ORDER
Sathiadev, J.
1. This appeal is preferred by petitioner in W. P. No. 13918 of 1988 which was filed to quash the communication dated 10-11-1988 of the second respondent-Tamil Nadu State Marketing Corporation Limited, Madras and direct it to finalise the offers already submitted on 16-9-1988 in regard to the purchase of IMFS products by the second respondent. Pending disposal of the writ petition, it filed W.M.P. No. 20835 of 1988 to injunct the second respondent from purchasing and accepting delivery of IMPSProducts from local manufacturers in the State of Tamil Nadu alone on the learned Judge by order dated 23-12-1988 dismissing the said petition along with smilarly filed W.M.Ps., this writ appeal is preferred.
2. In the writ petition, which is also taken up for hearing along with the writ appeal, it is stated as follows :
Petitioner is one of the five largest Companies in India producing' Indian Made Foreign Spirits (hereinafter referred to as IMPS). Till 1982 such products were freely available in Tamil Nadu. It was on aud from 1-7-1983, the wholesale purchase was taken over by second respondent and thereafter petitioner-Company could not sell its products in Tamil Nadu. Prohibition was re-imposed in Tamil Nadu by Amendment Act 33 of 1986, which came into force on 1-1-1987, in and by which, second respondent was conferred with exclusive privilege of wholesale purchase of IMFS products and selling them to retail dealers. Tamil Nadu Indian Made Foreign Spirits (Supply by Wholesale) Rules, 1983 (hereinafter referred to as the Rules) enabled second respondent to purchase the required supply of IMFS products from the manufacturers in Tamil Nadu and their collaborators. No guidelines were issued for choosing the local manufacturers. One of the five local manufacturers abruptly stopped supply of popular brand of IMFS without notice to second respondent. Very often they failed to honour the indents for Beer during peak season. The consumers also denied of wide range of products manufactured all over the country. The five Tamil Nadu manufacturers formulated their own price according to their whims and fancies, and second respondent had no other alternative but to simply purchase products to their dictates. It paid the local manufacturers a price very much higher than what is paid for the same brand of products by Delhi Administration and Canteen Stores Department. A comparative table of prices of IMFS in other States filed by petitioner would show that the second respondent had been paying higher prices to local manufacturers. Tamil Nadu is one of the States producing large quantity of IMPSproducts at the lowest cost, because of availability of raw materials within the State, in spite of it, the five manufacturers are making huge profits by charging disproportionately high rates compared with the rates in neighbouring States like Karnataka, Kerala and Andhra. On finding that this monopoly had created vested interests, and that corruption had crept in; as a first step, tenders were called for from local manufacturers by 4-7-1988 and it was extended up to 11-7-1988. Petitioner sent its representations on 11-7-1988 and 28-7-1988 stating that calling for tenders should not be confined to local manufacturers, hut should be extended to all manufacturers in the country. In spite of negotiations, since the local manufacturers were unrelenting and offered only a marginal reduction in prices, notices were issued by the second respondent on 1-9-1988 inviting tenders for entering into rate contract for supply of IMFS products, from reputed manufacturers all over the country, for a period of one year from l-10-1988. The last date for submitting tenders was fixed as 16-9-1988. As per clause 13 of the terms and conditions of the notice, the offer would be kept valid for 60 days, and each of the applicants should furnish an Earnest Money Deposit of Rs.5,00,000/-. Forty four offers were received from all over the country including local manufacturers and they were opened on 16-9-1988. The Chairman and Managing Director of the second respondent announced the prices quoted by each one of the 44 manufacturers. It was found that the prices offered by all the local manufacturers for comparable products were much higher than what were quoted by the distilleries outside the State. In the same evening, the Chairman invited each offerer to appear before the Negotiating Committee, and accordingly, each offerer appeared before the Committee, and the last date for negotiation was held on 21-9-1988. In the meanwhile, on 16-9-1988, one Murthy, a retail dealer filed W.P. No. 10647 of 1988 for issue of a Writ of Declaration declaring that Rule 16 of the Rules is ultra vires. He also filed W.P. No. 10648 of 1988 for issue of a writ of Mandamus to forbear the second respondentfrom further proceeding with the tender notice issued in May, 1988. Interim injunction was granted by this Court. Hence, petitioner filed W.P. No. 12226 of 1988 for issue of a writ of Mandamus directing the second respondent to implement Rule 16 and finalise the tenders submitted by the offerers. A petition was filed to vacate interim injunction granted in W.P. Nos. 10647 and 10648 of 1988. Certain wholesale manufacturers also filed W.P. Nos. 13056 and 13057 of 1988 for declaration that Rule 16 is ultra vires of the Constitution and they were also admitted. After representations were made by learned Advocate General that the Government is to reconsider the matter, no order was passed by the learned Judge in the concerned petitions, and the matter was posted to 11-11-1988. In the meanwhile, the impugned communication was received stating that the offer made by the petitioner is rejected. Hence the writ petition had to be filed.
3. Counter-affidavits were filed by respondents 1 and 2 in W.M.P. Nos. 20835 to 20838 of 1988 in W.P. Nos. 13918 So 13921 of 1988, but since the main writ petition along with other W.Ps. and this writ appeal were heard together; it will be just and proper to refer to the counter-affidavit filed by respondents 1 and 2, in W.P.Nos. 12884 of 1988,etc.
4. First respondent would state that the wholesale trade in IMFS products were taken over by Government in July, 1983, and the second respondent-Corporation (TASMAC) (hereinafter referred to as Corporation) a fully owned State Undertaking was set up on 1-6-1983. It was given the exclusive privilege to deal in arrack and IMFS products. The sale of arrack was discontinued on 1-1-1987 pursuant to a policy decision of the Government. Corporation has been buying stocks of seven Companies from five IMFS manufacturers in the State and from their technical collaborators in other States. It was buying products at prices which were fixed after negotiation with the manufacturers. It has since found that there has been shortcomings in its purchase policy viz.,
'(1) The prices offered by the local manufacturers were comparatively higher;
(ii) All of a sudden one supplier discontinued the supply of two popular brands of products even without informing the Corporation;
(iii) Inadequate or non-supply of stocks when they were badly needed.'
