Judgment N. PANDEY, RK. SARKAR, J. 1. These writ petitions have been filed for quashing condition No.19 (ga) of the notification dated 25th January, 1997, issued under F-127 of the Bihar Excise act, 1915, by the Commissioner of Excise and Prohibition (respondent No.3)and also the sale notifications contained in Annexures 9, 1, 6 and 1 of CWJC nos.1530, 1825, 2151 and 2076 of 1997, respectively, published by the concerned collectors for settlement of different retail vends of country spirit on auction basis for the current year. Since facts and points involved in these cases are common, therefore, with the consent of parties, they have been heard together and are being disposed of by this order at the sage of admission itself. 2. Petitioner are licensees under the provisions of Bihar Excise Act to deal with country spirit at respective places. Admittedly, since last few years, settlement of such shops are being made on auction basis. The Excise Commissioner (respondent No.3)to make settlement of different retail vends for the year 1997-98, after having obtained approval of the Board of Revenue, issued direction vide his letter dated 25th november, 1997, along with a copy of sale notification under F-127, asking all the Collectors/deputy Commissioners of this State to take steps for settlement on the terms and conditions stipulated in the notifications. 3. As noticed above, petitioners are only aggrieved due to insertion of clause 19 (ga) to the sale notification which inter alia, provides that in case a licensee intends to lift country liquor in excess of more than 30% of the minimum quantity of quota for a particular month, such licensees will be required to pay proportionate licence fee on the excess quantity in addition to the fee already paid. 4. It appears on receipt of the said notification petitioners,of course, submitted their applications and also participated at the time of auction sale but filed representations before the Commissioner of Excise (respondent No.3)stating that impugned clause 19 (ga)was quite arbitrary unreasonable and not even workable. The Assistant Commissioner of Excise (respondent No.5)had also vide his letter dated 7th february, 1977, while submitting comments regarding queries made by the commissioner with respect to representations of the petitioners, pointed out that because of introduction of the impugned condition, 19 (ga)" the policy of the department is bound to adversely affect. Because, there will always be a scope of sale of illicit liquor. Because, there will always be a scope of sale of illicit liquor. Anticipating practical complications and workable state of affairs, he also pointed out that in case such situation is allowed to continue a dealer of a particular vend of one of the mohalla of the same town, will have to pay additional charge of more than Rs.22.66 per LPL whereas other vend at the rate of Rs.2.80. Similar details with regard to other shops were also given. 5. It was further pointed out that with respect to shops located in Patna town, the Collector of the district had also informed the Commissioner by letter dated 26th March, 1997, that condition No.19 (ga) has in fact created anamolous situation. According to the learned Collector, if such a situation is to continue, there may be chances of supply of illegal liquor in large scale and, therefore, there will be loss of revenue to the State. 6. Mr. Shreenath Singh, Senior counsel, pointed out that apart from the anomalies which have been noticed in the foregoing paragraphs, learned Excise Commissioner had in fact no sanction of law to insert such a condition in the sale notification. Because as under Rule 100 of the rules under the bihar Excise Act, fee or amount of licence for a retail vend is to be fixed by auction-cum-tender subject to reserve fee or amount sanctioned by the Excise commissioner. But with respect to the subsequent year, renewal of settlement shall be subject to payment of such fee at the enhanced rate fix by the Excise commissioner. Therefore, it was not open to respondent No.3 to insert condition No.19 (ga) in Form 127 without the amendment of rule. 7. It is stated that power to fix licence fee has been vested in the Board of Revenue under Sec.38 of the Act. Sub-section (7) of Sec.90 empowers the Board of Revenue to prescribe the scale of fee or the matter of fixing the fees payable in respect of any exclusive privilege to be granted by the Excise commissioner or the Collector. Admittedly, therefore, in exercise of such a power Rule 100 was framed by the board to regulate settlement by auction subject to reserved fees or amount sanctioned in each case by the Commissioner. Admittedly, therefore, in exercise of such a power Rule 100 was framed by the board to regulate settlement by auction subject to reserved fees or amount sanctioned in each case by the Commissioner. But before inforporating condition No.19 (g) prescribing mode of charge of licence fee in addition to the licence fee fixed at the auction, no amendment to the knowledge of the petitioner was made under the provisions of Rule 100. 8. He next contended that even stand taken by respondent authority is accepted that sale notification was issued by the commissioner after obtaining approval of the Board of Revenue, no effect can be given to such a decision in absence of publication in the official gazette under Sec.92 of the Act which requires that all rules made and notifications issued under the Act shall be published in the official gazette and such publication shall have the effect as if incorporated by the Act. 9. Learned Additional Advocate general on the other hand while replying the argument of Mr. Singh, pointed out that it would be wrong to interpret that by condition No.19 (ga), the Excise commissioner has imposed additional fee or duty. In fact this was one of the terms of settlement of the vends with respective dealers. Thus, the amendment of Rule 100 in such circumstance was not at all necessary. He further contended that undisputedly the Board of revenue is the competent authority under the provisions of the Excise Act and rules framed thereunder, to issue necessary instruction or circular from time to time to regulate sale and purchase of intoxicant and the manner whereby settlements are to be made. In these cases, a bare reference to the impugned tender would show that all the terms of settlement including addition of condition No.19 (ga) was issued after due approval of the Board of Revenue. 