IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 31 of 2010 Om Prakash Gupta .……… Appellant. Versus State of Uttarakhand and another .………. Respondents. Present: Mr. Sudhir Kumar and Mr. Anant Kumar Agarwal, Advocates for the appellant. Mr. S.N. Babulkar, Advocate General, Uttarakhand with Mr. H.M. Raturi, Advocate for the respondents. Date of decision: 30-03-2010 JUDGMENT Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. J.S. KHEHAR, C. J. (Oral) The appellant has assailed the Motion Bench order dated 22.03.2010 passed by the learned Single Judge in Writ Petition (M/S) No. 344 of 2010. A perusal of the order reveals, that the main case has been listed for final disposal for 12.04.2010. The fact, that it would be disposed of finally on the next date of hearing, is based on the consent of the learned counsel for the rival parties. As a matter of interim arrangement, the learned Single Judge directed, that allotment of liquor licences of different nature would be subject to the final decision in the writ petition. It is this aspect of the matter, which has bothered the appellant, requiring him to prefer the instant special appeal. It is the submission of the learned counsel for the appellant, that the action of the respondents in allowing licences of different nature, would render the main writ petition as infructuous. In any case it is pointed out, that substantial loss would be suffered by the appellant in case the respondents are not restrained from issuing licences. 2. In so far as the merits of the claim are concerned, it is the submission of the learned counsel for the appellant, that the grant of liquor licences has been restricted to residents of the tehsil, and as such, would negate the right of the appellant to participate in the bidding 2 process. The solitary contention of the learned counsel for the appellant is, that the aforesaid restriction is unreasonable and is barred under the provisions of Article 19(1)(g) of the Constitution of India. In order to support his contention, learned counsel for the appellant has placed reliance on Khoday Distilleries Ltd. and Others Versus State of Karnataka and Others, (1995) 1 Supreme Court Cases, 574 and Kuldeep Singh Versus Govt. of NCT of Delhi, AIR 2006, Supreme Court, 2652. In so far as the former Judgment is concerned, learned counsel for the appellant has placed reliance on paragraph No. 22. The same is being extracted hereunder:- “22. In Cooverjee B. Bharucha v. Excise Commissioner and the Chief Commissioner, where the vires of Excise Regulation I of 1915 was under challenge on the ground of violation of Article 19(1)(g), the Constitution Bench of five learned Judges, among other things, held that: (a) In order to determine the reasonableness of restrictions, envisaged by Article 19(6), regard must be had to the nature of the business and the conditions prevailing in that trade. These factors would differ from trade to trade and no hard and fast rule concerning all trades can be laid down. It cannot also be denied that the State has the power to prohibit trades which are illegal or immoral or injurious to the health and welfare of the public. Laws prohibiting trades in noxious or dangerous goods or trafficking in women cannot be held to be illegal as enacting a prohibition and not a mere regulation. The nature of the business is, therefore, an important element in deciding the reasonableness of the restrictions. The right of every citizen to pursue any lawful trade or business is obviously subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, order and morals of the community. Some occupations by the noise made in their pursuit, some by the odours they engender, and some by the dangers accompanying them require regulation as to the locality in which they may be conducted. Some, by the dangerous character of the articles used, manufactured or sold, require also special qualification in the parties permitted to use them, manufacture or sell them. The Court in this connection referred to the observations of Field, J. in P. Crowley v. Henry Christensen a part of which is as follows: “The sale of such liquors in this way has, therefore been, at all times, by the courts of every State, considered as the proper subject of legislative regulation. … Their sale in that form may be absolutely prohibited. It is a question of public expediency and public morality and not of federal law. The police power of the State is fully competent to regulate the business – to mitigate its evils or to suppress it entirely. There is no inherent right in a citizen to thus sell intoxicating liquors by retail; it is not a privilege of a citizen of the State 3 or of a citizen of the United States. As it is a business attended with danger to the community, it may, as already said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils. … It is a matter of legislative will only.” (b) The elimination and exclusion from business is inherent in the nature of liquor business and it will hardly be proper to apply to such a business principles applicable to trade which all could carry on. The provisions of the law cannot be attacked merely on the ground that they create a monopoly. Properly speaking, there can be a monopoly only when a trade which could be carried on by all persons is entrusted by law to one or more persons to the exclusion of the general public. Such, however, is not the case with the business of liquor. The Court for this purpose relied upon the following observations of Lord Porter in Commonwealth of Australia v. Bank of New South Wales: “Yet about this, as about every other proposition in this field, a reservation must be made, for their Lordships do not intend to lay it down that in no circumstances could the exclusion of competition so as to create a monopoly either in a State or Commonwealth agency, or in some other body, be justified. Every case must be judged on its own facts and its own setting of time.” (c) When the contract is thrown open to public auction, it cannot be said that there is exclusion of competition and thereby monopoly is created.” In so far as the later Judgment is concerned, reliance has been placed on paragraph No. 20, which is also being extracted hereunder: “Here, however, the State had made a change in its policy decision of opening the doors to the private entrepreneurs evidently with a view to earn more revenue. It represented to the applicants that their cases would be considered on their own merits. Such consideration was, thus, required to be fair and reasonable. Although dealing in liquor as has rightly been submitted by the learned Additional Solicitor General is not a fundamental right, but indisputably the equality clause contained in Article 14 of the Constitution of India would apply.” 3. In order repudiate the submission at the hands of the learned counsel for the appellant, Mr. S.N. Babulkar, the learned Advocate General, Uttarakhand has brought to our notice, that this is not the first time that the instant restriction has been placed for issuance of liquor licences of different kinds. It is submitted, that a similar restriction was imposed even during the preceding financial year, 2009-10. It is also pointed out, that the instant restriction has been placed in terms of the guidelines depicted under section 40 of the U.P. Excise Act, 1910. It is submitted, that the Rules have been issued under section 40 of the U.P. 4 Excise Act, 1910, so as to ensure that liquor mafia do not enter the State as the same may result in creating a law and order situation. The instant restriction, according to learned counsel, is aimed at preventing the liquor mafia to enter the fray. 4. Having considered the totality of the facts and circumstances, as have been brought to our notice, we are of the view, that the two Judgments relied upon by the learned counsel for the appellant are not pointedly on the issue, which is subject matter of consideration in this case. It is also relevant to notice, that issue under reference, which is subject matter of the challenge at the hands of the appellant, has not been introduced for the first time, but was introduced in the State of Uttarakhand in the preceding financial year also, i.e. in the financial year 2009-10. There is no doubt, that the State Government can impose reasonable restrictions having a nexus to the object sought to be achieved in terms of the statutory rules framed by it under section 40 of the U.P. Excise Act, 1910. The validity of the aforesaid rules shall obviously be examined, when the controversy is adjudicated on merits by the learned Single Judge. With the consent of the learned counsel for the rival parties, the writ petition filed by the appellant has already been fixed for final disposal before the learned Single Judge on 12.04.2010. In view of the above, we are of the view that no fruitful purpose will be served, at the present juncture, and that, ends of justice would be met, if the matter is examined on merits by the learned Single Judge on 12th April, 2010. 5. In view of the above, we are disinclined to accept the prayer made by the appellant. Accordingly, the instant Special Appeal is dismissed. (Sudhanshu Dhulia, J.) (J.S. Khehar, C. J.) 30.03.2010 30.03.2010 Amit