JUDGMENT:- This petition by holders of country and foreign liquor vending licences is directed against notice of demand, whereby the respondents claimed revised licence fees for the year 2001-02 on account of availability of census figures for the year 2001. 2. It is petitioners' case that the petitioners hold licences for vending foreign and country liquor in Nag pur. The licence fees for the year 2001-2002 was fixed by notification dated 30th January, 2001. The petitioners paid this fees This schedule of fees in notification dated 30th January, 2001 prescribes different rates for licences in cities and towns based on the population of such city or town. On availability of census figures for 2001, as it was found that City of Nag pur had a population of more than twenty lacs, higher licence fees was payable under the notification of 30th January, 2001. This was demanded by the impugned demand notice issued in February, 2002. 3. It is petitioners' contention that such fees at higher rate could not have been demanded, since the census figures for the last preceding census which were available and published at the time of fixing licence fees were for 1991 census and 2001, figures were yet to be finalized and published. Therefore, they filed this petition to have those demand notices quashed and set aside. 4. On 19th March, 2002 when this petition was admitted the petitioners were directed to deposit the additional fees, which had been demanded by the impugned notice and they have deposited these amounts by 28th March, 2002. 5. The respondents have contested the petition by submitting that the demands were made as per same schedule in the notification which was properly issued on 30th January, 2001. There is no increase in the fees. Only on account of increase in the population of Nag pur in the census held in the year 2001, the city came in different bracket and therefore, difference of fees under the same notification was demanded. 6. I have heard learned counsel for the petitioners and learned Assistant Government Pleader for the respondents. 7. Only on account of increase in the population of Nag pur in the census held in the year 2001, the city came in different bracket and therefore, difference of fees under the same notification was demanded. 6. I have heard learned counsel for the petitioners and learned Assistant Government Pleader for the respondents. 7. The learned Assistant Government Pleader first, submitted that the petition would not lie as there is no question of petitioners' having any fundamental right to vend the liquor and therefore, there is no question of breach of any fundamental right, as has been claimed by the petitioners in the prayers and ground (b) of the petition. It seems that the petitioners have referred to the fundamental rights in the prayer clause merely out of habit and what they were in fact contending is violation of the Rules in making a demand of enhanced licence fees retrospectively for excise year which was almost coming to an end. 8. The learned counsel for the petitioners submitted that licence fees for renewal of licences for vending foreign and country liquor in hotels/ restaurants and shops are governed respectively by Rules 45 and 26B of the Bombay Foreign Liquor Rules, 1953 and Rule 24 of the Maharashtra Country Liquor Rules, 1973. These rules, as also rule 25 of Foreign Liquor Rules may be reproduced for ready reference as under: "45. Grant of licence and its duration: (1) On receipt of an application, the Collector shall place the application along with enquiry report before the Committee for consideration of the same by the Committee. (Provided that, the licence fee and renewal fee for the hotel shall not be less than the fee prescribed for restaurants on the basis of population). (1-A) The Committee shall consider the suitability or otherwise of the applicant for the grant of licence and record its recommendation in that behalf. (1-B) The Collector after duly considering the Committee's recommendation and after satisfying himself that the premises where it is proposed to sell the foreign liquor are in conformity with the provisions of the rules and that there is no other objection to grant the licence applied for, may inform the applicant of the decision and grant the licence in Form EL.III on payment of a deposit of rupees Five Thousand and the fees (inclusive of consideration), according to the following scale, namely :- Rs. (a) Hotels having up-to 25 rooms. 25,000 (b) Hotels having 26 to 100 rooms. 50,000 (c) (c) Hotels having 101 to 150 rooms.75,000 (d) Hotels having 151 to 200 rooms. 1,00,000 (e) Hotels having 201 or more rooms. 1,50,000 (f) Restaurants in Village/ Town/City (1) towns with population up-to 3.Lakhs. 40,000 (2) City with population of 3.lakhs and above but below 10.lakhs. 50,000 (3) City with population of 10.lakhs and above but below 20.lakhs. 75,000 (4) City with a population of 20.lakhs and above. 