PHOOL CHAND GUPTA Vs. NAGAR NIGAM ALLAHABAD

JUDGEMENT

(1.) IN all these writ petitions the petitioners, who are licensees of retail vend of country liquor and beer in the various districts of State of Uttar Pradesh, have challenged the levy and demand of licence fee by the concerned Nagar Nigam/Nagar Palika Parishad. Civil Misc. Writ Petition No. 2435 of 2002, is being treated as the leading case. The facts giving rise to Civil Misc. Writ Petition No. 2435 of 2002, are as follows : The said writ petition has been filed by 8 persons who are holders of licence in Form F.L. -5B for retail vend of beer/country liquor at various places in the Municipal limit of Nagar Nigam, Allahabad. The licence relating to the Excise Year 2001 -2002, i.e., the period from 1.4.2001 to 31.3.2002 has been issued by the Collector, Allahabad after obtaining sanction from the Excise Commissioner, U. P., Allahabad. According to the petitioners they are required to pay licence fee to the State Government for obtaining the licence as consideration for parting with the exclusive privilege. Their activities of selling country liquor and beer are governed and controlled by the provisions of U. P. Excise Act, 1910 (hereinafter referred to as the 'Excise Act') and the Rules framed thereunder. The Officer Incharge Licensing/ Advertisement, Nagar Nigam, Allahabad respondent No. 2 issued separate notice dated 1st August, 2002, to each of the petitioners by which they were directed to obtain licrnce from the Nagar Nigam, Allahabad after paying the licence fee of Rs. 6.000 for running the liquor shops. The Nagar Nigam, Allahabad has framed bye -laws on 13th January, 1999, which has been published in the official Gazette on 30th January, 1999, under which item No. 3 of Category C pertains to the licence fee for a beer shop which has been fixed at Rs. 6,000 per shop, item No. 6 relates to country liquor shops for which licence has been fixed at Rs. 6,000 per year per shop and item No. 7 pertains to foreign liquor shops for which licence has been fixed at Rs. 12,000 per year per shop. The aforesaid bye -laws has been framed under Section 541 of the Uttar Pradesh Municipal Corporations Adhiniyam, 1959, (hereinafter referred to as the 1959 Adhiniyam). The demand notice as also the bye -laws relating to item Nos. 3, 6 and 7 of Category C have been challenged on the ground that they do not empower the Nagar Nigam to charge any fee on excise shop which are exclusively covered by the provisions of the Excise Act and further sub -sections (26), (36), (41) and (43) of Section 541 are not attracted in the case of excise licence. The provisions of Sections 199 to 203 of the 1959 Adhiniyam have not been complied with and further no service whatsoever is being rendered by the Nagar Nigam, Allahabad to the petitioners and as there is no element of quid pro quo the licence fee is wholly illegal, arbitrary and without any authority of law. The excise business is being regulated under the provisions of the Excise Act and the Nagar Nigam cannot exercise any power to regulate the business of the petitioners.

(2.) IN the counter -affidavit filed by the Nagar Nigam it has been stated that the bye -laws framed by the Nagar Nigam, Allahabad is absolutely in accordance with law. Same bye -laws, wherein the licence fee has been challenged by owners of Nursing Home, has been upheld by this Court holding that the Nagar Nigam has rightly imposed the licence fee for regulating the business of the petitioners therein in any Nagar Nigam area and the bye -laws has been framed strictly in accordance with law. Reliance was also placed upon a Division Bench decision of this Court in Civil Misc. Writ Petition No. 37686 of 2002. Radhey Charan Gupta and others v. State of U. P., decided on 9th September, 2002, wherein the writ petition filed by the other liquor licensees challenging the levy and demand of licence fee has been dismissed. It has further been stated that the Nagar Nigam has to incur considerable amount for keeping the vicinity and the locality clean where these shops are situate. So far as the licence fee imposed by the Nagar Palika Parishad in other districts are concerned it has been imposed under the bye -laws framed under Section 298 of the Municipalities Act, 1916, (hereinafter referred to as the 1916 Act).

(3.) LEARNED counsel for the petitioners submitted that under Section 541 of 1959 Adhiniyam the Nagar Nigam has no power to regulate the trade of beer/country liquor as the same is being regulated by the provisions of the Excise Act. Thus, the question of payment of licence fee does not arise. He submitted that in any event as no service was being rendered by the Nagar Nigam to the petitioners' trade and there was no element of quid pro quo the levy and demand of licence fee was wholly unjustified. In support of the aforesaid pleas they have relied upon the following decisions : 1. Nagar Mahapalika, Varanasi v. Durga Das Bhattacharya and others, AIR 1968 SC 1119 ; 2. Kamaljeet Singh and others v. Municipal Board, Pilkhwa and others, AIR 1987 SC 56 ; 3. A. P. Bankers and Pawn Brokers Association v. Municipal Corporation of Hyderabad, AIR 2OO1 SC 1356.