1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR D.B. Civil Writ Petition No.1998/2005 (Siddharaj Dhaddha Vs. State of Rajasthan & Anr.) Date of Order : 24.02.2010 HON'BLE THE CHIEF JUSTICE MR. JAGDISH BHALLA HON'BLE MR. JUSTICE M.N.BHANDARI Mr. Pancham Surana, for the petitioner. Mr.R.B.Mathur ] Mr.S.S.Hora ] Mr.L.S.Shekhawat for Mr.I.R.Saini, AAG. ], for the respondents. By the Court: This Public Interest Litigation has been filed with the following prayers: “(a) declare that the Rajasthan Excise Act, 1950 and Notification dated 25.02.2005 ultra vires, illegal, unconstitutional and void. (b) Declare that the Rajasthan Prohibition Act (Repealing Act), 1981, Act No.13 of the Act of 1981 be declared ultra vires and void and it may be declared that the Rajasthan Prohibition Act, 1969 still is in force that the Rajasthan Excise Act, 1950 stands repealed and it is no more survives on the Statue Book. (c) The respondents may be restrained from manufacturing possessing, selling directly or through contractor country liquor, English liquor or by grant of privilege etc. in the State of Rajasthan throughout. 2 (d) In case any license is granted to licensee in terms of the new policy notification dated 25.02.2005 or shops have been allotted the same may be cancelled or licensee be restrained from doing any business, of sale or manufacture in intoxicants viz. Country liquor etc. (e) Declare that the New Excise Policy vide notification Annexure-1 is illegal and void. (f) Enforce prohibition of consumption of liquor throughout the State of Rajasthan and owners/managers of shops, restaurants, hotel or establishments be restrained to sell retail liquor in any city, town or village. (g) To pass any other appropriate order or direction which may be considered just and proper in the facts and circumstances of the case may kindly also be given in favour of the petitioner. ” It is stated that by notification dated 25.02.2005, the Government of Rajasthan called for tender for country liquor. This was an ignorance of Article 47 of the Constitution of India. Giving the background of the case, it is submitted that earlier the Rajasthan Prohibition Act, 1969 (hereinafter referred to as “the Act of 1969”) was brought to prohibit sale of liquor in the State of Rajasthan. The aforesaid enactment was repealed by the Rajasthan Prohibition Act (Repealing Act), 1981 (hereinafter referred to as “the Act of 1981”). A challenge to the Repealing Act has been made on the strength of the Article 47 of the Constitution of India and accordingly, the prayer has been made to issue a restrain 3 order for manufacturing, processing and selling country liquor or Indian made foreign liquor. Narrating the facts, it is stated that increase of liquor shop is from 900 to 2000 shops and which can go up to 9000 shops in the State of Rajasthan. The way, in which the Government of Rajasthan has framed the policy shows that they have not taken into consideration the Article 47 of the Constitution of India and thereby, at the cost of the health of the people, the excise policy was framed for the year 2005. The State Government is under an obligation to take proper care of the health of the people and thereby, it should have acted in furtherance to Article 47 of the Constitution of India. The liquor is injurious to health and accordingly, the Act of 1969 should have been kept alive instead of repeal, to achieve the goal as per the constitution. The Government is not expected to trade in liquor, which is not to advance the health of the people but is injurious to their health. In the lust of getting revenue, the State Government has framed the policy for the year 2005 and thereby, there is a tremendous increase of liquor shops. With the easy excess to liquor shops, people will consume more liquor affecting their health. It is seen previously that due to consumption of liquor, many of the families were ruined, thus it was expected from the State Government to frame 4 such a policy, which may advance the cause of the people. The State Government has acted otherwise, thus the relief claimed in the writ petition may be granted in the public interest. Learned counsel for the petitioner submits that though the Article 47 of the Constitution of India falls in the directive principles but now in view of the catena of the judgments, even directive principles are enforceable by the Court of law. Reference of the following judgments has been given to substantiate the arguments: (i) P.N.Kaushal Vs. Union of India reported in (1978) 3 SCC 558 (ii)Razakbhai Issakbhai Mansuri & Ors. Vs. State of Gujarat & Ors. reported in 1993 Supp (2) SCC 659 (iii)State of Gujarat Vs. Mirzapur