ORDER The provisions of Andhra Pradesh (Regulation of Wholesale Trade and Distribution and Retail Trade in Indian Liquor, Foreign Liquor, Wine and Beer) Act, 1993 (hereinafter referred to as "the Act") provided that Andhra Pradesh Beverages Corporation Limited (for brevity, "APBCL")-2nd respondent will act as a canalizing agency or conduit through which the wholesale trade and distribution of liquor would be carried on. The validity of the Act came to be questioned in Writ Petition No. 10820 of 1993 and batch. The validity came to be upheld with certain directions by a Division Bench of this Court in the said writ petition, vide M/s. Sona Liquors (p) Ltd. v. Union of India (1) 1993 ALT Suppl. (1) 21 (D.B.). The Government of Andhra Pradesh conferred exclusive privilege of importing, exporting and distribution of Indian Made Foreign Liquor, to licencees in the whole of the State of Andhra Pradesh on (sic. through) APBCL-2nd respondent. APBCL-2nd respondent intended to procure wholesale good quality 'Beer' for supply at competitive price to licencees in the whole of State of A.P. APBCL-2nd respondent is confined only to meet the demand of the Consumers and satisfy their requirements by placing appropriate orders for the various brands of beer or liquor which are demanded by the Consumers. Guidelines for conduct of wholesale trade in IML by A.P. Beverages Corporation are:- "1. Procurement of Stocks: (i) The Corporation shall procure stocks of IMFL and beer on a Rate contract basis following a system of All India tender notification. (ii) The Rate contract shall be ordinarily for a period of one year. However, the Corporation may go in for Rate contracts for a shorter period depending on the exigencies of the operations. (iii) The tenders received in response to the notification shall be processed by the Corporation. Where necessary, negotiations, with regard to prices and other terms and conditions of the tender, shall be conducted by a Sub-Committee of the Board of Directors of the Corporation constituted by the Board for the purpose. (iv) Such of the tenderers holding a valid excise licence issued by the competent authority as on the date of the opening of the tenders and who have enclosed the requisite EMD prescribed by the Corporation shall normally be considered eligible for supply of IMFL to the Corporation during the period of Rate contract. (iv) Such of the tenderers holding a valid excise licence issued by the competent authority as on the date of the opening of the tenders and who have enclosed the requisite EMD prescribed by the Corporation shall normally be considered eligible for supply of IMFL to the Corporation during the period of Rate contract. (v) The Sub-Committee of the Board of Directors shall make its recommendation to the Board of Directors in the matter of validity of the tenders and final negotiated rates. The Board of Directors of the Corporation shall be competent to take final decisions on all the above aspects. (vi) The Corporation shall give appropriate weightages for existing market shares of different tenderers as also the relativity of prices quoted by different manufacturers while deciding upon the quantum of IMFL to be ordered on different suppliers. (vii) The purchase order quantities and the re-order quantities shall be arrived at according to set formulae and guidelines approved by the Board of Directors of the Corporation. The formulae and the guidelines prescribed in this regard may inter-alia, be based on the actual sales of the products as also the fastness of movement of the various brands. 2. Fixation of Wholesale margin: The Board of Directors of the Corporation shall be competent to fix appropriated percentages of wholesale margins to be charged by the Corporation for each period of rate of contract. Different percentages of margin can be fixed for different categories of IMFL, and beer. The percentage of margins so fixed shall apply uniformly to the products of all the manufacturers. While fixing the margin the Corporation may take into consideration the consumer rates of different products. 3. Quality Control: (i) The Corporation shall ensure strict quality control of the products purchased by it by prescribing suitable technical specifications as part of the terms and conditions of the tender notification and by insisting on test certificates to accompany each consignment received. (ii) the Corporation may also subject the samples form, the consignments received to vigorous quality testing at the Regional Chemical Laboratories of the Excise department. (iii) Every care shall be taken to ensure that the sub-standard products do not reach the market. 4. (ii) the Corporation may also subject the samples form, the consignments received to vigorous quality testing at the Regional Chemical Laboratories of the Excise department. (iii) Every care shall be taken to ensure that the sub-standard products do not reach the market. 4. Transparency: The Corporation shall ensure that the procedures, methodology and formulate adopted by it in all matters connected with identification of suppliers, fixation of procurement prices, arriving at the quantities to be ordered on the various suppliers are rational, transparent and foolproof and that no undue advantage is given to any supplier or group of suppliers. The Corporation shall be answerable to the Government on all the above aspects." 