- (1.) The appellants are aggrieved against the judgment and order dated 30 th August, 2011 passed by the learned Single Judge in W.P.(C) Nos.1400, 1909 & 2003 of 2011, by which the learned Single Judge has allowed the writ petitions of the petitioner respondent and set aside the Notice Inviting Tender for grant of exclusive privilege of manufacture and supply of country liquor and spiced country liquor after bottling/ sacheting on the wholesale basis for a period commencing from 1 st April, 2011 to 31 st March, 2014, which NIT was issued under the order of Member, Board of Revenue, who issued two impugned Notice Inviting Tenders to initiate selection process for grant of above exclusive privilege and the respondent State was directed to initiate fresh NIT for grant of said exclusive privilege in accordance with the provisions and after framing rules at the behest of the State Government. The learned Single Judge held that the Member Board of Revenue had no authority to issue such NITs as the power has not been delegated to the Board of Revenue and it could only be exercised by the State Government.
(2.) It will be appropriate to take account of the background facts first. To amend and re enact the Excise law in the Province of Bihar and Orissa, Bihar & Orissa Excise Act, 1915 was enacted after previous sanction of the Governor General under Section 5 of the Indian Councils Act,1894 relating to the import, export, transport, manufacture, possession and sale of certain kinds of liquor and intoxicating drugs. In the year 1985, by Act 6 of 1985 , name of that Act has been changed to Bihar Excise Act,1915. By this Act, provisions have been made to control and regulate the import, export, transport, manufacture, possession and sale of certain kinds of liquor and intoxicant drugs. With coming into force of the said Act of 1915, by Sections 9 and 10, certain restrictions were imposed on import, export and transport and for manufacture, possession and sale and license was made compulsory for certain purposes under the Act of 1915 under Chapter IV. For general trade in liquor/intoxicating drugs, licenses are granted under Sections 13 to 16 and 20 of the Act of 1915. Section 13 provides that no intoxicant shall be manufactured, no hemp plant shall be cultivated, no portion of the hemp plant from which an intoxicating drug can be manufactured or produced shall be collected, no liquor shall be bottled for sale, no distillery or brewery shall be worked, and no person shall use, keep or have in his possession any materials, still, utensil, implement or apparatus whatsoever for the purpose of manufacturing any intoxicant other than Tari , except under the authority and subject to the terms and conditions of a license granted in that behalf by Collector. For Tari also provision was made under the proviso to Section 13 as well as under Section 14. Section 15 provides for provisions of establishment of distilleries, breweries or warehouses and it says that no distillery, brewery or warehouse as mentioned in sub section(1) of Section 15 shall be established , except by or under the authority of the Excise Commissioner. On removal from distillery, brewery, warehouse or other place of storage of intoxicant, the licensee is required to pay duty as provided by Section 17. Further, by Section 18, it has been provided that no person shall have in his possession any intoxicant which has not been obtained from a licensed vendor of the same, subject to exception given under sub section(2) of Section 18. Section 20 require for obtaining license for sale and under sub section(4) of Section 20, requirement of license has been dispensed with for the persons falling in sub clause(a) to (e) thereof. The above are the provisions related to subject referred above and in the year 1982 , by Act 17 of 1982 , Section 22 was substituted, which is relevant for the purpose of deciding these Letters Patent Appeals.
(3.) In the year 1995, in the undivided State of Bihar, in exercise of powers under Section 22(1) grant of privilege in a specified local area of manufacture as well as wholesale supply was granted to more than one person and license fee was charged and collected from each of such grantees of the privilege in each of the specified local area. The State Government sought to recover license fee of equal amount from all persons who have been granted license under Section 22(1) for one year, meaning thereby if there are more than one grantee of such licensee in a zone then all were asked to deposit the entire amount of the licensee fee, resulting into charging of the license fee more than the license fee prescribed for the zone and, that too, by multiplying number of the grantees with the license fee fixed for the entire zone. This condition, as indicated above, was challenged by preferring writ petitions before the Patna High Court, wherein it has been held that liability of the grantee is to deposit proportionate license fees only and not each individual is required to pay the entire license fee , fixed for the zone. The said order of the High Court was upheld by the Hon ble Supreme Court. Then the State Government come up with an Amending and Validating Act, 1998 and Amending Act, 1999 and inserted Section 22D to 22G after Section 22 of the Act , enabling the State Government to levy and recover license fee at the rate of Rs.1/ per LPL from each grantee of the zone as well as provided for grant of special privilege for wholesale supply of country liquor after bottling/sacheting it.;