Madras High Court
S. Periasamy vs The Government Of Tamil Nadu Rep. By ... on 16 October, 2000
Equivalent citations: 2000(4)CTC365
Author: P.D. Dinakaran
Bench: P.D. Dinakaran
ORDER
1. LIQUOR RUINS COUNTRY, FAMILY AND LIFE. Such are the evils of drinking. It is, therefore, the Tamil Nadu Prohibition Act was enacted to prohibit the manufacture, sale and consumption of intoxicants. Not only the consumption of intoxicants, but also deriving income and revenue from the same, is a sin, as considered by Mahatma Gandhi, the father of our nation. But by revised policy decisions, the State proposed to augment public revenue by lifting the prohibition and adding the provisions in the Act and the Rules framed thereunder for granting licence for manufacture of intoxicants and for sale of the same in wholesale and retail, of course, by imposing a condition that no sale of liquor shall be made under the licence on Gandhi Jayanthi day, paying a tribute to our Mahatma. Are these not paradoxical?
2. Section 17-C of the Tamil Nadu Prohibition Act, 1937 (hereinafter referred to as the 'Act') enables the State Government to grant the exclusive privilege or other privilege to any person or persons manufacturing Indian-made foreign spirits or selling by retail, within any local area, while Section 17-D of the Act enables the State Government, by rules, to levy a sum or fee or both in consideration of the grant of any exclusive or other privilege under Section 17-C and also a fee on licences granted under Section 17-C of the Act.
3. In exercise of the powers conferred under Section 17-C, 17-D and other related provisions of the Act, the Government framed the Tamil Nadu Liquor (Retail Vending) Rules, 1989 (hereinafter referred to as the Rules').
4. Rule 2 of the Rules, defines Area, Auction, Auction Purchaser, Bidder, Commissioner, Highest Bidder, Highest Tenderer, Privilege, Privilege Amount and Upset price as follows:
Rule 2: Definitions: (b): 'Area' means the locality determined by the Collector within which a retail vending shop shall be opened.
(d): 'Auction' means inviting bids, as well as tenders, in public auction for the grant of the privilege of vending, by retail, liquor.
(e): 'Auction Purchaser' means the person whose bid or tender is accepted by the Sale Officer.
(f) 'Bidder' means a person who bids or tenders for the privilege in an auction.
(i) 'Commissioner' means the Commissioner of Prohibition and Excise.
(n): 'Highest Bidder' means the bidder who offers me highest amount by bid
(o): 'Highest Tenderer' means tenderer who offers the highest amount by tender (u): 'Privilege' means the privilege for retail vending in liquor.
(v): 'Privilege amount' means the highest amount offered by bid or tender and accepted by the Sale Officer.
(z): 'Upset price' means the price fixed by the Commissioner of the prior approval of the Government below which, a privilege shall not be granted.
5. Rule 3 of the Rules enables the Commissioner to grant privilege to any person for retail vending in liquor, by auction for the privilege amount and to grant the said privilege to the Tamil Nadu State Marketing Corporation (TASMAC) or the Tamil Nadu Civil Supplies Corporation (TNCSC) or Co-operative Societies, by nomination, on payment of such sum or fee or both as may be fixed by the Commissioner, of course, with the prior approval of the Government; and Rule 4 of the Rules enables the State Government to fix the maximum number of shops to be established in the State, in each district, and in the area as defined in the Rules. Rule 3 and 4 read as follows:
Rule 3: Grant of Privilege; (1) The privilege shall be granted to any person by auction in accordance with the provisions of these rules:
Provided that, where the Commissioner considers it necessary, he may direct the licensing authority to grant, on payment of such sum or fee or both as may be fixed by the Commissioner, the privilege in relation to not exceeding forty per centum of the maximum number of retail shops permitted by the Government and distributed as far as possible among the various districts by nomination to the Tamil Nadu State Marketing Corporation or the Tamil Nadu Civil Supplies Corporation or Cooperative Societies. (Any Co-operative Society interested in the grant of the privilege may apply to the licensing authority in Form VI together with an affidavit in Form II).
Provided further "that the licensing authority shall, before nominating any Co-operative Society for the grant of the privilege, cause such verification as it may deem necessary to be made and satisfy itself as to the suitability of that society for the grant of the privilege;
Provided also that the Commissioner shall, in fixing the sum or fee or both, have regard to the upset price, for similarly placed shops in the locality and shall obtain the prior approval of the Government"
(2) Notwithstanding anything contained in these rules, the licensees under the Tamil Nadu Liquor (Licence and Permit) Rules, 1981, for the retail vending of liquor who have applied for renewal under rule 21 of those rules shall continue such selling in accordance with the provisions of the said 1981 rules during the period on and from the 1st April, 1989 to 31st May, 1989, subject to the payment of proportionate privilege fee and licence fee payable under the said 1981 rules.
Rule 4: Fixation of number of shops: (1) The-maximum number of shops to be established in the State shall be determined by the Government.
(2) Subject to the maximum number of shops fixed under sub-rule (1), the Commissioner, shall, in consultation with me Collector and after taking into account the needs of the district, fix the number of shops for each district.
(3) The areas in which the shops are to be opened shall be determined by the Collector.
6. No doubt. Rules 5, 6, 7, 8, 9, 10, 11, 12, and 13 of the Rules provide the procedure to be followed in the matter of grant of licence for privilege for retail vending in liquor by auction, while Rule 13-A of the Rules provides the distinct procedure for grant of licence to the grantee by nomination. Rule 13-A reads as follows:
Rule 13-A: Grant of licence to grantee by nomination: Upon the nomination under the first proviso to the sub-rule (1) of Rule 3 for the grant of privilege, the nominee shall furnish a certificate in Form III and remit
(a) an application fee of Rs. 100 (Rupees one hundred only);
(b) the sum or fee or both fixed by the Commissioner,
(c) the licence fee of Rs.2,500 (Rupees two thousand five hundred only); and
(d) a security deposit of Rs.25,000 (Rupees twenty five thousand only) and obtain a licence in Form VII which shall be valid for a period of one year.
7. Rule 14 of the Rules provides for renewal of licences for the second and third year for the privilege amount determined at 15% and 10% more than the privilege amount of the respective previous years, and therefore the licence is granted with the right of renewal for one block-year consisting three excise years totally.
8. Rule 18 of the Rules deals with the location of shops.
9. Condition 17 of the Notice of Tender/Auction provides that the licensee shall sell the liquor with a minimum profit of 10% and a maximum profit of 20%, while condition 20-A of the Licence issued to Retail Vending of Liquor provides that the licensee shall sell the liquor with a maximum profit of 20%.
10. The Government by, G.O.Ms.No.62, Prohibition and Excise (VI) Department, dated 11.4.1998, after examining the proposals dated 24.2.1998, 2.3.1998, and 23.3.1998 of the Commissioner of Prohibition and Excise, prescribed the procedure for issue of liquor retail vending licence for the excise year 1998-99 and for subsequent two renewals, namely for the block year 1998-2001, wherein it is decided that no shops need be reserved for Cooperative Societies, TNCSC, and TASMAC and that the maximum profit margin for the retailers would be 20%.
11. The Government determined to establish a maximum number of 4700 shops in the State for the block year 1998-2001, subject to which,-the Commissioner fixed the maximum number of shops to be established in each District and the Collector determined the area in which each shop is to be located, as per Rule 4 of the Rules.
12. Accordingly, all the 4700 shops in the State were brought for public auction for the year 1998-2001, of which, 4675 shops were sold in auction for the excise year 1998-99 and fetched a total privilege amount of Rs.515,82,48,000 as against the upset price of Rs.268,77,50,000.
13. Had all the 4675 shops been renewed for the second year 1999-2000 under Rule 14 of the Rules for the privilege amount determined at 15% more than the privilege amount of the excise year 1998-99, subject to the satisfaction of the other provisions of the Rates, die Government could have realised a revenue of Rs.593.17 crores as renewal privilege amount, and therefore, the Government, by their letter dated 23.4.1999, requested the Collectors to initiate action for renewal of all the licences and to dispel the impression that by not renewing they could get the shops at lower rates than the privilege amount for the year 1998-99 and to impress that under no circumstances the non-renewed shops would be given to the Co-operative Societies. But, out of 4675 shops, only 4069 shops were renewed for the excise year 1999-2000, fetching a privilege amount of Rs.479.21 Crores instead of Rs.593.17 Crores expected, causing a loss of Rs.121.88 Crores during the excise year 1999-2000.
14. Taking note of the fact that only 4069 shops were renewed for the second year 1999-2000 out of 4675 shops which were granted licence for the year 1998-1999, and among the remaining non renewed / unsold shops only 250 shops were sold during the auction for the year 1999-2000 leaving 702 non-renewed shops during the year 1999-2000, the Government, by G.O.Ms.No.108, Prohibition and Excise (IV) Department, dated-26.10.1999, decided to allot the said non-renewed/unsold shops to Cooperative Societies during the excise years. 1999-2000, on collection of proportionate privilege amount realised during 1998-99, for the remaining period of excise year 1999-2000.
15. Even though the said G.O.Ms.No.108, Prohibition and Excise (IV) Department, dated 26.10.1999, was challenged on the ground that the petitioner therein had invested huge amount and the allotment of the shops to Co-operative Societies "at a lesser amount, namely, the proportionate privilege amount realised during 1998-99 would cause loss to the petitioner therein; and that the Commissioner has no power to allot the shops to Co-operative Societies in the middle of the excise year by fixing a proportionate privilege amount for the remaining period of the excise year 1999-2000, K.Govindarajan, J. by order dated 9.11.1999 in W.P.No.l8017 of 1999, dismissed the writ petition holding that the Commissioner has got power to direct the licensing authority to grant privilege to Cooperative Societies on payment of such sum or fee or both, proportionate to the remaining period of excise year 1999-2000 and the petitioner therein could not be construed as a aggrieved person to challenge the said Government Order.
