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Gahlot Engineering Wine Store Etc. Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. Nos. 563, 585 to 590, 598 and 599 of 1977
Judge
Reported inAIR1979Raj14; 1978(11)WLN5
ActsRajasthan Prohibition Act, 1969 - Sections 1(3); Constitution of India - Articles 13, 14, 19, 31, 31C, 47 and 226; Rajasthan Excise Act, 1950 - Sections 35
AppellantGahlot Engineering Wine Store Etc.
RespondentState of Rajasthan and ors.
Appellant Advocate C.M. Lodha and; I.J. Lodha, Advs.
Respondent Advocate A.K. Mathur, Govt. Adv.
DispositionPetition dismissed
Excerpt:
rajasthan prohibition act, 1969 - section 3(1) and constitution of india article 14--prohibition extended to bali tehsil--held, introduction of prohibition in phased manner being a matter of policy is within plenary power of state--it is above challenge and cannot be impeached under article 14.;the question of absence of guide lines in the matter of introduction of policy is hardly of any relevance because the matter being a matter of policy it is within the plenary power of the state to implement is policy off prohibition in the phased manner looking to over all facts and circumstances and also its financial implicate us. the matter as it relates to policy is above challenge and cannot be impeached on the ground of violation of article 14.;(b) constitution of india - articles 14, 19..........'or 31 of the constitution. now introduction of the prohibition act is within the four corners of article 47. article 47 finds place in part iv of the constitution. under article 47 it has been laid down that it shall be the primary duty of the state that it shall give due regard to the raising of the level of the nutrition and standard of living of its people and take it as its primary duty to take steps for the improvement of public health and for that purpose the state shall endeavour to bring about the prohibition of the consumption of liquor or intoxicating drinks except for medicinal purposes as the same are injurious to public health. indisputably the object underlying the prohibition is to improve the public health and to raise the level and nutrition and standard of living of.....
Judgment:
ORDER

M.L. Joshi, J.

1. All the petitioners were licensees for vending foreign liquor as retailers for Bali Tehsil for the financial year 1977-1978 commencing from the 1st of April, 1977 and ending on the 31st of March, 1978. In exercise of powers conferred under Sub-section (3) of Section 1 of the Rajasthan Prohibition Act, 1969 (Rajasthan Act 17 of 1969) in short the Prohibition Act, the State Govt. by a notification dated 20th of Oct. 1977 extended the provisions of the Prohibition Act to the area covered by Tehsil Bali with effect from the 1st of Dec. 1977. By another notification of the same date it has been notified that from the 1st of Oct. 1977, it would not be permissible for any one to either possess liquor or to transport it or to import it. All the petitioners have been served with notice issued by Excise Commissioner stating therein that as the State Government is introducing prohibition in the area covered by Tehsil Bali by extending the Prohibition Act from the 1st of Dec. 1977, the licences for sale of foreign liquor in retail are cancelled under Section 35 of the Rajasthan Excise Act hereinafter called the Excise Act. The petitioners, therefore, in all these nine petitions pray for writ, direction or order declaring Sub-section (3) of Section 1 of the Prohibition Act and Section 13 and Sub-section (4) of Section 19 of the Excise Act ultra vires of the Constitution of India. They further pray for quashing the notification dated 20th of Oct. 1977, bringing into operation the provisions of the Prohibition Act in Tehsil Bali of District Pali. The petitioners also pray for quashing the notification dated the 20th of Oct. 1977 introducing the prohibition in Bali Tehsil from 1st of 0ec. 1977. The petitioners further pray for quashing the notice cancelling their licences issued by the Excise Commissioner and restraining the respondents from interfering with their right of carrying on trade in vending foreign liquor in retail in their respective licences which are valid up to 31st of March, 1978.

2. As the common questions of fact and law are involved in all these 9 writ petitions they are, therefore, being disposed of by a common order.

3. These cases came up for admission before me for the first time on 23rd of Nov. 1977 on which date I directed that let the notices go to the opposite parties to show cause why these petitions should not be admitted. In response to the show cause notices the State has opposed the admission by submitting written reply wherein it has been prayed that the writ petitions be dismissed in limine.

4. I have heard the learned counsel for both the sides at some length. Various contentions have been put forth on behalf of the petitioners by Mr. G. M. Lodiha the learned counsel for the petitioners.

