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TMI Blog1994 (7) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... der system, Accordingly, the Government framed Tamil Nadu Liquor (Retail Vending) Rules 1989 by G.O. Ms. N, 506 Home (Prohibition) dated 15.4.1989. In the auction, the successful bidder was granted the licence to carry on the business of vending I.M.F.S. in retail in their respective shops. The licence was valid for a period of one year. Under the said Rules, it was provided for a renewal of the licence for two successive years on the licensee offering to pay 15% and 10% respectively more than the privilege amount at which the sale was confirmed in his favour during the previous years. Rule 13 contained all these clauses. Under Rule 14(3), a provision was made that it was open to the Licensing Authority to refuse the renewal by an order recording the reasons for refusal. However, before such refusal, the Licensing Authority was obligated to give a reasonable opportunity to the licensee of being heard. The successful bidders obtained licences for the year 1989-90 and carried on the business. Most of them obtained renewal for the subsequent excise year 1991-92. The Government issued orders in G.O. Ms. No. 90 Prohibition dated 21.4.1992 to the effect that fresh auction may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntitled to apply for and obtain a Bar licence on payment of a licence fee and the privilege amount ranging from ₹ 18,750 to ₹ 75,000 depend-ing upon the area in which the shop was located. The case of the appellant is, in order to obtain the privilege of vending I.M.F.S. in retail for the excise year 1992-93, the members of the first appellant Association increased their offer. This huge offer was to enable them to have a bar attached and thereby increased the volume of sale of liquor. On obtaining licences under retail vending rules, the members of the Appellant association spent considerable sums of money for acquiring the adjoining premises to locate the Bar in accordance with the Bar Rules, They were carrying on business in accordance with the rules with the fond hope of making good the investment and also earn a profit during the period to come. It appears that the Government received various complaints. The drinking in the Bars led to law and order problem. Therefore, by impugned G.O. Ms. No. 44, Prohibition and Excise dated 3.3,1993, the Tamil Nadu Liquor (Retail Vending in Bar) Rules 1992 were rescinded with effect from 1.6.1993. The said G.O. was challeng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rescue of the appellants. No doubt, the State can change its policy but it cannot be done arbitrarily as held in the above cases. Raising a hope in the retail vendors that they would be allowed to carry on vending in .Bars, renewal being a matter of course, suddenly to deny that privilege is arbitrary. A privilege once accrued cannot be taken away. This is a clear implication of Section 8(3) of the Tamil Nadu General Clauses Act, More so, in a case like this where the Rules are prospective in nature such a legitimate expectation cannot be denied. Section 4 of the Tamil Nadu General clauses Act does not, in any way, militate against the operation of Section 8. If retail vending of liquor is permitted there cannot be anything wrong in selling the same liquor in the Bar. Lastly, the learned counsel cites R. Vijaykumar v. The Commissioner of Excise, JT (1993) 6 S.C.325 and submits that even in policy matters Article 14 of the Constitution will apply. Mr. R.K. Garg, learned counsel, appearing for the appellants in C.A. No. 4982 of 1994 arising out of SLP(C) No. 9957 of 1993 submits as follows: The Prohibition Act provides for complete prohibition. However, the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unfounded apprehensions relating to law and order. It is violative of Article 14 of the Constitution because - (i) It is destructive of the principles of natural justice ; (ii) it is not based on relevant considerations and fair determination of changed circumstances justifying prejudice and injury to the lawful interest of the retail vendors; (iii) No damage to public policy is established requiring all Bars had to be closed. In support of the above submissions Mr. R.K. Garg, learned counsel, cites State of M.P. v. Nandlal Jaiswal, [1986] 4 SCC 566. On the strength of this ruling it is submitted that an integrated policy cannot be broken. On the question of legitimate expectation reliance is placed on Council of Civil Service Unions v. Minister for the Civil Service, (1984) 3 All ER 935, Mr, G.L ;Sanghi, learned counsel, appearing for the State of Tamil Nadu traces the history relating to prohibition in Tamil Nadu. On 16th of July, 1991, the present Government, as a first step towards implementation of total prohibition policy in the State, brought complete