The levy of gallonage fee on the sale of foreign liquor to Sikkim, a protectorate of India, was not ultra vires the powers of the State Legislature under the Constitution.

( 1 ) THIS is an application under Article 226 of the Constitution. The applicant is P. H. Avari carrying on business at No. 5, Dharamtolla Street, Calcutta. He seeks for a writ of certiorari to quash the order of the Collector of Excise, Calcutta, dated the 30th July, 1954, the order of the Commissioner of Excise, West Bengal, dated the 25th August, 1954 and the order of the Government of West Bengal, dated the 4th October, 1956.

( 2 ) THE order of the Collector of Excise, dated the 30th July, 1954 is the original basic order against which the present complaint is made in the petition. That order stated:--"under Rule 3 (b) of the rules published with the Notification No. 918 (A ). Ex. dated 11-9-42, you are liable to pay gallonage fees amounting to Rs. 11,989/8/- in respect of foreign liquors mentioned in the passes as noted below: (Pass numbers and dates were given in the order) issued by you in favour of the Ramdas-ram Ramphalram of Gangtok (Sikkim) not a licensee within the meaning of the West Bengal Excise Act. "

( 3 ) THERE is another part of the order which asked the applicant to pay gallonage fees amounting to Rs. 1463/8/- in respect of other quantities. But no complaint or objection is made with regard to that. The order complained against directed the applicant: "you are, therefore, directed to pay the gallonage fees amounting to Rs. 11,989/8/- within 7 days from the receipt of this notice. "

( 4 ) THE facts may be stated briefly. The petitioner carries on the business of importing foreign liquor from outside India and selling foreign liquor so imported and country-made to other licensed dealers. He is authorised to carry on such business under a license for the sale of foreign liquor granted under the Bengal Excise Act, 1909. The terms of license material for pur-pqses of this application are:" (I) Sri Pesi Hormusji Avari, resident of Calcutta is hereby authorised by the undersigned. Collector of Excise Calcutta to sell foreign liquor (other than denatured spirit) to licensed dealers at 5, Dharamtolla Street, Calcutta from 1-4-1953 to 31-3-1954. (2) That he do not sell any foreign liquor to another licensed dealer (including holders of licenses for hotels, restaurants, bars, canteens, dak bungalows, railway refreshment rooms, steamers and dining cars) except under a pass to be issued by him, one copy of which should be sent to the Superintendent of Excise, Calcutta, and the other to the Superintendent of Excise of the District to which the consignment is sent. "

( 5 ) IT is the petitioner's case that he has been carrying on such business from the year 1946 under the name and style of Calcutta Foreign Liquor Trading Co. His license has been renewed from year to year. It is also his case that since the beginning of his business he has been selling foreign liquor to other dealers outside India and for this purpose he used to issue passes in terms of the clauses in the license quoted above. In the usual course of business he sold and supplied to Ramdas Ramphalram in Gang-tok (Sikkim) who he alleges is a licensed dealer in foreign liquor in the State of Sikkim. It is his case that he has been selling foreign liquor to Ramdas since the year 1946. In selling and supplying the foreign liquor to Ramdas he issued passes purporting to be in terms of his license and also against excise import permits said to be granted by appropriate authorities in the State of Sikkim. He submitted regularly copies of all passes issued by him covering all sales to Sikkim. (6) A material part of the Bengal Excise (Foreign Liquor License Fee) Rules with which it will be necessary to deal came into operation from 6-11-1950. The petitioner's case is that he has been dealing with Sikkim before 6-11-1950. Section 12 of the Bengal Excise Act provides that--"no intoxicant exceeding such quantity as the Provincial Government may prescribe by notification either generally or for any specified local area, shall be imported, exported o