Holding

Writ jurisdiction cannot be invoked to escape contractual obligations from the liquor licence auction, and the fee is a price for a privilege, not excise duty, but the High Court must determine if due publicity for the re‑auction was provided.

Summary

The respondents won the auction for a retail liquor vend in March 1967, paid a security deposit and began operations, but failed to pay the first two instalments of the licence fee, leading to cancellation of their licence and a re‑auction of the vend at a much lower price. The respondents filed writ petitions challenging the cancellation, the demand for the difference between the original bid and the re‑auction price, and the nature of the fee as excise duty, arguing lack of adequate publicity for the re‑auction. The Supreme Court held that writ jurisdiction cannot be used to evade contractual obligations arising from the auction and that the fee is a price for the privilege of selling liquor, not excise or still‑head duty. It affirmed the preliminary objection to maintainability of the writ petitions and upheld the State's claim, but remanded the matter to the High Court to determine whether the re‑auction was publicised as required by Rule 36(3) and, if so, whether such publicity was actually given.

Issues considered

The validity of using Article 226 writ jurisdiction to avoid contractual obligations arising from a liquor licence auction
Whether the licence fee payable under the auction constitutes excise duty, still‑head duty, or a price for a privilege
Whether the respondents are liable to pay the difference between the original bid amount and the amount realised in the re‑auction
Whether Rule 36(3) of the Punjab Liquor Licence Rules required adequate publicity for the re‑auction and whether such publicity was given

Legislation cited

Punjab Excise Act, 1914s. 36(b), s. 36(c)
Punjab Liquor Licence Rules, 1956s. Rule 36(22-A), s. Rule 36(23)(2), s. Rule 36(23)(3), s. Rule 36(24), s. Rule 36(3)

Subjects

liquor licence auctioncontractual obligationwrit jurisdictionexcise dutystill‑head dutyprice for privilegepublic noticere‑auctionPunjab Excise ActPunjab Liquor Licence Rules

Judgment

746

A STATE OF HARYANA AND ORS.

JAGE RAM AND ORS.
April 21, 1980'
[Y. V. CHANDRACHUD, C.J., P. N. SHINGHAL
AND 0. CHINNAPPA ;REDDY, JJ.]

Writ Jurisdiction-Article 226 of the Constitution of India, 19SOc-
Petition under reciprocal rights and obligations arising out of Contract cannot _.
be enforced-Excise duty, Fees, and Price for parting with the Privirege by -....J
Sttile, explained-Punfab Excise Act (Act 1 of 1974) and Pun/ab Iiftlor '
O Licence Rules, 1956 as amended upto 22-3-68-Whether notice of reauction
necessary under Rule 36(3) of the Liquor Licence Rules.
In the auction for the financial year 1967-68 held on March 27, 1967 for
the .retail vend known as "Biswan Mee!" Sooepat, the respondents offered the
highest bid for a quota of Rs. 62, 100 proof litres for which they became liablo
under condition 14(iii) of the auction to pay an amount calculated at the rate
D of Rs. 17.60 per litre that is to say, Rs. 10,92,960-00. On the bid being lrnoU-
ed in their favour, respondents deposited a •nm of Rs. 45,527-50 being 1/24th
of the total amount payable by them by way of security for the due performance
of the terms of the auction, as required by conditii>n No. 15(1) 0f the auction
and Rule 36 (22A) of the Punjab Liquor Licence Rule<, 1956 as amended.
They started operating the vend from April I, 1967.

The successful bidder who is granted licence for retail sale of country liquor
E is required by condition No. 15(ii) of the auction read with rule 26(23):(2),
to pay the licence fee in 22 equal instalments, each instalment being PllY•ble
before the 10th and 25th of every month, commencing on April 10. On the
failure of the respondents to pay the instalments due for the periods ending
with April 10 and 25 1967, the Excise and Taxation Officer, Rohtak, gave them
notices dated 15th and 25th April, 1967 calling upon them to make good the
short-fall of Rs. 33,827.20 and Rs. 5,898.80 respectively, before April 20 and
F April 30, 1967. Since the respondents did not pay the amount, the Deputy
Excise and Taxation COmmissioner, Headquarters, Haryana, gave them a notice
calling upon them to show cause, within two days of the receipt of the notice,
why their licence should not be cancelled under section 36(c) of the Punjab
Excise Act, for their failure to comply with the terms of the auction in the
matter of payment 0£ the two instalments. By their reply dated May 12, 1967,
G
the respondents stated that they were illiterate villagers, that the terms of auction -'
were not expl-ained to them, that the district of Rohtakl was in the grip of a
severe drought leading to a fall in the sale of li(J,uor, that April being a sum...
mer month, the consumption of liquor was less as compared with the consump- 'r
tion during winter months and that, there· was in fact no default on their part I
as alleged in the notice sent to them. On May 17, 1967, the Collector and
Deputy Excise & Taxation CommissiOner, Haryana, passed· an order, after hear·
ing the respondents, cancelling their licence under section 36 (b) and (c) of the
JI Punjab Excise Act with immediate effect and stating that the vend will be
resold on May 23, 1967 at 10.00 AM. in the office of the Excise and Taxatioo
Officer Rohtak, at the risk of the respomfen!S.
lli&YANA V, .JAGll MM 747

tOa May 22, 1967 respondents filed a Writ Petition (No. 900 of 1967) w~h A.
was ~ by the High Court of Punjab and Haryana on May 26, on the
i:r<lllMI lbat it was premature.