prohibition in relation to manufacturing and trading of country liquor. This was done because the State took ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmunity from the doctrine of promisory estoppel and there is no obligation to act fairly and justly, reliance is placed on Vasantkumar Radhakishan Vohra v. Board of Trustees of the port of Bombay, [1991J 1 SCC 761. The next submission of the learned counsel is, legislative action whether plenary or subordinate is not subject to natural justice. It has been so laid down in Union of India v. Cyhnamide India Ltd., AIR (1987) SC 1802. To the same effect in Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, [1985] 2 SCR 287 at page 347. The principle that subordinate legislation cannot be questioned on the ground of violation of the principle of natural justice, has been reiterated. In the case of liquor vending licences one can expect to have renewal on payment of 15 per cent or 10 per cent, as the case may be. But in a Bar licence there is no possibility of renewal of the privilege because Rule 6(l){c) States ; A privilege .amount as may be fixed by the Government in this behalf. If, therefore, it is a privilege no question of right to renewal arises. Lastly, it is submitted that no representation was made. Therefore, the question of promisory estoppel cannot arise. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NOTES : Clause (aa) inserted by Act 68 of 1986 (b) prescribing the powers to be exercised and the duties to be performed by paid and honorary Prohibition Officers in furtherance of the objects of the Act; (bb) prescribing the ways in which the duty under section 18-A may be levied; NOTES Clause (bb) inserted by Act 19 of 1948 (c) Determining the local jurisdiction of police and Prohibition Officers in regard to inquiries and the exercise of preventive and investigating powers; (d) authorizing any officer or person to exercise any power or perform any duty under this Act; (e) prescribing the powers and duties of prohibition committees and the members thereof and the intervals at which the members of such committees shall make their reports ; (f) regulating the delegation by the Commissioner or by collectors or other district officers of any powers conferred on them by or under this Act; (g) regulating the cultivation of the hemp plant, the collection of those portions of such plant from which intoxicating drugs can be manufactured and the manufacture of such drugs therefrom; (h) declaring how denatured spirit shall be manufactured; (i) declaring in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n when such contravention or breach occurred before the date on which the rule or notification is published, as the case may be. NOTES: The proviso s inserted by Act 68 of 1986 (3) All rules made under this Act shall, as soon as possible after they are made, be placed on the table of both the Houses of the Legislature shall be subject to such modifications by way of amendments or repeal as the Legislative Assembly may make within fourteen days on which the House actually sits either in the same session or in more than one session. NOTES : Sub-section 3 added by Act 8 of 1958. 55, Publication of Rules and Notifications, All rules made and notifications issued under this Act shall be published in the Official Gazette and upon such publication, shall have effect as it enacted in this Act. (Emphasis supplied) The operation of the Prohibition Act was temporarily suspended in .August 1971. However, prohibition was re-introduced in August 1972 by abolition of toddy shops and in September 1974 by abolition of arrack shops. Even while the prohibition was enforced the sale of IMFS continued in licenced shops to permit holders. In May 1981, once again sale of toddy and ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s confirmed in the previous year. (2) If a licensee intends to renew the licence for the third year, he shall apply at least 30 days before the date of expiry of the licence for renewal in Form VII after remitting - (i) an application fee of ₹ 100 (Rupees one hundred only); (ii) the licence fee of ₹ 2,500 (Rupees two thousand and five hundred only) and (iii) the privilege amount determined at ten percent centum more then the privilege amount at which the sale of the privilege was confirmed in the previous year. Proviso omitted, (3) If the licensing authority decides not to renew the licence, he may refuse renewal by an order recording the reasons for refusal: (Emphasis supplied) Provided that the licensing authority shall give a reasonable opportunity of being heard to the licensee before such refusal. (4) If a licence is not renewed, the licence fee remitted by the licensee shall be refunded to him, What is important to be noted here is, under Rule 14(3) of the said Rules the Licensing Authority is empowered either to renew or not to renew the licence. Therefore, there is no automatic renewal. These Rules were approved on 15.4.89 by G.O. Ms. