Judgment :- 1. These two writ petitions were filed by one and the same company. In the first writ petition, the petitioner challenges an order of the State Government in G.O.(Ms)No.93, Home, Prohibition and Excise Department, dated 31.10.2007 and seeks to set aside the same. In the second writ petition, the petitioner seeks for a declaration, declaring Rule 39(1)(2), Rule 39(4) of the Tamil Nadu Distillery Rules, 1981 as ultra vires of the Tamil Nadu Prohibition Act, unconstitutional, null and void. 2. Both writ petitions were admitted on 30.06.2008. On notice from this Court, the respondents have filed a counter affidavit dated 09.03.2009. 3. It was stated by the petitioner that they are engaged in the manufacture of alcohol used in the manufacture of Indian Made Foreign Liquors and for industrial purposes. A Distillery Officer is nominated by the State Government holding the rank of Deputy Collector permanently attached to the distillery, who is assisted by two officials of the State Government in the rank of Deputy Tahsildar and other persons from Prohibition and Excise Department. They have got overall control and supervision in the manufacture of alcohol at every stage. The company also used to sent periodical communications to the Distillery Officer as well as to the Commissioner of Prohibition and Excise in respect of their manufacturing operations. 4. The Commissioner for Prohibition and Excise, the second respondent, by exercising power under Rule 39 of the Tamil Nadu Distillery Rules issued show cause notice asking the petitioner to explain as to why penalty should not be levied for the shortfall in production of natural spirit for fiver different spells. The said Rule was amended during the year 1986. Notwithstanding the reply submitted by the petitioner company, the second respondent imposed penalty. 5. The second respondent held that under Rule 39(1) of the Tamil Nadu Distillery Rules, licensee should maintain efficiency in fermentation and distillation and must ensure an yield of different kinds of spirits for the different grades of molasses at the rates prescribed by the Commissioner of Prohibition and Excise from time to time. The review of the yield shall be made by the Commissioner of Prohibition and Excise at lease once in three months. After obtaining details from the Distillery Officer, a review of yield of alcohol achieved by the distillers during the quarter ending of the year was made. The review of the yield shall be made by the Commissioner of Prohibition and Excise at lease once in three months. After obtaining details from the Distillery Officer, a review of yield of alcohol achieved by the distillers during the quarter ending of the year was made. It was found that as against the expected turn out of 207 litres of Neutral Spirit per tonne of molasses, the petitioner company achieved an actual yield of 199 litres of Neutral Spirit resulting in a shortfall of 8 litres of Netural Spirit per tonne of Molasses. The total shortfall was worked out and a penalty was levied in terms of Rule 39(4) of the Distillery Rules at the rate of Rs.16/- per P.L on the total shortfall. The explanation offered by the petitioner company was that there were several constraints in the operation of the plant, that there was also crash shutdowns of the distillation plant, that the calculation of expected yield based on few sample of molasses drawn cannot be accurate, that the Molasses drawn and stored is always of different quality, that the short fall caused was not due to any diversion of the molasses and spirit and that all efforts were made by the petitioner company to achieve the optimum yield. Therefore, they requested a suitable allowance to be made in the rate of yield and not to impose any penalty. 6. The explanation was considered by the second respondent and he held that distillers are expected to achieve the yield rate as per the norms prescribed by the office of the second respondent. Accurate methods were adopted in calculating TRS percentage of molasses. Hence, explanation submitted by them was not accepted and levy of penalty was imposed. 7. AS against the order passed by the second respondent, the petitioner company preferred five different appeals. The State Government by G.O.Ms.No.4. Prohibition and Excise Department, dated 10.01.1997 dismissed the appeal. The petitioner preferred a writ petition before this Court being W.P.No.5477 of 1997 challenging the said Government Order confirming the order of the second respondent dated 18.01.1995. Similar writ petitions were also filed in respect of similar orders passed by the State Government in G.O.Ms.No.146 dated 01.07.1996, G.O.Ms.No.41 dated 21.01.1997, G.O.(D) No.133 dated 11.11.1997 and G.O.(D)No.132 dated 11.11.1997. The petitioner preferred a writ petition before this Court being W.P.No.5477 of 1997 challenging the said Government Order confirming the order of the second respondent dated 18.01.1995. Similar writ petitions were also filed in respect of similar orders passed by the State Government in G.O.Ms.No.146 dated 01.07.1996, G.O.Ms.No.41 dated 21.01.1997, G.O.