Moti Kureshi Kassab Jamat & Ors. reported in (2005) 8 SCC 534 (iv)Unni Krishnan, J.P. & Ors. Vs. State of Andhra Pradesh & Ors. reported in (1993) 1 SCC 645 (v) Municipal Corporation of Delhi Vs. Female Workers (Muster Roll) & Anr. reported in (2000) 3 SCC 224 5 (vi)Olga Tellis & Ors. Vs. Bombay Municipal Corporation & Ors. reported in (1985) 3 SCC 545 (vii)Synthetics & Chemicals Ltd. & Anr. Vs. State of U.P. & Ors. reported in (1990) 1 SCC 109 (viii)Kirloskar Brothers Ltd. Vs. Employees' State Insurance Corporation reported in (1996) 2 SCC 682 (ix)People's Union for Civil Liberties Vs. Union of India & Ors. reported in (2007) 1 SCC 728 (x)Murli S. Deora Vs. Union of India & Ors. reported in (2001) 8 SCC 765 In reference to the aforesaid judgments, it is submitted that the Article 21 of the Constitution of India includes “right to health”, thus the Article 47 of the Constitution of India required to be read along with the Article 21 of the Constitution of India for giving appropriate relief, more so when, aforesaid aspect was considered by the Hon'ble Apex Court in the judgments referred to above. It is alternatively argued that petitioner is not seeking enforcement of Article 47 of the Constitution of India but is attracting the attention of the Court regarding desirable duties of the State. The directive principles and fundamental rights have to be harmoniously construed and in the light of 6 the aforesaid, interpretation of the Article 37 of the Constitution of India is required to be given. The prayer of the learned counsel for the petitioner is accordingly, to accept the writ petition. Learned counsel for the State as well as for the Excise Commissioner, on the other hand, opposed the writ petition and submit that the same issues as involved herein, came up for consideration in a D.B. Civil Writ Petition No.4648/1996, which was then dismissed vide the order dated 12.01.1998. Once, the issue involved herein has already been decided, this Court should not take a different view. It is submitted that the State is free to frame policies, which include even economy policy decisions and the scope of judicial review is quite limited therein. Unless, it is shown that the policy framed is contrary to the statutory provisions or affect the fundamental right, it cannot be interfered. A reference of the judgment of the Hon'ble Apex Court in the case of Balco Employees Union (Regd.) Vs. Union of India & Ors. reported in 2002 (2) SCC 333 has been given. It is further submitted that the writ petition has become infurctuous otherwise. The policy of the year 2005 has undergone a see change, as for the year 2009-10, a new policy was framed by the present government. With the new policy, not only there is a reduction of liquor shops but an 7 effort has been made by the Government to restore the position as was existing prior to year 2005. In view of the aforesaid, the basic challenge to the policy of the year 2005 no more survives. So far as the Repealing of the Prohibition Act, challenge to the same is highly belated. The Act of 1969 was repealed in the year 1981, thus a challenge to the Repealing Act, 1981 is highly belated, as the writ petition has been filed with the delay of 14 years without explanation. Averting to the merit of the case, it is submitted that the present government is making effort to act in consonance to the Article 47 of the Constitution of India, which is reflected with the change of policy itself. The Article 47 of the Constitution of India otherwise falls in the chapter “directive principals”, thus is not enforceable by the Court of law. Reference of the Article 37 of the Constitution of India was given for that purposes. It is urged that in none of the judgments cited by the learned counsel for the petitioner, the Hon'ble Apex Court held that the directive principles are enforceable by the Court of law. In majority of the cases, the Government act was challenged, which was supported by the Government on the strength of directive principals. The State can always support its action based on directive principals, however, a writ to seek enforcement of directive principles cannot be brought as enforceability of directive principles 8 through a Court of law is prohibited under Article 37 of the Constitution of India. The Hon'ble Apex Court shown its interference only in those cases, where there was a breach of fundamental rights and by taking harmonious interpretation of fundamental rights viz-a-viz directive principals, certain directions were given. In view of the aforesaid arguments, the prayer of the learned counsel appearing for the State and Excise Commissioner is to dismiss the writ petition. We have