Jn pirsuance of the order dated May 17, the "Biswan Meel" vend, Sonepat,
was rauctioned on May 23, 1967, the highest bid received being of 15000
litres, ..tiich in terms 0£ money comes to Rs. 2,46,000.00. The dilfen:nce
between the amount which the respondents were· liable to pay under their bid B
• and tile, amount realised in the reauction comes to Rs. 7,41,577.40.

On July 11, 1967 respondents were served with a notice dated July 7 by
whi<lh they were called upon to pay the aforesaid amoont, failing which, they
were warned, the amount was liable to be recovered as arrears of land
revenue. On July 18, respondents filed a Writ Petition in the High Court chal-
lenging 1be legality of the aforesaid notice. C
~ an earlier decision in Bhajan Lal Saran Singh & Co. v. State of
PunjMI. '""' Ors., [1967] Current Law Journal, p. 460, which was affirmed by
this G>urt in CA 1042 and 1043/()8 dt. 21-8-72, the High Court allowed the
writ petition and quashed the order cancelling the respondents' licence and
cajlin!l upon them to pay the difference between the amount payable by them
under tlteir bid and the amount realit;ed in the reauction of the vend. It has
given to the appellants a certificate to appeal to this Court under Articlel33(1)
(a) of tile Constitution since the subject matter in dispute was .of the value
of meie lban Rs. 20,-000 at the time when the Writ Petition was filed, as also
on lhe ..,.le of the proposed appeal.

Allowmg the appeal, the Court

HIU:>:: I. The Writ jurisdiction of the High Court under Article 226 of E
the a..stitution is not intended to facilitate aYOidance of contractual obliga-
tions W>lontarily incurred by the petitioner. (755 D]

In the instant case the High Court was in error in entertaining the writ peti-
tions for the purpose of examining whether the respondents could avoid their
contractual liability by chailenging the Rules under which the bids offered by
them -were accepted and under which they became entitled to conduct their F
busiiiess. It cannot ever be that a licensee can work out the licence if he finds
it .profi1able to do so; and he can challenge the conditions under which he agreed
to take the licence, if he finds it commercially inexpedient to conduct his busi-
ness... The occurrance of commercial difficulty, inconvenience or hardship in
the pedormance of those· conditions, like the sale of liquor being less in sum~
• mer than in winter, can provide no justification for not complying with the terms
of the -00ntract which they had accepted with open eyes. [755 F, 756 C-DJ G
Har Shanker and Ors. v. The Deputy Excise and Taxation Con1missioner and
flirs., [1975] 2 SCR 254 @ 266; Sham Lal v. State of Punjab, AIR 1976 SC
2045, fdlowed.

BMjan Lal Saran. Singh & Co. v. State of Puniab, [1967] Current Law
Jciurnal, p. 460; Overruled. H
2. '·lkre is no doubt that a distinction does exist between the Rules which
were im)1Ugned in Bhajan Lal, and in the instant case on one hand and the
748 SUPREME COURT REPORTS [1980] 3 S.C.R,

Rules which were impugned in Har Shanker's case on the other. Jn'' f~~ in
, '' ' '. ·«'\. '
Har Shanker's case the impugned Rules were those as amended on Z2;:l-68 in
order to meet the judgment of the High Court under appeal in the instant case.
Even assuming that there is a material difference in the Rules which are im~
pugned in the instant case and those in Har Shanker's, ye1t the jurisdiction of
the High Court is a bar to the respondents to wriggle out ~Jf their cOD.tractual
obligation. [756 E-H]
'B
In Har Shanker's case, this Court held that since rights in regard to the
manufacture and sale of intoxicants are vested in the state; it is open to it to
part with these rights for consideration; tha.t the amounts Which are 'Charged
to the licensees who offer their bids in auction sal~s of vends are neither in the
nature cf a tax nor in the nature of excise duty; and that, the true natur.e of the
charge which the Government levies in such cases is that it is price which the
c State charges as a consideration for parting with its privileges in favour of
licensee. Such a charge is a normal incident of a trading or business tranSaction.
What the State could itself do in the exercise of its privilege, it. authorises
ae.other to do by charging a price for parting with its privilege. A price can
neither be a tax nor excise duty. Therefore, even if any concession was made in
the High Court, the true legal position that the amounts whi<;h the respondents
became liable to pay under the terms of the auction is not excise or stltl-head
D duty but is a price which the Government charged for parting with its privilege,
during the cUrrennt of the period covered by the contract. 'Ihe amount which
the respondents agreed to pay to the State Government under the terms -of the
suction is neither a fee properly so called which would require! the existence of
a quid pro quo, nor indeed is the amount in the nature of e.xcise duty, which
by reason of the constitutional constraints has to be primarily a duty on the
production or manufacture of goods produced or manufactured within the
E country. The requirement to multiply by a certain figure per proof-litre the
quota for which the respondents gave their bid by a certain figure and the
facility of paying the amount by instalments while lifting the quota from time
to time, do not make such payment an excise or still-head duty. What the
Government is trying to recover from the respondents is not excise duty on
undrawn liquor. [757 B-D, 758 A-C, E-F, 759 A]