1,00,000 Provided that, hotels having up-to 25 rooms, which are situated in a city with population of 3 lakhs and above shall be required to pay the fees, as per the scale of fees for restaurants based on the population of cities where they are situated, as prescribed in clause (f). (l-C) (2) No licence under this rule shall be granted for a period beyond the 31st March next following the date of the commencement of the licence. (3) Any person desiring to renew a licence shall, thirty days before the date of expiry of the licence, apply for the renewal thereof. Every such application shall be accompanied by a challan evidencing payment of an application fee of Rs.25. (4) Any licence granted under sub-rule (1) may be renewed by the Collector for a period not exceeding one year at a time on payment of the same fee as prescribed under sub-rule (1). [Provided that licence granted to restaurants shall be renewed on recovery of fees on following scale, namely: Restaurants in a - Rs. (1) village/town/city with population up-to 3 lakhs.30,000 (2) city with population of 3.lakhs and above but below 10 lakhs.35,000 (3) city with population of 10.lakhs and above but below 20.lakhs 60,000 (4) city with population of 20.lakhs and above. 65,000 25. Grant of vendor's licence and payment of fees : - (1) The Collector shall in conformity with the Committee's recommendation, and after satisfying himself that the premises proposed for location of the shop for selling foreign liquor are in conformity with the provisions of the rules and instructions issued by the State Government or the Commissioner in this behalf from time-to-time ,and that there is no objection to grant the licence applied for, may, inform the applicant of the decision and grant the licence in Form FL-I! on payment of deposit of Rs.10,000/- and of a fee (inclusive of consideration) payable as per the scale given below: 1. Town with population up-to 1.lakh. Rs.25,000 2. City with population of 1.lakh and above but below 10.lakhs. Rs.65,000 3. City with population of 10.Lakhs and above. Rs.l,00,000 Provided that, if the selected applicant fails to complete necessary formalities for obtaining the Licence within three months of the receipt of intimation, it shall automatically be treated as cancelled and the Collector shall proceed to allot the licence to other suitable applicant. Explanation: For the purposes of rules 24 and 25, "population" means the population of a town or a city, as the case may be, as ascertained from the latest Census Report, whether provisional or final. (2) No licence under sub-rule (1) shall be granted in respect of any shop : (a) which, in the opinion of the Collector or the officer auth-orised by him in this behalf in writing, is not adequate for storing the required stock and for selling it; or (b) which, if situated in areas within the jurisdiction of any Municipal Corporation or 'A' Class or 'B' Class Municipal Council, is within a distance of fifty metres, and if situated elsewhere, one hundred meters, from any educational or religious institution; or (c) which is situated within a distance of fifty metres from any bus stand, station or depot of the Maharashtra State 'Road Transport Corporation; or (d) which is not duly approved by the Collector or the officer auth-orised by him in this behalf and is not, for reasons to be recorded in writing, certified by him to be otherwise suitable also for locating the shop before the grant of the licence; Provided that nothing contained in this sub-rule shall apply in respect of an Existing shop for which the licensee holds a valid licence in Form EL.II immediately before the coming into force of the Bombay Foreign Liquor (Amendment) Rules, 1981. Explanation - For the purpose of this sub-rule (i) "educational institution" means any preprimary, primary or secondary school managed or re-cognised by any local authority or the State Government or the Central Government or any college affiliated to any University established by law, but does not include any private coaching institution; (ii) "religious institution" means an institution for the promotion of any religion and includes a temple, math, mosque, church, synagogue, agiary or other place of public religious worship which is managed or owned by a public trust registered under the Bombay Public Trusts Act, 1950 (Bombay XXIX of 1950) and includes such other religious institutions as the State Government may by order specify in this behalf; (iii) The distance referred to in clause (b) or (c) shall be measured from the midpoint of the entrance of the shop along the nearest path by which the pedestrian ordinarily reaches: (a) the mid-point of the nearest gate of the institution, if there is a compound wall and if there is no compound wall, the mid-point of the nearest entrance of the institution, or (b) the mid-point of the nearest gate of the bus stand, station or depot of the Maharashtra State Road Transport Corporation if there is a compound wall and if there is no compound wall, the nearest point of the boundary of such bus stand, station or depot. (3) Any shop in respect of which a licence in Form C.L. III has been granted shall not be deemed to be situated within the prohibited distance referred to in clause (b) or (c) of sub-rule (2) if at any time after such licence is granted (a) any institution referred to in clause (b) of sub-rule (2) comes into existence within a distance of fifty meters or as the case may be, one hundred meters, from that shop, or (b) if any bus stand, station or depot referred to in clause (c) of the said sub-rule (2) comes into existence within a distance of fifty meters from that shop. 26-B. Any licence granted under sub-rule (I-A) of rule 25 may be renewed by the Collector for a period not exceeding one year at a time on payment of fee on the following scale, namely :- Rs. 26-B. Any licence granted under sub-rule (I-A) of rule 25 may be renewed by the Collector for a period not exceeding one year at a time on payment of fee on the following scale, namely :- Rs. (I) Towns with a population up-to one lakh.15,000 (2) City with population of one lakh and above but below ten lakhs.40,000 (3) City with population of ten lakhs and above. 