A.S. Balasubramaniam (dead) by Lrs. Ors., etc. etc. Vs. Asstt. Commissioner of Prohibition & Ors., etc. e
EmailAppeal: Civil Appeal Nos.2373/86, 3851/88 & 3205/88
WITH
Writ Petition (C) No.987 of 1986
WITH
Writ Petition (C) No.987 of 1986
Petitioner: A.S. Balasubramaniam (dead) by Lrs. Ors., etc. etc.
Respondent: Asstt. Commissioner of Prohibition & Ors., etc. etc.
Apeal: Civil Appeal Nos.2373/86, 3851/88 & 3205/88
WITH
Writ Petition (C) No.987 of 1986
WITH
Writ Petition (C) No.987 of 1986
Judges: A.M. AHMADI, YOGESHWAR DAYAL & N. VENKATACHALA, JJ.
Date of Judgment: Jul 28, 1993
Appearances:
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Head Note:
EXCISE
Tamil Nadu Arrack (Retail Shops) Rules, 1981 :
Rule 14(3) – Excise year 1984-85 – Arrack supply – Short supply of arrack during the indent period – Vide circular issued by the Commissioner remissions for short supply worked out on the basis of normal quota fixed for the year 1984-85 – Benefit of circular to be extended to appellants as well.
JUDGEMENT:
O R D E R
C.A. Nos.2373/86, 3851 & 3205 of 1988
1. These appeals are filed by the licensees of arrack shops situated in different parts of the State of Tamil Nadu and relate to the excise year 1984-85. The Writ Petition was originally placed for hearing before a learned Single Judge of the High Court. By an interim order dated 8th November, 1984 he gave certain directions but modified them by a subsequent order dated 30th January, 1985. In pursuance of this modified order the Commissioner of Prohibition and Excise issued a Circular No.5/85 dated 4th February, 1985 for the excise year 1984-85 wherein while pointing out that there was no entitled quota of arrack for any licensee and there was no minimum guaranteed quota which any licensee was obliged to lift during any month, he directed that for each shop a quantity of arrack to be called “Normal Quota” should be worked out and that will form the basis for working out remissions for the excise year 1984-85. It was also stated in that circular that the arrack was made available ‘in full’ as against the indents placed by the licensee for the period 16th July, 1984 to 15th August, 1984 and 16th August, 1984 to 15th September, 1984. The short supplies were only during the indent periods of September-October, 1984 to January-February, 1985. The basis for calculating the short supply and working out the remissions was to be the highest quantity actually lifted by any licensee for a shop during the indent period from 16th July, 1984 to 15th September, 1984. The indication was, therefore, also contained in circular itself as to how the remission in the ‘kist’ was to be worked out on the short supply to be calculated as stated earlier. Illustrations were also annexed to the circular indicating how the remissions will be worked out. However, when the matter came up for final hearing before a learned Single Judge, he after taking into consideration the earlier two interim orders given by him, observed that the Court had not made any pronouncement that the Commissioner shall be bound to supply arrack on a quota basis and in any event at the rate of 180 liters per month for Rs.1,000/- as rental claimed by the licensees. He clarified that it would not be correct to say that the Court had accepted the case of the Writ Petitioners that there was an entitlement quota at the rate of 180 liters per month or that the right of the petitioners was to be determined on the basis of that formula. Observing that the circular dated 4th February, 1984 was not the subject matter of the petition, he did not deem it appropriate to go into the question whether the formula adopted thereunder was sustainable. In this view of the matter the learned Judge came to the conclusion that the basis for the Writ Petition, namely existence of quota of 180 liters to be supplied for Rs.1,000/- per month rental was not established. Hence appeals were taken to the Division Bench. The Division Bench, after considering the relevant rules and the factual position as emanating from the record, saw no reason to interfere with the order passed by the learned Single Judge and accordingly dismissed the appeals with costs. It is against the dismissal of the said appeals that the present appeals are filed under Article 136 of the Constitution. We may also state that certain other licensees of arrack shops approached the High Court subsequently but their petitions were also rejected on the basis of the order made by the Division Bench. They too have, therefore, similarly approached this Court.
