THE UNION TERRITORY OF PONDICHERRY AND ORS.versusP.V. SURESH ETC. ETC. AND ORS.

    THE UNION TERRITORY OF PONDICHERRY AND ORS.                                 A
                                     v.
                 P.V. SURESH ETC. ETC. AND ORS.

                          SEPTEMBER 23, 1993

         [B.P. JEEVAN REDDY AND S.P. BHARUCHA, JJ.)                             B

      Excise Rules--Grant of a"ack licences, by auction for Excise year 1981-
82---Rate of supply of a"ack-Power of Government to alter-Bidders not
apprised by Government while conducting auction, of rate/quantum of a"ack
to be supplied to them-Whether licencees could assume that quantum of C
supply would be same as in previous excise yea~Whether Ucencees bound
to pay'Kist' amounts, according to bids, if rate of arrack supply is
reduced-Jurisdiction of Court in contractual matters.

      Practice and procedure-Grant of interim injunction--Excise of power
by Court-Passing of interim order not a matter of course-In matters touch-      D
ing revenue, Court to be more cautious and exercise its power with good
amount of self restraint and sense·of responsibility-Gran! of interim injunc-
tion does not absolve the party from consequences of its action.

      In Union territories of Pondicherry, Mahe and Karaikal, arrack            E
licences were granted by way of auction. For excise year 1981-82 auctions
were conducted in June, 1981. Licences were granted to highest bidders.
They made necessary deposits and obtained permits to commence business
with effect from July 1, 1981. Arrack licencees were obliged to draw their
supplies only and exclusively from the Government source and were
obliged to sell arrack at the price ru:ed by the Government. For the            F
previous excise year (1980-81), supplies were made at the rate of one
decalitre per day for annual Revenue of Rs. 18,000. However, for excise
year 1981-82, the authorities prescribed the ratio of one decalitre for
annual bid of Rs.40.000, which meant that the quantum of supply to which
each arrack shop was entitled, went down as compared with the previous          G
year. On representation of licencees, the ratio was altered to one decalitre
per day for annual bid of Rs. 34,000,on October 27 ,1981. The Government
did not notify the said ratio at the time of conducting auctions for 1981-82.
It was not doing so during earlier years also.

      The arrack licencees from· Pondicherry territory deposited 3 months       H
                                    487
    488                  SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A   rental also at inception of the excise year as required by the Rules. They
    drew supplies from the Government depots and carried on business for 3
    months. Thereafter, they filed writ petitions for directing the respondents
    to forbear from collecting the Kist amount in respect of each shop and to
    supply arrack to them at the rate at which it was supplied during the
    previous excise years.
B
          The grievance of writ petitioners of Pondicherry Territory was that
    since the authorities did not announce or intimate at the auctions that the
    rate of supply would be altered, the petitioners assumed that arrack would
    be supplied at the rate that it was supplied in the previous year. The writ
C   petitioners urged that they w~re bound to and were incurring losses on
    account of the change in the rate of supply, that there could not be a
    contract which was so constituted that it could result only in loss to the
    licencee and the contracts were vitated by mistake of fact.

           The Administration (Respondents in the writ petition) opposed the
D   writ Petitions saymg that petitioners had no statutory right to supply of
    any particular quantity of arrack; the Government had reserved to itself
    the right to revise the quantity of arrack even during currency of the lease
    vi de condition 22 (3) of the Licence; change in rate of supply was neces-
    sitated to ensure equitable distribution, the rate of supply was not uniform
E   in the previous year also; there was no question of writ petitioners suffer-
    ing loss, as the rate of supply was changed from one decalitre per day for
    annual bid of Rs. 40,000 to one decalitre per day for annual bid of Rs.
    34,000 and the same price fixed by the Government had. been raised
    substantially with effect from December 29, 1981. The Government also
    raised objection that. the writ petitioners could not wriggle out of their
F   contractual obligations and that the writ petitions were not maintainable,
    because the subject matter was purely contractual.

