JUDGMENT N.P. Singh, J. The petitioner has questioned the validity of rule 106-A, which was framed by the Board of Revenue in exercise of the powers conferred on it by section 90 of the Bihar and Orissa. Excise Act. 1915 (hereinafter to be referred to as 'the Act') 2. The petitioner bolds licence for manufacture and sale of India nude foreign liquor. In view of the rule under challenge the India made foreign can be exported to a place outside Bihar only on payment of export pass fee at the rates or 60 paisa per litre. Rule l06-A is as follows:- "106•A India made foreign liquor may be exported to any place outside Bihar provided that an export pas fee at the rate of sixty paise per London Proof Litre has been levied and realiased in the State of Bihar. 3. The validity of rule 106-A aforesaid has been challenged on the ground that while purporting to impose a fee, in fact, a duty or a lax has been imposed by the Board of Revenue which is beyond the purview of section 90 of the Act. According to the petitioner, the export pass fee in substance being a duty Or tax it should have been imposed by the State Government in exercise of the powers under sections 27 and 28 of the Act. Alternatively, it was submitted that if it is held to be a fee then the amount realised as export pass fee must be correlated to the expenses incurred by the Government in rendering services to the petitioner. 4 Section 2(6) defines "excisable article" to mean (a) any alcoholic liquor for human consumption. Or(o) any intoxicating drug. Section 12 provides that no intoxicating exceeding such quantity as the state Government may prescribe by notification shall be imported, exported or transported except under past. Chapter IV of the Act, contains provisions which require licence for manufacture, possession and sale of intoxicant. Section 22, which is in the same Government may grant to any person on such condition and for such period as it may think fit, the exclusive privilege of man facturing of supplying wholesale or setting any country liquor or intoxicating drug within any specified local area. Chapter V of the Act, deals with the duty. Section 22, which is in the same Government may grant to any person on such condition and for such period as it may think fit, the exclusive privilege of man facturing of supplying wholesale or setting any country liquor or intoxicating drug within any specified local area. Chapter V of the Act, deals with the duty. The relevant part of section 27 is as follows :- "An excise duty or a oun'c. vai,jng duty, as the case may be, a such rate or rates as The State Government may direct, may be imposed either generally or for any specified local area on - xxx (b) any excisable article exported. Section 28 gives out the procedure of levying duty imposed by the state Government under section by the state Government under section 27. Section 29 is as follows :- "Instead of, in, addition to, any duty leviable under this Act, the State Government may accept payment of a sum in consideration or the grant of any exclusive privilege under section 22." Chapter VI deals with licences, permits and passes. Section 38 which is an important section to be considered in the present case, reads a, follows:- "38. Fees for terms, conditions, and form of, and duration of, licenses, permit and passes- (I) Every licence, permit of pass granted under this Act- (a) shall be granted- (i) subject to such restriction and on such conditions, and (b) shall be in such from and contain such particulars, as the Board may direct. (2) Every licence, permit or pass under this Act, shall be granted for such period (if any) as may be prescribed by rule made by the state Government under section 89, clause (e).” 5. If the imposition of sixty paise perlitre on the export of India made Foreign liquor under rule 106-A is here to be tax or duty, as contended on behalf of the petitioner, there is no escape from the conclusion that the Board had no authority to impose the same. It could have been imposed only by the state Government in exercise of the power under section 27 of the Act. Learned Additional Advocate General Appearing for the State took the stand that the validity of the rule aforesaid has to be examined treating the imposition as fee under, be Act, and it bas to be upheld or struck down as a provision for realisation of the fee. Learned Additional Advocate General Appearing for the State took the stand that the validity of the rule aforesaid has to be examined treating the imposition as fee under, be Act, and it bas to be upheld or struck down as a provision for realisation of the fee. 6. In view of the stand taken on behalf of the State Government learned counsel for the petitioner urged that once the imposition is held to be a fee, it is absolutely necessary that the levy of fee be correlated to the expenses