Ajanta Traders and Tulsidas Patel vs The State of Bihar and Others

B.L. Yadav, J.—In respect of the interpretation of Rule 106 of the Bihar Excise Rules (compendiously the Rules) framed u/s 89 of the Bihar Excise Act (compendiously ''the Act,) there was conflict of the opinion between the two Division Bench decisions of the Court. The first Division Bench decision was rendered in C.W.J.C. No. 6618 of 1993, followed in C.W.J.C. No. 1587 of 1994; whereas the contrary view in Division Bench decision was rendered in C.W.J.C. No. 6496 of 1994. As there was conflict of the opinion in these Division Bench decisions, hence the matter was referred to a larger Bench. This is how this matter has been placed before this Full Bench. As these petitions involve similar questions for determination hence they are being disposed of by a common judgment.

The present writ petitions were filed under Articles 226/227 of the Constitution of India and the prayer is for issuance of a direction in the nature of mandamus, directing the Respondents not to charge the license fee for the period during which the Petitioner was not granted any license nor any business was carried out for that period, in other words it was to make proportionate reduction in the license fee and to refund to the Petitioners the excess amount paid.

In these writ petitions the questions involved are as to whether the Petitioners are entitled to proportionate reduction and consequential refund in the license fee paid in connection with the settlement of the wholesale license of India made origin liquor under Rule 106 of the Rules. In other words whether the Respondents can compel the Petitioner to pay the license fee for the period for which no license was issued and in that period no business was made. Even though the license was granted for a limited period i.e. 8.10.1994 to 31.3.1995, but the Respondents are trying to charge license fee for whole of the financial year, i.e. 1.4.1994 to 31.3.1995. The license was granted only for five months and 23 days, but the license, fee was charged for 12 months, i.e. from 1.4.1994 to 31.3.1995, which was arbitrary, unreasonable beyond the authority in law and manifestly erroneous.

The facts of these petitions lie in a narrow compass and they are these. In pursuance of the advertisement dated 12.9.994 (Annexure-1) issued by the Deputy Commissioner (Excise), Ranchi (Respondent No. 3). for settlement of sale license of India made foreign liquor for the remaining period, the Petitioners applied for the same for the remaining period of 1994-95. The Petitioners in C.W.J.C. No. 296 of 1995 (R) complied with the conditions and made requisite deposit for a sum of Rs. 1,50,000/-(vide Annexure-2). License was granted in Form 1 (license for sale of foreign liquor to the trade) (vide Annexure- 2/A). it was specifically mentioned in the license itself that license was being granted for a limited period from 3.10.1994 till 31.3.1995 in C.W.J.C. No. 296 (R) and from 31.1.1995 to 31.3.1995 in C.W.J.C. No. 678 1 of 1995 (R).

A counter affidavit was filed on behalf of the Respondents with the averments that the Petitioners have to pay license fee for the entire period. As per the privilege conferred on them, there would be no justification under the law for proportionate reduction of the license fee or refund of the same to the Petitioners.

The learned Counsel for the Petitioners contended that in the advertisement itself (Annexure-1) it was made evident that for the remaining period of 1995-95 the license was sought to be granted and the applications were invited from the intending licensees in pursuance of the provisions of Rule 106 of the Rules framed under the Act. Rule 106 was framed under the rule making power under Sub-sections (7), (8) and (9) of Section 90 of the Act. By the amendment dated 25.4.1990, Rule 106 of the Rules was substituted under which wholesale license fee of Rs. 1,50,000/- was imposed and this amount and other amount required was to be paid by the Petitioners in both these petitions. In the advertisement itself it was made exploit that the applications were invited for the remaining period of 1994-95 only. As the license was granted only for a. period of 5 months 23 days, as stated in paragraph-27 of the writ petition, hence there must have been made proportionate reduction in the license fee or in the matter of parting with the special privilege but the Respondents acted illegally or with material irregularity in the exercise of their jurisdiction.

The learned Counsel for the Respondents refuted the submissions of the learned Counsel for the Petitioners and contended that composite fee was charged for the year 1994-95 (1.4.1994 to 31.3.1995) and there was no propriety for refund of the amount, as Rule 106 does not make any such provision. The order of the Division Bench dated 24.8.1993 passed in C.W.J.C. No. 6118/93 was not correct as followed in C.W.J.C. No. 1587 of 1994, having allowed the relief for refund of the license fee for the period for which neither any license was granted nor the licensee had done any business The correct view has been taken in C.W.J.C. No. 6496 of 1994, where this prayer was refused.

