J, ..

STATE OF HARYANA & ORS.

v. •

LAL CHAND & ORS:

May 2, 1984 B

. (D.A. DESAI, A.P. SEN AND V. BALAKR!Sf!NA ERADI, JJ.J

Constitution of India 1950, Article 299(1) Condition , to be satisfied before .:z

bfndig Co!Uract between the Union or State cmes into existen1:e-What are. Con 0 tracts execued in exercise of statutary power and contracts which are Statu.f_ory.in nature-Existence of distinction indicated--.Article 299(1) inappli<able wizen Uni.1n

or StGte .enters int(] a contrart.'which is statutory in nature,

Excise_Contract;_A statutory contract-Requirements Of Article 299(1) cannot be invoked.

Punjab Excise Act 1914, Section 60 &.- Punjab .Lf{zuor Licence Rules 1956, .Rules 32(2), 36(22), 36(23), an:/ 36(23A) .

Excise Contract-Reauction-Recovery of difference between bid amount in original auction aiid that fetch€d in reauctidn_;_State whether entitled to recove,. the

dijferetia/ amoqnl from the original licencee.

Indian Contract Act 1872. Co1nmercial Contrat:t-:Perforn1ance of-Definit.e time fixed and mode ofpa; iment specified-Time essence of such contract-Excise

contract-Time whether essence of contract. ·

The I)puty Excise&· Taxation Coni1nissiorier held an auction for gfantiog the right to sell country-Liquor 'for liquor vnd.. The respondents olTered tfie ·

highest bid.which \vas .provisionally acc.epted and they were declared the highest bidder under Rule 36(2)' of the Punjab 'Liquor Licence Rules J956.

Subsequently, the Excise and Taxation Coin missioner accepted the bid as. requi.red Rule 36{22). The resp0ndents however failed to depos'it the security amount as required under Rule 3fi(22A)' and thereby contravened -conditions No- 15(1) of the coditions o.f auction and Rule 36(23)'. the Deputy EXcise & Taxation Commissioner therefore serVed the respond:.::nt<; with a notice to show-cauc why the licence for cuntry liquor vend, shoul-i not be rc-:iuction under Rule 36('!3A) and ihe , eficicncy in price, a n_d all expenses of su-.:h re-auctjon rl?covered from them under S:!ction 60 of the Punjab Excise Act, 1914. The nspondents

reprcse.nted t4at b:'!forc the auction it \Vas announcej that no wine shop would be opened wit-bin a radius of thrCe miles of the liquor vend but acro5s

the bo1der the State Government of J'unjab had sanctioned the establishment of

a liquor Shop Which was hardly 2-1 {1 miles from the border and tbis-would inean that there would be two_ country liquor shops one in the State of IIaryana and the Other in the State of Punjab and this was in breach of condition No. 13(iii) . real! with. Rule 37(88) of the Rules. The Deputy Excise and Taxation Commis

sioner reJected the representation alld directed the re.sale of the licence fot retail vend of the cOuntry•liquor shop under :Rule 36(23). Th•shop_Was reauctioned. ·: At the time. of re-auction f~1ere were 52 bidders and the shop Was resold at the highest bid of Rs. 6.65 lakhs. The respondents were served with a notice of demand of Rs 3.46 lakhs representing the loss on re-.sale.

Ill their writ petitions. to the.High Court the res pendents asailed the notice of demand. Followiilg the decision in Ka~1hi'ya Lal_ Bhatia & Co. v. State of Ha•yaita & Ors. the High Court held that.the State had no authority to demand the amounts for failure of which the.vends were put to re,;.auction on the ground 1hat the licence fee levied was in the nature .of excise duty ..

' Jn the. Appeals to this Court, on the question whether_ the State Governn1ent was-entitled to realise the difference which the respondents had agreed to. pay un(\er the terms of aucton of a liquor vend and the amo1.Jnt realized ori re~

auction of the vend, as also the defaulted instalments of the licence fee payable

n respect of a liquor vend :

Allowing the appeals,

HELD: t. (i) There i~ a distinction between contracts which are executed in exercise of _the executive powers and contracts which are statutory in natureA Under Att.299 (1), thrr!e conditions b'ave to be satisfied before a binding contract. by the Union or th~ Statein exercise.of the executive power comes into t--Xistence :

(1) The contract must be expressed' to be made by the PresiJent or the Governor.

as the case may be . .(2) It must be executed in writing. And - (3) the execution .thereof shollld be by such person and in such manner. as the President or the.· ·

Governor' may direct or. 3.uthoriZe. There call be doubt that acontract which has to be execut.ed iri accordance with Art. 299(1) is nulli6ed a;-id.becomes vOid if the contr; ct is not executed in conforffiity with the provis'ions .of Art. 299(1) -an(i

.• there is no question Of estoppel or ratificati6n in such,.case;. 'Nor can there by

 any irqplied Contrac~ between the Government and another person. [726CE]

Smi. Nanhibai v. The Excise. Commissioner, M.P. & Ors., AIR (1963) MP 352, ieferred to. ·

G Ram Rattan Gllpta v. State. of M-P., AIR (1974) MP 101. Ajodhya Prasad

Shaiv & Anr. v. State of Ori<Sa & Ors.; AIR (1971) Ori., 158, M/S shree Krishna Gyanoday_ Sugar Ltd. & Anr. v, State of Bihar & Anr., AIR (1975) Pat. 123; approved.