          The High Court overruled objection with respect to maintainability
    of writ petitions. Having found that the licencee was bound to incur loss
G   even at the rate of one decalitre for annual bid of Rs. 34,000, it held that
    it was an inherently impossible contract. It further held that the
    petitioners were bound to pay the 'Kist' at the rate that was obtained for
    a particular shop during the previous excise year (1980-81).

          In appeals filed in this court on behalf of the Administration, it was .
H contended that the High Court had exceeded its jurisdiction by altering
                   U.T. v. SURESH [JEEV AN REDDY, J.]                   489

 the terms and conditions of the agreement, and that the writ petitions        A
 ought to have been dismissed on the ground that the retitioners were
 seeking to enforce contractual rights.

       The arrack licencees from Mahe area, who did not deposit 3 months
rental as required by the Rules, drew initial supply of arrack and did
business for 15 days and abandoned the business. They also filed writ B
petitions before the High Court for direction to respondents therein to
issue them full quantity of arrack as supplied to them during the previous ·
excise year, failed which, to reduce the 'Kist' payable by the petitroners
proportionately.
                                                                               c
      In the writ petitions, filed by the arrack licencees of Mahe area, the
High Court issued interim injunction as prayed by the petitioners therein,
restraining the respondents from taking any proceedings pursuant to
memo dated 17.8.1981 by cancelling the bid or forfeiting earnest money
deposit of the petitioners, pending further orders on the petition. When       D
the writ petitions came up for final hearing, the licencees argued that as
they have not drawn any supplies and have not done any business, they
should not be made liable for paying the 'Kist' amount or deposits. This
plea was rejected by the High Court. Hence the appeals.

      Disposing of the appeals, this Court                                     E

       HELD : The rate of supply bas a fundamental significance to the
viability of the contract. It was necessary for the Administration to men·
tion the rate or quantum of supply in auction notification, in view of the
fact that not only the source of supply was the Administration alone but F
also because the licencees were obliged to sell arrack at the rate ftxed by
the Government. However, there was no basis for the bidders to assume
that the rate of supply would be one decalitre per day for annual bi~ of
Rs. 18,000 at the inception of their licence period or that the rate of supply
would remain unchanged during the whole of the year 1981-82. That was
not the constant rate. The rate of supply was never constant. Not only Rule G
22 (1) empowered the Administration to alter it anytime, it was actually
changed twice during the previous year. In the face of the Rule position
and the practice, there was no basis or justification for the appellants to
assume, wliat they said they had assumed. The rat#! of supply could have
been altered at anytime in 1981-82. [pp. 496-F-H; 497-A·B; 498-A-B]            H
    490                   SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A         2. Court has no jurisdiction to alter terms or re-write the contract but
    the contract in these cases was so constructed that loss was inherent and
    implicit in it. In such a case the High court was justified in holding that the
    contracts between the Iicencees and the Administration required modifica-
    tion. The High court however did not pause to consider, what would be the
    result if the Kist amount is reduced, applying the formula • Rs. 18,000
B   annual bid for supply of one decalitre per day. [498-D, 497-D, ff]

          3. The Government shall evolve a formula and revise the 'kist'
    amount to such a figure on the basis of actual supplies made to each shop,
    as would ensure a margin of 15 per cent on the annual bid, which takes
C   care of establishment expanses and also includes profit. While evolving the
    formula, which ensures the above margin, the Government shall take into
    account the change in the sale price and the change in the rate of supply.
    This formula is peculiar to the facts of the case and should not be treated
    as a precedent. [498-E-H]
D
          4. The appellants arrack Iicencees of Mahe area must pay the whole
    amount due. The interim injunction granted by the High court, did not
    absolve the appellants from the consequences of their action, which flow
    according to law. [500-F]

E         5. Passing of interim orders is not and cannot be a matter of course
    nor a matter of charity. Courts ought to be more cautious in matters
    touching public revenue and exercise the power with good amount of
    self-restraint, sense of responsibility and accountability. The court must
    envisage the implications and consequences of the order, it proposes to
F   make. [501-A-B]

         CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1543-
    1630 of 1984.