In June, 1988, a decision was taken by the Government to obtain limited sealed tenders from the local manufacturers and it was also decided that a Tender Negotiation Committee should hold negotiations with the tenderers and finalise the terms and conditions of supply. It was in June, 1988, limited tenders were received from five local manufacturing units, and negotiations were held by the Committee with them on 16th and 25th July, 1988. As they had offered to reduce the price marginally, another round of discussions took place, but they were not responding for further reduction of prices. Hence, it was decided to call for rate contract on All India basis by advertisements in newspapers. On 1st and 2nd September, 1988, advertisements were published in the Press and last date for receipt of tenders was fixed as 16-9-1988. There were 44 offers received from all over the Country, and the tenders were opened on 16-9-1988, and it was then decided to negotiate with all of them, and a report was sent to Government on 22-9-1988. One retailer by name Murthy filed W. P. Nos. 10647 and 10648 of 1988 challenging the validity of Rule 16, and in view of the interim orders passed by this Court, an immediate decision could not be taken. It was on 4-11-1988, the High Court permitted the Government to reconsider the whole issue. It was then decided that the dominant objective should be the encouragement of local manufacturers to maximise local employment, maintain continuity in the supply pattern, utilise locally produced molasses and rectified spirits to the maximum extent, which would fetch substantial additional revenue, etc. Local manufacturers in the meantime, improved their production and were in a position to supply. They also came forward to reduce the prices distinctly lower than earlier offered by them, before the Negotiation Committee. It was then G.O.Ms. No. 1910,Prohibition and Excise (iii), dated 10-11-1988 was issued directing the Corporation under R. 16(1) to drop further action on the tenders called for by the Corporation, Hence, it issued the impugned communication dated 10-11-1988 rejecting the offer and returned the Earnest Money Deposit to each of the tenderers. This resulted in W.P. Nos. 13918 to 13921 of 1988 being filed challenging the reject ion of tenders. Petitioner and two others also filed W.P. Nos. 514 and 515 of 1989 to declare Rule 16 as ultra vires and to quash G.O.Ms. No. 1910, P&E;(III), dated 10-11-1988.
5. I hereafter, the counter-affidavit refers to the steps taken by the Government to prevent leakages in the Excise Revenue, which was taking place earlier and about the decision taken to streamline the procedure for purchase and distribution of IMFS Products. G.O.Ms. No. 12, Prohibition and Excise, dated 1-5-1981 was issued fixing Excise Duty at Rs. 8/- per proof litre under S. 18-B of Tamil Nadu Prohibition Act 1937 (hereinafter called as Act) and vend fee of Re. 1/-under Rule 6 of the Tamil Nadu Distillery Rules, 1981 on rectified spirit supplied to them for manufacture of IMFS. It was by G.O.Ms. No. 753, Prohibition & Excise, dated 2-9-1983, Government had exempted IMFS manufacturers from payment of above levies. Accountant-General had pointed out the error therein and therefore, G.O.Ms. 921, Prohibition & Excise, dated 24-7-1986 was issued granting retrospective effect to the exemption from 29-5-1982. But, the Government had since issued G.O.Ms. No. 218, Home and Prohibition and Excise, dt. 14-2-1989 cancelling the exemption; and the anticipated revenue on account of this would be Rs. 23 erores per annum. Normally, the manufacturer or the seller alone has to pay excise duty in the first instance, and sales tax has to he paid on the excise duty: but the Government had amended the Rule by issuing G.O.Ms. No. 711, Home, dated 4-10-1982 and made this Corporation to pay excise duty at the time of removal of stocks by the manufacturer. This has resulted in loss of sales tax as well. Therefore, G.O.Ms. No. 207, Home and Prohibition and Excise, dt. 13-2-1989 was issued amending the Rule, so that it is the manufacturers who should pay the excise duty. Till 14-2-1989, prices of these products, at wholesale and retail stages were not statutorily fixed. They are fixed by Corporation after negotiations with the manufacturers. First respondent further stales :
'..... the reasonableness of the various components of production cost were not gone into. The wholesale price was fixed by the TASMAC after providing for it a reasonable margin. Retail selling price to consumer or retailer's margin was not fixed .....'
On review of the Positions which have hitherto prevailed, it has since been decided to fix the prices for all the three stages, so as to ensure reasonableness. A decision is taken to fix prices statutorily G.O.Ms. No. 217 and 315, Home and Prohibition and Excise, dated 14-24989 and 3-3-1989 were respectively issued, to empower the Commissioner of Prohibition and Excise to fix the prices at three stages to deal with these products. A Committee has to be constituted which would examine the various components of cost of production such as the cost of labour, cost of empty bottles, corks, caps, packing materials, card board boxes apart from the contents and ingredients of the product, reasonable margin for the manufacturer and fix the prices of IMFS and Beer in a scientific manner at manufacturing stage. This will prevent the manufacturers dictating the selling prices of their products. Further, excise duty had since been increased from Rs. 25/- to Rs, 55/- per proof litre by G.O.Ms. No. 299, Home and Prohibition and Excise, dated 28-2-1989 and the expected revenue would be Rs. 80 erores. At present, in Tamil Nadu, only five manufacturers have been licensed to manufacture IMFS, and a decision had been taken not to grant new licences to private sector, and the Corporation is to set up two units for their manufacture. From licences and privilege fee, Rs. 4 crores is being collected. It is proposed to giant the privilege for retail vending by auction, on and from 1-6-1989. If circumstances warrant, the State would not hesitate to deal with the situation and certainly would take appropriate legal steps and get the stocksfrom outside the State. No manufacturer could ever compel the Corporation to butt its requirements from it. If the local units are not enable to supply the products, it would result in unemployment, and molasses produced in 8 distilleries in the State will not be fully utilised, and that, there will be a loss of excise revenue to the extent of Rs. 23 crores, if the same is not utilised for the manufacture of rectified spirit, which is the raw material for manufacture of IMFS products. Neither Art. 19 of the Constitution could be invoked nor there has been any violation of Arts. 14 and 301 of the Constitution, in respect of what the Government and the Corporation had done so far. Local manufacturers form a separate class, when compared to outside manufacturers. No manufacturer has a right to compel anyone to buy his stock. Being a limited Company, it cannot invoke Art. 19. The claim that promissory estoppel will apply, is without any force. Local manufacturers cannot dictate terms to the respondents, because under Rule 16, the Corporation could at any time purchase products from outside State, and hence, the claim that the said Rule is invalid, is not correct. The activity in liquor will not fall within the scope and expression 'Trade, Commerce and Intercourse' in Arts. 301 to 304 of the Constitution, and therefore, G.O.Ms. 1910, Prohibition and Excise (III) dated 10-11-1988 does not suffer from any of the alleged infirmities. Hence, the writ petition is liable to be dismissed.