2. We heard learned counsel for the appellants at length and also perused Rule 14(3) of the Tamil Nadu Arrack (Retail Shops) Rules, 1981. Rule 14(1) requires the licensees to pay the rental amount promptly before the 10th of every month and Rule 14(2) states that the sums payable to the Government by the licensees could be deducted from the amounts of deposits. It next states that no remission of the rental shall be allowed on any account, whatsoever. Rule 14(3) reads as under:
“14(3) – Notwithstanding anything contained in sub-rule (2) where there is non supply or short supply to the licensee of the quantity of arrack fixed by the Commissioner and indented for by the licensee duly countersigned by the Excise Officer, the Commissioner may in consultation with the Collector, remit the whole or any portion of the monthly rental payable to Government by the licensee. Such remission shall not be granted if the abovesaid quantity of arrack is made available to the licensee, but is not lifted due to default of the licensee.”
Learned counsel for the appellants submitted that it was incumbent on the Commissioner to fix the quantity of arrack to be supplied to the licensee and since the Commissioner had failed to fix the same for the excise year 1984-85 the quantity which had been fixed for the preceding year had to be assumed to be the quantity for the year in question and remissions had to be granted for non-supply or short supply of arrack to the licensees on that basis. Now both, the learned Single Judge as well as the Division Bench came to the conclusion that Rule 14(3) was an enabling provision but in fact no quota was fixed by the Commissioner under that Rule and it was for that reason that the circular was issued to comply with the interim order passed by the learned Single Judge. While issuing the circular it was made clear that there was no entitled quota of arrack for any licensee for the year 1984-85 that the licensees had been supplied arrack in full for the period upto 15th September, 1984. Conceding that there were short supplies during the indent period upto February, 1985, it was directed that on the basis of highest quantity actually lifted by the licensees for the period prior to 15th September, 1984, the remissions for short supply will be worked out on the basis of normal quota to be fixed for the year 1984-85. Now as stated earlier both the learned Single Judge as well as the Division Bench came to the conclusion that this circular was independent of the proceedings, in the sense, it was not the subject matter of any challenge in the Writ Petitions. But it must be conceded that it became necessary for the Commissioner to issue the circular to comply with the interim order made by the learned Single Judge. It is, therefore, but fair that if the benefit of this circular has been extended to other licensees who had not moved the court and they have been granted remissions for short supply on the formula worked out thereunder, the benefit thereof should also be granted to the petitioners because it would otherwise be unfair to deny it to them merely because they had moved the Court. We, therefore, think that the ends of justice demand that if the authorities have extended the benefit of the circular to other licensees and have granted them remissions on the basis of the formula worked out thereunder the same benefit should enure to the appellants also. If no such benefit is given, this Order should not be understood to be extending the benefit. Except for this direction we see no reason to interfere with the impugned order under appeal before us.
3. The appeals, therefore, shall stand disposed of in terms of the above directions with no order as to costs.
W.P.(C) No.987 of 1986
4. In view of the order made in Civil Appeals Nos.2378/86, 3851 & 3205 of 1988 the learned counsel for the petitioner does not press this petition. The petition will stand disposed of as not pressed. There will be no order as to costs.
C.A. Nos.2373/86, 3851 & 3205 of 1988
1. These appeals are filed by the licensees of arrack shops situated in different parts of the State of Tamil Nadu and relate to the excise year 1984-85. The Writ Petition was originally placed for hearing before a learned Single Judge of the High Court. By an interim order dated 8th November, 1984 he gave certain directions but modified them by a subsequent order dated 30th January, 1985. In pursuance of this modified order the Commissioner of Prohibition and Excise issued a Circular No.5/85 dated 4th February, 1985 for the excise year 1984-85 wherein while pointing out that there was no entitled quota of arrack for any licensee and there was no minimum guaranteed quota which any licensee was obliged to lift during any month, he directed that for each shop a quantity of arrack to be called “Normal Quota” should be worked out and that will form the basis for working out remissions for the excise year 1984-85. It was also stated in that circular that the arrack was made available ‘in full’ as against the indents placed by the licensee for the period 16th July, 1984 to 15th August, 1984 and 16th August, 1984 to 15th September, 1984. The short supplies were only during the indent periods of September-October, 1984 to January-February, 1985. The basis for calculating the short supply and working out the remissions was to be the highest quantity actually lifted by any licensee for a shop during the indent period from 16th July, 1984 to 15th September, 1984. The indication was, therefore, also contained in circular itself as to how the remission in the ‘kist’ was to be worked out on the short supply to be calculated as stated earlier. Illustrations were also annexed to the circular indicating how the remissions will be worked out. However, when the matter came up for final hearing before a learned Single Judge, he after taking into consideration the earlier two interim orders given by him, observed that the Court had not made any pronouncement that the Commissioner shall be bound to supply arrack on a quota basis and in any event at the rate of 180 liters per month for Rs.1,000/- as rental claimed by the licensees. He clarified that it would not be correct to say that the Court had accepted the case of the Writ Petitioners that there was an entitlement quota at the rate of 180 liters per month or that the right of the petitioners was to be determined on the basis of that formula. Observing that the circular dated 4th February, 1984 was not the subject matter of the petition, he did not deem it appropriate to go into the question whether the formula adopted thereunder was sustainable. In this view of the matter the learned Judge came to the conclusion that the basis for the Writ Petition, namely existence of quota of 180 liters to be supplied for Rs.1,000/- per month rental was not established. Hence appeals were taken to the Division Bench. The Division Bench, after considering the relevant rules and the factual position as emanating from the record, saw no reason to interfere with the order passed by the learned Single Judge and accordingly dismissed the appeals with costs. It is against the dismissal of the said appeals that the present appeals are filed under Article 136 of the Constitution. We may also state that certain other licensees of arrack shops approached the High Court subsequently but their petitions were also rejected on the basis of the order made by the Division Bench. They too have, therefore, similarly approached this Court.