75,000 Rule 24 of the Maharashtra Country Liquor Rules, reads as under: "24. Grant of licence (1) The Collector shall in conformity with the Committee's recommendation and after satisfying himself that the premises proposed for location of the shop for selling country liquor are in conformity with the provisions of the rules and instructions issued in this behalf, by the State Government or the Commissioner, from time to time and that there is no other objection to grant the licence applied for, may inform the applicant of the decision and grant the licence in Form CL-III on payment of a fee (inclusive of consideration) prescribed in sub-rule (I-B): Provided that, if the selected applicant fails to complete necessary formalities for obtaining the licence within 3 months of the receipt of intimation, it shall automatically be treated as cancelled and after the expiry of the said period of 3 months, the Collector shall proceed to allot the licence to other suitable applicant]. (I-A) (I-B) Fees prescribed for the licence in Form C.L.-III shall be according to the following scales, namely: Where the licensed shop is proposed to be located in a - Rs. (a) Town or village with population up to 5,000. 6,000 (b) Town with population of 5,000 and above but below 10,000. 10,000 (c) Town with population of 10,000 and above but below 2 lakhs.20,000 (d) City with population of 2.Lakhs and above but below 10.lakhs. 30,000 (e) City with population of 10.Lakhs and above but below 20.lakhs. 45,000 (f) City with population of 20.Lakhs and above. 60,000 Explanation : For the purpose of this sub-rule "population" means the population as ascertained at the last preceding census of which the relevant figures. either provisional or final have been published. 30,000 (e) City with population of 10.Lakhs and above but below 20.lakhs. 45,000 (f) City with population of 20.Lakhs and above. 60,000 Explanation : For the purpose of this sub-rule "population" means the population as ascertained at the last preceding census of which the relevant figures. either provisional or final have been published. (2) No licence under sub-rule (I-A) shall be granted for a period beyond 31st March next following the date of commencement of the licence: (2-A) Any person desiring to renew a licence shall, thirty days before the date of expiry of the licence, apply forthe renewal thereof. Every such application shall be accompanied by a challan evidencing payment of fee of Rs.25. (3) Any licence granted under sub-rule (1A) shall be renewed by the Collector for a period not exceeding one year at a time on payment of fees on the scale mentioned hereunder, unless the Collector has reason to believe that there has been a breach of any of the terms and conditions. of the licence, or that the retail licensee has not been working it properly. Where the licensed shop is located In a - Rs. (a) town or village with population up to 5,000. 3,000 (b) town with population of 5,000 and above but below 10,000. 4,500 (c) town and city with population of 10,000 and above but below 2lakhs. 12,000 (d) city with population of 2.Lakhs and above but below 10.lakhs. 20,000 (e) city with population of 10.Lakhs and above but below 20.lakhs. 30,000 (f) city with population of 20.Lakhs and above. 40,000." 9. The scale of fees referred to in these rules is no longer relevant since the Government, in exercise of its powers under Section 145 of the Bombay Prohibition Act, framed the Maharashtra Potable Liquor (Periodicity and Fees for Grant, Renewal or Continuance of Licence) Rules, 1996. These rules provide for notification of fees for grant of renewal or continuance of licence by the Commissioner at least sixty days in advance of the financial year. Rule 4 may be usefully reproduced as under: "4. These rules provide for notification of fees for grant of renewal or continuance of licence by the Commissioner at least sixty days in advance of the financial year. Rule 4 may be usefully reproduced as under: "4. Fee for grant, renewal or continuance: (a) Fee for grant, renewal or continuance of a licence for one year shall be as notified by the Commissioner at least sixty days in advance of the financial year; and (b) Fee for grant of renewal of a licence for five years shall be equal to four and a half times the fees chargeable for the grant or renewal or continuance, as the case may be, of that licence, for one year." In exercise of those powers the Commissioner issued notification on 30th January, 2001. In this notification the licence fees for CL-III licence in areas having population above ten but below twenty lacs was fixed at Rs.90,000/- and for areas having population twenty lacs and above was fixed at Rs.1, 18,000/-. For FL-III licence, for population between ten to twenty lacs fees was fixed at Rs.l,41,000/- and for population above twenty lacs it was Rs.l,61,000/-. 