6. Second respondent has more or less taken the same stand and would point out that, when the offers for the tenders called for in July, 1988 were considered by the Negotiating Committee, it was found that prices offered to the Corporation when compared with the prices quoted in respect of supplies made to Delhi Administration, differed widely for comparable products; and that led the Government to take a decision on 26-8-1988, to invite offers from manufacturers all over the country by advertisement in dailies on 1-9-1988, and that it would be a rate contract for supply for a period of 12 months from 1-10-1988. First respondent decided that if the local units on their own volition comeforward to offer prices comparable to prices prevailing in Delhi well before 1-9-1988, they could do so to enable the Government 'to take a view with the objective of according a preferential treatment to the local units'. This decision was communicated to the five local units on 26-8-1988, but there was no response from them. Therefore, advertisements were made as stated by the first respondent, and out of 96 distillieries/breweries which collected documents, 44 offers were received by 3.00p.m. 16-9-1988. Negotiations were held with them, and a report was sent to the Government on 22-9-1988. In the meanwhile because of the filing of the writ petition in the High Court as above referred to, the purchase policy was considered by first respondent afresh. Taking note of the factors mentioned in G.O.MS. No. 1910, Prohibition and Excise (III) dated 10-11-1988, it was decided to drop further action on the tenders called for by the Corporation during May-September, 1988 and get the stocks of IMPS and Beer only from manufacturers within the State. It is not the price alone which would be the criteria because several factors such as utilisation of locally produced molasses to the maximum extent, encouragement of local distillery units in the State with a view to maximise local employment, etc., have also to be considered. Reduced rates have now been offered by local manufacturers. There could be no comparison to prices charged to Canteen Stores Department or Delhi Administration, because they are for different brands. Even the petitioners have not come forward with lower prices compared to the prices for same brands which they are supplying to Delhi Administration. The entire requirements in the State could be fully met by the manufacturing units in this State. Only because the prices offered by them were not competitive, offers were invited by advertisement, and the expected result of checking up the prices charged by local manufacturers, cause to be achieved by resorting to such a procedure. There is no question of any arbitrary action or power exercised by respondents, as claimed. Offers were invited incorporating a condition that rejection of all or any of the offers received would be withoutassigning any reasons. Hence, the writ petitions are liable to be dismissed.
7. Certain Appendices have been filed disclosing the comparative rates quoted by different manufacturers with what they have quoted to the Delhi Administration. They go to show that the rates quoted by them were higher than the statutory rates fixed at Delhi, at which they are still supplied.
8. The first point taken by Mr. M. N. Padmanabhan, learned Counsel for the petitioner-Company is that, trade in liquor also comes within Art. 19(1)(g) of Constitution which deal with freedom of trade or business, because once sale of liquor is petmitted by the State, it could result in a trade being carried on subject to certain reasonable restrictions under Art. 19(6), and if the restrictions conceived by it are unreasonable, then by applying Art. 19(1)(g), the unreasonable restriction could be removed. It was also contended that, even though petitioner is a 'Company' incorporated under the Companies Act, it is a 'citizen' entitled to invoke Art. 19.
9. Learned Advocate-General appearing for respondents, submits that Art. 19 is unavailable to petitioner, in view of the Decisions rendered in : [1964]6SCR885 and : [1981]3SCR662 .
10. In S. T. Corpn. of India v. Commrcl. Tax Officer, AIR 1963 SC 1811 it was held, that, the State Trading Corporation, a Company registered under the Indian Companies Act, is not a 'citizen' within the meaning of Art. 19 of the Constitution, and it cannot ask for the enforcement of fundamental rights granted to citizens under the said article. In Divisional Forest Officer v. Bishwanath Tea Co. Ltd., : [1981]3SCR662 , when a company registered under the Companies Act, based on a lease deed executed between it and the Secretary of State of India, invoked Art. 19(1)(g) of the Constitution, in paragraph 7 therein, it was held that it being not a citizen and it being a juristic person, it is not a citizen and therefore, not entitled to complain breach of violation of the fundamental right under Art. 19(1)(g). In Tata Engineering v.State of Bihar, : [1964]6SCR885 , after pointing out that there are exceptions to the rule that a Corporation or a Company has ajuristic or legal entity and that the concept of lifting the Veil of a Corporation and examining its face has been applied in many cases; the Supreme Court held that the same does not apply to the case before it, in that, Tata Engineering and Locomotive company Limited cannot maintain a petition under Art. 32, even though one or two shareholders have joined, and that fundamental rights guaranteed under Art. 19 cannot be invoked by it, because it is not a citizen. Again in Barium Chemicals Ltd. v. Company Law Board, : [1967]1SCR898 , it was held that a Company is not a citizen and cannot claim benefit of Art. 19(1)(g). In Amritsar Municipality v. State of Punjab, : [1969]3SCR447 , it was held that Municipal Committee is hot a citizen within the meaning of Art. 19, and therefore, not entitled to claim protection of any of fundamental rights under the said Article. But in D.C. & G. M Co. Ltd, v. Union of India, : [1983]3SCR438 , a Bench consisting of three learned Judges of the Supreme Court, observed that, the preliminary objection regarding maintainability of the writ petitions filed under Art. 32 and those filed under Art. 226 of the instance of Delhi Cloth and General Mills Co. Ltd. on the ground that it being an incorporated company, it cannot invoke Art. 19 has to be overruled by stating as follows (at p. 943 of AIR):
'.... Thus apart from the law being in a nebulous state, the trend is in the direction of holding that in the matter of fundamental freedoms guaranteed by Art. 19, the rights of a shareholder and the company which the shareholders have formed are rather coextensive and the denial to one of the fundamental freedom would be denial to the other. It is time to put an end to this controversy, but in the present state of law we are of the opinion that the petitions should not be thrown out at the threshold. We reach this conclusion for the additional reasons that apart from the complaint of denial of fundamental right to carry on trade or business, numerous other contentions have been raised which the High Court had to examine in apetition under Art. 226. And there is a grievance of denial of equality before law as guaranteed by Art. 14. We accordingly overrule the preliminary objection and proceed to examine the contentions on merits.'
In the State of U.P. v. Ram Chandra Trivedi, : (1977)ILLJ200SC it has been held that only the decision of the larger bench will prevail. The Constitution Bench having taken the view that a company like that of petitioner cannot invoke Art. 19(1)(g), and the last of the decisions above referred to having only expressed the view that trend of thinking could be different; this Court has to proceed on the basis that petitioner being a Company, it is not a citizen, and hence is not entitled to invoke Art. 19(1)(g) of the Constitution of India.