Having scrutinised the submissions of the learned Counsel for the parties the following questions fall for our consideration:

(a) Whether the Petitioners are entitled to proportionate reduction in the license fee paid in connection with settlement of the wholesale license of India made foreign liquor;

(b) Whether the Respondents can compel the Petitioners to pay the license fee for the period, during which no license was issued nor any business was done in that period; and

(c) Whether the Respondents could charge the license-fee for the whole of the financial year (1.4.1994 to 31.3.1995) when the license was granted for a limited period (from 8.10.94 to 31.3.1995).

Before grappling with the questions posed it is convenient to refer certain provisions of the Act. Section 22 of the Act posits grant of exclusive privilege of manufacture and sale of country liquor or intoxicating drugs or denatured spirit or any other intoxicants. Section 27 enacts the power to impose duty on import, export, transport and manufacture. Section 28 says of levying such duty. Section 29 provides for payment of certain consideration to the State Government in lieu of grant of exclusive privilege u/s 22 of the Act. These sections may be read conjointly, which deal with modus of payment of levy duty in respect of the Country liquor, etc.

In Excise Commissioner, Uttar Pradesh, Allahabad and Others Vs. Ram Kumar and Others, it was held by the Apex Court that the duty or license fee can be imposed on the basis of the parting with the privilege by the State under the rules of contract. Liability of the Petitioners to make payment of license fee emanates primarily from the terms and conditions of grant of license (Excise Contract). (See Panna Lal v. State of Rajasthan AIR 1975 S.C. 2008 and Nashirwar and Others Vs. State of Madhya Pradesh and Others,

A perusal of the advertisement (Annexure-1) makes it pellucid that it was made explicit by the Deputy Commissioner (Excise) Ranchi (Respondent No. 3) that the license itself would be granted for the remaining period of 1994-95 (and not for the whole period). Intendment of the authority granting license was explicit which cannot be deemed to be implicit. These Petitioners offered and actually paid the license fee with the understanding that it was only for a part of the whole period during which the license would be granted and would transact business.

In case the submissions of the learned Counsel for the Respondents were accepted that the Petitioners have to make payment for the whole period (1.4.1994 to 31.3.1995) and not for the remaining period only, in that event that would amount as if the material thing was concealed by the State Government in the advertisement (Annexure-1) and the State of Bihar having sole authority to grant privilege in view of Sections 22, 27, 28 and 29 of the Act, cannot be assumed to conceal the material terms from the advertisement.

In the American Jurisprudence (2nd) Vol. 37, paragraph 144, page 196, it has been stated as follows:

Unquestionable the concealment of material facts that one is, under the circumstances, bound to disclose may constitute actionable fraud. Indeed one of the fundamental tenants (sic) of Anglo American Law of Fraud is that fraud may be committed by suppression of truth (Suppressio Versi) as well as by suggestion of falsehood (Suggestio Falsi). (See Strong v. Repide 213 U.S. 419; Tylar v. Savage 143 U.S. 79; Griswold v. Hazard 141 SC 260). It is, therefore, equally competent for a court to relieve against fraud whether it is committed by suppression of the truth-that is by concealment-or by suggestion of falsehood.

The Chancellors developed the doctrine that disclosure was the duty of one standing in a trust of confidential relations to Anr. and that suppressio veri may be equally fraudulent as suggestio falsi. (See Crosby v. Buchanan 23 wall (U.S.) 420, Smith v. Richards 13 Pet (U.S.) 26; 10 L.Ed. 42 .

In Lazarus Estates Ltd. v. Beasley (1956) 1 All E.R. 341, it was observed by Denning L.J. as follows:

No Court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of Court, no order of Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The Court is careful not to find fraud unless it is distinctly pleaded and proved, but once it is proved it vitiated the judgments, contracts and all transactions whatsoever.

(See Administrative Law (fifth Edition) by H.W.R. Wade, page 228; Halsbury''s Laws of England, Vol. 1, (Fourth Edn.), Chapter dealing with Administrative Law, para 88; In De Smith''s Judicial Review of Administrative Actions, (Fourth Edition), page 408; Regina v. Secretary of State for the Home Department (1982) W.L.R. 405).

In that view of the matter it cannot be assumed that the State would be either making concealment of the material fact or would be suggesting falsehood.

