1. By these writ petitions filed under Art. 326 of the Constitution of India, the petitioners have impugned the statutory notification dated the 14th of September, 1992, bearing No. BPA-1088/ 1866/EXC-3, issued by the Government of Maharashtra under S. 139(1)(a) of the Bombay Prohibition Act, 1949, declaring the area of Gadchiroli district of the State 'as a dry district' by enforcing 'prohibition' throughout the district with effect from 2nd day of October, 1992 and follow-up and consequential orders issued by the Collector of Gadchiroli on 15th September, 1992 directing cancellation of subsisting licences expiring on 31st March, 1993 with effect from expiry of 15 days from the date of the impugned orders. Prior to issue of the impugned notification and the said orders, the petitioners in Writ Petition No. 2116 of 1992 were holding licences to sell country-liquor in Form Cl-III for the retail sale of country-liquor for the period 1st April, 1992 till 31st March, 1993. The basic facts and the basic issues concerning the entire group of writ petitions are almost identical. All the writ petitions forming part of this group of writ petitions are heard together.
2. By the said notification, dated 14thSeptember, 1992, the Government of Maharashtra declared the area of Gadchirolidistrict of the State as a dry district, witheffect from the 2nd day of October, 1992. Bythe said notification, it was declared that theGovernment of Maharashtra had decided todo so in the interest of general public in thatdistrict and, particularly, as the area ofGadchiroli district of the State consisted'mainly of the tribal area'. The Gadchirolidistrict has about 40% of population of tribalsin most of the areas and about 51% of suchpopulation in some of the areas and is one ofthe backward districts of the State. As anecessary consequence of said declaration,the Government of Maharashtra prohibitedthe grant of licences and permits specified inthe Schedule thereto in the Gadchiroli districtof the State with effect from 2nd day ofOctober, 1992. It is well known that 2ndOctober is birthday of father of the nation andhas special solemnity for people of India. As anecessary corollary of the said order, it wasfurther declared by the said notification thatany such licences and permits, which werealready granted by the Collector of the districtbefore the 2nd day of October, 1992 andwhich were in force shall stand cancelled witheffect from the 2nd day of October, 1992 ontaking of action towards cancellation of suchlicences and permits by the statutory authority granting such licences and permits inaccordance with the provisions of Cl. (a) ofsub-section (1) of S. 56 of the said Act. TheSchedule to the said notification sets out thelist of various licences and permits which weredirected to be cancelled as an essentialmeasure of follow-up action, in order toeffectuate the enforcement of prohibitionpolicy in the said district. On 15th September,1992, the Collector of Gadchiroli issuednecessary orders to the effect, that the subsisting licences shall stand cancelled on expiryof 15 days from the date of the said orders.The Collector of Gadchiroli did so in consequence of statutory notification dated 14thSeptember, 1992 referred to here in above inexercise of powers conferred on him underS. 56(1)(a) of the Act.
3. I have heard the learned counsel for the petitioners at some length. I have also heardthe learned counsel for the respondents and Shri K. H. Deshpande, Senior Advocate, as an Amicus Curiae. The petitioners have impugned the constitutional validity of S. 139(1)(a) and S. 56 of the Bombay Prohibition Act, 1949. The petitioners have also impugned the validity of notification dated 14th September, 1992 and the follow-up orders dated 15th September, 1992 cancelling the licences of the various licence-holders issued on 15th September, 1992 on various grounds. The challenge to orders of cancellation of licences has become more or less academic as the petitioners have been able to operate upon the licences and permits by reason of stay order granted by this Court at the stage of admission of writ petitions and the said licences and permits would have expired on 31st March, 1993. The learned counsel for the petitioners in Writ Petition No. 2210 of 1992, as well as the learned counsel for the petitioners in Writ Petition No. 2249 of 1992, have urged certain additional contentions. I shall deal with all these contentions in the later part of this order. Daru Mukti Sanghatna, an organisation, has filed an application for being impleaded as party-respondent in these petitions. In the alternative, the said organisation has sought permission to intervene. The said application is opposed. I have decided to permit Shri K. H. Deshpande and learned Advocates on record for intervenors to assist the Court at the hearing of the petitions as the Court has ample discretion to hear any Counsel at the hearing as the Court deems fit. Shri K. H. Deshpande, Senior Advocate, shall have the status of an Amicus Curiae in these writ petitions. In this view of the matter, I have decided that no formal order need be passed on the application for joining of the organisation as party-respondent, or for intervention. The learned counsel for the petitioners have made valiant effort to convince the Court that the petitions deserve to be allowed. The learned counsel for respondents have assisted the Court with their equally well prepared submissions and thorough preparation. Right at the outset, I must observe that I have remained unconvinced with the submissions made by the learned counsel for the petitioners, in view ofmy conclusion that almost all the points urged on behalf of the petitioners are covered by judgments of the Apex Court against the petitioners. The Supreme Court has consistently upheld the prohibition laws and the statutory orders or rules made thereunder. This case will require brief survey of leading judgments of the Supreme Court cited by the learned counsel on either side. However, it is not considered necessary to refer to each of the judgments cited by the learned counsel on either side during course of their respective submissions.
4. Art. 47 of the Constitution of India obligates the State to endeavour to bring about prohibition in respect of intoxicating alcohol, except for medicinal purpose. The said Article reads as under :--
'The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.'
While tracing the history of Art. 47 of the Constitution, Seervai, the Constitutional Jurist of Eminence, has observed at page 1686 of his work 'The Constitutional Law of India' that the prohibition of intoxicating liquor had long been a part of the policy of the Indian National Congress. In some of the States like Bombay, laws providing for prohibition in entirety or in part were enacted even prior to the Constitution of India coming into force. Art. 37 of the Constitution provides that the directive principles contained in Part IV of the Constitution are fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. It is well settled that the directive principles are the very soul of the Constitution and the Courts are enjoined to harmonise Part III and Part IV of the Constitution as the same are part of a single constitutional document. The Legislature of the State of Bombay enacted the Bombay Prohibition Act, 1949 (hereinafter referred to as 'the said Act') much prior to the Constitution coming into force. The history of making of the said Act is set out in detail in the First Prohibition case decided by the Apex Court, i.e., the State of Bombay y. F.N. Bahara AIR 1951 SC 318 : 1951 Crl LJ 1361. In several decided cases of the Supreme Court, the Honourable Supreme Court has highlighted the message of Art. 47 of the Constitution of India and also referred to the message of Mahatma Gandhi as projected in the directive principle of the Constitution. If one were to participate in a National Seminar on the legislative wisdom of prohibition policy, one could observe difference of opinion on the subject although evil of consumption of intoxicating liquor is well recognised throughout the world. It is for the State to enact a law imposing total prohibition throughout the State or enforce the same in stages as it deems fit. We, the Justices of India, are bound to implement Art. 47 of the Constitution of India and interpret all statutory instruments made in context of this constitutional commandment in light of this directive principle in context of other various provisions of the Constitution uninfluenced by views on wisdom of enforcing policy of prohibition.