11. Yet another hurdle for the petitioner is in relation to the nature of trade carried on by it. It deals with intoxicating liquor, and it being a noxious articles, it cannot be treated as trade or commerce, and as held in State of Bombay v. R.M.D. Chamarbaugwala, : [1957]1SCR874 , dealing in goods which are 'Extra Commercium' is not permissible, and therefore, there is no fundamental right to carry on trade in liquor, and in turn, the question of imposing reasonable restriction does not arise.
12. Mr. M.N. Padmanabhan, learned Counsel for the petitioner, relied upon the judgments of five Constitution Benches of the Supreme Court in State of Bombay v. F. N. Balsara, AIR 1951 SC 318; Cooverjee v. Excise Commr., Ajmer, : [1954]1SCR873 ; State of Assam v. A. N. Kidwai. : [1957]1SCR295 ; Krishna Kumar v. State of Jammu and Kashmir, : [1967]3SCR50 and Amar Chandra Chakraborty v. Collector of Excise, Government of Tripura, : [1973]1SCR533 to contend that Art. 19(1)(g) applies to a citizen, when he deals in intoxicants. Even though he had put forth certain contentions that the views expressed in these decisions support his plea that a citizen could claim fundamental rights while dealing with liquor, this Court is not inclined to accept his line of thinking, because the Supreme Court itself has cate- gorically stated, as to how to understand theimpact of these five decisions, in Har Shankar v. Dy. E&T; Commr., : [1975]3SCR254 where in a Constitution Bench held as follows (at Pp. 1030-31 of AIR):
'These unanimous decisions of five Constitution Benches uniformly emphasised after a careful consideration of the problem involved that the State has the power to prohibit trades which are injurious to the health and welfare of the Public, that elimination and exclusion from the business is inherent in the nature of liquor business, that no person has an absolute right to deal in liquor and that all form of dealings in liquor have, from their inherent nature, been treated as a class by themselves by all civilised communities. The contention that the citizen has either a natural or a fundamental right to carry on trade or business in liquor thus stood rejected.'
By making a particular reference to the decision in Krishnakumar v. State of Jammu and Kashmir, : [1967]3SCR50 ; it was pointed out that since, however, the Constitutional validity of S. 20 of Jammu and Kashmir Excise Act, 1958 and not been challenged in the High Court, the Supreme Court assumed, without deciding S. 20 did not infringe Art. 19(1)(g).
Having thus explained as to what had been considered in those five decisions, it has held (at p. 1132 of AIR) :
'.....In our opinion, the true position governing dealings in intoxicants is, as stated and reflected in the Constitution Bench decisions of this Court in Balsara's case (AIR 1951 SC 318), Coverjee's case : [1954]1SCR873 , Kidwai's case : [1957]1SCR295 , Nagendra Nath's case : [1958]1SCR1240 , Amar Chakraborty's case : [1973]1SCR533 and the R.M.D.C. case : [1957]1SCR874 as interpreted in Harinarayan Jaiswal's case : [1972]3SCR784 and Nashirwar's case : [1975]2SCR861 . There is no fundamental right to do trade or business in intoxicants. The State, under its regulatory powers, has the right to prohibit absolutely every form of - activity in relation to intoxicants its manufacture, storage, export, import, sale and possession. In all their manifestations, theserights are vested in the State and indeed without such vesting there can be no effective regulation of various forms of activities in relation to intoxicants.....'
In coming to this conclusion, by making reference to what Das, C.J. held in R.M.D.C. case : [1957]1SCR874 , it was held (at Pp. 1132 of AIR):
'.....With great respect, the reasons mentioned by Das, C.J. for holding that there can be no fundamental right to do trade or business in an activity like gambling apply with equal force to the alleged right to trade in liquor and those reasons may not be brushed aside by restricting them to gambling operations.'
13. In Nashirwar v. State of M.P., : [1975]2SCR861 , it was pointed out by the . Supreme Court ihat the State possesses the right of complete control over all aspects of intoxicants viz., manufacture, collection, sale and consumption, and the nature of trade is such that the State confers the right to vend liquor by farming out either in action or on private treaty, and the rental collected is neither a tax nor an excise duty, but a consideration for the agreement for grant of privilege by the Government.
14. Two learned Judges of the Supreme Court in Sat Pal and Co. v. Lt. Governor of Delhi, : [1979]3SCR651 in dealing with the applicability of Article 19(1)(g) observed that the undisputed position that now emerges is that, there is no fundamental right to do trade or business in intoxicants. Therefore, in the face of so many categoric decisions of the Supreme Court, even assuming that as held in the decision reported in D.C.&G.M. Co. Ltd. v. Union of India, : [1983]3SCR438 , the law on the inapplicability of Art. 19 to Companies incorporated under the Companies Act is in a nebulous state; yet it has to be held that dealing in intoxicants would not be 'trade or business' within Art. 19(1)(g) of the Constitution.
15. The vital point taken by petitioner is with reference to the rights enshrined in part XIII of the Constitution, which ensuresfreedom of trade, commerce and intercourse within the territory of India. It is claimed that, by impugned G.O. Ms. No. 1910, prohibition & Excise, dated 10-11-1988, first respondent having directed the second respondent to buy I.M.F.S. products and beer only from manufacturers within the State of Tamil Nadu, it has resulted in contravention of Art. 301, which reads as follows:
'Subject to the other provisions of this part, trade, commerce and intercourse throughout the territory of India shall be free.'
