IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12652 of 2008 **** Dharmendra Kumar Singh, s/o Nawal Kishore Singh, r/o-Chandmari Road, P.S.-Kankarbagh, District-Patna, Settlee of Indian made Foreign Liquor, Shop No.30, P.M.C.-Patna. …. …. Petitioner Versus 1. The State of Bihar through the Secretary, Excise and Prohibition Department, Government of Bihar, Patna. 2. The Commissioner, Excise and Prohibition Department, Government of Bihar, Patna. 3. The Joint Commissioner, Excise and Prohibition Department, Government of Bihar, Patna. 4. The Assistant Commissioner, Excise and Prohibition Department, Government of Bihar, Patna. 5. Member, Board of Revenue, Bihar, Patna. 6. Bihar State Beverages Corporation Ltd. through its Managing Director, Vidyut Bhawan, Bailey Road, Patna. 7. The Managing Director, Bihar State Beverages Corporation Ltd., Vidyut Bhawan, Bailey Road, Patna. …. …. Respondents ----------- For the Petitioner : Mr. Nishant Choudhary, Advocate Mr.Rajiv Prashant, Advocate For the Respondent State : Mrs. Nividita Nirvikar, Government Pleader-XVI For the Respondent Corporation: Mr. P.K.Shahi, Senior Advocate Mr. Vikas Kumar, Advocate Mr. Girijesh Kumar, Advocate ---------------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal --------- Dated, the 25th September, 2008. We heard the counsel for the petitioner. 2. The petitioner has prayed for the following - 2 - reliefs: - “1. That this application is for issuance of appropriate writ/writs order/orders, direction/directions for the following reliefs:- (i) To command Board of Revenue, Excise Department and Bihar State Beverages Corporation Ltd. to include in its detailed brand wise price list, the movement fee of Rs. one per LPL/BL on Indian made foreign liquor and Bear respectively which was introduced as per the Rule 106(Gha) made under section 90 of Bihar Excise Act, 1915 much prior of the creation of Bihar State Beverages Corporation Ltd. (ii) To direct the respondents to consider and assess the loss accrued to the liquor shop retailers in pursuance to following of the letter no.1965 dated 6.7.2007 by which retailers were charged in addition and in access to the already formulated price list by the Corporation an amount of Rs. one per L.P.L./BL on Indian made foreign liquor and Bear respectively w.e.f. 1.7.2007 and to compensate the aforementioned retailers by considering such loss as an arrear on part of the respondents and/or by refunding the same. (iii) for grant of stay of letter no. 1965 dated 6.7.2007 issued under the signature of Assistant Commissioner of Excise, Bihar, Patna till the amount so mentioned in the letter is not incorporated/added in the brand wise price list fixed/formulated by the Bihar State Beverages Corporation Ltd. (iv) for grant of any other incidental, consequential or other appropriate relief/s to which the petitioner may be found entitled. 2. That the petitioner has not moved this Hon’ble Court earlier for grant of relief/s sought for in the present writ application though the father of the petitioner who was then a settlee of composite shop no.22 in Patna hadassailed the said notification vide C.W.J.C. No. 13034/2007.” 3. From the averments made in the writ petition, it transpires that petitioner’s father, who was settlee, challenged the - 3 - Government policy dated 1st July, 2007 by filing writ petition being C.W.J.C. No. 13034 of 2007 alleging that the said policy was illegal and contravention of the Bihar Excise (Settlement of Licences For Retail Sale of Country/Spiced Country Liquor/Foreign Liquor/Beer and Composite Liquor Shop) Rules, 2007. It further transpires that the said writ petition was dismissed by the Division Bench on 3rd March, 2008 by observing thus: - “By a Notification dated 4th May, 1994 the Board of Revenue inserted Rule 106(Gha) in the said Rules. By reason of such insertion petitioner, as seller of intoxicants, became obliged to pay a sum of Rs.1/-per L.P.Litre on transportation of India made foreign liquor and a sum of Rs.1/- per bulk liter on transportation of beer. This rule became effective from 18th June, 1994. The State of Bihar on 7th June,2007 made The Bihar Excise (Settlement of Licences For Retail Sale of Country/Spiced country liquor/ foreign liquor/beer and Composite liquor Shop) Rules, 2007 in exercise of the powers conferred under Section 89 of the Act upon repealing all previous Rules, instructions and other provisions appertaining to settlement of licenses for retail shop of country/spiced country liquor/foreign liquor /beer and composite liquor to the extent those were contrary to the Bihar Excise(Settlement of Licences For Retail Sale of Country/Spiced Country Liquor /Foreign Liquor/Beer and Composite Liquor Shop)Rules,2007. The said Rules, therefore, repealed only those previous Rules which were inconsistent with the said Rules. The said Rules laid down the mechanism for settlement of retail shops dealing with intoxicants mentioned therein and, accordingly, in Rule 26 thereof it was made clear that the settlement of all such retail shops shall be processed under the said Rules or orders or instructions issued under the said Rules. What shall be the licence fee and how additional license fee shall be charged have also been indicated in the said Rules. Subsequent thereto on 8.6.2007 the State Government came up with a policy. One of the objects - 4 - of the said policy was to enhance the revenue collection from the sale of intoxicants. In clause 20 of the said policy, the State Government indicated the pricing formula. It was indicated that the ultimate customer will pay for ex-distillery price plus overhead plus excise duty plus Vat plus other similar impositions including license fee plus maximum 5% profit to be retained by the wholesale distributing authority plus maximum 15% profit to be retained by the retail sellers. On the basis of the said policy, the price to be paid by the ultimate consumer has been fixed. While doing so all the aforementioned ingredients have been taken note of except the imposition as was made by the Board of Revenue vide Notification of 1994. It appears that subsequent to preparation of the price list retail sellers started