16. That apart, in W.P.No.18505 of 1999, challenging G.O.Ms.No.108, Prohibition and Excise (IV) Department, dated 26.10.1999, the contentions that the Commissioner, having already exercised his power for bringing the shops for public auction and taken a decision that under no circumstances the non-renewed/unsold shops would be given to Co-operative Societies, could not again go back and allot the shops to Co-operative Societies, were also rejected by K.Govindarajan, J., by order dated 18.11.1999, holding that in view of the subsequent developments, the Commissioner is entitled to exercise the power to request the Government to allot the shops to Co-operative Societies, in the interest of revenue of the State.
17. Again, W.P.Nos.30 and 31 of 2000, challenging G.O.Ms.No.108, Prohibition and Excise (IV) Department, dated 26.10.1999, were dismissed by P.Shanmugam, J. by order dated 4.1.2000, holding that there is no violation of Articles 14 and 19(1)(g) of the Constitution of India, nor any unreasonableness or arbitrary exercise of power.
18. Thereafter, by G.O.(D) No.65, Prohibition & Excise (VI) Department, dated 27.4.2000, the Government issued guidelines for the renewal of the Indian made Foreign Liquor retail vending shops (hereinafter referred to as 1MFL retail vending shops') for the third year viz., 2000-2001, enabling Cooperative Societies to renew their licences nominated under G.O.(D) No.108, Prohibition & Excise (IV) Department, dated 26.10.1999, at 10% more than the privilege amount calculated for the full year. If the shops renewed or sold in auction or allotted to Co-operative Societies by nomination, during the year 1999-2000, but not renewed for the year 2000-2001 in time, those shops should be notified for auction cum tender on 16.5.2000, for the excise year 2000-2001.
19. Accordingly, only 3642 shops were renewed for the excise year 2000-2001, as against the total number of 4675 shops which were auctioned for the block year 1998-2001, fetching Rs.458.49 crores instead of Rs.652.48 crores of expected privilege amount for the excise year 2000-2001, causing a loss of Rs.193.99 crores as per the following statement:
Year Total Shops Shops Sold/ Renewed/ Allotted to Co.op Societies Privilege Amount Relised (Rs. Crore) Expected Privilege Amount (Rs. Croie) Loss Privilege Amount (Rs. Crore) 1998-1999 4700 4675 515.80 1999-2000 4675 4069 471.29 593.17 121.88 2000,2001 4675 3641 458.49 652.48 193.99 Total for 1999-2000 & 2000-2001 929.78 1245.65 315.87 Thus, the cumulative loss due to the non-renewal /unsold shops during the excise years 1999-2000 and 2000-2001 is Rs.315.87 crores.
20. After the renewal for the excise year 2000-2001, as per G.O.(D) No.65, Prohibition & Excise (VI) Department, dated 27.4.2000, totally 1442 shops remained neither renewed nor sold, out of which, only 377 shops were sold in auction for the excise year 2000-2001, leaving 1065 shops non-renewed/unsold.
21. In the meanwhile, me Registrar of Co-operative Societies, by his letter dated 27.4.2000, requested for early orders of the Government for grant of licence for the non-renewed/unsold IMFL shops on nomination basis, at the privilege amount-calculated on the basis of the sale value of supply effected by TASMAC during the excise year 2000-2001.
22. The Commissioner of Prohibition and Excise by his letter dated 1.6.2000, referring to G.O.(D)No.65, Prohibition and Excise (VI) Department, dated 27.4.2000 and the letter of the Registrar of Co-operative Societies dated 27.4.2000, recommended for allotment of the non-renewed/ unsold shops to Co-operative Societies and TASMAC on nomination basis, on collection of the original upset price fixed for such shops for the excise year 1998-99 or the privilege fee of 1999-2000 plus 10% thereof, calculated as per the percentage of off-take during 1999-2000, whichever is lesser and to collect the privilege amount so arrived proportionately from the date of the application for allotment on nomination basis.
23. The Registrar of Co-operative Societies, again, by his letter dated 5.6.2000, also made the following suggestions:
(i) TASMAC may consider supply of IMFL shops to Co-operative. Whole-sale Stores on credit basis; and
(ii) the non-renewed/unsold shops may be allotted to Cooperative Wholesale Stores to do retail business by sharing the retail margin with TASMAC on monthly basis, which would gel huge income to the Government and such quality products supplied by TASMAC would be sold to the consumers at correct price.
24. In the light of the above recommeadations of the Commissioner of Prohibition and Excise and the suggestions of the Registrar of Co-operative Societies, the Government, by G.O.(D).No.93, Prohibition and Excise (VI) Department, dated 13.7.2000, which is impugned in these writ petitions, decided to allot the non-renewed/unsold IMFL retail vending shops to Co-operative Societies for the excise year 2000-2001, on collection of privilege amount equivalent to the upset price for such shops for the year 1998-99, with a further direction to the Commissioner of Prohibition and excise that the privilege amount so arrived at, should be collected proportionately from the date of application for allotment on nomination basis.
25.The impugned G.O.(D).No.93, Prohibition and Excise (VI) Department, dated 13.7.2000 reads as follows:
GOVERNMENT OF TAMIL NADU ABSTRACT Prohibition and Excise -Tamil Nadu Liquor (Retail Vending) Rules, 1989 -Allotment of unsold / non-renewed Indian Made Foreign Liquor shops to co-operative Societies on nomination basis for the year 2000-2001 - orders -Issued.
PROHIBITION AND EXCISE (VI) DEPARTMENT G.O.(D).No.93 Dated:13.7.2000
1. From the Registrar of Co-operative Societies Letter No.61307/2000 ccl, dated 27.4.2000.
2. From the Commissioner of Prohibition and Excise Chennai DO Letter NO.P&E K(1)/4676/2000, dated. 1.6.2000
3. From the Registrar of Co-operative Societies DO Letter.No.61307/2000CC1, dated 5.6.2000.
ORDER:
In the current excise year (2000-2001) out of 4700 shops 3258 shops have been renewed, 377 shops have been sold in auction and 1065 shops remained as unsold/ non-renewed. The Commissioner of Prohibition and Excise in the letter second read above has recommended that the non-renewed/unsold shops may be allotted to Co-operative Societies and Tamil Nadu State Marketing Corporation Limned on nomination basis for the year 2000-2001 on collection of the original upset price fixed for such shops for 1998-99 or the privilege amount of 1999-2000 whichever is lesser and that the privilege amount so arrived at may be collected proportionately from the date of application for allotment on nomination basis,. He has further recommended that in the case of allotment to Co-operatives these shops may be allotted only to the District Wholesale Co-operative Societies and in the places where the District Wholesale Co-operative Societies do not -function the shops may be allotted to eligible Co-operative Societies who are engaged in selling consumer articles.
2. The Registrar of Co-operative Societies, in the letter third read above, while endorsing the above-recommendation of the Commissioner of Prohibition and Excise, has. also suggested the following proposals.
(1) The Tamil Nadu State Marketing Corporation Limited may consider supplying Indian made Foreign Liquor stocks on credit basis to the Co-operative Wholesale Stores;
(2) Instead of keeping Indian made Foreign Liquor shops as unsold/ non-re-newed even after the Commissioner of Prohibition and Excise's sugges-
tion is implemented these shops may be allotted to the Co-operative Wholesale Stores to do retail business by sharing the retail margin with the Tamil Nadu Stale Marketing Corporation Limited on monthly basis instead of investing huge amount towards privilege amount
3. In this connection it was examined as to how many non-renewed /unsold Indian made Foreign Liquor (Retail Vending) shops can be taken up in the Co-operatives, if the shops are allotted to them (Co-operatives) after collecting the amount at the level of last year's (1999-2000) privilege amount and how much revenue may be realised by such nomination to the Co-operatives, It has been found that no non-renewed/unsold shop can be taken by the Co-operatives if the shops are allotted to them on nomination basis after collecting the amount at the level of last year's (1999-2000) privilege amount Thus, no amount can be realised by the Government out of the remaining unsold/non-renewed shops. It is, however, found that the Co-operatives can take the shops if the allotment is done on the basis of the upset price of 1998-99. This proposal will yield substantial revenue to the Government as privilege fee.
4. The Government have carefully examined the proposals of the Commissioner of Prohibition and Excise and Registrar of Cooperative Societies contained in paragraphs 2 and 3 above in the light of position set out in paragraph 3 above. It is seen from the above that if it is proposed to allot the shops to Cooperatives at the level of last year's (1999-2000) privilege amount, no shops can be taken by the Cooperatives and thus, no amount can be realized out of the remaining unsold/non-renewed shops. However, if the allotment is done on the basis of the upset price of 1998-99, the Cooperatives are willing to take most of the shops and a sizeable revenue would accrue to the Government, which would, otherwise, have been lost. Thus, the Government stand to gain considerable revenue if shops are allotted to Cooperatives on the basis of the upset price fixed during 1998-99. The Government also consider that this will also break the cartel formed in many districts by which the licensees have deliberately avoided to renew the licence in favour of certain shops. Accordingly, the Government pass the following orders:-
(1) The remaining non-renewed/unsold Indian made Foreign Liquor (Retail Vending) shops may be allotted to Co-operatives in 2000-2001 on collection of the privilege amount equivalent to the upset price fixed for the shops for the year 1998-99.