          From the Judgment and Order dated 22.10.83 of the Madras High
G   Court in W.P. Nos.6652, 6767, 6768, 6769, 7600, 7601, 7602, 7710, 7715,
    7994,8038,8903,8904,8905,8907,9043,9044,9045,9046,9047,9048,9049,
    9050, 9051, 9052, 9054, 9055, 9056, 9057, 9058, 9064, 9299, 9300,to 9306,
    9334,9335,9336,9409,9410,9460,9474,9504,9634,9635,9636,9637,9640,
    9641, 9642, 9643, 9644 to 9656, 9923, 9927 to 9932, 10136, 10137, 1083,
H   10183, 10184, 1041, 10416, 11093 to 82 and 686/82.
                 U.T. v. SURESH [JEEVAN REDDY, J.]                    491

      A.S. Nambiar, M.N. Krishnamani, P.K. Manohar, K.R. Nambiar,           A
Kailash Vasdev, K.M.K. Nair and T. Raveendran for the appellants:

     V.T. Gopalan, A.S. Nambiar, A.T.M. Sampath, P.K. Manohar, A.V.
Rangam, A. Ranganathan; S. Srinivasan and P.R. Seetharaman for the
respondents.
                                                                            B
     The Judgment of the Court was delivered by

       B.P. JEEVAN REDDY, J. The Union of India represented by the
Union Territory of Pondicherry is the appellant in these appeals which are
directed against the judgment of a Division Bench of Madras High Court C
in a batch of writ petitions filed by the Respondents, arrack licencees of
Pondicherry and Mahe. Civil Appeals 1543-1630 of 1984 pertain to Pon-
dicherry territory while Civil Appeals 693 to 695 and 695A pertain to Mahe
territory. In the Union Territories of Pondicherry, Mahe and Karaikal,
arrack licences are granted by way of auction. For the excise year 1981- 82 D
(commencing from July 1,1981 to June 30, 1982) auctions were conducted
in June, 1981. The writ petitioners ~ere the highest bidders in respect of
respective shops. They made the necessary deposits and obtained permits
to commence their business with effect from July 1, 1981. The. arrack
licencees from Pondicherry territory also deposited the three months rental
at the inception ohhe excise year as required by the rules. They drew E
supplies from the Government depots and carried on their business for a
period of three months. Thereafter they approached the High Court at
Madras by way of writ petitions for issuance of an appropriate writ order
or direction directing the respondents in the writ petition to forbear from
collecting the 'kist' amount in respect of the each of the shops and for F
directing the respondents further to supply the quantity of arrack at the
rate at which it was supplied during the previous excise year (i.e., 1980-81).

       So far as the arrack licen~ees from Mahe area are concerned, they
did not deposit the three months rental as required by the rules. They drew
the initial supply of arrack, did business for 15 days and thereafter aban- · G
doned the business. They too approached the Madras High Court by way
of writ petitions for a direction to the respondents therein to issue to the
petitioners 'the full quantity of arrack as was being supplied to them during
the previous excise year, failing which to reduce the 'kist' payable by the
petitioners proportionately.                                                  H
    492                   SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A        According to the law force at the relevant time in the said Union
  territories, t e arrack licencees were obliged to draw their supplies only
  and exclusiv ly from the Government source. They were prohibited from
  drawing thei: supplies from any other source. Further, they were also
  obliged to sell the arrack at the price fixed by the Government. The
  Government had its own factories where the arrack was manufactured,
B which was distributed among the several shops in the Union territories. For
  the previous excise year i.e., for 1980-81, the supplies were made at the
  rate of one decalitre per day for an annual Revenue of Rs. 18,000. In other
  words, if the annual bid in respect of an arrack shop was Rs. 18,000, such
  shop was entitled to and was supplied arrack at the rate of one decalitre
C per day. For the excise year 1980-81, however, the authorities prescribed
  the ratio of one decalitre for an annual bid of Rs. 40,000, which meant that
  the quantum of supplies to which each arrack shop was entitled to went
  down for the year 1981-82 compared with the previous year i.e., 1980-81.
  On the representation of the licencees, the said ratio was altered to one
D decalitre per day for an annual bid of Rs.34,000 on October 27, 1981. What
  is important to notice is that the Government did not notify the said ratio
  at the time of conducting the auctions for the excise year 1981-82. · It
  appears that it was not doing so during any of those years, which defect, if
  we can call it one, is said to have been remedied in the later years. It is
  this defect in the system of auction that has led to the crop of writ petitions
E in the Madras High Court, from which these appeals arise. In many other
  States, the minimum guarantee quota which the Government undertakes
   to supply and which the licensee is equally under an obligation to lift, is
   specified even at the time of the auctions. Where this is done, there is no
   room for the controversy of type arising herein.
F
         The grievance made in the writ petitions filed by Pondicherry licen-
  cees was this since the authorities did not announce or intimate at the time
  of ;;onducting the auctions that the rate of supply is being altered, the writ
  petitioners assumed that arrack will be supplied a: the same rate it was
G supplied for the previous excise year i.e., 1980-81. For the previous excise
  year, arrack was supplied at the rate of one decalitre for an annual bid of
  Rs.18,000. It is on the said basis and assumption that the petitioners had
  given their bids which were far in excess of the bids received for the
  previous excise year. Only after they paid the amounts and commenced the
  business that they were apprised of the change in the rate of supply which
H came as a shock to them. Since the licencees have no other source of
                  U.T. v. SURESH [JEEVAN REDDY, J.]                   493

