Madras High Court
A.J. Joy And Etc. vs The Govt. Of Tamil Nadu And Others Etc. on 30 June, 1993
Equivalent citations: AIR1993MAD282, AIR 1993 MADRAS 282, (1993) 2 MAD LW 18
ORDER Srinivasan, J.
A. INTRODUCTION (Thirukkural : 923) "The sight of the man who is intoxicated is an abomination even unto the mother that bore him; what must it be then to the worthy?"
(Translation by Sri V. V. S. Aiyar) So said Tiruvalluvar 2000 years ago. But obviously the words have not had the desired effect on mankind.
2. Article 47 of the Constitution of India enjoins the State to endeavour to bring about prohibition of the consumption of intoxicating drinks and of drugs which are injurious to health except for medicinal purposes. Four decades and more have elapsed since the advent of the Constitution. But no effective steps could be taken by any State for eradicating the evil. When the sagely advice of the Saint has failed to achieve its purpose for thousands of years, there is no wonder that the provision in the Constitution remains static. The problem is not confined to this country. It is present all over the world, and it has attracted the attention of the reformers and Legislators in all ages and at all times almost from the beginning of civilised society. But no country has yet succeeded in enforcing total prohibition. In 1743, Lord Lonsdale said in the House of Lords :--
"In every part of this great metropolis whoever shall pass along the streets will find wretchedness stretched upon the pavement, insensible and motionless, and only removed by the charity of passers by from the danger of being crushed by carriages or trampled by horses or strangled with fifth in the common sewers..... These liquors not only infatuate the mind but poison the body; they not only fill our streets with madness and our prisons with criminals, but our hospitals with cripples ..... Those women who riot in this poisonous debauchery are quickly disabled from bearing children, or produce children diseased from their birth."
The scenario now presents in this country, at any rate in this State is almost the same which caused great concern to the House of Lords two centuries and a half ago. The Temperance Movement commenced then, but has not been fully successful. The position in our State and other countries has been similar.
B. HISTORY OF THE G. O.
3. The State of Tamil Naducan, however, boast that it is the first State in this country when it introduced prohibition in 1937 when it was Madras Province. But the policy has not remained unchanged and proved itself to be vacillating. In August 1971, the operation of the Tamil Nadu Prohibition Act of 1937 (hereinafter referred to as 'the Act'), was temporarily suspended. Prohibition was re-introduced in August 1973 by abolition of toddy shops and in September 1974 by abolition of arrack shops. However, the sale of Indian made Foreign Liquor imported from other States was continued in licensed shops. Such sale was to permit-holders. At that time, no one was given a licence to manufacture liquor in this State. In 1981, there was a shift in the stand and the provisions of the Act were relaxed with the result the sale of toddy and arrack were permitted. The State also permitted manufacture of Indian Made Foreign Spirit. At the same time, the personal permit system to drink toddy, arrack and Indian Made Foreign Liquor was also introduced. Toddy shops were permitted on a tender-cum-auction basis. Permission to manufacture arrack was granted to certain private individuals. Arrack retail shops were given permits on tender-cum-auction system. In 1987, the manufacture, sale and consumption of toddy and arrack were once again totally prohibited, though Indian Made Foreign Liquor retail shops continued to function. In 1989, the privilege of selling Indian Made Foreign Liquor by retail was granted through tender-cum-auction system. In 1990, the manufacture, sale and consumption of country liquor was introduced and the Tamil Nadu Spirit Corporation Limited was granted the exclusive privilege of manufacturing country liquor. The wholesale was entrusted to Tamil Nadu State Marketing Corporation Limited, while the retail was done through retail outlets. In 1991, the sale of country liquor was discontinued with effect from 16th July, 1991.
4. In so far as Indian Made Foreign Liquor is concerned, the Tamil Nadu Liquor (Licence, and Permit) Rules, 1981 provided for issue' of licences for sale of the said commodity and issue of permits for consump-
tion. Those Rules were replaced by Tamil Nadu Liquor (Retail Vending) Rules, 1989. The privilege of vending Indian Made Foreign Spirit was granted under the Rules through auctions at upset price fixed in accordance with the Rules. The Rules provided for grant of privilege for retail vending in liquor and issue of licence to the grantee. There were also provisions for, renewal of licences, the initial period thereof being one year. Though the licence was not transferable, it was made heritable in the event of death of the licencee. The Jicencee was to sell liquor only to those who hold personal permits and entries shall be made regarding the sale in a register maintained in the appropriate form. The liquor shall be sold in sealed bottles in the same condition as was received from the Tamil Nadu State Marketing Corporation. Most of the licences issued under the Rules expired before 31-5-1992 and a few of them had validity beyond 31-5-1992. As there was no provision in the Rules to renew the licences for the year 1992-93, the Commissioner of Prohibition and Excise sought clarification as to whether fresh auction should be conducted for all the liquor retail vending shops whose licence period expired on or before 31-5-1992. The Commissioner had also recommended in respect of shops whose licences were valid beyond 31-5-1992 to restrict the period of licences to the said date and proportionate refund of the privilege amount. The Government considered the matter and directed the following of afresh procedure for issue of licence for liquor retail vending business for the year 1992-93 by notification in G. O. Ms. No. 90, Prohibition and Excise (XV) Department, dated 21-4-1992. The total number of liquor retail vending shops and the upset price for the various places including the City of Madras were fixed thereby. The notification also provided that the licence to be issued for the year 1992-93 shall be renewed for the second and third year after collecting the increased privilege fees as prescribed in Rules 14(1) and 14(2) of the 1989 Rules. An Ordinance was passed terminating the validity of licences which had life beyond 31st May, 1992 with the expiry of the said day. Subsequently, it was made into Act 42 of 1992 with effect from 12-5-1992 by which Section 23(b) of the Act was substituted.
5. On 26-5-1992, the Government issued . G. O. Ms. No. 99 allowing the liquor retail vending licences to open bars within or adjoining their licenced premises subject to certain conditions. According to the Notification, representations were made by the Indian Made Foreign Liquor Vendors' Association for permitting opening of bars within the retail shops and similar suggestions were made by the Collectors. The Commissioner of Prohibition and Excise had also recommended the proposal and the Government accepted the same. Consequently, the Tamil Nadu Liquor (Retail Vending in Bar) Rules, 1992 was passed and it came into force on the 1st day of June, 1992. Rule 3 provided for grant of privilege by issue of licence to a person holding a licence granted under Rule 13 of the 1989 Rules for retail vending of liquor in the bar. 'Bar' is defined as "a place used for retail vending of liquor for consumption therein". As per the Rules, "retail vending liquor" includes the vending of liquor in open bottles, glasses or pegs for consumption in the bar. As per Rule 4, every person holding a licence granted under Rule 13 of the 1989 rules, and who intends to obtain the privilege of retail vending of liquor in the bar, shall make an application in the prescribed form to the licensing authority for the grant of the privilege and issue of licence for retail vending of liquor in the bar. The procedure for considering such applications is prescribed in the rules. Provisions are also made for renewal of such licences for two successive years. Such licence is also made heritable though not transferable.
