A.K. Banerji and V.K. Khanna, JJ. - (1.) THE petitioner in the present writ petition is a licensee, who has been granted licence in respect of country liquor shops in an auction held on 25th March, 1985. The relief sought by the petitioner in the writ petition is a writ of certiorari quashing the provisions for fixation of minimum guarantee quota of liquor to be lifted by a licensee as provided under rule 3 of the U.P. Settlement of Country Liquor Licences (Tender -cum -auction system), Rules, 1985 (hereinafter referred to as the "Rules 1985"). At the very outset it may be mentioned that at the admission stage the respondents accepted notice and filed counter affidavit to which rejoinder affidavit has been filed by the petitioner. The writ petition has been finally heard in accordance with the provisions of the Rules of the Court.
(2.) LEARNED counsel appearing for the State at the very out -set raised preliminary objections to the effect that - - (i) The controversy raised in this petition is covered by a recent Division Bench decision of this court in the case of Basant Lal and others v. District Excise Officer and others W.P. No. 374 of 1985 decided on 5 -8 -1985. It has been further urged in this connection that Special Leave Petition (S.L.P. No. 10833 of 1985) was filed in the Supreme Court against the decision of this court in the case of Basant Lal and others (supra) which has been rejected by the Supreme Court on 4 -10 -1985. On the aforesaid basis it has been contended that validity of Rules 1985 have been upheld by the Supreme Court. (ii) In any view of the matter, as has been held by the Supreme Court in the case of State of Haryana and others v. Jage Ram and others : A.I.R. 1980 S.C. 2018 and in the case of Basant Lal and others (supra,) the present writ petition is not maintainable. Moreover, the petitioner himself has executed counter part agreement in form G. 45 contained in Annexure I to the supplementary Act. Section 31 prescribes forms and conditions of licences etc. and prescribes that every licence, permit or pass granted under this Act shall be granted in such forms and contain such particulars as the Excise Commissioner may direct either generally or in any particular instance in this behalf. Section 41 of the Act gives powers to Excise Commissioner to make rules. Rule 333 of the Rules framed under the Act prescribes: All licences shall be signed by the Collector or the District Excise Officer, and all licences under section 24 by the Collector himself, These Officers are reminded that they are personally responsible that all licences issued and counter parts accepted are strictly in accordance with the terms as sanctioned by the higher authority and duly executed according to law. From what has been noticed above, it, therefore, becomes clear that the grant of exclusive privilege of manufacture etc in respect of country liquor is done under section 24 of the Act by the Excise Commissioner. However, as far as the licence is concerned that is issued under rule 333 and has to be signed by the Collector himself. What section 21 of the Act prescribes is the prohibition of sale of any intoxicant unless there is a licence from the Collector. When a licence is signed by the Collector under rule 333 of the Rules framed under the Act, it is in respect of the exclusive privilege which has been granted to the petitioner under section 24 of the Act. The argument raised by the learned counsel is, therefore, without any force.
(3.) IT has then been urged that rules 1985 are ultra -vires as they transgress the limits of section 32 of the Excise Act. It has also been argued that the issue price is nothing but excise duty inasmuch as what is being sought to be charged is really excise duty. These two arguments were precisely raised in the case of Basant Lal and others (supra) and for the detailed reasons given in the aforesaid case we are of the so valid in the country liquor. It has also been argued that the licence given under section 21 of the Act can not be assigned while a person in whose favour exclusive privilege has been granted can let out or assign his rights to another person and the grantee of the exclusive privilege has been given right to recover under sub -lease. Reliance has been placed on the provisions of section 21, 24, 26, 27, 34, 39 and 44 of the Act. In respect of cancellation of licence it has been said that the licence for exclusive privilege can be granted under section 24 of the Act by the Excise Commissioner and the same cannot be cancelled by the District Magistrate without obtaining approval of the Excise Commissioner. On the aforesaid facts it has been argued that as no exclusive privilege has been granted to the petitioner under the licence the Rules 1985 framed have no application to the petitioner's case and no issue price can be charged from the petitioner. It may be mentioned at this stage that the learned counsel for the petitioner has, however, conceded that the auction can take place under the Rules 1985 framed under section 24 of the Act but as the licence has been granted by the Collector under section 21 of the Act it can not be said that exclusive privilege has been granted to the petitioner.;