considered the submissions made by the learned counsel for the parties and scanned the matter carefully. Before averting to the merit of the case, it is necessary to clarify that a writ petition on the similar issues having been dismissed by the Coordinate Division Bench of this Court, we cannot interfere in the subject matter unless it is shown that view taken in the earlier judgment was not in consonance to the judgment of the Hon'ble Apex Court. Even judicial discipline desires to maintain the verdict of the Coordinate Division Bench. In view of the aforesaid, we cannot take a different view then taken by the Coordinate Division Bench on the same subject matter. This is apart from the fact that Public Interest Litigation was filed at the stage when the State Government came with the new excise policy 9 in the year 2005. The aforesaid policy has already been changed for the year 2009-10. The copy of the new policy has been placed on record by the counsel appearing for the respondents. In view of the new policy, there is a reduction of liquor shops and the efforts of the Government is to restore the position as was existing prior to the year 2005, thus the challenge to the excise policy of the year 2005 no more survives. On the aforesaid ground itself, the writ petition can be dismissed more so when, a challenge to the Rajasthan Prohibition Act (Repealing) Act, 1981 is hit by latches. The petitioner has not given any explanation for delay and latches. The Repealing Act was brought in the year 1981 and pursuant to which, manufacturing and trade of liquor remained permissible in the State of Rajasthan. In view of the aforesaid also, the writ petition can be dismissed summarily. We yet touch the issues to deal with the arguments. The main contention of the learned counsel for the petitioner is to seek enforcement of the Article 47 of the Constitution of India. By way of improvement in argument, it is submitted that “right of health” is one of the fundamental right coming out from the Article 21 of the Constitution of India, thus conjoint reading of Article 47 and Article 21 of the Constitution of India makes it clear that manufacturing and 10 trade in liquor needs to be prohibited, as it otherwise goes contrary to the Article 21 of the Constitution of India. The aforesaid argument has been made on the strength that liquor is injurious to health. We have considered the aforesaid argument in the light of the Article 37 of the Constitution of India. For ready reference, the Article 37 of the Constitution of India is quoted hereunder: “Article 37. Application of the principles contained in this Part.- The provisions contained in this Part shall not be enforceable by any Court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.” Perusal of the Article 37 of the Constitution of India reveals that directive principles are not enforceable by Court of law. In view of the aforesaid, a writ for enforcement of directive principles cannot be issued. It is not doubt that infringement of the Article 21 of the Constitution of India has been focused but the petitioner could not show as to how the manufacturing or trade in liquor infringes Article 21 of the Constitution of India, thus the writ petition mainly remains for enforcement of the Article 47 of the Constitution of India. If the judgments referred by the learned counsel for the 11 petitioner are taken note of, then it reveals that in the case of P.N.Kaushal Vs. Union of India (Supra), the issue was quite different. Therein the license was granted for trading in Indian made foreign and country liquor under the Punjab Excise Act of 1914. License was granted on certain terms and conditions. The change in certain terms affecting the right of licensee was challenged, the Hon'ble Apex Court thereby, decided the matter taking note of state plea in view of provision of Article 47 of the Constitution of India. At the outset, it may be clarified that Government can support legislation in reference to directive principals. The question, however, remains as to whether directive principles are enforceable by the Court of law and in the case of P.N.Kaushal (Supra), it has not been held that directive principles are enforceable by the Court of law. Even in the case of Razakbhai Issakbhai Mansuri & Ors. Vs. State of Gujarat & Ors. (Supra), a challenge was made to the Gujarat Amending Act, 1978 prohibiting possession of rotten “gur” in excess to the prescribed limit. The Prohibition Act was supported on the strength of the directive principles and accordingly, the judgment was not addressing the issue regarding enforceability of directive principles by Court of law. Thus, the decision has