- (1.) Petitioners have filed this writ petition under Article 226 of the Constitution of India challenging the action of the respondents-State in collecting application fee of Rs.30,000/- for grant of licence of retail outlets of Indian Made Foreign Liquor in the State of Rajasthan.
(2.) Learned counsel for the petitioners has submitted that petitioners are educated and unemployed citizens. Petitioners want to start their business and had applied earlier for grant of licence of retail outlets by depositing Rs.28,000/- vide application dated 25.02.2019. However, this year application fee has been raised to Rs.30,000/-. Petitioners are unable to pay the said amount. The amount liable to be deposited at the time of submitting application was on a higher side and had no purpose to achieve. The retail outlets are allotted on the basis of lottery system. State is collecting huge amount at the time of filling up the application, whereas, only lottery system is to be resorted for issuance of licence for the retail outlets. In support of his arguments, learned counsel has placed reliance on the decision of Hon'ble Supreme Court in Kandivali Co-operative Industrial Estate & Anr. Vs. Municipal Corporation of Greater Mumbai & Ors. in AIR 2015 Supreme Court 1434, wherein, it was held as under:- "A fee undoubtedly, is a payment primarily in public interest, but for some special services, rendered or some special work done for the benefit of those from whom payments are demanded. In other words, fees must be levied in consideration of certain services which the individual accept willingly or unwillingly. It is also necessary that fees or charges so demanded must be appropriated for that purpose and must not be used for other general public purposes. Further, indisputably, the legislature can delegate its power to statutory authority, to levy taxes or fees and fix the rate in regard thereto."
(3.) Learned Advocate General has opposed the petition and has submitted that dealing in liquor is not a fundamental right and is the privilege of the State. Hence, the State is entitled for collecting revenue by fixing requisite fee at the time of submission of application forms by the persons who want to participate in grant of licence of retail outlets of Indian Made Foreign Liquor in the State of Rajasthan. Rights with regard to intoxicants belong to the State and it was open for the Government to part with the said rights for a consideration. In support of his arguments, learned Advocate General has placed reliance on the decision of Hon'ble Supreme Court in Har Shankar & Ors. Vs. The dy. Excise and Taxation Commr. & Ors. in (1975) 1 Supreme Court Cases 737, decided on January 21, 1975, wherein, it was held as under:- "Since rights in regard to intoxicants belong to the State, it is open to the Government to part with those rights for a consideration. By Article 298 of the Constitution, the executive power of the State extends to the carrying on of any trade or business and to the making of contracts for any purpose. As observed in Harinarayan Jaiswal's case(supra), (SCC p. 44, para 13) 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 the best available price for its valuable rights. Section 27 of the Act recognises the right of the Government to grant a lease of its right to manufacture, supply or sell intoxicants. Section 34 of the Act read with section 59(d) empowers the Financial Commissioner to direct that a licence, permit or pars be granted under the Act on payment of such fees and subject to such restrictions and on such conditions as he may prescribe. In such a scheme, it is not of the essence whether the amount charged to the licensees is predetermined as in the appeals of Northern India Caterers and of Green Hotel or whether it is left to be determined by bids offered in auctions held for granting those rights to licensee. The power of the Government to charge a price for parting with its rights and not the mode of fixing that price is what constitutes the essence of the matter. Nor indeed does the label affixed to the price determine either the true nature of the charge levied by the Government or its right to levy the same.";