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e licence renewed, in Form III...... 3. The licensing authority may refuse the renewal of a licence by an order in writing for reasons to be recorded therein; Provided that the licensing authority shall give a reasonable opportunity of being heard to the licensee before such refusal. It has to be carefully noticed that under Rule 6(1)(c) the privilege amount may be fixed by the State Government in that behalf. Further there is power to refuse renewal; of course, for valid reasons subject to right of appeal and revision under Rules 16 and 17. On 4th February, 1993 the Governor of Tamil Nadu made the following address: Prohibition as a key issue of State Policy is a Constitutional directive. Honourable Members of the House are aware that the Government, under the leadership of the Chief Minister Dr, J. Jayalalitha, implemented as its first decision the abolition of cheap liquor shops throughout the State, in keeping with its announced policy of prohibition, although this involved an annual loss of revenue of ₹ 390 crorcs. The drive against bootlegging and illicit liquor was intensified with the formation of the Prohibition Enfor- cement Wing. The Chief Minister s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... short Retail Vending Rules) and Tamil Nadu Liquor (Retail Vending in Bar Rules, 1992 (for short Bar Rules ) form an integral scheme? 2, Whether the appellants can claim the benefit of the doctrine of legitimate expection? 3, Whether under the impugned G.O. by rescinding of the Bar Rules- (a) The State has not acted fairly; (b) violation of Article 14, the action being arbitrary? 4. Whether the appellants could claim the benefit of Section 8 of the Tamil Nadu General Clauses Act? Point No. 1: In view of what is stated above, it is clear that privilege of retail vending could only be under licence. Such a licence is obtained after a successful bid. The mere success in the bid does not ensure the privilege. Still, as seen above, even after the confirmation of sale the auction pur- chaser will have to apply in form No. VI to the Licensing Authority for the grant of licence along with the requisite fee. It is only after the Licensing Authority is satisfied as to the suitability of the auction procedure for the grant of licence, such a licence is granted. The period of licence is one year. No doubt, Rule 14 provides for renewal on payment of 15 per cent Chan the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ividual being given a hearing. On occasions, individuals seek to enforce the promise of expectation itself, by claiming that the substantive benefit be conferred. Decisions affecting such legitimate expectations are subject to judicial review. In Council of Civil Service Unions v. Minister for the Civil Service, [1984] 3 All ER 935 at pages 943-44 it is stated thus : But even where a person claiming some benefit or privilege has no legal right to it, as a matter of private law, he may have a legitimate expectation of receiving the benefit or privilege, and, if so, the courts will protect his expectation by judicial review as a matter of public law. This subject has been fully explained by Lord Diplock in O Reilly v. Mackman, [1982] 3 All ER 1124 = (1983) 2 AC 237 and I need not repeat what he has so recently said. Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue. Examples of the former type of expectation are Re Liverpool Taxi Owners Association [1972] 2 All ER 589, (1972) 2 QB 299 and A-G of Hong Kong v. Ng Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons and assurances, see R v. A-G, ex p ICI pic, [1986] 60 TC I; Rv. HM Inspector of Taxes, Hull, ex p Bnmfteld, [1988] Times, 25 November; and R v. IRC, ex p MFK Underwriting Agencies Ltd., [1989] Times, 17 July; of Re Preston, [1985] AC 835, [1984] 2 All ER 327, HL.) including an implied representation, [R v. Secretary of State for the Home Department, ex p Khan, [1985] 1 All ER 40, [1984] 1 WLR 1337, CA (setting out criteria for exercise of discretion in guidance letter given to prospective adoptive parents of children requiring entry clearance led to legitimate expectation that clearance would be granted where those criteria were satisfied. See also R v, Powys County Council, ex p Howner [1988] Times, 28 May; and R v. Brent London Borough Council, ex p Macdonagh, [1989] Times 22 March. In R v. Brent London Borough Council, ex p gunning, [1986] 84 LGR 168 the court appears to have relied in part on what were in effect express or implied representations by the Secretary of State (contained in departmental circulars) that there would be consultation, although the duty to consult was being imposed upon the local authority.] or from consistent past practice. O Reilly