5. With this preface, let me now refer to some of the relevant provisions of the said Act. The preamble to the Bombay Prohibition Act, 1949 provides that the Act was passed to amend and consolidate the Law relating to the promotion and enforcement of and carrying into effect the policy of prohibition and also the Abkari Law in the State of Bombay. Chapter III of the said Act provides for prohibition of manufacture and sale of liquor, prohibition of export, import, transport, consumption, possession of liquor and other connected items S. 24A was inserted in the said Act by Bombay Act XXVI of 1952 in view of the judgment of the Honourable Supreme Court in Balsara's case. By S. 24A of the Act, it is provided that nothing in Chapter III of the Act shall be deemed to apply to any toilet preparation containing alcohol which was unfit for use as intoxicating liquor; any medicinal preparation containing alcohol which was unfit for use as intoxicating liquor; any antiseptic preparation or solution containing alcohol which was unfit for use as intoxicating liquor; and any flavouring extract, essence or syrup containing alcohol which was unfit for use as intoxicating liquor. S. II of the said Act provides that notwithstanding anything contained in the provisions of Chapter III, it shall be lawful to import, export, transport, manufacture, sell, buy, possess, use, or consume any intoxicant or hemp etc., in the manner and to the extent provided by the provisions of the Act, Rules, Regulations or Orders made, or in accordance with the terms and conditions of a licence, permit or authorisation granted thereunder. Chapter IV of the said Act provides for control, regulation and exemptions as an exception to the basic policy of prohibition contained in Chapter III of the Act. S. 54 of the said Act empowers the Collector to cancel or suspend licences and permits on the grounds specified therein. The grounds specified in S. 54(1) of the Act enabling the statutory authority to cancel the licences, permits, passes or authorisations are (a) non-payment of fee or duty, (b) purpose of licence, permit, pass or authorisation ceases to exist, (c) breach of condition of licence, permit, pass or authorisation, and (d) conviction of the holder of the licence or permit or any other person covered thereunder, under the Bombay Prohibition Act, 1949 or any other Acts specified therein. S. 56 of the said Act reads as under :--
'56. Cancellation for other reasons.--(1) Whenever the authority granting licence,permits, pass or authorisation considers thatit should be cancelled for any cause other thanthose specified in S. 54, he may cancel iteither--
(a) on the expiration of not less than fifteen days' notice in writing of his intention to do so; or
(b) forthwith without notice, recording his reason in writing for doing so.
(2) Where a licence, permit, pass or authorisation is cancelled under sub-sec. (1), a part of the fee for the licence, permit or authorisation proportionate to the unexpiredportion of the term thereof and the deposit mae by the holder thereof in respect of such licence, permit, pass or authorisation shall be refunded to him after deducting any amount due from him to the State Government.'
Section 139(1)(a) of the said Act empowers the State Government, by general or special order, to prohibit the grant of any kind of licences, permits, passes or authorisations throughout the State or in any area. The said section empowers the State Government to issue general or special order on the subjects covered thereunder notwithstanding anything contained in the Act or the Rules made thereunder. The State Government is thus empowered to fix the date, time and the manner for introducing the total prohibition under the Act throughout the State or in any area. All ancillary and implied powers also vest in the State Government as a repository of the main power so as to effectuate the main power referred to in the said provisions. S. 139(1)(n) of the said Act empowers the State Government to issue such other instructions in any manner pertaining to the grant or otherwise of licences, permits, passes or authorisations under the Act, as the State Government may deem proper. The expression 'otherwise' includes power to direct cancellation of licences and permits. S. 139(2) of the said Act provides that an order made under sub-sec. (1) shall, if it is of a general nature or affecting a class of persons, be notified in the Official Gazette. S. 143 of the Act confers power on the State Government to make rules for the purpose of carrying out the provisions' of the Act as more particularly set out therein. S. 144 of the said Act empowers the Commissioner to make statutory regulations not inconsistant with the provisions of the said Act or Rules on the subject-matter specified therein.
6. Art. 13(3)(a) of the Constitution of India provides that unless the context otherwise requires, the expression 'law', for the purposes of Art. 13, shall include any ordinance, order, bye-law, rule, regulation, notification, custom or usage having, in the territory of India, the force of law. Thus, theconstitutional scheme takes within sweep orders and notifications which are of legislative character and the category of subordinate legislation is not restricted to making of rules or regulations only. Art. 14 of the Constitution guarantees equality before law and equal protection of law to one and all. Art. 19(1)(g) of the Constitution of India guarantees fundamental right to practice any profession, or to carry on any occupation, trade or business. Part XIII of the Constitution of India deals with the subject-matter of 'Trade, Commerce and Intercourse within the territory of India.' Art. 301 of the Constitution provides that subject to the other provisions of the said part, trade, commerce and intercourse throughout' the territory of India shall be free. Art. 302 of the Constitution of India confers power on the Parliament to impose restrictions on trade, commerce and intercourse. Arts. 303 and 304 of the Constitution of India deal with the subject-matter of the power of the Legislature and the Union and of the State to regulate 'trade and commerce'. Art. 305 of the Constitution of India provides that the existing laws were not affected by Arts. 301 and 303 of the Constitution of India, except insofar as the President may, by order, otherwise direct. Part XIII of the Constitution is liable to be interpreted and applied in context of constitutional scheme envisaged by Parts III and IV of the Constitution. If Art. 19(1)(g) of the Constitution is not available as a ground of challenge on the footing that the activity in question does not constitute 'trade' properly so-called, it follows that Part XIII of the Constitution also would not be available to the citizen in such a case. Both the provisions are interconnected:
7. Shri S. A. Bobde, the learned counsel for the petitioners, led the main arguments on behalf of the writ petitioners. Shri Bobde requested the Court to treat Writ Petition No. 2116 of 1992 as a lead petition. With consent of parties, the said request was granted.
8. Shri Bobde submitted that S. 139(1)(a) of the said Act is unconstitutional as the said section suffers from vice of excessive delegation of legislative power. The learned counselsubmitted that the said section did not prescribe any guidelines governing exercise of powers thereunder. The learned counsel submitted that the said section enables the Government to act arbitrarily as it does hot prescribe the time or the conditions or circumstances in which the power conferred thereunder may be exercised by the Government. The learned counsel submitted that the said section conferred unfettered powers on the State Government. During the course of his arguments, the learned counsel submitted that the said section was also violative of Art. 14 of the Constitution of India. Both these contentions shall have to be considered together. The learned counsel further submitted that S. 56(1) of the said Act is violative of Art. 14 of the Constitution of India, as the said section confers unbridled power on the Collector to cancel licences and permits for unspecified causes. The learned counsel for the petitioners characterised the power to cancel the licences under S. 56 as arbitrary. The learned counsel contrasted the provisions contained in S. 56 of the Act with the provisions contained in S. 54 of the Act.