(2) The privilege amount so arrived at should be collected proportionately from the date of application for allotment on nomination basis.
(3) The shops should be allotted on nomination basis to the following categories of the Cooperatives only.
(a) Co-operative Wholesale stores.
(b) Primary Cooperative Stores.
(c) Co-operative. Marketing Societies.
The Commissioner of Prohibition and Excise is requested to take necessary action in this regard.
(BY ORDER OF THE GOVERNOR)
26. Challenging the said decision of the Government to allot the non-renewed/unsold IMFL retail vending shops to Co-operative Societies for the excise year 2000-2001, on collection of privilege amount equivalent to the upset price for the shops for the year 1998-99, and to collect the privilege amount so arrived at proportionately from the date of application for allotment on nomination basis, taken in the impugned G.O.(D).No.93, Prohibition and Excise (VI) Department, dated 13.7.2000, the above writ petitions have been preferred by various categories of petitioners, who are either:
(a) licensees during 1998-99, who had renewed their licences during 1999-2000 and 2000-2001, as per Rule 14 of the Rules; or
(b) licensees during 1998-99, who had not renewed for the subsequent year / years viz., in the block year 1998-2001; or
(c) licensees prior to 1998-99 for retail vending in liquor, but not during the block year 1998-2001; or
(d) participants in the auction held in pursuance of G.O.(D) No.65, Prohibi-tion & Excise (V!) Department, dated 27.4.2000, for the grant of privilege for the year 2000-2001, who had offered in writing, more than the upset price of the year 1998-99.
27. The main contentions of the learned senior counsel for the petitioners are:
(i) the impugned Government Order causes great loss and hardship to the licensees who have renewed the licenses of the shops that are similarly placed in the locality;
(a) the decision of C.Shivappa,J. dated 24.12.1996 in W.P-No. 10460 of 1996 batch, confirmed by a Division Bench of this Court in M.P.Mariappa Nadar & Others v. State of Tamil Nadu and 11 others, 1997 WLR 814, is distinguishable on the ground that the Government did not fix any sum or fee or both payable by Cooperative Societies for grant of licence by nomination, as proposed by the impugned G.O.(D) No.93, Prohibition and Excise (VI) Department, dated 13.7.2000;
(iii) the Commissioner and the Government, having exercised their discretion and taken a decision in G.O.(D) No.62, Prohibition & Excise (VI).De-partment, dated 11.4.1998 and by letter dated 23.4.1999 that under no such circumstances, non-renewed/unsold shops need be reserved nor allotted to Co-operative Societies by nomination, and such a decision of the Commissioner and the Government is binding on them, and they cannot go back nor are empowered under the rules to take a decision contrary to the earlier decision and therefore, they are estopped from allotting the shops to Co-operative Societies;
(iv) the Government is also estopped to take a decision as proposed in the impugned Government Order contrary to their earlier decision, as an-nounced by the Hon'ble Chief Minister on the floor of the Assembly on 22.5.1998 that the privilege for retail vending in liquor would not be allotted to Co-operative Societies by nomination;
(v) the impugned Government Order is contrary to Rule 3(1) of the Rules, which mandatorily prescribes the manner in which the shops could be allotted to Co-operative Societies by nomination, on payment of such sum or fee or both, fixed by the Commissioner, having regard to the upset price for similarly placed shops in the locality, with the prior approval of the Government;
(vi) the Commissioner and the Government failed to have regard to the upset price for similarly placed shops in the locality, in fixing such sum or fee or both for allotting the non-renewed/ unsold shops to Co-operative Societies by nomination, and therefore by allotting the shops to Co-op-erative Societies at the upset price for the year 1998-99 under the impugned Government Order, the Government have committed a viola-tion to Proviso 3 to Rule 3(1) of the Rules;
(vii) the Government have no power to allot the shops to Co-operative societies for the upset price for the year. .1998-99, nor to collect the privilege amount so arrived at proportionately from the date of applica-tion for allotment on nomination basis, because, the privilege shall not be granted below the upset price fixed as per Rule 2(z) of the Rules, and the privilege amount increases from year to year, in cases of renewal, during the block year, as per Rule 14 of the Rules;
(viii) the privilege shall be granted only in accordance with the Rules; Proviso 1 to Rule 3(1) of the Rules empowers the Commissioner to decide the grant of privilege to TASMAC or TNCSC or Co-operative Societies on payment of such sum or fee or both; and as per Proviso 3 to Rule 3(1) of the Rules, the Commissioner shall have regard to the upset price of the similarly placed shops in the locality in fixing such sum or fee or both, with the prior approval of the Government; and therefore, no shops could be allotted to Co-operative Societies, de hors the entire procedure prescribed under Proviso 1 and 3 to Rule 3(1) of the Rules, as the Rules do not provide grant of privilege for retail vending of liquor for the upset price for that shop, without regard to the upset price for similarly placed shops in the locality;
(ix) when the rule prescribes that a particular thing has to be done in a particular manner, it has to be done in that manner alone and every other manner is excluded, irrespective of the consequences of notional loss of revenue said to be caused due to alleged cartel formed by the licensees;
(x) neither the Commissioner nor the Government, in the impugned Government Order, have taken into account the upset price for similarly placed' shops in the locality, in. fixing such sum or fee or both for granting privilege to Co-operative Societies, and therefore, the Commissioner and the Government have completely ignored the crucial expression that the Commissioner shall have regard to the upset price for the similarly placed shops in the locality, as contemplated in Proviso 3 to Rule 3(1) of the Rules, and hence the impugned Government Order suffers from non-application of mind;
(xi) Rule 3(1) of the Rules empowers the Government only to sanction prior approval to the decision of the Commissioner, but such power cannot be exceeded to further direct the Commissioner to allot the shops to Co-operative Societies for the upset price fixed for that shop during 1998-99. Even though the Commissioner is empowered to allot the shops to the Co-operative Societies by nomination, for such sum or fee or both, with the prior approval of the Government, the exercise of such powers is not in consonance with the mandatory procedure prescribed under Proviso 1 and 3 to Rule 3(1) of the Rules;
(xii) the exercise of such power of allotting the shops to Co-operative Societies by nomination, is not only contrary to Rule 3(1) of the Rules, but also detrimental to the public revenue of the State;
(xiii) the allotment of the shops to Co-operative Societies whose bye-laws do not provide to do the business in retail vending of liquor is contrary to the rule of law;
(xiv) the powers conferred on the Commissioner and the Government under Rule 3(1) of the Rules should be exercised fairly and transparently to advance the public interest; but not arbitrarily by abuse of discretion exercised with reference to the choice of persons, preferring Co-opera-tive Societies, as against the individuals, and also with reference to the terms of grant fixing the lower price viz., the upset price for the year 1998-99 as against the higher privilege amount offered by the individu-als; and therefore, the impugned Government Order is unfair, irrational, amounts to legal mala fide, and fails to stand to the test of Wednesbury's reasonableness, and hence, violates Article 14 of the Constitution of India.
(xv) the Government have failed to take a prudent decision to get the best revenue to the State and thus have abused the power conferred under Proviso 3 to Rule 3(1) of the Rules;
(xvi) there is no nexus between the object sought to be achieved viz., to augment public revenue, and the decision taken in that regard viz., granting licence for the non renewed/unsold shops for the upset price for the year 1998-99, ignoring the written offers made by the petitioners for grant of privilege several times higher than the upset price for the year 1998-99 for that shop;
(xvii) the Co-operative Society is not an instrumentality of the State to give preference to them as against the individuals and therefore, they do not require any special treatment;
(xviii) any change of policy decision contrary to the earlier decision taken in G.O.Ms.No.62, Prohibition and Excise (VI) Department, dated 11.4.1998 and letter dated 23.4.1999 that under no circumstances, shops need be allotted to Co-operative Societies by nomination, during the block year 1998-2001, is subject to judicial review under Article 226 of the Constitution of India, as the same is contrary to the Rule of Law for violating Proviso 3 to Rule 3(1) of the Rules, manifestly arbitrary,, discriminatory, suffers from legal mala fide, fails to stand to the test of Wednesbury's reasonableness and amounts to unfair trade practice causing unhealthy competition providing unjustified enrichment to Co-operative Societies that are under the control of the Directors belonging to the Ruling Party;
(xix) Failure to comply with Rule 3(1) of the Rules strictly is nothing but an exploitation of power to allot shops to Co-operative Societies at a lesser price than the privilege amount of that shop, as the same creates an unhealthy competition in the business, causing heavy loss to the licensees of the similarly placed shops in the locality, resulting in unjustified enrichment of Co-operative Societies; and (xx) in any event, the alleged cartel formed by the licensees/Syndicate is nothing but imaginary and surmise, without any material proof whatso-ever.