(ii) Art. 299(1) applies to a Contract made in exercise of the executive power of the Union or the Sta.te~ but not to a contraCt made in exercise of statutory-power. Art. 299(l) has no application to a case where_a particular statutory authority a-s distinguished from the Union or the States enters into a contract which is statutory in nature. Such 'a contract. even though it is for

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securing the interests of the Union or the States. is not a contract which has been entered into by or on behalf of the Union or the State in exercise. of it'i executive powers. [726F-G]

K.P. Chowdhary v. S!.7te of MP., [1966] 3 SCR 9!9, Mulamchand v. State of M.P., [1968] 3 SCR 214, State of MP. v. Rattan Lal, [196l] MPLJ 104, State of 1!f.P., v. Firm Gobardhan DaS9 Kai/ash Nath, AIR [l97'J SC I 160, referred to.

(iii) Jn ~Ii excise contract, the Collector acting as Depl1ty Excise & Taxa tion Commissioner conducting the auction undr Rule 36(22) ad the Excise Commissioner eXercising the functions of the Finanical Commissioner accepting

the bid under Rule 36(22A) although they act for and op behalf of the State Government.for raising public revenue, have the requisite authority to do so. under the Act a; d th~ 1:ules fraoy:d. thereunder and therefore such a contract which comes -into being a_n acceptance of. the bid, is a s.tatutori contract fal1ing outside the purview of :Article 299(1)- of the Constitu'tion. In such a coritract the requirements of Article 299(1) cannot.be invoked. [727BEl . . ' . . .

A. Damodaran & 4nr. v. Staie /Jf Kera/a & Ors., [1976] 3 SCR 780;

referre~ to,

In the instant case, there was unconditional acceptance of the highest bid of the respondents by the Dputy Excise & Taxation Commissiorie~ at the time of the auction on March 11, 1969, and also by the Excise & Taation Commissioner on.March 21,.1969 as required µndt!r Rule -36(22A). 'fhe respondents could not uniJat_e1rally by their Jetter dated.April 12, 1969 r.escind the contract on the prete'xt that the State Gove_rnment of Punjab had opened a new iiquor shop across the State border. Evln thOugh this may have been in breach of tlie inter-state agreenient beiween the. State Govdrninents o( Punjab and Haryana,_ the oPening of such a liquor vend by the State Government of Punjab

could not justify the re'Spondents in not making the secuity deposit.' This would not.amount to a breach of the .conditions: on the part qf the Sra1e Government of Har.yana or furnish a ground absolving the res_IJ)ndent~ of their liability to pay the shortfall. [7JOE-G; 7l!A-B]

Peisons who offer their bids at an auction to vend country i"iquor witb.

1- full knowledge of the _terms and condi'tions attaching thereto, carinot be permit

ted to wriggle out of the .contractual -obligations arising out of" the acceptance of their bids.by a pet_ition under Article226 of Constitution. [73JGJ

Har Shanker&' Ors.v. The Deputy Excise & Taxation Commislioner & Ors.,

(1975) S SCR 255, State of Haryana & Ors v, !age Ram & Ors., (1980) 3 SCR 746,. State of Pujab v. M/s Dial Chand Gian Chand & Co., [1931] 2 SCC 303: referred to.

3, (i) In a commercial Contrct for the performance of which a• definite time has peen fired and the contract spetifies the mode 9f payment. , i.e. specifies the dates on whiG1'1 the.instnJments of the licence fee are to be paid. time is of t.he essence of the contract. [732H]

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(ii) Rule 36(23)(1) of the Rules specifically makes lime of the essence. It therefore folfows that payment of the instalments On the due dates was a condition pre-requisite to the performance of the contract. [733A]

In the instat case, the failure of the respoJitlents to make. payments relieved thi:: State Govrnn1ent of their obligatioris. The Excise ·& Taxation Commis~ sioner would have been.justified if he had cancelied the, liCence under Ruie 36(23) and put the li.t\uot venc\ to reauction forthe remainig peri0d of the . financial year .. Instead of taking 'this drstic step of cance_llation of the 'contract, the Deputy xcise & Taxatioll Commissioner served the respondents with the impugned notice of den1and for payment of the fi{St fortnightly irista1ment.

The respondents w.re Oound to p'ay the defaulted instalment on the due date. ' f. • . . • . ·

[733B-CJ •

4. The decision of the High Court in Kanhiya/a/ Bhati"a'&.Co. v. Slate of Haryana & Ors. has been reVersed by this Courfin State of HaryanCz v. Jage Ram & Ors.,[1983] 4 SCC556. [720G] '

CIYIL APPELLATE JURISDCJTION : Civil Appeal Nos. 154 & . 155(N} of 1971.

Frem the Judgment and . Order dated the I Ith November, 1969 Civil ofthe'Punjab & Haryana High Court in writ Nos. 1207 and 1607 of1969 respectively. '

. Harbans Singh, 1.S. Gujral, C.V. Subbarao and R.N. Poddar E for the Appellants in both the appeals .

• G.K. Arora for the respondents in C.A. 154/71.

T.S. Munjra/ and Mrs. Urmila KaJ!oor for the Respondent in

. CA 155/1971.