2. As per the existing policy of procurement of Beer of various brands, two companies, namely United Breweries Company Limited and Skol Breweries Limited (petitioner herein) captured 81.16% of the supply to APBCL-2nd respondent. Some disputes cropped up between the two supplying companies and the 2nd respondent during the year 2008 with regard to the rate contracts and ultimately, two supplying companies filed W.P. No.23496 of 2008. Various interlocutory applications came to be moved by two supplying companies including the petitioner company. It is suffice to refer the operative portion of the order dated 24-3-2009 passed in W.P.M.P.No.7543 and 7544 of 2009 in W.P.No.23496 of 2008, which reads as hereunder: "Therefore, to protect the interests of both the petitioners as well as the 2nd respondent-Corporation, pending disposal of the writ petition, I deem it appropriate to pass the following interim order: In respect of supplies of various brands of beer to be made by the petitioners to the 2nd respondent-corporation on and from 01-4-2009, the respondent corporation, shall retain with itself or/keep in a separate account, an amount equivalent to Rs.1.50.ps. per bottle, which the petitioners are claiming towards enhancement, without remitting the same to the State Government or in the alternative they shall make appropriate arrangements to pay to the petitioners an amount upto Rs.1.50 per bottle of beer, for the different brands of beer to be supplied by them on and from 01-4-2009, in the event of the petitioners eventually succeeding in the dispute." 3. Subsequently, the two supplying companies filed memo seeking withdrawal of the order dated 24-3-2009 passed in W.P.M.P.No.7543 of 2009 in W.P.No.23496 of 2008. Subsequently, the two supplying companies filed memo seeking withdrawal of the order dated 24-3-2009 passed in W.P.M.P.No.7543 of 2009 in W.P.No.23496 of 2008. The order dated 24-6-2009 whereunder orders passed in W.P.M.P. No.7543 of 2009 came to be recalled reads as hereunder:- "This writ petition is set down for hearing today. At the hearing, Sri S. Ravi, learned counsel representing the petitioners, filed two separate memos on behalf of each of the two petitioners. In these two memos, the petitioners requested this Court to recall its two earlier orders dated 22-12-2008 and 24-03-2009 passed in this writ petition and W.P.M.P.No.7543 of 2009. The learned Advocate General stated that respondent No.2-Corporation has no objection for recalling of the two orders. Accordingly, the two memos are taken on record and the two orders referred to above are hereby recalled having regard to the contents of the two memos. Sri S. Ravi, learned counsel for the petitioners, and the learned Advocate General requested for deferring hearing of the writ petition having regard to the filing of the two memos and the recalling of the orders. Accordingly, the hearing of the writ petition is adjourned by four weeks. Post on 22-07-2009." 4. The previous litigation between the APBCL and the two supplying companies including the writ petitioner has been referred only to know the background of the issuance of the G.O.Ms.No.462 dated 19-5-2006, which is impugned in the present writ petition. Of course, Skol Breweries Limited alone challenged G.O.Ms.No.462 whereunder, new procurement policy for 'Beer' has been issued. As per the policy operating in the field of procurement of 'Beer' prior to the issuance of the impugned G.O., the criteria was actual sale volume of Beer of various brands in the State of Andhra Pradesh. The present procurement policy introduced through G.O.Ms.No.462 is specifying indents of liquor manufacturers in accordance with the quantum of supplies made by them to all other Corporations all over India. For better understanding of the grievance of the petitioner company, I deem it appropriate to refer paragraph 9 of the affidavit filed in support of the writ petition:- "The impugned G.O.Ms.No.462 lays down that the APBCL should place orders on liquor manufacturers in accordance with the quantum of supplies made by them to all other corporations all over India. It is submitted that this is a wholly irrelevant and arbitrary factor for consideration. It is submitted that this is a wholly irrelevant and arbitrary factor for consideration. This is because the pattern of demand in Andhra Pradesh for various brands of beer is significantly different from the pattern of demand all over India. Further, there are certain special factors which completely distort the picture of all India demand based on supplies made to State Government corporations. For example, the State of Tamil Nadu which is a major market for liquor/ beer does not permit any imports whatsoever from any unit which is located outside the State of Tamil Nadu. The petitioner does not have any unit in the State of Tamil Nadu and, as a consequence, even though it earlier had as much as 30% share in Tamil Nadu, the same was reduced to 'nil' after the new policy of banning imports of products from outside the State was introduced in the State. United Breweries Limited has two brewery units in the State and, therefore, makes huge sales to the Tamil Nadu State Beverages Corporation. The computation of all India demand on the basis of supplies made to State Government corporations, therefore, gives a completely skewed and distorted picture against the petitioner because the said all India figures include sales made to the State Government of Tamil Nadu from which the petitioner is totally excluded. Further, there are other States like Kerala and Orissa which do not impose a formal ban on the import of liquor/beer from other States but, nevertheless, impose exorbitant import duties so that it is impossible for any unit located outside the State to supply the products into those states. The computation of demand on all India basis by including the supplies made to these States would be highly