supply, and because they are obliged to sell at the price fixed by the A
Government, they were not able to realise even the 'kist' amount (monthly
instalments) by the sale of arrack supplied to them. Even at the rate of one
decalitre for an annual bid of Rs.34,0000, the licencees were bound to and
were incurring losses. There cannot be a contract which is so constituted
that it can result only in loss to the licencee. At the said. rates of supply,
no licencee can ever meet even the monthly 'kist', let alone meet his B
establishment charges and other expenses and earn profit. By changing the
rate of supply the Administration has removed the basic assumption, the
underpinning, underlying the contracts. The contracts thus stand
frustrated. In any event, the contracts are vitiated by mistake of fact. The
authorities are responsible for this situation inasmuch as they failed to
intimate the prospective bidders of the change in the rate of supply at the
                                                                            c
time of auctions. They are precluded for changing the rate of supply by the
rule of promissory estoppel. The Administration is bound to supply them
arrack at the rate of one decalitre for an annual bid of Rs.18,000. Alter-
nately, 'kist' may be collected from them for entire excise year at the rate
of Rs. 18,000 per decalitre supplied. In other words, the 'kist' amount be D
reduced proportionate to the rate of supply in vogue during the previous
excise year. (We shall deal with the writ petition filed by licencees of Mahe
area separately and therefore we are not mentioning their contentions at
this stage).

      The administration (respondents in the writ petitions) opposed the E
writ petitions saying that the petitioners have no statutory right to supply
of any particular quantity of arrack, nor is the Administration under a
statutory obligation to supply a particular quantity or all the quantity that
may be asked for by the licencee-s. The Government has reserved to itself
the right to revise the quantity of arrack even during the currency of the F
lease vide condition 22(3) of the licence. The change in the rate of supply
of arrack has been necessitated on account of the concern of the Ad-
ministration to ensure equitable distribution of arrack produced in the
Pondicherry distilleries among the several licencees in the -Union territory.
The annual 'kist' has been taken as the yard-stick for fixing the quota of
arrack to individual licencees. This was the practice followed at all points G
of time. Even during the previous excise year, the rate of supply was not
uniform. It was changed three times during that year and the rate of one
decalitre for Rs. 18,000 annual bid was the rate obtaining towards the end
of the previous excise year. In the circumstances, the writ petitioners had
no basis or justification for assuming that supply of arrack during the H
    494                   SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A current year (1981-82) will be at the said rate of one decalitre for an annual
  bid of Rs.18,000. Indeed, all these :irguments are nothing but mere after-
  thoughts. The writ petitioners of Pondicherry area paid the deposits, took
  permits and licences and did business without any complaint for a period
  of three months. Only when auctions in the neighbouring State of Tamil
  Nadu were conducted wherein the bids went up exceedingly high as
B compared to the previous year's bids, on account of which arrack became
  dearer in Tamil Nadu shops, driving the consumers to Pondicherry shops
  that the writ petitioners started asking for more supplies to meet the said
  heightened demand. When the Administration did not supply such exces-
  sive supplies, they came forward with the writ petitions. The story put
C forward in the writ petitions in one fabricated to buttress their case in the
  writ petitions. Indeed, when the licencees made representation for altera-
   tion of the rate of supply, the Administration reduced it from one decalitre
   for an annual bid of Rs. 40,000 to one decalitre for an annual bid of Rs.
   34,000~ There is no question of the writ petitioners suffering any loss in the
D circumstances. It was also submitted that even the sale price fJXed by the
   Government was raised substantially with effect from December 29, 1981
   for Pondicherry region; it was raised from 68 paise to one rupee. The
   Government also raised an objection that the writ petitioners having
   entered into contracts with the Administration cannot wriggle out of their
   contractual obligations by resorting to Article 226 of the Constitution. It
E was submitted that because the subject matter of the writ petitions was
   purely contractual in nature, the writ petitions were not maintainable.