6. Obviously, the Government had taken a retrograde step in the matter of enforcement of prohibition by permitting the opening of bars in the retail vending shops. Representations were made by members of the public in various places setting out their sufferings as a result of the opening of the bars. It was also brought to the notice of the Government that taking advantage of the bars attached to the shops, illicit and spurious liquor was being sold. The Government thought fit to change its policy and decided not to grant new licences or renew the existing licences for the bars attached to the retail vending shops with effect from 1-6-1993. The policy was announced by His Excellency the Governor of Tamil Nadu in the Legislative Assembly on 4-3-1993. The relevant part of his speech reads thus :--
"Prohibition as a key issue of State Policy is a constitutional directive. Honourable Members of the House are aware that the Government under the leadership of the Chief Minister Dr. J. Jayalalitha, implemented as its first decision the abolition of cheap liquor shops throughout the State, in keeping with its announced policy of Prohibition, although this involved an annual loss of Revenue of Rs. 390 crores. The drive against the bootlegging and illicit liquor was intensified with the formation of the Prohibition Enforcement Wing. The Chief Minister's drive against erring officials resulted in a noticeable reduction in the incidence of illicit liquor. A massive multi-media propaganda offensive against the evils of liquor has also been launched. We have decided to give decisive edge to the offensive against illicit liquor by strengthening further the Prohibition Enforcement Wing at a cost of Rs. 7 crores. With one enforcement unit in each police sub division, the Enforcement Wing will act effectively against the anti social elements engaged in the illicit liquor trade. This Government places the highest emphasis on the welfare of the people, revenue considerations yielding place to consideration of maximum social good. Members of the House will whole-heartedly welcome the decision of the Government to withdraw the licences for bars attached to foreign spirit shops with effect from the excise year commencing from June, 1993".
Pursuant to the same, the Government issued a notification G. O. Ms. No. 44 dated 3-3-1993 rescinding the Tamil Nadu Liquor (Retail Vending in Bar) Rules, 1992 with effect on and from the 1st June, 1993.
C. WRIT PETITIONS AND THE ORDER THEREIN.
7. It is the validity of the said G. O., which is challenged in these proceedings. The Madras City Wine Merchants' Association filed W.P. No. 7776 of 1993, while the Madurai District Liquor Dealers' Asspcia-tion filed W.P. 7813 of 1993. An individual by name A. J. Joy filed W. P. No. 8028 of 1993. The prayer in all the three writ petitions was the same. The reliefs sought were quashing of the aforesaid G. O. and directing the respon-dents to grant renewal of licence for vending liquor in the bars attached to the shops of the petitioners for the years 1993-94 and 1994-95. Bakthavatsalam, J. passed a common order in W.P. 7776 and 7813 of 1993 on 29-4-1993 dismissing the same. In that order, he has given his reasons in detail. On the same day, he dismissed W. P. 8028 of 1993 following his order in the other two writ petitions. The aggrieved petitioners have preferred these writ appeals, which are respectively numbered as W. A. Nos. 658, 661 and 636 of 1993.
D. CONTENTIONS IN THE APPEALS
8. Mr. K. Parasaran appeared for the appellants in W. A. No. 658 of 1993 and submitted that the petitioners in the writ petitions are entitled to the reliefs prayed for by them on the basis of the doctrine of legitimate expectation. It was also contended by him that the impugned G. O. is violative of Article 14 of the Constitution of India inasmuch as it is wholly arbitrary and unreasonable. Thirdly, he said that by the operation of Section 8 of the Tamil Nadu General Clauses Act, the petitioners are entitled to enforce the rights acquired by them under the repealed rules. Mr. Jayaraman appearing for the appellants in W. A. 636 of 1993, while adopting the arguments of Mr. Parasaran, added that the principle of promissory estoppel would apply and the Government is not entitled to go back on the representation made in 1992 and deprive the petitioners of the benefits of the rights conferred on them. Mr. Somayaji representing M/s. Aiyar and Dolia appeared for the appellants in W.A. 661 of 1993 and submitted that there was no policy at all in the decision taken by the Government and the circumstances which existed in 1992 when the opening of the bars was permitted have not changed and they continue to exist even at present.
9. The Advocate General appeared for the State and supported the judgment of the learned single Judge as well as the impugned G.O. by submitting that the jurisdiction of the Court under Article 226 of the Constitution of India does not enable it to interfere with the policies of the Government. He produced the relevant files to prove that representations were received by the Government from various quarters with reference to the unsavoury consequences of the opening of the bars in the retail shops. He submitted that trading in liquor is itself obnoxious and no one can claim any fundamental right thereto. According to him, the Government is entitled to impose such restrictions as it may deem fit with regard to such a trade and it cannot be compared to other lawful trades. He argued that the impugned G.O. is neither arbitrary nor unreasonable and the principle of promissory estoppel as well as the doctrine of legitimate expectation would not apply to the present case. He also contended that the 1992 Rules having been repealed by the impugned G. O., the petitioners have no surviving right in them.
E. (i) DOCTRINE OF LEGITIMATE EXPECTATION
10. Considerable reliance is placed on this doctrine by learned senior counsel, though he admitted that it is a recently born one and not fully developed. It was argued that the petitioners had a legitimate expectation that their licenses for running the bars will remain undisturbed so long as they have valid licences for vending liquor in their shops. According to him, the provisions for renewal of licences for two successive years gave rise to such a legitimate expectation, which could be enforced in a Court of Law. He invited our attention to an article by one C. F. Forsyth in the Cambridge Law Journal, 1988 (pages 238 to 260) entitled "The Provenance and Protection of Legitimate Expectations". After tracing the origin of the doctrine and the development thereof in judicial pronouncements in England, the learned author has admitted that the general tenor of most decisions is against substantive protection but two recent decisions support the broader view that the doctrine should not only give procedural protection but also provide substantive protection. Our attention was drawn in particular to pages 252 to 254. We do not think it necessary to extract the same. However, we find the following passage in page 256 to be relevant in the context of this case :--
"A similar approach was in fact envisaged by Parker LJ, in R. v. Secretary of State for the Home Department, ex parte Khan (1984) 1 WLR 1337 (CA). The learned judge said that the "Secretary of State is, of course, at liberty to change the policy but in my view, vis-a-vis the recipient of such a letter, a new policy can only be implemented after such a recipient has been given a full and serious consideration whether there is some overriding public interest which justifies a departure from the procedures stated in the letter. So substantive protection of legitimate expectation does not mean that in all circumstances the expectation will be fulfilled by a favourable decision. Where there is an "overriding public interest" the expectation may be dashed, but in the absence of such an "overriding public interest" legitimate expectations of some boon or benefit should be fulfilled."