prejudicial and detrimental to the petitioner as the petitioner only has units with limited production capacity in the said States of Kerala and Orissa. In contrast, the United Breweries group has units which have a large production capacity locate in the said States of Orissa and Kerala and is, therefore, in a position to supply very large quantities of beer to the State Government Corporations of these States. The petitioner is not in a position to import any beer into the above States after its stocks are exhausted. The impugned G.O.Ms. The petitioner is not in a position to import any beer into the above States after its stocks are exhausted. The impugned G.O.Ms. No.462 has, thus, been tailor made for the purpose of taking away a very large portion of the petitioner's market share and handing it over on a platter to United Breweries Limited. The impugned G.O.Ms.No.462, therefore, has the strange, perverse and wholly arbitrary and irrational consequences of discriminating against breweries located in the State of Andhra Pradesh and the said G.O.Ms.No.462 is wholly in favour of breweries located outside the State even though it is breweries located within the State which contribute to the economic development of the State and also make huge contributions to its revenues". 5. The writ petitioner filed further rejoinder affidavit on 01-7-2010 detailing the orders passed in W.P.No.23496 of 2008 and the circumstances under which memos came to be filed in the said writ petition seeking withdrawal of the order passed in the writ petition. 6. Heard Sri S. Ganesh, learned Senior counsel appearing for the petitioner and learned Advocate General appearing for the respondents. 7. Learned Senior Counsel submits that the petitioner's manufacturing unit is located in Hyderabad and the brands of Beer manufactured by the petitioner's company have lot of demand in Hyderabad and as per the existing demand, the petitioner company is meeting 50.77% market share and in case the procurement policy issued in the Government order impugned in the writ petition is implemented, its market share goes down to 26.84% which is very much detrimental to the interests of the petitioner company. Learned Senior Counsel further submits that the new policy introduced through G.O impugned in the writ petition is irrational, unreasonable and arbitrary. He would also contend that once the rules obligate the petitioner to supply its product only to the 2nd respondent Corporation holding distributory licence, a corresponding duty is caste on the 2nd respondent-Corporation to place orders with the petitioner-company whenever demand for a particular product is received by it. The learned counsel placed reliance on the judgment of the Supreme Court in M/s. Khoday Distrilleries Ltd. v. State of Karnataka (2) AIR 1996 SC 911 in support of his submissions. The learned counsel placed reliance on the judgment of the Supreme Court in M/s. Khoday Distrilleries Ltd. v. State of Karnataka (2) AIR 1996 SC 911 in support of his submissions. Much emphasis has been made on para 15 of the cited judgment, which reads as hereunder:- "In the present case, therefore, we must examine whether there is any manifest arbitrariness in prescribing a distributor licence which can be granted only to a company owned by the State; and in compelling the appellants to sell their product to the distributor. The appellants have pointed out that the amendments must be considered as arbitrary because they cause undue hardship to all those who are concerned with the manufacture and sale of liqu~r. They point out that although the manufactures are obliged to sell their commodity to the MSIL, there is no corresponding obligation cast on the MSIL to buy the liquor manufactured by the manufacturers in the State of Karnataka. In the absence of such an obligation on the MSIL to buy the liquor, it can well happen that MSIL may act arbitrarily or capriciously and may purchase or not purchase liquor from the manufacturers at its own sweet-will. This would seriously affect the business of all those engaged in the manufacture and sale of liquor. This apprehension does not appear to be justified. In the Statement of Objections on behalf of the State Excise Commissioner which were filed before the High Court of Karnataka, the respondents have explained in paragraph 16 that it is not correct to state that the Government company is at liberty to purchase or not to purchase the liquor produced by the petitioners. It is bound to purchase the liquor if there is demand from the wholesellers. Even otherwise it has been submitted that proper guidelines will be issued to the Government company in this behalf. The Government company is expected to act bona fide and with responsibility and it is not correct to contend that the Government agency will be interested only in a particular manufacturer. This submission has considerable force. What is more important, during the period that these appeals were pending before us, MSIL has not merely established several depots but has carried on distribution of liquor in the State of Karnataka on a large scale. This submission has considerable force. What is more important, during the period that these appeals were pending before us, MSIL has not merely established several depots but has carried on distribution of liquor in the State of Karnataka on a large scale. Learned counsel appearing for the respondents have stated before us that MSIL receives orders for supply from various purchasers. These orders specify the brand of liquor and the company from which the supplies are required. Accordingly MSIL places orders with the concerned companies for