           The High Court overruled the objections of the Administration with
     respect to the maintainability of the writ petitions. It then examined the
p    merits of the controversy and found that at the rate of supply prescribed
     for the excise year 1981-82, the licencees were bound to suffer losses, even
     if the rate of supply is one decalitre for an annual bid of Rs.34,000. It
     demonstrated the said fact by setting out the following table in its judg-
     ment:-

G      "Monthly upset Price      Yearly upset Price          One day's kist
          (upset rental)          (Upset rental)             (Upset price)
            Rs. 38,000               Rs. 4,56,000             Rs. 1,249.32
      Calculation of quota of arrack supplied as per
      Original order of Government.
                   U.T. v. SURESH [JEEVAN REDDY, J.]                     495

 (a) Quota per day at 1 Cec. Litre for Rs. 40,000                              A
     of annual Kist                               ......... 114 litres
 (b) Quota per day for Rs. 34,000 Cost of arrack .......... 134 litres
     at distillery at the price fixed in the notific- (a) Rs. 492.48
     ation                                            (b) Rs. 578.88
 (a) Total upset rental at rate (a)                    Rs. 1,741.80            B
 (b) Do. at rate (b)                                   Rs. 1,828.20
 Sale price-Income on sale at Price fixed by Notification.
 Rate (a) Rs. 12.60 per litre x 114 litres :          Rs. 1,436.40
 Rate (b) Rs. 12.60 per litere x 134 litres :         Rs. 1,638.40             c
        LOSS PER DAY                  Cost price minus sale Price :
                                      (1741.80 - 1436.40) = 305.40

                                      (1828.20-1638.40) = 139.80
                                                                               D
        LOSS PER YEAR                 (a) Rs. 1,11,325.00
                                      (b) Rs. 51,027.00"

      (From the above statement, it appears that the High Court has
adopted the price of Rs.12.60 paise per litre which according to the           E
Administration is the rate prevailing upto December 27, 1981 whereafter
it had gone up substantially. The counsel for the parties before us could
not throw any light in this aspect).

       Having found that the licencee was bound to incur loss even z.t the
rate of one decalitre for an annual bid of Rs.34,000, the High Court held F
that it was an inherently impossible contract. It opined that no licencee can
be expected to or will be in a position to pay the prescribed 'kist' amount
in the circumstances. Having come to the said conclusion, the High Court
accepted the writ petitioners plea that in such a situation the petitioners
should be permitted to pay the 'kist' amount applying the formula - G
Rs.18,000 per annum for every decalitre of arrack supplied per day. Ac-
cordingly, it allowed the writ petitions with the following directions:-

        "Taking all these aspects into consideration, we hold, that all the
        writ petitioners are bound to pay the 'kist' at the rate that was
        obtained for a particular shop during the previous year i.e. 1980-81. H
    496                   SUPREME COURT REPORTS [1993] SUPP. 2S.C.R.

A           Moulding relief on the above lines, all the writ petitions are
            allowed in part to the extent indicated above and dismissed in other
            respects. There will be no order as to costs."

