G RAMASWAMY Vs. TALUK EXCISE OFFICER TRICHY

JUDGEMENT

(1.) THE issue that arises for our consideration in this appeal preferred against the order of the learned Single Judge dated 14. 7. 1998 in W. P. No. 14148 of 1989 dismissing the writ petition is whether the doctrine of fairness or reasonableness can amend, alter or modify the terms of the statutory contract?

(2.) 1. Factual background in a nutshell is that, the appellant was the successful bidder in respect of an arrack Shop No. 23, Vennish nagar, Trichy on a monthly kist of Rs. 53,550/- for the excise year 1983-84 and the excise period was between 1. 6. 1983 and 30. 5. 1984. The appellant paid three months deposit amounting to Rs. 1,60,650/- as contemplated under Rule 15 of the tamil Nadu Toddy and Arrack Shops (Disposal in Auction) Rules, 1981 (for brevity, "the Rules" ). Thereafter, when the appellant proposed to locate the shop in an objectionable site, the same was refused by the respondents in their proceedings dated 8. 8. 1983, and as the appellant could not select an unobjectionable site, there was a delay in granting licence and finally the appellant was granted licence to run the above arrack shop by proceedings of the first respondent dated 16. 1. 1984. 2. 2. Pursuant to the said grant of licence, viz. , on 16. 1. 1984, the appellant had run the said arrack shop for a period of twenty days, viz. , up to 6. 2. 1984. But, a third party filed a suit in O. S. No. 110 of 1984 on the file of the First Additional District Munsif, Tiruchirapalli against the appellant challenging the location of the shop and the Trial Court granted an order of injunction dated 6. 2. 1984 in I. A. No. 144 of 1984 in o. S. No. 110 of 1984, restraining the appellant from running the arrack shop in the licensed place, and the said injunction granted, in spite of contest by the appellant, continued for the entire excise year. 2. 3. Under such circumstances, the appellant claimed the refund of the amount deposited by him, viz. , Rs. 1,60,650/-, less the amount liable to be paid by him towards kist for the period of 20 days, viz. , rs. 35,700/ -. The appellant, in all, claimed for refund of Rs. 1,24,950/ -. 2. 4. The respondents, however, issued a final notice in na. Ka. P1/772/83, dated 10. 8. 1989 demanding a sum of Rs. 3,20,436/- towards the notional loss incurred by the Government due to the non-payment of kist amount by the appellant during the excise year and also proposed to initiate attachment proceedings, in case of failure to remit the amount demanded within seven days therefrom. 2. 5. Being aggrieved, the appellant preferred w. P. No. 14148 of 1989 for issue of a writ of Certiorarified Mandamus to call for the records of the respondents in Na. Ka. P1/772/83, dated 10. 8. 1989 and to direct the respondents to refund the sum of Rs. 1,24,950/- owing to him. 2. 6. The learned Single Judge, by order dated 14. 7. 1998 made in W. P. No. 14148 of 1989, taking note of the facts that even though as early as by proceedings Rc. P2/772/83, dated 8. 8. 1983 the respondents have informed the appellant that the site selected by him could not be licenced and thereby asked him to locate an unobjectionable site, the appellant had chosen to take the risk of locating the shop in an objectionable place and therefore, got himself trapped in a civil litigation, upheld the impugned demand and dismissed the writ petition. Hence, this writ appeal.

(3.) WE have given careful consideration to the submissions of both sides.