Even though notwithstanding Arts. 301 and 303, Art. 304 enables the Legislature of a State to make a law so as to impose reasonable restrictions on freedom of trade or commerce or intercourse within that State as may be required in the public interest; an executive order of this nature, would not come within its fold. Hence, he submits that the said G.O. is in direct violation of Art. 301. The first decision from which he derives inspiration for this submission is reported in Atiabari Tea Co. Ltd. v. State of Assam, : [1961]1SCR809 in which the point which arose for consideration was, whether the Assam Taxation (on goods carried by Roads or Inland Waterways) Act 1954, imposing tax on tea carried through the State of Assam, had the effect of interfering with freedom of trade or commerce or intercourse guaranteed under Art. 301 or not. It was held that this article guarantees freedom of trade and commerce with reference to different parts of India and also freedom of movement of goods in relation to their trade and other activities. On a contention put forth that freedom guaranteed thereunder is more comprehensive, in that it confers freedom from all kinds of impediments, restraints and trade barriers including freedom from all taxation; it was held that there is no warrant for such an extreme proposition. It was further held that, it is not correct to characterise it as tax on movement of goods or passengers as necessarily connoting an impediment, or a restraint in the matter of trade and commerce. He then refers to Kalyani Stores v. State of Orissa, : [1966]1SCR865 which deals with Bihar and Orissa Excise Act under which a countervailing dutyhad been imposed on liquor imported into State of Orissa from other parts of India. In State of Orissa, there was no manufacturing unit to produce foreign liquor. It was held that, as no foreign liquor is produced by a manufacturer in that State, the power to legislate under Art. 304 if not available, and the restriction which is declared on the freedom of trade, commerce or intercourse by that Article remains unfettered. It was a case wherein the scope of Art. 304 alone came to be considered, and the point as to whether trading in liquor would amount to trade or commerce, has not come up for consideration. H. Anraj v. Govt. of Tamil Nadu, : AIR1986SC63 is relied upon by him. It dealt with Tamil Nadu General Sales Tax Act, 1959 under which a 20% tax was imposed on lottery ticket at the time of its sale in the State of Tamil Nadu. It resulted in the sale of tickets imported into the State being subject to sales tax, whereas the sale of Tamil Nadu Government Lottery tickets will not be subject to tax, and it was pleaded that there was a discrimination against imported lottery tickets. It was held by the Supreme Court that it tantamounts to discriminatory treatment in the matter of levying sales-tax on imported lottery tickets, which are similar to the one issued by the State Government, so as to hamper free trade, commerce and intercourse, and therefore, violative of Art. 301 read with Art. 304(a) of the Constitution. One other decision relied upon is Indian Cement v. State of A.P. : [1988]2SCR574 which dealt with an order passed under S.9(1) of A.P. General Sales Tax Act, 1957, reducing the rate of tax on sale of cement made by manufacturing units in the State of Andhra Pradesh, and it was then held that no power is vested in the Executive authority to act in the manner which affects or hinders the very essence and thesis contained in the scheme of Part XIII of the Constitution.
16. All these decisions do not deal with the point as to whether the State while dealing with its exclusive privilege in relation to intoxicants, it would be, in the eye of law, a trade or commerce or intercourse? If what State does with regard to intoxicants, is neither trade nor commerce nor intercourse,then there is no question of invoking Art. 301.
17. It is on this crucial point, Mr. Vadivelu, learned Counsel appearing for third respondent in W.P. Nos. 13918 of 1988 and 514 of 1989, in an analytical manner put forth the submissions that, once it is held that intoxicant is a noxious article, and that it is privilege which State parts with, then what follows are not trading activities by the State or by anyone who is permitted to deal with it. In almost every decision, the Supreme Court has categorically held, while dealing with several Excise Acts, that it is an exclusive right or privilege which the State may part with it for consideration. He refers to the decision of the learned Judge in P. A. Aliyar Saheb v. Independent Dy. Tahsildar, Pallipattu, (1975) 88 MLW 383 wherein the various legislations made in this State relating to intoxicating liquor had been referred to and the earliest was by Act 19 of 1952 enacted for securing revenue. In State of Orissa v. Hari Narayan, : [1972]3SCR784 , in dealing with the Bihar and Orissa Excise Act, 1950, it was pointed out that the Government is exclusive owner of the privileges and has the right to control use of intoxicants and the citizens cannot have fundamental right to trade or carry - on business in properties belonging to Government, and that when it tries to get best available price for its valuable rights, there is no inherent right in a citizen to sell intoxicating liquor by retail. Public auctions are held to get the best of price, but when the owner of privileges had offered to sell, it can refuse to accept the highest bid, if the price offered is inadequate and can have recourse to other methods by calling for tenders or resort to negotiations. This power is very wide and discretion is unrestricted, because it deals with privileges.
18. In A. C. Chakraborty v. Collector of Excise, : [1973]1SCR533 , it was observed that trade or business in country liquor has from its inherent nature, been treated by the State and the Society as a Special category requiring legislative control, and it cannot be treated on the same basis as other trades, while considering Art. 14. InNashirwar v. State of M.P., : [1975]2SCR861 , it was held by the Supreme Court, that State has the exclusive right or privilege of manufacturing and selling liquor, and it grants its privilege in the shape of a licence or a lease and it has the power to hold public auction and accept payment of a sum in consideration of grant of lease. There is a police power of the State to enforce public morality by prohibiting a noxious trade, and that trade in liquor has historically stood on a different footing from other trades. Its nature is such that the State confers the right to vend liquor by farming out, either in auction or by private treaty. Rental is the consideration for the privilege granted by the Government for manufacturing or vending liquor. It is neither a tax, nor an excise duty. In Southern Pharmaceuticals and Chemicals v. State of Kerala, : [1982]1SCR519 , it was held that the power to regulate with regard to intoxicating liquor carries with it a power to regularise the manufacture, sale and possession of medicinal and toilet preparations containing alcohol.
19. Mr. K. Vadivelu, learned Counsel would then refer to the provisions of the Tamil Nadu Prohibition Act, 1937 to pinpoint that, when State Government deals with liquor, it was not carrying on trade, business, commerce or intercourse, and that even under the statute it had been made clear that it was dealing with its privilege and no other. S. 17(c) states that it shall be lawful to grant to any person or persons on such conditions and for such period as they may deem fit the exclusive or other privilege of manufacturing Indian-made foreger spirits, or of selling by retail Indian-made foreign spirits within any local area. S. 17B deals with the licence to be issued for manufacture of potable liquor. S. 20 deals with permit and licences, S. 2.1 refers to forms and conditions of licence and permits and S. 22B deals with the licence granted for supplying by wholesale, arrack or Indian-made foreign spirits. R.4 of Tamil Nadu Indian-made Foreign Spirits (Supply by Wholesale) Rules, 1981 also states that, any person who desires to get the grant of any privilege and take a licence for sale by wholesale of bottled liquor, may apply to theCommissioner in the prescribed form. Therefore, these statutory provisions also recognise the grant of privilege by the State in relation to intoxicants, and it had never been treated as trade or business carried on by the State.
