Shinghal, J. - (1.) These appeals by certificate or special leave are directed against judgments of the Orissa High Court dated May 15, 1970. February 3, 1971. April 16, 1971. May 7, 1971. September 6, 1971 and March 28, 1974. They arise out of several writ petitions. The facts which gave rise to the petitions changed from time to time largely because of amendments in the law, and that was the reason for the filing of separate writ petitions resulting in the impugned judgments of the High Court, but we have heard them together at the instance of learned counsel for the parties and will dispose them of by a common judgment. The nature of the controversy in these cases is such that it will be enough to state the basic facts for the purpose of appreciating the arguments of counsel for the parties.
(2.) The Collector of Mayurbhanj issued a notice on February 3, 1970 by which he invited tenders for the grant of licenses for establishing 70 outstill shops for 1970-71. Ajodhya Prasad Shah gave the highest bid for a group of seven shops, in one lot, for Rupees 34,000/- per month. His bid was accepted and his name was entered in the prescribed register, and the entry was signed by the successful bidder and the Collector. Ajodhya Prasad accordingly deposited Rs. 68,000/- on account of two months "fees", in advance, as required by Rule 103 of the Board's Excise Rules, 1965. Raghunandan Saha, who was the unsuccessful bidder, felt aggrieved and filed an appeal, but it was dismissed by the Excise Commissioner on March 16, 1970. The Board of Revenue also refused to interfere. Ajodhya Prasad claimed that in the meantime he made arrangements for establishing his shops and incurred an expenditure of about Rs. 1,50,000/-. He therefore approached the authorities concerned for the issue of the licenses for running the shops from April 1, 1970. He approached the Superintendent of Excise for depositing Rs. 34,000/- for the month of April, but the Superintendent did not pass the deposit chalan. Ajodhya Prasad thereupon filed a Writ Petition (O.J.C. No. 329 of 1970) in the High Court with the allegation that the Collector was not acting according to the law as the State Government had issued instructions to him not to issue the licenses. Ajodhya Prasad prayed in his petition for the issue of directions for the issue of licenses and quashing the State Government's instructions to the contrary. Raghunandan Saha also filed a petition (O. J. C. No. 357 of 1970) on April 13, 1970. The Collector issued a notice for reauction on May 1, 1970 and Ajodhya Prasad amended his petition for quashing the notice also.
(3.) The State Government and the other respondents traversed the claim in Ajodhya Prasad's writ petition and pleaded, inter alia, that the bids at the auction were not satisfactory- and, in the interest of the State revenue, the State Government had passed the orders for not accepting Ajodhya Prasad's bids. The High Court examined the questions whether Ajodhya Prasad was entitled to the issue of the licenses for the seven shops and whether the State Government had the authority to direct the withholding and reauctioning of the licenses, and held, inter alia, that the State Government had no power to interfere with the auction held by the Collector after it had "become final in appeal and revision". and could not direct a reauction. The High Court examined the nature of the realisation at the auction and held that it was a tax which was not contemplated by Section 38 of the Bihar and Orissa Excise Act, 1915, hereinafter referred to as the Act, and that Rule 103 (1) of the Board's Excise Rules in regard to the fees for the licenses was not authorised by the Act and was in excess of the rule-making power of the board. The High Court also held that the "auction price for a license is not excise duty within the meaning of Entry 51 of List II of the Seventh Schedule to the Constitution" and it was not open to the Collector "to follow the process of auctioning for determining the license fee" which was really a tax in the garb of a fee. It held that the aforesaid Rule 103 was incompetent and ultra vires the Act. On the question of grant of the "exclusive privilege" under Section 22 of the Act, the High Court held that what was purported to be given under the sale notice was not the grant of an exclusive privilege. In taking that view the High Court stated that notice had not been issued under Section 22 (1) of the Act and the Collector had no authority to issue such a notice. In that view of the matter. the High Court did not express any final opinion as to whether the license was to be granted for an exclusive privilege to manufacture and sell liquor. The High Court accordingly quashed the direction of the State Govt. dated 15-4-1970 for reauctioning the licence and declared that Rule 103 (1) of the Board's Excise Rules was ultra vires the Act. Appeals Nos. 1892 and 1893 of 1971 are directed against that judgment of the High Court dated May 15, 1970. on certificates.;