9. The learned counsel for the respondents, as well as Shri K. H. Deshpande submitted that it was not open to the petitioners to challenge the validity of S. 139 and S. 56 of the said Act in these writ petitions on the ground that the said sections were already upheld by the Honourable Supreme Court in Balsara's case. The learned counsel for the respondents as well as Shri Deshpande further submitted that the provisions contained in S. 139(1)(a) of the Act constituted conditional legislation and not delegated legislation as contended on behalf of the petitioners. On merits of the pleas, it was contended that the Act provided sufficient guidelines for exercise of power under S. 139(1)(a) of the Act. The learned counsel submitted that S. 56(1) of the Act could not be characterised as arbitrary. The learned counsel contended that the Collector was empowered to cancel the licences, authorisations or permits for a cause having nexus with the policy, object and scheme of the Act and the said section could not be impugned merely on the ground that S. 56 of the Act did not particularise the grounds of cancellation.
10. It is necessary to refer to the judgment of the Supreme Court in the first prohibition case, i.e., the State of Bombay v. F. N. Balsara AIR 1951 SC 318 : 1951 Cri LJ 1361. In para 23 of his judgment, Fazal Ali, J., speaking for the Bench, referred to the view taken by the High Court of Bombay declaring Ss. 52, 53 and 139(1)(c) of the above referred Act as invalid on the ground that the said sections constituted delegation of legislative power and the Government was left with the power to exempt persons or classes from the provisions of the Act as it deemed fit. After extracting the passage from the judgment of the Bombay High Court on the subject, the Supreme Court held that the view taken by the High Court of Bombay was not correct in view of the principles laid down by the Supreme Court in Re Delhi Laws Act AIR 1951 SC 332 case. By para 33 of the said judgment, the Honourable Supreme Court declared S. 12(c), S. 12(d), S. 13, S. 23 andS. 24 as unconstitutional on the ground thatthe said sections affected possession of medicinal and toilet preparations containingalcohol etc., as more particularly set outtherein. Art. 47 of the Constitution makes anexception in favour of consumption of liquorand drugs for medicinal purposes and for noother purpose. In the said paragraph of thejudgment, it is also stated that sub-section (1)of S. 136 and Cls.(b)(c)(e) and (f) of sub-sec. (2) of S. 136 were also unconstitutional. Itwas in terms held as under :--
'I hold that the rest of the provisions of theAct are valid and I also hold that my decisiondeclaring some of the provisions of the Act tobe invalid does not affect the validity of theAct as it remains.'
It is, therefore, obvious that S. 139(1)(a) as well as S. 56 of the said Act were also declared constitutional and valid by the Supreme Court in the above referred landmark judgment of the Apex Court. In para 19 of the said judgment, the Supreme Court referred to the challenge made by the petitioners to the validity of S. 39 of the Act. The said challenge was negatived. In para 19 of the said judgment, it was observed by the Court that thepresumption was always in favour of constitutionality of an enactment, since it must be ' assumed that the Legislature understands and correctly appreciates the needs of its own people, and that its laws were directed to problems made manifest by experience and its discriminations were based on adequate grounds. While deducing the propositions laid down from its earlier decision in the case of Chiranjit Lal v. Union of India, : 1SCR869 , the Supreme Court held that the principle of equality did not mean that every law must have universal application. Thus, it appears to me that the question of challenge to the validity of S. 139(1)(a) and S. 56 of the said Act is no longer an open question. However, in alternative I propose to refer to contentions urged at the Bar and deal with the same on merits.
11. The learned counsel for State of Maharashtra contended that the impugned legislation is complete in itself and the Legislature has merely left the date, time, area and the manner of enforcing the policy of prohibition to the State Government. The learned counsel for the State submitted that the instant case was a case merely of conditional legislation and not of delegated legislation. The learned counsel submitted that it was not at all a case of delegation of essential legislative function by the State Legislature to the State Government as contended on behalf of the petitioners. The ratio and the principles laid down in the case of Kerala State Electricity Board v. Indian Aluminium Company Limited, : 1SCR552 were relied on on behalf of the respondents in support of this contention. In this case, S. 3 of the Keraia Essential , Articles Control (Temporary Powers) Act, 1961 empowered the Government to notify an articles as an 'essential article' by issue of a notified order. In exercise of the powers conferred under S. 2(a) of the above referred Act, electricity was declared as an essential article. Thereupon, the State Government issued the Keraia State Electricity Board (Keraia State Electricity Board and Licences Areas) Surcharge Order, 1968 in exercise of the power conferred on the Government under S. 3 of the Act obligating the Board to collect surcharges from thenon-licensed consumers of electricity. In para 27 of its majority judgment, the Supreme Court held as under :--
'We are of opinion that the power conferred by the Kerala Act is a case of conditional legislation as contemplated in the above decision. The various types of powers that can be exercised under that Act are enumerated in it. Only the article with reference to which these powers are to be exercised is left to be determined by the executive. That will vary from time to time; at one time salt may be an essential article, at another time rice may be an essential article and on a third occasion match boxes. It is the executive that would be in a position to judge when and under what circumstances an article becomes an essential article and therefore it is necessary to control the production, supply and distribution or trade and commerce in a particular article. The corresponding Madras (Act, the Madras Essential Articles Control and Requisitioning (Temporary Powers) Act, 1949 originally had ten articles included in the schedule as 'essential articles' with powers to add others to the schedule. It now contains only one article in the schedule, electricity. It cannot therefore be said to suffer from the vice of excessive delegations either. Subsequent decisions of this Court only emphasize this point.'
During the course of its above referred judgment, the Supreme Court referred to well known judgment of the Privy Council in the case of Queen v. Burah (1878) 5 Ind App 178 and. several earlier judgments of the Supreme Court.
To my mind, the ratio of this judgment and the principles laid down in para 27 of this judgment are clearly applicable to the instant case. I have no hesitation in holding that the provisions contained in S. 139(1)(a) of the Act cannot be assailed on the ground that the Legislature has abdicated its power in favour of the executive or that the provision suffers from vice of excessive delegation. Relying on the principles laid down in this case, I hold that the instant case is a case of conditional legislation and the State Government has merely fixed the time and the manner ofcarrying the legislation into effect in the area of Gadchiroli district as specified in the impugned notification.
12. While laying down the relevant principles, the Supreme Court surveyed the earlier cases on the subject, like State of Punjab v. Khan Chand, : 2SCR768 and Gwalior Reyon Mills v. Asstt. Commissioner S.T., : 94ITR204(SC) . The learned counsel for the respondents have rightly relied on ratio of the judgment in the case of Bangalore Woollen, Cotton and Silk Mills Co. Ltd., Bangalore and Mysore Spinning and ., Bangalore v. Corporation of the City of Bangalore by its Commissioner, Bangalore City, : 3SCR698 . In this case, the Legislature had authorised municipality to impose tax on articles and goods not specified in the Act. It was held by Kapur, J., speaking for the Bench of the Apex Court that the power conferred on the prescribed authority was of conditional legislation. It does not appear to be necessary to refer to case law on the subject in any more detail. Really speaking the instant case is directly covered by the principles laid down in para 23 of the judgment of Supreme Court in Balsara's case.