• The Judgment of the Court was delivere~ by

sm~, J.· These appeals on ce"rtificate are directed against the Judgment and orders of the Punjab High Court dated November 19, 1969 allowing the writ petitions filed by the respondents and quashing the impugned notices of .demand for recovery of the difference between the amount which they had agreed to pay under the terms of auction of a liquor vend and the amount realized on re-auction of the vend a.s 8, lso. the defaulted instalments of the licence fee payablein respect of a liquo~ vend issued under s. 60

of the Punjab Excise Act 1914 ('Act' for short).

• Put very shortly; the ssential facts are these. On March 11, 1969, tb~ Deputy. Exdse & Taxation Collllllissioner, Hissar held an

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i!ARYANA v. LAL CHAND (Sen, J.) 719

auction for granting the right to sell country liquor for Mandi Dabwali for the rar 1969-70 at the Colleetorate. At the commenceme!1t of the auction, the Deputy Excise & 'Taxation Commissioner had read out theauction :mnounccments and conditions of auction as required under r. 36(4) of the Punjab Liquor Ucence Rules, 1956 ('R, ules' for short). The respondents Messrs Lal Chand Bal Rai,.ctc. offered the highest bid of Rs. 10, ll, OOO and their bid was provisionally accepted by the Deputy Excise & Taxation Commissioner and they were declared to be the highest bidder as .. required under r. 3,6(2) of the Rules. Subsequently, the bid was

 accepted by the Excise & Taxation Commissioner exorcising the powers of the Financial commissioner on March ~I. 1969 as requi red under r. 36(22) of the Rules. The respondents however failed to deposit Rs. 50,550 \IS security amount as required under r. 36(22A) and thereby contravened condition No. 15(i) of the' condi- tions of auction and r. 36(2~) of the Rules .. They were accordingly . served .with a notice.dated April 9, 1969 by the , Deputy Excise & Tax.ation Commissioner requiring them to show cause why the licence for country liquor vend, Ma!ldi Dabwali should not be put to re-auction under r. 36(23AJ. of the Rules and the deficiency in price and all expwses of such re-auction recovered. from them in the manner' laid dowh ins. l50 of the Punjab Excise Act, 1914. in

response to the same, the respondents by their letter dated .April 12, 1969 tried to wriggle out of their contractual obligations by saying that before the auction.it was announced.that no wine shop shall be opened .within a radius of three miles of liquor vend, Mandi Dabwali, but across the border the. State Government of Punjab had sanctioned the establishment ofa liquor shop at village .. Killlanwali. which was hardly 2-1/2 miles from the State border and this would mean that there would be two country liquor shops-·

one at Mandi Dabwali in .the State of Haryana and the other at village Killianwali in the State of Punjab and this was in breach of condition ~, o, !3(iii) read with r. 37(8B) of the Rules, as applicable to the State of Haryana.. Upon this basis, the respondents represented that before requiring them to deposit the security amount, they should be given an assnrance that no other liquor. shop would be opened.

Although in. the show-canse noiiee, the respondents wete intimated that in case they desired to be heard-· in person, they should appear before the Deputy Excise & Taxation commissioner a\ Chandigrah on April 14, 1969, but none of them tured up on

that date.

On the same day, the Deputy Excise & Taxation _ y-< Commissioner rejected the representation of the respondents and directed resale of the licence for retail vend_ of the country liquor shop at Mandi Dabwali for the year 1969-70 under r. 36(23) of the Rules. The respondents have purposely kept back the reply that they received frnm the Deputy Excise & Taxation commissioner conveying the rejection of their representation which intimated to them that the licence for retail yend of country liquor shop at , Mandi Dabwali would be re-auctioned on April 23, 1.969 at the "' Collectorate, Hissar.

By his letter dated April 15, 1969 addressed f to all the Excise & Taxation Officers in the State, the Deputy Excise & Taxation commissioner forwarded the notice of re-auction asking them to give wide publicity to the notice alo11g with the announcements to be made at the time of re-auction. Copies of the circularletter and the notice of re-auction were sent not only to the commissioner, Ambala and all the Deputy Commissioners in the State but also to tle Chief S_ ecretaries and the Excise Commissioners of diffo- 1, - rent States and they were also requested "to give wide publicity in their States regarding the re-auction of the licence. At the. time of re-auction held on April 23, 1969, there were as many as 52 bidders and ultimately the liquor vend, Mandi Dabwali was re-sold at the highest bid of Rs, 6,65,000 for the remaining part of the financial year. On May 8, 1969, the respondnts were served with a notice of demand of Rs. 3,46,000 representiog the loss on re-sale .. The High Court by the judgment under appeal quashed the notice of demand following the d_ecision in Kanhiya Lal Bl1atia &Co. v. State ""·"f,· of Haryana & Orsl').

The High Court following its decision in Kanhiya Lal's case, fopra, held that the State Government had no authority to demand the amounts for failure of which the vends were pot to re-auction on the ground that the licence fee l_evied was in the uature of excise duty. Recently, this Conrt has in State of fiaryana v.

Jage Ram & Ors.(') reversed the decision of the High Court in Kanhiya Lat's .case, supra, and held that the amo.unts which the State "- ' Government had charged to the respondents were neither in the nature of a tax nor in the nature of an excise duty but were.in the nature of a price. wl; ichthe State 'Government were entitled'to charge as .consideration for parting with its privilegein favour of the .licensees. That being so, the appeals must succeed on this short ground alone.

Normally, this would have entailed remitting the writ petitions to the High Conrt for a decision on merits but looking >-

(1) CW. No. 343of1969 decided on July 23, 1969.

