IMPORTANT POINT
Something which writ petitioner never intended or prayed for cannot be looked into in appeal.

JUDGMENT

Ashok Bhushan, J.

These appeals have been filed by the State of Madhya Pradesh against the judgment and order dated 04.05.2000 of the High Court by which judgment the writ petition filed by the Respondents has been allowed and demand of Rs. 13,24,189.50, claiming to be excess expenditure incurred on State Government establishment on Distillery of respondents has been set-aside.

2. Brief facts of the case are:

The Respondent Kedia Great Galeon Ltd. & Anr. held a licence under Madhya Pradesh Distillery Rules, 1995 (hereinafter referred to as Rules 1995) for manufacturing of Liquor/Spirit. A notice dated 23rd March, 1999 was issued to Respondent No. 1 by the District Excise Officer, demanding an amount of Rs. 13,24,189.50 as excess expenditure on the establishment of officers and employees as per Rule 4(41) of Madhya Pradesh Distillery Rules, 1995 pertaining to year 1995-96, 1996-97 and 1997-98.

3. The Respondents aggrieved by the above notice filed a writ petition in the High Court of Madhya Pradesh, Bench at Indore being Writ Petition No. 589 of 1999. The Respondent in its writ petition placed reliance on a judgment of this Court in M/s. Lilasons Breweries (Pvt.) Ltd. v. State of Madhya Pradesh and Others, (1992) 3 SCC 293, in which case Rule 22 of Madhya Pradesh Brewery Rules, 1970 which also entitled the State to realise from the brewery charges on officers exceeding five per cent of the duty leviable was struck down. Respondents pleaded in the writ petition that Rule 4(41) of the Rules, 1995 is also non est and void, consequently demand raised on the strength of such rule is liable to be struck down. In the writ petition following prayers were made in Para 7 by the Respondents:

"(i) A writ, direction or order in the nature of mandamus or as deemed fit be issued quashing the order Annexure/2 and it be declared that no demand can be raised under Rule 4(41) of the Distillery Rules.

(ii) Such other relief be granted as deemed fit.

(iii) This petition be allowed with costs."

4. A counter-affidavit was filed by the State, stating that Rule 22 of M. P. Breweries Rules, 1970 is out of context and has no relevance since the demand has been raised under Rule 4(41) of Rules, 1995.

5. State pleaded that demand made by the State is proper and cannot be struck down, however, if the writ petitioner wishes to challenge the vires of Rule 4(41), same can be challenged before the Constitution Bench.

6. A learned Single Judge allowed the writ petition and quashed the demand notice. Learned Single Judge although, opined that Rule 4(41) of the Rules 1995 appears to be ultra vires to the Madhya Pradesh Excise Act beyond the rule making power, however since no such prayer is made by the writ petitioner, no order in this behalf can be passed in the rules by Bench at Indore.

7. Learned Single Judge, however, held that decision of this Court in Lilasons (Supra) renders the demand notice Annexure P.2, as void. Learned Single Judge also held that the demand towards establishment charges is more than 150 per cent of the total income of the distilleries on the basis of which, the demand is arbitrary and unreasonable.

8. Aggrieved by the judgment of learned Single Judge, the State filed a Letter Patents Appeal before the Division Bench of the High Court, which was dismissed on 06.09.2005, as not maintainable.

9. Aggrieved by the judgment of learned Single Judge as well as the judgment of the Division Bench of the High Court, these appeals have been filed by the State of M.P.

10. We have heard Shri Ankit Kumar Lal, Learned Counsel appearing for the State of M.P. and Shri Jayant Kumar Mehta, learned counsel appearing for the respondents.

11. Learned counsel for the appellants in support of the appeal contends that the judgment of the learned Single Judge, declaring the demand, as void is erroneous. It is contended that the learned Single Judge, relying on the