13. Assuming that the case is of a delegated legislation and not ' of conditional legislation, even then there is ho merit in the challenge. From this angle, the question to be asked is as whether the impugned Act prescribes the necessary guidelines for exercise of power by the Slate Government under, S. 139(1)(a) or as to whether the said section is unconstitutional and void on ground of excessive delegation of legislative powers. The necessary guidelines are to be found in the preamble to the Act. The necessary guidelines are to be found in Art. 47 of the Constitution. The necessary guidelines are to be found in the scheme and object of the Act and particularly in the provisions of Chapter III and other provisions of the Act. The power of issuing necessary notification under. S. 139(1)(a) of the Act is conferred on the State Government itself. The State Government is expected to be aware of the problems of the people and decide aboutselective application of the Act to a particular area after taking into consideration variety of factors. In this connection, it shall be appropriate to refer to the judgment of the Supreme Court in the case of P. N. Kaushal v. Union of India, : 1SCR122 . In this case, the prescribed authority had declared two days in a week as dry days. In my humble opinion, this judgment is one of the landmark judgments of the Supreme Court on the subject and it provided almost a complete answer to most of the contentions urged by the learned counsel on behalf of the petitioners. During the course of his judgment, Krishna Iyer, J., speaking for the Bench, referred to the views expressed by Mahatma Gandhi, the Father of the Nation, articulating the inarticulate millions -- the views of George Barnard Shaw -- on the subject. S. 59(1)(v) of the Punjab Excise Act empowered the State Government to fix days and hours during which any licenced premises may or may not be kept open and direct the closure thereof on special occasions. The petitioners before the Court challenged the validity of S. 59(f)(v). of the said Act and the Rules made thereunder on the ground that the said section conferred unguided and unfettered power on the State Government. Large number of cases were cited by the learned counsel for the petitioners before the Court as it is customary so to do. In para 50 of his judgment, Krishna Iyer, J., observed that the scheme and the subject-matter supplied the guidelines. It was held that the entire scheme of the statute proclaimed its purpose of control in time and space. It was held by the Apex Court in this case that the relevant provisions were purpose-oriented and it could not be therefore held that the impugned provisions conferred unguided and arbitrary powers on the Government and no guidelines were to be found in the Act. It was urged by the learned counsel on behalf of the petitioners that the provisions of the Act laid down no criteria as to what would be treated by State Government as 'special occasion' for purpose of declaration of dry-days by the Government or by the Financial Commissioner, as the case may be. It was held in para 65 of the judgment that the occasion must be special from thepoint of view of the broad considerations of national solemnity, public order, homage to national figures, etc. If the executive action does not promote or effectuate the policy of the Act or the power conferred on the Government is misused for an extraneous purpose or otherwise, the executive action can be impugned before the Constitutional Court. It was held by the Apex Court that the subject-matter of the Act itself was relevant for purposes of judging the validity of the challenge. Ultimately in para 68 of the judgment, the Supreme Court held that S. 59(f)(v) of the Punjab Excise Act, 1914 was perfectly valid and the exercise of power to regulate including to direct closure for some days every week was reasonable and that there was enough guidelines in the scheme and provision of the Act to govern the exercise of the power under Ss. 58 and 59. It is well settled law that the legislative guidelines may be gleaned from the preamble to the Act, the scheme, object, policy and provisions of the Act. In other words, the constitutional law does not lay down a particular format for laying down of necessary guidelines.
14. Shri Bobde, the learned counsel for the petitioners, invited the attention of the Court to several judgments of the Apex Court on the subject and in particular referred to the judgment of the Apex Court in the case of Registrar of Co-operative Societies v. K. Kunjabmu, : 2SCR260 . In this case, S. 60 of the Madras Co-operative Societies Act (6 of 1932) was impugned. The Stale Government was empowered to grant exemption to Co-operative Societies concerned from the provisions of the Act. It was contended on behalf of the appellant before the Hon'ble Supreme Court that the power conferred on the State Government to grant exemption to societies from application of the provisions of the Act or apply the same with modification suffered from vice of excessive delegation. After surveying large number of cases cited at the Bar, Chinnappa Reddy, J., speaking for the Bench, observed as under (at page 354) :--
'The power given to the Government under S. 60 of the Act is to be exercised so as toadvance the policy and objects of the Act, according to the guidelines as may be gleaned from the preamble and other provisions which we have already pointed out, are clear,'
The guidelines to be kept in mind, while exercising the power may be gleaned from the preamble and objects of the Act, The guidelines expected to be laid down may vary from statute to statute depending upon the subject matter of the Legislation. Art. 47 of the Constitution lays down the constitutional mandate to the effect that the State must endeavour to enforce prohibition except for medicinal purpose. The principle and policy of law is clearly laid down in Art. 47 of the Constitution. In a matter of this nature, it is not possible for the Legislature to visualise and contemplate varying needs of time and the need for making of situational adjustments. In this context, it must be held that in the instant case, the guide-lines to be gleaned from the preamble and the object of the Act are adequate and the relevant provisions of the Act is not assailable on the ground of lack of guidelines.
15. In this view of the matter, I have reached the conclusion that S. 139(1)(a) of the Bombay Prohibition Act, 1949 is Constitutional and there is no merit in the challenge of the writ petitioners on the ground of excessive delegation of legislative power on the ground of violation of Art. 14 of the Constitution of India. I am recording this finding in alternative although it does appear to me that the Bombay Prohibition Act, 1949 is already upheld by the Hon'ble Supreme Court in entirety in Balsara's case, save and except the few provisions enumerated in para 33 of that judgment, with which we are not concerned.
16. The next question, which arises for consideration, is as to whether S. 56 of the said Act suffers from vice of excessive delegation or whether the said section is violative of constitutional guarantee contained in Art. 14 of the Constitution of India. To my mind, there is no merit in this challenge also. S. 54 of the Act confers power on the authority granting licence, permit, pass or authorization, to cancel or suspend thelicence on stated grounds, like breach of conditions of licence, permit, pass or authorization; or non-payment of fee or duty etc. The Legislature was fully aware of the situation which will arise when the State Government introduces prohibition of intoxicating liquor in a particular area by exercising its power under S. 139(1)(a) of the Act. the said power can be exercised at any time during the year. The said power may be exercised on the eve of a solemn occasion like the birthday of the Father of the Nation, or on and with effect from any particular date as the State Government deems fit. In such a case, all ancillary and incidental powers must also be exercised simultaneously in order to effectuate the exercise of main power. All the provisions of the Act must be construed harmoniously. Keeping this aspect in mind, let us consider the contents of S. 56 of the Act, having regard to the policy of introducing prohibition of intoxicating liquor throughout the State, or such area of the State as the Government deems fit depending upon the assessment of the situation and other relevant factors by the State Government. S. 56(1) provides that the authority granting licence may cancel the licence for any cause other than those specified in S. 54. S. 54 of the Act requires adjudication by the licensing authority concerning the grounds invoked for cancellation of subsisting licences, permits, authorizations or passes. If power is exercised by the State Government under S. 139(1)(a) of the Act and a particular area is declared by the State Government as a dry-area from a particular date, the authority granting the licence is expected and enjoined in law to cancel the subsisting licences by serving notice of prescribed duration, or even without serving any notice after recording the reasons in writing. In my opinion, the expression 'any other cause' does not and cannot mean 'for no cause' or for fanciful reasons. The expression 'any cause other than those specified in S. 54' used in S. 56(1) necessarily means 'for the cause having nexus with the enforcement of the policy of prohibition and the object of the Act.' S. 56 of the Act inter alia provides for cancellation of licence on a ground having nexus with the enforcement of policy ofprohibition or statutory orders which may be passed under the Act, a cause reasonably considered with implementation of the policy of the State, I am not prepared to accept the submission of Shri Bobde when he submits that S. 56 empowers the Collector to cancel licences 'for no cause' and the said section is, therefore, liable to be treated as violative of Art. 14 of the Constitution. It is not the mandate of the Constitution that the grounds on which a licence can be cancelled must always be particularised. The statutory authority can be trusted with power to cancel the licence on a general ground or for the reasons germane to the underlying policy and object of the Act.