v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arratt (Guildford) Ltd, [1988] Times 3 April; and see R v. Secretary of State for the Home Department, ex p Ruddock supra. or it may mean that, if the authority proposes to defeat a person s legitimate expectation, it must affirm him an opportunity to make representations on the matter. A-G of Hong Kong v. Ng Yien Shiu, [1983] 2 AC 629 = [1983] 2 All ER 346, PC; Council of Civil Service Unions v. Minister for the Civil Service, [1985] AC 374, [1984] 3 All ER 935, HL; R v. Secretary of State for the Home Department, ex p Khan, [1985] 1 All ER 40, [1984] 1 WLR 1337, CA, Sometimes the expectation will itself be of consultation or the opportunity to be heard; R v. Liverpool Corpn., ex p Liverpool Taxi, Fleet Operators Association, [1972] 2 QB 299, [1972] 2 All ER 589, CA; A-G of Hong Kong v. Ng Yien Shiu supra; Council of Civil Service Unions, v. Minister for the Civil Service supra; and see Ltyod v. McMahon, [1987] AC 625 at 715 1 All ER 1118 at 1170-1171, HL, per Lord Templeman (legitimate expectation is just a manifestation of the duty to act fairly). But the scope of the doctrine goes beyond the right to be heard; R v. Secretary of State for the Home Department, ex p Rudd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licence is revoked. But good administration demands their observance in other situations also , where the citizen may legitimately expect to be treated fairly. As Lord Bridge has explained : Re Westminister CC, (1986) AC 668 at 692, Lord Diplock made a formal statement in the Council of Civil Service Unions case (below) at 408, saying that the decision must affect some other person either - (a) by altering rights or obligations of that person which are enforceable by or against him in private law; or (b) by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him more rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. This analysis is classical but certainly not exhaustive : R v. Secretary of State for the Environment ex. p. Nottinghamshire CC, [1986] AC 240 at 249 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... JT (1992) 6, 259 at 264 this Court observed thus : The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due con-sideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant s perception but in larger public interest wherein other more important considerations may outweight what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this matter would satisfy the re-quirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal sys ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drivers had habitually offended against airport byelaws, with many convictions and unpaid fines, it was held that they had no legitimate expectation of being heard before being banned by the airport authority. There is some ambiguity in the dicta about legitimate expectation, which may mean either expectation of a fair hearing or expectation of the licence or other benefit which is being sought. But the result is the same in either case; absence of legitimate expectation will absolve the public authority from affording a hearing. (emphasis supplied) Again, at pages 56-57 it is observed thus : A case of legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfill. The protection is limited to that extent and a judicial review can be within those limits. But as discussed above a person who bases his claim on the doctrine of legitimate expectations, in the first instance, must satisfy that there is a foundation and thus has locus standi to make such a claim. In considering the same several factors which give rise to such legitimate expectation must be present The decision taken b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the court is expected to apply an objective standard which leaves to the deciding authority the full range of choice watch the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the court will not interfere on the ground of procedural fairness to a person whose interest based on legitimate expectation might be affected. For instance if an authority who has full discretion to grant a licence and if he prefers an existing licence holder to a new applicant, the decision cannot be interfered with on the ground of legitimate expectation entertained by the new applicant applying the principles of natural justice, It can therefore be seen that legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the granting of relief is very much limited. It would thus appear that there are stronger reasons as to why the legitimate expectation should not be substantively protected than the reasons as to why it should be protected. In other words such a legal obligation exists whenever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-building certificate, some kind of a right (even though one that might be defeated) to such a certificate was then