Madhya Pradesh High Court
Akarsh Jaiswal vs The State Of Madhya Pradesh on 19 April, 2022
Author: Vishal Mishra
1
A.F.R.
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 19th OF APRIL, 2022
Writ Petition No. : 8791 of 2022
PETITIONER AKARSH JAISWAL S/O RAJENDRA JAISWAL OCCUPATION : BUSINESS
HOUSE NO.27 AKARSH ENCLAVE NEAR SPORTS CLUB TILHRI DISTRICT -
JABALPUR M.P. (MADHYA PRADESH)
Vs.
THE STATE OF MADHYA PRADESH THROUGH PRINCIPAL SECRETARY
DEPARTMENT OF EXCISE DISTRICT- JABALPUR, M.P. (MADHYA PRADESH).
ASSISTANT EXCISE COMMISSIONER JABALPUR DISTRICT JABALPUR M.P.
(MADHYA PRADESH).
RESPONDENTS
COLLECTOR, JABALPUR DISTRICT JABALPUR, (MADHYA PRADESH).
Name of counsel : For Petitioner: Shri Sankalp Kochar, Advocate.
for parties
For Respondent: Shri Amit Seth, Govt. Advocate.
For Intervenors: Shri Sanjay Agrawal, Senior Advocate with Shri Rahul Gupta,
Advocate.
Whether approved : Yes
for reporting
Law laid down : 1. There is no fundamental right to a citizen to carry out the trade or business in
portable liquor as beverage res extra commercium. The State is having a right to
create a monopoly in itself for the trade or business in such liquor. The State
Government can place restrictions and limitations on such trade or business which
may be in the nature different from those on trade or business in articles res
commercium. [Para - 22 & 23].
2. It is the event of dispute between the private and public at large, then the
principles of natural justice are not required to be followed. The public grievances
are required to be given weightage over the private grievances. There is no straight
jacket formula for consideration of the fact that the principles of natural justice are
required to be followed when the objections are raised by public at large with
respect to continuation of liquor business at a particular place. The audi alteram
partem rule is very flexible, malleable and adaptable concept of natural justice. It
is just to adjust and harmonise the need for speed and obligation to act fairly, it can
be modified and the measure of its application cut short in reasonable proportion to
the exigencies of the situation.[Para - 25].
3. The District Magistrate is having powers under Section 24 of the M.P. Excise
Act, 1915 to even direct for stopping the liquor business at a particular place, in
case he is having an apprehension that a law and order situation may arise. [Para-
11, 12].
Significant : 11, 12, 22, 23 and 25.
paragraphs
2
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This petition coming on for admission this day, the court
passed the following:
ORDER
The complainants have filed an application for intervening
into the matter pointing out several facts and circumstances before
this Court but the fact remains that on an application being filed
the intervenors, the cognizance has been taken by the Authorities
i.e. the Collector and the impugned order has been passed. Thus,
virtually the complaint made by them is acted upon. Therefore, the
intervenors who are the local residents of the area wherein the
liquor shop is being opened has no locus to intervene into the writ
petition, placing reliance upon the judgment passed by the
Division Bench of this Court in the case of M.P. Karmachari
Congress Vs. State of M.P. and others [W.A. No.64/2021]
decided on 10.02.2021.
In such circumstances, once the complaint filed by the
intervenor is already acted upon they don't have any locus to
intervene into the writ petition.
Accordingly, the intervention application is rejected.
With the consent of the parties, the matter is heard.
Challenge is being made to the order dated 11.04.2022 sent
on behalf of the respondent No.2, whereby the petitioner has been
directed to shift the Composite Liquor Shop Gorakhpur - I to a
place which is having no objection.
2. It is argued that only four days time have been granted to the
petitioner for doing the needful which is affecting the business of
the petitioner to a large extent, without there being any show cause
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notice or opportunity of hearing granted to the petitioner. The
order has been served upon the petitioner on 12.04.2022 at 7 P.M.
It is argued that the petitioner is a rightful owner of the license
under the M.P. Excise Act for undertaking the liquor business and
after participating in the tender process, he was declared successful
bidder for running a Composite Liquor Shop in area Gorakhpur
vide order dated 31.03.2022. He entered into a rent agreement with
one Rahul Khatri and others and has taken three floor building
situated at Gorakhpur for a total amount of consideration of
Rs.5,00,000/-. The agreement is valid upto 31.03.2022. It is
submitted that in pursuance to the provisions of M.P. Excise Act,
1915, the Rules regarding location of any liquor shop is that "no
liquor shop shall be deemed to exist within 50 meter radius of any
religious institution, academic institution, hospital or a bus stand
etc," therefore, prior to finalisation of the shop, verification was
got done by the Authorities in the presence of the Assistant Excise
Commissioner, Jabalpur whereby it was observed that the distance
between the liquor shop and one Wisdom Valley School is 75
meters. It is argued that impugned order does not reflect any
reason for issuing a direction to the petitioner to shift the shop in
question, coupled with the fact that he was never served with the
so called objections which have been raised by the public at large.