(D) No.133 dated 11.11.1997 and G.O.(D)No.132 dated 11.11.1997. The writ petitions viz., W.P.Nos.5477, 5479, 7295, 6735 and 6869 of 1997 came to be heard by P.Shanmugam,J. and it was disposed of by common order dated 11.04.2001. This Court held that sufficient opportunity was not given to the petitioner and on that ground impugned orders were set aside and the respondents were directed to continue the proceedings from the stage of submissions to reply to the show cause notice and after hearing the objections of the petitioner including fresh objections to pass orders. 8. Pursuant to the opportunity given by this Court, the petitioner submitted a detailed explanation in respect of each show cause notice dated 12.10.2001. They also gave written submissions dated 30.08.2002. The State Government consolidating all the five orders passed by the Commissioner once again dismissed the appeals vide G.O.(Ms) No.93 Home, Prohibition and Excise dated 31.10.2007. Subsequent to the order passed by the State Government, the second respondent informed the petitioner to pay the amount, failure to pay the amount will result in drastic action against the petitioner company. 9. Therefore, the first writ petition was filed challenging the common order passed by the State Government as noted already. In the second writ petition, the vires of various rules namely Rule 39(1)(2) and 39(4) of the Tamil Nadu Distillery Rules,1981 was under challenge. 10. It would be useful to refer to Rule 39(1)(2) and 39(4) of the Tamil Nadu Distillery Rules, 1981, which reads as follows:- "39. Yield of Spirit-(1) The licensee shall maintain efficiency in fermentation and distillation and ensure an yield of different kind of spirits for the different grades of molasses [or other sachrine materials] at the rates specified by the Commissioner from time to time. Review of the yield shall be made by the Commissioner at least once in three months. (2)Wherever lower yield other than that specified by the Commissioner is obtained, the licensee shall furnish reasons for the same and steps taken to improve the yield to the satisfaction of the Commissioner. Review of the yield shall be made by the Commissioner at least once in three months. (2)Wherever lower yield other than that specified by the Commissioner is obtained, the licensee shall furnish reasons for the same and steps taken to improve the yield to the satisfaction of the Commissioner. If it is proved to the satisfaction of the Commissioner that the shortfall in the rate of yield could not have been prevented by the licensee even after the exercise of proper care and precaution and that the molasses in any form or spirit could not have been passed into consumption or misuse, the Commissioner may for reasons to be recorded in writing, make suitable allowance in the rate of yield specified by him. (4) Where the rate of yield is lower than the rate specified by the Commissioner under Sub-rule (1) and where no allowance has been given by the Commissioner under sub-rule (2), the licensee shall pay by way of penalty at the rate of sixteen rupees per proof litre on the difference between the rate of yield specified by the Commissioner and the actual yield." 11. It must be noted that the petitioner has obtained license and agreed to abide by the Tamil Nadu Distillery Rules, 1981 and there is no right to carry out any trade in the matter of alcohol. Having agreed to abide by the Rules, the petitioner cannot turn back and challenge the validity of the said Rule. It is open to the State Government to fix the norms for the yield of alcohol from the Molasses lest the control commodity like the alcohol is likely be diverted without notice to the Government. Review has to be done by the Commissioner who is the highest authority under the department of Prohibition and Excise Department and therefore, it cannot be said that power was given to an officer of lower rank. Similarly, the authority also has got power to grant suitable allowance if yield is not kept properly. Uniform rate of penalty fixed under the Rule also cannot be found fault with as it has been agreed to be part of the conditions for which the Trade is carried on. 12. This Court do not find any constitutional infringement in the said Rules and hence, W.P.No.15346 is liable to be rejected. Uniform rate of penalty fixed under the Rule also cannot be found fault with as it has been agreed to be part of the conditions for which the Trade is carried on. 12. This Court do not find any constitutional infringement in the said Rules and hence, W.P.No.15346 is liable to be rejected. In respect of the impugned order passed by the State Government in W.P.No.15345 of 2008, it is second round of litigation by the petitioner. Under the periodical review done by the Commissioner, the shortfall has been found out and the amount of shortfall runs into several thousands of litres during the three quarterly period ending on 30.06.1982, 30.09.1982 and 31.12.1982. In paragraph 3 of the counter, it was set out as follows:- 13. In the earlier round of litigation, this Court did not find any fault in the power to be exercised by the authorities and only opportunity was directed to be furnished to the petitioner before passing the impugned order. It was stated that the crash shutdown of the distillery plant and power shortage were never brought to the notice of the authorities for the low yield of alcohol. 