JUDGMENT R.M. Sahai, J. - The petitioners who hold licences for retail vend of country liquor for excise year 1986-87 filed the petitions against demand of issue price for unlifted quantity of liquor principally because cl. (g) in U.P. Settlement of country liquor licence (tender cum auction Rule) 1985 empowering Excise Commissioner to fix the price was invalid in absence of any guideline for its determination. 2. Before adverting to specific challenges it may be worthwhile mentioning that S. 24 of U.P. Excise Act empowers Excise Commissioner to grant any person a licence for the exclusive privilege, amongst others, for selling by retail any country liquor within any local area, and S. 30 deals with payment for exclusive privilege. It provides that instead of or in addition to any duty leviable under the chapter the State Government or on its behalf the Excise Commissioner may accept payment of a sum in consideration of grant of licence for any exclusive privilege under S. 24. It further provides that the sum payable may either be fixed by auction or inviting tenders or otherwise or be assessed on the basis of sales or quota lifted under the licence or partly fixed and partly assessed. Rules under Excise Act were framed in 1910. In 1984 U.P. Excise (First Amendment) Rules were framed superseding the rules under heading of 'Fees' published on 26th Sept. 1910. They provide for the procedure of settlement of retail vend by auction system and the manner in which bid shall be accepted and finalised. In 1985 the above mentioned rules were framed to apply to grant of exclusive privilege of selling country liquor by retail where excise Commissioner decides to grant licence by -tender cum auction system. Licence fee according to these rules is a sum payable in consideration of grant of licence for exclusive privilege under S. 24 and is besides the issue price payable for the minimum guaranteed quantity for the shops or group of shops. What is minimum guaranteed quantity is defined in cL (f) as, quantity of liquor fixed by the Excise Commissioner guaranteed by auction purchaser to be lifted by him for the country liquor from Bonded warehouse situated in the district. And issue price is the price calculated by Excise Commissioner for the minimum guaranteed quantity. What is minimum guaranteed quantity is defined in cL (f) as, quantity of liquor fixed by the Excise Commissioner guaranteed by auction purchaser to be lifted by him for the country liquor from Bonded warehouse situated in the district. And issue price is the price calculated by Excise Commissioner for the minimum guaranteed quantity. Rule 3 empowers commissioner to fix number of shops or group of shops, their location and minimum guaranteed quantity for such shop. Rules 6 and 7 provide for the submission of tender and acceptance of tender or bid Rule 8 requires the auction purchaser to submit to licensing authority before obtaining the licence a monthly statement of distribution of country liquor to be lifted by him. The rule further requires the licensee to lift the monthly approved quantity till last day of month. And the unlifted quantity is liable to be forfeited unless permitted by Excise Officer to be lifted in subsequent month but not beyond 31st Dec. Rule 9 requires licensee to deposit issue price on the quantity approved in R. 8 by 5th of every month. It further empowers authorities to deduct from security deposit the price if it is not remitted as provided and requires licensee to make good security by 20th of the month. Rule 10 provides consequences of failure to make good deficiency and R. 11 requires the licensee to sell entire minimum guaranteed quantity before expiration of term of licence. 3. Sri R.R. Agarwal, who led the argument on behalf of petitioner urged that cl. (f) of the rules which defines issue price being without any guideline was liable to be struck down. He submitted that the fixation of issue price which under the orders of Commissioner is identical with excise duty leviable under the Act is illegal as the licensees are required to pay over and above this the auction money' this resulting in payments which are much in excess of duty. It was also argued that excise duty under sub-sec. (3) of S. 28 cannot exceed Rs. 20 per litre on country spirit but the Excise Commissioner in violation of statutory provision fixed the issue price which indirectly increased the duty leviable much in excess of Rs. 20. Learned counsel explained that Rs. It was also argued that excise duty under sub-sec. (3) of S. 28 cannot exceed Rs. 20 per litre on country spirit but the Excise Commissioner in violation of statutory provision fixed the issue price which indirectly increased the duty leviable much in excess of Rs. 20. Learned counsel explained that Rs. 20 per litre provided by the Act could be per alcoholic litre which is equal to 100 V. V. But the strength of alcoholic contest in the country spirit has been raised to 36% V.V. on which issue price of Rs. 11 equivalent to excise duty was imposed. If the duty on 100 V.V. is calculated 20 X 100 it would come to about 30.60 which was much in excess of Rs. 20. Reliance was also placed on certain letters sent by Excise Officer Lucknow to Excise Commissioner and Excise secretary for reduction of minimum quantity for Lucknow district as there was loss in earlier year and the bidders were not forthcoming. Sri K.D. Misra adapted the arguments of Sri Agarwal and urged that decision of the Supreme Court in State of Andhra Pradesh v. P. Reddy, AIR 1987 SC 933 was not applicable as arrack in Andhra Pradesh was different from country liquor. He invited attention to paragraphs 480 and 481 of Excise Manual and urged that price can be charged only when State either owns or is