to ignore their obligation to pay the amount due to the State in terms of the regulation so made by the Board in 1994. This having come to the notice of the Excise Authorities, by an order dated 6.7.2007, the appropriate Excise Authority directed that such obligation should be discharged by retail sellers with effect from 1.7.2007. In the present writ application, it is the contention of the petitioner that the writ petitioner has no obligation pertaining to the imposition said to have been made by the order dated 6.7.2007, for according to the petitioner the Board Rules have also been repealed by the State Rules. The object and purpose of the present writ application is to review the authority of the Excise Department with regard to control of sale of intoxicants. It was urged on behalf of the petitioner that not only by the 2007 Rules, previous Rules have been repealed but even in the policy dated 7.6.2007 there is no mention that the imposition in terms of the Rules framed by the Board of Revenue is one of the ingredients to be taken note of while fixing the sale price of intoxicants. Learned counsel appearing on behalf of the State has pointed out that the 2007 Rules did not intend to repeal all previous Rules instructions and orders but interfered with those which were inconsistent with the 2007 Rules. He further added that by the 2007 Rules the State Government did not intend to repeal or interfere with any Rules made by the Board of Revenue in terms of the authority accorded to it by the Act. - 5 - Learned counsel submitted that the Rules made by the Board of Revenue in terms of Section 90 of the Act are Rules which can only be framed by Board of Revenue and those are not within the Rule making power of the State Government and, accordingly, by no stretch of imagination it can be contended that the object or purpose of the 2007 Rules was to obliterate, amongst others, the Rules framed by the Board of Revenue. Learned counsel for the State also submitted that the policy addressed the manner of determining the price of intoxicants. It was indicated what should be taken into account for ascertaining the price to be paid by the ultimate consumer. It was submitted that the object was to indicate what will constitute the basic ingredients to be taken into consideration while fixing the price. It was submitted that the object was to indicate that the price shall include the cost of intoxicant impositions thereon plus at the most 5% profit for the distributing authority and 15% profit for the retailer. He submitted that non mentioning of the levy or imposition by the Board of Revenue in the said policy does not mean that the Rule made by the Board of Revenue was interfered by the State Government. We think that the submissions made on behalf of the State should be accepted for liability to pay fee or imposition in terms of the Rules framed by the Board of Revenue was never interfered with either by the said policy decision or by any other process. It can not be said that the 2007 Rules interfered with the Rules made by the Board of Revenue or with the imposition levied by it thereunder. Non mentioning of the imposition or fee imposed by the Board of Revenue in the Policy of 2007 does not absolve obligation to pay the same. Clause 20 of the Policy dated 7.6.2007 was only indicative of what should be the composite price to be paid by the ultimate consumer. By the policy decision, it was indicated basically that direct cost plus impositions plus at the most 5% profit for the distributing authority and 15% profit for the retail sellers should be taken note of while fixing the price to be paid by ultimate consumer. - 6 - In those circumstances, challenge thrown to the Notification of the Excise Authority dated 6.7.2007 is not sustainable.” 4. The present writ petition is by the son indirectly raising the same issue. Writ petition is, accordingly, liable to be dismissed. 5. The counsel for the petitioner then contended that while dismissing the earlier writ petition (C.W.J.C. No. 13034 of 2007) filed by the petitioner’s father, the Court directed the State Government to apply its mind to the aspect of fixation of price of intoxicants to be paid by the ultimate consumer levied in terms of the Rules framed by the Board of Revenue. He submits that a representation was made by the present petitioner after Shop No.30, P.M.C., Patna was settled in his favour. The said representation has not been decided nor the State Government has taken decision in the light of the observations made by this Court. 6. The observations made by this Court in the order dated 3rd March, 2008, upon which reliance has been placed by the counsel for the petitioner, reads thus: - “However, as it appears from the price list on record that while fixing the price of intoxicants to be paid by the ultimate consumer levy or imposition in terms of the Rules framed by the Board of Revenue had not been taken into account and, accordingly, the State Government or the Bihar State Beverage Limited is directed to apply its mind in that regard.” 7. We wanted to know from the government - 7 - counsel as to whether any decision has been taken by the Government in the light of the afore-noticed observations, the government counsel submitted that some decision has been taken by the State Government but the text of the decision has not been made available. We wanted to know from the government counsel, the fate of the representation dated 21st April, 2008 made by the petitioner pursuant to order dated 3rd March, 2008, she is not in position to give any firm answer. 8. In view thereof, we are satisfied that although the writ petition is liable to be dismissed, the State Government shall take decision on the representation made by the petitioner on 21st April, 2008 (Annexure-3), if not taken so far, within four weeks from today and communicate the said decision to the petitioner. We also direct the State Government to consider the aspect as noticed in the order dated 3rd March, 2008, quoted above in para 6, by applying its mind, if not done so far, within four weeks from today. 9. We order accordingly. R. M. Lodha, CJ Kishore K. Mandal, J Pawan/-