A. R. LAKSHAMANAN, J.

( 1 ) THIS appeal by the 1st plaintiff is directed against the decree and judgment dated 20/12/1972 made in O. S. No. 3 of 1969 on the file of the Subordinate Judge, Medak at Sangareddy in so far as the same is against him.

( 2 ) THAT suit was instituted by the appellant and his minor son, the 2nd plaintiff for a declaration that the levy of baitak amount alone with other incidental and auxiliary levies under the Hyderabad Abkari Act and the Rules was ultra vires Art. 265 of the Constitution of India and the legislative powers of the component State of Andhra Pradesh and for an injunction restraining the defendant from collecting a sum of Rs. 17,920-14 Rs. comprising of (a) Rs. 446. 00 being the amount of the alleged arrears between 9-7-1953 and 15-7-1953 illegally sought to be collected; (b) Rs. 5,167. 00 being the amount sought to be collected as alleged tree tax, (c) Rs. 3,957-14 being the penalty for alleged illicit tapping of the tree; (d) Rs. 7,349-being the amount of arrears of Baitak and (e) Rs. 1000. 00 being the amount of penalty for alleged adulteration of Sendhi with Chloral Hydrate.

( 3 ) THE reliefs sought for with respect to item (a) i. e. Rs. 446. 00 and item (e) i. e. Rs. 1,000. 00 were granted to the plaintiffs by the court below. There was no appeal against that. We are therefore not concerned with those items in this appeal.

( 4 ) SO far the surviving reliefs are concerned they pertain to the abkari year 1955-56. In Fasli 1365 i. e. , 1955-56, the appellant was the highest bidder in the public auction in respect of Rangampet group, Lingapur and Kodapak. The contract was entered into with the State of Andhra Pradesh the defendant through its subordinate, whereby the appellant agreed to pay a sum of Rs. 4,146. 00 per two months baitak and earnest money as required by the auction conditions after the payment of the tree tax for 4,000 tress besides offering substantial immovable property as security for the satisfaction of the abkari arrears.

( 5 ) THE case of the appellant was that he could not commence the business due to hartal and strike during the first month of the contract period in the said fasli. Although the tree tax for 600 trees was paid in advance, the tapping of the 600 tress was stopped for 11/2 months under the express orders of the Government between 15-8-1956 and 3-9-1956. The contract therefore became frustrated due to that supervening impossibility. The defendant is not only bound to grant remission of that amount but is station for the loss sustained by the plaintiff to the extent of Rs. 12,000. 00

( 6 ) THE plaintiff appellant reserved his right for the reliefs of refund of Baitak amount already collected by the Government and for compensation to the extent of Rs. 1200/- towards the loss sustained on account of the stopping of the tapping of the tress and for the loss of business due to Hartal etc. As such the right of plaintiffs for the refund of Baitak amount and compensation referred to in the suit giving rise to the present appeal is not it necessary to consider.

( 7 ) THE State of Andhra Pradesh, the defendant sought to collect a penalty of Rs. 3,957 -14 P. besides the tree tax of Rs. 5,167. 00 from the appellant for the alleged illicit tapping of the tress included in the contract. There is no warrant under law for the employment of the coercive machinery of the State purporting to be under Ss. 7 and 43 of the Hyderabad Abkari Act instead of pursuing a remedy in common law courts. There was also a claim made against the appellant for two months rental which was not admittedly paid.

( 8 ) THE defendant respondent filed a written statement and an additional written statement stating inter alia that the appellant entered into a contract with respect to Ramayampet group etc. for the year 1955-56 on a monthly rental of Rs. 4,145. 00 and deposited two months baitak and earnest money and offered security for the satisfaction of the Abkari arrears. It is not correct to st

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