selling for distillation. The learned counsel submitted that issue price could be charged from licensee only if they were liable to pay duty and not otherwise. But the payment of duty under Act and Rule is made by distillers and not retailers. Reliance was placed on paragraph 418 of Excise Manual and it was urged that since duty was payable at time of removal of country liquor from Bonded Warehouse to wholesale depots from where sale is made to retailers no amount could be charged from them either as duty or instead of duty. It was also urged that fixation of minimum guarantee was contrary to S. 24, therefore, no issue price could be charged for it. Learned counsel submitted that Cl. 3A or Cl. 5A in the two types of licences which are prescribed for retail sale of country spirit cannot be deemed to be licences for parting of exclusive privilege. It was also urged that fixation of minimum guarantee was contrary to S. 24, therefore, no issue price could be charged for it. Learned counsel submitted that Cl. 3A or Cl. 5A in the two types of licences which are prescribed for retail sale of country spirit cannot be deemed to be licences for parting of exclusive privilege. Learned counsel submitted that S. 19 requires payment of duty on intoxicants at the points of removal from distillery, warehouse etc. but the Excise Commissioner in fixing issue price instead of duty even before removal has acted contrary to law. It was also urged that licensees were not contractors but guarantors who can challenge action of opposite parties. Sri R.C. Shukla in addition to these arguments urged that increase of price from Rs. 7 to Rs. 11 has in fact enhanced duty as strength has been reduced. He urged that if by this method sale of liquor was attempted to be boosted then it violated Article 47. He urged that exercise of power by Excise Commissioner being colourable was liable to be struck down. Sri Ranjeet Saksena added further and submitted that the action of opposite parties was discriminatory as the excise duty on Foreign liquor was reduced whereas on country liquor it was increased, thus driving out the dealers of country liquor from business. On the other hand learned Advocate General submitted that issue price was transferring exclusive privilege which vested in the State, therefore, it was beyond challenge. He submitted that fixation of price is legislative function which cannot be interferred with by this court. According to learned Advocate General selling of liquor which is exclusive privilege of State is regulated by agreement. It is not a civil right much less a fundamental right as the licensees do not have a right to carry on business in liquor and the transfer of the privilege does not vest any ownership in licensee who at best can be considered to be agent and not holder of an independent right. Reliance was placed on Article 31(1)(c) of the Constitution and it was urged that since the rules were framed to subserve objective of cls. (b) and (c) of Article 39 of Constitution they .could not be challenged for violation of Articles 14 and 19 of Constitution. 4. Reliance was placed on Article 31(1)(c) of the Constitution and it was urged that since the rules were framed to subserve objective of cls. (b) and (c) of Article 39 of Constitution they .could not be challenged for violation of Articles 14 and 19 of Constitution. 4. Taking up the last argument of learned Advocate General first, in support of which he relied on various decisions-of the Hon'ble Supreme Court explaining meaning of, 'resources' in Article 39 and the purpose of levying duty to raise revenue for the State, it appears unnecessary to dilate on it as proviso to Article 31 C of Constitution excludes operation of the Article to a Law made by the Legislature unless such law having been reserved for the consideration of the President has received his assent'. And on this there is no dispute that U.P. Excise Act was not reserved for consideration of the President nor received his assent. 5. Similarly the argument that price fixation cannot be scrutinised by this court appears to be too broadly stated. In Union of India v. Cynamide India Ltd., AIR 1987 SC 1802 the Hon'ble Court while laying down that price fixation was generally a legislative function to which principle of natural justice was not attracted observed : Price fixation is neither the function nor the forte of the court. We concern ourselves neither with the policy nor with the rates. But we do not totally deny ourselves, the jurisdiction to enquire into the question, in appropriate proceedings, whether relevant considerations have gone in and irrelevant considerations kept out of the determination of the price. For example, if the Legislature has decreed the pricing policy and prescribed the factors which should guide the determination of the price, we will, if necessary, enquiry into the question whether the policy and the factors are present to the mind of the authorities specifying the price." 