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1973 Supreme(AP) 140
Andhra Pradesh High Court
Judges : GOPALRAO EKBOLE, LAKSHMAIAH
D.Vasndey - Appellant
Versus
Excise Superintendent, Hyderabad (South) District, Hyderabad - Respondent
Decided On : 09-12-73
Rule 14 of the Andhra Pradesh Excise (Tapping of Trees and Toddy Shops Special Conditions of Licences) Rules, 1969, provides a specific remedy for cases of shortage of trees allotted to licensees, and therefore, Rule 29(c) of the Andhra Pradesh Excise (Arrack and Toddy Licences General Conditions) Rules, 1969, which allows for remission of rentals in certain circumstances, is not applicable to such cases.
Headnote:
EXCISE - TAPPING OF TREES AND TODDY SHOPS SPECIAL CONDITIONS OF LICENCES RULES, 1969 - RULE 14 - ANDHRA PRADESH EXCISE (ARRACK AND TODDY LICENCES GENERAL CONDITIONS) RULES, 1969 - RULE 29 - INTERPRETATION - SHORTAGE OF TREES ALLOTTED TO LICENSEES - REMISSION OF RENTALS - AVAILABILITY OF TREES - DUTY OF LICENSEES TO ASCERTAIN - SCOPE OF RULE 14 - RULE 29(C) - APPLICABILITY - MANDAMUS - DISCRETIONARY REMEDY - AVAILABILITY.
Fact of the Case:
The petitioners, excise contractors dealing in sendhi and toddy, challenged the interpretation of Rule 14 of the Andhra Pradesh Excise (Tapping of Trees and Toddy Shops Special Conditions of Licences) Rules, 1969 (Tapping Rules) and Rule 29 of the Andhra Pradesh Excise (Arrack and Toddy Licences General Conditions) Rules, 1969 (General Rules). They sought remission of rentals for certain months due to drought conditions, shortage of trees, and other factors beyond their control.
Finding of the Court:
The Court held that Rule 14 of the Tapping Rules casts an obligation on the authorities to allot a specified number of trees for tapping to every licensee, subject to payment of tree tax and tree owner's rent. The proviso to Rule 14 requires the licensee to ascertain the availability of trees before participating in the auction and provides for making up any shortage noticed by the licensee. However, the Court clarified that the proviso does not deprive the licensee of the right to point out any shortage, whether noticed before or after the auction, and to get the shortage made up. The Court further held that Rule 29(c) of the General Rules, which allows for remission of rentals in certain circumstances, is not applicable to cases of shortage of trees, as Rule 14 provides a specific remedy for such cases.
Issues: 1. Whether Rule 14 of the Tapping Rules entitles licensees to claim remission of rentals due to shortage of trees. 2. Whether Rule 29(c) of the General Rules applies to cases of shortage of trees. 3. Whether mandamus can be issued to direct the government to consider applications for remission under Rule 29 when the rules themselves disentitle the licensees from claiming remission.
Ratio Decidendi: 1. Rule 14 of the Tapping Rules imposes an obligation on the authorities to allot a specified number of trees for tapping to every licensee, subject to payment of tree tax and tree owner's rent. 2. The proviso to Rule 14 requires the licensee to ascertain the availability of trees before participating in the auction and provides for making up any shortage noticed by the licensee. However, this does not deprive the licensee of the right to point out any shortage, whether noticed before or after the auction, and to get the shortage made up. 3. Rule 29(c) of the General Rules, which allows for remission of rentals in certain circumstances, is not applicable to cases of shortage of trees, as Rule 14 provides a specific remedy for such cases. 4. Mandamus is a discretionary remedy and is not ordinarily available as a matter of right. It cannot be issued to enforce a law that disentitles the petitioners from claiming remission.
Final Decision: The Court allowed the appeals, set aside the judgment of the learned Judge, and dismissed the writ petitions. It held that Rule 14 of the Tapping Rules disentitles the appellants from asking any remission under Rule 29, and therefore, no direction can be given to the Government to consider the applications of the appellants filed under Rule 29.
( 2 ) IT is because of the abovesaid reason and principally because of the drought conditions and on the allegation that some of the trees allotted to the petitioner had died and some of them were not fit for tapping because they were allotted only last year to some one else, that the petitioner filed an application under rule 29 of the Andhra Pradesh Excise (Arrack and Toddy Licences General Conditions) rules, 1969 (hereinafter referred to as general Rules) before the Government for remission for the months of December, january and February of the excise year. The Government did not dispose of the application. Instead it (the Government) insisted on the petitioner for payment of the rentals for the abovesaid months. It is that insistence which brought the petitioner to this Court. He wanted a writ of mandamus to be issued directing the respondents to forbear from proceeding to recover the rentals from the petitioner payable by him in respect of the jaflar Gunj toddy shops for the year 1972- 73 till such time the authorities are able to release the trees in favour of the petitioner or the application of the petitioner pending with the authorities under rule 29 of the General Rules is disposed of by the 3rd respondent.
( 3 ) SOMEWHAT similar are the facts of the other writ petitions also with slight variations here and there.
( 4 ) ALL these writ petitions were heard by a learned single Judge. In a common judgment dated 2nd April, 1973; the learned Judge held: "in the case of auction of toddy shops an auction notice must be published at least ten days before the date of auction mentioning the trees earmarked for the particular shop. The bidder will thus have minimum of ten days time to go round, if he cares to, and find out whether the trees mentioned in the auction notice are available and whether they are capable of yielding, toddy. If he fails to do so, he obviously does so at his own risk. If it is found that there is a shortage in the number of trees available for tapping out of the trees allotted to the shops it is upto the parties concerned to bring to the notice of the Excise Superintendent or the Deputy Commissioner such shortage whereupon the Excise Superintendent or the Deputy Commissioner shall make up the shortage. But the shortage does not give rise to any claim for remission of rental, this is made clear by rule 14 of the Tapping Rules". The learned Judge further held: "the rule is apparently so made because an intending bidder as a businessman, is expected to modulate his bid h