28. Per contra, the learned-Additional Advocate General appearing on behalf of the respondents contends as follows:
(i) the petitioners, having failed to participate in the auction of the impugned non-renewed/unsold shops for the year 2000-2001, are not aggrieved by the impugned Government order, as already held by this Court, under similar facts and circumstances, by orders dated 9.11.1999 and 18.11.1999 of K.Govindarajan,J. in W.P.Nos.18017 of 1999 and 18505 of 1999 respectively, and by order dated 4.1.2000 of P.Shanmugam, J. in W.P.Nos.30 and 31 of 2000;
(ii) when the Government is entitled to take appropriate decision in the matter of grant of licence to Co-operative Societies by nomination, in fixing such sum or fee or both, taking the entire relevant and material facts of such complex commercial transactions as well as the public revenue into consideration, neither the petitioners have got any locus standi to chal-lenge the said decision, nor this Court could go into such issue by a judicial review under Article 226 of the Constitution of India;
(iii) the petitioners, having failed either to renew the shops or to participate in the auction of the non-renewed/unsold shops, causing loss of revenue to the State, have no locus standi to challenge the allotment of shops by nomination to Co-operative Societies at the proportionate upset price for the year 1998-1999, nor to complain loss of revenue to the State by such allotment;
(iv) the contention that the Commissioner and Government are estopped to take a revised policy decision contrary to their earlier decision that no shops need be reserved or allotted to Co-operative Societies is not tenable;
(v) the contention that the licensees of the shops similarly placed - in the locality, who have renewed their licences, are of legitimate expectation that the shops would not be either reserved or allotted to Co-operative Societies by nomination, is also not tenable;
(vi) Proviso 3 to Rule 3(1) of the Rules namely, the Commissioner shall have regard to the upset price of similarly placed shops in the locality and obtain the prior approval of the Government in fixing such sum or fee or both for allotting the shops to Co-operative Societies by nomination, is only directory but not mandatory,
(vii) the rule that no shops could be sold below the upset price with reference to Rule 2(z) of the Rules is applicable only in the case of granting privilege of retail vending by public auction, but not in the case of granting privilege by nomination;
(viii) the Government have wide and exclusive powers to decide the manner in which they can grant licence to any person by public auction, for privilege amount, or to TASMAC or TNCSC or Co-operative Societies by nomination, for such sum or fee or both;
(ix) the reservation as well as allotment of non-renewed/unsold shops to Co-operative Societies, which form a class by themselves, by nomination, by exercise of power under Section 17-C and 17-D of the Act read with Rules 3(1), 13-A and 14 of the Rules, would not attract Article 14 of Constitution of India, as complained by the petitioners, as the peti-tioners and the Co-operative Societies-are not equal, as held by a Division Bench of this Court in Govindaswamy V.R. v. The State of Tamil Nadu, 1991 WLR 275:
(x) whether the contentions, namely, the Commissioner alone could decide on the grant of licence; and the Government have no power except to give prior approval for such decisions of the Commissioner, nor to direct the Commissioner to grant licence to Co-operative Societies by nomi-nation, without regard to the upset price of the similarly placed shops in the locality, were raised and dealt with in the decision dated 24.12.1996 made under identical facts and circumstances of the case in W.P.Nos.9170 of 1996 etc., of C.Shivappa, J. as confirmed by the Division Bench in M.P.Mariappa Nadar A others v. State of Tamil Nadu and 11 others, 1997 WLR. 814, or not, the said decision is still binding on the petitioners;
(xi) the policy decision of the Government, taken under changing facts and circumstances of such complex commercial transactions, in the matter of granting licence for the privilege of retail vending in liquor, to allot the shops to Co-operative Societies by nomination, to augment public revenue and to prevent a corresponding loss of revenue to the State by curbing cartel formed among the licensees of the similarly placed shops in the locality, for their unjustified enrichment is logically fair, reason-able and bona fide and therefore, the same cannot be subjected to judicial review;
(xii) in the absence of any provision under the rules to conduct the public auction for the non-renewed/unsold shops for lower than the privilege amount of the previous excise year, the Commissioner has no authority to consider the request of the petitioners for grant of licence below the privilege amount of the previous year, even though the same is above the upset price fixed by the Government for the block year, or otherwise, there will be discrimination among the licensees who have renewed their licence under Rule 14 of the Rules and the persons who request grant of licence below the privilege amount of the previous year, which is not permissible under the scheme of rules;
(xiii) the Government is the ultimate authority to take appropriate decision in fixing such sum or fee or both for allotting the shops to Co-operative Societies by nomination, as any decision of the Commissioner in this regard should have the prior approval of the Government, as per Rule 3(1) of the Rules; and when the Government has such wide and exclusive power to take appropriate decision in such complex commercial trans-actions, there is no illegality in considering the recommendations or the Commissioner as well as the suggestions of the Registrar of Co-opera-tive Societies and therefore, the impugned Government Order cannot be complained as arbitrary, discriminatory and legal mala fide, in the absence of any substantial materials to that effect;
(xiv) the contention that the allotment of the shops to Co-operative Societies would only pave way for corruption and malpractice is not tenable, as the same is imaginary and vague ; and
(xv) in any event, the Government had taken a decision to allot the shops to Co-operative Societies by nomination, for the excise year 2000-2001, for the upset price of the year 1998-99 and to collect the same propor-tionately from the date of application to augment public revenue and to prevent corresponding loss of revenue to the State, transparently, bona fide and reasonably, after exhausting the procedure relating to the auction for the year 2000-2001 and therefore, the impugned Government Order is valid in law.
29. In appreciation of the rival contentions of the parties, I am obliged to consider the following issues in these writ petitions:
ISSUES:
1. Whether the petitioners are aggrieved by the impugned Government order and have locus standi to challenge the same?
2. Whether the Government is estopped to take a policy decision to allot the non-renewed/unsold shops to Co-operative Societies by nomination, contrary to their earlier decision?
3. Whether the impugned Government Order is contrary to the Rule of Law for violating Provisos 1 & 3 to Rule 3(1) of the Tamil Nadu Liquor (Retail Vending) Rules, 1989 ?
4. Whether the impugned Government Order is arbitrary, mala fide, unfair, unreasonable and violative of Article 14 of the Constitution of India?
5. Whether these writ petitions are maintainable in view of the decision of the Division Bench of this Court in M.P.Mariappa Nadar & others v. Slate of Tamil Nadu and 11 others, 1997 W.L.R. 814?
30. Issue:3 Whether the impugned Government Order is contrary to the Rule of Law for violating Provisos 1 and 3 to Rule 3(1) of the Tamil Nadu Liquor (Retail Vending) Rules, 1989 ?
30.1. The pivotal point of argument of M/s.P.Chidambaram, R.Krishnamurthy, R.Gandhi, C.Chinnasamy, K.Doraisamy, Kalyanasundaram and Mrs.Nalini Chidambaram, is that the impugned Government Order is contrary to Rule of Law for violating Rule 3(1) of the Rules.
30.2. The Government is the guardian of finance of the State. One of the important purposes of selling the privilege to sell liquor in wholesale or retail under Section 17-C and 17-D of the Act read with Rule 3(1) of the Rules, is to raise revenue and therefore, the Government is expected to protect the financial interest of the State. Hence, the legislature has quite naturally empowered the Government with wide and exclusive power to sell the privilege and to see that there is no leakage of revenue. It is for the Government, by exercising its power of granting prior approval under the Rules, to decide the upset price for granting licence, by auction, for the privilege amount which shall not be below the upset price, as per Rule 2(z) of the Rules, and to fix such sum or fee or both for granting licence to TASMAC or TNCSC or Co-operative Societies by nomination. Correctness of such decision is not open to judicial review unless the same is arbitrary, mala fide and unreasonable.
30.3. When the Government proposes to augment the public revenue, the State is under an obligation to secure the best price in selling the privilege either by public auction or by nomination, because, the financial constraint may weaken the tempo of activities of the State as held in Ram & Shyam Co. v. State of Haryana, AIR 1985 SC 1149. It is therefore contended on behalf of the petitioners that, if the Government decides to grant licence to Co-operative Societies, by nomination, for a lesser sum, ignoring the offers made by the petitioners, such a decision of the Government is arbitrary and unreasonable. It is further argued that the Government cannot decide at its sweet will and deal in a manner it pleases, but its action should be fair, transparent and in conformity with the standards or norms prescribed under Rule 3(1) of the Rules, because, as observed in Harshankar v. Dy. E & T Commissioner, , the higher the fee imposed for a licence, the better the regulation.
30.4. Even though the Proviso 1 to Rule 3(1) of the Rules empowers the Commissioner to direct the licensing authority to grant privilege on payment of such sum or fee or both, by nomination, to TASMAC or TNCSC or to Co-operative Societies, Mr.P.Chidambaram, learned senior counsel, contends that the Proviso 3 to Rule 3(1) of the Rules mandatorily requires the Commissioner to have regard to the upset price for similarly placed shops in the locality in fixing such sum or fee or both, which shall be done with' the prior approval of the Government.
30.5. According to Mr.P.Chidambaram, learned senior counsel, even in the case of grant of licence to Co-operative Societies by nomination, for the sum or fee or both, the same should be fixed with reference to the upset price of the similarly placed shops in the locality, but not with reference to the upset price of that shop; if the rule is to raise revenue, such sum or fee or both, should not be below the privilege amount paid by the similarly placed shops in the locality, the element of public interest in the action of the Government lies in getting the best possible price; and any decision to the contra by the impugned Government order, is opposed to the public interest 30.6. Mr.P.Chidambaram, learned Senior Counsel, emphatically contends, again placing reliance on Ram & Shyam Co. v. State of Haryana, that one would require multi-layered blind fold to reject the offer made by the petitioners to pay more than the amount fixed in the impugned Government order, for grant of licence to Co-operative Societies and the said decision of the Commissioner and the Government in this : regard, is a shock and surprise, as it provides an unjustified enrichment to Co-operative Societies, devoid of fair play in the decision and action of the Government and contrary' to the public interest.
30.7. It is further argued by the learned senior counsel for the petitioners Mr.P.Chidambaram, Mr.R.Krishnamurthy and Mr.R-Gandhi that as per Proviso 1 and 3 to Rule 3(1) of the Rules, the Commissioner alone could take a decision and the Government is only empowered to sanction the prior approval to the decision of the Commissioner. Reliance on Chandrika Jha v. State of Bihar, is placed for the consideration, in this regard, complaining that the Government has usurped the statutory functions of the Commissioner illegally.
