Civil Appeal No 1464 of 1971
From the Judgment and order dated 18 3 71 of the Kerala High Court in Writ Appeal No 126 of 1971
K R Sudhakaran and N Sudhakara and P K Pillai for the Appellants
K T Harindranath and K M K Nair for Respondent
The Judgment of the Court was delivered by BEG J
The appellants before us by certification of the case had filed a petition to quash revenue recovery proceedings started against them for realisation of the remainder of the amounts due on account of their bids at auction sales of some toddy shops for the period 1st April 1967 to 31st March 1969 by the Government of Kerala
The amounts at which the shops were knocked down were 1
Shop No 1  84000 2
Shop No 4  46500 3
Shop No 8  56100 4
Shop No 11  150000 
The notified conditions of the auction sales made it incumbent upon the bidder to pay immediately 10 of the amount due and to provide personal security for the rest
There was no assurance or guarantee given there that prohibition will not be removed in future by the Government in any area in the State or about any other matter of future policy of the Government relating to intoxicants
According to notified conditions the successful bidders had to deposit 30 of the total amount payable on demand by the Assistant Commissioner and also to execute agreements before getting the necessary licences
The petitioners had deposited the necessary amounts on demand
They were also allowed to start the business of running their toddy shops even before the licences were issued in their favour
The petitioners  case is that at the time of bidding there was an understanding that the respondent State will not remove prohibition so that they expected adequate profits
As observed above there is nothing in the notified conditions to indicate this
It appears that in April 1967 the respondent State announced removal of prohibition from 1st May 1967
The appellants allege that they suffered heavy losses due to this policy of the State and were unable to make the remainder of the payments which were sought to be recovered under section 28 of the Abkari Act hereinafter referred to as the Act 
It is difficult to see what the removal of prohibition had to do with alleged 782 losses to the appellants
Abandonment of Prohibition either totally or partially should ordinarily not diminish sales of liquor
One should expect such a development to increase sales of liquor
The appellants contend that as no agreement was executed between them and the Govt
in the manner prescribed by Article 299 of the Constitution they are not liable to pay the amounts sought to be recovered
This is their main contention
A learned Judge of the Kerala High Court who heard the petition held that the notification in persuance of which the shops in question were auctioned provided that if the contract could not be executed the whole amount was to be forfeited and the shop itself was to be resold
Thus non execution of the contract due to the unwillingness or inability of a bidder to pay was not a contingency outside the notification for auction the validity of which is not challenged
The notification did not lay down that in that case the payment of the remainder will be remitted
On the other hand the condition was that the whole amount due could in such an event be forfeited
The Kerala High Court held that despite the absence of a contract executed in accordance with the provisions of Article 299 of the Constitution the amounts due could be recovered under Section 28 of the Act which reads as follows 28 Recovery of duties
All duties taxes fines and fees payable to the Government direct under any of the foregoing provisions of this Act or of any licence or permit issued under it and all amounts due to the Government by any grantee of a privilege or by any farmer under this Act or by any person on account of any contract relating to the Abkari Revenue may be recovered from the person primarily liable to pay the same or from his surety if any as if they were arrears of Land Revenue and in case of default made by a grantee of a privilege or by a farmer the Commissioner may take grant or farm under management at the risk of the defaulter or may declare the grant or farm forfeited and re sell it at the risk and loss of the defaulter
When a grant or farm is under management under this section the Commissioner may recover any moneys due to the defaulter by any lessee or assignee as if they were arrears of Land Revenue
 The appellants submit that they had not become grantee of any privilege without the execution of contracts complying with the requirements of Article 299 of the Constitution
The learned Judge of the Kerala High Court relied on Madhavan vs Assistant Excise Commissioner Palghat affirmed by a Division Bench in Damodaran vs State of Kerala
It appears that although the Division Bench did not specifically consider whether a bidder at an auction of the kind before us was the grantee of a privilege within the meaning of Section 26 of the Act yet it held that the liability to satisfy the dues arising out of a bid was enforceable under Section 28 of the Act quite 783 apart from any contractual liability
Reference was also made in this connection to the decision of this Court in Union of India vs A L Ralia Ram for contending that the absence of a formal contract is not fatal in all cases so as to make the whole transaction null and void ab initio
Statutory duties and liabilities may be enforced in accordance with statutory provisions
Equitable obligations may also arise and be enforced by decrees of Courts quite apart from the requirements of article 299 of the Constitution
Mulamchand vs State of Madhya Pradesh2 affords an instance where on a claim for compensation or restitution under Section 70 of the Contract Act this Court relied upon the principle stated in Nelson vs Harbolt3 as follows at p 222  It is no longer appropriate to draw a distinction between law and equity
Principles have now to be stated in the light of their combined effect
Nor is it necessary to convass the niceties of the old forms of action
Remedies now depend on the substance of the right not on whether they can be fitted into a particular framework
The right here is not peculiar to equity or contract or tort but falls naturally within the important category of cases where the Court orders restitution if the justice of the case so requires
In the case before us we are concerned really with the legality of proceedings under Section 28 quoted above of the Act
It is evident that these proceedings can be taken in respect of all amounts due to the Government by any grantee of a privilege or by any farmer under this Act or by any person on account of any contract relating to the Abkari Revenue
It is clear that dues may also be recovered from the person primarily liable to pay the same or from his surety if any
It is not a condition precedent to recovery of an amount due and recoverable that it should be due under a formally drawn up and executed contract
Section 18 of the Act shows that the exclusive or other privilege of selling liquor by retail may be granted on payment of rental in in consideration of the grant