incurred by the Government in rendering services to the petitioner failing which it has to be struck down. In this connection reference was made to well known case of Commissioner, Hindu Religion Endowments. Madras Vs. Sri l. Thirtha Swamiar and Sri Shirur Mott where it was observed: - “…A fee is regarded as a sort of return or consideration for services rendered, it is absolutely necessary that levy of fees should, on the face of the legislative provision, be correlated to the expense incurred by Government in rendering the services.” The aforesaid view has been reiterated in several Judgments of the Supreme Court and it has been consistently pointed out that in feel there is always an element of quid pro quo strong reliance was placed on behalf of Bihar and others. The appellant before the Supreme Court was a consumer of a denatured spirt from wholesalers or manufacturers for the purpose of manufacturing micanite. In view of the provisions of the Act, licence fee had to be paid for licence to possess denatured spirit. The demand for licence fee was challenged as illegal in absence of quid pro quo. The Supreme Court, after pointing out the distinction between the tax and fee observed :- “From the above discussion it is clear that before any levy can be upheld as a fee, it must be shown that the levy has reasonable corelationship with the services rendered by the Government. In other words, the levy must be proved to be quid pro quo for the services rendered. The Supreme Court remanded the case to the High Court to enable the State to show to show that the Court to enable the State to Show that the services rendered by the state had reasonable corelationship with the fee charged. In other words, the levy must be proved to be quid pro quo for the services rendered. The Supreme Court remanded the case to the High Court to enable the State to show to show that the Court to enable the State to Show that the services rendered by the state had reasonable corelationship with the fee charged. Reference was also made to the case of M/S. S.K.G. sugar Ltd. vs. state of Bihar and others where this court had to consider the validity of a demand purported to have been made by way of levy of licence fee. Rule 106 prescribed a licance fee of Rs. 36/- per annum payable in advance, which was later raised to Rs. 200/- per annum. The validity or the demand was questioned on the ground that the aforesaid licence fee had no corelationship with any service rendered by the state. This Court having found that there was no coreation between the service, if any rendered by the state to the license and the fee sought to be charged from it, queshed the notice making demand for the licence fee. 7. Now it is settled position that if fee charged under any particular Act, is a fee as it generally understood, it can be upheld only On satisfying the court that if has a corelation with the services rendered by the State to the persons who are enjoined to pay such fees How. Ever, in the case of Har Shankar and others v. Dy Excise & Taxation Commissioner the Supreme Court Examined to whether the expression licence fees used in the Excise Acts are really fees in its technical sense so as to require the state charging such licence fees to provide corresponding services to the different licensees. In the connection it was pointed out that rights in regard to intoxicants belong to the state Government to part with those rights for a consideration and on conditions, It was also observed that there was no inherent right in a citizen to sell liquor and that the control and restriction over consumption of intoxicating liquor was necessary for the preservation of the public health and morales and to raise revenue. “It was further pointed out that any such restriction or control in respect of the trades or liquor shall not attract even Article 19 (1) (g) of the constitution of that the court of law may test whether the restrictions imposed are test reasonable within the meaning of that article, About the nature of fee charged for grant of licence to deal in liquor it was observed : “A fee is a charge for special services rendered to individuals by some government agency and such a charge has an element in it of a quit pro quo. Commr. H.R. Madras v. Lakshmindra Thirtha Swamiar, 1954 SCR-1005, 1041= AIR 1954 SC 282 at P.295. The amounts charged to the licensees in the instant case are, evidently, neither in the nature of a tax nor of excise duty. But then, the 'licence fee' which the State Government charged to the licensees though the medium of auctions or the 'Fixed fee' which it charged to the vendors of foreign liquor hold in, licences in Forms L-3, L-4, and L-5 need bear no quid pro quo the services rendered to the licensees. The word ‘fee' is not used in the Act, or the Rules in the technical sense of the expression. By licence fee or 'fixed fee' is meant the price or consideration which the Government charges to the licensees for parting with its privileges and granting them to the licensees. As the State can carryon a trade or business, such a charge is the normal incident of a trading or business transaction:” On behalf of the State it was urged that in view of the judgment of the Supreme Court aforesaid any fee paid for grant of a licence to deal in intoxicants has to be held to be a consideration for parting with the privilege and granting of the licence, and, as such, it is not a fee in the technical sense of the expression to which principle of quid pro quo is applicable. 