A. K.GOEL, J. - (1.) THE reliefs sought for in this petition are : "(i) To declare that Section 25 and 36(2)(j) of the Assam Excise Act, 1910 and Rule 244 of the Assam Excise Rules,1945 are illegal, uncons-titutional, ultra vires and void and consequently the Assam Excise (Amendment) Rules, 2010 (published in the Assam Gazette, Extra-ordinary dated 29.09.2010) vide Notification dated 29.09.2010 issued by the Respondent No.2 (Annexure-3) is uncons-titutional and void; and/or (ii) To set aside and quash Sections 25 and 36(2)(j) of the Assam Excise Act, 1910 and Rule 244 of the Assam Excise Rules, 1945 as well as the Assam Excise (Amendment) Rules, 2010 (published in the Assam Gazette, Extra-ordinary dated 29.09.2010) vide Notification dated 29.09.2010 issued by the Respondent No.2 (Annexure-3) is unconstitutional and void; and/or (iii) Alternatively, to declare and set aside the aforesaid impugned Amendment as arbitrary, unconstitutional, ultra vires and void; and/or (iv) Alternatively, to read down Sections 25 and 36(2)(j) of the Assam Excise Act, 1910 and Rule 244 of the Assam Excise Rules, 1945 to remove the arbitrariness by setting aside and quashing the Assam Excise (Amendment) Rules, 2010 (published in the Assam Gazette, Extra-ordinary dated 29.09.2010) vide Notification dated 29.09.2010 issued by the Respondent No.2 (Annexure-3) as unconstitutional and void; and/or (v) Issue a direction to the Respondents authorities not to levy annual fees for foreign liquor retail 'off' licence upon the members of the Association as per impugned provisions, and/or (vi) Issue a direction to the Respondents authorities to recall, rescind and otherwise forebear from giving effect to the Assam Excise (Amendment) Rules, 2010 (published in the Assam Gazette, Extra-ordinary dated 29.09.2010) vide Notification dated 29.09.2010 issued by the Respondent No.2 (Annexure-3) as unconstit-utional and void."
(2.) THE petitioner is an association of licence holders of Indian Made Foreign Liquor (IMFL) and is aggrieved by the enhancement of rate of annual fee of licence for retail sale of IMFL for consumption of IMFL 'OFF' by 100% under Rule 244 of the Assam Excise Rules, 1945 framed with reference to Sections 25 and 36 of the Assam Excise Act, 1910. The provisions of the Act provide that no intoxicant can be sold except under the authority and in accordance with terms and conditions of licence (Section 15). Section 25 of the Act provides for the licence fee which may be prescribed under the Rules made under Section 36(2)(g) of the Act. Rule 244 lays down table of fee for various licences. The annual fee for foreign liquor retail 'off' licence was amended from time to time. In the year 2002, the fee was Rs.50,000/-. It has been raised to Rs.1 lakh vide Notification dated 01.04.2011. Objection of the petitioners are two fold: (i) There is no guideline for laying down the scale of fee. Power conferred by Section 25 authorising levy of fee under the Rules without there being any guideline amounts to excessive delegation and is unconstitutional. (ii) Even if the said power can be held to be guided by the policy and purpose of the Act, the power cannot be exercised arbitrarily. Increase of fee has to be reasonable and allowed after taking into account relevant considerations. 100% increase without indicating any basis thereof was arbitrary and unreasonable. The increase was uniform without taking into account the location or scale of sales of the retailers in question, thus treating unequals as equals.
(3.) THE petition has been contested by filing an affidavit by the Deputy Secretary to the Government of Assam, Excise Department. According to the respondents, licence fee is not a fee within the meaning of Entry 66 of List II of Seventh Schedule but was covered by Entry 8 of List II of the Seventh Schedule to the Constitution as price for consideration for which the Government parted with its privilege for dealing with liquor. It was neither regulatory nor compensatory fee. Licence fee was enhanced in the interest of the Govern-ment revenue, after due consideration of all relevant aspects, including the increased volume of business, large number of IMFL licences operating in the State and ever increasing applications for such liences. We have heard learned counsel for the parties.;