B. L. Yadav, J.

1. In respect of the interpretation of Rule 106 of the Bihar excise Rules (compendiously the Rules framed under Sec.89 of the Bihar excise Act (compendiously the Act,)there was conflict of the opinion between the two Division Bench decisions of the Court. The first Division Bench decision was rendered in C. W. J. C. No.6118 of 1993, followed in C. W. J. C. No.1587 of 1994 ; whereas the contrary view in Division Bench decision was rendered in C. W. J. C. No.64% of 1994. As there was conflict of the opinion in these Division Bench decisions, hence the matter was referred to a larger bench. This is how this matter has been placed before this Full Bench. As these petitions involve similar questions for determination hence they are being disposed of by a common judgment.

2. The present writ petitions were filed under Articles 226/227 of the constitution of India and the prayers is for issuance of a direction in the nature of mandamus, directing the respondents not to charge the licence fee for the period during which the petitioner was not granted any licence nor any business was carried out for that period, in other words it was to make proportionate reduction in the licence fee and to refund to the petitioners the excess amount paid.

3. In these writ petitions the questions involved are as to whether the petitioners are entitled to proportionate reduction and consequential refund in the licence fee paid in connection with the settlement of the wholesale licence of Indian made foreign liquor under Rule 106 of the rules. In other words whether the respondents can compel the petitioners to pay the licence fee for the period for which no licence was issued and in that period no business was made. Even though the licence was granted for a limited period i. e.8.10.1994 to 31.3.1995, but the respondents are trying to charge licence fee. for whose of the financial year, i. e.1.4.1994 to 31.3.1995. The licence was granted only for five months and 23 days, but the licence fee was charged for 12 months, i. e. from 1.4.1994 to 31.3.1995, which was arbitrary, unreasonable beyond the authority in law and manifestly erroneous.

4. The facts of these petitions lie in a narrow compass and they are these. In pursuance of the advertisement dated 12-9-1994 (Annexure-1) issued by the Deputy Commissioner (Excise), ranchi (Respondent No.3) for settlement of sale licence of India made foreign liquor for the remaining period, the petitioners applied for the same for the remaining period of 1994-95. The petitioners in C. W. ,j. C. No.296 of 1995 (R) complied with the conditions and made requisite deposit for a sum of Rs.1,50,000/- (vide Annexure- 2 ). licence was granted in Form I (licence for sale of foreign liquor to the trade) (vide annexure-2/a ). It was specifically mentioned in the licence itself that the licence was being granted for a limited period from 3-10-1994 till 31-3-1995 in c. W. J. C. No.296 (R) and from 31-1-1995 to 31-3-1995 in C. W. J. C. No.678 of 1995 (R ).

5. A counter affidavit was filed on behalf of the respondents with the averments that the petitioners have to pay licence fee for the entire period. As per the privilege conferred on them, there would be no justification under the law for proportionate reduction of the licence fee or refund of the same to the petitioners.

6. The learned counsel for the petitioners contended that in the advertisement itself (Annexure-1) it was made evident that for the remaining period of 1994-95 the licence was sought to be granted and the applications were invited from the intending licensee in pursuance of the provisions of Rule 106 of the Rules framed under the Act. Rule 106 was framed under the rule- making power under sub-sections (7), (8) and (9) of section 90 of the Act. By the amendment dated 25-4-1990 rule 106 of the Rules was substituted under which wholesale licence fee of rs.1,50,000/- was imposed and this amount and other amount required was to be paid by the pe