5. The first contention of Mr. Lodha is that Sub-section (1) of Section 3 of the Prohibition Act which empowers the State to specify area for extending the operation of the Prohibition Act is ultra vires as it gives unbridled power to the State Government in the matter of including and applying Prohibition Act to any area at any time without prescribing any criterion or principle. It is, therefore, urged that this provision is ultra vires of the Constitution being violative of the Article 14 of the Constitution. Having heard the learned counsel for both the sides I do not find any merit in this contention. Our Constitution contemplates the concept of a welfare State. The Government is supposed to know the conditions and habits of the inhabitants of the particular geographical region of the State and in its wisdom may carve its own policy for the welfare of the people of particular region or particular area and specify the same for introduction of prohibition in that particular area. This is matter which relates to the policy of the State and the Government is the best Judge to implement its policy in such manner as will effectively sub-serve the welfare of its people. The question of absence of guidelines in the matter of introduction of policy is hardly of any relevance because the matter being a matter of policy it is within the plenary power of the State to implement its policy of prohibition in the phased manner looking to overall facts and circumstances and also its financial implications. The matter as it relates to policy is above challenge and cannot be impeached on the ground of violation of Article 14. The challenge to Sub-section (3) of Section 1 is therefore futile and is not substantial in law.

6. The next contention put forth on behalf of the petitioner is that in view of the introduction of the Prohibition Act, by virtue of Section 4 of the Prohibition Act the petitioners shall be debarred from carrying on their retail trade in vending foreign liquor and further in view of the cancellation of their licences they will be deprived of their fundamental right of business and right to property and thus there will be infringement of their fundamental right conferred by Articles 19 and 31 of the Constitution. Another contention in regard to plea of violation of fundamental right is based on the infringement of Article 14 of the Constitution of India. The argument of the learned counsel in respect of these contentions are like this: The petitioners have right to carry on their trade under Article 19(1)(f) and they have right to reap the benefits under the licence which is valid up to 31st of March, 1978, but due to introduction of the Prohibition Act and cancellation of their licences they will be deprived of carrying on their trade under the licences which are valid up to 31st of March, 1978. It is, therefore, contended that they are being denied right to carry on their trade in violation of Article 19(1)(f) and are further being denied the right to property which they are entitled under the licences granted to them. As regards the violation of Article 14 it has been contended that the Tehsil Bali in which the petitioner have been carrying on their trade of vending foreign liquor on retail basis are being subjected to hostile discrimination without any rational basis as the areas of some of the neighbouring Tehsils have not been declared dry. The contention is that the Tehsil Bali has been arbitrarily picked up without any intelligible differentia between the area covered by Tehsil Bali and the neighbouring area outside the Tehsil Bali. These contentions are fully answered by Article 31C of the Constitution which was introduced by 42nd Amendment Act of the Constitution. Article 31C lays down that notwithstanding anything contained in Article 31 no law giving effect to the policy of the State securing any of the principles laid down in Part IV of the Constitution shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Articles 14, 19 'or 31 of the Constitution. Now introduction of the Prohibition Act is within the four corners of Article 47. Article 47 finds place in Part IV of the Constitution. Under Article 47 it has been laid down that it shall be the primary duty of the State that it shall give due regard to the raising of the level of the nutrition and standard of living of its people and take it as its primary duty to take steps for the improvement of public health and for that purpose the State shall endeavour to bring about the prohibition of the consumption of liquor or intoxicating drinks except for medicinal purposes as the same are injurious to public health. Indisputably the object underlying the prohibition is to improve the public health and to raise the level and nutrition and standard of living of people. Needless to say that the addiction to drink has, besides cutting through the economy of the community, tended to undermine the public health, thus bringing misery to the community both economically and in the matter of deterioration in health of the community which in its turn has brought ruin to many families of the citizens. The object underlying the introduction of prohibition is to fight this malady. The introduction of the Prohibition Act is, therefore, beyond re-approach as it is covered by blanket protection of Article 31C and is immune from the challenge based on Articles 14, 19, and 31 of the Constitution of India. In my opinion therefore, contentions of the learned counsel in this behalf stands conclusively negatived by the provisions of Article 31C of the Constitution. In this view of the matter the contentions based on Articles 14, 19 and 31' of the Constitution cannot be entertained. However, even on merits no valid case has been made out by the petitioners. It is erroneous to contend that the petitioners have fundamental right to carry on trade in foreign liquor. It is well settled that there is no fundamental right in the matter of carrying on trade in liquor. The right to manufacture or sell liquor absolutely vests in the State and the State in its regulatory power can take away the right to vend foreign liquor. In fact the right to vend foreign liquor is a sort of concession given by the State by granting licences under which the citizens are permitted to carry on trade in liquor. But that right is not an indefeasible one and such right is always at the mercy of the State which can be taken away by introduction of the Prohibition Act which is primarily meant for the welfare of the people for the improvement of their health.

