PUNE DISTRICT CANTONMENT WINE MERCHANTS ASSOCIATION AND ORS. Vs. THE COMMISSIONER STATE EXCISE AND ORS.

JUDGEMENT

(1.) THE issue which arises for consideration in both the petitions is identical and therefore the petitions are being disposed of by a common Judgment.

(2.) WRIT Petition No. 5051 of 2004 is filed by the Pune District Cantonment Wine Merchants Association. It is stated that this Association represents Wine Merchants carrying on business of sale of foreign liquor and country liquor in Cantonment area of Pune District. In this petition, we are concerned with licences granted under the provisions of the Bombay Foreign Liquor Rules, 1953 (for short 'the said Rules of 1953'). Rule 25 prescribes fees based on population of City or Town. On 30th December, 1996 the Maharashtra Potable Liquor (Periodicity and Fees for Grant, Renewal or Continuance of Licences) Rules, 1996 (for short 'the said Rules of 1996') were brought into force. Rule 4 of the said Rules of 1996 deals with fee for grant, renewal or continuance of a licence. It provided that fee for grant, renewal or continuance of a licence for one year shall be as notified by the Commissioner at least sixty days in advance of the Financial Year. Rule 6 of the said Rules of 1996 specifically provides that the said Rules of 1996 shall supercede all the provisions relating to periodicity of licences and the amount of fees chargeable for grant, renewal or continuance thereof made in the relevant rules mentioned in Sub -rule (ii) of Rule 2 above, and the remaining provisions of these rules shall continue to be in force. Sub -rule (ii) of Rule 2 incorporates even the said Rules of 1953. In exercise of powers under Rule 4 of the said Rules of 1996, the Commissioner of the State Excise published a notification dated 30th January, 2004. The challenge in these two petitions under Article 226 of the Constitution of India is to the last part of the said notification which reads thus: - -

(3.) LEARNED Counsel appearing for the petitioners invited our attention to Rule 25 of the said Rules of 1953. She submitted that sub -Rule 1 of Rule 25 provides for fixing the rates of fees based on the population of the City or Town. She invited our attention to Explanation to Rule 25 which specifically defines 'population' which means the population of a town or a city, as the case may be, as ascertained from the latest Census Report either provisional or final. Her contention is that in accordance with the said Rules of 1953, the test for determination of quantum of fees is the population based on the latest Census Report. Inviting our attention to Rule 6 of the said Rules of 1996, she urged that the Explanation to Rule 25 of the said Rules of 1953 and the tests laid down by Rule 25 of the said Rules of 1953 have not been superceded. Her submission is that power of the Commissioner under Rule 4 of the said Rules of 1996 will have to be exercised on the basis of the latest Census figures and the quantum of fees to be notified has to be based on the latest census figures. Inviting our attention to the impugned notification dated 30th April 2004, she urged that infact the Commissioner has followed the test of population in respect of all 7 areas except the Cantonment areas. Her submission is that the Cantonment areas which are not a part of Municipal areas cannot be treated on par with the adjoining Municipal areas for the purposes of determining the rates. Inviting our attention to paragraph 3 onwards of this petition, her submission is that the licence holders may not get the same business in cantonment areas as compared to the business available to the adjacent municipal/corporation areas. She pointed out that the villages adjacent to the limits of the Municipal/Corporation have been treated differently and the rates which are applicable to the adjacent corporation or municipal areas are not the same. Her submission is that position of the cantonment areas adjacent to the Municipal limits is no different from the position of the villages adjacent to the Municipal limits. She invited our attention to various documents from Exhibit - A to D1 which show that consistently the test of population has been applied for the determination of quantum of fees. She would therefore urge that the impugned notification is contrary to the test laid down by Rule 25 of the said Rules of 1953, as Rule 25 and in particular the test of population laid down therein has not been superseded by Rule 6 of the said Rules of 1996. She, therefore, submitted that the part of the impugned notification which deals with the cantonment area deserves to be struck down with a direction to charge the fees on the basis of census figures of the population in the areas falling within the limits of Cantonment in Pune District.