F Panna Lal v. State of Rajasthan. [1976] I SCR 219; Bimal Chandra
BQllerjee v. State of Madhya Pradesh, [1971] I SCR 844; State of Madhya· l'rB-
desh v. Firm Gappu Lal etc., [1976] 2 SCR 1041 and Excise Commissioner U.P.,
Allahabad v. Ram Kumar, [1976] Suppl. SCR 532; distinguished.
...
[The Court remanded the case for a finding on the following two questions ;
( 1) Whether it was necessary according to the rules in force at the felevant
,.G time .to give adequate publicity to the reauction and (2) if so, when such
publicity was in fact given to the reauction on May 23, 1967]

CIVIL APPELLATE JURISDICTir.N : Civil Appeal No. 1507/1969.
From the Judgment and Order dated 12-3-1969 ol' the Punjab
H
and Haryana High Court in Civil Writ No. 1376/67.
s, N. Kacker So!. Genl., R.arinder Rana and M. N. Shroff for the
Appellants. ·
HARYANA V. JAGE Rl'\M· (Chandrachud, C.J.) 7 49

.: ."Tinath Singh Munjral. H. K. Puri and V. K. Bahl for Respondent
No._.,!
· "' the Judgment of the Court was delivered by
CttA1''DRACHUD, C.J.-This is an appeal by certificate granted by
the High Court of Punjab and Haryana under Article 133(l)(a) of the
C11nstitution in regard to its judgment dated March 12, 1968 in Civil B
Writ No. 1376 of 1967.
On March 16, 1967 the Excise and Taxation Commissioner, Hary-
ana, appellant No. 2 herein, announced by publication of a notice that
exCise auctions for the financial year 1967-68 will be held on March
27,'-1967. The terins and conditions in regard to the auction of retail C
vends of country spirits were set out in a pamphlet issued along with
the riotice. Those terms and conditions did not accord with the rules
thelt'prevailing but were evidently announced so as to comply with the
requirement of the new rules which were being brought into force.
The ,amended rules issued by the Excise and Taxation Commissioner
(Financial Commissioner) were published in the Government Gazette D
dated March 31, 1967 and came into effect ori April I, 1967.
In the auction held on March 27, 1967 for the retail vend known
air "Bi~wan Mee!", Sonepat, respondents offered the highest bid for a
quota of 62,100 proof litres for which they became liable, under con-
ditibti"l4(iii) of the auction, to pay an amount calculated at the rate of E
Rs. '17 ·60 per litre, that is to say, Rs. 10,92,960 ·00. On the bid being
kri6cked in their favour, resp•mdents deposited a sum of Rs. 45,527 ·50,
being I/24th of the total amount payable by them, by way of security
fo~, the due performance of the terms of the auction, as required by
condition No. 15(1) of the auction and Rule 36(22-A) of the Punjab
Liquor Licence Rules, 1956 as amended. They started operating the F
vend from April I, 1967.
The successful bidder who is granted licence for retail sale of country
liquor isrequired by condition No. 15(ii) of the auction read with Rule
36(23,(2); to pay the licence fee in 22 equal instalments, each instal-
• ment'being payable before the 10th and 25th of every month, commen- G.
cing bn "April 10. On the failure of the respondents to pay the instal-
ments due for the periods ending with April 10 and 25, 1967, the Excise
arid-Taxation Officer, Rohtak, gave them notices dated 15th and 25th
April; 1967 calling upon them to make good the short-fall of
Rs. 33,827 ·20 and Rs. 5,898 ·80 respectively, before April 20 and April
30,l9fi7. Since the respondents did not pay the amount, the Deputy H !
Exe~: ,and Taxation Commissioner, Headquarters, Haryana, gave .
thew,,a. notice calling upon them to show cause, within two days of the
750 E:f9illlOJ 3 r·c.R.
A reseipt of the notice, why their liGence should not be cancelletf .Wer
section 36(c) of the Punjab Excise Act, for their failure to comp!J wtih
the terms of the auction in the matter of payment of the two instal.
ments. By their reply dated May 12, 1967, the respondents stated
that th\:y were illiterate villagers, that the terms of auction were not
explained to them, that the district of Rohtak was in the grip elf a
• severe drought leading to a fall in the sale of liquor, that April btiag a
summer month, the consumption of liquor was less as compared with
I
the consumption during winter months and that, there was in fact no
d·efault on their part as alleged in the notice sent to them. On May 17,
}
1%7, the Collector and Deputy Excise & Taxation Commissioner, \•
Haryana, passed an order, after hearing the respondents, cam:efling
c their licence under section 36(b) and (c) of the Punjab Excise Act with
immediate effect and stating that the ~vend will be resold on May 23,
1967 at IO ·00 A.M. in the office of the Excise and Taxation Olker,
Rohtak, at the risk of the respondents.

On May 22, 1967 respondents filed a Writ Petition (No. 900 of
D 1%7) which was dismissed by the High Court of Punjab and HttrJl'lf!lll !!
on May 26, on the ·ground that it was premature.

In pursuance of the order dated May 17, the "Biswan Mecl" wild,
Sonepat, was reauctioned on May 23, 1967, the highest bid received
being of 15,000 litres, which in terms of money comes to Rs. 2,46,!Xn·OO
E The difference between the amount which the respondents were liable
to pay under their bid and the amount realised in the reauction CO!llCS
to Rs. 7,41,577 ·40.