No doubt, the provision of the proportionate reduction of the license fee or refund of the amount paid in excess than the period for which the Petitioners were granted license is not very clear under the provisions of the Act and the Rules. But in such matters there is a Latin Maxim "Neque Leges Neque Senatus/Consulta Ita Scribi Possunt Ut Omnis Casus Qui Quandoque In Sediriunt Comprehendanturesed Sufficit Eaquae Plae-Rumque Accidunet Container", which connotes that neither laws nor acts of Parliament can be so written as to include all actual or possible cases; it is sufficient if they provide for those things which frequently or ordinarily happen, (see Morgan''s Legal Maxims).

In the present case also the question posed before the Full Bench does not appear to be transparent in mind of the Legislature while enacting the provisions of the Act and the Rules.

In Jurisprudence by R.W.M. Dias (Fourth Edition) page 214 it has been stated: "The line between creation and adaptation is a thin one, and the fact that Judges do make law has been avowed by Judges as well as writers. But there is a difference between judicial and legislative creativity". Allen put the matter thus: "The creative power of the Court is limited by existing legal material at their command. They find the material and shape it. The legislature may manufacture entirely new material. This is approximately true, the difficulty being the sense in which a judge may be thought to use "Existing legal material" when he decides a case purely out of a sense of justice." (See Allen''s Law in the Making, P. 310, Pound''s Interpretation of Legal History, P. 127, Cardona on the Nature of the Judicial Process, p. 166).

In South Pacific Co. v. Jensen (1917) 244 U.S. 205 Lord Reid observed as follows:

If we are to extend the law, it must be the development and application of fundamental principles. We cannot introduce arbitrary conditions or limitations: that must be left to legislation

It would not be inapt to refer to certain relevant matters in ancient India, written in Sanskrit Literature. Thousand years B.C. much advanced system of reasons jurisprudence and interpretation of statutes existed pointed out. They indicate how rich our Ancient Indian Jurisprudence written in Sanskrit has been. In the matters of arriving at a correct decision and to reach justice even when very satisfactory statement of law either statutory or otherwise is not available it has been stated that in such matter a Judge has to proceed and go on making efforts by parity of reasoning, just like when churning of Great Ocean �leznz eUFku� was being made to find our Nectar �ve`r� but in fact it was poison �tgj� which came out nevertheless Devtas �nsorkx.k� etc did not feel nervous or frustrated but they went on making efforts and ultimately Nectar �vewr� came out. The relevant Sanskrit Shlok �laLd`r ''yksd� is as follows:

jRuSeZgkgSaLrqrq;uZ nsok u Hkkstus Hkhe fo"ks.k HkhfrHk~ A

lq/kk fcuk u iz;q;q fojkea u fufiorkJh fnXefUr /khjk % A

uhfr ''krde~ ''yksd & 81

Again it has been stated that in so many cases where satisfactory law on the subject is not available-Covering the problem faced by the Court, in that event if a Judge tries to solve the problem by referring to the letters of the statute in that event he would not do justice with the case rather there would be deterioration of religious and judicial system. That Shiok Brihaspati Smiriti � o`gLifr Le`fr � is as follows: ''

dsoya ''kkL=ekfJR; f�lrs ;= fu.kZ; % A

O;ogkj% l foKs;ks /keZLrsukfHk gh;rs AA

o`gLifr & Le`fr

In a baffling situation, as in the present case, in my humble opinion how interpretation has to be made is only by parity of reasoning or by rule of natural discretion. For this purpose it is better to make reference to the statement of law, as stated in Allen''s Law in the Making, page 272:

The Judge himself addresses his task in much the same way as a counsel. This decision is given in the form of a structure of logic, in which he may use any material which he considers ''adrem''. Even pure unofficial practice may be prayed in aid a precedence [Eastern (1937) 1 K.B. 287 If the matter is covered by the clear and unambiguous provision of a statute, his task is simplified. In a great many case no statute is applicable and even if it is applicable, it is frequently the be reverse of, clear and unambiguous. The Judge must then proceed as Bacon laid down long ago either by parity of reasoning, (i.e. VEL PER as in 53) or by use of example (as in 54) or by rules of natural reason and discretion (as in 55). The method of his reasoning may take innumerable forms and no rule of law limits and controls those powers provided that they achieve a logical conclusion. It would of course be grossly inaccurate to say that a Judge who has to decide whether a wild duck is a bird of carrem is bound by the evidence of literature, yet he will not hesitate to turn to literature if it assists him in determining whether Coke''s statements of law on this point be corrector or not (vide Parker, J. in Fitzlberding Ltd v. Purcell (1908) 2 Ch. 139. In Orbit Trust (1943) Ch. 144 in Conkery v. Carpenter (1951) 1 K.B. 102.

