Case: Krishna Kumar Narula &amp; Another Vs. State of Jammu and Kashmir &amp; Others

under the East Bengal and Assam Excise Act 1910. There incidentally two decisions of this Court, namely, 1954 SCR 873 : (AIR 1954 SC 220 ) and State of Assam v. A. N. Kidwai, Commissioner of Hills Division and Appeals, Shillong, 1957 SCR 295 : (AIR 1957 SC 414 ) were noticed and it was observed that there was no inherent right to the settlement of liquor shops. No question of fundamental right under Art. 19(1) arose in that case.14. This Court in State of Bombay v. R. M.. D. Chamarbaugwala, 1957 SCR 874 at p. 925 (AIR 1957 SC 699 at p. 720) upheld the validity of the Bombay Lotteries and Prize Competition Control Tax Act, 1948 (Bom LIV of 1948), as amended by the Bombay Lotteries and Prize Competition Control and Tax (Amendment ) Act(Bombay Act XXX of 1952). One of the questions raised was whether gambling was business or trade or commerce within the meaning of Art. 19 (1) (g) of the Constitution or Art. 301 thereof. Das, C.J., after considering the various decisions, observed thus:"We find it difficult to accept the contention that those activities which encourage a spirit of reckless propensity for making easy gain by lot or chance, which lead to the loss of the hard earned money of the undiscerning and improvident common man and thereby lower his standard of living and drive him into a chronic state of indebtedness and eventually disrupt the peace and happiness of his humble home could possibly have been intended by our Constitution makers to be raised to the status of trade, commerce or intercourse and to be made the subject-matter of a fundamental right guaranteed by Art. 19 (1) (g)."This decision only lays down that gambling is not business or trade. We are not concerned in this case with gambling.15. A Division Bench of the Orissa High Court in Ranchorlalji v. Revenue Divisional Commissioner, Northern Division, Sambalpur, AIR 1960 Orissa 88 at p. 92 maintained the validity of the provisions of the Orissa Cinema (Regulation) Act, 1954, on the ground that it did not infringe the fundamental right guaranteed under Art. 19(1) (g), read with Art. 19 (6) of the Constitution. The learned Judges observed:"It is only when no policy or principle has been laid down either in the Preamble or in the other provisions of the statute or statutory rules, and the impugned provision confers arbitrary or excessive powers on the authority, that it is liable of the restrictions imposed will necessarily vary with the nature of the business. Restrictions on the carrying on of business in respect of "normally available” commodities should not be as drastic as those in respect of a business or occupation which is likely to cause nuisance or danger to the public."This decision also does not say that there is no fundamental right to do business which is likely to cause nuisance or danger to the public, but stated that the nature of the restrictions would depend upon the nature of the trade.16. A scrutiny of these decisions does not support the contention that the courts held that dealing in liquor was not business or trade. They were only considering the provisions of the various Acts which conferred a restricted right to do business. None of them held that a right to do business in liquor was not a fundamental right.17. We, therefore, hold that clearing in liquor is business and a citizen has a right to do business in that commodity, but the State can make a law imposing reasonable restrictions on the said right, in public interests.18. The next question is whether S. 20 of the Act infringes the fundamental right under Art. 19 of the Constitution. This question, as we have said earlier, was not raised before the High Court. We do not therefore, allow the learned counsel to raise this question before us for the first time We assume, therefore, without deciding that S. 20 of the Act does not infringe Art. 19 (1) (g) . of the Constitution,19. Even so it was contended that the order of the Commissioner of Excise and Taxation was arbitrary and in violation of the principles of natural justice and, therefore, it operated as an unreasonable restriction on the appellants fundamental right to do business.20. This argument was sought to be sustained on the following grounds: (1) Though under the Act yearly leases were issued, in practice renewal was a matter of course. (2) On the basis of the issuance of a licence heavy expenditure had been incurred by the appellants. (3) No opportunity was given to the appellants to establish that locality was suitable for carrying on the said business and that the complaints made against them were false. And (4) even the High Court held that in regard to license against whom there were no complaints a further inquiry should be held. In support of the contention we were taken through all the necessary correspondence. The learned judges on a consideration of the entire material placed before them, held that the Commissioner of Excise and Taxation made bona fide enquiry and found that the locality was not suitable for carrying on business in liquor in view of the various circumstances mentioned in the counter-affidavit. We do not think we are justified in inferring with the finding of fact arrived at by the High Court on the material placed before it. On the said finding it cannot be held that the order of the Commissioner was arbitrary or unreasonable.21. We cannot agree with the learned counsel that S. 22 controls S. 20 of the Act for the former deals with the cancellation of a licence and the latter with the issuance of a fresh licence: they deal with two different subject-matters.22. Lastly, the learned counsel for the appellants contended that the order was mala fide. But this point was not pressed before the High Court and we cannot allow it to be raised for the first time before us.23.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. The first point, namely, the constitutional validity of S. 20 of the Act was not raised in the High Court. We cannot permit the appellant to raise that question for the first time before us. But we should not be understood to have expressed our view one way or other on the said question.A scrutiny of these decisions does not support the contention that the courts held that dealing in liquor was not business or trade. They were only considering the provisions of the various Acts which conferred a restricted right to do business. None of them held that a right to do business in liquor was not a fundamental right.We, therefore, hold that clearing in liquor is business and a citizen has a right to do business in that commodity, but the State can make a law imposing reasonable restrictions on the said right, in publicquestion, as we have said earlier, was not raised before the High Court. We do not therefore, allow the learned counsel to raise this question before us for the first time We assume, therefore, without deciding that S. 20 of the Act does not infringe Art. 19 (1) (g) . of theEven so it was contended that the order of the Commissioner of Excise and Taxation was arbitrary and in violation of the principles of natural justice and, therefore, it operated as an unreasonable restriction on the appellants fundamental right to do business.This argument was sought to be sustained on the following grounds: (1) Though under the Act yearly leases were issued, in practice renewal was a matter of course. (2) On the basis of the issuance of a licence heavy expenditure had been incurred by the appellants. (3) No opportunity was given to the appellants to establish that locality was suitable for carrying on the said business and that the complaints made against them were false. And (4) even the High Court held that in regard to license against whom there were no complaints a further inquiry should be held. In support of the contention we were taken through all the necessary correspondence. The learned judges on a consideration of the entire material placed before them, held that the Commissioner of Excise and Taxation made bona fide enquiry and found that the locality was not suitable for carrying on business in liquor in view of the various circumstances mentioned in the counter-affidavit. We do not think we are justified in inferring with the finding of fact arrived at by the High Court on the material placed before it. On the said finding it cannot be held that the order of the Commissioner was arbitrary or unreasonable.We cannot agree with the learned counsel that S. 22 controls S. 20 of the Act for the former deals with the cancellation of a licence and the latter with the issuance of a fresh licence: they deal with two different subject-matters.Lastly, the learned counsel for the appellants contended that the order was mala fide. But this point was not pressed before the High Court and we cannot allow it to be raised for the first time before us.