not application to the present case. This is more so when, we have already clarified that the State can take plea to justify any legislation based on directive 12 principles and otherwise, the case of State of Gujarat Vs. Mirzapur Moti Kureshi Kassab Jamat & Ors. (Supra) is again a case where the prohibition was effected to slaughter cows etc. Essentially, there was no issue for enforceability of directive principals. In the case of Unni Krishnan, J.P. & Ors. Vs. State of Andhra Pradesh & Ors. (Supra) issue was regarding the right to run private unaided/aided recognized/affiliated educational institutions. This was precisely in respect of their rights for giving admission to various courses and charging capitation fee etc. The issue therein was largely taken note of after considering the fundamental rights flowing from Articles 14, 15, 19 and 21 of the Constitution of India. It was held that if any institution is receiving granting aid, then it is oblige to follow rules and regulations framed by the Government in regard to the admission, changing fees and other matters apart from the rules for recruitment and condition of the services of the employee. In reference to the aforesaid, interpretation of Article 45 and 46 has been given but therein also, it was not held that the directive principles are enforceable by Court of law. Again in the case of Olga Tellis & Ors. Vs. Bombay Municipal Corporation & Ors. (Supra) what has been held that 13 principle contained an Article 39(a) and 41 must be recorded as equally fundamental in understanding and interpretation should be given after conjoining reading of fundamental right. If there is an obligation upon the State to secure the citizens with adequate means of livelihood and right to work, it would be sheer pedantry to exclude the right to livelihood from the contents of right to live. The State may not, by affirmative action, be compelled to provide means of livelihood or work to the citizens but a person, who is deprived can claim the benefit. The outcome of the aforesaid is again that by affirmative action, the State cannot be compelled to provide certain things, however, as and when the question of deprivation of fundamental right comes, necessary orders can be passed. In fact, the issue of relationship of part 3 and part 4 of the Constitution of India was taken into consideration and elaborate judgment was given thereupon. Per se a directive principle is not enforceable by Court of law, thus it is not necessary to discuss other judgments as those judgments also focus the same issue as discussed above. The question herein cannot be of violation of fundamental right under Article 21 of the Constitution of India. The petitioner's fundamental right has not been infringed. Here, the matter has came in the Public Interest 14 Litigation mainly to challenge the policy of the State of Rajasthan as was framed in the year 2005. Since, in the year 2009-10, the Government of Rajasthan itself has taken a view to reduce the liquor shops and restore the position as was existing prior to the year 2005, there is nothing much to address the issue raised herein because complete prohibition regarding manufacturing and trade cannot be imposed by judicial order. It is necessarily a policy decision of the Government. While, challenging the Rajasthan Prohibition Act (Repealing Act), 1981, it is not shown that the fundamental right of the petitioner has been violated. It is no doubt that directive principles, more specifically the Article 47 of the Constitution of India provides certain duties of the State Government and in view of that, the Government should always make endeavour to comply with the arrangements, as provided in the directive principles, however, a writ cannot be issued to enforce directive principles simplicitor. Perusal of the new policy of the Government shows that their efforts are to reduce the liquor shops, which needs to be appreciated, as they are trying to achieve the goal as envisaged under Article 47 of the Constitution of India. Though, we are not passing any order for enforceability of 15 Article 47 of the Constitution of India but we expect from the Government that they will take action in furtherance to the Article 47 of the Constitution of India. In view of the discussion and observations made above, we are not inclined to accept the writ petition, more so when, a writ petition on the same issue has already been dismissed. However, we expect that observations made in this judgment would be taken into consideration by the Government while framing the Excise Policies. The writ petition is disposed of, accordingly. (M.N.Bhandari) J. (Jagdish Bhalla) C.J. preety