10. The learned counsel for the petitioners submitted that in view of the explanation to sub-rule (1) of Rule 25 of the Foreign Liquor Rules and sub-rule (1 )(b) of Rule 24 of the Country Liquor Rules, population has to be reckoned as population ascertained in the last preceding census, figures whereof have been published. It is not in dispute that at the time of recovery of licence fees for the year 2001-2002 i.e. from 1st April, 2001 to 31st March, 2002 the figures of census for the year 2001 were not available and had not been published. Since the figures were published only subsequently the impugned demand notices were issued in January-February, 2002. The learned counsel for the petitioners submitted that in view of the explanation to the rules which have been quoted in the preceding paragraphs higher licence fee on the basis of increased population could be claimed only after the census figures had been published. He submitted that at the time of payment of licence fees for the year 2001-2002 the figures of 1991 census only were available and therefore, recovery of licence fees as per those figures was proper. He submitted that at the time of payment of licence fees for the year 2001-2002 the figures of 1991 census only were available and therefore, recovery of licence fees as per those figures was proper. Therefore, according to the learned counsel, the impugned notices are viol-ative of the Rules framed by the State. 11. The learned Assistant Government Pleader, first, submitted that in view of the subsequent promulgation of the Maharashtra Liquor (Periodicity and fees for grant, renewal or continuance of licence) Rules, 1996 (hereinafter referred to as "1996 Rules" for short), the explanation in Rule 25 of the Foreign Liquor Rules and 24 of the Country Liquor Rules are no longer in force. Rule 6 of the 1996 rules reads as under: "6. Repeal - These rules shall supersede all the provisions relating to periodicity of licences and the amount of fees chargeable for grant, renewal or continuance thereof made in the relevant rules mentioned in sub-rule (ii) of rule 2 above, and the remaining . provisions of those rules shall continue to be in force." In view of this, the specific repealing provision, according to the learned A.G.P. all the rules regarding periodicity of licences and amount of fees chargeable has been superseded and only remaining provisions of the rules were to remain in force. He submitted that the explanations specifically pertains to and governs the amounts of licence fees and therefore, have been superseded by Rule 6 of 1996 rules. 12. The learned A.G.P. next submitted that the explanation on which the learned counsel for the petitioner has placed reliance is not to be found in Rule 45 of the Foreign Liquor Rules which is relevant provision for licences in respect of the business of petitioner Nos. 5, 6 and 7, Annexures F, G and H of the petition. He submitted that in the absence of any stipulation as to how the population was to be reckoned in Rule 45, the explanations in Rules 25 of the Foreign Liquor Rules and 24 of the Country Liquor Rules could not be read into Rule 45 of the said Rules. Further, according to the learned A.G.P. explanation in sub-rule (1) of Rule 25 of the Foreign Liquor Rules is only for the purpose of Rule 24 and Rule 25. He submitted that Rules 24 and 25 concerns grant of licence and not renewal of licence. Further, according to the learned A.G.P. explanation in sub-rule (1) of Rule 25 of the Foreign Liquor Rules is only for the purpose of Rule 24 and Rule 25. He submitted that Rules 24 and 25 concerns grant of licence and not renewal of licence. which is governed by Rules 26-A and 26-B. He points out that Rules 26-A and 26-B of the Bombay Foreign Liquor Rules does not contain explanation. Therefore, the explanation could not be read into Rules 26-A and 26-B of the Foreign Liquor Rules. Likewise, according to the learned A.G.P. sub-rule (1) of Rule 24 of the Country Liquor Rules is about grant of licence and renewal is dealt with under sub-rule (2) of the said Rules. The explanation below sub-rule (1)(b) specifically provides that it was for the purpose of said sub-rule and not for the rule in its entirety and therefore, could not be read into sub-rule (3) of Rule 24 of the Country Liquor Rules. 