           In these appeals, it is submitted by Shri A.S. Nambiar, learned
    counsel for the Administration (Union of India) that the High Court has
B   exceeded its jurisdiction in granting the relief it did. The High Court, it is
    complained, has actually re-made the contract between the parties. It has
    specifically altered the terms and conditions of the agreement and licences
    prescribed by law. No writ can be issued contrary to the provisions of law.
    Indeed, the writ petitions ought to have been dismissed on the ground that
c   the writ petitioners were seeking to enforce contractual rights. The writ
    petitions raised a purely contractual dispute. There was no violation of any
    statutory provision on the part of the Administration. The Administration
    did not violate any of the obligations under the contract. There was no
    statutory right inhering in the writ petitioners to demand the supply of
D   arrack at a particular rate. The only obligation of the Administration was
    to made an equitable distribution of the available supplies among the
    several licencees. The theory that the writ petitioners are bound to suffer
    losses at the rate of supply prescribed by the Administration for the excise
    year 1981- 82 is not correct as a fact. Even if it is correct, it is no ground
    for the High Court to interfere in the matter. It is no part of the court's
E   obligation to ensure profit to the licencees. On the other hand, the learned
    counsel for the licensees (respondents in these appeals) supported the
    reasoning and conclusion of the High Court.

           As indicated by us at the inception of this judgment the present
F   controversy is the result of the omission to mention the rate or quantum
    of supply in the auction notification. This was necessary in view of the fact
    that not only the source of supply for the licencees was the Administration
    alone but also because the licencees were obliged to sell the arrack at thl:
    rate fixed by the Administration. If the Administration had indicated at the
    time of auction that the rate of supply for the excise year 1981- 82 would
G   be at the rate of one decalitre per day for an annual bid of Rs.40,000, the
    bidders (including the writ petitioners) would have modulated their bids
    on that basis. It may be that strictly speaking, the Administration is right
    in saying that there was no basis for the bidders including the writ
    petitioners to assume that the rate of supply would be one decalitre per
H   day for an annual bid of Rs.18,000 because that was not the constant rate
                       U.T. v. SURESH [JEEVAN REDDY,J.]                    497

      even for the whole of the previous excise year - much less for the earlier A
      years. It is equally true that the rate of supply has always been changing.
      But at the same, it cannot be gainsaid that the rate of -supply has a
      fundamental significance to the viability of the contract. The High Court
      has demonstrated through the above statement of particulars that at the
      rate of supply of one deC3litre per day for an annual bid of Rs.40,000, or B
-I
      even Rs.34,000, the licencee is bound to incur loss and would not be able
      to pay even the 'kist' - let alone meet establishment expenses and earn
     profit. May be - we are not sure - that the said statement of particulars is
     based upon the sale price whieh'"was in force from July 1, 1981 to Decem-
     ber 27, 1981 and not the sale price effective from December 27, 1981. Even
      so, it cannot be forgotten that the sale price of arrack was revised only on C
      and from December 27, 1981 by which date practically half of the licence
     period was over. Similarly, the revision in the rate of supply from one
      decalitre per day for an annual bid of Rs.40,000 to one decalitre per day
     for ·an annual bid of Rs. 34,000 was with effect from October 27, 1981, by
     which date again about four months' period (out of 12 months' licence D·
     period) had expired. In the above state. of facts, the High Court was
     perhaps justified in holding that the contracts entered into between the
     licencees and the Administration require to be modified in the peculiar
     facts and circumstances of this case. In opinion, the main vitiating factor
     was the omission to mention the rate of supply at ·the time of conducting
     the auction itself even where the Administration had the right to revise it E
     during the licence period. It is, h~wever, not necessary for us to go into
     the question - what effect the said omission had upon the contracts. The
     licencees - writ petitipners did .their business for the entire excise year
     under the interim orders of the High Court. They 'were allowed to draw
     supplies and pay 'kist' calculated on the basis of Rs. 18,000 per annum of F
     supply of one decalitre per day. The contract period is over long ago. At
     this stage all that remains to be done is to devise a. formula appropriate to
     the circumstances. The situation herein is undoubtedly exceptional and
     unusual which in turn calls for an unusual solution.