30.8. Mr.P.Chidambaram, the learned senior counsel effectively contends that the expression 'the Commissioner shall have regard to the upset price of the similarly placed shops in the locality, is mandatory, in fixing such sum or fee or both for granting privilege to Co-operative Societies by nomination. According to Mr.P.Chidambaram, learned senior counsel. Provisos 1 and 3 to Rule 3(1) of the Rules, contemplate two mandatory procedures to be followed viz., i. the Commissioner shall have regard to the upset price of the similarly placed shops in the locality in fixing such sum or fee or both for granting licence to Co-operative Societies by nomination; and (ii) the Govern-ment is not empowered to take a decision on that, but could only sanction prior approval to such a decision of the Commissioner.
Nevertheless, Mr.P.Chidambaram, learned Senior Counsel, contends that both the conditions are apparently violated in the impugned Government order.
30.9. Mr.P.Chidambaram, learned senior counsel relying on Ramchandra v. Govind, , Union of India v. Kamalabai, and Babaji Kondaji Garad v. Nasik Merchants Co-operative Bank Ltd., , contends that the Commissioner and the Government have violated the well settled rule, that, when a statute requires certain thing to be done in a manner, it can be done in that manner only unless a contrary indication is to be found in the statute, by not complying the mandatory procedures contemplated under Proviso 1 and 3 to Rule 3(1) of the Rules, referred to above.
30.10. Mr.P.Chidambaram, learned senior counsel, quoting the decision in Director of Education (Secondary) v. Pushpendra Kumar, contends that where a provision makes an exception to the general provision, such exception cannot subsume the general provision to which it is an exception and thereby, nullify the general provision by taking away completely the right conferred by the general provision and therefore, care has to be taken that such exception to the general provision does not unduly interfere with the benefits conferred under the general provision, which would have been availed but for the provision-for an exception.
30.11. Mr.P.Chidambaram, learned senior counsel, further contends that under Proviso 1 and 3 to Rule 3(1) of the Rules, the Commissioner is empowered to allot the shops to TASMAC or TNCSC or to Co-operative Societies on payment of such sum or fee or both fixed with reference to the upset price of the similarly placed shops in the locality, with the prior approval of the Government, as an exception to the general provision namely, to grant the privilege for retail vending in liquor to any person for a privilege amount by auction, and if that be so, while exercising such an exceptional power of granting licence to Co-operative Societies by nomination, the Government is expected to take care of the rights conferred under the general provision, namely, grant of privilege to any person, particularly, when the Proviso 3 to Rule 3(1) of the Rules contemplates that the Commissioner in fixing such sum or fee or both shall have regard to the upset price of the similarly placed shops in the locality. It is therefore contended that the impugned order is contrary to the Rule of law.
30.12. I am unable to appreciate the above contentions of the learned senior counsel for the petitioners. The grant of licence for manufacturing and selling liquor is essentially a matter of economic policy and therefore, the Court would be slow to interfere or strike down such policy decisions, because, as held in Delhi Science Forum v. Union of India, , dealing with liquor is an exclusive privilege of the State -and the policy evolved how to deal with it or the legality of the same or implementation of such a policy need not be set at naught by this Court; when there is no right to deal with liquor, it is for the Government to evolve a policy which is permissible under Section 17-C and 17-D of the Act and Rule 3(1) of the Rules to assign the non-renewed/unsold shops to Co-operative Societies, which, in my considered opinion, cannot be complained of as an interference or an infringement of any statutory provisions or the rights of the petitioners.
30.13. In my considered opinion, even though both Proviso 1 and 3 to Rule 3(1) of the Rules, empower the Commissioner to decide on granting licence to TASMAC or TNCSC and Co-operative Societies by nomination, on payment of such sum or fee or both, after having regard to the upset price of the similarly placed shops in the locality, the same should have the prior approval of the Government; otherwise, the decision of the Commissioner is not valid in law.
30.14. The exclusive power of the Government and the Commissioner to sell the privilege for retail vending of liquor to any person for the privilege amount or to allot the same to Co-operative Societies by nomination, for such sum or fee or both, cannot be disputed. No doubt, the public auctions are held to get the best possible price. Once a procedure of public auction is exhausted, as in the instant case, it is for the Government to take appropriate policy decision resorting for an alternative, in public interest, to augment revenue to the State. Such policy decisions, as held in Tata Cellular v. Union of India, , cannot be subjected to Judicial review except on the grounds:
(i) illegality;
(ii) irrationality, namely, Wednesbury's unreasonableness; and iii) procedural impropriety.
30.15. It is true that the Government's conduct in the exercise of such decision making, ought to be fair, candid and unprejudiced, not arbitrary, capricious or biased, much less warped by resentment or personal dislike, as observed by the Apex Court in the Tata Cellular v. Union of India, ;
30.16. However, as held in R.K.Garg v. Union of India, AIR 1981 SC 2138 certain measure of freedom or 'play in the joints' should be given to the executives for taking decision relating to the complex economic matters, which requires a decision based on experimentation and appreciation of Trial and Error' method, but not on a 'strait-jacket' formula, unless it is patently arbitrary, discriminatory and mala fide, attracting Article 14 of the Constitution of India. When a wide and exclusive power is conferred on the Government under Sections 17-C and 17-D of the Act and Rule 3(1) of the Rules, to affix its seal of prior approval, on the decision of the Commissioner for granting privilege to TASMAC or TNCSC or to Co-operative Societies by nomination, for such sum or fee or both, such intention of the legislature cannot be lightly disregarded by this Court, as it is well settled in law that the statute is to be construed according to the intention of the legislature and the duty of the judicature is to act upon the true intention of the legislature.
30.17. Of course, it is time and again declared that even for the most imaginative legislature, it is impossible to forestall exhaustively the situations and the circumstances that may emerge after enacting a statute, where its application may be called for, because, the words employed in the statute are not scientific symbols having precise or definite meaning, but a imperfect medium, to convey once thoughts, much less a large assembly consisting of persons of various shades of opinion. It is under such circumstances, the function of the Court is to expound the words used in the statute by avoiding apparently contradictory propositions and therefore, I am obliged to mind that the legislation is actuated with some policy to curb some public evil and to effectuate some public benefit, of course, without mistaking midnight for noon. Faced with such problems, in the instant case, I am constrained to draw a dividing line between the public evil and public benefit, which cannot be ignored, as rightly taken note of by the Government and therefore, the practical impossibility of giving mandatory effect to the particular expression of the statute, vide Proviso 3 to Rule 3(1) of the Rules that, the Commissioner shall have regard to the upset price of the similarly placed shops in the locality infixing such sum or fee or both while granting licence to the Co-operative Societies within and outside the purview of the relevant facts and circumstances of the case, have to be pierced through the darkness to see the twinkling stars.
30.18. In this regard, I am obliged to refer the following statements averred in the counter affidavit filed by the Commissioner and the Government, as to the alleged cartels formed by the licensees/syndicate who deliberately left the shops non-renewed/unsold, causing loss to the revenue of the State:
Municipality/ Corporation Shops Functioned in 98-99 Shops Renewed and Sold in 1999-200 Balance Balance Shops Renewed In 2000-01 Balance (1) (2) (3) (4) (5) (6) Pudukottai IS 15 3 8 7 Thothukudi 26 19 7 14 5 Coimbatore 191 178 13 112 66 Dindigul 28 20 8 12 8 Salem 76 71 5 57 14 Trichy 85 85 14 51 20 Madurai 120 90 30 56 34 Karur 28 16 12 5 11 Chennai 745 698 47 659 39 Total 1317 1178 139 974 204 30.19. From the above table, it is clear that out of 18 total number of shops fixed under Rule 4 of the Rules for Pudukottai district, only 15 shops were renewed during 1999-2000 leaving 3 shops non-renewed, out of 15 shops, 8 shops were renewed during 2000-2001 leaving again 7 shops non-renewed.
In Thothukudi District, only 19 shops were renewed during 1999-2000 leaving 7 shops non-renewed, out of 19 shops 14 shops were renewed during 2000-2001 leaving again 5 shops non-renewed.
In Coimbatore District, only 178 shops were renewed during 1999-2000 leaving 13 shops non-renewed, out of 178 shops, 112 shops were renewed during-2000-2001 leaving again 66 shops non- renewed.
In Dindigul District, only 20 shops were renewed during 1999-2000 leaving 8 shops non-renewed, out of 20 shops, 12 shops were renewed during 2000-2001 leaving again 8 shops non-renewed.
In Salem District, only 71 shops were renewed during 1999-2000 leaving 5 shops non-renewed, out of 71 shops, 57 shops were renewed during 2000-2001 leaving again 14 shops non-renewed.
In Trichy District, only 71 shops were renewed during 1999-2000 leaving 14 shops non-renewed, out of 71 shops, 51 shops were renewed during 2000-2001 leaving again 20 shops non-renewed.
In Madurai District, only 90 shops were renewed during 1999-2000 leaving 30 shops non-renewed, out of 90 shops, 56 shops were renewed during 2000-2001 leaving again 34 shops non-renewed.
In Karur District, only 16 shops were renewed during 1999-2000 leaving 12 shops non-renewed, out of 16 shops, 5 shops were renewed during 2000-2001 leaving again 11 shops non-renewed.
In Chennai District, only 698 shops were renewed during 1999-2000 leaving 47 shops non-renewed, out of 698 shops, 659 shops were renewed during 2000-2001 leaving again 39 shops non-renewed.