(2) ll98Jj4 s.c.c. 556.

to the fact. that the demands raised were for the financial year 1969-70, we felt that no useful purpose would be served in remitting A the matter to th; High Court and heard the parties on merits.

Apart from the question of. validity of the charge which is co'lnmon to both the appeals, the. questions raised in the two appeals arc distinct and separate and they will have to b<; dealt with separately ..

It is convenient at this stage to set out the relevant statutory provisions. s.27 of the Punjab Excise Act, 1'914 empowers the State Government to"lease' no such conditions and for such period as it may deem fit the right of selling by wholesale or retail any country liquor or intoxicating drug within any specified local area. .On said lease being granted the Collector, under sub-s.(2J thereof, has to grant to the lessee a licence in the from ofa lease. S.34 of the Act provides inter a/ia that"(!) Every licence granted under the Act shall be subject to payment of such fees, if any, as the Financial Commissioner may direct ; and (2) The authority granting such licence may r.equire the ltcensee to give such security for the. obserance of the terms of his licence, or to make such deposits by way of security. as he may think fit. s.5£(1) of the Act confers power on the State . Government, by notification, to make rules for the purpose of carrying out foe provisions of the A<f In particular and without prejudice to the generality of s.~8(1), sub-s. (2) thereof provides that the State Government may makerules with respect to matters enumerated therein. Under .cJ.(f) the State .Government may make rules regulating the manner of holding auctions of liquor shops. S.59 provides that the Financial Commissioner may, by notification, make rules by d. (a) lo regulate the manufacture, supply,·. storage or sale of any in toxic.ant, cl.(d) prescribing the scale of fees or the manner of fixing fees payable in respect of. any. such licence and by cl.(f) prescribing the authority by, the restrictions under, and the conditions on which, any licence may be granted. The licences, in a large measure, owe their existence to the rules framed by the Financial Commissioner under S.59. S.60 of the Act, insofar as

\ material, reads :

"60. (I) Recovery of dues-The following moneys namely:-

(a) all excise revenue ;

(b) .• * •••••. • •

' c

(c) all amounts due to ihe Government by any person on account of any contract relating to the excise

revene;

may be recqvercd. from the person primarily liable to pay the same, or from his surety (if any), by distress.and sale of his moveable property or by any other process for the recovery of arrears of land rcve1\ue due from land holder& or from farmers of land or their mreties."

The Punjab Liquor Licence Rules, 1956 framed by the Finan- . cial Commissioner in exercise of his powers under s.59 of the Act. make detailed provisions regulating(.• the manner -in which a licence tor the retail venJ or country liquor shall .be grarited by public auction, and the conditious to which it shall be subject. R.36(22A) of the Rule provides that a person to whom a country liquor shop has bee!' sold shall deposit by way of security an amount equivalent to one-twenty-fourti1 of the amount of licence fee determined under .r.36(16) within a period of seven days of the date of auction.

,. . ' R.36\23)(2) provides tliat a persun to whom country liquor shop is sold shall pay the amount of licence fee so, calculated in 22 equal instalments, each instalment being paya'ble.on tho 10th and 26th of each month sfarting from the month of April. In the event of failure to pay the instalment by the due date, his Hcence may be cancelled.- R.36(23A) interdicts that any person whose bid has been accepted at the auction Jails tJ make the deposit of the amount of security equivalent to one-twenty; fourth of the total licence fee as required under r.36(22A), the Collector may resell the licence by public auction and deficiency in licence fee .and all expenses for such resale shall be recoverable from (he _defaulting bidder in the "manner laid down in s.60 of the !'unjab.Excise Act, 1914;

In Har Shanker & Ors: v. The Deputy Excise & Taxation Commissioner & Ors.,\') this Court held that the writ jurisdiction of the Hinh Courts under Art.226 was not intended to facilitate avoidance f obligations voluntarily incurrd. It was observed that one of the-important purpose of selling the exclusive right to vend liquor in wholesale or retail is_to raise revenue. The licence fee was a price for acquiring such privilege. One who makes a bidfor the orant of such privilege with a full knowledge of the terms and

onditions attaching to the auction cannot be permitted to wriggle

(I) (1975]3 SCR 255

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HARYANA "LAL CllAND (Sen, J.) 723

out of the contractual .obligations arising out of the acceptance of his bid .. Chandrachud, J. (as he then was) interpreting the provisions of the Punjab Exci.se Act, 1914 and of the Punjab Liquor Licence A Rules, 1956 and speaking for the Court, said:

"The.. announcement of conditions governing the auction were in the nature of an invitation to an offer to .those who were interested in thesaleof country liquor. The bids given in the auction~ were offers m.ade by the prospective vendors to the Government. The Government's acceptance of those bids was the acceptance of willing offers made to it. On such accepta1ice, the contract between the bidders and the Government became concluded and a binding agreement came into existeuce between them . •• •• • • The powers of the financial commiss_ioner to grant liquor licence by auction and to collect licence fees through the medium of auctions cannot by writ petitions.iJe questioned by those who, had thoir vendure SUfceeded, would have relied upon those very powers to found a legal claim.

Reciprocal right and obligations arising out of contract do not depend for their enforceability upon whether a contract- . ing .Party finds it prudent to abide by .the terms of the contract. By such a test no contract could ever .have a binding force."

