JUDGMENT

PUNCHHI, J.:- This appeal is directed against the judgment and order dated September 4, 1980 of a Division Bench of the High Court of Madhya Pradesh at Jabalpur in Miscellaneous Petition No. 48 of 1978.

2. Vires of Rule 22 of the Madhya Pradesh Brewery Rules, 1970 framed under S. 62 of the Madhya Pradesh Excise Act, 1915 stands questioned. That rule says:

"22. Excise Commissioner to appoint Officer-in-charge of Brewery:-Every brewery shall be placed by the Excise Commissioner under the charge of an Excise Inspector to be designated as officer-in-charge of the brewery. The Excise Commissioner will further appoint such other officer of the Excise Departments he may deem fit to the charge of breweries. The pay of all such officers shall be met by the Government; provided that when the annual charges exceed five per cent of the duty leviable on the issue made from the brewery to districts within the State excess shall be realised from the brewer."

3. The roots of the Rule, through the provisions of the Madhya Pradesh Excise Act, require to be traced, as well as the nature of the exaction provided in it. A broad framework of the working of the Act would thus be necessary.

4. The State has the exclusive right or privilege of manufacture or sale of liquor. There is no fundamental right of any citizen to carry on trade and business of liquor. This is the settled position of law. See in this connection Nashirwar v. State of M. P. (1975) 2 SCR 861, a case under the Madhya Pradesh Excise Act and other cases of the same strand. It is open to the State through its Government to part with those rights in regard to liquor and intoxicants for a consideration. Any citizen wanting to do the business in liquor or intoxicants in the State of Madhya Pradesh has to seek permission under the Madhya Pradesh Excise Act, 1915. S. 13 of the Act provides inter alia that no intoxicant shall be manufactured or collected, no liquor shall be bottled for sale, no distillery or brewery shall be constructed or worked and no person shall use or have in his possession any materials, still, utensil, implement or apparatus whatsoever for the purpose of manufacturing any intoxicant other than tari, except under the authority and subject to the terms and conditions of a licence granted in that behalf. S. 18 empowering the State Government to lease to any person on such conditions and for such period as it may think fit, the right of manufacturing, supplying or selling of any liquor or intoxicating drug within any specified area. For the purpose there is a duty leviable and other fees collectable. Chapter V of the Act is earmarked for the purpose. Therein S 25 provides that Excise Duty is payable on all excisable articles imported, exported, transported, manufactured, cultivated or collected under any licence or manufactured in any distillery established, or any distillery or brewery licensed under the Act. In the same Chapter is S. 27 which enables the Government to get payment for grant of leases. It says

"27. PAYMENT FOR GRANT OF LEASES- Instead of or in addition to any duty leviable under this Chapter, the State Government may accept payment of a sum in consideration of the grant of any lease under officer-in-charge etc. of the brewery from the S.18."

5. It is evident from a bare reading of the aforesaid provision that two situations are envisaged. The first situation is when duty is leviable under ChapterV, the Government may accept instead a sum in substitution of the duty, in consideration of the grant of a lease under S. 18. The second situation is that the Government may accept payment of an additional sum over and above the duty leviable under Chap. V, in consideration of the grant of a lease under S. 18. S. 28 in the following Chapter then provides for the forms and conditions of licences and fees charged thereon. It provides that every licence, permit or pass granted under the Act shall be granted on payment of such fees, if any, for such period, subject