17. In the result, I have reached the conclusion that there is no merit in the challenge made on behalf of the petitioners in respect of validity of S. 139(1)(a) or S .56 of the Act.
18. Shri Bobde, the learned counsel for the petitioners, then submitted that the impugned order dated 14th September, 1992 is beyond the scope and ambit of S. 139(1)(a) of the Act itself. The learned counsel submitted that the said section does not confer any power on the State Government to direct cancellation of licences at all. The learned Counsel contended that S. 139(1)(a) of the Act empowers the State Government merely to prohibit to grant of any kind of licences, permits, passes or authorizations throughout the State, or in any area. The learned counsel submitted that the State Government is not concerned with the subject matter or premature cancellation of licences already issued and the said subject matter concerning cancellation of licences is dealt with only under Ss. 54 and 56 of the Act. It is not possible to accept this submission for more than one reason. S. 139(1)(a) of the Act, in substance, confers powers on the State Government to enforce prohibition throughout the State or in any area, from such date as it deems fit. Once a particular area is declared as dry area and the prohibition is introduced in that area it follows that the subsisting licences cannot be allowed to operate. The doctrine of vesting of all ancillary andincidental powers in a statutory authority shall have to be borne in mind. Shri B. P. Jaiswal, the learned counsel for the State, has rightly invited the attention of the Court to S. 139(1)(n) of the Act. The said sub-clause is widely worded. The said sub-clause empowers the State Government to issue necessary instructions in the matter pertaining to the grant or otherwise of licences, permits, passes' or authorisations under the Act. The State Government does not exercise power of cancellation of licences under S. 54 or under S. 56 of the Act. Power to cancel a licence under S. 54 or S. 56 of the Act is to be exercised by the Collector. The State Government has the power to issue instructions for making of subsisting licences inoperative or for cancellation of all subsisting licences once the State Government declares a particular area as a dry area or enforces or decides to enforce the policy of prohibition in a particular area from a particular date. If the State Government issues any such instructions to the Collector for cancellation of the licence as a necessary corollary or follow-up to the exercise of main power of introducing prohibition in any area of the State, S. 54 or S. 56 of the Act is not infringed thereby. In such a situation, cancellation of licences is merely incidental to the exercise of main power by the State Government under S. 139(1)(a) of the Act and the Collector is bound in law to cancel the subsisting licence and follow the instructions of the State Government. In such cases, the reason for cancellation of licence has necessary nexus with the policy and object of the Act and S. 56(1)(a) of the Act can be invoked.
19. The learned counsel Mr. Aney made a forceful plea to the effect that the impugned order dated 14th September, 1992 was violative of Chapter XIII of the Constitution of India. The learned counsel invited the attention of the Court to Arts. 301 to 304 of the Constitution of India and submitted that the impugned order was violative of freedom of trade, commerce and intercourse guaranteed under Art. 301 of the Constitution of India. Since the said plea was not formulated in the petition when filed, the learned counsel applies for leave of the Court to amend thepetition. The petitioners in Writ Petition No. 2210 of 1992 were permitted to incorporate this ground of challenge in the petition and the respondents were permitted to file supplementary return. In my opinion, it is well settled by the binding judgments of the Supreme Court that no citizen has a fundamental right to trade in intoxicant liquor and neither Art. 19(1)(g) and Part XIII of the Constitution is applicable to such cases.
20. The petitioners are relying on the view expressed by Shri Durga Das Basu in his Commentary that the series of the judgments of the Supreme Court having bearing on the subject are not correct. I am bound by the law declared by the Supreme Court under Art. 14 of the Constitution. It appears to me that the learned counsel for the petitioners was fully conscious of the difficulties in his way in developing this submission before the Court in view of the pronouncements of the Supreme Court on the subject, which I will refer to, a little later. The learned counsel for the petitioners principally relied on the judgment of K. Subba Rao C.J. in the case of Krishan Kumar Narula v. State of Jammu and Kashmir, : 3SCR50 in support of his contention and the opinion expressed by the well-known Author Dr. (Justice Durga Das Basu at pages 236 and 237 of Basu's Commentary on the Constitution of India, Sixth Edition, Vol. 1, dealing with the subject matter of Art. 301.
21. In Har Shankar v. Dy. Excise and Taxation Commissioner, : 3SCR254 it was held by the Constitution Bench of the Supreme Court that there was no fundamental right to do trade or business in intoxicants. This judgment holds the field and binds the Court. In its latest judgment in the case of Razakbhai Issakbhai Mansuri v. State of Gujarat, 1993 AIR SCW 600, the Supreme Court has taken the same view. In para 11 of this judgment, Lalit Mohan Sharma. The Hon'ble Chief Justice of India, analysed Art. 47 of the Constitution in detail. It was held by the apex Court that the State of Gujarat was fully justified in adopting the policy of prohibition in implementation of Article 47 of theConstitution. In Krishan Kumar Narula v. State of Jammu and Kashmir presided by K. Subba Rao C.J., the Supreme Court had struck a different note. In this case, the Court made observations to the effect that dealing in liquor was business and citizen had a right-to carry on business in liquor. It was held by the Court that the State could make a law imposing reasonable restriction on the said right, in public interests. In Har Shanker's case, the Supreme Court explained, analysed and commented on the ratio of Krishnan Kumar Narula's case in paras 48 and 54 of its judgment and held that in Krishnan Kumar Narula's case it was not held that the citizen had a fundamental right to do trade or business in intoxicants. In this case, Chandrachud, J., speaking for the Bench of the Supreme Court, referred to the judgment of the Supreme Court in the case of Nashirwar v. State of M.P., : 2SCR861 and observed that the Government had the exclusive right to deal with the privilege of carrying on business in liquor. From para 51 of the said judgment, it appears that Krishan Kumar Narula's case was cited before the Supreme Court in another case i.e. State of Orissa v. Hari Narayan Jaiswal, : 3SCR784 . In this case also Hegde, j., speaking for the Bench, had distinguished Krishan Kumar's case and held that the citizens could not have any fundamental right to trade or business of carry on business in the properties or rights belonging to the Government. Paras48, 51 and 54 of the said judgment are quite clear on the subject. The question to be asked is as to whether Art. 301 of the Constitution is nevertheless available to a citizen to impugn the legislation or an order even though Art. 19(1)(g) of the Constitution is not available. In my opinion, this question is also not an open question. It is observed by the Constitutional Jurist H. M. Seervai in para 10.7 at page 697 of Constitutional Law of India, Fourth Edition, after analysing Krishnan Kumar's case and Chamarbaugwalla's case that a law introducing total prohibition of alcoholic liquor did not violate Art. 19(1)(f) and (g) and a fortiori would not violate Art. 301. It is of some significanceto the State in the passing that in Atiabari Tea Co. Ltd's case : 1SCR809 it was held by the majority judgment 'of the Supreme Court that freedom of trade, commerce and intercourse enunciated by Article 301 was not subject to the other provisions of the Constitution but was made subject only to the other provisions of Part XIII. This view was over-ruled by the Supreme Court in its later judgment in the case of Automobile Transport (Rajasthan) : 1SCR491 . In para 7 of this judgment, S. K. das J., speaking for the Court, in terms held that in interpreting the relevant articles in Part XIII one must have regard to the general scheme of the Constitution of India with special reference to Part III (Fundamental Rights) and their interrelation to Part XIII in the context of a federal or quasi-federal constitution. In para 15 of the judgment also similar views were expressed. In G. K. Krishnan v. State of Tamil Nadu, : 2SCR715 K. K. Mathew, J. in terms observed that the view taken by the Supreme Com t in Atiabari's case was practically overruled by the Supreme Court in the subsequent judgment. It is too obvious to any student unconstitutional Law that the judgment of the Supreme Court in Krishna Kumar Narula's case does not hold the field in view of consistent pronouncements of the Supreme Court and various High Courts in their later cases.
