RAM KUMAR SINGH CHOUDHARY Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) IN all these writ applications a common prayer has been made for quashing the Notification bearing No. 1142 (B) dated 31.7.2004 issued by the Member, Board of Revenue (respondent No. 2) whereby the annual license fee for bars and restaurants to different categories and locations within the State has been enhanced and on that basis additional subsequent demands have been made from the petitioners, who hold license(s) for the financial year 2004 -05, for their respective bar(s), restaurant(s), shop(s) and have already deposited their prescribed annual license fee in advance in one lump sum on 31.3.2004. In W.P. (C) No. 4521/2004 the license fee of the petitioners has been enhanced from Rs. 60,000/ - to Rs. 4,00,000/ - and they have been asked to deposit the balance enhanced amount at one go in advance within one week by the Assistant Commissioner, Excise, Dhanbad. In W.P.(C) No. 4717/2004 the petitioner's license fee has been enhanced from Rs. 60,000/ - to Rs. 2,00000/ - and the petitioner has been asked to deposit the entire amount in advance within two weeks as per the order of the respondent No. 5, Assistant Commissioner, Excise, Pakur. The annual license fee of the petitioners of W.P.(C) No. 4558/2004 has been enhanced from Rs. 2,00000/ - to Rs. 5,00000/ - and the petitioners have been asked to deposit the entire amount in advance within one week as per the order of the Assistant Commissioner, Excise, Dhanbad. The annual license fee of the petitioner of W.P. (C) No. 4858/2004 has been enhanced from Rs. 60,000/ - to Rs. 4,00000/ - and the petitioner has been asked to deposit the entire amount in advance within one week as per the order! of the Assistant Commissioner, Dhanbad. The annual licence fee of the petitioner of W.P.(C) No. 4645/2004 has been enhanced from Rs. 1,00000/ - to Rs. 3,00000/ - and the petitioner has been asked to deposit the entire amount in advance within two weeks by the order of the Assistant Commissioner, Excise, Pakur.

(2.) THE grievances of the petitioners and points of law and factual basis being common, all the above writ petitions are being disposed of by this order.

(3.) THE respondents appeared and filed their counter affidavit stating, inter alia, that the State has got legislative power on the subject of intoxicating liquor which comes within the Entry 8, List II of the 7th Schedule of the Constitution of India. The Jharkhand Excise Act, 1915 (hereinafter referred to as the said 'Act') governs the trade of this field in the State of Jharkhand and the provisions of the State Act regulates the trade and provides for imposition and collection of duties on intoxicants and for levying fees for granting the privilege or right to sale or vend the liquor. The control and restriction is meant for preservation of public health moral and to raise the revenue which is the purpose of the Act. No person has any absolute right to sell the intoxicant liquor. Section 20 of the Act prescribes prohibition of sale of any intoxicant without any licence. Section 38 of the said Act lays down the provision for realization of fee and terms and conditions subject to which a license, permit or pass can be granted under this Act. Section 90 of the Act empowers the Board of Revenue to make rules for prescribing the scale of fee or manner of fixing fee payable in respect of any exclusive privilege granted under Section 22 or any license, permit or pass granted under this Act and for other terms and conditions which include regulating the time, place and manner of payment of fee. Section 91 of the Act provides that the Board of Revenue may exercise power conferred by the Act from time to time. Rule 107 made by the Board of Revenue under the provision of Section 98 of the Act prescribes fee for the sale of foreign liquor in hotel, restaurant, bar, club and canteen. These rules also prescribe the manner of payment of such fee. The rule was published by Notification No. 23 -137 -2 dated 29.4.1919 and the same has been amended from time to time. It has been further contended that the right to carry trade of liquor is not absolute but is subject to the provisions of the said Act, Rules and Notifications. Dealing in intoxicants is not trade or business within the meaning of Article 19(1)(g) of the Constitution of India. The restrictions, which are not permissible in other trades, are lawful and reasonable so far as the trade in liquor is concerned. The State possesses the right of complete control over the trade of intoxicants. The State has power to grant license for a sum which is the consideration for parting with the right and privilege of the State. The said consideration is neither a tax nor a fee in that sense. In excise law. 'License Fee' or 'Fixed Fee' is actually the price or consideration which the Government charges to the licensees for parting with its privilege and granting them to the licensees and as such the principle of 'Quid Pro Quo' is not applicable. It has been further stated that the Government had appointed a Committee to study the excise system in some of the major revenue earning states. The committee suggested some rational, effective and profitable changes in the prevailing system for the purpose of maximum possible revenue to the State and for effective control on the trade of liquor. The said committee made a number of recommendations including the changes in the prevailing excise system and structure of excise duties and fees levied on different kinds of licenses including hotel, restaurant and bar licences. Final decision for adopting the said new policy could not be taken by the State by the financial year 2003.04 and thus the retailers were granted provisional licences. Similarly it was necessary to renew the licenses which were granted earlier. In that view, the Excise Commissioner vide his letter No. 565 dated 24.3.2004 directed all the Excise Superintendents and Deputy Commissioners of Excise that while granting/renewing such licenses, it should be mentioned that in case of any change in the conditions of the licences during 2004 -05, the same shall be binding on the licensees. Accordingly such endorsement was made on the licences under the direction of the Excise Commissioner and the licences were renewed for 2004 -05 subject to any change in the condition. In view of the said endorsement, no notice was required to be issued to the licensees prior to enhancing the scale of the licence fees. Under the new excise policy, license fees for retail 'off vend of foreign liquor and 'off vend of India made foreign liquor have been enhanced in the locality in which the petitioners restaurants are situated. In view of the said policy of manifold increase in the license fee for the retail licences for 'off vend of foreign liquor, the retail license fee of the petitioners has been enhanced which is neither excessive nor unreasonable. Rule 107 speaks of the fixed fees imposed on hotel, restaurant, bar, club and canteen licences for a year or a part thereof. The higher license fee was also intended to regulate and keep within the reasonable limit the number of those who may engage in this trade. The State Government has done the same in order to get maximum price for parting with its valuable right in favour of the licence holders which is also in the public interest and the enhancement in license fee of the petitioners is neither arbitrary nor violative of Article 14 of the Constitution of India.