On July 11, 1967 respondents were served with a notice dated July
7 by which they were called upon to pay the aforesaid amount, faifillg
F which, they were warned, the amount was liable to be recovered as
arrears of land revenue. On July 18, respondents filed the present Writ
Petition in the High Court challenging the legality of the afO£esaid
notice. The High Court allowed the Writ Petition and quasheQ the
' order cancelling the respondents' licence and calling upon them t1> pay
the difference between the amount payable brth.em under their bid; and
G the amount realised in the reauction of the vend. It has given to the
appellants a certificate to appeal to this Court under Article 133(fX;I)
of the Constitution since the subject matter in dispute was of the wlae
of more than Rs. 20,000 at the time when the Writ Petition was •it,
as also on the date of the proposed appeal.
ff It is no longer in dispute that the auction at which the responthls'
bid was accepted is go\terned by the Punjab Liquor Licence Re,
1956 as amended by the notification dated March 3l, 1967 is~u~
HAllWINA v. JAG!! MM (Clumdrar:hud; C.1.) 751

the ·Excise and Taltation Commissioner, Haryana, which came into A
force on April I, 1967. The amended rules, in so for as they a~ rele-
\'ant for our purpose, read thus :
36. (I) Subject to such changes as the Financial Com-
misioner may make each year before the annual auctions the
Coffector shall, on the basis of the probable sales during the It
next licence year determine, in the case of country liquor vends,
the minimum quota of country liquor and the licence fee calcu-
lated thereon . . . . . . . . The minimum quota and the licence
fee calculated thereon .......... , for each vend shall be an-
.nounced by the Presiding Officer at the time of auctions.
36. (16) Bids in respect of country liquor vends shall be
c
received in terms of quota of country spirit in proof litres to be
lifted during the whole year, and the successful bidder shall be
'liable to , pay licence fee calculated by multiplying the
.quota bid by Rs. 17 ·6.
36. (22-A) A person to whom a country spirit shop has been D
·sold shall deposit in a Government Treasury under head "Licence
fee on country spirit" subordinate to Majo ead "X-State
Excise Duties" by way of security an amount equivalent to
one-twenty-fourth of the amount of the licence fee determined
under clause (16) within a period of seven days of the date
E
.of auction and the aforesaid amount of security shall be refund-
able to him at the end of the year, unless the same or any
part thereof is forfeited or adjusted against any amount of
fee, duty or penalty due from him in respect of his licence.
In the event of the amount of security deposit or any part thereof
beinl} forfeited or adjusted as aforesaid the deficiency shall be

.r made good by him within seven days of the happening of such
.an event failing which the licence shall be liable to cancellation
by the Authority by which it was granted.
36. (23) (2) A person to whom a country spirit shop is
• ;;old shall pay the amount or licence fee as calculated nuder
G
.clause (16) in 22 equal instalments, each instalment being payable
on the 10th and 25th of each month starting from the month of
April. In the event of failure to pay the instalment by the
<I ue date, his licence may be cancelled.
36. (23) (3) Notwithstanding anything contained in sub-
elause (2)(a) the licensee shall be entitled to deduct from the R
amount of the licence fee to be paid by him such amount of
;;till-head duty as may have been actually paid by him on the
752 SUPREME COURT REPORTS [1980) 3 S.C.R.

i\. quota of country spirit actually lifted by him not exceeding
the amount of such duty payable in respect of the quota bid by
him at the time of auction.
36. (24) When a licence has been cancelled, the Collector or
an Officer not below the rank of Excise and Taxation Officer
B authorised by him in this behalf may resell it by public auction
or by private contract in accordance with the procedure laid
down in this rule and any deficiency in the licence fee and all
expenses of such r~sale or attempted resale shall be recoverable
from the defaulting licensee in the manner laid down in section
60 of the Punjab Excise Act, 1914...... .
c The High Court has summarised ·correctly the position
emerging out of these rules in these words :
"The auction is on the basis of the quota that has to be lifted
for each. particular shop. In order to convert it in terms of
money, each proof litre bid is multiplied by Rs. 17 ·60 and that
D is how, the fee for a particular shop is fixed. The licensee is
required to deposit one-twenty-fourth of the amount so arrived
at as security. He is then to lift the quota specified for each
month in the Rules and if he fails to do so, the amount short-
lifted in terms of the licence-fee for that month is deducted from
his security amount and he is required to make good the defi-
E ciency in the security. He may not sell even a litre of liquor;
but whatever quota of liquor he has bid for, the money value
of that quota by multiplying it by Rs. 17 ·60 per litre has to be
paid by him. There is no escape from this."
One of the contentions raised before the High Court was that the
F licence fee charged to the respondents, for failure to pay' which ttei'r
licence was cancelled, was not fee properly so called but'··was 'still-
head' duty or excise duty; and the rule requiring the payment of such
duty, even when no quota of liquor was actually lifted by the licensee,
was unconstitutional for the reason that there can be no liability to pay
still-head duty or excise duty unless the licensee'; takes or lifts the liquor.
G The High Court compared the Punjab Liquor Licence Rules of 1956
as they existed in 1966 and the Rules as amended in 1967 and carre to
the conclusion that, in substance, there was no difference in the nature
of payment which the licensee was)iabl(to'.make under the two sets of
rules ; what he has to pay under toth is still-head duty or, excise duty,
In M/s. Bhajan Lal Saran Singh & Co. v. The State of Punjab and
B
others,(1-) (Civil Writs Nos. 538 and 1991 of 1966), the High Court had
(l) (1967) Corren! Law Journal 460.
·. HARYANA v. JAGE RAM (Chandrachud, C.J.) 763