22. The learned counsel for the respondent Shri Gordey has rightly invited the attention of the Court to series of judgments taking the view that Part XIII of the Constitution cannot be invoked a ground of challenge to the impugned order as it is already held by the Supreme Court that no citizen has a fundamental right to carry on trade in intoxicants liquor and the provisions contained in Part XIII of the Constitution guaranteeing the freedom of trade and commerce are interlinked and inter-twined with the fundamental right to carry on trade enshrined in Article 19(1)(g) of the Constitution. The learned counsel for the State relied on the judgment of the Supreme Court in M/s. Sat Pal and Co. v. Lt. Governor of Delhi, : 3SCR651 . The learned counsel for the respondent is justified in relying on theratio of this case in support of his submission. The learned counsel invited the attention of the Court to the judgment of Karnataka High Court in the case of M/s. Jagadalc & Sons, Bangalore v. State of Karnataka, : AIR1990Kant251 ., It was held in this case by K. Shivshankar Bhat J., speaking on behalf of the Bench, that the protection under Article 301 was confined to such activity as may be regarded as lawful trading activity and did not extend to an activity which was 'res extra commercium'. It was held that no citizen had a fundamental right to carry on trade or business in liquor and accordingly neither Article 19(1)(g) could be relied upon nor Article 301 could be pressed into service to impugn the action of the State. It has been held in scribes of cases that the principle laid down in Chamarbaugwala's case were directly applicable to the case of trade in liquor also and the said principle cannot be restricted merely to gambling. Shri Gordey was justified in relying on the judgment of the High Court of Allahabad in the case of Sheo Kumar v. State of U.P. AIR 1878 All 386 : 1978 All LJ 581. In this case, Satish Chandra C.J. held that neither Article 10(1)(8) nor Article 301 or 304(b) could be relied upon for purpose of assailing imposition of prohibition in the State or part thereof. This case is of special significance to one another aspect. In this case, it was further held by Satish Chandra CJ. that the State Government could enforce total prohibition at selected places in the State and the presumption was that the delegate of the State will choose the area after assessing all relevant factors. It was further held by the Court in this case that the Courts are not to substitute their opinion for that of the authority on whom the discretion has been conferred to select area. It was held that the fact that more than one place may answer the criteria for the purpose of selective application of the scheme of gradual extension of prohibition in the State will not per se make the provision or the order discriminatory. In matter of this nature, the State Government has larger altitude and the Courts cannot intervene unless the impugned orders are shown to be unconstitional.
23. The learned Author Shri Durga Das Basu has been a severe critic of several judgments of the Hon'ble Supreme Court on the subject and particularly of ratio of the case laid down in State of Bombay v. Chamarbaugwala, : 1SCR874 right from the beginning. In this Case, the Supreme Court has held that the protection offered by Article 301 was confined to such activities as may be regarded a lawful trading and did not extend to an activity which was 'res extra commercium' and could not be, therefore, said to amount to 'trade'. The learned Author has expressed the view to the effect that even a dangerous trade ought to be treated as a trade coming within the scope of Article 301; the same could be subjected to restrictions contemplated under Sections 302 and 304 of the Constitution. The learned Author had criticized the view taken by the Hon'ble Supreme Court in the State of Bombay v. Chamarbaugwala in his earlier Commentary as extracted by him at page 236 of Sixth Edition (Vol. L) of Basu's Commentary on Constitution of India. The learned Author States that his view had gained support from the observations made by the Supreme Court in Krishna Kumar Narula's case relied upon by the learned counsel Shri Aney at the hearing of this petition. The learned Author says that it is unfortunate that the doctrine of 'res extra commercium' continues to be applied in several later cases, like Har Shankar v. Dy: Excise Commr., : 3SCR254 and Fatechand v. State of Maharashtra, : 2SCR828 . With all respect to the display of the legal scholarship at the Bar, I am duty bound to follow the ratio of the judgments of the Supreme Court as they are without commencing on the same. I respectfully follow the judgments of the Supreme Court. It is clear from the survey of cases referred to herein above that neither Article 19(1)(g) nor Article 301 of the Constitution can be available to a citizen as a ground of challenge so as to impugn the prohibition law or a statutory order made thereunder. Even as far as the challenge under Article 14 of the Constitution is concerned, the Court must take content of Article 47 of the Constitution into consideration while judging the question as to whether theimpugned order is reasonable or manifestly arbitrary. Directive principles are always relevant.
24. In this view of the matter I have not permitted the learned counsel for the petitioners Shri Aney to argue what he would have argued if it was held that Krishan Kumar Narula's case holds the field and if it was held that Part XIII of the Constitution was available to the petitioners to impugn the order dated 14th September 1992 even though no citizen had a fundamental right to trade in liquor. It has rightly been observed by the learned Author Seervai in his well-known work that Krishan Kumar Narula's case stands overruled by the latter pronouncements of the Supreme Court and particularly the pronouncement in Har Shankar's case. I am inclined to follow the law declared by the Supreme Court in series of its later judgments starting from Har Shankar's case. I must follow the view taken by the Supreme Court in Har Shankar's case in respect of the interpretation and application of ratio of the judgment of the Supreme Court in Narula's case as discussed above.