           At this stage, it is necessary to point out that 'the High Court while G
     seekip.g to demonstrate that at the rate of one decalitre for an annual bid
     of Rs. 40,000 or even at the rate of one decalitre per day for an annual bid
     of Rs. 34,000, the _licencee is bound to suffer losses, ·did not pause to
     consider what would be the result if.the 'kist' amount ~s reduced applying
     the formula - Rs. 18,000 annual bi4 for the supply of one decalitre per day. H
    498                  SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A As we have have pointed out hereinbefore, the rate of supply was never
    constant and that even during the previous excise year, the rate of supply
    was revised upwards on two occasions. Accordingly, the writ petitioners
    could not have, reasonably speaking, assumed either that the said rate of
    supply (one decalitre per day for an annual bid of Rs. 18,000) would be
    the rate of supply at the inception of their licence period or that the said
B   rate of supply would remain unchanged during the whole of the year
    1981-82. Not only Rule 22(3) empowered the Administration to alter it at
    any time, it was actually changed twice during the previous excise year. In
    the face of the Rule - position and the practice, there was no basis or
    justification for the writ petitions to assume what they say they assumed.
c   The rate of supply could have been altered at any time during 1981-82.

          In the circumstances of this case, our enquiry is limited to the
    question whether the contract was so constructed that loss was inherent
    and implicit in it; if so, it ought to be modified. Otherwise, the Court has
D   no jurisdiction to alter the terms or rewrite the contract between the
    parties.

         The learned counsel for. the appellant placed before us a memo of
  calculation according to which the profits earned by licencees at the rate
  prescribed by the High Court would be about 66 per cent on their invest-
E ment. We do not propose to go into these calculations. In the peculiar
  circumstances of this case, we are of the opinion that the 'kist' amount
  should be revised to such a figure (on the basis of actual supplies made to
  each shop) as would in all the circumstances ensure a margin of_15 per
  cent on the annual bid. This 15 per cent would take· care of the ·estab-
F lishment expenses and also include profit. Since this formula cannot
  satisfactorily be evolved by us for lack of relevant material before us, we
  remit the matter to the Government. The Government shall, after hearing
  the writ petitioners, evolve a formula which ensures the above margin.
  While evolving the formula, the Government shall take into account the
  change in the sale price and the change in the rate of supply referred to
G hereinabove. On such determination, if the licencees are found liable to
  pay any further amounts, the same shall be paid by them and recovered in
  accordance with law. If, on the other hand, the Administration is found
  liable to refund any amounts, the same shall be refunded to the li,cencees.
  We must reiterate that the formula evolved by us is peculiar to the facts of .
H this case and has been evolved in view of the exceptional facts and
                   U.T. v. SURESH [JEEVAN REDDY, J.]                      499

circumstances of this case, and shall not be treated as a precedent. The         A
writ appeals are accordingly allowed with the above direction. The judg-
ment of the High Court under appeal is modified accordingly in so far as
it pertains to the licencees of Pondicherry area/territory. No costs in these
appeals.

       Now coming to the licencees of the shops in the Mahe are, the             -B
situation is different altogether. These licencees did not deposit the three
months' 'kist'. They did business for the first 15 days and thereafter
abandoned the shops. In that situation, the Administration had no option
but to issue the notice dated 17.8.1981. Under the said notice issued by the
Deputy Commissioner Excise, Mahe the attention of the said licencees             C
was invited to the fact that they have failed to remit the security deposit
and to execute the necessary agreements as per the rules and therefore
they were called upon to explain, within two days of the receipt of the said
notice, the reasons for their lapse in remitting the security deposits and in
executing the agreements, failing which, it was indicated, appropriate ac-       D
tion would be taken against them according to law. Soon after receiving
this notice, they rushed to the High 'Court with writ petitions praying for
issuance of directions to the respondents (Administration) "to issue to the
petitioner the full quantity of arrack as was being supplied to him during
last year failing which to reduce the 'kist' payable by the petitioner propor-
tionately on the basis of the arrack supply and in respect of the petitioner's   E
arrack shop No.1 situated at Mahe." (Prayer quoted from writ petition
No.6652 of 1981). In these writ petitions the said four licencees asked for
an interim injunction "restraining the respondents herein from taking any
proceedings pursuant to the memo of the second respondent
No.2228/A2/81-82 dated 17.81981 by either cancelling the bid or forfeiting
the earnest money deposit of the petitioner in respect of arrack shop No.
                                                                                 F
1, at Mahe" In the said miscellaneous application justice Padmanathan
passed the following order on August 25, 1981:-                            ·

