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Judgment
D. Murugesan, J.—The Petitioner participated in the auction conducted on 13.7.94 for vending of liquor for the year 1994-95 for a period
of eleven months from August 1994 to June 1995. He was the successful bidder in respect of the shop bearing A.S. No. 2(N) at Kariyamanikkam
Village and the kist amount was Rs. 80,200/- per month. According to the conditions of auction, the Petitioner had to pay three months kist
amount as security deposit. The Petitioner in fact paid the said amount of Rs. 2,40,600/- being the three months kist amount as security deposit.
The Petitioner also paid the monthly kist for the months of August, September and October 1994. Thereafter, the Petitioner did not pay the kist
from the month of November 1994 and closed the business from the month of January 1995. While that be so, on 31.3.97 the Respondents issued
sale notice for sale of the Petitioner''s agricultural lands towards the balance of arrears of Rs. 3,89,796/- i.e. for the period from January 1995 to
June 1995. Pursuant to the notice, the Petitioner also paid a sum of Rs. 1,35,000/- . In view of the same, the Petitioner has filed this writ petition
for a declaration declaring the action of the Respondents in fixing levying kist in respect of the Petitioner''s arrack shop as illegal and for a
consequential direction to the Respondent to refund the amounts paid by the Petitioner.
learned Counsel for the Petitioner challenged the action of the Respondents on the ground that are per condition 18(2) of the conditions of
auction, if the monthly kist amount is not paid on or before 25th of every succeeding calender month, the security deposit shall be adjusted towards
the same. In spite of such adjustment, if the licensee fails to pay the amount beyond the period of three months, the licence stands automatically
cancelled and the Respondents are at liberty to re-auction the shop. In this case, even though the Petitioner has not paid the amount beyond
January 1995, the Respondents ought to have cancelled the licence and proceeded with the re-auction of the shop. Without resorting to the same,
the Respondents cannot demand the arrears of monthly kist for the period from January 1995 to June 1995.
Mr. T. Murugesan, learned Government Pleader (Pondicherry), on the other hand, would submit that the privilege to retail vend of arrack is
granted to the Petitioner subject to the condition that the Petitioner shall pay the monthly kist for the entire period for which the privilege is granted.
Merely because the Petitioner was unable to continue the business, that will not entitle the Petitioner to contend that he is not liable to pay the kist
amount for the period for which he did not conduct the business. The learned Government Pleader further submitted that even in the absence of
any re-auction, the Respondents are empowered to collect the monthly kist amount from the Petitioner for the entire period for which the privilege
to vend the arrack is given. The submission of the learned Counsel for the Petitioner that as per condition 18(2) of the auction notice, the
Respondents ought to have brought the shop for re-auction after cancelling the licence of the Petitioner is not well founded in as much as whenever
auction is conducted, the successful bidder in the said auction is granted licence subject to the condition that he will pay the entire monthly kist
amount for the period for which privilege to vend arrack is given.
The grant of the licence is governed by the provisions of Section 16 of the Pondicherry Excise Act, 1970. As per Section 16(1), the
Government may lease to any person, on such conditions and for such period as it may think fit, the exclusive or other right of selling by wholesale
or by retail any Indian liquor or intoxicating drug within any specified area. As per Rule 143 of the Pondicherry Excise Rules, 1970, the
government has got the power to lease of right, of retail vend of liquors by auction. When such auction is conducted, the successful bid is
confirmed by virtues of Rule 155 of the Pondicherry Excise Rules. Once the lease is confirmed, the successful bidder has to execute the lease and
mortgage deeds. The form of agreement is also provided wherein under Clause 5 of the agreement, the lessee gives an undertaking which is
extracted as follows: -
The lessee agrees with the Government to abide by the clauses and conditions stipulated in the Gazette Notification hereto annexed and also agree
for the recovery of excise rental arrears with interest as per Pondicherry Excise Rules, 1970 and under the provisions of Pondicherry Revenue
Recovery Act, 1970 in case of default.
In terms of the above provision for undertaking, the lessee also executes an undertaking agreeing that the immovable properties mentioned in the
schedule be insufficient for any amounts due to the Government, the Government has the right to proceed against the lessee personally and also
against the immovable and movable properties. On a reading of the above provision, it is seen that the licence to vend liquor is governed by a
contract entered into between the Petitioner and the Respondents and the provisions of Pondicherry Excise Act and the Rules are binding on the
parties. While considering the right of the licensee in the matter of sale of retail vend of liquor, the Supreme Court in the decision in Panna Lal and
Others etc., etc., Vs. State of Rajasthan and Others, has held as under:
The licences in the present case are contracts between the parties. The licensees voluntarily accepted the contracts. They fully exploited to their
advantage the contracts to the exclusion of others. The High Court rightly said that it was not open to the Appellants to resile from the contracts on
the ground that the terms of payment were onerous. The reasons given by the High Court were that the licensees accepted the licence by excluding
their competitors and it would not be open to the licensees to challenge the terms either on the ground of inconvenient consequence of terms or of
harshness of terms.