25. Shri Bobde has submitted that the impugned order dated 14th September 1992 was an administrative order and the State was bound to hear the residents of the locality and observe the principle of natural justice before issuing the said order. The learned counsel has submitted that the State Government ought to have taken the people into confidence before declaring Gadchiroli as a tribal area. The learned counsel for the petitioners has relied on the judgment of the Hon'ble Supreme Court in the case of Baldev Singh v. State, of Himachal Pradesh, : AIR1987SC1239 . In this case, Rangnath Misra J., as His' Lordship then was, held that the declaration of particular area as a notified area under Himachal Pradesh Municipal Act was an administrative order and the authorities ought to have invited objections and suggestions from the people of the locality and afforded them an opportunity of being heard. In this case, the Supreme Court contrasted the provisions of Himachal Pradesh Municipal Act with the provisions contained inthe Orissa Municipality Act, whereby the procedure of inviting objections and suggestions from the residents of the locality was prescribed. It was held by the Supreme Court that Section 256 of the Himachal Pradesh Municipal Act made no such provision but the settled provision in law was that where exercise of power resulted in civil consequences to the residents of the locality, the residents of the locality ought not to be denied with the opportunity of hearing. As against this, Shri K. H. Deshpande, learned counsel, who was permitted by the Court to address the Court, relied on the judgment of the Supreme Court in the case of Sundarjas Kanyalal Bhathija v. The Collector Thane, : 183ITR130(SC) . In this case, it was held by K. Jagannath Shetty, J. that the establishment of Municipal Corporation was a legislative process and the rules of natural justice were not applicable. In this case, the Supreme Court distinguished the ratio of the judgment in the case of Baldev Singh v. State of. Himachal Pradesh, relied on by Shri Bobde. In para 26 of this judgment, the Supreme Court referred to the earlier judgment of the Supreme Court in the case of Tulsipur Sugar Co. Ltd. v. The Notified Area Committee, Tulsipur, : 2SCR1111 . In this case, Venkataramiah, J. as His Lordship then was, in terms observed that the power of the State Government to make a declaration under Section 3 of the U.P. Town Areas Act was legislative in character and exercise of power was in the nature of conditional legislation. Shri Deshpande also invited the attention of the Court to another leading judgment of the Supreme Court in the case of Union of India v. Cynamide India Ltd., : 2SCR841 , In this case, the question before the Court was as to whether the order of price fixation under the Drugs (Price Control) Order, 1979, was legislative in character. After surveying large number of cases already decided by the Supreme Court and the passages from the well known text Books on Administrative Law, the Supreme Court came to the conclusion that the principles of natural justice were not applicable to the case of price fixation as the power exercised was legislative in character.
26. The learned counsel Shri Gordey invited the attention of the Court to the passage from the well-known work of de Smith's Judicial Review of Administrative Action, Fourth Edition, at pages 60 and 71. If the prescribed authority enacts a general rule of conduct without reference to particular case, the exercise of power by such authority is liable to the considered legislative in character. Thus one of the essential ingredients of distinction between the exercise of legislative power and administrative power is that the exercise of legislative power deals with the subject of prescribing a general rule of conduct, whereas administrative order provides for issue of specific direction or application of general rule to a particular case. It is also of some significance that the general order is required to be published in the Official Gazette, whereas specific administrative order is not required to be so published. Section 139(2) of the Bombay Prohibition Act, 1949, is also pointer in this direction. I have already held that Section 139(1)(a) of the Bombay Prohibition Act, 1949, is more in nature of conditional legislation rather than in the nature of a delegated legislation. After careful consideration of the rival submissions made at the Bar, I have no hesitation in accepting the submission made by Shri Deshpande and the learned counsel for the State of Maharashtra that the powers exercised by the State in issuing the general statutory order dated 14th September, 1992 is quasi-legislative in character and not administrative. It must, therefore, follow that the State was not obliged to grant hearing to the residents of the locality before declaring the area of Gadchiroli as a dry area, The decisions and the authorities cited by the learned counsel for the respondent and Shri Deshpande are more in the point. The case cited by Shri Bobde is clearly distinguishable.
27. Shri Bobde submitted that the impugned order of cancelling the licence was in substance passed by the State Government although the prescribed authority entitled to cancel the licence under the Act is the Collector of the district and not the State Government. The learned counsel has submitted that the Collector could not pass anorder cancelling the licence at the behest of the State Government. The learned counsel has relied on the judgment of the Supreme Court in the case of Commissioner of Police v. Gowardhan Bhanji : 1SCR135 . In our case, the order of cancellation of licence is merely in the nature of follow up action in pursuance of the declaration of the area of Gadchiroli as a dry area. In this case the State Government was entitled to issue the necessary instructions to the Collector to cancel the subsisting licence or make the subsisting licence inoperative as already discussed in the earlier part of this judgment. Accordingly the ratio of the judgment of the Supreme Court in the case of Commissioner of Police v. Gowardhan Bhanji shall have no application. If the Collector of Gadchiroli was required to give hearing to the licence holders, the question to be asked is as to on what aspects the Collector would adjudicate after hearing the licence holder. This question answers itself. In this situation, it is held that the impugned orders dated 15th September, 1992 do not suffer from any illegality on the ground of breach of principles of natural justice of the power having been exercised by the Collector under the instructions of the State Government.
28. Shri Aney, learned counsel for the petitioners, raised one more contention on behalf of the petitioners in Writ petition No. 2210 of 1992. The learned counsel referred to ground No. (vii) on page 10 of the said petition and submitted that having regard to the peculiar geographic position of Gadchiroli district, imposition of prohibition was not likely to be effective as any citizen of Gadchiroli could get liquor by travelling about 30 Kms. from the border of the district. There are always problems of enforcement of any law. It is not possible for the Court to declare the impugned notification or impugned order as invalid merely because of the apprehension expressed by the learned counsel for the petitioners in respect of difficulties concerning enforcement of law. The Court hopes and prays that the laws made by the State are enforced sincerely and vigorously by the instrumentalities of the State.