2. We heard learned counsel for the appellants at length and also perused Rule 14(3) of the Tamil Nadu Arrack (Retail Shops) Rules, 1981. Rule 14(1) requires the licensees to pay the rental amount promptly before the 10th of every month and Rule 14(2) states that the sums payable to the Government by the licensees could be deducted from the amounts of deposits. It next states that no remission of the rental shall be allowed on any account, whatsoever. Rule 14(3) reads as under:
“14(3) – Notwithstanding anything contained in sub-rule (2) where there is non supply or short supply to the licensee of the quantity of arrack fixed by the Commissioner and indented for by the licensee duly countersigned by the Excise Officer, the Commissioner may in consultation with the Collector, remit the whole or any portion of the monthly rental payable to Government by the licensee. Such remission shall not be granted if the abovesaid quantity of arrack is made available to the licensee, but is not lifted due to default of the licensee.”
Learned counsel for the appellants submitted that it was incumbent on the Commissioner to fix the quantity of arrack to be supplied to the licensee and since the Commissioner had failed to fix the same for the excise year 1984-85 the quantity which had been fixed for the preceding year had to be assumed to be the quantity for the year in question and remissions had to be granted for non-supply or short supply of arrack to the licensees on that basis. Now both, the learned Single Judge as well as the Division Bench came to the conclusion that Rule 14(3) was an enabling provision but in fact no quota was fixed by the Commissioner under that Rule and it was for that reason that the circular was issued to comply with the interim order passed by the learned Single Judge. While issuing the circular it was made clear that there was no entitled quota of arrack for any licensee for the year 1984-85 that the licensees had been supplied arrack in full for the period upto 15th September, 1984. Conceding that there were short supplies during the indent period upto February, 1985, it was directed that on the basis of highest quantity actually lifted by the licensees for the period prior to 15th September, 1984, the remissions for short supply will be worked out on the basis of normal quota to be fixed for the year 1984-85. Now as stated earlier both the learned Single Judge as well as the Division Bench came to the conclusion that this circular was independent of the proceedings, in the sense, it was not the subject matter of any challenge in the Writ Petitions. But it must be conceded that it became necessary for the Commissioner to issue the circular to comply with the interim order made by the learned Single Judge. It is, therefore, but fair that if the benefit of this circular has been extended to other licensees who had not moved the court and they have been granted remissions for short supply on the formula worked out thereunder, the benefit thereof should also be granted to the petitioners because it would otherwise be unfair to deny it to them merely because they had moved the Court. We, therefore, think that the ends of justice demand that if the authorities have extended the benefit of the circular to other licensees and have granted them remissions on the basis of the formula worked out thereunder the same benefit should enure to the appellants also. If no such benefit is given, this Order should not be understood to be extending the benefit. Except for this direction we see no reason to interfere with the impugned order under appeal before us.
3. The appeals, therefore, shall stand disposed of in terms of the above directions with no order as to costs.
W.P.(C) No.987 of 1986
4. In view of the order made in Civil Appeals Nos.2378/86, 3851 & 3205 of 1988 the learned counsel for the petitioner does not press this petition. The petition will stand disposed of as not pressed. There will be no order as to costs.
