Anubha Rawat Choudhary, J. - (1.) Heard Mr. Prabhat Kumar Sinha, counsel for the petitioner and Mr. D.K. Dubey, Senior S.C.I appearing for the respondent-State.
(2.) This writ petition has been filed for the following reliefs:- "the petitioner prays for issuance of a writ of or in the nature of certiorari for quashing of demand notice issued under Memo No. 299 dated 11.02.2010 (Annexure-7) by respondent no. 5 whereby and whereunder petitioner is directed to deposit a sum of Rs. 13 Lakhs as different of license fee for the period 2004-05 to 2009-10 by 25.02.2010 in one lump sum otherwise the respondent will charge interest on the same; and/or For issuance of such other Writ(S)/Rule(S)/' Direction(S)/Order(S) as Your Lordship may deem fit and proper under the facts and circumstances of the instant case."
(3.) Counsel for the petitioner submits as under:- (i) Petitioner has been running a bar-cum-restaurant in the district of Bokaro in the name of Taste Paradise and as per provision of Jharkhand Excise Act, 1915 and the rules framed thereunder, the petitioner had applied for issuance of license and the excise license was duly granted to the petitioner on 31.05.2002 for the period from the date of issuance of licence i.e from 31.05.2002 till 31.03.2003. (ii) The amount of license fee per year as prevalent at the relevant point of time was Rs. 1,00,000/-. (iii) The petitioner submits that the license is required to be renewed every year after completion of necessary formalities and after the satisfaction of the respondent authorities the license was renewed for the period 2003-04 and 200405 upon payment of Rs. 1,00,000/- for each year. (iv) However, in the year 2004-05, on 31.07.2004, during the currency of license period 2004-05, the relevant Rule 107 was amended by the Member, Board of Revenue in exercise of its power under section 90 of Jharkhand Excise Act, 1915 which was contained in Memo No. 1142(B) dated 31.07.2004 and for the period 2005-06 license fee was fixed @ Rs. 2 lakhs. (v) During the period 2005-06 the petitioner was served with Memo No. 1737 dated 18.10.2005 wherein the petitioner was asked to deposit license fee of Rs. 5,00,000/-. This according to the petitioner was pursuant to the notification dated 31.07.2004 as per clause 3 of the notification, bar-cum-restaurant situated in Ranchi, Jamshedpur, Dhanbad, Bokaro and Hazaribagh town were required to pay license fee @ Rs. 5,00,000/- each year. (vi) The specific case of the petitioner was that the petitioner's bar-cum-restaurant is not located in the town of Bokaro and accordingly, he moved petition before the Member, Board of Revenue under the provisions of section 8(3) of Jharkhand Excise Act, 1915 and challenged the said demand of license fee. (vii) The Member, Board of Revenue, vide order dated 30.03.2007 held that the location of the petitioner is within the limit of Chas municipality and the order as contained in Memo No. 1737 dated 18.10.2005 was set aside and the Excise Commissioner i.e. Respondent no. 3 was directed to issue a demand letter strictly in accordance with the letter and spirit of amendment of Rule 107 of Jharkhand Excise Act, 1915. (viii) However, as the petitioner had deposited license fee of Rs. 5,00,000/- for the year 2005-06, the said deposit was duly adjusted in the subsequent years and ultimately, the petitioner had paid license fee for the period 2004-05 to 2009-10 @ Rs. 1,00,000/-, Rs. 2,00,000/-, Rs. 2,00,000/-, Rs. 2,00,000/-, Rs. 2,00,000/-, and Rs. 2.00.000/- respectively. (ix) Counsel for the petitioner submits that suddenly Memo No. 299 dated 11.02.2010 was issued to the petitioner and the petitioner was directed to deposit the differential amount of license fee calculating the license fee @ Rs. 4,00,000/-each year and thus total amount of demand of Rs. 13,00,000/- was registered. This was raised on the basis of the fact that the location of bar and restaurant of the petitioner is on National Highway No. 23. (x) In the entire writ petition as well as in his argument, the counsel for the petitioner has not disputed the fact that the bar and restaurant of the petitioner is located in National Highway No. 23. (xi) The contention of the petitioner is that the respondents have demanded the differential amount of license fee after the expiry of the majority of the license period and during the currency of the license period 2009-10 and the petitioner has made specific statement at para 17 of the writ petition that the rate at which liquor has to be sold at the bar is being fixed by the licensee who used to fix the same in such a manner that after sale of the liquor they can realize their investment in the form of license fees, excise duty sales tax and other expenses incurred by the licensee in running the Bar and Restaurant and also to earn some profit. (xii) It is the specific case of the petitioner that as the period of license had expired, the petitioner cannot realize the difference of license fee from his customers and therefore, the demand of licence fee on expired period of license cannot be justified and the petitioner cannot be held to be liable on account of acts or omissions of the respondents. (xiii) Further the case of the petitioner is that the authorities themselves were confused about the location of the restaurant-cum-bar of the petitioner and it was only in the year 2010, the respondents had come to know that the location of the bar and restaurant of the petitioner is located on the National Highway. (xiv) Counsel for the petitioner has referred to judgment passed in the case of Ram Kumar Singh Choudhary v. The State of Jharkhand reported in 2005 (2) JCR 105 (Jhr) and has submitted that the notification dated 31.07.2004 was challenged before the Hon'ble High Court wherein it was held by the Hon'ble High Court at para 9 is as follows:- "For the reasons aforesaid, the prayer of the petitioners for quashing the Notification No. 1142(B) dated 31.07.2004 can not be allowed. But we hold that the enhancement of the licence fee, as sought by the said notification, will not be applicable in the cases of the petitioners licenses for which renewal fee for the financial year 2004-05 has already been realized in advance in one lump sum prior to the issuance of the said notification and the same cannot be enforced with retrospective effect and will be applicable only on the fresh settlement or renewal of the licenses, with prospective effect." (xv) Counsel for the petitioner submits that for the period 2004-2005 the license was renewed on 12.04.2004 which is apparent from a copy of the license annexed with the writ petition whereby license fee of Rs. 1,00,000/- was paid and since the license fee for the period of 2004-2005 was paid prior to issuance of notification dated 31.07.2004, therefore, in view of the aforesaid judgment the differential amount of license for the period 2004-2005 at least could not have been demanded by the respondents. ;