struck down the relevant Rules of 1966 by holding tharthe levy, charge
or recovery of any amount of still-head duty in respect ofliquor which
had not been actually lifted by the licensee was not justified and that
the demand to that extent was liable to be quashed. In the instant
case,·since the liability under the 1967 rules was of a similar nature as
the liability under the 1966 Rules, the High Court followed the judgment
in Bhajan Lal, (supra) quashed the levy and set aside the order whereby
the respondents' licence was cancelled and they were called upon to
pay the difference between the amount which they had agreed to pay
under the terms of their auction and the amount realised in the re-
aiiction of the vend.

The sheet-anchor of the respondents' argument before us is that the
decision of the High Court in Bhqjan Lal was affirmed by this Court in
Civil Appeals 1042 and 1043 of 1968 (decided on August 21, 1972)
and· since, in the instant case, the High .Court has merely followed
the dedsion in Bhajan Lal, the State's appeal must fail. If ,the matter
were to rest there, as assumed by the respondents' counsel Shri Tirath ·
Singh ;vlunjral, the contention would be unassailable b<cauce the
position would then approximate to the application of a mathematical
formula: Bhajan Lal was affirmed by this Court; the judgment of the
High Court in the instant case follows Bhajan Lal; the judgment under
appeal must therefore be upheld. But after the decision of the High
j... Court in Bhajan Lai (supra) was affirmed by this Court on August 21,
1972, the legal position has been further examined by a Constitution
Bench of this Court in Har Shankar & Ors. v. The Dy. Excise & Taxa-
tion. Commissioner & Ors.(1). The learned Solicitor Grnual places
strong reliance on that decision and contrnds that the jLdpur.1 cf t.he
High Court must, in the light of that decision, be over-rukd. We
must proceed to consider the decision in Har Shankar straightaway.
Har Shankar was a case from Punjab and though the instant case
is from Haryana, the liquor auctions in bo1h 1he cases are governed
by the Punjab Excise Act, I cf 1914, and 1he Punjab Liquor Licence
Rules, 1956, as al)1ended from time to time. Har Shankar' s case has
' an interesting relationship with the present proceedings because it was
G
as 'I result of the decision of the Punjab and Haryana High Court in
the:instant case, which was rendered on March 12,. 1968 that the Pun-
jab Liquor Licence Rules were further amended on March 22 and the
auction impugned in Har Shankar was held on March 23, 1968. The
liability arising under the auction in Har Shankar was upheld by the
High -Court and this Court, not t1«dc r the Rules which are relevant
in 1he instant case, but under the Rules which were amended in order
(I) [1975] 3 S.C.R 254.
754 SU!'llt!Ml! COURT R~PORTS [198-0J 3 i.C,ll.

to meet the judgment of the High Court in the instant case. Tlli&,
from the respondents' point of view, would apparently fUrnisb an
imjloTtant consideration for distinguishing the decision in Har Slidar
But, as we will presently point out, the Solicitor General relies upon
that decision on an aspect which is altogether different and of
fundamental importance .
• In Har Shankar, the appellants' bid was accepted in an auction
held on March 23, 1968 for the right to sell country liquor at two vends
in Ludhiana. the appellants paid the security deposit but were
unable to meet their obligation under the conditions of auction and
fell in arrears. When the State demanded the payment, threatened to
c cancel the licences granted to the appellants and declared its intention
to resale the vends, the appellants filed writ petitions in the High Ctmrt
of Punjab and Haryana asking that the auction be quashed and the
repondents be restrained from enforcing the obligation arising under
its terms and conditions. The High Court having dismissed the writ
petitions, the licensees filed an appeal to this Court by certifcate.
• What is important for our purpose in this appeal is that the State
of Punjab, which was respondent to the appeal in Har Shankar, (supra)
raised a preliminary objection to the maintainability of tre \\rit peti-
tions filed by the appellants and that objection was upre!d by this Court.
The preliminary objection was that such of the appellants who offer<d
their bids in the auctions did so with a full knew ledge oft he terms and
conditions attaching to the auctions and that they could not be per-
mitted to wriggle out of the contractual obligations arising out of the
acceptance of their bids. Holding that the preliminary objection was
well-founded, this Court observed :
I' "Those interested in running the country liquor vends
offered their bids voluntarily in the auctions held for granting
licences for the sale of country liquor. The terms and conditions
of auctions were announced before the auctions were held and the
bidders participated in the auctions without a demur attd
with full knowledge of the commitments which the bids involved.
G The announcement of conditions governing the auctions were in
the nature of an invitation to an offer to those who were interested
in the sale of country liquor. The bids given in the auctions
were offers made by prospective vendors to the Govero.-
ment. The Government's acceptance of those bids was the
acceptance of willing offers made to it. On such acceptance, the
contract between the bidders and the Government became
concluded and a binding agreement came into existence between
them. The successful bidders were then granted licencelio
HAll.YANA v. JAOll RAM (Chandrachud, C.l.) 755