14. With reference to the testing of the sample, in paragraph 14 of the counter, it was stated as follows:- "14. ...The instructions issued to the Distillery Officers in December, 2003 to send required number of samples of Molasses for analysis which would reflect the actual average percentage of TRS content of Molasses distilled in 3 months would take only prospective effect and since the yield rate had been arrived at based on the average TRS content of the actual number samples of total quantity of Molasses distilled during the respective quarterly periods the contention of the Petitioner Distillery that Analysis Reports and calculations of expected yield of Rectified Spirit on the basis of few samples would not be accurate is not acceptable. When in respect of all other Distilleries, the yield rate of alcohol was calculated on the basis of the Analysis Reports on the actual number of samples of Molasses sent for analysis during the respective quarterly periods, the Petitioner Distillery alone cannot be an exception to this procedure. When in respect of all other Distilleries, the yield rate of alcohol was calculated on the basis of the Analysis Reports on the actual number of samples of Molasses sent for analysis during the respective quarterly periods, the Petitioner Distillery alone cannot be an exception to this procedure. The Government examined the various contentions put forth by the Petitioner Distillery for the lower yield of alcohol achieved during the respective quarterly periods and as the reasons adduced for the lower yield were more or less the same for each quarter they rejected the appeals in a single order as they considered it not necessary to pass separate orders for each quarterly period." 15. The fact that the petitioner had agreed to abide by the license conditions is also set out in paragraph 15, which is as follows:- "15. ...Further in as much as the Petitioner Distillery has already given an undertaking in its application for the grant of licence to abide by the conditions of the licence and the provisions of the Tamil Nadu Prohibition Act, 1937 and the Rules made there under it has no moral right to question the validity of the action taken by the Commissioner of Prohibition and Excise." 16. Further Tamil Nadu Act 68 of 1986 amending the provisions of Tamil Nadu Prohibition Act gives power for prescribing limit of wastage, shortage of spirit as well as penalty. Hence, Rule 39(1)(2) and Rule 39(4) of Tamil Nadu Distillery Rules cannot be said to be ultra vires of the Prohibition Act. The quantity fixed for yield from the Molasses is scientifically fixed as set out in paragraphs 17 and 22, which reads as follows: "17. ...Since Rule 39(1) of the said Rules indicates that Commissioner of Prohibition and Excise unspecify the yield rate of different kinds of spirits for different kinds of Molasses from time to time which the licensee has to ensure by monitoring efficiency in fermentation and distillation and the norms prescribed for the yield rate of alcohol in the circular dated 02.11.1989 are based on the expert opinion of the Tamil Nadu Forensic Laboratory rule 39 and sub-rule (1) to (4) of the said Rules, are not liable to be struck down as they are well within law and authority. 22. 22. The petitioner Distillery, had it been interested, could have obtained copies of the Analysis Reports of the Tamil Nadu Forensic Science Department of the samples of Molasses distilled during the quarterly periods ended 30.06.82, 30.09.82 and 31.12.82 from the Distillery Officer as they are entered in a Register maintained for the purpose on receipt form the Tamil Nadu Forensic Science Laboratory. The Distiller had, in his explanations stated the reasons for the shortfall knowing fully well the details of the Analysis Reports of the Tamil Nadu Forensic Science Department. Therefore, the stand taken by the Government that to ask for Analysis Reports for the year 1982 after 25 years is unacceptable and impracticable and its action confirming the orders of the Commissioner of Prohibition and Excise is in order and is not against principles of natural justice as alleged." 17. It was also stated that the fact there was no complaint of misuse of Molasses or Alcohol is not a ground to reduce the penalty. In the light of the stand taken by the respondents, there is no case made out to interfere either with the impugned order passed by the Government or to find unconstitutionality in the impugned provisions. Hence, both the writ petitions will stand dismissed. However, there shall be no order as to costs.