Following the said judgment, the Supreme Court in another decision in Assistant Excise Commissioner and Others Vs. Issac Peter and Others, has
held as follows:
May be these are cases where the licensees took a calculated risk. May be they were not wise in offering their bids. But in law there is no basis
upon which they can be relieved of the obligations undertaken by them under the contract. It is well known that in such contracts-which may be
called executory contracts-there is always an element of risk. Many an unexpected development may occur which may either cause loss to the
contractor or result in large profit. Take the very case of arrack contractors. In one year, there may be abundance of supplies accompanied by
good crops induced by favourable weather conditions: the contractor will make substantial profits during the year. In another year, the conditions
may be unfavourable and supplies scarce. He may incur loss. Such contracts do not imply a warranty - - or a guarantee - - of profit to the
contractor. It is a business for him ? profit and loss being normal incidents of a business. There is no room for invoking the doctrine of unjust
enrichment in such a situation. The said doctrine has never been invoked in such business transactions. The remedy provided by Article 226, or for
that matter, suits, cannot be resorted to wriggle out of the contractual obligations entered into by the licensees.
The Supreme Court also in yet another decision in State Bank of Haryana and Others Vs. Jage Ram and Others, following the decision of Har
Shankar and Others Vs. The Dy. Excise and Taxation Commr. and Others, has held as follows:
In view of these decisions, the preliminary objection raised by the learned Solicitor General to the maintainability of the writ petitions filed by the
Respondents has to be upheld. We hold accordingly that the High Court was in error in entertaining the writ petitions for the purpose of examining
whether the Respondents could avoid their contractual liability by challenging the Rules under which the bids offered by them were accepted and
under which they became entitled to conduct their business. It cannot ever be that a licensee can work out the licence if he finds it profitable to do
so ; and he can challenge the conditions under which he agreed to take the licence, if he finds it commercially inexpedient to conduct his business.
The Respondents agreed to pay a certain sum under the terms of the auction and the Rules only prescribe a convenient mode whereby their liability
was spread over the entire year by splitting it up into fortnightly installments. The Rules might as well have provided for payment of a lump sum and
the very issuance of the licence could have been made to depend on the payment of such sum. It could not be argued in that event that the lump
sum payment represented excise duty, it cannot be so argued in the present event merely because the quota for which the Respondents gave their
bid is required to be multiplied by a certain figures per proof litre and further because the Respondents were given the facility of paying the amount
by installments while lifting the quota from time to time. What the Respondents agreed, to pay was the price of a privilege which the State parted
with in their favour. They cannot therefore avoid their liability by contending that the payment which they were called upon to make is truly in the
nature of excise duty and that no such duty can be imposed on liquor not lifted or purchased by them.
The above law laid down by the Supreme Court would clearly indicate that the payment of kist by the licensee is governed by the contract and
is for the licensee is governed by the contract and is for the entire period of licence granted. The Petitioner who was the successful bidder for
vending the liquor for the period from August 1994 to June 1995 is therefore under obligation to pay the monthly kist for the said period. The
difficulty expressed by the Petitioner is that the Petitioner was unable to run the business and therefore he has closed down the business from
January 1995. When the Petitioner''s bid was accepted and confirmed and pursuant to the confirmation of the same, the Petitioner has executed a
lease agreement as well as an undertaking, the Petitioner is governed by the conditions of the lease agreement as indicated above. In the lease deed
as well as in the undertaking given by the Petitioner, it is clearly stated that if any arrears are due from the Petitioner, the same shall be recovered
by the Respondents as arrears of revenue also. The contention of the learned Counsel for Petitioner is that, as per condition 18(2) of the conditions
of arrack, in case, the lessee fails to pay the monthly kist, the same shall be adjusted from the three months security deposit and in case of further
default, the Respondents are entitled to bring back the shop for re-auction and therefore, there is no corresponding obligation on the part of the
Petitioner to pay the monthly kist. The question is not res Integra as the same was considered by a Division Bench of this Court in the judgment in
W.A. No. 1772 of 1998 dated 17.4.2001. While considering the scope of condition 18(2) of the auction notice, this Court has to say thus:
Clause 18 is only an enabling provision and the mere fact that the power to hold re-auction was not exercised would not prevent the State to
realise the arrears of kist so long as they remain as arrears and in a manner known to and permissible under law.
The above finding of the Division Bench settles the question as to whether, in the absence of the Respondents exercising re-auction, the
Respondents are entitled to collect the arrears of kist from the erstwhile licensee. Merely because the Respondents had not exercised their option
for bringing the shop for re-auction that will not automatically absolve the Petitioner from the liability to pay the monthly kist in respect of vending of
arrack for the entire period for which the licence was granted. Therefore, the contention of the learned Counsel for the Petitioner that since the
Respondents had not exercised their right for re-auction, the Petitioner cannot be made liable to pay the monthly kist for the period for which he
did not run the shop cannot be accepted. For all the above reasons, I do not find any merit in the writ petition and the same is dismissed. No costs.
Consequently, connected W.M.P. is also dismissed.