The appellants made all the initial payments of rent
We do not think that acquisition of the status of a grantee for the purposes of Section 18A need await the actual receipt of a licence
The conditions of the grant are to be laid down by the Government
The amount of rental may be settled by auction negotiation or by any other method as may be determined by by the Government from time to time
The amounts due may be collected to the exclusion of or in addition to the duty or tax leviable under Sections 17 and 18
Section 18A2 lays down that no grantee of any privilege made sub section 1 shall exercise the same until he has received a licence in that behalf from the Commissioner
It will be seen that this provision contemplates the statutory status of a grantee even before 784 he becomes entitled as of right to exercise the privileges of a grantee on the receipt of a licence
What is noticeable is that even before he receives his licence he is described as a grantee
The successful bidders in the case before us had been permitted by the excise authorities in recognition of their rights to receive and in anticipation of receipt of licences to exercise the privileges of grantees
They were thus treated as grantees in anticipation of execution of contracts and grants of licences
Grantees under Section 29 of the Act are those who have received the privilege and not necessarily only those who have received the written contracts and licences
The word grantee used there seems to us to carry this wider connotation with it
In Madhavan s case supra K K Mathew J repelled the contention that the execution of an agreement in accordance with the provisions of Article 299 of the Constitution was a condition precedent to the creation of a liability to be proceeded against under Section 28 of the Act for recovery of the balance of the rentals due
He said at p 94  It was contended on behalf of the petitioners in some of these cases that no agreements were executed by them and therefore the Government are not entitled to recover any amount by way of rental
Reliance was placed upon the decisions of the Supreme Court in H P Chowdhry vs State of MP AIR and Mulamchand vs State of MP 1969II SCWR 397 for the proposition that unless there is an agreement executed in accordance with the provisions of Article 299 of the Constitution the petitioners in the case where no agreements have been executed would not be liable to pay rental
The argument was that the liability to pay rental arises only out of the agreement and if there is no agreement then there is no liability to be enforced
As I have indicated the liability to pay the rental arises not only by virtue of the agreement but also by the provisions of section 28 of the Act
The decision of the Supreme Court in H P Chowdhry vs State of MP would make it clear that if there are provisions in the Act the liability to pay the rental can be enforced
I think that even if no agreement has been executed there was the liability under section 28 of the Act and that the liability could be enforced under the provisions of the Revenue Recovery Act
See Sections 6 and 62 of the TCAct
The appellants became entitled to get licences from the Government which had to perform its duty to execute written agreements and grant licences as soon as the appellants fulfilled required conditions by paying up the remainder of the amounts due
The Government had performed its part of the bargain and even allowed the appellants to start selling liquor
The appellants also became liable and bound to perform their corresponding obligations under the 785 conditions of the auctions imposed in pursuance of statutory provisions
This reciprocity of obligations quite apart from its basis in agreement had thus acquired an operative force resting on statutory sanction and equity
Consequently we affirm the view of the Kerala High Court and dismiss this appeal
Parties will bear their own costs throughout
VPS Appeal dismissed


Summary:
The appellants bid at auction sales of some toddy shops
The conditions of the sales notified in pursuance of the statutory provisions were a It was incumbent upon the bidder to pay immediately 10 of the amount due b The successful bidder had to deposit 30 of the amount payable on demand by the Assistant Commissioner and to execute agreements before getting the necessary licences and c If the contract could not be executed the whole amount was to be forfeited and the shop itself was to be resold
The appellants deposited the necessary amounts on demand and were allowed to start business even before agreements were executed or licences were issued
But the appellants failed to pay the balance due to the State
The amounts were sought to be recovered under section 28 and the proceedings were challenged but the High Court held against the appellants
In appeal to this Court the appellants contended that as no agreement was executed between the appellants and the Government in the manner prescribed by article 299 of the Constitution the appellants had not become the grantees  of any privilege and hence were not liable to pay the amounts sought to be recovered Dismissing the appeal  HELD  The Government had to perform its duty of granting licences as soon as the appellants fulfilled the conditions by paying up the remainder of the amounts due
In the present case Government had performed its part by allowing the appellants to start selling liquor even before execution of the agreements and the grant of licences
The appellants therefore became liable and bound to perform their corresponding obligations
This reciprocity of obligations quite apart from its basis in agreement had thus acquired an operative force resting on statutory sanction and equity
784G 785B 1 It is not a condition precedent to recovery of an amount due and recoverable under the Act that it should be due under a formally drawn up and executed contract
Under the notification in the event of the non execution of a contract even if due to the unwillingness or inability of a bidder to pay the whole amount due could be forfeited
782C 783E F 2a The acquisition of the status of a grantee for the purpose of section 18A does not depend on the actual receipt of a licence
Section 18A2 lays down that no grantee of any privilege under sub section
I shall exercise it until the has received a licence
This provision contemplates the statutory status of a grantee  even before the successful bidder becomes entitled as of right to exercise the privileges of a grantee on receipt of a licence even before he receives his licence he is described as a grantee
783F G H 784A 781 b The word grantee  used in section 28 carries this wider connotation of persons who have been permitted by the excise authorities in recognition of their rights to receive and in anticipation of the receipt of licences to exercise the privileges of grantees and not necessarily only those who have executed the written contracts and received licences
784A C Madhavan vs Assistant Excise Commissioner Palghat ILR 1969 2 Kerala 71 approved