The American Supreme Court in Atkinson v. Sinciair Refining Co. 370 U.S. 248 : 8 L. Ed. 2nd 262, observed as follows:

Other problems will lie in this penumbra of express statutory many dates. Some will lack express statutory sanction but will be solved by looking of the policy of the legislation and fashing a remedy that will effectuate (sic) policy. The range of judicial inventive will be determined by the nature of problem, (see Textile Workers v. Lincoln Mills 353 U.S. 451; 1 L.Ed. 2nd Ed. 972).

It is not a correct concept of justice that any person including the Petitioners can be compelled to pay more license fee for the whole of the year 1994-95, when in fact they were granted license only for a limited period and had done business during that period only. In C.W.J.C. No. 296 of 1995 (R) license was granted for only 3.10.1994 to 31.3.1995 (vide Annexure-2/A) and similar was the position in other writ petition. In such delicate situation the Court has to look into the welfare of the people as expressed in the Latin Maxim "Salus Populi Suprema Lex, which means the welfare or the people is the supreme law. In Pritampal v. State of M.P. (2) (J.T. 1992 S.C. 41) it was observed by their Lordships of the Apex Court that the welfare of the people is the supreme law, and this can be achieved only when justice is administered law-fully, judicially and without fear or favor and without being hampered and thwarted and this cannot be effective unless respect for it is maintained.

What the institutes of Justinian De Justitia Et Jure In Liber Primus Titi Saidjustitia Est Constans Et Perpetua Voluntus Jusp Suum Cuique Tri Buendi means justice is the consent and perpetual wish to render every one his due.

Ex Abundanti Cautela, the Rule 106 of Rules is extracted:

The fee for a license for the sale of foreign liquor to the trade shall be fixed in each case by the Commissioner on the recommendation of the Collector and shall not be less than Rs. (36) perannum payable in advance. A trade licensee shall sell only to licensed dealers, troops or military bodies and not to the public

There was some amendment about mode of payment but substantially the provision is that the fee for license for sale of India made foreign liquor shall be fixed by the Commissioner (Excise). But it was never provided under this rule that even if a person obtains license for the sale of foreign liquor for a shorter period. Then the whole year, nevertheless the fee has to be paid for whole year.

In my opinion, in view of the discussions made above, the concept of justice has been that it must be in accordance with law and to make available every person his due, it has to be ascertained keeping in view so many factors. In the present context it cannot be the concept of justice that in case the Petitioners have paid more amount of license fee for the limited period, in that event excess amount paid that actual payable for the period for which license was granted, cannot be refunded to them.

In view of the discussions made above, the Division Bench of this Court in C.W.J.C. No. 6118/93 correctly allowed the writ petition and directed the Respondents to refund the license fee which the Petitioners have deposited for a period for which neither license was granted nor Petitioner did business. The same view was correctly followed in C.W.J.C. No. 1587/94. I am in agreement with that view. But the view taken by other Division Bench in C.W.J.C. No. 6496/94 decided on 25.11.1994 does not lay down correct law and it was held that neither proportionate reduction can be made nor the refund. Consequently that decision (in C.W.J.C. No. 6496/94) is overruled. Resultantly these two present writ petitions succeed and the same are allowed. The Respondents are directed to proportionately reduce the license fee for the period for which neither license was granted nor they did any business and the excess amount has to be refunded by 15th May, 1996. In the circumstances of the case, however, there shall be no order as to costs.

Radha Mohan Prasad, J. - I have the privilege of going through the judgment of brother B.L. Yadav, J. I regret, I am unable to agree with the judgment of brother Yadav.

In short, the facts giving rise to these writ applications are that there were advertisements published inviting applications for the settlement of wholesale license of India made foreign liquor. The said licenses were to be settled for the remaining period of financial year on payment of license-fee of Rs. 1,50,000/-. Pursuant to the said advertisements the willing persons including the Petitioners of the two writ applications made applications and they having been found fit were granted licenses. The Petitioners thereafter deposited a sum of Rs. 1,50,000/- as license fee through Treasury Challan without making any protest and were issued license in Excise Form No. 1 for the remaining period. A photo copy of the license has been annexed as annexure 2A to the C.W.J.C. No. 296/95 (R) and annexure 5 to the C.W.J.C. No. 678/95 (R).