 To the same effect are the decisions of this Courtin State of Haryana & Ors. v. Jage Ram & Ors.(1) and the State of P1in}ab v. M/s Dial Chand Gian Chand & Co. 12> laying uown that persons who offer their bids at an auction lo vend country liquor with full knowledge of the terms and conditions attaching thereto, cannot be permitted to wriggle out of the contractual obligations arising out of and acceptance of tcir bids by a petition under Art. 226 of the Constitution .

The. observations in Har Shanker's .case, supra, did not touch. upon the questioh . whether such a contract must be. in

compliane with Art, 299 (I) of the Constitution, The question whether the process of licensing by public auction of liquo~ vend involves a contract at al\ or is merely the. grant of a privilege and the bidding at a public auction is with _a .view merely to .fix the pnce for the purchase of the privilege, has been en.gaging the •

(1) [1980] 3 SCR 746.

(2) [19831 2 sec 503.

SU~REME COURT REPORTS

(1984] 3 S.C.R. _..,

attction. of the . High Courts for quite some time. In Smt.

Nanhibai v The Excise Commissioner, M.P. & Ors.(1) the Madhya Pradesh High Court held ihai the. State _Government .has the exclusive privilege of manufacturing, selling and possessing intoxicants which it has power to lease for consideration under s: i 8 of the !\1.P. Excise Act, 1915 and that every • auction of excise contract for sale of intoxicants is a leasing of the Government's right of selling intoxicants. P.V. Dixit; C.J .. speaking for the • •.' Court made following observations on. this point which are _,. pertinent : '

"The principle that the State Government has exclusive right of manufacturing, selling or possessing intoxicants . or • any country liquor intoxicating drug runs through. ss. 13 to )8 of the Act. •• •• •• • •• .

The important condition that must be.satisfied before any licence. can be granted to a person for manufacture or ' . sale of any country liquor intoxicating drug is that the person must first obtain the privilege or the right of manufacturing or selling the intoxicating drug . ** •• •• ••

In every auction sale of a liquor shop at which liquor is sold in wholefale or retail, there is a sale of the lease of the Government's right of selling country liquor intoxicating drug.· On the acceptance of a bid of a person at an auction sale, a contract . for thedemise of the Government's .interest is brought into. exist"'1ce and this is followed by the grant ofa licence to the person whose bid has been accepted."

These observations of t1e learned Chief Jtistice have sine~ been approved of by a Full Bench of the High Court in Ram Rattan Gupt~ v.

State of M.P.(2 ) The other•two cas~ on the point. which we must notice are : Ajodhya Prasad Shaw &. Anr. v. State of Orissa & Ors.(3> and M/s Shree Krishna Gyanoday Sugar Ltd. &' Anr. v. State of Bihar & Anr.('! ' ·

.• (I) A.I.R. [19631 M.P. 352.

(2) A.LR. [1974] M.P. 101.

(3) A.J.R. [1971] Ord. 158.

(4) A.LR. [1975] Pat., 123 •.

" < t ...<.

In A, iodhya Prasad Shaw's case, the Orissa High Court and in. M/s. Shree Krishna Gyanodaj"s case, th'e Patna High Court interpreting like provisions oftheBihar & Orissa Excise Act, 1915 held that where the State Government in exercise of its powers

unde~ s .. 22 of that Ac.t grants exclusive pivilege to any perso~ on certain conditions under s. 22 (I) and a licence .is received. by that person under s. 22 (21, it cannot fo contended that it amounts . to.a contractniade in exercise of the executive power of the State within the meaning of Art. 299 (!)of the Comtitution. R:N. Misra, J. speakin'g for the Court in Ajo1ihya Prasad Shaw's case tried to highlight the problem in these words:

"Law. is well settled and parties before us do not seek to .canvass that this constitutional requirement' is not mandatory. In the field it covers it is a pre-requisite to bring into existence a vaiid contract.

The question for examination in the present case is, however, different.

Is there a contract at all and in case it involves a contract is it one purported to be made in exercise of tne executive power of the .State Government is the question for exami'. . n?-tion."

The learned Judge went on to say :

"In case t\1e result of our invstigation is that it is not a contract in exercise of the executive power of the State in terms of '.he language used in the Article, it would follow that this constitutional requirement has no application. I have already indiciitcd that the settlement of the shop, the collection of the fee and the grant of the licence are all statutory acts by the prescribed authority. The intention of the Constitution is not to extend the principles in Art. 299 (!)to cover all possible contracts. This is why specific teference has been made to contracts "in exercise of tbe executive power". It 1s not necessary for the present purpose to examine whether the licensing process involves a contrnctul agreement. Possibly there is an element of contract in the settlement, but certainly it is noi one entered into in the executive power of the State but is . regulated by the statute or the rules made thereunder.

Jn the circumstances in the case of a statutory licence even based upon 'a contract the requirements of this Article cannot be invoked."

In M/s. Shrce Krishna's case, supra, !'LP. Singh, J. speaking for the Court rightly observed that when the State Government in exercise of its powers under s 22 of the. Act grants . tlie ex.elusive privilege of manufacturing, or supplying or selling any intoxicant like litjuor to any person on certain condition, there . comes into cxis:once a contract mde in exercise of its statutory powers and such a contract does not 9mount to a contract made by the State in exercise of the executive powers.

There is a distinction between. contracts which are execµted in ex'1'.cisc of the qecutive powers and contracts which are statutory in nature.

Under Art. 29,9(1), three conditions have to be satisfied before a binding contract by the Union or the State in excercise of the executive. power comes into existence: (I) The contract must be expressed to be made by the President or the Governer, as the case may be. (2) It. must be executed in. wntmg.

