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

3. Civil Appeal No. 65 of 1967 relates to Glory Restaurant situated in Moti Bazar, Jammu. The appellant in the said appeal, who is the proprietor of the said restaurant, after taking the requisite licence from the Government, had been carrying on for the last 7 years the business of retail sale of country and foreign liquor in the said restaurant. The licence was an annual licence and it was being renewed from year to year. On December 11, 1965, the Deputy Excise and Taxation Commissioner, Jammu, issued a notice to the appellant ordering the shifting of the premises of the said restaurant to some other locality on the ground that the inhabitants of the locality had complained against the location of the appellants bar and restaurant there. As the licence for 1965-66 would expire on March 31, 1966, the appellant applied for a fresh licence for 1966-67 and deposited the prescribed licence fee in the Government treasury.4. The appellant in Civil Appeal No. 66 of 1967 was carrying on business in liquor in his hotel, named Bliss Hotel and Bar, situated in Parade Ground, Jammu, under a licence issued by the Government of the said State. He obtained a licence for the first time in 1964. After obtaining the licence, it is alleged, he had spent about Rs. 70,000 in furnishing the Hotel and Bar but for unavoidable reasons he could not do business during the financial year 1964-65. For the year 1965-66 he made an application for the renewal of the licence and on December 11, 1965, he received a letter from the Deputy Excise and Taxation Commissioner, Jammu desiring the appellant to shift the premises of his Hotel and Bar to some other suitable place after getting it approved by the Department on the ground that he had received complaints from the inhabitants of the locality against the location of the bar there. At the instance of the 2nd respondent, the Excise and Taxation Commissioner, Jammu, his licence, along with those of other licensees was collected by the 3rd respondent. As he was not given a licence to do business in liquor in the same locality, this appellant also filed a writ petition in the High Court for a relief similar to that claimed by the appellant in Civil Appeal No. 65 of 1967.5. To both the petitions, the State of Jammu and Kashmir, through its Chief Secretary, the Excise and Taxation Commissioner. Jammu and Kashmir, and the Deputy Excise and Taxation Commissioner. Jammu, were made respondents 1, 2 and 3 respectively6. The respondents opposed the petitions and pleaded, inter alia, that the localities wherein the petitioners were carrying on the business were most congested and frequented part of the city and that, as complaints were made against their carrying on the business in the said localities, the respondents refused to renew their licences to carry on the said business in the said localities. They also pleaded that under the Excise Act. 1958, hereinafter called the Act, the issuing of licence was at the discretion of the Excise Commissioner and he had, having regard to the complaints received, bona fide, in exercise of his discretion, refused to give licence to the appellants to carry on business in the said localities.7. In the High Court the Writ petitions, along with others, were decided by a Division Bench consisting of Chief Justice and Justice Syed Murtaza Fazl Ali. They gave concurrent but separate judgments. Both the Judges agreed on merits in dismissing the petitions, but expressed different views on the questions whether the petitioners had fundamental right to do business in liquor. Hence the appeals.

Reasoning:
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.