7. The next contention which has been put forth on behalf of the petitioners is that their licences for vending foreign liquor as a retailer have been revoked in contravention of the provisions of Section 35 of the Rajasthan Excise Act. Mr. Lodha contends that licences can be cancelled under Section 35 on the fulfilment of certain preconditions which are conditions precedent for the cancellation of licence under Section 35 of the Excise Act. His submission is that a licence can be cancelled only on remitting a sum equal to the amount of the fee payable in respect thereof for 15 days but in the instant cases preconditions laid down in Section 35 having not been fulfilled the cancellation of licences was illegal being contrary to the provisions of Section 35. It has further been argued that if the cancellation of licences of the petitioners is held to be invalid then the petitioners are entitled to carry on business under the licences despite the introduction of the Prohibition Act as under Section 76 of the Prohibition Act the petitioners' right or privilege acquired under the licences is saved. The question that at once arises is whether the petitioners' licences have been rightly cancelled under Section 35. Admittedly conditions precedent for exercising power of cancelling licences under Section 35 having not been fulfilled by remitting the requisite money as contemplated by that section. The petitioners' right under the licence will be saved by virtue of Clause (1) (b) of Section 76 of the Act as the Excise Act repealed by virtue of promulgation of the Prohibition Act shall stand repealed but the repeal shall not affect any right, privilege acquired, accrued under the Excise Act. I am, therefore, of the opinion that in order to bring into force the Prohibition Act in an effective manner, the State Government should take care to firstly validly cancel the licences as provided under Section 35 so that no vestige of right or privilege as saved under Sub-section (1) (b) of Section 76 may rest in the licences. The State should, therefore, take due care in future to validly cancel the licence in order to avoid unnecessary complication by giving a lever to the licencees to seek the protection under Section 76 of the Prohibition Act.

8. Be that as it may, the question that further requires consideration is whether the present are the fit cases where writ or direction asked for should be issued. It is well to remember here that the issuance of writ is of a discretionary character and the writ or order under Article 226 does not issue as a matter of course. Moreover under Article 226 the Court shall not grant any redress of any injury arising by reason of the contravention of any of the provisions of the Constitution or any provision of any enactment or ordinance or any order, rule, regulation, bye-laws etc., unless injury complained of is of a substantial character. Having regard to the facts and circumstances of the case I am firmly of the opinion that there shall occasion no substantial injury in the present cases. In the first place, the amounts at stake in the various petitions which were to be remitted under Section 35 before cancelling the licences are not at all substantial but are rather paltry which fact is amply proved by the supplementary affidavit filed on behalf of the State. Secondly, under Section 4 of the Prohibition Act the possession, transport and consumption of the liquor have been made offence unless a permit is obtained by the consumer on the medical ground. Therefore, the scope for trade in the vending of liquor in retail will be minimal or rather insignificant. These facts clearly establish that there will be no substantial injury on account of the licences. Above all, looking to the public interest and the fact that the Prohibition Act is a social welfare measure aimed at the improvement of the public health and raising the living standard of the citizens, the requirement of justice is in refusing the relief claimed for by the petitioners, The money to which the petitioners are entitled under Section 35 can be recovered from the State and it is also expected of the State to remit the money to which the petitioners would have been entitled before their licence could be cancelled. In this view of the matter the present cases are not fit ones where writ should go against the State. I would, therefore, dismiss these petitions in limine.

9. Mr. Lodha in the last urged before us that I should issue direction to the State that in case licences are granted in the Ball Tehsil in which the petitioners held licences then they be given preference as displaced licence-holders. I am unable to concede to this request as I have no power to issue such a mandate. However, it is expected from the State that if at all it chooses to grant licences to persons in the Ball Tehsil for vending foreign liquor it may sympathetically consider the cases of the petitioners.

10. No other point was argued on pressed before me.

11. In view of the foregoing discussion I am not inclined to invoke my extraordinary jurisdiction and dismiss these petitions summarily. I, however make no order as to costs.


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