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TMI Blog1957 (12) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... x a quota for each licensee for the sale of different varieties of foreign liquor on which no. commission was charged and to charge each licensee 20 per cent. commission in respect of sales in excess of the quota. No. rules had been framed by the Cochin State under its Abkari Act until 2-6-1949, when a set of rules was published in the Cochin Sarkar Gazette under S. 69 of the Cochin Act. On 1-7-1949, the two States of Travnacore and Cochin were united together and became the United State of Travancore Cochin. The respondent used to take out wholesale license under the Cochin Abkari Act 1 of 1077, M. E. At the date of the integration of the two States the respondent held a license for 1125 M. E. which covered the period between 17-8-1949 to 16-8-1950. He took out another license for the period between 17-8-1950 to 31-3-1951, and thereafter another for the period between 1-4-1951 to 31-3-1952. The licenses were wholesale licenses for the sale of foreign liquor, Indian made foreign spirits, Indian made wines and beer brewed in India, not to be consumed on the licensed premises. They were in Form No. F. L. 1 as prescribed by R. 7 of the Cochin Rules. By Cl. (1) of these licenses the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... license for the period from August 17, 1950, to the end of March 1951, and then the last license from April 1951 to March 31, 1952, and, therefore, he could not now be heard to challenge the order fixing the quota. It was submitted that according to the Cochin Abkari Act and the rules framed thereunder the excise authorities had the right to limit retail sale by fixing the sale quota of each of the foreign liquor licensees and by levying a commission on the excess quantity sold by the licensees. The restriction thus imposed was, according to them perfectly reasonable and was made in the best interest of the general public and in furtherance of the Abkari policy of the State and there was no unfair discrimination made against the petitioner or unreasonable restrictions imposed on him and consequently there had been no. contravention of the provisions of Art. 14 or Art. 19 (1) (g). It was maintained that the levy of 20% commission was not illegal and was not opposed to any of the provisions of the Constitution and such imposition did not really affect the petitioner who could easily pass it on to the actual consumers. It was pointed out that the Secretary. Travancore Wine Merchants A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at of closure of his shop after the presentation of the writ petition was also illegal. The High Court accordingly allowed the writ petition and directed the excise authorities to repay the amount collected from the petitioner (now respondent) and to desist from fixing a quota or levying the impost of any commission until a law authorising such impost or collection was made and also to pay the costs. The appellants before us, who were respondents in the writ petition, applied for and obtained a certificate of fitness for appeal to this court under Art. 132 (1)of the Constitution and have filed this appeal. After the filing of the appeal the new State of Kerala came into being on the reorganisation of the States and the new State of Kerala, in which is included the United State of Travancore Cochin, has since been substituted as one of the appellants. 6. Learned counsel appearing in support of this appeal before us contends that the order dated July 14, 1950, endorsed on the foot of Exb. (1) was a statutory order passed by the State under S. 17 of the Cochin Abkari Act 1 of 1077 M.E. That section provides, inter alia, that a duty of such amount, as the Diwan may prescribe, shall, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commission. We are also of the opinion that the High Court should not have permitted the appellants to produce and to file Exb. (1) during final argument or use the same against the respondent. 7. Further, S. 18 of the Cochin Abkari Act, which does not appear to have been brought to the notice of the High Court, is, without the proviso which is not material, as follows : 18. Such duty may be levied in one or more of the following ways : (a) by duty of excise of be charged in the case of spirits or beer, either on the quantity produced in or passed out of a distillery, brewery, or warehouse licensed or established under S. 12 or S. 14 as the case may be, or in accordance with such scale of equivalents, calculated on the quantity of materials used or by the degree of attenuation of the wash or wort, as the case may be, as the Diwan may prescribe; (b) in the case of intoxicating drugs by a duty to be rateably charged on the quantity produced or manufactured (or issued from a warehouse licensed or established under S. 14); (c) by payment of a sum in consideration of the grant of any exclusive or other privilege : 1. of manufacturing or supplying by wholesale, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en published in Cochin Sarkar Gazette and those rules have the force of law and have to be read as part of the Act and can only be varied, suspended or annulled in like manner, i.e., by a rule or notification similarly published. It is conceded that the endorsement at the foot of the Exb. (1), which is said to be a statutory order made under S. 17 and which obviously varied the provisions of R. 7 by enhancing the fee on licences by adding a 20% commission to the fee already paid was not published in the Cochin Sarkar Gazette. It follows, therefore, that even if the endorsement could be regarded as a rule or notification prescribing the levy of duty, not having been published in the manner aforesaid, the same cannot be regarded as a valid order having the force of law and, therefore, the impost cannot be said to be supported by authority of any law. Learned counsel faintly suggested that the endorsement in question was neither a rule nor a notification but was an order and was, therefore, not governed by S. 69. Section 18 being the machinery section for working out S. 17, and the alleged order not being in terms or form an imposition of a fee on license for sale, under S. 18 Cl. (d) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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