TMI Blog1957 (12) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... halram of Gangtok (Sikkim) not a licensee within the meaning of the West Bengal Excise Act. 3. There is another part of the order which asked the applicant to pay gallonage fees amounting to ₹ 1463/8/- in respect of other quantities. But no complaint or objection is made with regard to that. The order complained against directed the applicant: You are, therefore, directed to pay the gallonage fees amounting to ₹ 11,989/8/- within 7 days from the receipt of this notice. 4. The facts may be stated briefly. The petitioner carries on the business of importing foreign liquor from outside India and selling foreign liquor so imported and country-made to other licensed dealers. He is authorised to carry on such business under a license for the sale of foreign liquor granted under the Bengal Excise Act, 1909. The terms of license material for pur-pqses of this application are: (I) Sri Pesi Hormusji Avari, resident of Calcutta is hereby authorised by the undersigned. Collector of Excise Calcutta to sell foreign liquor (other than denatured spirit) to licensed dealers at 5, Dharamtolla Street, Calcutta from 1-4-1953 to 31-3-1954. (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particular consignments only. The words 'export', 'import' and 'transport' under the Bengal Excise Act have been given their qualified and naturally limited meaning, namely-- 'export' means under the Act 'to take out of West Bengal otherwise than across a customs frontier as defined by the Central Government.' 'import' means 'to bring into. West Bengal otherwise than across a custom frontier as defined by the Central Government.' 'transport' means 'to remove from one place to another within West Bengal.' Being a law relating to excise, these limited meanings are obvious. 7. In exercise of powers conferred by Section 86 of the Bengal Excise Act the Government has made the Bengal Excise (Foreign Liquor License Fee) Rules. By Rule 2 'assessable quantity' means 'the difference between the licensee's opening stock of liquor together with the receipts and his closing stock of liquor in saleable condition.' Rule 3 provides that a holder of a licence for the sale of foreign liquor to the trade shall pay certain fees. Sub-clause (a) of Rule 3 provides that a licensee shall pay in ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not recover on crop insurance issued In violation of a published regulation even though the application for insurance had been approved by the local agency of the Corporation. Similarly in Howell v. Falmouth Boat Construction Co., 1951 AC 837 (B), the House of Lords says that the fact that a government officer in his dealings with the subject may have assumed an authority, which he did not possess, to grant a licence, does not debar the Crown from enforcing a statutory prohibition or entitle the subject to maintain that there has been no breach of it. See the observations of Lord Simonds at p. 845 of the Report and Lord Normand at p. 849 of the same Report. The Privy Council decision in Attorney General for Ceylon v. A.D. Silva, 1953 AC 461 (C), is the latest pronouncement on this subject and takes the same view. In India the law insists that where contracts or engagements are required to be in particular forms with particular officers of authority to sign them that must be strictly complied with in order to bind the government. For obvious reasons the government and the administration cannot like an ordinary person be estopped by the acts of its numerous agents and officers ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o upset the order of the Collector of Excise. He now complains against the order in this court under Article 226 of the Constitution. 11. The obvious objection to such a petition under Article 226 of the Constitution is taken by Mr. B. Das for the Government, on the basis of the decision of Kanai Lal Sethi v. Collector of Land Customs, Calcutta, 60 Cal WN 1042 (F). This is a decision of a Division Bench which is binding on me. In that decision, Chakravartti, C. J., delivering the judgment comes to the conclusion that: It is quite true that the existence of an alternative remedy is not an absolute bar to a recourse to Article 226 of the Constitution but this Court has always held that if a party has availed himself of the ordinary remedies provided for by a special Act, he cannot thereafter turn round and begin once again from the bottom by challenging the original order under Article 226 of the Constitution. It applies with considerable force to this case because the points which the applicant is urging are points which he certainly could have taken in this Court and in the first instance when the order of the Collector was made. 12. I shall no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the applicant is to take Sikkim as a fully sovereign foreign State. It is not. Under treaty with India, Sikkim is India's protectorate. That is the treaty dated 5-12-1950. It provides that 'Sikkim is a protectorate of India enjoying autonomy in regard to its internal affairs. In fact, it provides that 'the external relations of Sikkim would be conducted and regulated solely by the Government of India', and that 'the Government of Sikkim would have no direct dealings with any foreign power, and that Sikkimese nationals travelling to foreign countries would be treated as India-protected persons for the purpose of Pass Ports, receiving from Indian representatives abroad the same protection and facilities as Indian nationals', and the Treaty also stipulates that 'the Government of Sikkim would not levy any import duty, transit duty, or other imposts on Indian goods brought into or in transit through Sikkim, with reciprocal treatment of goods of Sikkimese origin brought into India'. It is, therefore, clear that Sikkim is not a Customs frontier in the sense understood in the international trade with sovereign foreign States. The position of a protectorat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed questions of fact in affidavit and should not be determined on an application under Article 226 of the Constitution on affidavits alone. One cannot, however, help remarking that the opening terms of the licence as quoted above show that the applicant was authorised by the terms of the license to sell foreign liquor 'to licensed, dealers at 5, Dharamtolla Street', and if that is so, how was it that he was selling liquor outside that place in Sikkim? It is unnecessary, however, for the purposes of the present application and having regard to the view I take of the law, to pursue this question of fact any further. 18. All that the Excise Collector has done is to determine the assessable quantity under the Bengal Excise Rules. Under Rule 2 (a) 'assessable quantity' means the difference between the licensee's opening stock of liquor together with the receipts and his closing stock of liquor in saleable condition. Then Rule 3 (b) provides that a licensee shall have to pay upon so much of the assessable quantity as has not been supplied under a valid excise pass issued to a person who holds or is deemed under Section 20 of the Bengal Excise Act, 1909, to ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act shall be granted on payment of 'fees'. It also provides that such license or permit under this Act shall be granted for such period as may be prescribed by rules made by the Government. 21. Section 85 of the Bengal Excise Act gives the State Government power to make rules to carry out the objects of the Act or any other law for the time being In force relating to the excise revenue. In addition to the general powers so granted it is expressly provided under Section 85(2)(d) of the Act, that the State Government may make rules for regulating the import, export or transport of any intoxicant. This section is followed by Section 86 which contains further powers of the State Government to make rules. Among them express rule-making power is given for resulting the supply of any intoxicant. By Section 86 (7) of the Bengal Excise Act it is expressly provided that the State Government may make rules for prescribing the scale of fees or the manner of fixing the fees payable in respect of any of the exclusive privileges granted under any license, permit or pass granted under this Act and Section 86 (8) provides expressly for regulating the time, place and manner of paym ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