In the said licenses it was clearly mentioned that they were authorised to sell portable foreign liquor to licensed dealers at Radium Road, Ranchi from 3.10.94 till 31st March,95 in the first case and in the second case at Gumla from 31.1.95 till 31st March,95 on the conditions mentioned therein and the general conditions applicable to all Excise Licensees annexed thereto. One of the conditions mentioned therein was that the Petitioners should pay to Government in advance a fee of Rs. 1,50,000/-into Treasury/sub-treasury, which they deposited without any protest, however, it appears that later, on advice they filed the present writ applications in which for the first time it was alleged that the action of the Respondents is completely arbitrary, unreasonable and visits the Petitioners with civil consequences besides that the same is not equitable and that the Respondents can not charge any license fee for the period the Petitioners have not done any business. As the Petitioners had already deposed a sum of Rs. 1,50,000/- which accordingly to them was by way of advance, they claimed for the proportionate refund/adjustment of the license fee in 1995-96, as according to them, the Respondents can charge license fee only for the remaining period, for which the licenses were granted.

A counter affidavit has been filed on behalf of the Respondents, in which it is stated that the writ petitions are barred by the principle of stopple and waiver, inasmuch as, the question raised therein have already been decided and adjudicated upon by this Court in an earlier writ petition, the reference of which has been made in the aforementioned judgment of learned brother B.L. Yadav, J. It is further contended that the trade in the intoxicants stand on a different footing which can be regarded in a manner different from other trade and thereof exclusive provision has been judicially evolved. It is thus, contended that the fee so charged is in consideration of special benefit or privilege granted which the Petitioners would not have been able to enjoy, unless obtained the wholesale license.

According to the Respondents, having known the implication on the aforesaid settlement the terms and conditions thereof, for the remaining period 1994-95 the Petitioners took the settlement willingly paying the prescribed fee and as such they are stopped from challenging the quantum of prescribed fee for the wholesale license. It is stated that in case of retail vend of country liquor the fees to different shops vary according to the potentiality of shop and competitive bids, while in case of a wholesale trade licenses of India made foreign liquor the fee is fixed and the licensee may sell the liquor to the retailers of other district too, such as, in the case of the Petitioner of the first case, he being the wholesale dealer of Ranchi district has also made sale of liquor in the other districts like Gumla, Lohardagga districts. In the case of retail vend of country liquor the scope is strictly limited to the counter sale only.

Further, it is stated that according to Rule 106 the prescribed license fee payable in lump sum was Rs. 1,50,000 in advance for the said license and there is no provision of proportionate license fee in the Act or Rules thereof. According to the Respondents as a matter of fact, the license fee prescribed in Rule 106 is the consideration money which the State is entitled to charge for parting with the privileges and in absence of any provisions for proportionate fee they were entitled to settle the license in accordance with Rule 106 at the prescribed license fee of Rs. 1,50,000/- for the licenses In question. It is also stated that the India made foreign liquor is not an essential commodity and there is no retail price fixation from the Government. All rights in regard to sale of intoxicants vests in the State and it is open to the State to part with those rights for a consideration, as is stipulated in rule 106 irrespective of the period for which the privilege is granted.

Before considering the submissions made by the learned Counsel for the parties I wish to refer to certain provisions dealing with the grant of license Section 20 of the Bihar Excise Act, 1915 (hereinafter referred to ''the Act'') provides that no intoxicant and no portion of the hemp plant from which an intoxicant drug can be manufactured or produced shall be sold except under the authority and subject to the terms and conditions of a license granted in that behalf by the Collector. There are certain proviso attached to the section with which we are not concerned in the present case.

Section 38 of the Act deals with the fees for terms, conditions and form of, and duration of, licenses, permits and passes.

Section 39 of the Act deals with the power of the Board to reduce fee and vests power in the Board to order a reduction of the amount of fees payable at any timing during the period for which any license has been granted during the unexpired portion of the grant.

Section 89 deals with the power of the State Government to make rules and under Clause (e) of Sub-section (2) of the said provision to make the rules for regulating the periods for which licensed for the wholesale or retail vend of any intoxicant may be granted and the number of such licenses which may be granted for any local area.