29. The learned counsel Shri Bobde submitted that the impugned order dated 14th September, 1992 was violative of Article 14 of the Constitution. The learned counsel for the petitioners developed this contention from several factual and legal angles. The learned counsel submitted that Gadchiroli could not be considered as a trial area. The learned counsel submitted that the tribal population of the area is about 40 per cent and not 51 per cent. On behalf of the State, an affidavit is filed to the effect that in the case of some parts of Gadchiroli district, the tribal population is more than 51%. It is of no significance as to whether the tribal population of Gadchiroli district is 51 per cent or 40 per cent. Even if the tribal population of the said district is 40% or 45% or 50%, the State is not disabled in law from declaring the district as a tribal area. It has been stated on behalf of the State in the return that the area is one of the most backward areas and the State has, therefore, thought it fit to declare this area as a tribal area. Presumption of Constitutionality must operate. The validity of prohibition laws or the statutory orders concerning the enforcement thereof cannot be challenged on ground like this. It has been contended that some other districts can also be treated as tribal areas by adopting the same criteria and such districts are not prohibited by issuing the like order dated 14th September, 1992. The petitioners have contended that the prohibition is introduced only in one district i.e. Gadchiroli and not in other districts. I have already observed by referring to the judgment of the Allahabad High Court that the selective application of prohibition law is for the State and such a ground of challenge cannot be entertained. With respect, even factually the averment made is not quite correct. It has been stated in the supplementary affidavit filed on behalf of the State that the prohibition of the liquor trade is in force in several tribal areas. It has been stated that the State has declared the district Wardha as a dry district years ago. It is stated in the said affidavit dated 17th March, 1993 that in the districts of Thane, Nasik, Dhule and Amravati also certain areas are declared as dry areas. The particulars of such dry areas in thesaid districts, as declared by the State by issuing necessary notification, are as under:--
1. Thanei. Mokhdaii. Jawhar
2. Nasiki. Surgnaii. Paint
3. Dhulei. Nawapurii. Talodaiii. Akalquaiv. Akrrni
4. Amravatii. Melghat
29-A. The learned counsel for the petitioners has submitted that the impugned order dated 14th September, 1992 discriminates between the tribals and non-tribals. It emerges from the record that the State Government by its general order dated 28th April, 1981 had granted limited exemption to the tribals residing in the tribal areas of the State specified in the Schedule thereto in respect of their own local traditional drinks distilled or brewed from mhowra flowers, rice or fruits, by making it clear that the manufacture, possession, consumption, use or offering or distribution of liquor would be only for personal and social purposes and not for commercial purposes. By the said general order, it was provided that the exemption granted to the tribals by the said order shall not apply to liquor distilled or brewed from Gur or jaggery, whether its use was traditional or not, or from any other base which has not been traditionally used by the tribals for brewing their local traditional drinks. In my opinion, this general order is very much restricted and is suitably circumscribed and is based on tradition followed by the tribals in various tribal areas. In the said general order even the names of the drinks permissible are specified. Article 14 of the Constitution guarantees equality before law and equal protection of law. It follows that equals must be treated equally. The traditions followed by the tribals are altogether different and non-tribals cannot claim a right to be treated on par with tribals for the purpose of following such traditions. In Balsara's case AIR 1951 SC318 : 1951 Cri LJ 1361 it was held by Fazl Ali, J. that the exemption granted by the Government in favour of navel forces etc. was valid. The prohibition of intoxicant liquor is introduced by stages and thus Section 139(1)(a) of the Bombay Prohibition Act confers powers on the State Government to provide for exemption in appropriate cases. I am satisfied that there is no merit in this challenge also. The petitioners have failed to discharge the onus which lay on them to prove that the impugned orders are unconstitutional.
30. It must be observed that by reason of the interim stay granted by this Court, various writ petitioners have been able to operate their licences which were cancelled by the impugned order dated 14th September, 1992 and the period of such licences, if not cancelled, was to expire on 31st March, 1993.
31. The learned counsel for the petitioners submitted that the petitioners had a vested right to continue the business in liquor at least for the period of the licence and the impugned action of the authority was thus arbitrary. It is well-settled law that the State alone has the exclusive right to deal with the subject-matter and when it parts with some of its privileges in the form of licence to the citizens, no vested right is created. When the citizen obtained licence from the statutory authority for a period, he is aware or is deemed to be aware that the licence could be cancelled not merely under Section 54 of the Act, but also under Section 56 of the Act, i.e. on 15 days' notice or even without notice for the reasons to be recorded. Accordingly, I see no arbitrariness or breach of any vested rights in the action taken.
32. In the result, 1 summarize my conclusions as under :--
(i) Section 139(1)(a) of the Bombay Prohibition Act, 1949 is valid.
(ii) Section 56 of the Bombay Prohibition Act, 1949 is valid.
(iii) (a) The impugned order dated 14th September, 1992 is not invalid on the ground that the same is beyond the scope and ambitof Section 139(1)(a) of the Bombay Prohibition Act, 1949. The impugned order is intra vires
(b) The said impugned order is quasi-legislative in character. The said impugned order is not violative of Article 14 or Article 301 of the, Constitution. The said impugned order cannot be quashed merely on the ground that there is likelihood of practical difficulties in enforcing the impugned order, assuming that there are any such difficulties.
(iv) Since the impugned order dated 14th September, 1992 was quasi-legislative in character, the State was not bound to grant hearing to the residents of the locality before issuing the order dated 14th September, 1992 or before taking the follow up action by making the subsisting licences inoperative or cancelling the same.
(v) The State Government had necessary authority to direct the Collector to cancel the impugned licences in view of the provisions contained in Section 139(1)(a) Section 139(1)(n) of the Bombay Prohibition Act, 1949. The impugned order cancelling the licences and permits etc. has nexus with the policy and object of the Act. The impugned order of cancelling the licences is thus for a cause within the meaning of Section 56(1)(a) of the Bombay Prohibition Act, 1949. In a situation of this kind, the Collector was not bound to grant hearing to the petitioners before exercising his power under Section 56(1)(a) of the Act.
(vi) The impugned order dated 14th September, 1992 is constitutionally valid.
(viii) It is the duty of the State Government to enforce the impugned order as a part of rule of law in this State faithfully and vigorously with immediate effect.
33. In Writ Petition No. 2249 of 1992, Shri Sambre submitted that the direction of the State Government for cancellation of permits held by the petitioners is without authority of law. The learned counsel has pointed out that the permits in question were operative within the State of Maharashtraand were not restricted to Gadchiroli area. By the said permits the petitioners were permitted to purchase, possess, transport or consume foreign liquor and country liquor within the State of Maharashtra. The learned counsel also submitted that the said permits were in the nature of health permits. The learned counsel submitted that even in Wardha district health permits are granted. The State has submitted in its return that the permits in question were not health permits. After careful consideration of the submissions made at the Bar, I hold that the impugned cancellation of permits complained of by the petitioners by the impugned order 15th September, 1992 cannot be faulted inasmuch as the impugned action is ancillary to the declaration of the area as dry area by virtue of operation of the statutory order dated 14th September 1992 having the force of law. It is, however, clarified that the petitioners concerned shall be at liberty to make an application for issue of health permits after excluding 'dry areas' from the operation thereof and with the necessary modification as deemed fit. If such an application is made, the Collector shall decide such application in accordance with law. The Court expresses no opinion on this aspect of the matter.
34. Subject to this clarificatory rider, Writ petition No. 2249 of 1992 also fails.
35. In the result, all the writ petitions forming part of the group of writ petitions, fail. The petitions are dismissed. The rule is discharged. Their shall be no order as to costs.
36. At this stage, the learned counsel for the petitioners applies for continuation of the stay granted by this Court at the stage of admission of the petitioners for a reasonable time in order to enable the petitioners to consider their position and file an appeal under clause 15 of the Letters Patent or move the Hon'ble Supreme Court, The learned counsel for the State opposes the prayer. In view of the mandate of Article 47 of the Constitution and in view of the legal position having already been settled by the decisions of the Supreme Court, as discussed above, I see no reason to grant stay or continue the staygranted by this Court at the stage of admission of the petitions. The Court cannot grant stay of enforcement of law at this stage. Having given my anxious consideration to the rival contentions urged on this aspect, I have reached the conclusion that the case is not a fit one for grant of stay. I shall try my best to make an ordinary copy of the judgment available to the parties within few days.
37. Order accordingly.