By the Court.—In the afore-captioned batch of writ petitions, the cause of action for filing writ petitions and the relief sought are identical in nature and as such all the writ petitions are being decided by a common judgment.

2. Heard Sri S.K. Srivastava, Ms. Appoli Srivastava, Sri Amitabh Rai, Ms. Sujata Srivastava, Mr. Manish Kumar, Mr.Ahilesh Kalra and Mr.Shailendra Kumar Singh, learned Counsel for the petitioners and Sri Namit Sharma, Sri R. K.Singh, Sri Shailendra Singh Chauhan, Sri Shashi Prakash Singh and Sri Shafiq Mirza, learned Counsel for the respective opposite parties and Sri H. P. Srivastava, learned Additional Chief Standing Counsel.

3. All the petitioners, except the petitioners of Writ Petition No. 2493 (MB) of 2004, Writ Petition No. 2511 (MB) of 2004, writ petition No. 2510 (MB) of 2004 and writ petition No. 2354(MB) of 2004, are holders of excise licenses for selling Indian Made Foreign Liquor in sealed bottles for which licences were granted to them as per provisions of The U.P. Excise Act, on payment of license fee for financial year 2001-2002 by the Collector, Lucknow. They have questioned the bye-laws framed by Nagar Nigam,Lucknow, which enjoins upon the petitioners to take licence, in view of clauses 5 and 7 of the Bye-laws, from Nagar Nigam for selling Indian Made Foreign Liquor (IMFL) and pay Rs. 12,000/- per annum as licence fee.

4. According to petitioners, Nagar Nigam does not have any power to impose a license on the petitioners when they have already obtained a license from the Excise Department under the U.P. Excise Act. It has been contended on behalf of the petitioners that U.P. Excise Act and the Rules framed thereunder fully cover all aspects incidental to the excise business. Also, the license granted to them lays down very strict conditions for a liquor shop to operate. The conditions include the location of the shops, its opening and closing time, the premises at which the shop is located can be searched any time not only by the excise inspector but even by the police officers. Therefore, petitioners argue that there is nothing left for the Nagar Nigam to regulate upon.

5. According to petitioners, the U.P. Excise Act has been enacted by the State Government under Entries 8 and 51 of List II, Schedule VII of the Constitution and therefore, the bye-laws cannot have an overriding effect upon a constitutionally valid Act. Further, a local body cannot superimpose its authority over that of the State body as the excise business is already controlled by the State through the Excise Commissioner. The license to the petitioners have been granted by the Excise Department but if the Nagar Nigam also starts granting license this will lead to conflict as denial of license by the Nagar Nigam will render the license granted by the Excise department ineffective or useless.

6. The principle of taking license fee requires providing of certain services in lieu of it but bye-laws formulated by the Nagar Nigam does not prescribe or lay down the type of services, which they will render to an Excise licensee. Lucknow Nagar Nigam has sought to justify the said bye-laws on the basis of Section 541 (20) read with Section 438 of U.P. Nagar Nigam Adhiniyam. Sections 541 and 438 of U. P. Nagar Nigam Adhiniyam speaks about the premises where any trade is to be done and details of premises can be prescribed. The bye-law is silent on this point. Similarly, Section 438 (1) (d) provides for taking licence for doing trade. In fact, if entire section is perused, it would reflect that it intends to control the dangerous trade. The word ‘trade’ used in this section would not be so called trade of liquor. The reason that there are certain trades on account of their pernicious nature cannot be called trade as is commonly understood. In such alleged trades, like Excise, gambling, lottery etc, it is only the privilege of the State to exploit the earnings of money. It may do itself or through it’s agency under it’s st