1. Jagat Singh, proprietor of the Khalsa Hotel and Restaurant, Ajmer, has filed this petition for a writ of mandamus or an order or direction in the nature thereof directing the Chief Commissioner, State of Ajmer, not to prosecute or threaten to prosecute through his subordinate officers either the petitioner or any of his customers or visitors for any alleged contravention of notification No. E(1)/3/54-FWE., dated 19-8-1955. In the writ 1966 Cri. L. J. D.F. 42 petition, I have heard the learned Counsel for the applicant and' the learned Government Pleader,
2. The notification in question prohibits 'any person visiting any' premises used as a restaurant within the local limits of the municipalities of Ajmer, Beawar Kekri and Cantonment area of Nasirabad to the State of Ajmer, from keeping or taking any quantity of foreign liquor pr country liquor into the said premises'.
It further prohibits any owner of the restaurant or his employee or his agent from keeping or allowing or. suffering to be kept into or taking upon the said premises any quantity of foreign liquor or country liquor. In - 'State v Shivlal', Cri. A. No. 21 of 1953 (Ajme,r) (A). I had held that the Chief Commissioner had no power to issue a notification against the public generally.
It is contended that the word 'any person' to only a substitute for the 'public'. There is force in the contention of the learned Counsel. But this writ petition has not been filed by the petitioner In assertion of his individual or personal rights. He has filed the petition in vindication of his rights as a proprietor of the hotel and restaurant. As such, I am unable to give him any relief so far as the first part of the notification is concerned.
3. As regards the second part, there can be no denying the fact tiiat restaurant owners, their employees and their agents constitute 'classes of persons' against whom a prohibitory order can be issued under Section 16(4) of Regulation I of 1915. This sub-section reads:
(4) Notwithstanding anything contained in the foregoing sub-sections, the Chief Commissioner, may, by notification, prohibit the possession by any person or class of persons, either throughout the province or in any specified area, of any excisable article either absolutely, or subject to such conditions as he may prescribe.
4. The Chief Commissioner was, therefore, completely within his powers when he directed the three 'classes of persons' named above, i.e., restaurant owners, their employees and theft agents from keeping foreign liquor or country liquor in their possession. But the notification goes further, and also prohibits them from allowing or suffering to be kept or taken upon the said premises.
Clearly this is beyond the scope of Sub-section (4) which I have Quoted above. The Chief Commissioner could certainly prohibit these classes of persons from possessing i.e., keeping liquor, but he could not direct that they should go further and see that no one else kept or consumed liquor on the premises. This could not come under abetment either as the consumption or possession of liquor by the public generally could not be prohibited by the Chief Commissioner under his powers under Section 16(4) of Regulation I of 1915 as has already been held by me in 1954 AMLT 27 (A)'.
5. The two portions are however severable, and I therefore hold that the words 'or allow or suffer to be kept into' are ultra vires the powers of the Chief Commissioner.
6. The learned Government Pleader has contended that no writ should issue against the Chief Commissioner who had at no time prosecuted or threatened to prosecute the petitioner. If the petitioner wanted any relief, he, should have asked for the writ against the -Collector of Excise who alone] controls the action of the1 officers who alone 're likely to prosecute the petitioner.
7. I accept this last contention and refuse to issue a writ as prayed. In the circumstances of the case, the parties will bear their own costs.