30.20. A further illustration in respect of Karur and surrounding area as to the cartel formed causing loss of revenue to the Government is stated as follows:
LIQUOR SHOP DETAILS KARUR MUNICIPALITY, INAM KARUR TOWN PANCHAYAT AND THANTHONI TOWN PANCHAYAT AREAS S.No. AREA SHOPNO.
PRIVILEGE AMOUNT 1998-1999 1999-2000 2000-2001 1 Kanir Municipality 1 2170000 2495500 2745050 2
-DO-2
2251000 2588650 2847515 3
-DO-3
1755000 4
-DO-4
1430000 1644500 5
-DO-5
1651000 1898650 6
-DO-6
2555000 2938250 7
-DO-7
3138000 8
-DO-8
3328000 9
-DO-9
3077000 10
-DO-10
2600000 2990000 11
-DO-
II 2390000 2748500 3023350 12
-DO-12
2505000 2880750 13
-DO-13
3125000 3593750 14
-DO-14
3126000 15
-DO-15
3600000 16
-DO-16
4015000 17
-DO-17
2501000 2876150 3163765 18
-DO-18
3010000 3461500 19
-DO-19
3403000 20
-DO-20
2400000 21
-DO-21
2030000 2334500 22
-DO-22
3251000 23
-DO-23
3250000 24
-DO-24
2916000 3353400 25
-DO-25
2910000 3346500 26
-DO-26
2979000 3425850 27
-DO-27
2610000 3001500 28
-DO-28
2999000 76975000 45577950 11779680 ABSTRACT 1998-99 TOTAL SHOPS 28 PRIVILEGE AMOUNT Rs. 7697500.
1999-2000 2000-2001 TOTAL SHOPS RENEWED 16 TOTAL SHOPS RENEWED 4 Privilege Amount Rs.45577950 Privilege Amount Rs. 11779680 Loss dut to non renewal of 12 Shops Rs.42943300 Loss due to non renewal of 12 shops Rs.35457950 30.21. A careful perusal of the above table makes it clear that among the shops similarly placed namely. Shop Nos.1 to 10, during 1999-2000, Shop Nos.1, 2, 4 were renewed leaving shop No.3 as non-renewed. Again Shop Nos.5, 6, 10, and 11 were renewed leaving Shop Nos.7, 8 and 9 non renewed, and again shop Nos.18, 21, and 24 were renewed leaving 19, 20, 22, and 23 non renewed. Shop Nos-24, 25, 26, 27 were renewed leaving Shop No.28 non-renewed, and thereafter, during 2000-2001, out of 28 shops, only Shop Nos.1, 2, 11, 17, and 28 were renewed leaving Shop Nos.3 to 10, 12 to 16, 18 to 27, non renewed and thus 24 shops were not renewed.
30.22. On the other hand, the total indent placed by the licensees, supplied by the TASMAC and consumed by the public in the locality for 28 shops during 1998-99 and for 16 shops during 1999-2000 and 4 shops during 2000-2001 are stated to be almost the same, proving the case of the respondents that even though the non-renewal of shops appears to be an independent act of the licensees of the respective shops, it provides for unjustified enrichment to the licensees/syndicate by a cartel formed by them and causes a corresponding loss of public revenue to the State. When such statistical details are available, the Government cannot lightly ignore the same while exercising the power of prior approval contemplated under Proviso 1 and 3 to Rule 3(1) of the Rules.
30.23. The Apex Court in Union of India v. Hindustan Development Corporation, AIR 1994 SC 989 after referring different dictionary meanings for the word 'cartel' as found in Colons English Dictionary, Webster. Comprehensive, Dictionary, Chambers' Dictionary, Black's Law Dictionary, American Jurisprudence, and The Dictionary Of Modern Legal Usage, has observed as follows:
" The cartel therefore is an association of producers who by agreement among themselves attempt to control production, sale and prices of the product to obtain a monopoly in any particular industry or commodity. Analysing the object of formation of a cartel in other words, it amounts to an unfair trade practice, which is not in the public interest. The intention to acquire monopoly power can be spelt out from formation of such a cartel by some of the producers. However, the determination whether such agreement unreasonably restrains the trade depends on the nature of the agreement and on the surrounding circumstances that give rise to an inference that the patties intended to restrain the trade and monopolise the same."
30.24. The Government, therefore, while granting prior approval to the decision of the Commissioner in fixing the sum or fee or both for grant of privilege for retail vending in liquor to Co-operative Societies by nomination, are entitled to take into account all the relevant and material facts placed by the Commissioner, referred to above, as welt as the suggestions of the Registrar of Co-operative Societies into consideration, so that at least the upset price for that shop could be secured proportionately for the period from-the date of application for allotment, preventing the corresponding loss of revenue to the State, as rightly pointed out by the learned Additional Advocate General.
30.25. In view of the indisputable fact available before this Court that the Government had notified the sale of privilege of non-renewed/unsold shops for public auction for the year 2000-2001, but still, as there was no bid for the same, and only after exhausting the course of public auction to secure the best price for the privilege for the year 2000-2001, the respondent had resorted for allotment of the shops to Co-operative Societies, and therefore, the contentions of Mr.P.Chidambaram, learned senior counsel, placing reliance on Ram & Shyam Co. Case, that the Government, in the instant case, had failed to make attempt to obtain the best available price for the sale of privilege for higher public revenue, cannot be accepted.
30.26. The inference of the Government that there were collisions among the licensees/syndicate for forming a cartel in not renewing the licence of the shops similarly placed in the locality and there were further collisions among the bidders at the time of the public auction for the year 2000-2001, might be right or wrong, but, as held in State of Orissa v. Harinarayan, , such inference of the Government is not open for Judicial review as long as it is not proved that it is a make-believe one.
30.27. A combined reading of Proviso 1 and 3 to Rule 3(1) of the Rules provides the manner in which the privilege could be allotted to Co-operative Societies by nomination and accordingly, Mr.P.Chidambaram, learned senior counsel, contends that:
(a) the Commissioner shall have regard to the upset price of the similarly placed shops in the locality in fixing such sum or fee or both for granting licence to Co-operative Societies by nomination; and
(b) such decision of the Commissioner should have the prior approval of the Government 30.28. But, as held in Union of India v. Kamalabai, , one has to examine the language of the provision to find out whether a mere reference to the matters mentioned is aimed at or whether the legislature wanted the Commissioner and the Government to be guided rigidly thereby.
30.29. No doubt, long back, in Taylor v. Taylor, 1875 (1) Ch. D 426, it was held that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule squarely applies where, the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other manner, as observed by the Apex Court in Ramchandra v. Govind, .
30.30. On the other hand, as observed by Lord Campbell In Liverpool Borough Bank v. Turner, 1861 (30) LJ Ch. 379 extracted from page 380, referring Craies on Statute Law 7th Edition 262, no universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice, to try to get at the real intention of the legislature by carefully attending to the whole scope.
30.31. As held in Ramchandra v. Govind, , such intention of the legislature is, therefore, to be ascertained upon a review of the language, subject-matter and importance of the provision in relation to the general object intended to be secured, the mischief, if any, to be prevented and the remedy to be promoted by the Act.
30.32. In my considered opinion, the words shall have regard to found in Proviso 3 to Rule 3(1) of the Rules, do not mean that the Government cannot take into account the material facts that the impugned shops were not renewed due to the cartel formed by the licensee/syndicate and the same were not sold in the public auction conducted for the excise year 2000-2001 due to the collision among the bidders and therefore, it is necessary to allot the shops to Co-operative Societies, at least to secure the proportionate upset price of the year 1998-99 by allotting the shops to Co-operative Societies by the impugned Government Order and to prevent the corresponding loss of revenue to the State; and to curb such cartel and collision among the licensee/syndicate.
30.33. If the expression that the Commissioner "shall have regard to" the upset price for similarly placed shops in the locality, in fixing such sum or fee or both in not renewing non-renewed/unsold shops with the approval of the Government is construed mandatory, requiring the Commissioner and the Government to fix such sum or fee or both, in any event, not below the upset price of the similarly placed shops in the locality, which should be according to the petitioners, the privilege amount of the shops renewed for the year 2000-2001, the non-renewed/unsold shops would remain closed throughout the block year 1998-2001 which would only benefit the licensees/syndicate to have unjustified enrichment, as the indent placed by the licensees, supplied by the TASMAC and consumed by the public in the locality renewed are stated to be almost same throughout the block year, irrespective of the renewal of the shops in the locality. On the other band, the Government incurs loss of revenue due to the non-renewal of the impugned shops.
30.34. That apart. Rule 3(1) of the Rules do not imply any prohibition to allot the shops to Co-operative Societies by nomination, for the year 2000-2001 for the upset price for the year 1998-99 and to collect the same proportionately from the date of application of allotment, particularly when such a procedure has been resorted by the impugned Government Order only after exhausting the course of public auction for the year 2000-2001.
30.35. Applying the ruling in M/s.Shri Sitaram Sugar Co. Ltd. v. Union of India, , I find that the expression used in Proviso 3 to Rule 3(1) of the Rules is not 'shall have regard only to, but 'shall have regard to'. These words 'shall have regard to are not a fetter; they are not words of limitation, but of general guidance to make an estimate. The Government must, of course, address itself to the questions to which it must have regard, and having done so, it is for the government to determine what it is empowered to determine with reference to what it reasonably considers to be relevant for the purpose.