        "1. that notice returnable in for weeks from this date, do issue to
        the respondents to show cause why this petition should not be            G
        complied with; and

        2. interim injunction do issue to the respondents herein restraining
        them from taking any proceedings pursuant to the Memo of the
        2nd respondent No.2228/A2/81-82 dated 17.8.1981 by either can- H
    500                  SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A            celing the bid or forfeiting the earnest money deposit of the
             petitioner in respect of arrack shop No.1 at Mahe, pending further
             orders on this petition."

         We must say that we are not only surprised at the order passed by
  the High Court but also feel disturbed that the High court chose to pass
B an order of interim injunction restraining the authorities from taking any
  action by way of cancelling the licence or forfeiting the earnest money
  deposit, without simultaneously calling upon the petitioners to deposit the
  'kist' amount and other deposits according to the Rules. The result of the
  said order was that the licencees - writ petitioners neither paid any deposits
C or 'kist' amounts nor did they do any business in the shops. They just kept
  quiet. They continued to abandon the shop; meanwhile the excise year was
  over. when the writ petitions came up for final hearing, the licencees of
  these four shops argue~ that inasmuch as they have not drawn any supplies
  and have not done any business in the respective shops, they should not be .
D made liable for paying the 'kist'. amount or deposits in accordance with the ·
  rules. This plea has been rejected by the High Court - in our opinion
  rightly. The petitioners having abandoned the shops and thereafter having
  obtained an interim injunction of the nature indicated above - thereby
  restraining the authorities from taking any action against the licencees fqr
  recovery of the amounts due and/or from terminating their licences/permits
E and also from conducting re-auction (tinless the licences in favour .of these
  writ petitioners were cancelled no re-auction could be conducted) - they·
  cannot escape the consequences of their action. The interim order cannot
   and does not protect them. One must also notice the different maiwer. in
  which the prayer in the writ petition and the prayer in the petition for
F injunction have been phrased. (We have set out both of them herein~
  before). The fact that the court granted the interim injuncti-On as prayed
  for by them does not absolve them from the consequences of their action
  which flow according to law. They must pay the whole amount due. The
   benefit of the order made in the case of the Pondicherry licencees shall
   not be available to these licencees. The appeals preferred by them, Civil
G Appeal Nos. 693, 695 and 695A of 1985 are dismissed with costs. The costs
   of the appellant· are assessed at Rs. 5,000 in each of the four appeals which
   shall be paid by the Respondents - writ petitioners in the said appeals.

           Before parting with the case, we feel constrained to reiterate our
H unhappiness about the interim injunction order made in the Mahe wiit
                  U.T. v. SURESH [JEEVAN REDDY,J.)                     501

petitions. Passing of interim orders is not and cannot be a matter of course A
- nor a matter of charity. In matters touching public Rev.enue the Courts ought
to be more cautious. For better or worse, the Courts have come to acquire a
veto over the public exchequer. This power should be exercised with good
amount of self-restraint and with a sense of responsibility. The power is
coupled with accountability - accountability to the Constitution, to the laws
of the land and above all to ourselves. The Court must apply its mind to the B
facts of the case and must also envisage the implications and consequences
of the order it proposes to make. This is so even at the ad-interim stage
when the respondent is not represented. We are sorry to say that none of
these considerations appear to ·have been present in the mind of the
learned Judge while passing the orders of injunction relating to Mahe        c
shops. We are not happy at making these remarks but we .felt compelled
to say so in the circumstances. We hope and trust that no occasion would
arise ever again for reiterating these remarks.

LS.G.                                                 Appeal disposed of.