Section 90 vests power in the Board to make rules and under Sub-section (7) of the said provision the Board has been vested with the power to make rules for prescribing the scale of fees or manner of fixing the fees payable in respect of any exclusive privilege granted u/s 22 or any license, permit or pass granted under this Act, or in respect of the storing of any intoxicant.

Section 43 deals with withdrawal of licenses, and Section 44 deals with surrender of licenses.

Rule 44 of 1919 Rules framed by the State Government provides for duration and number of licenses to be granted. According to the said provisions, licenses for the wholesale or retail vend of excisable articles may be granted for one year from 1st April to 31st March. But under Sub-rule (2) if any license is granted during the course of financial year, it can be granted only up to 31st March, next following.

Rules 120 to 121 of the Rules framed u/s 90 provides different fee in respect of different licenses and the relevant rule is Rule 106 which has been substituted by notification dated 27th March, 1987 contained in annexure-4 read with the one contained in annexure-5 whereby and where under a sum of Rs. 1,50,000 per annum has been prescribed as the a fees for license for the deposit of foreign liquor in the Bonded Warehouse and for sale of foreign liquor to the trade. The said provision has been made effective from 1.4.1990.

Learned Counsel appearing for the Petitioners submitted that as in the advertisements itself there was clear stipulation that the licenses in question were to be granted only for the remaining period of the financial year 1994-95, the Respondents authorities were not justified in realising the license fee for the whole of the year and the Petitioners thus, are entitled for proportionate reduction/adjustment in the license fee,

According to the learned State Counsel under the scheme of the Act and Rules the license is to be ordinarily granted for one year on prescribed fee, but from the various provisions of the Act and the Rules It is clear that the Legislators were clear in their mind that there would not be any question of remission for grant of exclusive privilege Irrespective of the period Inasmuch, as in, the absence of any provision on proportionate license fee in the Act, the law does not sanction for parting with the said privilege on any lesser fee than the prescribed one.

Further, it was submitted by him that the State has the exclusive privilege to deal with manufacture and sale of the liquor in question and the Petitioners had no fundamental rights to get the said exclusive privilege. Thus, according to the State Counsel, the State is entitled for charging the fee for parting with the said privilege. It was also submitted by the learned Counsel for the State that in the present writ application the Petitioners were fully aware of the period for which the exclusive privilege was to be granted and also the conditions that they had to pay a license fee of Rs. 1,50,000 for the said period and accordingly they entered into the contract by depositing the money without making any protest and thereby got licenses for the same. As such the Petitioners are stopped from challenging the quantum of the fee deposited by them for grant of exclusive privilege for specified period.

In reply, the learned Counsel for the Petitioners did not dispute that the Petitioners had no fundamental right, but it was submitted by them that if the authorities act in discriminatory or in unreasonable manner, then one can certainly enforce it and argue before this Court violation of Article 14 of the Constitution. It was also submitted by them that the use of the words ''per annum payable in advance'' in Rule 106 leaves no room for doubt that the prescribed license fee is for the whole of the year and if the license is granted for any lesser part of the year, then the fee is to be charged after making proportionate reduction. I am unable to agree with this submission of the learned Counsel for the Petitioners.

It is true that Rule 100 prescribes the license fee payable in advance perannum, but in my opinion, that cannot be interpreted to mean that the said license fee could only be charged if the license granted for the whole year and in case any lesser period a proportionate reduction is to be made in the fee. According Black''s Law Dictionary the expression perannum'' means ''by the year''; ''annually ''yearly'' and the word ''annually means, ''yearly or once a year'' but does not in the signify what time in year and also means ''accruing within space of a year''; relating to or covering the event or affairs of a year''; ''once a year'', without signifying what time in year.

Thus, from the above, it is clear that the words ''per annum'' used in Rule 106 only denotes the minimum fee prescribed therein to be charged for the event relating to or covering the event or affairs of a year and cannot be interpreted to mean that there can be any reduction made in the prescribed fee if the State Government parts with its exclusive privilege only for a period of the year and not for the whole year. Under Rule 44 of the 1919 Rules a license for the wholesale or retail vend of excisable articles is to be ordinarily granted for one year from 1st April to 31st March, but Sub-rule (2) of the said Rules makes it clear that a license can also be granted during the course of financial year, but only upon 31st March next following and under Rule 106 the prescribed license fee is Rs. 1,50,000/-per annum for fees for license for the deposit of foreign liquor in the Bonded Warehouse and for sale of foreign liquor to the trade without making any exception or provision for payment of proportionate license fee to be charged annually.