And (3) The execution thereof.should be. by such person and in such manner as the Presid.ent or; the'Govenor may direct or . authorize. There. can be no doubt that a contract which has to be. executed in accordance with Art. 299(1) is nuilified and becomes void if the contract is not executed in conformity with provisions of Art. 299(1) audthere is no question of cstoppel or ratification in swh case, s.

Nor ca.n there be any implied co!1tract between the Governmet and another person : K.P. Clzowdhmy v. Srate of M.P.,('J Mulmnchand v. State uf M.P.,(2! State of M.P. v. Rattan La/(3) and State of M.P. v. Firm Gobardhan Dass .Kai/as/I Nath,\4!

It is well settled thafArt. 289(1} applies to a contract made in exercise of the executive power of the Union or. the State, b.ut not to a contract made in exercise of statutory power, Art. 299(1) l1as no application to a case where a particular statutory -authority as . distinguished from the Union or the States enters into a contract which is statutory in nature. , Such a contract, even though it is. for securing the interests of the Union.or the States, is not a c"ontract which has .been entered into by or on behalf of the Union or the State in xercise of its executive powers. In respect of forest contracts which are deal( wifa. by this Court i11 K.P. Chowdhary's, M ulamchand; s, Rattan-Lal' s and Firm Gobardhan. D/Jss' s cases, supra,

(I) [1966) 3 S.C.R. 919

(2) (19681 3 sc.R. 214

(3) 11967) M.P.L.J. 104

(4) A.J.R. [1973] S.C .. 1160

' ..

' ., .

there are provisions in.the Indian Forest Act, 1927 and the Forest Contract Rules framed thereunder for entering into a formal deed . between the forest contracter and the State Government .to be executed aud expressed in the name of the Governor in conformity with 'the requirements of Art. 299(1), whe.-eas unde1: the Punjab Excise Act, 1914; like some other State Excise Acts, once .the bi.d offered by a person at an auction-sale is accepted by the authority competent, a completed contract comes into existence and all that is required is the grant, of a licence to the person whose bid has been accepted. It.is settled law that.contracts made in exe:cise of statutory powers are not covered by Art. 299(1) and. once this distinction i's kept in view, it will be manifest that tlie principles laid down in K.P. Chowdhary's, Mulamchand's, Rattan Laf's and Firm Gobardhan Dass' cases are not applicable to a statutory contrah. In such' a case, the Collector aeting as the Deputy Excise & Taxation Commissione~ conducting the auction under r. 36(22) and

1 the Excis.e Commissioner exercising the functions of the financial

, Commissioner acceptillg the bid under r. 36(22A) although they undoubtedly act for and on behalf of the 'state Government for raising public revenue, they have the requsite authority to do so under the Act and the rules framed thereunder and therefore such a contract wliich comes into being on acceptance of the bid, is a statut9ry contract failing outside the purview of Art. 299(1) of the Constitution.

We are clearly of the opinion that in the case of a statutory contract like the one under the Excise Act,. the requiremf!nts of Art. 299(1) cannot be. invqked. In A. Damodaran & Aur. v. State of

Kera/a & Ors<•!., the Court interpreting s.28 of the Kerala Abkari }l Act, 1967.which was in pari materia with s.60 of the Punjab Excise Act,. 1914 he.Id th(!t even if no formal deed had been executed as required under Art.299{1), still the liability for payment of the balance of the licence amount" due could ):le enforced by taking recourse.to s.28 of the Act. The Kera\a High Court rejected the contention of the appellants by holding that the li\bility to satisfy G the dues arising out of a bid was enforceable uncler s.28 quite apart from any contractuai' liability and this view was upheld by this C, ourt on the ground that the word 'grantee' in s.28 has a wide'.connota:tion to mean a person who had been.granted the privilege by acceptance of his bid. It was further held that the stat\ltory duties and liabiJic Q

(1)

[1976) 3 S.C.R: 78Q.

ties arising on acceptance of the .bid at a public a\lction of a liq\lor contr<1ct may be enforced in accordance with the stritutory provisions

ad that it was !lot a condition precedent for the ; ccovery of an amount due under s.28 of the Act, that the amount due and recoverable shoufd be under a formally drawn up and executed contract.. This is in recognition of the principle that the provisions of Art.299(1) of the Constitution are not attracted to the grant of . such a privilege to vend liquor under the A'.ct.

In Kishori Lal Minochu's case, supra, there was reauction of a liquor vend on the highest bidder's failure to deposit one-sixth of the bid amount as security deposit and the question was whether the

Sate.waserititled to recover in a suit the deficiency on reauction.

The decision. in Minocha's case Is clearly distinguishable fqr two reasons : first, there was nothing to show that the bid had been accepted by the Excise Commissionerunder r . .359(2) of the U.P.

Excise Manual. Further, r. 357 under which the exCise authorities , put the vend to reauction -had not ben published in the official gazette as requlred by s.77 of the U.P. Excise Act, 1910 and thus had no statutory force.< No such question arises in these cases as. the liability that is sought to. be enforced against the respondents by the impugned notices of .demand is a statutory liability in terms of condition 150).ofthe conditions of auction read with r.36(23) of the Rules and the amount is recoverable from them in .'the manner laid down in s.60 of the Act.

