LOTHUGADDA GTAS CO OP SOCIETY Vs. LOTHUGADDA GTAS CO OPERATIVE SOCIETY # STATE

JUDGEMENT

(1.) This writ petition has been filed by five Tribal Arrack Sales Co-operative Societies of Visakhapatnam, praying that this Court may issue an order in the nature of mandamus directing the State of Andbra Pradesh and the District Collector, Visakhapatnam, not to collect the amounts for the short drawn quantity of arrack as fixed under Rule 15 of the A.P. Excise (Arrack Retail Vend Special Conditions of Licences) Rules, 1969, for the excise year 1978-79.

(2.) The petitioners are the various excise licensees for the excise year 1978-79. The Government has leased out certain arrack shops to the petitioners-societies for the excise year 1978-79 commencing from 1st October, 1978. However, the licences had been granted to these Societies on 14-11-1978. By then nearly six weeks had elapsed from the time of commencement of the abkari year 1978-79 without the petitioners getting any licence. Thereafter, the petitioners had started exploiting the abkari licences by selling the arrack. Under Rule 15 of the A.P. Excise (Arrack Retail Vend Special Conditions of Licences) Rules, 1969, a licensee shall purchase arrack every month from the Government the quantum of which he fixes with the authorities in the beginning of the abkari year. This is called the minimum guaranteed quantity. The petitioners had clearly failed to lift this minimum guaranteed quantity of arrack during the abkari year 1978-79. Where the licensees so fail to lift the minimum guaranteed quantity, the aforesaid Rule 15 fastens the licensees with the liability to pay to the State the issue price of the short drawn qnautity. The petitioners are, therefore, clearly liable under the above Rule to pay the Government the amounts representing the issue price of the short drawn quantity of arrack. In fact the writ petition is not based on any denial of such liability. It is grounded on the plea to avoid the enforcement of liability incurred under the above rule. The petitioners' contention is that they being Tribal Arrack Societies are exempt from payment of the above amount payable under the aforesaid Rule 15. Rule 15 is a statutory rule. Its enforcement is not subject to any exemption in favour of a Tribal Society. I have not been shown any statutory instrument relieving the petitioners from this obligation. I have however been shown G.O.Ms. No. 1255 dated 15-9-1975 exempting the Tribal Arrack Societies from the operation of Rule 19 of the aforesaid rules. But, that has no bearing on the question of exemption under. Rule 15. It should, therefore, follow that the petitioners are not relieved of their liability to pay the issue price of the short drawn quantity of arrack. But, Mr. Venkata Ramana, the learned counsel for the petitioners, relied upon a Government Memo No. 1779 dated 20-9-1979 to say that the Government had exempted a similar group of arrack shops called Kakarapadu Group of arrack shops from the operation of Rule 15 for the abkari year 1978-79 and that the petitioners-societies should be given similar treatment. A reading of the aforesaid Memo No. 1799 shows that the minimum guaranteed quantity was not at all fixed at the time of leasing out the Kakarapadu Group of Arrack shops. When once the minimum guaranteed quantity was not fixed, which must be done at the beginning of the lease period, the question of default to lift the agreed quantity attracting liability would not arise. In the present case, it is not denied that at the time of granting of the licences or immediately thereafter, a minimum quantity of arrack is agreed to by the petitioners-societies with the authorities to be lifted as minimum guaranteed quantity for each month. This makes for a significant distinction between the case of Kakarapadu Group of shops, where there is no such fixation of the minimum guaranteed quantity at all, and in the present case, where there is one. What the Government did by its Memo No. 1799 is to ratify the action of the Collector in not fixing the minimum guaranteed quantity. That Memo, therefore, has no application to a situation where a minimum guaranteed quantity has been fixed and it is later sought to be enforced. Further, the Collector in his counter affidavit explained why the Kakarapadu Group of Arrack shops was initially not fixed with a liability to sell the minimum guaranteed quantity. Whatever may be the merits of that explanation, that clearly puts that group into a class by itself for the purpose of Rule 15. In those circumstances, I do not agree with the petitioners' counsel that the rights of his clients under Article 14 have been voilated. It has now been held that the right to vend arrack is a privilege which exclusively belongs to the Government and for the conferment of that right in favour of a citizen, the citizen has to pay the rentals as fixed and must agree to do and perform such other contractual terms stipulated in the agreement. Once a valid contract has been entered into, its execution and enforcement cannot be the subject matter of a constitutional attack under Article 14. It is, therefore, not open to the petitioners to claim exemption from their duty to perform and carry out one of the contractual terms of the lease. I, therefore, cannot agree with this contention of the petitioners' counsel.

(3.) Mr. Venkata Ramana argued that the Minimum guaranteed quantity of arrack fixed includes the quantity for the months of October and that part of November for which the petitioners were not given licences. For the non-lifting of the arrack from 1-10-1978 to 14-11-1978, the petitioners societies cannot be penalised. I think this is a correct legal submission. The societies without being given licences cannot sell arrack and for a period for which they had not been given licenece, they cannot be penalised on the ground that they had not lifted the minimum guaranteed quantity of arrack. But, from the papers filed by the Collector in W.P.No. 6672 of 1979, 1 find that no amount is demanded from the petitioners- societies on the ground of non-lifting of the minimum guaranteed quantity for the months of October and November. This question, therefore, does not arise.