant period to run arrack Shop No.1, Rasipuram and his bid was provisionally accepted. Accordingly, the appellant deposited half month kist amount of Rs.25,000/-, how-ever, his bid was not confirmed and the arrack shop was brought for re-auction, but, the Ear-nest Money Deposit and half month kist amount paid by him was not returned to him. Learned counsel for the appellant submitted that for auction that was conducted on 21.07.1984, there was no public notice issued by the respondent and as per Rules, sufficient time was not given to participate in the auction, though one Ganapathi had made his bid for a sum of RS.49,500/-on 05.09.1984, that was not accepted. However, the same officer confirmed the bid for Rs.27,000/- subsequently. In such circumstances, according to the learned counsel for the appellant, he is not liable to pay any amount towards damages to the respondent. 14. It is seen from the written statement filed by the respondent herein that the appel-lants bid was not confirmed and re-auction for the arrack shop was also ordered. In such circumstances, according to the learned counsel for the appellant, he is not liable to pay any amount towards damages to the respondent. 14. It is seen from the written statement filed by the respondent herein that the appel-lants bid was not confirmed and re-auction for the arrack shop was also ordered. Even in the written statement, at paragraph No.4, the respondent herein has admitted as follows: "It is submitted that a mistake has arisen on 05.07.1984, when auctions were held in respect of a number of Arrack shops. On the auction date, duties were allotted to the Taluk Office and the Divisional Office staff and some persons were placed incharge of collection of half a months rentals and some others for is-sue of receipts and notices required by rule 16." 15. Admittedly, the procedure and the mandatory rules under Tamil Nadu Toddy and Arrack Shop Rules were not followed by the respondent, in such circumstances, the respondent cannot fix the liability on the appellant and claim damages. Only if there is any breach of contract, the respondent can claim compensation from the appellant. In the instant case, it has been admitted that the provisional acceptance of the appellants bid was not confirmed and re-auction of arrack shop was ordered and therefore, before confirmation of the bid, the responsibility cannot be fixed on the appellant to compensate the loss. The respondents witnesses have also admitted that there was mistakes committed by the officials of the respondent on 05.07.1984, in respect of auction that were held in respect of number of arrack shops. 16. Considering all these aspects, the trial court has granted declaratory relief, declaring that the appellant was not guilty of any breach of contract and also granted permanent injunction, restraining the respondent from in any manner demanding and recovering any damages, including the one demanded under ROC.718/84 (B) on the file of the Divisional Excise Officer, Namakkal. Admittedly, there is no cross-appeal by the respondent. In such circumstances, the court below could not have held that the Government had incurred loss, due to the breach of contract by the appellant herein and that it has to be decided by the respondent, after issuing notice. The aforesaid direction is self-contradictory to the relief of declaration and permanent injunction, granted in favour of the appellant and against the respondent. 17. The aforesaid direction is self-contradictory to the relief of declaration and permanent injunction, granted in favour of the appellant and against the respondent. 17. As the direction given against the appellant is self-contradictory to the relief of declaration and permanent injunction granted by the court below in favour of the appellant herein and also considering the facts and circumstances, based on the evidence, I am of the view that the appeal has to be allowed. 18. In the result, this appeal is allowed and the impugned Judgment and Decree, passed against the appellant by the court below are set aside and the suit is decreed as prayed for. However, there is no order as to costs.