From the above there cannot be any doubt that the authority is vested with power to grant license even during the course of financial year, but only up to 31st March, next following and the license fee prescribed for the same is fixed. The learned Counsel for the Petitioners has not been able to point out any provision in the Act or the Rules, under which the authority has been vested with the power to grant any remission or order for refund at the initial grant of exclusive privilege. The provisions regarding remission or refund are contained only in Sections 39, 43 and 44 of the Act which can only be granted in case of any subsequent exigency intervening, such as, for unexpired portion of the grant or in the cases of withdrawal of licenses and/or surrender of licenses and not at the initial grant, inasmuch as the said provisions have no application where the grant itself is given under certain conditions.

The Supreme Court in the case of State of U.P. v. Sheopat Rai, reported in AIR 1994 S.C. 813, held that the term ''license fee'' or ''fixed fee'' used in the context of U.P. Excise Act, the Ordinance read with the preamble and the Excise (Amendment) Rules is the amount of consideration receivable by the State Government for parting with the exclusive privilege or right in dealing with liquor or drugs including the exclusive privilege of vending foreign liquor in favor of a private party under a license (contract).

In the case of Excise Commissioner, Uttar Pradesh, Allahabad and Others Vs. Ram Kumar and Others, it was held by the Apex Court that the duty of license fee can be imposed on the basis of the parting with the privilege by the State under the rules of contract and that liability to make payment of license fee emanates primarily from the terms and conditions of grant of license (Excise contract). A reference in this regard is also invited to the decision of the Supreme Court in the case of Ram Lal v. State of Rajasthan, reported in AIR 1975 S.C. 2008 and Nashirwar and Others Vs. State of Madhya Pradesh and Others,

In the present writ applications there was clear stipulation made in the advertisements as well as in the licenses shall be granted only for the remaining period and for which the required fee would be Rs. 1,50,000/-. In my opinion, the Petitioners having accepted the said conditions and entering into the contract and also having taken benefit there form, cannot now be heard to say that the said conditions were unconscionable. It is neither the case of the Petitioners, nor there is any pleading on the basis of which it cant be held that the license fee charged from them were unreasonable, excessive and/or not right or reasonable.

With due respect I am unable to agree with brother B.L. Yadav, J. that if the Petitioners have to make payment for the whole period and not for the remaining period only, that would amount, as if the material thing was concealed by the State Government in the advertisements. In fact, everything was made clear in the advertisement and further at the time of grant of the licenses r they were accepted by the Petitioners, who also availed the benefit flowing there form. It is well-accepted principle that a party cannot both approbate and re-approbate. He cannot, to use the words of Honey man, J. and Smith Beker (1873 8 CP 350) ''at the same time blow hot and cold. He cannot say at one time that the transaction is valid and thereby obtain some advantage to which he could only be entitled on the finding that it is valid and at Anr. say it is void for the purpose of securing some further advantage.

The State or its officers never forced the Petitioners to take the license and/or enter into such a contract for taking a license. The Petitioner had the option not to make an application or to get the position clarified In regard to license fee before taking the privilege, if it was not suitable or profitable to them. But having taken advantage of the completed transaction they cannot now turn around and say that the State or its officers were not entitled for realising the aforementioned fee from them.

I am also unable to agree with brother B.L. Yadav, J. that the Petitioners have been compelled to pay more license fee for the whole year 1994-95. The license was granted for a particular period and for which the fee was charged from them and they paid it willingly without raising any objection. In my opinion, there is no question of the Petitioners having paid more amount of license fees for the limited period. The Petitioners entered into a contract with the State for parting its exclusive privilege under certain conditions and on payment of a fixed amount of license fee according to the terms of the contract. Thus, I am unable to agree with the view of brother B.L. Yadav, J. that there was any excess payment of amount than the actual amount payable for the period by the Petitioners was made, for which they are entitled for relief from this Court in order to do justice to them.

Accordingly, I do not find any merit in the writ-petitions, and the same are dismissed, but without costs.

Narayan Roy, J.

I have gone through the judgments of brethren B.L. Yadav, J. and Radha Mohan Prasad, J. I regret my inability to agree with the judgment of brother B.L. Yadav, J. However, I am in full agreement with the operative part of the judgment rendered by brother Radha Mohan Prasad, J., but at the same time I am tempted to say something of my own.

The short facts in both these writ applications are as under.