the brands of liquor which are demanded by their purchasers. It is on the basis of these demand requisitions received by MSIL the MSIL places orders. There is, therefore, no question of any hardship being caused to the appellants by reason of the fact that their sales have to be channeled through an intermediary. Depending upon the orders received by the MSIL, it in turn, places orders with the suppliers or manufacturers concerned. The business activity of the appellants cannot, therefore, be said to be curtailed in any manner. Nor can there be any hardship on the appellants. Once the Rules oblige the manufacturers to supply their product only to the company holding the distributor licence, a corresponding duty is cast on the distributor to place orders with the suppliers concerned whenever demand for a particular product is received by it." 8. A further contention has been advanced by the learned Senior Counsel that by introducing new 'procurement policy, there will be monopoly of the United Breweries since it gets market share of 49.82% and therefore, the very object of providing marketing space to various other manufacturers is being defeated in which case, the new procurement policy introduced through G.O. impugned in this writ petition is to be stayed pending writ petition. 9. Placing reliance on the judgment of Supreme Court in Delhi Development Authority v. Joint Action Committee, Allottee of SFS Flats (3) (2008) 2 SCC 672 and A. Satyanarayana v. S. Purushotham (4) (2008) 5 SCC416=2008 (8) SCJ 132 = 2009 (4) ALT 19.2 (DNSC) the learned Senior Counsel contends that the policy decision is not beyond the pale of judicial review. 10. 10. There is no quarrel with regard to the proposition of law that the policy decision is subject to review on the following grounds:- (a) if it is unconstitutional; (b) if it is dehors the provisions of the Act and the regulations; (c) if the delegate has acted beyond its power of delegation; (d) if the executive policy is contrary to the statutory or a larger policy. 11. During the course of arguments, learned Senior Counsel also refers the percentage of market share of procurement in the event of the procurement policy as per the G.O impugned in the writ petition is implemented. He laid much emphasis on paragraph 8 of the affidavit, which reads as hereunder:- "Even according to Respondent No.2's figures the effect of the impugned G.O.Ms.No.462 is that the petitioners market share in AP comes down from 50% to only 26% whereas, in contrast, the market share of United Breweries in AP. goes up from 305 (sic. 30%) to 50% as can be seen from the following table: Supplier % of market % of market share of share of Procurement Procurement prior to GO after GO United Breweries 30.39% 49.82 SKOL 50.77% 26.84% Total duopoly 81.16% 76.66% Other manu- facturers 18.84% 23.34% The consequence of the procurement after the effect of the G.O.Ms.No.462 will be the following: The procurement of Beer made by the Respondent No.2 from United Breweries will increase from 30.39% to 49.82% of the total procurement of Beer in the State thereby increasing their share of in the procurement pie by ,about 20% of the total procurement. The procurement of Beer made by the Respondent No.2 from the petitioner will be reduced from 50.77% to 26.84% of the total procurement of Beer in the State thereby reducing the share of the petitioner by more than 23% of the total procurement pie. The duopoloy will continue with the shares interchanged. The total market share of the petitioner and United Breweries in A.P goes down by a mere 4%. It is extremely doubtful whether the other manufacturers will even get that 4% owing to the extreme slowness in the movement of their products which will result in no repeat orders being placed on them by APBCL". 12. The total market share of the petitioner and United Breweries in A.P goes down by a mere 4%. It is extremely doubtful whether the other manufacturers will even get that 4% owing to the extreme slowness in the movement of their products which will result in no repeat orders being placed on them by APBCL". 12. Learned Senior Counsel appearing for the petitioner in response to the contentions advanced by the learned Advocate General submits that in case the petitioner company is to export the product to other States, there will be incidents of import duty and transport charges, which ultimately increases the production cost, and thereby, making the price of the beer little bit more when compared to the beer manufactured in their respective States. 13. The learned Advocate General submits that trade in liquor is not a fundamental right and it is a privilege of the State and therefore, the petitioner company cannot be permitted to contend that the procurement policy violates any of his fundamental rights. Since the earlier policy was not giving any space for other manufacturers and in view of the representation submitted by other manufacturers, 2nd respondent suggested a shift from the present procurement policy and the Government after due consideration of the suggestion, issued the Government Order impugned in the writ petition. He would also submit that the G.O. is neither irrational nor arbitrary. Consideration of the actual sale volume of beer of the country gives a correct indication of its quality and it gives a space to various other manufacturers, so as to enable the 2nd respondent to place indents with them also. It is also contended by the learned Advocate General that in case the new procurement policy is going to confer any monopoly on any of the manufacturers, the Government is prepared to take suitable steps to avoid such monopoly. 