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1986 Supreme(AP) 201
Andhra Pradesh High Court
Judges : A.SEETHARAM REDDY
A.Mohan Reddy - Appellant
Versus
Excise Superintendent Adilabad - Respondent
Decided On : 06-16-86
Parties to a contract are bound by the stipulations and commissions, and also statutory provisions, if any, that have been referred to in the stipulations.
Headnote:
EXCISE - ARACK RETAIL SALE - SHORT SUPPLY OF ARACK - REMISSION OF RENTAL - RULE 16 OF THE ANDHRA PRADESH (ARRACK RETAIL SALE SPECIAL CONDITIONS OF LICENCES) RULES - VALIDITY - WHETHER ULTRA VIRES OF THE ACT - WHETHER DISCRIMINATORY IN CHARACTER.
Fact of the Case:
The petitioner, a licensee of an arrack shop, claimed remission of rental for the proportionate short supply of arrack in two months during the excise year. The shortfall was made good in the succeeding months. The petitioner contended that Rule 16 of the Andhra Pradesh (Arrack Retail Sale Special Conditions of Licences) Rules, which barred any claim for remission in such cases, was ultra vires of the Act and discriminatory in character.
Finding of the Court:
The court held that Rule 16 was not ultra vires of the Act and was not discriminatory in character. It noted that the petitioner had agreed to abide by all the provisions of the Act and Rules, including Rule 16, when he entered into the contract. The court also held that the petitioner was not entitled to remission of rental since the shortfall in supply was made good in the succeeding months.
Issues: 1. Whether Rule 16 of the Andhra Pradesh (Arrack Retail Sale Special Conditions of Licences) Rules is ultra vires of the Act? 2. Whether Rule 16 is discriminatory in character?
Ratio Decidendi: 1. Rule 16 is a specific stipulation that the parties to the contract are bound by. 2. The petitioner agreed to abide by all the provisions of the Act and Rules, including Rule 16, when he entered into the contract. 3. The shortfall in supply was made good in the succeeding months.
Final Decision: The writ petition was dismissed.
( 1 ) THIS writ petition seeks a writ of mandamus directing the respondents to grant remission in respect of rental for thr proportionate short supply of arrack in the months of Novermber and December during the Excise year 1984-85.
( 2 ) THE facts in brief that lead to the filing of this writ petition are that the patitioner herein a ong with other partners had taken up excise contract in respect of arrack shops in Nirmal taluk on monthly rental of Rs. 11, 11, 111-11 ps for the excise year 1984-85, Pursuantly all the formalities were also complied with and licence was obtained. The minimum Guaranteed Quantity (MGQ) of arrack also was fixed for each month. For the month of November 42,000 bulk liters of 30 UP arrack and 30,000 of bulk litres of 50 UP arrack was fixed. Thereupon issue price was paid for entire mgq. However, the entire MGQ for the said month was not supplied as there was a shortage of 12,050 of 30 UP arrack and 21000 bulk litres of 60 UP arrack. Likewise, for the month of december there was shortage of 19000 and 23000 respectively of 30 and 50 UP arrack. Thereafter shortfall was made good in the succeeding months. The petitioner, however, claimed remission as he was not in a position to vend his arrack though the shortfall was made good in the succeeding month and hence to the extent of short fall proportionate remission may be granted. This was refused. Hence, the writ petition.
( 3 ) THE contention of Sri V. Eswaraiah, the learned counsel for the petitioner is that the case is governed by a decision of Division Bench of this Court in J. Lakshmanna V. Government of A P (1) 1982 (1) A P L J 7. The rule enacted in Rule 16 of the Andhra Pradesh (Arrack Retail Sale Special conditions of licences) Rules in ultra vires of the Act and, therefore, rental proportionately will have to be remitted. There is no reciprocity in the provisions with reference to the MGQ and, therefore, the rule is discriminatory in character. Hence, the same will have to be struck down.
( 4 ) BEFORE adverting to the contention the statutory provisions may be noticed : rule 15 of the A P Excise (Arrack Retail sale Special Conditions of Licences) rules :"15. Minimum Guaranteed Quanof Arrack::- (1) The successful purchaser of an arrack shop or group of shops shall, before obtaining a licence nit the monthly distribution statement of me arrack to be lifted by him, to the concerned Excise Superintendent showing the monthly break up of the minimum Guaranteed Quantity of arrack for the Excise year that will be lifted by him in each month, as per requirements, indicating the issue price payable by every month, for the said quantity of arrack. The Excise Superintendent shall be competent to revise and approve the monthly distribution statement so made by the auction purchaser before the issue of the licence, and not during the course of the year and his decision shall be binding on the auction purchaser. The licensee shall lift the monthly Minimum Guaranteed quantity approved for that month before 5 PM on the last working day of that month. The right to lift the monthly mgq approved for that month and left unlifted, if any, by 5 PM on the last working day of the month shall be forfeited, unless specially permitted to be lifted in the subsequent month by the Excise superintendent. Provided that no unlifted quantity of the arrack shall be permitted to be lifted beyond the 31st August. (2) subject to provisions of sub-rule (1) no licensee shall lift less than the specified minimum guaranteed quantity of arrack in any month. The issue price of arrack for the month as approved in the distribution statement under sub-rule (1) shall be remitted by the licensee into Government Treasury of the taluk/district in which the shop/shops is/are situated by 5th of that month, or where that day or subsequent day happens to be a holiday, on the next working day. If in any month, the issue price of Arrack for that Month is not remitted in full by 5th