20. Learned Advocate-General in his turn relied upon Art. 298 of the Constitution, in trading the power of the State to purchase liquor from the manufacturers and thereafter distribute, it, as provided under the Act and the Rules. The acquisition of the ownership right of the State in intoxicants as and when produced by any one, either under licence or otherwise, has been treated as a privilege. There is no question of any individual acquiring ownership therein, because it is the property of the Government, as held in State of Orissav. Hari Narayan, : [1972]3SCR784 and, again reiterated in Nashirwar v. State of M.P., : [1975]2SCR861 above referred to. Even the illicit liquor manufactured by an individual by any crude process or method, does not belong to him but only belongs to the State. It is this historical origin of the ownership of the Government in this noxious articles, which has led to the recognition of the concept of privilege of the State and to deal with it in any manner it chooses, or prohibit it altogether. Therefore Art. 298 does not come into play. Hence, it is not an article capable or being traded upon, because as held in Har Shanker v. Dy. Excise Officer, : [1975]3SCR254 , it is Extra Commercium and equitable to gambling; although the external forms, formalities and instruments of trade may be employed in dealing with it.
21. In R.M.D.C. case, : [1957]1SCR874 , in dealing with the point as to whether gambling is a trade or business, a definite opinion was expressed that, whatever else may or may not be regarded as falling within the meaning of the words 'trade, business or intercourse' in Art. 301, gambling cannot certainly be taken as one of them. It was also expressed therein;
'..... We are convinced and satisfied that the real purpose of Arts. 19(1)(g) and 301 could not possibly have been to guarantee or declare the freedom of gambling. Gambling activitiesfrom their very nature and in essence are extra-commercium, although the external forms, formalities and instruments of trade may be employed, and they are not protected either by Art. 19(1)(g) or Art. 301 of our Constitution'.
Therefore, what could be treated as trade and business in Art. 19(1)(g) are alone equitable to 'Trade, Commerce and Intercourse' as found in Art. 301. Then, in Har Shankar v. Dy. Excise Officer, : [1975]3SCR254 it is held therein (at p. 1132 of AIR):
'.....With great respect, the reasons mentioned by Das, C. J. for holding that there can be no fundamental right to do trade or business in an activity like gambling apply with equal force to the alleged right to trade in liquor and those reasons may not be brushed aside by restricting them to gambling operations.'
The next main passage is as follows (at p. 1132 of AIR) :--
'In our opinion, the true position governing dealings in intoxicants is as stated and reflected in the Constitution Bench decisions of this Court in Balsara's case (AIR 1951 SC 318), Cooverjee's case : [1954]1SCR873 , Kidwai's case : [1957]1SCR295 , Nagendra Nath's case : [1958]1SCR1240 , Amar Chakraborty's case : [1973]1SCR533 and the R.M.D.C. case : [1957]1SCR874 as interpreted in Hari Narayan Jaiswal's case : [1972]3SCR784 and Nashirwar's case : [1975]2SCR861 . There is no fundamental right to do trade or business in intoxicants. The State, under its regulatory power, has the right to prohibit absolutely every form of activity in relation to intoxicants -- its manufacture, storage, export, import, sale and possession. In all their manifestations, these rights are vested in the State and indeed without such vesting, there can be no effective regulation of various forms of activities in relation to intoxicants. In 'American Jurisprudence' Volume 30, it is stated that while engaging in liquor traffic is not inherently lawful, never the less it is a privilege and not a right, subject to governmental control (Page 538), This power of control is anincident of the society's right to self protection and it rests upon the right of the State to care for the health, morals and Welfare of the people. Liquor traffic is a source of pauperism and crime .....'.
22. In W.A. 317 of 1981, etc. dated 23/12/1981, by a majority decision dated 23-12-1981, a Full Bench of this Court held as follows:--
'Thus, the activity in any liquor is not liable to fall within the scope of the expression 'trade and commerce' and therefore, it cannot also come within the scope of the expression 'industry, trade and commerce''.
23. As pointed out above, once the activity in gambling and the dealing of the State in liquor are equated as 'extra commercium', as held in Har Shankar v. Dy. Excise Officer, : [1975]3SCR254 , under Art. 301, it cannot be treated as trade, commerce or intercourse and cannot be treated that when a State or a citizen deals with, it, it could be treated as trade, commerce or intercourse,
24. Once it is made out that trafficking in liquor is not inherently lawful, and it being a privilege and not a right, and which would be within the regulatory measures of the State while dealing with intoxicants; it cannot be characterised as a 'trade or business or intercourse' within the meaning of Art. 301, and therefore Part XIII of the Constitution would have no relevance regarding it. Hence, G.O. Ms. No. 1910, Prohibition and Excise, dated 10-11-1988 cannot be assailed by invoking Art. 301.
25. The next contention of learned Counsel Mr. M.N. Padmanabhan is that, even if it be held that dealing in intoxicants is not a trade or commerce or intercourse, once the State enacts a legislation and thereunder parts with its privilege by framing certain statutory rules or regulations; then Art. 14 would apply. Then, there, could he no reasonable classification as local manufacturers; when manufacturers of liquor all over the Country form one class. By G.O.Ms. No. 1910, Prohibition and Excise, dated 10-11-1988, a direction having been issued by the 1st respondent to 2nd respondent to buyI.M.R.S. products and beer only from manufacturers within the State of Tamil Nadu, the guarantee conferred under Art. 14 is taken away. There is no nexus to the object that is sought to be achieved, since the purchase is made from collaborators outside the State, on their own showing.
Of the decisions relied upon by him on this aspect, the first one is Guruswamy v. State of Mysore, : [1955]1SCR305 , which does not deal with the applicability or Art, 14.
The next decision which he refers to is Mohanlal v. Swaiman Singhji, : [1962]1SCR702 which dealt with the privileges, rights and dignity of ex-rulers and it was held that once a law is made, based on a further classification of ex-rulers, then, Art. 14 would come into play. In dealing with the nature of powers conferred under Commissions of Inquiry Act, in Ram Krishna Dalmia v. Jistice Tendolkar, : [1959]1SCR279 , it was pointed out that there cannot be an arbitrary or uncontrolled power which could be delegated to an appropriate Government; and on a consideration of the scope of S. 3 of the Act, it was held that the delegation of authority conceived under the Act was not an unguided or uncontrolled one. The setting up of a commission of inquiry must conform to the condition of the Section, i.e., that there must exist a definite matter of public importance into which an inquiry is, in the opinion of the appropriate Government, necessary.
26. The next decision which he refers to is P. N. Kaushal v. Union of India, : [1979]1SCR122 in which while dealing with the provisions of Punjab Liquor Licence Rules, it was held as follows (at p. 1468 of AIR) :
'Another fact of the same submission is that if the provision is an arbitrary armour, the power-wielder can act nepotlstically, pick and choose discriminatorily or gambol goodily. Where a law permits discrimination, huff and humour, the guarantee of equality becomes phoney, flimsy or illusory. Art. 14 is outraged by such a provision and is liable to be quashed for that reason.'
