GUSTAD MAYUR IRANI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioner carries on business in the name and style of M. N. Irani and Sons as sole proprietor and deals in trade and import of foreign liquor including Indian made foreign liquors. The petitioner is holder of licence issued under the provisions of the Bombay Prohibition Act, 1949, the Maharashtra Foreign Liquor (Import and Export) Rules, 1963, and Maharashtra foreign Liquor (Storage in Bond) Rules, 1964. Section 58a of the Bombay Prohibition Act, inter alia, provides that the State Government may be general or special order direct that the manufacture, import, export, transport, storage, sale, purchase, etc. of any liquor shall be under the supervision of such prohibition and excise or police staff as they may deem proper to appoint and the cost of such staff shall be paid by person manufacturing importing, exporting, etc. of the liquor. The charges paid by the manufacturers or importers under Section 58a of the Act known as supervision charges. Condition No. 3 of F. L. I. licence prescribes that the petitioner shall pay to the Government in advance at the beginning of each quarter such costs or charges as may be fixed by the State Government from time to time. The State Government fixed the changes from time to time and the same were paid by the petitioner.

(2.) ON March 12, 1982, the Prohibition and Excise Officers, Dahanu addressed communication to the petitioner informing that the amount of supervision charges for one Sub-Inspector and one constable posted at the place of trade of the petitioner since October 1, 1974 to March 31, 1982 comes to Rs. 1,22,251. 70. The petitioner had already paid charges of Rs. 1,02,209. 17 and was thereafter called upon to pay the balance sum of Rs. 20,042. 55. On March 19, 1982, the petitioner was informed that unless the petitioner credits the amount demanded, the licences in form F. L. I. and B. W. I. will not be renewed for the year 1982-83. These communications have given rise to the filing of the present petition under Article 226 of the Constitution of India on march 30, 1982.

(3.) THE principal contention urged by Shri Setalwad, learned counsel appearing on behalf of the petitioner, is that Section 58a does not empower the respondents to impose the fees with retrospective effect. It was urged that the fees are demanded in advance for each quarter and the payment made was never provisional one or subject to the settlement of fees. The learned counsel urged that pre-determined charges are recovered for each quarter and such charges are not settled subject to alterations in future. The second contention of the learned counsel is that the demand for in the year 1982 for the period commencing from 1974 onwards is unreasonable and, therefore, the demand notice should be struck down. As regards the first contention that the respondents have no authority to demand the difference in the cost of rendering service under section 58a of the Act, an identical contention was raised in Writ Petition No. 631 of 1982 (Maneckjee Majshedjee v. The State of Maharashtra and others) filed on the Original side of this court and one of us (Pendse, J.) by judgment dated June 19, 1986 turned down the contention. It was held that what is charged by the State Government under Section 58a is fees for the service rendered and not the tax. Section 58a enables the State Government to appoint staff under whose supervision the importation or storage of liquor will be carried out and the cost of such staff can be recovered from the importer. It was also held by the Single Judge that the mere fact that the charges are recovered after passage of time would not make recovery defective or without authority. The contention that the recovery is made with retrospective effect was turned down by holding that the liability to pay charges was undertaken and what is being recovered is only the difference in rates of charges and the liability and the quantum are two different concepts and the liability is not imposed with retrospective effect but merely rates are revised retrospective effect. In our judgment, he view taken by the Single Judge is correct and is required to be upheld. Shri Setalwad did not dispute that the charges sought to be recovered are in respect of service rendered. The additional charges are demanded because they pay scales of the staff was revised with retrospective effect.