30.36. The Judicial Committee, in Commissioner of Income-tax v. Williamson Diamonds Ltd., 1958 AC 41, 49 observed with reference to the expression 'having regard to', as follows:-
The form of words used no doubt lends itself to the suggestion that regard should be paid only to the two matters mentioned, but it appears to their Lordships that it is impossible to arrive at a conclusion as to reasonableness by considering the two matters mentioned isolated from other relevant factors. Moreover, the statute does not say 'having regard only' to losses previously incurred by the company and to the smallness of the profits made. No answer, which can be said to be in any measure adequate, can be given to the question of 'unreasonableness' by considering these two matters alone...' 30.37. Hence, taking into consideration the subject matter, namely, grant of licence, the general object intended to be secured, namely, augmentation of public revenue, the mischief to be prevented, namely, to avoid the loss of revenue and to curb the cartel formed by licensees/syndicate and the remedy to be promoted, namely, to allot the shops to Co-operative Societies by nomination, I am obliged to construe the expression that the Commissioner shall have regard to the upset price of the similarly placed shops in the locality in fixing such sum or fee or both is only directory but not mandatory; and therefore, in my considered opinion, the expression 'shall have regard to' in Proviso 3 to Rule 3(1) of the Rules, only obliges the Commissioner and the Government to consider relevant data material, to which it must have regard and therefore, they are not strictly mandatory, but in essence, directory.
30.38. Even though prohibition is a rule and granting licence, being the subject, is an exception added to the statute, of course, either by auction for privilege amount or by nomination for such sum or fee or both, for augmenting public revenue, being the object; again either by sealing the leakage of public revenue or by preventing the loss of revenue caused by alleged cartel formed by the licensees/syndicate, being the mischief sought to be prevented; by securing at least the upset price of the year 1998-99, being the remedy to be promoted, as already observed, in my considered opinion, if such things could not be achieved by strictly adhering to the command that the Commissioner shall have regard to the upset price of the similarly placed shops in the locality in- fixing such sum or fee or both, as expressed under Proviso 3 to Rule 3(1) of the Rules, there is nothing wrong in construing such command as only directory instead of mandatory, as the prohibition of such command would plainly defeat the very aim and object of the provision.
30.39. Since I have already held that the expression 'the Commissioner shall have regard to the upset price for the similarly placed shops in the locality is only directory, in fixing such sum or fee or both, for allotting the shops to Co-operative Societies by nomination, it is immaterial whether the 'Commissioner and the Government have taken into consideration the upset price of that shop or that of the similarly placed shops in the locality, as the Government have taken the upset price of that shop into consideration in order to augment revenue and to prevent the corresponding loss of revenue to the State, by curbing the cartel formed by the licensees/syndicate.
30.40. I am, therefore, satisfied that the Government, after taking into consideration the overall aspects of the case and the relevant factors for non-renewal of the shops, apparently found available on record, have logically taken a right, bona fide and reasonable decision to allot the shops to Co-operative Societies by nomination and therefore, there is no violation to Proviso 3 to Rule 3(1) of the Rules.
30.41. Hence, the contentions of the learned senior counsel for the petitioners that the impugned Government Order is contrary to Rule of Law for violating Proviso 3 to Rule 3(1) of the Rules, are rejected.
31. Issue:2 Whether the Government is estopped to take a policy decision to allot the non-renewed/unsold shops to Co-operative Societies by nomination, contrary to their earlier decision?
AND lssue:4 Whether the impugned Government Order is arbitrary, mala fide unfair, unreasonable and violative of Article 14 of the Constitution of India?
31.1. It is true that the Government by G.O.Ms.No.62 Prohibition and Excise (VI) Department, dated 11.4.1998 and letter dated 23.4.1999 had taken a policy decision that no shop would be allotted to Co- operative Societies by nomination, during the block year 1998- 2001 and the Honourable Chief Minister in his budget speech on 22.5.1998, on the floor of the Assembly, announced that the privilege for retail vending in liquor would not be allotted to Co-operative Societies by nomination and the said policy decision has got nexus between the object of the provisions of the Act as well as the Rules, viz., granting licence for the best price and the action taken thereon to secure maximum revenue to the State.
31.2. However, by impugned Government Order, the Government has taken a contrary policy decision namely, to grant the licence to Co-operative Societies for the year 2000-2001 for upset price of that shop of the block year 1998-2001 and to collect the same proportionately from the date of receipt of application for allotment, ignoring the higher offer by the petitioners for grant of licence for the year 2000-2001 for more than the upset price of that shop for the year 1998-99, and without having regard to the upset price of the similarly placed shops in the locality.
31.3. It is contended on behalf of the petitioners that the Government is estopped from doing so; the impugned Government order suffers from want of nexus, between the object sought to be achieved and the decision taken in this regard; and the impugned Government Order is arbitrary, mala fide, unfair, and unreasonable as it fails to stand to the test of Wednesburys' reasonableness, and hence violative of Article 14 of the Constitution of India.
31.4. Placing reliance on M/s. Kasturilal v. State of J & K, , Mr. P.Chidambaram and Mr. R.Krishnamurthy, learned senior counsel for the petitioners, contend that every activity of the Government should have a public element in it, and therefore, it must be informed with reasons guided by public interest, or otherwise, it would be liable to be tested by its validity on the touchstone of reasonableness and public interest; and if the Government fails to satisfy either test, it would be unconstitutional and invalid, as violative of Article 14 of the Constitution of India, because the State cannot act as it pleases nor deal in its absolute or unfettered discretion arbitrarily, at its sweet will, assuming it has got wide, exclusive and unrestricted powers in the matter of grant of privilege for retail vending in liquor. They further contend that the Government cannot sell the privilege for a consideration less than the offer made by the petitioners unless there are other considerations, which render it reasonable, and in public interest to do so.
31.5. Mr. P.Chidambaram, learned senior counsel, contends that the impugned Government Order does not reveal any reason or public interest except a bald statement that the Government intend to augment public revenue and to curb the alleged cartel, which are totally imaginary and vague; and, on the other hand, by doing so, the Government proposes to grant licence, by nomination, at a lesser price than the amount offered by the petitioners, to Co-operative Societies, most of them are under the control of Directors who belong to the ruling party, and therefore the same is extraneous, irrational, arbitrary, mala fide and illegal.
31.6. It is further contended on behalf of the petitioners that, the power of the Government in granting privilege for retail vending in liquor, however be so wide and exclusive, they are impliedly required to adopt a fixed rule never to exercise such discretion in favour of a particular class of persons namely, the Co-operative Societies, in the instant case, by resolving to refuse the claim of the petitioners offering more revenue to the State. In other words, it is contended that the impugned Government Order contrary to the earlier decision both with reference to the preference of persons viz., the Co-operative Societies as against the petitioners, as well as the terms of grant namely, the upset price of 1998-99 as against the higher amount offered by the petitioners and therefore the impugned Government Order is arbitrary and irrational.
31.7. It is argued that the licensees of the adjacent shops renewed their licenses for the year 2000-2001 for a higher rate of privilege amount on legitimate expectation that the non-renewed/unsold shops would not be allotted to Co-operative Societies as decided by the Government in G.O.Ms.No.62 Prohibition and Excise (VI) Department, dated 11.4.1998 and letter dated 23.4.1999, but, now they are pushed to unhealthy competition with Co-operative Societies who are granted licences for the non-renewed/unsold shops by nomination for the upset price for the year 1998-99.
31.8. To weigh the contentions of the petitioners, I am obliged to take note of the entire stock of facts and circumstances of the case that led the Government to pass the impugned Government Order, into consideration. The earlier decision of the Government, that the non-renewed/unsold shops would neither be reserved nor be allotted by nomination to Co-operative Societies was reviewed by the Commissioner and the Government in the light of the subsequent developments that out of 1442 shops, only 377 shops were sold in public auction for the excise year 2000-2001 leaving 1065 shops non-renewed/unsold, causing a cumulative loss of more than Rs.300 crores to the State, and therefore, decided by the impugned Government Order to allot the shops to Co-operative Societies by nomination in order to augment public revenue and to prevent corresponding loss of revenue to the State as well as to curb the cartel formed by the licensees.
31.9. The sale of liquor, being a complex commercial transaction and the grant of privilege in retail vending of liquor, being a wide and exclusive power of the State to secure public revenue, it is for the Government alone to take note of the entire stock of the relevant material facts into consideration relating to such complex commercial transaction before taking any decision in the matter of grant of privilege. This Court cannot lightly assume that the decision taken by the Government in that regard is unreasonable or without public interest, as it relates to large number of considerations, which must necessarily be weighed by the Government alone, while taking such decisions.
31.10. As held in Rajendra Singh Case, the licensee, one can only seek to enforce the terms of statutory contract and the statutory provisions governing the contract, but, has no fundamental right to trade in liquor; nor has any right to oppose the grant of licence to Co-operative Societies by nomination.
31.11. Again, applying the principles laid down in U.P.S.R.T.C. v. Mohd. Ismail, , the Court can only direct the authority, namely, the Commissioner and the Government, to exercise such discretion according to law, but it is not for the Court to direct the authorities, on which a statutory discretion is vested, to exercise such discretion in a particular manner, not expressly prohibited by the statute.
31.12. As I have already held that the Government, while exercising the power of prior approval empowered under Proviso 3 to Rule 3(1) of the Rules, is obliged to take into consideration the recommendations of the Commissioner as well as the suggestions of the Registrar of Cooperative Societies on the subject matter, namely, grant of licence of non-renewed/unsold shops for the year 2000-2001 and to pass appropriate directions in the matter as the Government is the guardian of the finances of the State; and that the expressions "Shall have regard to" employed in Proviso 3 to Rule 3(1) of the Rules is only directory but not mandatory, under the facts and circumstances of the case, in my considered opinion, the grant of privilege to Co-operative Societies for the year 2000-2001 by the impugned Government Order, as rightly pointed out by the' learned Additional Advocate General, does not merely depend on the upset price of the similarly placed shops in the locality, but it depends on several other factors which compel the State to pass the impugned Government Order resolving to grant licence to Co-operative Societies for the upset price for the year 1998-99 and to collect proportionate fee from the date of application for allotment.