The last of the decisions is State of M.P. v. Nandalal, : [1987]1SCR1 which alone had dealt with the applicability of Art. 14 inrespect of the manufacture and sale of country liquor, and on holding that it is not a fundamental right, it was then held (at p. 279 of AIR) :
'.....But when the State decides to grant such right or privilege to others, the State cannot escape the rigour of Art. 14. It cannot act arbitrarily or at its sweet will. It must comply with the equality clause while granting the exclusive right or privilege of manu- facturing or selling liquor. It is, therefore, not possible to uphold the contention that Art. 14 can have no application in a case where the licence to manufacture of liquor is being granted by the State Government.....'.
But, in the next para, a word of caution had been expressed by stating that the Court would be slow to interfere with the policy of the Government and has to allow a large measure of latitude to the State Government in determining its policy of regulating, manufacture and trade in liquor. Unless it appears to be plainly arbitrary, irrational or mala fide, the Legislature should be allowed some play in the joints because it has to deal with complex problems which do not admit of solution through any doctrinaire of strait jacket formulae. It was then concluded by stating :
'.....The Court can interfere only if the policy decision is patently arbitrary, discriminatory or mala fide.'.
27. In the context of this pronouncement, it has to be seen whether by the said G.O., the policy decision taken by the Government is hit by any of these three factors. Since the five manufacturers licensed under S. 17B of the Tamil Nadu Prohibition Act, refused to lower prices, a decision was taken to call for All India tenders. They were also allowed to submit their tenders. Thereafter, they having agreed for reduction in prices after subsequent negotiations, on being made aware of the prices quoted by others for comparable brands; it was decided to drop further action on tenders called for in the months of May and September, 1988. This decision is now characterised as arbitrary.
28. Learned Counsel, Mr. M. N. Padmanabhan,would submit that, when the Supreme Court had repeatedly pointed out that in dealing with the largesse, public auction is the safest method to be followed, it ought to have been resorted to. The necessity arose for respondents to call for All India tenders, because five local manufacturers were for many years allowed by the Government to quote any rate they wanted for the products manufactured by them, and they were found to be higher than the prices prevailing in other parts of the Country for comparable products. There is a clear cut admission in the counter-affidavit of the Government in Para 9(c) which is as follows:--
'.....The reasonableness of the various components of production cost were not gone into.....'.
In spite of persuation by Government to reduce the prices, as the manufacturers were unreleating, it was felt that the privilege granted was being abused, and huge amounts were being siphoned off, because a policy decision had been taken to procure I.M.F.S. products from local manufacturers. Therefore, as stated by the 2nd respondent in para 12(e) of the counter-affidavit, All India offer was resorted to, only to check the prices charged by the local manufacturers to the Corporation. It is after 44 offers were received including from the local manufacturers during the course of the negotiations, the local manufacturers having come forward to reduce the rates, the proposed deviation from the policy decision was dropped. Therefore, when the All India tenders called for was for the purpose of reducing the prices of the products purchased by the 2nd respondent, . and when it is claimed to have been achieved, as held in State of M.P. v. Nandalal, : [1987]1SCR1 , a certain latitude has to be given to the Government which deals with the privilege, in formulating its policy decision. The decision to slick to the same policy of purchasing from local manufacturers cannot therefore be held as vitiated by arbitrariness.
29. The next aspect is, was there any irrationality in confining the purchases to local manufacturers. In Brij Bhushan v. State of J. & K., : AIR1986SC1003 on anadministrative order passed by Jammu and Kashmir Government sanctioning supply of crude olco resin to three entrepreneurs in the State, it was held that this facility was extended because it was one of the conditions set at the time of negotiation for setting up a factory in the State, and they wanted continuous supply of resin to be assured by the State Government. When intention of the Government was to promote industrial development in the State, and to utilise raw material produced within the State by industrial conversion, it was held that it cannot be said that such orders are arbitrary or not made in public interest.
In the earlier decision in Kasturi Lal Lakshmi Reddy v. State of J. & K., : [1980]3SCR1338 , it was held as follows (at p. 2004 of AIR) :--..'If the State were simply selling resin, there can be no doubt that the State must endeavour to obtain the highest price subject, of course, to any other overriding considerations of public interest and in that event, its action in giving resin to a private individual at a lesser price would be arbitrary and contrary to public interest. But, where the State has, as a matter of policy, stopped selling resin to outsiders and decided to allot it only to industries set up within the State for the purpose of encouraging industrialisation, there can be no scope for complaint that the State is giving resin at a lesser price than what could be obtained in the open market.....'.
30. Already five I.M.F.S. manufacturers have been functioning in the State, and they have been supplying 2nd respondent since 1-6-1983 and they meet the full requirements of the 2nd respondent. It is only because they were refusing to reduce the prices of products manufactured by them, it led to calling for All India tenders, but the continuation of the same policy to confine the purchase to local manufacture had to be adhered to, because of more than one factor which are spelt out in the G.C. and in counter affidavit of 1st respondent. The relevant factors which had impelled the Government to confine to local manufactures are that the molasses produced in the sugar factories in the State beingsurplus, they will have to be utilised in the distilleries which manufacture spirit and which in turn utilised by I.M.F.S. manufacturers. The raw materials available in the State are thus being put to the best of use, and even according to the petitioner, Tamil Nadu is one of the States producing large quantities of I.M.F.S. products at a low cost becuase of availability of raw material within the State'. When huge amounts running to crores of rupees by way of excise revenue would generate by utilising the raw materials in manufacturing units situated locally in the State, it is a relevant factor which could be taken into account in public interest.
31. Yet another factor taken into account is to maximise local employment to the extent possible. No doubt, the labour force employed may not be of such magnitude as involved in other types of Industries with similar investment to the extent involved in these units. Yet, it is the duty of the State to prevent unemployment, consequent to any policy decision taken, and which in turn results in closure of Industries, big or small. Hence, looked at from this point of view, of policy decision to cofine purchases only from local units. which ensures the existence of Industries within the State, and that too when the products manufactured by them do not come within Part XIII of the Constitution, such a decision cannot be assailed as borne out by any 'irrationality'.