• The short question that falls for determination in these appeals is whether the State Government was entitled to realise the difference which the respondents had agreed to .pay under the terms of auction of a liquor vend and the amount re.alized on reauction of the vend, as also the defaulted instafment o(the licence fee payabie in respect . of a liquor vend. The first of these questions arises fn Civil Appe.al

No.154(N) ofl971 while the second in Civil Appeal No.155(N) of

1971. y/e will deal with them in that order .

• CivU Appeal.No. 154.(N) of 1971

There is no substance in the contention that the respondent were not served with a notice under r.36(3) of the Rules. The date of reauctiori was fixed by the Excise & Taxation Commisaioner under r.36(2) .. On fipril 14, 1969, the Deputy Excise & Taxation Commis sioner rejected the representation made by the respondents and directed resale onhe licence for retail vend of cou11try liquor shop,

...

Mandi Dabwali for the year1969.-70 .. It is accepted before us that the D.eputy Excise & Taxation Commissioner had conveyed to the" • respondents that their representation had been rejected and that the licence for retail vend for Mandi Dabwali shop would be reauctioned . on April 23, 1969, at the Collectorate, Hissar. The respondents have withheld the document and an axlverse inference must necessarily be • drawn against them. It is quite obvious that the respondents were ; du1¥ given notice of re-auction as under r.36(3). It is evident fr9m

the return filed by the State Government that copies of circular letter dated April 15, 1969 by the.Deputy Excise & Taxation Commissioner and the notice of re-auction of even date issued by him were sent. not only to the Commissioner, Ambala but to all the Deputy Commissioners as well as to all the Ex

0 cise & Taxatiop Officers in the State but also to tbe Chief Secretaries and the Excise Commissioner of different State. From this, it is quite apparentthat wide publicity

A ) was given throughout. the State of Haryana as well as in other States

' regarding the date and place of re.auction as. enjoined by r.36(3) of the Rules. As. already stated, there were as many .as 52 bidders present at the time of re.auction. The decision in Jage Ram's case, supra is clearly distinguishable on facts. There, the Court on a consideration of the material on record found that there was no substantial compliance either in the letter or in spirit with the . requirements of r.36(3) ofte R1.1Ies. Since the re-auction in that case did not conform fo the rules,. the Court held that the defanlting ""!""f-- bidders could not be held liable to make. good the difference between the amount which was payable by them and the amount which was fetched at the re-auction. The principle laid down in Jage Ram's case, sµpra is clearly npt ttracted in 'the facts and circumstances of the prhent case. The first contention regarding the invali.dity of reauction held on April 23, 1969 based on r.36(3) of the Rules must therefore faiL

' Equally fntile is the contention that the respondents had with drawn their bid and therefore they could not.be mulcted for the difference between the amount which they were liable to pay and the amount realized 'by re-sale of the vend.

This is not a case. of the type reported in Union of India & Ors. v. M/S. Bhim Sen Wa/ait:

Ram(') which laid down. the well-settled:princip\e tftat an offer can always be withdrawn before it is finally accepted and that a conditional acceptance is not an acceptance in law.

In Bhim-Sen Wa/aiti

(1) [1970) 2 SCR $94,

B.

c •

. Ram's case, supra, the Court held that.the contract of sale was not complete till the bid was confirmed by the Chief Commissioner and till snch confirmation the person who.sc bid had been provisionally accepted was entitled to withdraw his bid and that when the bid was withdrawn before the confirmation of the Chief Commissioner, the bidder was not liable for_ damages on account of any breach of contract.or for the shortfall on the re-sale. It was observed:.

'lt is not disputed that the Chief, Cmnmissioner .has disapproved the bid offered by the respondent. If the Chief Commissioner had granted sanction"under cl.33 of Ex. D-23 the auction rnle in favour of the respondent would have been a completed transaction and he would have been liable foraliy . shortfall .on the resale.

A~ the essential. pre-requisites bf a completed sale are mifsing in this case there is no liability imposed on th~ respondent for payment of the .deficiency in the price."

It is luged on the strength of these observations that the res~ pondents were entitled to withdraw their bid by declining to make the security deposit.

The contention cannot be accepted.

For onething, this was not a case where there was .mere co.nditional acceptance of the highest bid _of the respondents by the Deputy . Excise .& Taxation Commission.er at the time of the auction on: March. 1; 1969, but their bid .was also accepted by the Excise & Taxation Cotnmissioner on March 21, 1969 as required under r.

36(22A).

The responoents could not unilaterally by their letter da\ed 'April 12, 1969 rescind the contract on the pretext that the State

Government of Punjab hud opened a new liqur shop at village Killianwali across the State border whfoh was contrary to condition No. l3(iii) f the conditions of auction read with r. 37(8B) of th~ Rules.

Even though this may have been in breach of the interstate agreement between the State Governments of Punjab and

Heryaria, the opening of such a liquor vend by the State Government of Punjab at village KHiianwalicould not justify the respondents in not maki11g the secu.rity deposit of Rs. 50,550. It appears from the roturn filed by the State Government that although conditio~ No.13(iii) had been read out. before the. auction began as required under r. 36(4), there was no mention that there was an jnter-State areement between the two State Governments nd tha\

HARYANA v. LAL CUAND (Sen, J.) 731

it was a condition of sale that the Slak Government of Punjab would not open a liquor vend within a radius of three miles from the State border. Nor would this amount to a breach f the con- .. ditions on the part of the State Government of Haryana or furnish a ground absolving the respondents of the\r liability to pay the

~ • shortfall. The second contention that the respondents had withdrawn their bid and were therefore not liable for the loss on re- . ' ,\

~ ,•

' ;...

auction or"liquor vend at Mandi Dabwali cannot be sustained.