10. He contended that the word fee has not to be used in the technical sense of the expression in the Excise Act or the Rules framed thereunder. By licence fee or fixed fee the legislature meant the price or consideration which the Government charges from the licensee in lieu of parting its exclusive privilege and granting it to the licensee. Reference in this regard can be usefully made to the case of Harishankar and Ors. etc. etc. V/s. The Deputy Excise and Taxation commissioner and Ors. etc. By licence fee or fixed fee the legislature meant the price or consideration which the Government charges from the licensee in lieu of parting its exclusive privilege and granting it to the licensee. Reference in this regard can be usefully made to the case of Harishankar and Ors. etc. etc. V/s. The Deputy Excise and Taxation commissioner and Ors. etc. , (AIR 1975 sc ` ). 11. He next contended that admittedly all the petitioners after having participated in the open auction bid, got settlements of the respective shops and deposited auction money. Therefore, in view of the law laid down by the Apex court in the case of State of Haryana and ors. V/s. Jage Ram and Ors. (1980) 3 SCC 599 , a licence of a retail vend of country spirit having once accepted the terms and conditions of the licence, cannot be permitted to back out. Therefore, in such matters, writ jurisdiction of the court cannot be invoked to avoid contractual obligation by the licensee. Reliance was also placed to a decision of the same Court in the case of Excise commissioner, UP. Allahabad etc. etc. V/s. Ram Kumar etc. etc. ( AIR 1976 SC 2237 ). More or less similar view was also taken by a Full Bench of this Court in the case of Mis. Ajanta Traders V/s. State of Bihar and Ors. 1996 (2) PLJR 281 ; 1996 (1) BLJ 615 . It was held that a licensee having accepted terms and conditions and entered into contract and also having derived benefit therefore, cannot be allowed to say that some of the conditions were illegal or amount of fee being charges was excessive. 12. Before considering the merit of respective contentions of the learned advocates, it appears desirable to notice some of the sajient features regarding settlement of excise shops. As per boards instruction whenever an excise shop is settled, it is only the right to vend certain excisable articles in a particular locality. The right to vend excisable article is exclusively owned by the State. Therefore, while making settlement, State only parts with its right which really is in a nature of privilege for fee to be fixed in the manner as may be prescribed by the Board. 13. The main object while determining the mode of settlement is augmentation of revenue. The right to vend excisable article is exclusively owned by the State. Therefore, while making settlement, State only parts with its right which really is in a nature of privilege for fee to be fixed in the manner as may be prescribed by the Board. 13. The main object while determining the mode of settlement is augmentation of revenue. Therefore, while doing so, it is always open to the State to lay down or fix a criteria or manner of settlement to ensure that it gets the best price for parting with the exclusive privilege to a proper person. Reference in this regard can be usefully made to the case of Excise Commissioner of U. P. V/s. Prem Jeet Singh ( AIR 1983 SC 1056 ). Same view was taken earlier in the cases of Cooverjee B. Bharucha V/s. Excise Commercial and the Chief Commr. ( AIR 1954 SC 220 )and the later judgment in the case of The State of Orissa and Ors. V/s. Harinarayan Jaiswal and Ors. ( AIR 1972 SC 1816 ). 14. I am tempted to notice that one in the case of Har Shankar and Ors. etc. etc. V/s. The Deputy Excise and Taxation commissioner and Ors. etc. , it was held by the Apex Court that amount charged from a licensee is neither in the nature of tax nor excise duty but it constitue price or consideration which the government charges for parting with its privilege and granting licence. Therefore, no body in fact has a fundamental right to trade on intoxicant and raise objection regarding fixation of price or terms of settlement. 15. From a bare reference to the facts of these cases as well as different authoritative pronouncements there cannot be any dispute that it is the absolute prerogative of the State to prescribe suitable terms and conditions for settlement of such shops. If the amount of fee or any other amount by way of security or additional amount is fixed on intoxicants in case of lifting of liquor in excess of minimum quantity, no dealer can object to such a condition. Because it has already been noticed that no dealer has a fundamental right to carry on trade or business with respect to intoxicant. 16. Because it has already been noticed that no dealer has a fundamental right to carry on trade or business with respect to intoxicant. 