11. Reference was made to paragraph 81 in page 151 in Halsbury's Laws of England, Fourth Edition, Vol. 1(I). The said paragraph occurs in the main topic "Procedural Requirements and the Right to a Fair Hearing". The first paragraph deals with the mandatory and directory requirements while the second paragraph relates to legitimate expectation. We are not extracting the passage found in the text book for the reason which we will disclose a little later. Learned senior counsel also referred to the judgment in R. v. Bradfort Metropolitan City Council, ex parte Wilson, (1989) 3 All ER 140 and the following judgments of the Supreme Court :
1. Sri Srinivasa Theatre v. Govt. of Tamil Nadu, ,
2. State of Himachal Pradesh v. Kailash Chand Mahajan, .
3. Navjyoti Co-op. Group Housing Society v. Union of India, ,
4. Food Corporation of India v. M/s. Kamdhenu Cattle Feed Industries, and
5. U.O.I. v. Hindustan Development Corpn., .
We would have had the necessity of referring to each of the above judgments as well as the passage in Halsbury and dealing with the matter at length but for the fact that the Supreme Court has already taken up the exercise and brought out a magnum opus on the subject in the last mentioned case. (See paragraphs 22 to 38). All the materials on the doctrine of legitimate expectation from its origin have been fully referred to and considered in the said judgment. Ultimately the Court said :--
"36.....If it is a question of policy, even by way of change of old policy, the Courts can not interfere with a decision.....
38. Legitimate expectations may come in various forms and owe their existence to different kind of circumstances and it is not possible to give an exhaustive list in the context of vast and fast expansion of the governmental activities. They shift and change so fast that the start of our list would be obsolete before we reached the middle. By and large they arise in cases of promotions which are in normal course expected, though nor guaranteed by way of a statutory right, in cases of contracts, distribution of largess by the Government and in somewhat similar situations. For instance in cases of discretionary grant of licences, permits or the like, carries with it a reasonable expectation though not a legal right to renewal or non-revocation, but to summarily disappoint that expectation may be seen as unfair without the expectant person being heard. But there again the court has to see whether it was done as a G.O., rule or by way of a legislation. If that be so, a decision denying a legitimate expects-tion based on such grounds does not qualify for interference unless in a given case, the decision or action taken amonts to an abuse of power. Therefore the limitation is extremely confined and if the according of natural justice does not condition the exercise of the power, the concept of legitimate expectation can have no role to play and the court must not usurp the discretion of the public authority which is empowered to take the decisions under law and the court is expected to apply an objective standard which leaves to the deciding authority the full range of choice which the legislature, is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the court will not interfere on the grounds of procedural fairness to a person whose interest based on legitimate expectation might be affected. For instance if an authority who has full discretion to grant a licence and if he prefers an existing licence holder to a new applicant, the decision cannot be interfered with on the ground of legitimate expectation entertained by the new applicant applying the principles of natural justice. It can therefore be seen that legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the granting of relief is very much limited. It would thus appear That There are stronger reasons as to why the legitimate expectation should note be sub-stantiyely protected than the reasons as to why it should be protected. In other words such a legal obligation exists whenever the case supporting the same in terms of legal principles of different sorts, is stronger than the case against it. As observed in Attorney General for New South Wales case "To strike down the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the courts adrift on a featureless sea of pragmatism. Moreover, the nation of a legitimate expectation (falling short of a legal right) is too nebulous to form a basis for invalidating the exercise of a power when ils exercise otherwise accords with law."If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or violation of principles of natural justice, the same can be questioned on the well-known grounds attracting Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. It can be one of the grounds to consider but the court must lift the veil and see whether the decision is violative of these principles warranting interference. It depends very much on the facts and the recognised general principles of administrative law applicable to such facts and the concept of legitimate expectation which is the latest recruit to a long list of concepts fashioned by the courts for the review of administrative action, must be restricted to the general legal limitations applicable and binding the manner of the future exercise of administrative power in a particular case. It follows that the concept of legitimate expectation is "not the key which unlocks the treasury of natural justice and it ought not to unlock the gates which shuts the court out of review on the merits," particularly when the element of speculation and uncertainty is inherent in that very concept. As cautioned in Attorney General for New South Wales' case the courts should restrain themselves and restrict such claims duly to the legal limitations. It is a well-meant caution. Otherwise, a resourceful litigant having vested interests in contracts, licences etc., can successfully indulge in get-ting welfare activities mandated by directive principles thwarted to further his own interests. The caution, particularly in the changing scenario, becomes all the more important."
(Underlining ours) Thus, the law declared in unmistakeable terms by the Supreme Court in the above case narrows down the scope of our investigation in the present case.
12. We are also bound by the dictum in Sri Srinivasa Theatre case, and Kailash Chand Mahajan's case, that the doctrine of legitimate expectation is not available against a legislation. In the former case, the Court observed :--
"Even otherwise, we are not satisfied that the said theory can be brought in to defeat or invalidate a legislation. It may at the most be . used against an administrtive action, and even there it may not be an indefeasible right. No case has been brought to our notice where a legislation has been invalidated on the basis that it offends the legitimate expectation of the persons affected thereby."
The view was reiterated in the later judgment in the following words :--
"Thus it will be clear even legitimate expectation cannot preclude legislation."
13. The learned Advocate General drew our attention to the following judgments of the Supreme Court in support of his contention that the principles of natural justice will not enable any person to contend that he should have been heard before the passing of any legislation :--
1. M/s. Laxmi Khanctsari v. State of U. P., ,
2. R. K. Porwal v. State of Maharashtra, ,
3. Union of India v. Cynamide India Ltd., ,
4. H. S. S. K. Niyami v. Union of India, and
5. Sundarjas Kanyalal Bhathija v. Collector, Thane, .
In the present case, though at some stage of the arguments the impugned G. O. was described as a subordinate'legislation, it was contended for the purpose of invoking Section 8 of the Tamil Nadu General Clauses Act that the G. O. should be considered as part of the main Act. We will consider that contention a little later. In so far as the doctrine of legitimate expectation is concerned, the Advocate General referred to a judgment of the Court of Justice of the European Communities in R. v. Ministry of Agriculture Fisheries and Food, ex parte Jaderow Ltd., (1991) I All ER 41. On the facts of the case, it was held that the doctrine had no applicabi-lity. In view of the rulings of the Supreme Court, we hold that the doctrine of legitimate expecfations does not apply to the present case, which is in challenge of a legislation.