In Har Shanller's case, supra, this Court held that the writ jurisdiction of the High Courts under Art. 226 was not i_ntended to facilitate avoidance of obligations voluntarily incurred. It was . observed that one of the important purposes of selling the exclusive right to vend liquor in wholesale or retail is to raise revenue. The licence fee was a price for acquiring such privilege.

One who makes a bid for the grant.of such privilege with full knowledge of the terms and eonditions attaching to the auction cannot be permitted tQ wriggle out of the contractual obligations arising out of the . acceptance of his bid. In dealing with the question, Chandrachud, J. said :

"The pow.ers of the Financial Commissioner to grant liquor licences by auction and !o collect licence fees. through the medium of auctions cannot by writ petitions be questioned by those who. had their venture succeeded, would have relied upon those very powers to found a legal claim. Reciprocal° rights and obligations 'arising ut of contract do not depend. for their enforceability upon whether a contracting party finds it prudent to abide by . the terms of the contract. By such a test no contract could

eve11 have a binding force." ·

To the same effect are the decisions of this Conrt in State of Hai yana & Ots. v. Jage Rame & Ors(l). and the State of Punjab

v. M/s. Dial Chand Gian Cha.nd & Co.(2} laying down that persons who offer their bids.at an auction to vend country liquor with full knowledge of the terms' and conditions attaching thereto, . cannot be permitted to wriggle out of the contractual obligations arising ouf of the_ acceptance of their bids by a petition under Art .• 226 of the Constitution.

(I) [ 1980] 3 SCR 746.

(2) [t983l 2 sec so3.

732 SlJPREM, E COlJRT REPORTS

[1984) 3 S.C.R -

Civil Appeal No. 155 (N) of 1971

At an auction for the licence of retail vend for.Butaila in the . Rohtak district for the financial year 1968-69 held by the Deputy Excise & Taxation Commissioner on March 11, 1968 at the Collectorate, Rohtak, the respondents Messrs Ram Kishan Pritiam Singh & Co. offered the highest bid of Rs. 1,40,000. The Deputy Excise & Taxation Commissioner accepted their bid at the conclusion on the auction. On the same day, the respondents deposited Rs. 5,~11 equivalent to one-twentieth of the licenc.e fee repres!'nting the security amount and started operating the said licence w.e.f. April 1 1968.

It appears that they drew their supplies by making applications to the Excise & Taxation Officer, Rohtak for the issuance of challans for deposits of still-head duty in the treasury, and after crediting into the trsury a sum equivalent to the excise duty payable on the. strength of permits issued by him.

Admittedly, the respondents worked the contraet throughour the . period without making any payment of Rs. 1,40,000 towards the'licence fee which was payable in 23 fortnightly instalments. The respondents on being served with a notice of demand for payment of Rs. 13,000 representing the first of such fortnightly instalmants filed a writ petition in the High Court and the High Court following its decision in Kanhiya Lal's ca.se, supra, struck down the notice o( demand. It is accepted at the bar that the respondents have not paid anything towards the licence fee of s. 1,40,000 due and payable by them.

Upmfthese facts, the Excise & Taxation Commissioner would have been justified in!cancelling1(the licence-in terms of r.36(23)(2) of the Rules which is' in these terms :

"A p, erson to whom a country spirit shop is sold shall pay the annual licence fee in 23 equal instalments, e.ach instalment being payable" on the 10th and 26th of each month starting.from the month of April.

In the event of G failure to pay the instalment by the due date, his licence may be cancelled."

There was a fundamental breach of an essential condition by the respondents. In a commercial contract of this nature, for the H performance of which a definite time has been fixed arid the contract specifies the mode of -payment i.e. specifies -the dates on which the instalments of the licence fee are to be paid, time is of the essence

- ·{" ..

. .

...._'

of the contract. R .36(23)(1) of the Rules specifically makes time of the essence: It therefore follows that payment to the instalments on the due dates was a condition pe-requisite to the performance of the contract, and that the failure of the respondents to make such payments relieved the State Government. of their obligations.

The Excise & Taxation Commissioner would therefore have been justified if he had cancelled the licence l!nder r. 36(23) and put the" liquor vend to reauction for the remaining period of the financial year.

Instead of taking this drastic step of fancellation of contract, the Deputy Excise & Taxation Commissioner served the respondents with the impugned notice of demand for payment of . the first fortnigtly instalment of Rs. 13,000. The respondents were bound to pay the defaulted instalment on the due date but without complying .with the notice of demand moved the High Court under Art. 226 of the Constitution challenging the demand on the ground that the licence fee partakes of ihe nature on an excise duty. As already stated, the High Court following its decision in Kanhiya Lal's case struck down the notice of demand. The result has been that the respondents enjoyed the privilege of retail vend of country liquor, Butana for the entire piod without payments of any licence fee. On merits, learned counsel appearing for the respondents had nothing to urge against the impugned notice of demand. 4

The result therefore is .that the appeals succeed and are allowed with costs throughout. The judgment and orders of the High Court dated November 11, 1969 quashing the impugned notice of demand served on the respondents are set aside and the writ petitions filed by the respondents are dismissed.

N.V.K. 4ppeals allowed.

D ..

E ,