6. Reverting to the principal issue if the issue price fixed by the Excise Commissioner is violative of any constitutional guarantee or is against provisions of Act or rules or is arbitrary much of it stands answered by Hon'ble Supreme Court in State of Andhra Pradesh v. P. Reddy, AIR 1987 SC 933 . Reverting to the principal issue if the issue price fixed by the Excise Commissioner is violative of any constitutional guarantee or is against provisions of Act or rules or is arbitrary much of it stands answered by Hon'ble Supreme Court in State of Andhra Pradesh v. P. Reddy, AIR 1987 SC 933 . Whether arrack and country liquor are same or different is not very relevant as the provisions which have been dealt with by the Hon'ble Court were similar to the provisions and scheme in U.P. Act. In Andhra Pradesh case issue price included not only duty but costs and sales tax yet it was held by Hon'ble court that merely because element of Excise duty entered the price it could not be held that what was levied was duty. If it be so then the charging of price instead of duty would not render it duty under the Act. What follows automatically from this is that any challenge raised on the fixation of price because it was more than duty or it could be levied only in the hands of Distillery or at the point of manufacture or removal from bonded warehouse etc. has to be repelled. Nor is there any merit in submission that the auction money having been charged for parting with privilege the Excise Commissioner exceeded his powers in fixing issue price. Auctions are held as a 'mode or medium for ascertaining he best price obtaining for the grant of privilege to sell liquor' whereas issue price is, no more and no less than the price which the -contractors agree to pay for the grant of privilege to sell liquor drawn or undrawn (Prabakar Reddy's case). Issue price under the rules is besides licence fee. It too is payable as part of sum payable under S. 30 read with S. 24 of the Act.Since it is for parting with privilege its validity cannot be challenged as held by Supreme Court in State v. Jage Ram, AIR 1980 SC 2018 . Although the issue Price fixed by Commissioner is equivalent to duty but it is not duty but a sum payable instead of duty for parting with privilege, therefore, it cannot be urged either that it is nothing but duty or that,it cannot be charged once licence fee has been determined at auction. 7. Although the issue Price fixed by Commissioner is equivalent to duty but it is not duty but a sum payable instead of duty for parting with privilege, therefore, it cannot be urged either that it is nothing but duty or that,it cannot be charged once licence fee has been determined at auction. 7. Although the argument of learned Advocate General that the right to sell liquor being exclusive privilege of the State it could deal with it in any manner it considered proper and fix any price it deemed fit which cannot be objected to by a contractor who had option to accept or not to accept is too widely stated and may be doubtful to be accepted in a society in which even Government is accountable yet it is not necessary to examine it in detail as the issue price determined by Excise Commissioner does not appear to be exorbitant or arbitrary. In fact petitioners do not appear to be aggrieved as much by the price as by its demand on unlifted quantity of liquor. But once the power of Commissioner to fix the minimum quantity of liquor to be lifted every month is upheld, it is announced before auction and has not been assailed then the challenge to fixation of issue price automatically loses strength. A contractor or bidder at auction being aware of the minimum quantity of liquor he shall be required to lift every month and the price he shall have t pay cannot after entering into agreement claim it to be either excessive or unreasonable. The argument that it exceeded Rs. 20 w mere hypothetical in nature. Even assuming it to be so, since it is not duty its exceeding the amount of duty could not result in its becoming illegal. 8. Issue price is the price payable on minimum guaranteed quantity. It is fixed in advance of the excise year by the Commissioner on the guidelines issued namely the population, consumption etc. and announced at time of auction. The auction is held of a shop or group of shops in an area. The auction purchaser is aware at the time of biddings that he shall be required to lift the quantity in the year. Therefore, when he bids and auction is finalised in his favour he undertakes to fulfil the agreement. and announced at time of auction. The auction is held of a shop or group of shops in an area. The auction purchaser is aware at the time of biddings that he shall be required to lift the quantity in the year. Therefore, when he bids and auction is finalised in his favour he undertakes to fulfil the agreement. That is why the definition of Minimum Guaranteed Quantity provides that although the quantity is fixed by Commissioner but it is the auction purchaser who guarantees to lift it..He cannot later be permitted to wriggle out of the guarantee extended by him at time of auction. If the agreement or guarantee could not be fulfilled for any reason then the rules provide for its consideration by the Commissioner but it cannot be challenged on the ground that its fixation was arbitrary or the demand of issue price on it was unreasonable. 9. Reliance was placed on Articles 39 and 47 of Constitution and it was urged that the fixation of minimum quantity of liquor to be lifted every month was in violation of endeavour of State to bring prohibition. Such challenge by auction purchaser should not be entertained. 10. Much was argued in cases arising out of Lucknow district and it was urged that the Collector having written letters to excise Commissioner and Excise Secretary that minimum quantity be reduced and he having assured bidders that it shall be reduced the order of Commissioner determining same quantity as was fixed in earlier year was arbitrary. Effort of the Collector or sympathy expressed by him oral or written cannot vitiate the fixation since the quantity of liquor to be lifted and issue price were both announced fore auction. The petitioners were aware of what they were bidding for. It is not open, therefore, to them to take up this stand. They are precluded from raising any objection in this regard after having obtained contract in their favour. 11. In the result all the petitions fail and are dismissed with costs. The interim orders are discharged.