(ii) APPLICABILITY OF SECTION 8 OF THE TAMIL NADU GENERAL CLAUSES ACT.
14. Before referring to the provisions of the General Clauses Act, it is necessary to advert to the provisions of the Prohibition Act. Section 54 of the Prohibition Act empowers the Government to make rules for the purpose of carrying into effect the provisions of the Act. Sub-section (3) of Section 54 of the Prohibition Act requires all rules made under the Act to be placed on the table of both the Houses of the Legislature. Section 55 of the Act reads thus :--
"All rules made and notification issued under this Act shall be published in the Official Gazette and upon such publication, shall have effect as if enacted in this Act." .
Thus, a legal fiction is introduced and once the rules are published in the Official Gazette, they shall have effect as if they are part of the main Act. This principle was accepted by learned senior counsel for the appellants while contending that Section 8 of the Tamil Nadu General Clauses Act would preserve the privileges acquired by the writ petitioners under the repealed rules. The relevant part of Section 8 of the Tamil Nadu General Clauses Act reads, "Where any Act, to which this Chapter applies, repeals any other enactment, then the repeal shall not -
(a) to (c) .....
(d) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed".
It was argued that the privilege of vending liquor in the bar attached to the retail shop having been granted under the repealed rules along with a right of renewal for two successive years, could not be affected by the impugned G.O. Reliance was placed on the judgments of the Supreme Court in
1. Kailash Nath v. State of U. P., ,
2. Gujarat Electricity Board v. Shantilal, ,
3. Jindas Oil Mill v. Godhra Electricity Co., and
4. Collector of Central Excise, Bombay v. M/s. Parle Exports (P) Ltd., , which deal with S. 6 of the General Clauses Act (Central enactment). It was also contended that rules cannot have retrospective effect as laid down by the Supreme Court in Accountant General v. S. Doraiswamy, . We are unable to accept these contentions. S. 4 of the Tamil Nadu General Clauses Act makes Chapter II applicable to all Tamil Nadu Acts after the commencement of the said Act unless a contrary intention appears in such Acts. S. 8 of the Tamil Nadu General Clauses Act is subject to S. 4 of that Act and the new enactment can expressly or by necessary implication exclude the operation of S. 8. Reading Ss. 4 and 8 together, there can be no doubt that an enactment which repeals an earlier enactment can exclude any of the provisions of Chapter II of the Tamil Nadu General Clauses Act. The impugned G.O. has rescinded Tamil Nadu Liquor (Retail Vending in Bar) Rules 1992 with effect on and from 1st June, 1993. Hence, the repealed rules ceased to be in existence after 31-5-1993. The privilege and the licence granted to the petitioners were admittedly for one year ending with 31-5-1993. Under the repealed rules, they were obliged to apply for renewal and the renewal was not automatic. The application for renewal had to be considered under the rules by the concerned authority and appropriate orders should be passed. Once the rules are repealed, with the expiry of 31-5-1992, there could be no question of considering any application for renewal for a period subsequent to that date. What all S. 8 of the Tamil Nadu General Clauses Act preserves or protects are the rights acquired under the repealed Act. In other words, the petitioners' licence for the period up to 31-5-1993 remained undisturbed or unaffected by the impugned G.O. It is not as if the same right or privilege can operate beyond 31-5-1993 as though by an order of renewal. If the right or privilege cannot on its own force subsist when the impugned G.O. comes into force, the provisions of S. 8 of the Tamil Nadu General Clauses Act cannot give a fresh lease of life to such right or privilege or alter the period of its validity. Hence, the contention based on the provisions of the General Clauses Act has to fail.
(iii) CHANGE OF POLICY.
15. There is no merit in the contention of the petitioners that there is no change in the policy of the Government inasmuch as it continued to permit the retail vending of liquor in shops. There can be no denial that the policy was announced in the Assembly by His Excellency the Governor of the State as early as in February, 1993. It was also published in the State Excise Note on Policy issued by the Prohibition Excise Department. Just because the Government had permitted the continuation of the retail vending of liquor in shops, it does not mean that there is no change in the policy at all. Permitting sale of liquor in sealed bottels in shops for private consumption is entirely different from permitting sale of liquor in open bottels, glasses or pegs for consumption in the bar. No doubt in one sense, bars can be described as private places inasmuch as they are owned by a private party. But, in another sense they are public places as any member of the public who is desirous of consuming liquor on payment of the necessary price can walk in. It should not also be forgotten that after consuming liquor in such bars, the customers go out in a drunken state and none waits for regaining sobriety before getting out of the bar. It is seen from the representations made by members of the public to the Government that such persons in a drunken state obstruct the traffic and create scence and cause various other problems including harassment to the passersby, particularly women, in the vicinity of the shoos and the bars. Specific instances have been referred to in the representations. A comment was made by learned senior counsel for the petitioners that even before any action was taken on the representations, the impugned G.O. had been passed and obviously the G.O. was not a result of deliberations on the basis of the representations. We arc, however, unable to agree with that contention. We find that representations were made even in August, 1992 and December, 1992. The earliest was by the Tamil Nadu Consumer Welfare Association. Action was directed to be taken even on 2-9-1992. On a representation by an individual by name Ambedhkar Dasan dated 22-12-1992 action was taken on 30-12-1992. A representation was made by the residents of Adyer area in December, 1992. It was signed by more than fifty persons. It was handed over in person to the Chief Secretary on 13-12-1992 and a direction was issued immediately for appropriate action. The subsequent action taken was with reference to the allegations against particular licencees as regards their violating the conditions of the licence. The files clearly disclose that the members of the public had made several representations with reference to their sufferings on account of the opening of the bars and vending of liquor in such bars.