31.13. The contention that the State would suffer heavy loss by allotting the shops to Co-operative Societies at the upset price for the year 1998-99 and to collect proportionate fee from the date of application of allotment, there is neither relevant nor material, as the State is empowered to take such a decision with a calculated risk in order to avoid the corresponding loss of revenue in such complex commercial matters, of course, taking note of the relevant and material factors that are available for them, and such a policy decision of the Government, cannot be gone into by this Court by judicial review by the powers conferred under Article 226 of the Constitution of India.
31.14. Further, the renewal of licence of the shops in a locality does not depend on the non-renewal of the neighbouring shops; nor the Government promised any profit to any licensee either at the time of grant or renewal of the licence; and therefore, the State is not concerned about the profit or loss either to the petitioners or to Co-operative Societies, but only interested to raise the public revenue and to prevent the corresponding loss of revenue by sealing the leakage of revenue. If that were so, the argument advanced on behalf of the petitioners as to the legitimate expectation is, in my considered opinion, baseless and without any substance.
31.15. The denial of legitimate expectation is, undoubtedly, a ground for challenging the decision of the Government But if such denial could be Justified by showing overriding public interest, the Court would not interfere on the ground of change in Government policy. In other words, while considering the grant of relief on the ground of legitimate expectation, where a decision is alleged to be arbitrary, male fide, irrelevant, unreasonable or unfair, as complained by the petitioners herein, the Court is still restrained to interfere with such powers of the Government in the matter of policy decisions merely on the ground of legitimate expectation, if the overwhelming public interest could be scanned through. The legitimate expectation', for legal purposes, cannot be the same as anticipation; it is different from a wish or desire or a vow nor it amounts to a claim or demand on the ground of a right. However earnest and sincere a wish a desire or a hope may be, however confidently one may look to them to be fulfilled, such wish, desire or hope, by themselves, cannot amount to an assertable expectation and a mere disappointment does not attract legal consequences. A pious scope even leading to a moral obligation, cannot amount to a legitimate expectation. Legitimacy of an expectation can be inferred only if it is found on a sanction of law or custom on an established procedure followed in regular and natural sequence. Again, it is distinguishable from a genuine expectation. Such expectation should be Justifiably legitimate and protectable, as observed by, the Apex Court in Union of India v. Hindustan Development Corporation, AIR 1994 SC 989. Every such legitimate expectation, does not, by itself, certify into a law; nor it comes out to a right in the conventional sense. It is therefore necessary to first decide whether the legitimate expectation claimed by the petitioner is genuine and protectable. To make it genuine, the person who claims legitimate expectation, should not have contributed for denial of the same. In the instant case, the materials available for the Government while taking the impugned decision, as illustratively stated in the counter affidavit, reflect the intention of the licensees of the similarly placed shops in the locality to acquire monopoly power, by formation of cartel by themselves, either by not renewing the impugned shops or by not bidding the same in the auction for the excise year 2000-2001. Once the petitioners who claim the legitimate expectation themselves have contributed to the change of decision by the Government by the impugned Government order, denying such legitimate expectation, they are not enrided for the relief on the ground of legitimate expectation, either complaining arbitrariness, irrationality, unfairness, unreasonableness, mala fide as the case may be, because, the doctrine of legitimate expectation imposes in essence a duty on the public authority to act fairly by taking into consideration, all relevant factors relating to such legitimate expectation. Therefore, the petitioners are not entitled to contend that the impugned Government Order is arbitrary and mala fide as the same is passed on an extraneous consideration to favour the Co-operative Societies controlled by directors belonging to the ruling party, which allegation, by itself, is very vague and without any material. If that were so, in the light of the relevant materials, as observed earner, the Government have logically taken a right decision, for allotting such shops to Co-operative Societies and such decision do not suffer legal mala fide or arbitrariness nor discrimination or unfairness nor unreasonableness, even as per Wednesbury's reasonableness.
31.16. The 'Wednesbury's reasonableness', as observed in TATA Cellular Case, , is not a magical formula; but it applies to a decision which is so outrageous in its defiance of logic applied his mind to the question to be decided, could have arrived at. Again, testing the impugned decision by the 'Wednesbury's reasonableness', I am afraid to reach a conclusion that no reasonable person could not have taken such decision. Therefore, in my considered opinion, had the Government not taken such change of decision, it would not only be illogical or irrational, but also detrimental to public interest and therefore, I do not see any estoppel or illegality in change of policy decision of the Government by the impugned Government Order nor such policy decision could be complained as arbitrary, mala fide, unfair, unreasonable, much less violative of Article 14 of Constitution of India.
31.17. In fact, K.Govindarajan, J. rejected a similar contention in his order dated 18.11.1999 in W.P.No.18505 of 1999 holding that the Commissioner and the Government are entitled to take the subsequent developments into consideration in the matter of allotment of shops to Co-operative Societies in the interest of revenue of the State, and therefore, that it cannot be said that when the Commissioner has already exercised his power, he is not entitled to modify, go back contrary to the earlier decision, nor to reserve or a allot the shops to Co-operative Societies.
31.18. One should not forget that the Government never promised any profit to the licensees nor intended to cause any loss to them and therefore, the contention of the petitioner that the Commissioner and the Government are estopped to take a revised decision contrary to the earlier decision taken vide G.O.Ms.No.62 Prohibition and Excise (VI) Department, dated 11.4.1998, letter dated 23.4.1999 and the Budget Speech of the Hon'ble Chief Minister on the Floor of the Assembly on 22.5.1998, is not tenable in law.
31.19. Hence, neither the Government is estopped to change their policy decision nor the impugned Government order is arbitrary, mala fide, unfair, unreasonable and violative of Article 14 of the Constitution of India.
31.20. Hence, all the contentions of the learned senior counsel for the petitioners under Issues 2 and 4 are rejected.
32 Issue 1 Whether the petitioners are aggrieved by the impugned Government order and have locus standi to challenge the same?
32.1. The expression aggrieved person denotes an elastic and to an extent an elusive concept; its scope and meaning depends on diverse variable factors such as the content and intent of the statute, of which the contravention is alleged, the specific circumstances of the case, the nature and the extent of such person's interest, and the nature and extent of the prejudice or injury suffered by him, as observed in Jas Bhai Mottohai Desai v. Roshan Kumar Haji Bashir Ahmad, .
32.2. A Division Bench of the Allahabad High Court in Hariprakash Gupta v. Zilla Panchayat, , has held that the loss of income on account of competition in trade due to the business of rival does not-confer any right to a business man, to challenge the granting of or renewal of licence of his business rival on the ground that such granting or renewal of licence adversely affects his business and infringes his legal right to trade.
32.3. Similarly, an exhibitor of cinematograph films in a particular area cannot claim to debar the rival competitor not to exhibit films through the video cinema in the same area, as the exhibition of films on commercial basis is not a fundamental right under Article 19(1)(A) of the Constitution of India, as held in Sitar Video v. State of U.P., .
32.4. In the instant case, I have already observed that the Government has taken the impugned decision only after exhausting the procedure for public auction of the impugned shops for the year 2000-2001 which are neither renewed nor sold for the year 2000-2001 due to the cartel formed by the licensee/syndicate as inferred by the Government which cannot be subjected to judicial review under Article 226 of the Constitution of India and therefore, neither the licensees nor any other person/persons who failed to stake the claim in the public auction could be considered as aggrieved by the impugned decision.
32.5. Furthermore, as already observed, the Government never guaranteed profit to the licensees in such contract nor the State is concerned about the profit they make or the loss they incur in vending liquor in retail, except it aims to augment public revenue and to prevent corresponding loss to the State, the petitioners have no locus standi to complain that they are aggrieved by the impugned Government Order.
32.6. In similar cases, K.Govindarajan, J. by orders dated 9.11.1999 and 18.11.1999 in W.P.No.19017 of 1999 and W.P.No.18505 of 1999, respectively, and P.Shanmugam, J. following the decision of the Apex Court in Chingleut Bottles Case, , in the order dated 4.1.2000 in W.P.No.30 and 31 of 2000, held that the petitioners therein are not aggrieved by the decisions of the Government in allotting the privilege to Co-operative Societies.
32.7. Hence Issue No.1 is answered in negative.
33. Issue: Whether these writ petitions are maintainable in view of the decision of the Division Bench of this Court in M.P.Mariappa Nadar and others v. State of Tamil Nadu and 11 others, 1997 W.L.R. 814?
33.1. Learned Additional Advocate General placing reliance on the decisions in Kajit Babu v. Union of India, , C.I.T. v. Sterling Foods, , Sub Inspector Sadhan Kumar Goswami v. Union of India, , Philip Jeyasingh v. The Joint Registrar of Co-operative Societies, 1992 (1) L.W. 216 contends that the decision of the Division Bench in M.P.Mariappa Nadar and others v. State of Tamil Nadu and 11 others, 1997 WLR 814 is binding on the petitioners and therefore the above writ petitions are not maintainable in law.
33.2. In view of my decision on Issues 1 to 4, discussed above, on the merits of the case, I am of the opinion that it is not necessary to go into the issue whether these writ petitions are maintainable in view of the decision of the Division Bench in M.P.Mariappa Nadar and others v. State of Tamil Nadu and 11 others, 1997 WLR 814, as the same is academic.
34. In the result, finding no merits in any of the contentions of the petitioners these writ petitions are dismissed. No Costs. Consequently, connected W.M.P.S are closed.