·e1'idencing the terms of contract between them and the Govern-
1*111, under which they became entitled to sell liquor. The
Ucellllees exploited the respective licences for a portion of the
period of their currency, presumably in expectation of a profit.
O!mmercial considerations may have revealed an error of
judgment in the initial assessment of profitability of the adven-
B
ture but that is a normal incident of trading transactions. Those
who contract with open eyes must accept the burdens ofthe con-
tract along with its benefits. The powers of the Financial
Commissioner to grant liquor licences by auction and to collect
licence fees through the medium of auctions cannot by writ
petitions be questioned by those who, had their venture succeed-
ed', would have relied upon those very powers to found a
c
~al claim. Reciprocal rights al'd obligations arising out of
coatract 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 ever have a binding
force.'' (page 263), D

At page 266 of the Report, the Court further observed that the writ
jurisdiction of High Courts under Article 226 was not intended to
facilitate avoidance of obligations voluntarily incurr<d.
The Writ Petitions filed by the respondents in the High Court in the
E
instant case are open precisely to the same obj<ction which was upheld
-by this Court in Har Shankar (supra). They entered into a contract
with the State authorities with the full knowledge of conditions which
they had to carry out in the conduct of their business, on which they
had willingly and voluntarily embarked. The occurrence of a com-
mercial difficulty inconvenience or hardship in the performance of F
those conditions, like the sale of liquor being less in summer than in
winter, can provide no justification for not complying with the terms
of the contract which they had accepted with open eYes. The res-
:pondents could not therefore invoke the writ jurisdiction of the High
Court to avoid the contractual obligation incurred by them volun-
tarily. On this ground alone, the State is entitled to succeed in this G
appeal.
The judgment in Har Shankar was followed in Sham Lal v. State
·of P:i,yab(I) wherein, appellants were the highest bidders in an auction
for the sale of country liquor vends at various places in the State of
Punjab. The appellants were called upon by the State to pay the
amOllJlts which they were liable to pay under the terms of the auction,
R

(tl A.I. R. 1976 S.C. 2045.
.'(56 SUPREME <;OURT· REPORTS [198~ 3 S.C.R.

whereupon they filed writ petitions in the High Court to cb.allenge
the demand. Relying upon the passage from Har Shankar {~pra)'
extracted above, the Court held that the licensees could not be• per·
milted to avoid the contractual obligations voluntarily incurr•i:l by
them and that therefore the High Court was right in refusing to exer·
cise its jurisdiction under Article 1226 of the Constitution iu theif
B favour. .

In view of these decisions, the preliminary objection raised by the
learned Solicitor General to the maintainability of the writ peiitions
filed by the respondents has to be upheld. We hold accordingly-that
c the High Court was in error in entertaining the writ petitions for the
purpose of examining whether the respondents could avoid theif con·
tractual liability by challenging the Rules under which the bids offored
by them were accepted and under which they became entitled to ·con-
duct their business. It cannot ever be that a licensee can work out the
licence if he finds it profitable to do so; and he can challenge the
D conditions under which he agreed to take the licence, if he finds it
commercially inexpedient to conduct his business.

Learned counsel for the respondents has called our attention to the
distinction, which this Court drew in Har Shankar, (supra) between
the Rules which were impugned in Har Shankar on one hand, and
E those which were impugned in Bhajan Lal, (supra) and in the instant
case on the other. There is no doubt that such a distinction exists.
In fact, the judgment of the Punjab and Haryana High Court which is
impugned before us was specifically referred to at page 282 of the Re-
port in Har Shankar but was distinguished on the ground that the
rules in the two sets of cases were different. As we have already
F
pointed out, the licensing rules were r_amended on March 22, 1968
b~ause of the judgment which the High Court gave in this case on
March 12, 1968 and the auction in Har Shankar was held in pursuance
of the amended rules on March 23, 1968. But that, to our mind, is a
separate matter altogether. Even if it be true that there is difference
G between the rules involved in the present case and those which .came
up for examination in Har Shank or, the preliminary objection rests .on
an entirely different basis which would remain unaffected by the <!iffer·
ence in the two sets of Rules. We must therefore affirm that, even
assuming that there is a material difference in the Rules which are)ele·
vant for our purpose and the Rules which were impugned iµ _Har
H Shankar, (supra1 the w1 it petitions filed by the respondents are liable tcr
fail on the narrow ground on which the preliminary objection o(the
State was upheld in Har Shankar.
HARYANA v. JAGE RAM (Chmulrachud, C.J.) 75.7

Apart from the:ract that the respondents' writ petitions are liable tB A
fail on the ground stated above, the State's appeal must succeed on
another ground canvassed by the learned Solicitor General which
was also urged and accepted in Har Shankar. It was observed in
Har Shankar that the main focus of controversy on the merits of the
matter related to the power of the Government to levy and realise large
licence fees either through the medium of auctions or on scales
fixed under the rules. After referring to the long history of liquor
licensing and after considering the various provisions of the Punjab
Excise Act 1914 and the Rules framed thereunder, this Court held that
since rights in regard to the manufacture and sale of intoxicants are
vested in the State, it is open to it to part with those rights for consi·
deration; that the amounts which are charged to the licensees who c
offer their bids in auction sales of vends are neither in the nature of a
tax nor in the nature of excise duty; and that, the true nature of the
charge which the Government levies in such cases is that it is a price
which the State charges as a consideration for parting with its privileges
in favour of the licensee. Such a charge is a normal incident of a trad·
D
ing or business transaction. What the State could itself do in the-
exercise of its privilege, it authorizes another to do by charging a.,
price for parting with its privilege. A price can neither be a tax nor
.exeise duty.

