IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2952 of 2009 BINOD KUMAR RAI son of Sri Raj Grihee Rai, resident of Village Gayghat, Post-Asha Pandari, P.S. Simri, District Buxar … … Petitioner Versus 1. The State of Bihar, 2. The Board of Revenue, Old Secretariat, Patna, Bihar, 3. The Commissioner, Excise, Bihar, Patna, 4. District Collector,Buxar … … Respondents ….. 5 23.04.2009 Heard learned counsel for the parties. The petitioner is challenging a tender notification issued by the Department of Excise, Government of Bihar, for supply of country made liquor in polythene sachets. It is stated in the tender notification that only the person, who has got three years’ experience in the field and whose annual turnover is three crores, is eligible to participate in the tender. It is the case of the petitioner that the above tender was issued by the Excise Commissioner, who was not empowered to make such rule. It is further contended that under Section 90 of the Bihar Excise Act(hereinafter to be referred to as “Act”), Board of Revenue was delegated with the power to make Rules and Regulations with respect to manufacturing and selling of country liquor in polythene sachets and the Commissioner is authorized 2 either by the State or by the Board of Revenue to impose such conditions. In the counter affidavit, it was stated that the State authorized the Commissioner to impose condition in the tender and even tender was approved and accepted by the State. It is contended by learned counsel for the petitioner that once the power is delegated to the Board of Revenue, such Regulation/restriction may be made only by the Board of Revenue. Learned counsel for the petitioner has relied on a decision rendered in case of Kerala Samsthana Chethu Thozhilali Union v. State of Kerala and others((2006) 4 Supreme Court Cases, 327). In Kerala when sale of arrack was banned, large number of employees, employed in the shops, became unemployed, therefore, a condition was imposed on the toddy shop licensee that such unemployed persons should be employed by the licensee, which was not the condition of the licence or Rules. The Hon’ble Supreme Court held that it can be made only by the Rule making authority and in absence of Statutory Rules, such condition cannot be prescribed unilaterally. 3 It is also submitted that in case of Shree Baidyanath Glass Works Pvt. Ltd. And ors. V. State of Bihar and others, reported in 2005(2) Patna Law Journal Reports, 389, a Division Bench of this Court held that once the Rule making power is vested in the Board of Revenue, such power can only be exercised by the Board of Revenue and Rules cannot be changed by any other authority including the Minister. In this connection, reference to section 22 of the Act can be also made. It shows that the State Government has got exclusive power to impose such terms and conditions for such period for manufacturing or supply of country liquor and Section 22D of the Act was incorporated in 1998, wherein the State Government was authorized to grant exclusive/special privilege for bottling/sacheting and wholesale supply of country liquor. Section 22D of the Act is quoted below: “22D- Grant of exclusive/special privilege for bottling/Sacheting and wholesale supply of country liquor—(1) The State Government may grant to any person/persons on such conditions and for such terms and conditions and for such period as it may think fit, the exclusive/special privilege for supplying country liquor, on wholesale basis, after sacheting/bottling it. These may be more 4 than one grantee in zone of Supply. 2. No Grantee of any privilege under sub-section (1) shall exercise the same unless he has received a licence in that behalf from the Board of Revenue/Excise Commissioner/Collector. 3. A licence fee shall be paid in advance in one lump sum by each licensee of the zone determined by the Member, Board of Revenue/Excise Commissioner at the rate of Rupee 1 per L.P. litre calculated on the basis of the annual M.G.Q. Additional licence fee shall be paid by each licensee of the zone if the total wholesale supply of the country liquor in the zone exceeds the annual M.G.Q. which would also be calculated at the rate of Rupee 1 per L.P. litre on the excess quantity. 4. The condition regarding payment of advance licence fee and additional licence fee as per sub-section (3) could be deemed to be included in the tender notice dated 3rd June 1995 issued by the Excise and Prohibition Department for wholesale supply of country liquor during the period Ist July 1995 to 31st March 1999 and would also be deemed to be included in all the licences issued in pursuance thereof and any expression, term or conditions to the contrary contained in the tender notice and licences would be deemed to be deleted and substituted accordingly.” In the tender notification itself, the above condition, which is subject matter of this writ application, was imposed. It is not against any of the Rules framed by the Board of Revenue. State has exclusive privilege for 5 grant of bottling and sacheting and wholesale supply of country liquor and is now vested with the power by authorizing the Commissioner of Excise to issue such condition. It is not in violation of any of the Rules. Experience and capacity to make the required sachet in large number are relevant consideration, which were looked into by the State. It is not proper to set aside a tender condition issued, so long it is palpably illegal or unconstitutional. We are of the view that the above condition in the tender cannot be set aside, as urged by the petitioner. This writ petition is dismissed. (J.B. Koshy, CJ) SC ( Dr. Ravi Ranjan, J.)