16. It is well-settled that the State under its regulatory powers, has a right to prohibit absolutely from the activities in relation to intoxicants, manufactures, sell, possession etc. In all such manifestations, rights are vested in the state. Therefore, it is always open to the state to part with such right for a consideration. The licence fee charged through the medium of auction or the fixed fee need no quid pro quo to the services rendered to the licensee. Therefore, the amount charged to the licensee i is not a fee nor indeed a tax but it is in the nature of price of a privilege, which, a purchaser has to pay in any trade or business transaction. In that view of the matter, since such terms and conditions were already accepted by the petitioner, while taking settlement of different vends, there shall be no scope for them to question the validity of settlement. One should always remember that trade or business in liquor being inherent in nature has to be kept in a special category. No citizen, therefore, can question the authority of the State with regard to the terms and conditions incorporated in the tender notice. As observed in the case of State of Orissa V/s. Hari Narain Jaiswal (AIR 1972 SC ,1816), if the Government is the exclusive owner of the privileges, conditions incorporated under Article 19 (l) (g) or Article 14 of the Constitution becomes irrelevant. It would be also relevant to notice that in the case of Nashirwar etc. V/s. State of Madhya Pradesh and Ors. ( AIR 1975 SC 360 ), these broader priciples were formulated so as to exclude the fundamental right of a citizen to carry on trade business in liquor: (a) State is to enforce public morality and to prohibit trades and dangerous goods (b)to enforce an absolute prohibition of manufacture or sale of intoxicant arid (c) because of history of Excise law, which, shows that the State has the exclusive right or privilege of manufacture or sale. 17. 17. Keeping in mind the aforesaid settled norms, it can be safely said that condition No.19 (ga) of the tender notice has been incorporated as one of the conditions for settlement, requiring the licensee to pay the additional amount, if they intend to lift liquor in excess of 50 percent to the fixed minimum guarantee note. Therefore, it would not be proper to submit that in absence of gazette publication, as required under Sec.92, such a condition in the tender notice would be illegal and ultra vires to the provisions of Rule 100. That apart, a reference to the statement of the respondents in their counter affidavit would further disclose that in the year 1995-96, more than 234.97 lacs L. P. Ls. was lifted in the state against the minimum guarantee quota of Rs.177.95 lacs. Therefore, there is nothing wrong if by introducing condition No.19 (ga) the State decided to charge additional revenue. Such a decision in my view, cannot be held arbitrary or unreasonable. Because upto 30 percent of minimum guarantee quota a licensee would not be required to pay additional revenue. But if he chooses to lift beyond 30 percent, such lifting, of course, shall be subject to payment of additional revenue in terms of condition incorporated under paragraph 19 (ga ). 18. But a bare reference to the report of the Assistant Commissioner and statement of the petitioners including the chart annexed with supplementary affidavit, would show that in case of strict implementation of condition No.19 (ga) there should be different rates of additional charges. In other words, for one shop in a particular town, excess charge will be at the rate of Rs.29/- per l. P. L. whereas with regard to others, it may go down to Rs.2.80. Undisputedly, up till now the procedure of settlement by auction has been prevailing for shop to shop. In other words, if there are two shops in the same locality, there can be two different prices, resulting in great variations of auctions money and sale price. 19. The apprehension cannot be rule out that because of the variations in the rate of additional charges, there may be great variations in the sale price as well. In other words, if there are two shops in the same locality, there can be two different prices, resulting in great variations of auctions money and sale price. 19. The apprehension cannot be rule out that because of the variations in the rate of additional charges, there may be great variations in the sale price as well. Therefore, a dealer of a particular locality where additional charge is much higher, in order to maintain the retail sale of the concerned vend may try to purchase from a vend where the rate of additional charge is lesser. Therefore, to avoid such an anamolous situation, it would have been proper for the authorities to examine the scope and prospect of such additional charges. 20. But as would appear from the statement of the respondents that more than 73 percent excise shops of retail vends have already settled as per the terms and conditions incorporated by the Excise Commissioner under Form 127. It may be possible that thousands of licensee of such shops are happy with the impugned condition. Therefore, keeping in mind the aforesaid years as also since the petitioners have already taken settlements on the basis of the terms and conditions of the sale notice, any amount of interference by this court at this stage would unnecessarily result into heavy loss of Government revenue. 21. But having taken note of the impractical and unworkable implementation of the condition as also having regard to the suggestion of Astt. Excise commissioner and the District magistrate, it would be necessary for the Excise Commissioner to reconsider the matter before taking steps for future settlement/renewal so that variations in the rate of additional charges can be avoided. Because such steps would also be necessary in the interest of government revenue and to check illegal supply of liquor from one place to other. 22. For the reasons stated above, I reject the prayer of the petitioners regarding quashing of condition No.19 (ga) of the tender notice with a direction to the Excise Commissioner to reconsider the mater in the light of the observations made above. I further direct that result of such reconsideration must follow much in advance from the date of fresh settlements or renewal of the shops. 23. With the aforesaid observations/directions, all the writ applications are thus disposed of. I further direct that result of such reconsideration must follow much in advance from the date of fresh settlements or renewal of the shops. 23. With the aforesaid observations/directions, all the writ applications are thus disposed of. But in the circumstances of the case, there shall be no order as to costs. Order Accordingly.