16. In this context, the Advocate General has drawn our attention to the following passage in the judgment of Madhya Pradesh High Court in Gajrajsingh v. State, :--
"The necessity of consultation with the Advisory Committee is specifically provided in deciding the sites of the shops, licence for the sale of the foreign liquor, which may be consumed on the premises. The plain meaning of the language is that consultation with the Advisory Committee has been provided for only when the number of licences under F.L.I licence is to be changed. So far as location of the shops and the site of the shops for F.L. 1 licences are excluded from pale of the Advisory Committee. Sub-rule (2) of Rule 11 also shows that the intention is to control the location of shops on the premises of which liquor may be consumed. It stands to reason also because there is vast difference in the atmosphere of a shop where liquor is consumed on the premises and a shop which merely sells sealed bottles of liquor. The danger of disturbance of public tranquility may be associated with shops on the premises of which liquor is cosumed but it may not be so in respect of a shop from which sealed bottles of liquor only are allowed to be sold. Evil effects of liquor are felt by the consumers as well as the residents of the locality only on consumption of liquor and not on mere sale of liquor in sealed bottles. What the legislature wanted was to control the location of shops on which liquor is allowed to be consumed because after such consumption the consumer is likely to create nuisance or breach of peace in the locality which would seriously affect the lives of residents of the locality."
It was argued at one stage that consuming liquor inside a house and causing nuisance to the inmates thereof is equally bad as consuming liquor in a bar and creating nuisance in that locality. We do not agree. There is a vest difference between a drunkard consuming liquor in his own house and causing nuisance to the other members of his family and a person causing nuisance to the members of the public in general after consuming liquor in a bar. The point does not need any elaboration. Moreover, it is common knowledge that several persons would not like to drink or smoke in the presence of other members of the family, particularly elders and children, but they enjoy drinking and smoking in the company of their friends in a common place. If sale of liquor in bars is stopped, it is quite likely to have the effect of stopping the drinking by at least some persons who are shy of doing it in their houses.
17. There is also no substance in the contention that the circumstances which existed when the repealed rules were framed permitting the opening of bars, have not changed at the time when the impugned G.O. was passed. The representations made to the Government found in the files produced by the Advocate-General clearly show that the situation has becomes worse after the bars were opened. No doubt, the Government with a view to augment its revenue took a wrong step in permitting the opening of bars under the repealed rules, 1992. The Government has now realised its folly and changed its policy by rescinding the rules. No one can find fault with the Government for doing so. The following observations of the Supreme Court in State of M.P. v. Nandlal Jaiswal, are quite apposite in this context (at p. 280 of AIR) :--
"We must not forget that in complex economic matters every decision is necessarily empiric and it is based on experimentation or what one may call 'trial and error method' and, therefore, its validity cannot be tested on any rigid 'a priori' considerations or on the application of any strait-jacket formula. The Court must while adjudging the consiitu-tional validity of an executive decision relating to economic matters grant a certain measure of freedom or 'play in the joinis' to the executive. "The problem of Government" as pointed out by the Supreme Court of the United States in Metropolis Theatre Co. v. State of Chicago, (1912) 57 Law Ed 730.
are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not discernible, the wisdom of any choice may be disputed or condemned. Mere errors of Government are not subject to our judicial review. It is only its palpably arbitrary exercise which can be declared void."
The Government, as was said in Permian Basin Area Rate cases, (1968) 20 Law Ed 2d 312 is entitled to make pragmatic adjustments which may be called for by particular circumstances. The Court cannot strike down a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical. The Court can interfere only if the policy decision is patently arbitrary, discriminatory or mala fide. It is against the background of these observations and keeping them in mind that we must now proceed to deal with the content ion of the petitioners based on Art. 14 of the Constitution."
18. In Mohd. Fida Karim v. State of Bihar, , the Court recognised the right of the Government to change its policy in public interest. The case arose under Bihar and Orissa Excise Act. The previous policy of the State Government was to settle the liquor shops by giving licence for five years, On a changed policy, the auction-cum-tender method was adopted the contention of the appellants before them, the Court observed :--
"The new policy of adopting the method of auction-cum-tender is certainly a change of policy. The reason for change of policy given by the Government is that it realised that making settlement for five years would give rise to monopolistic tendency, which will not be in public interest, at the same time the interest of revenue was not fully protected in the former policy. This clearly goes to show that the Government wanted to adopt a new policy in public interest to be made applicable from the year 1991-92. Learned counsel appearing on behalf of the State of Bihar submitted in clear terms that the earlier policy was wrong and the Government realised its mistake and thus adopted a new policy to augment its revenue and to avoid monopolistic tendency. We do not find anything wrong in taking such view by the State Government and to change its policy considering the same to be in public interest."
We hold that there is a change of policy by the Government and the same is necessitated by the prevailing situations.
(iv) Article 14 of The Constitution of India
19. It was vehemently argued that the impugned G.O. is arbitrary and wholly unreasonable and, therefore, violative of Art. 14 of the Constitution of India. The argument was developed as follows :-- The Rules of 1989 permitted sale of liquor in retail vending shops. The rules introduced in 1992 permitted the sale of liquor in bars attached to such shops. The rules of 1989 and the rules of 1992 together formed one scheme by which the State Government gave effect to its policy of permitting retail vending of liquor and the consumption of the same in the bars in order to avoid the consumption of liquor in all public places and unauthorised premises.
when the State Government passed the impugned G.O., it had no reason to spilt the scheme and separate the vending of liquor in bars. A perusal of the rules will show that the privilege of running the bars and licences therefor were issued only to those who had licences for retail vending shops.. While the retail vending shops are allowed to continue, there is no justification whatever for closing the bars. The impugned G.O. does not serve any public interest and the files containing the representations made by the members of the public are not sufficient to save the G.O. from arbitrariness. Before considering the aforesaid contentions, it is necessary to refer to an argument advanced by the learned Advocate-'General on behalf of the State and the answer given thereto by learned senior counsel for the petitioners. The Advocate-General contended that trading in liquor is not a fundamental right and the State is entitled to impose such restrictions as it may consider necessary. Reliance was placed on the judgment of the Supreme Court in Cooverjee v. Excise Commissioner, Ajmer, ; Amar Chandra v. Excise Collector, Tripura, and Nashirwar v. State of M.P., . In the last of the above cases, the Court held that the State has the exclusive right or privilege of manufacturing and selling liquor and it grants such right or privilege in the shape of a licence or a lease. It was also pointed out that restrictions which are not permissible in other trades are lawful and reasonable so far as the trade in liquor is concerned and even prohibition of the said trade is not only permissible but also reasonable in view of public morality, public interest and harmful and dangerous character of the liquor. Reference was also made to a judgment of the Full Bench of this Court in Satish Majumdar v. State of Tamil Nadu, , in which it was held that the test laid down for judging whether the restrictions imposed on ordinary trade are reasonable or not have no application to the restrictions imposed on noxious trade like trade in intexicating drinks and drugs which are injurious to health.
