S.M.SIKRI, J. - (1.) THESE appeals are directed against the judgment of the High court of Mysore, dated 17/11/1965, disposing of 49 petitions filed under Art. 226 of the Constitution. The High Court disposed of the petitions by one common judgment as. identical questions of law were involved in all of them. We will also dispose of these appeals by this judgment because they raise substantially identical questions of law.
(2.) THESE appeals may, however, be divided into two groups; one dealing with the licences for the sale of Toddy and the other dealing with the licences for the sale of arrack. We may give the facts in one appeal, Civil Appeal No. 1590 of 1966, arising out of Writ Petition No. 1076 of 1964. The appellant, M/s. Guruswami and Co. hereinafter referred to as the petitioner-filed writ petition alleging that the firm was a licensed Excise contractor with its principal office at Bangalore, and that it had been the licensee of the Bangalore Urban group of 26 shops for the year July 1, 196 3/06/1964. The petitioner continued to be the licensee for the same group of shops with five more new shops to be opened for two more years, viz., 1964 -65 ana 1965 -66. The petitioner paid shop rent or the 'kist' for this group of toddy shops amounting to Rs. 3,61,116.00 a month during the year 1963 -64 and Rs. 4,41,216.00 a month for the next two years. This lost amount was determined at the tender -cum -auction sale of the exclusive privilege of vending toddy in the shops of this group during the relevant period. The petitioner paid amount equal to two months .kist as initial and security deposit for each of these years. It was further stated that notice was given under the 1515 notification, dated 20/04/1963, that the exclusive privilege of selling country liquors during the twelve months, beginning from 1/07/1963, and ending with 30/06/1964, in the shops or groups of shops specified in Schedules I and II of the notifications, situated in the district of Bangalore will be disposed of by tender -cum -auction by the Deputy Commissioner of the respective districts or other officers specially empowered by the Deputy Commissioners for the purpose. The notification in para 16 mentioned rates of duty, price, etc, on the several kinds of excisable articles. For instance, on molasses arrack 35o V.P. the duty was Rs.2.73 per litre, price Rs. 0.55 per litre and the minimum retail selling price Rs. 0.61 per decilitre. Under the head Toddy is given: JUDGEMENT_1512_AIR(SC)_1967Html1.htm Then the minimum selling price of toddy is prescribed. It was further stated in Para. 25 of the notification as follows:- "25. For the shops of Bangalore North and South Taluks, City and Civil Area, tapping may be allowed in such areas of Tumkur and Hassan Districts or other Districts as may be notified by the Excise Commissioner and the areas so notified may At any time be altered by notification by the Excise For shops of Taluks of Banglore, Rural District',similar facilities may be given if found necessary." Paragraph 18 of the notification further provided that "sales tax and octroi at the prescribed rates and other taxes that may be levied under any other law shall also be payable." The petitioner further alleged that he was paying tree rent to the owners of toddy -yielding trees for allowing him to draw toddy from the trees. The petitioner also paid education and health cess at the prescribed rates in pursuance of the condition in Para. No. 17 of the aforesaid notification.
(3.) A similar notification was issued on 27/04/1964, for the sale of excise privileges for 1964 -65, and alternatively for 1964 -66. It was mentioned in Para. 18 of this notification that health cess at the rate of nine naye paise per rupee shall also be payable on the shop rent and tree tax on toady and other duties of excise levied on the following articles in accordance with the Mysore Health Cess Act (Mysore Act No 28 of 1962), hereinafter referred to as the impugned Act, namely, (1) Mandya made Special Liquor; (2) I.M.F.L.; (3) arrack; and (4) beer. The petitioner alleged that as a result of the impugned Act it would have to pay Rs. 86,518 more as health cess for the year 1964 -65. The petitioner then challenged the impugned Act as ultra vires on various grounds which need not be mentioned at this stage. The petitioner claimed the following reliefs:- (a) to declare that the State of Mysore has no authority to levy and collect "health cess' under the Mysore Health Cess Act 1962, and its predecessor Act of 1951 on shop -rent, tree -tax, tree -rent or any other item of revenue payable by the petitioner in respect of its business in toddy; (b) to issue a writ, order or direction quashing condition No. 18 in the notification dated 27/04/1964, which relates to the levy of health cess on their business of toddy; (c) to issue a writ of prohibition or order or direction in the nature of a writ restraining all or any of the respondents from enforcing the above impugned condition or by any other similar demand for payment of health cess under the Health Cess Act; and (d) to issue a writ of mandamus directing refund of health cess illegally collected from the petitioner or any other consequential order and direction as may meet the ends of justice, for refund of Health Cess already collected under the provisions of the Health Cess Act of 1962 and 1951 in respect of toddy. ;