Satyeshwar Ray, J.:— When this application was taken up for hearing Mr. Bharuka, learned counsel appearing on behalf of the petitioners confined his prayer to relief no. 3, that is for quashing annexure-3, letter from the Food Commissioner dated 19.4.85 to all Divisional Commissioners by which the latters were informed that license fee under Bihar Trade Articles (Licenses Unification) Order, 1984 (the Order) at the enhaced rates will come into force immediately and Annexure-5, the notification dated 10th July, 1985, by which the State Government amended the licence fees as mentioned in schedule IV, the fees prescribed under clause (IV) and (VI) of the order.
2. Petitioner no. 1 is an association of wholesale and retail dealers and petitioner nos. 2 to 9 are some of the members of petitioner no. 1 petitioner nos. 2 to 9 are dealers within the meaing of the Order and are carrying on trade in foodgrains, sugar, edible oil, vanaspati etc. after obtaining licence under that Order.
3. They obtained licence by paying fee as notified by the notification dated 19th April 84 as contained in annexure-2. The fees as prescribed in annexure-2 was changed and a higher fees were prescribed as appear from annexure-3 dated 19.4.85 and annexure-5, the notification dated 10th July 1985. The case of the petitioners is that the fees prescribed by annexures-3 and 5 has absolutely no relevance to the service rendered by the State to the dealers and there was a complete lack of quidpro quo in the fee levied under annexure-5 and the service rendered.
4. The respondents in the counter affidavit have stated that as a matter of policy, the State Government revised and enhanced the fees payable by the licensees.
5. Following the case of Mathews v. Chicory Marketing Board, 60-CLR-263, the Supreme Court, as far back as in 1954, in the case of Commr. Hindu Religious Endowments Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (A.I.R 1954 S.C 282), laid down what was meant by “fee.” The law so laid has been consistently followed in all cases thereafter and reiterated as recently as in the case of Om Prakash Agarwal v. Giri Raj Kishore ((1986) 1 SCC 722 : A.I.R 1986 S.C 726) It has repeatedly been held by the Supreme Court that to uphold a levy as fees it must be shown that it has reasonable co-relationship of a general character (though not with arithmetical exactitude) with the service rendered by the government. Reference may be made to the case of the Indian Mica and Micanite Industries Ltd. v. The State of Bihar ((1971) 2 SCC 236 : A.I.R 1971 S.C 1182), and the case between the same parties reported in 1974 B.E.C.J 698), which was heard by a Bench of this Court after the matter was remanded by the Supreme Court. Reference may also be made to the case of Birendra Kumar Sinha v. The State of Bihar (3980 B.L.J.R 39).
6. Asheld in the case of Indian Mica and Micanite Industries Ltd. (Supra), co-relationship between the service rendered and the fee levied is essentially a question of fact. As noticed above, the respondents, in their counter affidavit have merely stated that as a matter of policy, the fees payable under different by the licensees were enhanced without disclosing the nexus these enhancement have with the service rendered or proposed to be rendered by the State Government to the licensees. In view of the law laid down by the Supreme Court and for the reasons aforesaid, the enhancement in the fees payable by the licensee as ccntained in annexures 3 and 5 cannot be sustained.
7. In the result, the application is allowed and annexures 3 and 4 are quashed. The licensees under the Order shall be liable to pay fees as prescribed in annexme-2, the notification dated 19th April ‘84. It appears that some of the petitioners, namely, petitioner nos. 3, 5, 7, 8 and 9 have deposited the fees at the rate prescribed under annexures 3 and 5. They shall be entitled to adjust the same against the fees, they may be liable to nay in future under the Order.
8. There shall be no order as to cost.