20. Our attention was drawn to the judgment of a single Judge of this Court in Tamil Nadu Gramani Kula (Sandror) Munnetra Sangam v. The State of Tamil Nadu, 1988 Writ LR 427. After discussion of the relevant authorities, the principles of law applicable to a trade in liquor are set out in the shape of seven propositions, which are worthwhile extracting here :--
"(1) That the State has the power to prohibit trades which are injurious to the health and welfare of the public, (2) that elimination and exclusion from business is inherent in the nature of liquor business, (3) that no person has an absolute right to deal in liquor, (4) that all forms of dealings in liquor have, from their inherent nature been treated as a class by themselves, (5) that a citizen had neither a natural nor a fundamental right to carry on trade or business in liquor, (6) that the State under its regulatory powers, has the right to prohibit absolutely every form of activity in relation to intoxicants-its manufacture, storage, export, import, sale and possession, and (7) that these rights are vested in the State and indeed without such vesting there can be no effective regulation of various forms of activities in relation to intoxicants."
21. In M/s. Lilasons Breweries (Pvt.) Ltd. v. State of Madhya Pradesh, , it was reiterated that there is no fundamental right for any citizen to carry on trade or business of liquor. Reference was made to the earlier ruling of the Court in Nashirwar's case, .
22. While answering this contention, learned senior counsel for the petitioners submitted categorically that he was not claiming any right under Art. 19 of the Constitution of India and all the cases referred to above arose under the said Article. According to him, if the State had prohibited the business of liquor altogether, he could not have put forward any claim to carry on the business. But, when the State permitted the trade, which is said to be obnoxious, it ought to adhere to the principles of Art. 14 of the Constitution of India. He referred to the judgments of the Supreme Court in State of Madras v. V. G. Row, ; Collector of Customs v. Sampathu Chetty, and Deena v. Union of India, in support of his contention that there is a fundamental distinction between cases arising under Art. 19 and those under Art. 14 of the Constitution of India. He also drew our attention to the judgment of the Supreme Court in H. Anraj v. Government of Tamil Nadu, , in which it was held that the lottery tickets to the extent that they comprise the entitlement to participate in the draw are "goods" property so called, squarely falling within the definition of that expression found in the Tamil Nadu General Sales-tax Act, 1959, and submitted that though the lottery was illegal and obnoxious, the lottery tickets sold were held to be goods taxable, Ultimately he relied on the ruling of the Supreme Court in State of M.P. v. Nandlal Jaiswal, , in which a similar contention by the State was negatived in the following words (Para 32, at p. 279 of AIR) :--
"33. But, before we do so, we may at this stage conveniently refer to a contention of a preliminary nature advanced on behalf of the State Government and respondents 5 to 11 against the applicability of Art. 14 in a case dealing with the grant of liquor licences. The contention was that trade or business in liquor is so inherently pernicious that no one can claim any fundamental right in respect of it and Art. 14 cannot therefore be invoked by the petitioners. Now, it is true, and it is well settled by several decisions of this Court including the decision in Har Shanker v. Deputy Excise and Taxation Commissioner, that there is no fundamental right in a citizen to carry on trade or business in liquor. The State under its regulatory power has the power to prohibit absolutely every form of activity in relation to intoxicants -- its manufacture, storage, export, import, sale and possession.
No one can claim as against the State the right to carry on trade or business in liquor and the State cannot be compelled to part with its exclusive right or privilege of manufacturing and selling liquor. But when the State decides to grant such right or privilege to others the State cannot escape the rigour of Art. 14. It cannot act arbitrary or at its sweet will. It must comply with the equality clause while granting the exclusive right or privilege of manufacturing or selling liquor. It is, therefore, not possible to uphold the contention of the State Government and respondents 5 to 11 that Art. 14 can have no application in a case where the licence to manufacture or sell liquor is being granted by the State Government. The State cannot ride roughshod over the requirement of that article."
23. The contention of learned senior counsel for the petitioners in this regard is well-founded. The State cannot escape the provisions of Art. 14 of the Constitution of India on the ground that trade or business of liquor is obnoxious and that a citizen has no fundamental right to carry on the same. But, in the last of the cases referred to above, the Supreme Court took care to point out that the Court would, in view of the inherently pernicious nature of the commodity, be slow to interfere with the policy laid down by the State and allow a large measure of latitude to the Government in determining its policy of regulation, manufacture and trade in liquor.
24. Now, we will proceed to consider whether the impugned G.O. violates Art. 14 of the Constitution of India. We have already held that there was good ground for changing the policy within a year after introducing sale of liquor in bars attached to retail shops. We have in detail referred to the representations made by members of the public. In Maha-rashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kurmarsheth, , it was held that the Court should not examine the merits and demerits of a policy laid down by a regulation-making body. The Court pointed out that any drawbacks in the policy will not invalidate the same and the Court cannot strike it down on the ground that, in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purpose of the statute. That case related to Maharashtra Secondary and Higher Secondary Education Boards Regulation. Even in a case which did not relate to an obnoxious trade, the Court took that view. A fortiori, the principle will apply to a case of obnoxious trade.
25. Reliance was placed on the ruling in Indian Express Newspapers (Bombay) Private Ltd. v. Union of India, . Dealing with the grounds on which the validity of a subordinate legislation could be questioned, the Court observed as follows :--
"76. That subordinate legislation cannot be questioned on the ground of violation of principles of natural justice on which administrative action may be questioned has been held in Tulsipur Sugar Co. Ltd. v. Notified Area Committee, Tulsipur, ; Ramesh-chandra Kachardas Porwal v. State of Maharashtra, and in Bates v. Lord Hailsham of St. Marylebone, (1972) 1 WLR 1373. A distinction must be made between delegation of a legislative function in the case of which the question of reasonableness cannot be enquired into and the investment by statute to exercise particular discretionery powers. In the latter case, the question may be considered on all grounds on which administrative action may be questioned, such as, non-application of mind taking irrelevant matters into consideration, failure to take relevant matters into consideration etc., etc. On the facts and circumstances of a case, a subordinate legislation may be struck down as arbitrary or contrary to statute if it fails to take into account very vital facts which either expressly or by necessary implication are required to be taken into consideration by the statute or, say, the Constitution. This can only be done on the ground that it does not conform to the statutory or constitutional requirements or that it offends Art. 14 or Art. 19(1)(a) of Constitution. It cannot, no doubt be done merely on the ground that it is not reasonable or that it has not taken into account relevant circumstances which the Court considers relevant."