The High Court has recorded in its judgment a concession said to E
have been made by the learned Advocate General on behalf of the State
-of Haryana that "Rupees 17 ·60 is the still-head duty per proof litre".
In the application dated May 2, 1968 filed by the State Government in
the High Court for certificate to appeal to this Coc•rt, it was stated that
ia the interest of justice it was necessary that the points involved in the
writ petition be decided by the Supreme Court since they affected "lacs F
of rupees as excise duty". This makes it plausible that the concession
was made. But considering the tenor of the arguments advanced
-0n behalf of the State Government in the High Court, it does not
appear likely that any concession was made by the Advocate General
regarding the nature of the charge. It is disputed before us that the
• Advocate General made any such concession and indeed even in the G
Memorandum of Appeal which was filed in this Court, it was stated
specifically that the High Court was in error in saying that the Advocate
General had made the particular concession and that, as a matter of
fact, "it was vehemently argued by the Advocate General that the auc-
tion was only in terms of money which was to represent the amount of
fee for the privilege of selling country liquor at a particular shop; H
only· the amount of money was to be calculated by multiplying the
number of proof litres bid by Rs. 17 ·60 p.". We might add that:the
758 SUPREME COURT REPORTS [1980] 3 S.C.ll.

A concession, if any, made by the Advocate General in the High Court
cannot affect the true legal position that the amount which the res-
pondents became liable to pay under the terms of the auction is not
excise or still-head duty but is a price which the Government charged
.for parting with its privilege, during the currency of the period covered
by the contract.
• On this consideration also, apart from the validity of the prelimi·
nary objection, the respondents' writ petition is liable to fail. The
amount which the respondents agreed to pay to the State Government
under the terms of the auction is neither a fee properly so called which
would require the existence of a quid pro quo, nor indeed is the amount
c in the nature of excise duty, which by reason of the constitutional
constraints has to be primarily a duty on the prod8ction or manufacture
of goods produced or manufactured within the country. The res·
pondents cannot therefore complain that they are being asked to pay
"excise duty" or "still-head duty" on quota of liquor not taken, lifted
or purchased by them. The respondents agreed to pay a certain sum
D under the terms of the auction and the Rules only prescribe a conve-
nient mode where by their liability was spread over the entire year by
· splitting it up into fortnightly instalments. The Rules might as well
have provided for payment of a lump sum and the very issuance of the
licence could have been made to depend on the payment of such sum.
If it could not be argued in that event that the lump sum payment re·
E presented excise duty, it cannot be so argued in the present event
merely because the quota for which the respondents gave their l>id is
required to be multiplied by a certain figure per proof litre and further
because the respondents were given the facility of paying the amount
by instalments while lifting the quota from time to time. What the
respondents agreed to pay was the price of a privilege which the State
F parted with in their favour. They cannot therefore avoid their lia-
bility by contending that the paymeut which they were called upon to
make is truly in the nature of excise duty and thatlno such duty can be
imposed on liquor not lifted or purchased by them.

In Panna Lal v. State of Rajasthan(l) it was held by this Court that •
G the licence fee stipulated to be paid by the licensees was the price or
consideration or rental which the Government charged them for parting
with its privilege and that it was a normal incident of trading or busi-
ness transaction. It is true that the Court also said that no excise duty
could be collected on undrawn liquor but it held that while enforcing
the payment of the guaranteed sum or the stipulated sum mentioued in
B the licences, the Government was not seeking to levy or recover e!ci.se
(I) {197611 SCR. 219.
HA'RYANA v. JAGE llAM (ChandrllChud, C.1.) 759

duty on undrawn liquor. In the instant case too, what the Govern- 4-
~t is trying to recover from the respondents is in essence the price
of the privilege with which it has parted in their favour and not excise
dnty on undrawn liquor.
Strong reliance was placed by the respondents on the decisions of
.Ws Court in Bimal Chandra Banerjee v. State of Madhya Pradesh, (1), IJ
State of Madhya Pradesh v. Firm Gappulal etc. (2) aud Excise Com"
mis4ioner, U.P., Allahabad v. Ram Kumar(3) in support of their con-
tention that what they are called upon to pay by the Government is
excise duty. In Bimal Chandra Banerjee,(!) it was held by this Court
that tile levy of excise duty on undrawn liquor was beyond the power of
the State Government and that therefore the rule imposing the condition C'
to that effect was invalid. That decision was followed in tbe Madhya
Pradesh case(2) where also, the licensees were required to pay what was
described as "Pratikar", which was nothing but excise duty on undrawn
liquor. The same situation obtained in the U.P. case(3) because, the
real nature of the payment which the licensees were required to make
there was excise duty on undrawn liquor. D'
These decisions cannot help the respondents because the true posi-
tion, as stated earlier, is that the amount which the respondents are
called upon to pay is not excise duty on undrawn liquor but is the price
of a privilege for which they offered their bid at the auction of the
vend which they wanted to conduct. I