14. While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give an impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heart beat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for discernible reasons, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness. 15. In Punjab Communications Ltd. V. Union of India and others ( AIR 1999 SC 1801 ), the Supreme Court observed that the change in policy can defeat a substantive legitimate expectation if it can be justified on "wednesbury" reasonableness. The decision-maker has the choice in balancing of the pros and cons relevant to the change in policy. It is, therefore, clear that the choice of policy is for the decision-maker and not the Court. The legitimate substantive expectation merely permits the Court to find out if the change of policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. A claim based on merely legitimate expectation without anything more cannot ipso facto give a right. Its uniqueness lies in the fact that it covers the entire span of time; present, past and future. How significant is the statement that today is tom morrows' yesterday. The present is as we experience it, the past is a present memory and future is a present expectation. For legal purposes, expectation is not same as anticipation. Legitimacy of an expectation can be inferred only if it is founded on the sanction of law. 16. How significant is the statement that today is tom morrows' yesterday. The present is as we experience it, the past is a present memory and future is a present expectation. For legal purposes, expectation is not same as anticipation. Legitimacy of an expectation can be inferred only if it is founded on the sanction of law. 16. It is well settled that the Courts in exercise of their power of judicial review do not ordinarily interfere with the policy decisions of the executive unless policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed, arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional. However, if the policy cannot be faulted on any of these grounds. the mere fact that it would hurt business interest of party does not justify invalidating the policy. It is beyond pale of controversy that under the existing policy of procurement, the petitioner company along with United Breweries Limited was commanding 81.16% market share of procurement. It can be definitely stated that there is duopoly. This happened because of the brand of the beer marketed in Andhra Pradesh has been taken as criteria for procurement of Beer. If the nation wide market for beer was taken into consideration, there would be more space available to the other companies. Even the consumer will be in a position to secure a quality brand of beer, which have good market in other States. The Government has considered the suggestion made by the 2nd respondent Corporation, which was based on market study, and proceeded to issue the impugned Government Order. The impugned Government Order contains reasons for change of procurement policy. For better appreciation, I may refer the relevant portion of the Government Order, which reads as hereunder:- "The Managing Director, Andhra Pradesh Beverages Corporation Limited has further stated that in the G.O first read above Government envisaged uniform guidelines for procuring Indian Made Foreign Liquor and Beer. Clause (1)(vi) in the G.O reads as follows: "The Corporation shall give appropriate weightage for existing market shares of different tenderers as also the relativity of price quoted by different manufacturers while deciding upon the quantities of IMFL to be ordered on different suppliers". Clause (1)(vi) in the G.O reads as follows: "The Corporation shall give appropriate weightage for existing market shares of different tenderers as also the relativity of price quoted by different manufacturers while deciding upon the quantities of IMFL to be ordered on different suppliers". The Managing Director, Andhra Pradesh Beverages Corporation Limited has also stated that this has resulted in near repetition of sales figures every year, thereby confining the market to only a few dominant players resulting in anti-competitive tendencies and constricting the consumer's choice for products. The Managing Director, Andhra Pradesh Beverages Corporation Limited has therefore suggested a shift from the present procurement policy of beer to one basing on market share statistics available from a wider. basket of markets in the country which would open the doors for other manufacturers/suppliers also to enter the fray leading to wider choice for the consumers and enhancement of competitive spirit. After careful consideration, Government hereby accepts the suggestion of Managing Director, Andhra Pradesh Beverages Corporation Limited and accordingly order the Andhra Pradesh Beverage Corporation to base the Beer procurement, after the expiry of term of the current Rate Contract, on the ratio of actual sale volumes of beer being supplied by various manufacturers (who enter into the Rate Contract with Andhra Pradesh Beverages Corporation Limited) to all the State owned Corporations (counterparts of Andhra Pradesh Beverages Corporation Limited) across India. The Managing Director, Andhra Pradesh Beverages Corporation Limited is requested to take further action in the matter accordingly". 17. Since the impugned G.O contains reasons, it cannot be said at this juncture that reasons stated therein are unreasonable or arbitrary. Therefore, I find that the petitioner failed to make out a prima facie case for grant of interim stay of the G.O impugned. 18. Accordingly, this petition fails and the same is hereby dismissed.