(Underlining ours).
26. Our attention was drawn to the judgment in Synthetics & Chemical Ltd. v. State of U.P., . Referring to the terms of Arts. 21 and 47 of the Constitution of India, the Court held that it was not possible to accept any privilege of the State having the right to trade in goods obnoxious to health. The ruling was rendered by a Constitution Bench consisting of seven learned Judges. The ruling will not help the petitioners in the present case, but on the other hand, it will be destructive of their contentions.
27. In Kumari Shrilekha Vidyarthi v. State of U.P., , to which both sides made reference in support of their case, the Court considered at length" the jurisdiction of a Court to interfere with administrative action even in contractual matters. It was held that Art. 14 of the Constitution applies to matters of governmental policy and if it fails to satisfy the test of reasonableness, ii will be unconstitutional. The Court observed (Paras 29 and 30, at p. 552 of AIR) :--
"The wide sweep of Art. 14 and the requirement of every State action qualifying for its validity on this touch-stone, irrespective of the field of activity of the State, has long been settled.....
The basic requirement of Art. 14 is fairness in action by the State and we find it difficult to accept that the State can be permitted to act otherwise in any field of its activity, irrespective of the nature of its function, when it has the uppermost duty to be governed by the rule of law. Non-arbitrariness, in substance, is only fair play in action. We have no doubt that this obvious requirement must be satisfied by every action of the State or its instrumentality in order to satisfy the test of validity."
The Court went on to observe (at p. 554 of AIR) :--
"36. The meaning and true import of arbitrariness is more easily visualised than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the Act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trile that be you ever so high, the laws are above you'. This is what men in power must remember, always."
While the above passages were relied on by learned senior counsel for the petitioners, the Advocate-General invited our attention to the following passage in the same judgment (at p. 553 of AIR) :--
"The scope of judicial review is limited as indicated in Dwarkadas Marfatia's case, (supra) to oversee the State action for the purpose of satisfying that it is not vitiated by the vice of arbitrariness and no more. The wisdom of the policy or the lack of it or the desirability of a better alternative is not within the permissible scope of judicial review in such cases. It is not for the Courts to recast the policy or to substitute it with another which is considered to be more appropriate, once the attack on the ground of arbitrariness is successfully repelled by showing that the act which was done, was fair and reasonable in the facts and circumstances of the case. As indicated by Diplock, L.J. in Council of Civil Service Unions v. Minister for the Civil Service, (1984) 3 All ER 935, the power of judicial review is limited to the grounds of illegality, irrationality and procedural impropriety."
28. On the facts we have expressed our view that the Government had good reason to change the policy. Hence, there is no substance in the contention that the impugned G.O. suffers from the vice of arbitrariness or unreasonableness. Reference was also made to the judgment in State of Rajasthan v. Nandlal, , wherein the Court observed that all licencees under the Rajasthan Excise Rules must be treated in a fair and equal manner in the matter of supplies particularly during the lean years. In view of the facts of the present case, the ruling does not help the petitioners. Hence, we hold that the impugned G.O. is not violative of Art. 14 of the Constitution of India.
29. There is no merit in the contention that the Rules of 1992 providing for opening of bars attached to retail shops form part of a single scheme under which sale of liquor in retail is permitted. It is not as if bars were permitted even when retail shops were permitted. The system of bars attached to retail shops was introduced only in 1992 and that has been terminated in 1993. Just because licences for bars are granted only to those who have licences to run retail selling shops does not make it a single scheme. No doubt, opening a bar will depend upon having a retail shop but the converse is not true. There are several retail shops without bars. Out of 4213 retail vending licencees, only 3332 obtained bar licences. Even if it is assumed for the sake of argument that the licensing of bars forms part of one scheme along with licensing of retail shops, that part is severable and it has been terminated on a change of policy. The State has not acted arbitrarily or unreasonably in doing so. The objection under Art. 14 of the Constitution fails.
(v) Promissory Estoppel.
30. It is the contention of the petitioners that on the representation made by the Government in 1992 by the rules framed at that time providing for grant of licences for selling liquor in bars attached to retail shops, they had invested huge sums of money for locating the bars adjacent to their shops or inside their shops. Some of them had to purchase lands and buildings for that purpose. Many of them had to spend for interior decoration. According to them, they expected to continue retail vending for a period of three years as the licences would usually be renewed without any difficulty and it was spelt out by the Government that licences for the bars would be co-extensive with the licences for the shops. The Government contended that there was no representation at any time that the bars would be continued for a period of three years or that the licences would be coextensive with the licences for the retail vending shops. There was no question of automatic renewal of any licence and the petitioners were bound to apply for the same as per the rules and the authorities were entitled to reject such applications on appropriate grounds. The principle of promissory estoppel will not apply at all as it is a policy decision of the Government taken in the interest of the general public. It was submitted that promissory estoppel will not operate as against overriding public interest.
31. Reference was made on behalf of the petitioners to the judgment in Collector of Bombay v. Municipal Corporation of the City of Bombay, , In that case, the Government of Bombay took over a land belonging to the Corporation of Justices of the Peace for the City of Bombay and instead allotted a site on rent-free basis as the markets which were to be held by the Municipality on the said site and other such public buildings were for the benefit of the whole community. In 1938, the Colleclor of Bombay informed the Municipal Commissioner that it was proposed to assess the land occupied by the Municipality under S. 8 of the Bombay City Land Revenue Act. The assessment made by the Colleclor was challenged. It was found by the Court that the original grant was not valid as the statutory formalities were not complied with. The majority took the view that the Corporation had prescribed title by adverse possession to the site in question. Chandrasekhara Aiyar, J., who concurred with the conclusion of the majority, gave a different reason therefor. He observed that the principle of promissory estoppel would apply against the Government as there was a representation that the land would be given rent-free and the same was acted upon by the Corporation. That was a case of administrative action and no overriding pubiic interest was involved. The ruling will not help the petitioners.
32. The basic requirement for the applicability of the doctrine of promissory estoppel is a representation on the part of the Government. On the facts of the case, it has not been established that there was a representation by the Government that the bars will be for three years or that they will be continued so long as the retail vending shops are allowed to function. Reliance was placed by the petitioners on some newspaper cuttings included in the typed set of papers referring to some statements made by the then Secretary to the Government, Home. Prohibition and Excise Department. The Advocate General referred to the rulings of the Supreme Court in Samant N. Balkrislma v. George Fernandcz, and Assistant Commissioner of Commercial Taxes (Asst.), Dharwar v. Dharmendra Trading Co., and submitted that newspaper cuttings cannot be relied on as evidence in Courts of iaw. It is not necessary for us to go to that extent. On a perusal of the newspaper cuttings, we are unable to find any representa-tion by the Government or any other official that licences for the bars would hold good till the licences for retail vending shops subsist. There is no material whatever before us to sustain the case of representation on the part of the Government.