There were advertisements published in the newspapers inviting applications for settlement of wholesale Licenses of India made foreign liquor. The said licenses were to be settled for the remaining period of the financial year on payment of license fee of Rs. 1,50,000/-. Pursuant to the advertisements aforementioned, the Petitioners, along with other willing persons filed applications. The State authorities on scrutiny selected them and they were granted licenses. The Petitioners thereafter deposited the license fee through Treasury Challan and pursuant thereof license in Excise Form No. 1 for the remaining period was issued to them. After having obtained the licenses the Petitioners filed the present writ applications alleging therein that the action of the Respondents was completely arbitrary, unreasonable and the same was not equitable as the Respondent could not have charged license fee for the period the Petitioners had not done any business and the Petitioners, therefore, prayed for proportionate refund/adjustment of the license fee in 1995-96. The Respondents filed their counter-affidavit and prayed for dismissal of the writ applications on the ground that the license fee was realised for whole of the financial year and since it was the exclusive privilege of the State to part with the liquor vend, Petitioners had no right to ask for proportionate refund or adjustment. It was also contended in the counter-affidavit that there was a clear stipulation in the advertisement directing the willing persons to deposit the license fee for the financial year amounting to Rs. 1,50,000/- and as such the Petitioners could not have prayed for proportionate refund or adjustment.

The provisions of law under the Bihar Excise Act, 1915 and the Rules there under have already been noticed by brother Radha. Mohan Prasad, J. in his dissenting judgment and as such I need not repeat the same.

According to Rule 106 of the Bihar Excise Rules, the prescribed license fee payable in lump sum was Rs. 1,50,000/- in advance for the said license and there is no provision of proportionate license fee in the Act or Rules thereof. The license fee prescribed in Rule 106 is the consideration money, which the State is entitled to charge for parting with the privileges and in absence of any provision for proportionate fee the State appears to be entitled to settle the license in accordance with Rule 106 at the prescribed license fee. It would be pertinent to mention here that ail rights in regard to sale of intoxicants vests in the State and it is the exclusive privilege of the State and it is open to the State to part with those rights for a valuable consideration as is stipulated in Rule 106, irrespective of the period for which the privilege is granted. The action of the State Government, therefore, cannot be said to be arbitrary, unreasonable and violative of Articles 19(1)(g) and 14 of the Constitution of India.

The decision rendered by the Supreme Court in the case of Har Shankar and Others Vs. The Dy. Excise and Taxation Commr. and Others, is the authority on the point. The Apex Court in Har Shankar''s case (supra) has held that since rights in regard to intoxicants belong to the State, it is open to the Government to part with those rights for a consideration. It has further been held that citizens cannot have any fundamental right to trade or carry on business in the properties or rights belonging to the Government, nor can there be any infringement of Article 14, if the Government tries to get the best available price for its valuable rights.

In Krishna Kumar Narula etc. Vs. The State of Jammu and Kashmir and Others, the Apex Court has observed:

We, therefore, hold that dealing in liquor is business and a citizen has a right to do business in that commodity; but the State can make a law imposing reasonable restrictions on the said right, in public interests.

In the said case it was also observed:

The fact that the Government was the seller does not change the legal position once its exclusive right to deal with those privileges is conceded. If the Government is the exclusive owner of those privileges, reliance on Article 19(1)(g) or Article 14 becomes irrelevant. Citizens cannot have any fundamental right to trade or carry on business in the properties or rights belonging to the Government nor can there be any infringement'' of Article 14, if the Government tries to get best available price for its valuable rights.

The ratio laid down in the case of Excise Commissioner, Uttar Pradesh, Allahabad and Others Vs. Ram Kumar and Others, has already been noticed by brother Radha Mohan Prasad, J., in his judgment and that is the settled law on the point that license fee can be imposed on the basis of the parting with the privilege by the State under the Rules of contract and that liability to make payment of license fee emanates primarily from the terms and conditions of grant of license.

In the advertisements there were clear stipulations with regard to the conditions of grant of license and the license fee accordingly was charged from the willing persons for whole of the financial year. The Petitioners pursuant to the advertisement entered into a contract with the State for parting with its exclusive privilege under certain conditions and on payment of fixed amount of license fee according to the terms, of the contract. In that view of the matter there is no question of excess payment of amount that the actual amount payable for the period by the Petitioners.

For the reasons aforementioned and in view of the legal propositions noticed above, I find no merit in these two writ applications and the same are, accordingly, dismissed without costs.