acquired by the lessee. Their Lordships cannot accept this view. After the director gave notice of his intention to issue a certificate, there could have been no giving of it until certain conditions were satisfied. The lessee was under obligation to give notices as required by s.3B(l). Had there been no appeals by tenants and sub- tenants and had the time for appeals expired, the director would then have been in a position to give a certificate. Had those been the circumstances than inas-much as the director had indicated what his intention was, doubt- less he would in fact have given his certificate. But the ordinance did not impose an obligation on the director to give a certificate in accordance with his declared intention unless and until certain conditions were satisfied. Though, in the events that happened, this point does not call for decision, it would not seem that, in any circumstances, any right to a certificate could arise at least until, after notices given, the time for appeals by tenants and sub-tenants went by without there being any appeal. In a ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise of the same powers under Sections 17-C, 17-D, 21 and 54 of the Prohibition Act. Therefore, this is a case of legislation. The doctrine of legitimate expectation arises only in the field of administrative decisions. If the plea of legitimate expectation relates to procedural fairness there is no possibility whatever of invoking the doctrine as against the legislation. However, Mr. K. Parasaran, learned senior counsel relies on Supreme Court Advocates-on-Record Association v. Union of India, [1993] 4 SCC 441. At page 703 what is stated is this : Due consideration of every legitimate expectation in the decision making process is a requirement of the rule of non-arbitrariness and, therefore, this also is a norm to be observed by the Chief Justice of India in recommending appointments to the Supreme Court. Obviously, this factor applies only to those con-sidered suitable and at least equally meritorious by the Chief Justice of India, for appointment to the Supreme Court. This principle of non-arbitrariness cannot apply to a change of policy by legislation. Concerning the applicability of non- arbitrariness and change of policy learned counsel has cited R. Vijaykumar v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On the facts and circumstances of a case , a subordinate legislation may be struck down as arbitrary or contrary to statute if it fails to take into account very vital facts which either expressly or by necessary implication are required to be taken into consideration by the statute or, say, the Constitution. This can only be done on the ground that it does not conform to the statutory or constitutional requirements or that it offends Article 14 or Article 19(l)(a) of the Constitution, It cannot, no doubt, be done merely no the ground that it is not reasonable or that it has not taken into account relevant circumstances which the Court considers relevant. The same principle is reiterated in Union of India v. Cynamide India Ltd., AIR (1987) SC 1802 which is referred to with approval in H.S.S.K. Niyami v. Union of India, AIR (1990) SC 2128. When the State has received complaints that the consumption of liquor in bars resulted in law and order problems, womanfolk being harassed, certainly, in public interest it could take a decision to repeal the grant of Bar licences. There is nothing unreasonable. It is not necessary as Mr. Garg contends that a committee ought to have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses Act preserves or protects are the rights acquired under the repealed Act. In other words, the petitioners licence for the period upto 31-5-1993 remained undisturbed or unaffected by the impugned G.O, It is not as if the same right or privilege can operate beyond 31. 5. 1993 as though by an order of renewal. If the right or privileges cannot on its own force is subsist when the impugned G.O. comes into force the provisions of Section 8 of the Tamil Nadu General Clauses Act cannot give a fresh lease of life to such right or privilege or alter the period of its validity. Hence, the contention based on the provisions of the General Clauses Act has to fail. We are in entire agreement with this line of reasoning. In this connection, the reliance placed by the learned Additional Solicitor General on Indira Sohanlal v. Custodian of Evacuee Property, Delhi, [1955] 2 SCR 1117 is fully justified. At page 1118 it is stated thus: (iv) that the scheme underlying s,58(3) is that every matter to which the new Act applies has to be treated as arising, and to and to be dealt with, under the new law except in so far as certain consequences have already ensued or acts have been complet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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