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39. Unsuccessful attempts having been made to assail the validity of the rental charged as a duty, fee or a tax, now, the relief is restricted disputing the extent of liability for the period during which they were prevented from carrying on vend of liquor, pursuant to notifications issued under Section 21. Petitioners are not disputing their liability on the ground that the contract has become frustrated, but what they contend is that on account of supervening circumstances which were not in contemplation of either parties; contract had become impossible of performance during the said period, and temporary suspension of business absolve their liability to pay the rental pro rata. Further, they contended that Government cannot get enriched by collecting the rental for this period, and such collection is opposed to all canons, equity and good conscience. It is asserted that the closure of the shop/s for unforeseen events has caused them substantial loss re- in payment of rental for the period during which no business was done, maintenance of establishment apart from loss of normal expectation of profit. The sum and substance of their contention is that curtailment of vend of liquor, whatever may be the cause, would entitle them for pro rata remission.

45. Notifications issued under Section 21 have not made the contract wholly illegal or impossible of performance. Petitioners have carried on their business as agreed except for the period interrupted. The true nature of the charge which the Government levies in such cases is that it is a price which the State charges as a consideration for parting with its privileges in favour of the licensee and the consideration agreed to be paid is not based on number of hours or the number of days or the quantity of sale effected.

"A person who expressly contracts absolutely to do a thing not naturally impossible is not excused for non-performance because of being prevented by the act of God or King's enemies.....or 'vis major' "

has been approved by the Supreme Court in Satyabrat v. Mugneeram, .

47. Last aspect of the matter is 'implied term of the contract' - principles on which excuse for payment of rental is sought to be sustained is that in case performance becomes impossible on account of physical causes or legal prohibition liability gets exonerated. Parties at the time of entering into contract have foreseen supervening events as probable - and have expressly provided that vend of liquor is subject to orders/direction that may be issued under Section 21 of the Act including closure by the licensee himself, under circumstances envisaged in proviso. If licensee closes the shop or stops vend of liquor under circumstances referred to in the proviso can he disown his liability for the period of closure? The express term gives no scope to contend that their liability to pay the rental ceases for the period during which vend of liquor was prevented. In this context, it is useful to refer to the decision of the Court of appeal in Leiston Gas Company v. Leiston-Cum-Sizewell Urban District Council, 1916 (2) KB 428, in which a distinction between an event which causes temporary

8. 1922 (2) AC. 180 @ 234(M)

9.

10. 1916 (2) KB 428 interference with the contract and an event which renders the performance of the contract impossible, is vividly explained. In the said case, plaintiffs had contracted to light their district for a period of five years and defendant had agreed to pay the fixed sum for a lamp per annum, pay-able in four equal quarterly instalments. The performance of the contract was interrupted for some time on account of an order made by the competent military authority under the Defence of the Realm Regulations, 1914. The charges claimed by the plaintiffs as stipulated were resisted by the defendants on the ground of failure of consideration.