33. In C. Vediappan v. The State of Tamil Nadu, (1984) 1 Mad LJ 96 : (1984 Tax LR 2545), the validity of Tamil Nadu Prohibition (Second Amendment) Ordinance (IV of 1983) was challenged. A similar contention based on promissory estoppel was urged and a Division Bench of this Court negatived the same. The Court observed (at p. 2550 of Tax LR):
"Apart from making the Rules, which have since been repealed, even according to the petitioners, there was no separate representation either by the Government or the officers that the petitioners' right of renewal will not be interfered with or the Rules regarding renewal will not be repealed. If the Government can frame Rules conferring certain rights on the petitioner, it can also repeal these Rules which will have the effect of withdrawing the benefits conferred on them. The conferment of certain benefits under the Rules repealed cannot form the basis for the petitioners' contention that the Government which framed the Rules cannot repeal the Rules. It is also well established that the plea of promissory estoppel is not available to a party against a Legislative or Sovereign function. The decision in State of Kerala v. The Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd, ; Excise Commissioner, Uttar Pradesh v. Ram Kumar, and Jit Ram Shiv Kumar v. State of Haryana, , clearly establish the above legal position."
34. Learned counsel for the petitioners referred to the judgment in Delhi Cloth & General Mills Ltd. v. Union of India, , in which it was held that for invoking the doctrine of promissory estoppel, it was not necessary for the promise to have suffered detrimental prejudice. But all that was required was a change or alteration in his position by relying on the assurance and the representation. In the very same case, the Supreme Court pointed out that for the purpose of finding whether an estoppel arises in favour of the person acting on the representation, it was necessary to look into the whole of the representation made and that the representation should be ciear and unambiguous and not tentative or uncertain. The ruling does not help the petitioners.
35. Learned counsel for the petitioners relied on the ruling in Assistant Commissioner of Commercial Taxes (Asst.), Dharwar v. Dharmendra Trading Co., , in which the doctrine of promissory estoppel was invoked and upheld. The facts of the case were entirely different and the ruling has no bearing in the present case. A similar ruling was rendered in State of Madhya Pradesh v. Orient Paper Mills Ltd., , where the Government was held bound by its assurance to grant electricity duty exemption on the basis of principle of promissory estoppel. The ruling turned on the facts of that case and has no bearing in the present case.
36. A very important decision was rendered on the question of promissory estoppel in Vesantkumar Radhakisan Vora v. Board of Trustees of the Port of Bombay, . After referring to all the earlier cases on the subject, the Court said (Paras 12 and 13) :--
"We may also point out that the doctrine of promissory estoppel being an equitable doctrine, it must yield place to the equity, if larger public interest so requires, and if it can be shown by the Government or public authority, for having regard to the facts as they have transpired that it would be inequitable to hold the Government or public authority to the promise or representation made by it.....
Though Executive necessity is not always a good defence, this doctrine cannot be extended to legislative acts or to acts prohibited by the statute.
It is well settled legal proposition that the private interest would always yield place to the public interest."
In the present case, the Government has placed sufficient materials before us and convinced us that the larger public interest required a change of policy, as a result of which, the impugned G.O. had been passed. Even assuming that there was any representation on the part of the Government in 1992 when bars were permitted to be opened, the principle of promissory estopel cannot be invoked by the petitioners in view of the overriding public interest.
37. Reliance was placed on behalf of the petitioners on the judgment of the Supreme Court in Amrit Banaspati Co. Ltd. v. State of Punjab, . The Government of Punjab issued a brochure in 1966 announcing its new policy declaring that incentive and concession, one of them being refund of sales tax, would be available to those persons who set up selective large scale industries in the focal point. Acting on the representation, the appellant's representative met the Chief Minister of the State personally and finding that he was interested in engeering Vanaspati manufacturing unit in the State, us Manager wrote a letter in June 1968 to the Chief Minister expressing willing (sic) to set up the unit provided the concession were made available to it. A reply was sent by the Director of Industries, which assured the appellant that the concession as announced would be made available. There was exchange of correspondence. There were also various meetings between the appellant's representative and officials of the Government. In pursuance of the assurance given by the Government, the appellant purchased land and various other materials a! a cost of Rs. 15 lakhs. It had placed an order for purchase of plant and machinery of value of Rs. 35 lakhs. The appellant established its unit on a total investment of Rs. 1.5 crores. The question which arose before Court was whether the Slate Government was bound to grant refund of sales tax of nearly Rs. 2 crores for a period of three years. A Division Bench of the High Court negatived the claim of the appellant. On appeal, the Supreme Court held that the law of promissory estoppel furnished a cause of action to a citizen enforceable in a Court of law. But it was held that a promise to refund the sales tax was incapable of being enforced in a Court of law as the same was slalutorily prohibited and against public policy. The Court made a distinction between grant of concession in the matter of fixing the rates of tax and refund of sales tax. It was held that even a Legislature, much less a Government, cannot enact a law or issue an order or agree to refund the tax realised by it in exercise of its sovereign powers, except when the levy or realisation is contrary to a law validly enacted. No doubt, the principles of promissory estoppel have been reiterated; but the Courl held that they were not applicable to a case where enforcement of the same would lead to patent illegality. The ruling does not help the petitioners in this case. We hold that the principle of promissory estoppel does not apply to the present case.
F. CONCLUSION
38. Before we part with the case, we wish to place on record our deep anguish that Art. 47 of the Constitution is rendered ineffective by the State policy on prohibition. Had it been within our powers, we would have issued a mandamus to the State to enforce Art. 47 immediately by appropriate legislation. Whatever may be the position in the other States, this State having the credit of introducing prohibition before any other State in the country did and that too, long before the framing of the Constitution should reimpose total prohibition and erase the evil. In the course of arguments, the learned Advocate General said 'hat by passing the impugned G.O., the State has taken the first step towards implementation of Art. 47. We do fervently hope that the State would march forward without taking any step backward as it did in 1992 and reach the goal of teetotalism within a short period.
39. We have not been persuaded by the appellants to take a view different from that of the learned single Judge. We agree with his conclusions and dismiss these appeals. No costs.
40. Appeals dismissed.