8. 8. Faced with the judgment in the case of Har Shankar and others v. The Deputy Excise and Taxation Commissioner and others (supra) learned counsel for the petitioner urged that in the said judgment the Supreme Court has held that any fee realised for grant of licence can be held to be a consideration for parting with its privileges, but the Supreme Court never purported to lay down that even any lee charged for grant of pass or permit shall also be consideration. According to the petitioner, while realising fees for issuing passes or permits for export or liquor outside the state, the state shall not be absolved of the responsibility to satisfy the existence or quid pro quo. It was urged that in respect of export pass fee the principle laid down by the Supreme Court in the case of the India Mica and Micanite industries Ltd. v. The State of Bihar and others referred to above is applicable. In my opinion, it is not possible to accept this contention. In the case of Indian Mica and Micanite industries Ltd. (supra) both parties proceeded under the assumption that the licence fee so charged was a fee in the technical sense of the expression. On behalf of the state no such stand was taken that the expression 'fee' used in the Act, has not been used in the technical sense of the expression fee as was contended later In the case of Har Shankar and other, (supra). The Supreme Court had no occasion to examine in the earlier case arising under the same Act, as to whether expression 'fee' used In the Act, has to be interpreted in its technical sense or in the sense of consideration which the Government charges from the licensees for parting with its privileges and for granting the licences. In the case of Har Shankar and others (supra) this question was raised and has been decided that the expression, 'fee' used under the Act, has not been used in the technical sense of the expression, 'fee'. Apart from that the dispute which had been raised in the case of India Mica and Micanite Industries Ltd (supra) related to charging of fee for the grant of licence to posses denatured spirit which is not an Intoxicant. Apart from that the dispute which had been raised in the case of India Mica and Micanite Industries Ltd (supra) related to charging of fee for the grant of licence to posses denatured spirit which is not an Intoxicant. The view expresed in the (supra is in respect of the fee,) which charged for grant, of licence in respect of intoxicant. That is why, it was pointed out that no citizen has fundamental right to trade in intoxicant and such restrictions cannot be decided in the background of Article 19(1)(g) of the Constitution, Section 38 says in clear and unambiguous words that "every licence permit or pass granted under the Act" shall be granted "on payment of such fees (if any) and subject to such restrictions and on such conditions as the Board may direct". Section 38 vests power in the Board to levy fees for grant of not only licence, but also for grant of permit or pass in respect of intoxicants. In view of section 38, the Board of Revenue may direct that a licence, permit or pass shall be granted on payment of particular amount of fee. If the amount realsed as fee for grant of licence, has been held to be consideration or a price which Government charges for parting with its privilege, then as a necessary cor only any fee charged for granting pass or permit has also to be held as consideration for granting permission to the licensees concerned to export liquor/intoxicants outside the State of Bihar. It the expression 'fee' has been held to have been used not in the technical sense in section 38 of the Act, in context of a licence then is cannot be held to have been used in the technical sense in respect of grant of permit or pass so as to saddle the responsibility on the State to establish quid pro quo. In my view, the principle enunciated in the case of Har Shankar and other (supra) by the Supreme Court in connection with the grant of licence is equally applicable in respect of grant of passes. In such a situation the State cannot be directed to corelate the realised fee with the services rendered to person from whom the export pass fee bas been realised. 