Judgment

B.P. JEEVAN REDDY, J.- Leave granted in the SLPs.

2. In this batch of appeals, some are preferred by the State and some by the licensees/contractors. The matters arise under the Kerala Abkari Act. All of them pertain to the excise year 1981-82. The question is whether there was a failure on the part of the State in supplying the arrack undertaken by it to supply and whether the licensees are entitled to any rebate/remission in the amounts payable by them under the contracts, on account of such failure, if any. The earliest decision is in OP No. 2325 of the 1981-1, (Issac Peter v. Asstt. Excise Commissioner1). It was a writ petition filed by the licensee. It was allowed by a Division Bench of the Kerala High Court on November 14, 1983 against which the State of Kerala and its officers have filed CA No. 3442(NT) of 1984. Several other matters were allowed following the said decision against which the State has filed appeals. Another Division Bench of the High Court, however, took a contrary view in AS No. 293 of 1983 and batch disposed of on October 26, 1980. By this judgment, the suits filed by licensees/contractors were dismissed. Following the said judgment, several other appeals were disposed of in favour of the State. The licensees have a filed appeals against those judgments.

3. The Kerala Abkari Act (1 of 1077 - corresponding to 1902 AD) was enacted to consolidate and amend the law relating to Import, Export, Transport, Manufacture, Sale and possession of intoxicating liquors and of intoxicating drugs in the State. Section 15 says that no liquor or intoxicating drug shall be sold without a licence from the Commissioner. Section 18-A b provides for grant of exclusive or other privilege of manufacture and sale of liquor. Sub-section (1) says "It shall be lawful for the Government to grant to any person or persons, on such conditions and for such period as they may deem fit, the exclusive or other privilege -

(i) of manufacturing or supplying of wholesale or (ii) of selling by retail or (iii) of manufacturing or supplying by wholesale and selling by retail, any liquor or intoxicating drugs within any local area on his or their payment to the Government of an amount as rental in consideration of the grant of such privilege. The amount of rental may be settled by auction, negotiation or by any other method as may be determined by the Government, from time to time, and may be collected to the exclusion of, or in addition to, the duty of tax leviable under Sections 17 and 18." Section 24 prescribes the Forms and conditions of licence. Section 25 prescribes the counterpart agreement to be executed by licensee. Section 28 says that all duties, taxes, fines and fees payable to the Government under any of the provisions of the Act or of any licence or permit issued thereunder may be recovered as if they are arrears of Land Revenue. Section 29 empowers the Government to make rules for carrying out the purposes of the Act. It is not necessary to notice other provisions of the Act.

4. Rules have been made by the Government governing the mode of grant of licences, called the Kerala Abkari Shops (Disposal in Auction) f Rules, 1974. Rule 6 prescribes the general conditions applicable to licensees of arrack shops, both retail and wholesale. Sub-rule (26) of Rule 6 which constitutes the basis of the later judgment of the Division Bench of the High Court reads : "No remission or abatement of the rental shall be claimable by the licensee on any account whatsoever." Sub-rule (39) says that "the licensee shall be bound by all the rules which have been passed under the 9 Abkari Act and which may hereafter be made under the said Act or under any law relating to Abkari Revenue which may hereafter be made". Rule 8 prescribes the special conditions applicable to licences for the privilege of vending arrack in independent shops. Having regard to their crucial relevance, sub-rules (1), (2) and (3) of Rule 8 may be extracted here :

"8. (1) The mont