13. The learned counsel for the petitioners submitted that if there has been an omission of the explanation in the relevant rules or sub-rules it would have to be ignored, since the intention of the framers of the rule is clear that population has to be reckoned with reference to the figures of the last census which have been published. In the matter of revenue if a citizen has to take advantage of any provision which would reduce his liability, he would have to show that such provision is contained in the rule whereby he is made liable to pay fees to the State. It has to be noticed that in Rule 25 of the Foreign Liquor Rules the State has specifically provided that the explanation would govern rules 24 and 25 of the said rules and in Rule 24(1)(b) of Country Liquor Rules it has been specifically provided that the explanation was for the purpose of the said sub-rule. It was competent for the State Government to include the explanation to cover all the species of grant or renewal of licence. But that has not been done. It was competent for the State Government to include the explanation to cover all the species of grant or renewal of licence. But that has not been done. Therefore, what is not in rule cannot be read into it, and therefore, the contention of the learned A.G.P. that the explanation would not help the petitioners, because it pertains to grant of Country and Foreign Liquor licences and does not at all cover renewal of licence either for vending liquor in shops or in hotels has to be accepted. Thus, apart from the fact that in view of Rule 6 of the 1996 rules, the contention of the learned A.G.P., that these explanations cease to regulate even grant of licences appears to be prima-facie valid, (though it is not necessary to express any opinion on this question since the question of grant of licences is not under issue in this petition), the explanations are inapplicable to cases of renewal of licences. 14. The learned counsel for the petitioners next submitted that apart from Rule 25 of the Foreign Liquor Rules and Rule 24 of the Country Liquor Rules, once the Excise Department receives licence fee for a year and renews the licence, it cannot subsequently enhance the fees retrospectively and demand the difference. For this purpose, he relied on a judgment of the Supreme Court in Excise Superintendent Vs. Deluxe Bar, reported at 2001(1) SCALE 98 . Rule 25 of the Andhra Pradesh Foreign Liquor Indian Liquor Rules, 1970, though not worded exactly in the terms of rule 24 or Rule 25 of the Country Liquor or Foreign Liquor Rules of the Maharashtra State, also provides for recovery of annual licence fee for lease year before commencement of the lease year. Rule 26-A of the Foreign Liquor Rules applicable in Maharashtra which provide for renewal of licence lays down that at least 30 days before expiry of the licence an application for renewal has to be made. Rule 26- B provides that licence may be renewed by the Collector on payment of the prescribed fees. Sub-rule (3) of Rule 24 of the Maharashtra Country Liquor Rules also provide for renewal of licence on payment of fees, mentioned therein. Rule 26- B provides that licence may be renewed by the Collector on payment of the prescribed fees. Sub-rule (3) of Rule 24 of the Maharashtra Country Liquor Rules also provide for renewal of licence on payment of fees, mentioned therein. Thus, though the Andhra Pradesh Rules cannot be said to be in parimateria with the Maharashtra Rules, the fact that both these rules require payment of annual licence fee before commencement of the licence year or in installments, as has been provided in Andhra Pradesh Rules, cannot be ignored. In this context, the observations of the Apex Court in the judgment rendered in Excise Superintendent Vs. Deluxe Bar (referred above) have to be read. 15. In that case, the respondents held licences and had paid the requisite fees. The State Government issued "G.O.M.S." dated 3rd March, 1993 amending the schedule of the fees which was to come into force from 1st April, 1990. The excise year in Andhra Pradesh commences on 1st October and ends on 31st September. Thus, the enhancement was made in the middle of excise year, though not retrospectively, from the commencement of the current excise year. The High Court held that the State Government could not increase licence fee during the middle of the excise year. The High Court held that the enhanced licence fees could be made effective from the beginning of the next excise year. It was contended before the Hon'ble Supreme Court that the rules provide that the licencees had bound themselves to pay licence fees levied from time to time, and the fore, the licencees could not challenge the enhanced licence fees levied from time to time during validity of the licence. The Supreme Court held that annual character of the licence fees has to be considered, and once the annual licence fees is enforced at the commencement of the excise year, and had either been paid by the licencee, or agreed to be paid in installments, the right to operate the licence for that licence year gets crystal-lised and that right cannot be put in jeopardy during the subsistence of the concerned excise year. 16. 16. The learned counsel for the petitioners rightly submitted that in the case at hand too after the licencees had paid licence fees for the excise year 2001-02, enhanced Mario Cotta Pereir licence fees could not have been demanded towards the end of the said excise year in February, 2002. 17. In view of this, the demand notices Annexures K tp S have to be held ultravires the provisions of the Rules made under the Bombay Prohibition Act. The petition is, therefore, allowed. The demand notices Annexures K to S are quashed and set aside. The amount deposited by the petitioners in this Court in pursuance to interim orders shall be refunded to the petitioners. Petition allowed.