9. In such a situation the State cannot be directed to corelate the realised fee with the services rendered to person from whom the export pass fee bas been realised. 9. It was then submitted that the impugned levy of fee on export is violative of Articles 301 and 304 (b) of the Constitution as it restricts the movement and export of goods. It was urged that any such restriction on export in view of Articles 304 (b) of the Constitution should be reasonable and must be imposed by the State Legislature after the Bill has obtained previous sanction of the President. In this connection reliance was placed on the well known cases of Ataibari Tea Go Ltd. Vrs, The State of Assam & ors. Kyerhari Tea Co. Ltd. & ors. Vrs. Stale of Assam State of Mysore Vrs. H. Sanjeviah. If the export of intoxicants to other State is held to be a trade in its true sense, then only the question will have to be considered whether the restrictions Art. reasonable. But, dealing in intoxicants is not trade or business within the meaning of Article 19 (I) (g) of the Constitution. It was pointed out by the Supreme Court in the case of P.N. Kaushal etc. v. Union of India and others :- "Trade in liquor has historically stood on a different footing, from other trades. Restriction which are not permissible with other trades are lawful and reasonable so far as the trade in liquor is concerned, That is why even prohibition of the trade in liquor is not only permissible but is also reasonable. The reasons are public morality, public interest and harmful and dangerous character of the liquor. The State possesses the right of complete control over all aspects of intoxicants, viz. manufacture collection, sale and consumption. .. Again, in the case of M/S Sat Pal and Co. etc. v. Lt. Governor of Delhi and Others it was observed as follows:- "If there ill no fundamental right to carry On trade and business in liquor, there is no question of its abridgement by any restriction which can be styled as unreasonable. In fact as stated in Har Shankar's case ( AIR 1975 SC 1121 ) the State under its regulatory power has a right to control or even to prohibit absolutely every form of activity in relation to intoxicants apart from anything else, its import too. In fact as stated in Har Shankar's case ( AIR 1975 SC 1121 ) the State under its regulatory power has a right to control or even to prohibit absolutely every form of activity in relation to intoxicants apart from anything else, its import too. This power of control is question of society’s right to self protection and it rests upon the right of the State to Act, for the health, moral and welfare of the people." In my view, now it is too late to urge that any restriction or control in respect of grant the of licence, permit or pass in connection with Intoxicants should confirm to the requirement of Article 301 or Article 304(b) of the Constitution. 10. On behalf of the petitioner it was pointed out that earlier a notification dated 30.7.1973 had been issued by which duty at the rate of sixty paise per L.F. litre had been imposed on export of India made foreign liquor. That was challenged in the Case of S.K.G. Sugar Ltd. v. State of Bihar before this Court. Thus Court held that the state Government cannot impose as extra excise duty payable at the rate prescribed by the State in which it is exported. On behalf of the petitioner it was urged that the same attempt has been made by labelling it as an export pass fee. In my opinion the aforesaid judgment has no bearing on the facts and circumstances of the present case. In that case it was pointed out that in view of rule II-A, which contained a provision in respect of “pre-payment of duty at the rate in force in the State to which it is desired to be exported, a second duty cannot be imposed at the time of export. So far as the present impugned rule is concerned, it makes a provision for imposition of export pass fee to which rule 11-A is not applicable, Apart from that, in the aforosaid judgment this Court had no occasion to consider the nature of right granted by the State to the licensees under the provisions of the Act, and to what extent it is under- the control of the State Government. These questions have later been examined by the Supreme Court in the cases of Har Sankar and others (supra), P.N. Kaushal (supra) and M/S Sat Pal and Co. These questions have later been examined by the Supreme Court in the cases of Har Sankar and others (supra), P.N. Kaushal (supra) and M/S Sat Pal and Co. (supra), In my view, it is difficult to hold that the rule under challenge is ultra vires, and, as such, liable to be struck down. 11. In the result, this writ application fails and it is dismissed, but, in the circumstances of the case, there will be no order as to costs. Application dismissed.