32. On the third point as to whether the decision is vitiated by 'male fides', except for a vague reference made to this effect, no particulars have been furnished ascribing 'mala fides' to any particular individual and in what manner it had been done to favour any particular individual and the like. In the absence of required particulars, mere mentioning of the words 'mala fides' does not call for any further consideration on this aspect. Therefore, when the three factors which could play a part in invoking Art. 14 as spelt out in State of M.P. v. Nandlal, : [1987]1SCR1 having not been made out; the plea that Art. 14 had been violated necessarily fails.
33. Rule 16 is challenged by claiming that it is arbitrary and violative of Arts. 14 and 19and the like. It contemplates purchases not only within the State, but also outside the State. Neither the Act, nor the Rules bring about any inequality among similarly placed persons. What learned Counsel Mr. M. N. Padmanabhan would plead is that it is in the implementation of this Rule, equality clause had been violated. This point has been already dealt with and held against the petitioner. One another feable contention put forth is that there are no guidelines in the Section as to under what circumstances, directives of the nature now impugned could be issued. It having been held that the State is exercising its privilege over intoxicants, the scheme of the Act and the Rules framed thereunder by themselves indicate as to how far their policy decisions behind the rule could be taken by it when it chooses to prevent dealings in liquor. Therefore, no conceivable point is made out to strike down the rule. Hence, R. 16 is valid and enforceable.
34. Before concluding, some of the aspects which have been focussed by the learned Counsel for the petitioner, required to be mentioned. He submits that, by confining to the five licensed units for the off-take of the requirements of the 2nd respondent, which runs into several crores of rupees, it results in several crores of rupees being siphoned off by those units to the detriment of public interest, and in turn lends to corruption at high levels on which public debate is now going on in this State, and that even in the Legislature, disclosures have been made, as found in the counter-affidavit of the States having suffered loss of not less than Rs. 100 crores in a year, since the inception of the 2nd respondent. He submits that, nothing but public interest is involved in the affairs of the 2nd respondent, which is functioning under the guidance of the 1st respondent, as provided in R. 16.
35. Hence, it is all the more necessary to make known to public the cost structure involved in pursuance made by the 2nd respondent. During the course of the hearing, neither of the respondents had ever chosen to place before Court as to how justifiably rates came to be worked out, even in November, 1988. As above referred to, there is a clear cutadmission by the State that even till date 'the reasonableness of the various components of production cost were not gone into'. In making several claims in counter affidavit as to what are the steps taken to prevent huge loss being suffered by the State; it is stated that the Commissioner of Prohibition and Excise is going to examine various components of cost of production such as cost of labour, overheads, cost of empty bottles, crocks, caps, packing materials, card board boxes apart from the contents and ingredients of the product, and fix the price of I.M.F.S. and bear on a scientific manner.' It is also claimed that there is a proposal to statutorily fix the price at manufactory point and also at retail point. On what has been sworn to before Court, it is self evident that, even as on date, the cost at which the products are purchased by the 2nd respondent, are far higher than the prices for comparable products particularly with the prices obtained in Delhi and for supplies made to Canteen Stores Department, etc. when the 2nd respondent is wholly a State owned undertaking, it is in its own interest and also in public interest to publicise the rates at which it makes purchases from the limited number of manufacturers in the State, so that when public funds are utilised in the functioning of the 2nd respondent Corporation, the public are made aware that the selected few industries are not allowed to amass disproportionate amounts and later on a part of it finding its way out to decision makers leading to unhealthy clouds of corruption hovering over this State. Society has to maintain a clean image for itself, and when public funds are utilised by State owned Corporations, its methodology of functioning, its disbursements, etc. should be publicised. Learned Advocate-General at one stage submitted that when 2nd respondent is to get a fixed percentage of 10% over the price for which products are purchased, if the prices are higher, it benefits the 2nd respondent. It is a retrograde manner of looking at an issue of this nature, because it will only help the few manufacturers. Compared with Corporation's income, these five manufacturers get a steady income from the Corporation, because their entire products are purchased. There is noneed to incur advertisement or other incidental expenses, as incurred by other manufacturers to market their products. Man power utilised is negligible. In essence, it is a monopoly and off-take for years to follow is assured, so long as a Welfare State to get more Revenue, vends more liquor in spite of having Prohibition Act on its Statute Book.
36. It is made clear that the question as to whether the prices were reduced reasonably and justifiably or whether there is still a partial or greater exploitation is not gone into. This Court does not certify that the rates accepted by the 2nd respondent in November, 1988 are reasonably correct, because this is an aspect on which no material is placed before Court by either of the respondents. The 1st respondent is para 9(c) or the counter-affidavit states that it is going to fix rates statutorily. It is not sufficient to expose the ills perpetrated, but it is much necessary to put an end to the evil, by disclosing to public anything and everything done by the Corporation and the State. When it parts its privilege for consideration.
37. Therefore, for all the reasons above stated, this appeal is dismissed with costs. Counsel for Rs. 1,000/-.
W.P. Nos. 514 and 515 of 1989, 13918 to 13921 of 1988 and 12884 to 12886 of 1988.
W.P. Nos. 514 and 515 of 1989.
W.P. Nos. 514 and 515 of 1989 are filed to quash the impugned G.O. Ms.No. 1910, dated 10-11-1988. In W. A. No. 90 of 1989, the impugned G.O. having been upheld, these writ petitions are dismissed. No Costs.
W.P. Nos. 13918 to 13921 of 1988 :
W.P. Nos. 13918 to 13921 of 1988 were filed to quash the communication dated 10-11-1988 issued by Tamil Nadu State Marketing Corporation rejecting the offer made by the petitioner. In view of what has been held in W.A. No. 90 of 1989, all these petitions are dismissed. No costs.
W.P. Nos. 12884 to 12886 of 1988 :
These petitions are filed to implement R. 16and to finalise the tenders submitted by the petitioner. In a way, there could be no difficulty in granting relief, because Rule 16 had been upheld, and on that basis, the respondents have taken a decision and passed orders rejecting the tenders offered by petitioner. In that way, they have finalised the matter, but what they ask for is that, it must culminate in accepting their offers. This being the main relief in writ petitions even though Rule 16 had been upheld and being implemented in the case of the petitioners, but it results in rejection of their offers and hence they are dismissed. No costs.
On the Judgment being pronounced, learned counsel for the appellant has made an oral application for leave to be granted to file an appeal to the Supreme Court, but this court considers that the points taken having been held against the appellant based on a series of decisions of the Supreme Court, this matter does not involve a substantial question of law of general importance and in the opinion of this court the question does not require to be decided by the Supreme Court. Hence the leave is refused.
38. Order accordingly.