Thus the respondents must fail in their contention both on account
of the objection to the maintainability of their writ petition and on
merits concerning the nature of the payment which they are liable
to tnake.
There is however one other point which cannot be overlooked' and
on which the respondents may possibly have a plausible case. It is
urged by Shri Tirath Singh Munjral for the respondents that the re-
auction which was held on May 23, 1967 was not in accordance with
the Rules and therefore, the respondents cannot be called upon to pay
• the difference between the amount which they had agreed to pay and G
the amount which was fetched in the reauction of the vend. In
paragraph 14 of the writ petition, it is averred that the respondents
were never informed as to where and at what time the resale of thee vend
would be held on May 23, that no notice of the intended resale was
give1;1 as required by Rule 36(3) of the Punjab Liquor Licence Rules
.~ [1971] I SCR. 844.
~ {1976] 2 SCR. 1041.
(3) [1976] supp], SCR. 532.
760 SUPREME COURT REPORTS [1980] 3 s.c.R.

1956, that in fact no other notice was published or affixed at any cons-
picuous public place notifying the proposed resale nor indeed was the
resale announced even by the beat of drum. According to the res-
pondents, no wide publicity was given to the reauction and even the
residents of the adjoining villages who would have been interested in
offering bids were not aware of the reauction. All that happened on
May 23, according to the respondents, was that one Lal Chand, a leadii:tg
licensee of Haryana, went to the office of the Excise & Taxation Officer,
Rohtak, and managed to have his bid accepted. These irregularities
it is contended, resulted in the startling consequence that whereas in
the auction held on March 27, 1967 the highest bid, namely, of the res-
pondents was for a quota of 62,100 litres equivalent to Rs. 10,92,960 ·00.
c in the reauction held on May 23, 1967 the highest bid was only for
a quota of 15,000 proof litres equivalent to Rs. 2,46,400 ·00.

In the counter-affidavit dated August 16, 1967 filed by Shri
Pritam Singh,'.Deputy,Excise & Taxation Commissioner, the allegations
made in paragraph 14 of the writ petition are deniecl by saying that the
reauction held on May 23, 1967 "was duly published in accordance
with rules".

The High Court has rejected the contenction of the respondents
in this behalf. But it seems to us that its judgment on this' aspect
of the matter suffers, with respect, from a misunderstanding of the
E grievance of the respondents. Their main grievance that du'e publi-
city was not given to the reauction, as a result of which proper· bids
were not received, has been overlooked by the High Court and it merely
dealt with the question whether the respondents themselves had
notice of the reauction and whether the date of the reauction·ought to
I
have been fixed by the Financial Commissioner himself and by
F
no other person. The High Court is right that the respondents did
have notice of the reauction, as is clear from the order dated May
17, 1967 passed by the Deputy Excise & Taxation Commissioner,
· Headquarters, Haryana, while cancelling the' respondents' licence.
It also appears clear that the date of the reauction need not be •
fixed by the Financial Commissioner himself. But there is no
discussion whatsoever in the judgment of ·the High Court, on ·the
question as to whether due publicity was given to the reauction"'as
required by the Rules. In\ paragraph 14 of their ~rejojnder
aflidavit filed in the High Court on September 14, 1967, respondents •
had stated that it was incorrect that the reauction was duly published·
in accordance with the Rules. Along wih their rejoinder, respondents
filed affidavits of three Sarpanchas, three members of the Pancha:yats-
and a Lamberdar to show that no notice whatsoever was given of
HARYANA v. JAGE RilM ( Chandrachud, C.1.) 761

the reauction to the people in the vicinity of Biswan Mee! village. A
The High Court has not even made a reference to these affidavits,
while dealing with the particular point (namely, contention No. 2 before
the High Court), which bears out what we have stated above that it
really misdirected itself' while examining the contention raised by the
.respondents in regard to the absence of due publicity for the reauction.
n
This makes it necessary to remand the matter to the High Court
1n order to enable it to record its findings on two outstanding questions:
(I) whether it was necessary according to the Rules which were in
force at the relevant time to give adequate publicity to the reauction
ang, ,(2) if so, whether such publicity was in fact given to the re-
auction. If the officers of the State have defaulted in carrying out
their obligation, if any, in the matter of giving due publicity to
the reauction, the consequence could be that the respondents
may not be liable to pay the difference between the amount which
·they were liable to pay and the amount realised in the reauction.
In the result, except for the contention in regard to the two questions D
mentioned in the preceding paragraph, the State must succeed. We
shall, however, have to await the findings of the High Court on the
.two points mentioned above before passing the fuial order, which
can only be done after the findings of the High Court are received.
·we direct the High Court to decide the aforesaid questions on the
.. ~ material as it stands on the record and on such further material as ' 1-.
the parties may desire to adduce. The State, especially, may like
to file a further affidavit in reply to the rejoinder affidavit of the respon-
dents along with which the affidavits of three Sarpanchas, three
members of certain Panchayats and of a Lamberdar were filed. The
High Court will certify its findings to this Court within three months
}<'
from to-day.
y
'" :S.R. Appeal allowed in part .

•

'10-463SCI/80