It is settled legal proposition that in case any order is passed
having civil consequences then the opportunity of hearing should
have been granted prior to passing such orders. Direction for
shifting of shop will be adversely effecting the business of the
petitioner and will be causing huge loss to him. Thus, the order is
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per se illegal. He has drawn attention of this Court to the Gazette
notification dated 31.03.2018 wherein Rule 2 of Rules as under :-
"Any shop for the sale of liquor shall not be situated
upto a distance of 50 meters from lawful religious institution,
girls school, girls college and lawful girls hostel."
3. It is argued that after due verification of the location of the
shop, the same has been permitted to be run by the petitioner. The
petitioner has already invested huge amount and has also entered
into a rent agreement. Once the Authorities have visited the site
and has verified that the aforesaid shop is not violating any of the
Rules and Regulations of the Excise Act, but all of a sudden on a
so called objections raised by the public with respect to the shop
which has never communicated to the petitioner, the order
impugned has been passed. It is submitted that in identical
circumstances, this Court has dealt with the cases wherein similar
orders have been passed by the Authorities and the Court has
intervened in the matter and has virtually stayed the operation of
the orders. He has further pointed out to this Court, the General
Rules of allotment and running of liquor shop and has placed
reliance upon Rule 2 which says that atleast an opportunity of
hearing should have been granted to the shop allottee to
substantiate his case, in case of any objection and further upon
Clause 2 (Kha) wherein the distance from the objectionable places
should be 50 meters. The mode of calculating the distance is also
being provided in Clause 4 (Ga) and following the same, the
measurement of the distance from the nearest school has been
taken. In such circumstances, there is virtually no violation of any
of the terms and conditions and rules and regulations.
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4. Placing heavy reliance upon the judgments passed by this
Court in the case of Ashok Kumar Pandey Vs. The State of
Madhya Pradesh (Writ Petition No.7422/2017) wherein on an
objection taken by a Cabinet Minister, the liquor shop was directed
to be closed. This Court has considered and granted the interim
relief on 19.06.2017. The petitioner is still pending and the
Government has not even bothered to file reply to the aforesaid.
He has further pointed out the order dated 24.07.2018 passed in the
case of M/s A.P.J.Sales Vs. The State of Madhya Pradesh [Writ
Petition No.16375/2018] dealing with a running of a foreign
liquor shop and in similar circumstances by the impugned order,
the Collector has directed to shift the shop to some other place
where there is no objection and the effect and operation of the
impugned order was stayed. The aforesaid petition is also pending.
Further he has placed reliance upon the judgment passed by the
Supreme Court and this Court with respect to following the
principles of natural justice and filing of writ petition in the event
of availability of alternative and efficacious remedy; and has tried
to substantiate that every case has to be looked into in terms of the
facts and circumstances of the case; and there cannot be any
straight jacket formula for not to entertain a writ petition under
Article 226 of the Constitution of India directly before this Court.
5. Placing heavy reliance upon the judgment passed by the
Hon'ble Supreme Court in the case of Whirlpool Corporation
Vs. Registrar of Trade Marks, Mumbai and others reported in
(1998) 8 SCC 1, Harbanslal Sahnia and another Vs. Indian Oil
Corpn. Ltd. And others reported in (2003) 2 SCC 107, Godrej
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Sara Lee Limited Vs. Assistant Commissioner (AA) and
another reported in (2009) 14 SCC 338 and has argued that
alternative and efficacious remedy is no bar to entertain the writ
petition under Article 226 of the Constitution of India. It is
submitted that the petitioner was a successful bidder and was
allotted the Composite Liquor Shop of entire Gorakhpur and after
verification of the place where the petitioner was starting his shop
(Panchnama Annexure P-4), the petitioner invested huge amount
and has started his business. All of a sudden on a general objection
taken by the local residents, the Collector has directed the
petitioner to shift the shop at a non-objectionable place within four
days. In such circumstances, interference is warranted.
6. Per contra, learned counsel appearing for the respondents by
filing a response to the writ petition has supported the impugned
order and has pointed out that the order has been passed by the
competent authorities after taken into consideration the objections
which have been filed by the local residents (the public at large)
and considering the fact that there can be a law and order situation.
A preliminary objection has been taken regarding maintainability
of the writ petition for want of alternative remedy. It is argued that
the order passed by the Collector can always be put to challenge
by filing an appeal or revision as contained in Section 62 of M.P.
Excise Act, 1915. Without availing the alternative and efficacious
remedy, the petition directly filed before this Court is not
maintainable. It is argued that the petitioner was granted the
Composite Shop of entire area of Gorakhpur in pursuance to the
new Excise Policy of the year 2022-23. The petitioner was well
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aware of the fact that he is required to identify the place for
running a shop which should be a non-objectionable place. Clause
11.7 of the Policy clearly deals with the condition that the
petitioner is required to submit an affidavit and in pursuance to
Clause 9 of the affidavit, it is the responsibility of the petitioner
that the place where he is starting his business should be a non-
objectionable place and the petitioner was well aware of the
aforesaid contents of the affidavit. When the liquor shop were
opened immediately within 3 - 4 days, the objection were raised by
the local residents regarding running of the shop, for which certain
public agitations like Dharna Pradarshan has been done by the
female residents of the area. The aforesaid can be demonstrated
through photographs. On 05.04.2022, a spot inspection was carried
out by the Assistant Excise Commissioner, Jabalpur along with his
team of Excise Officers wherein he has found that a protest has
been held by the local residents by putting up a Pandal at the said
place, the road to the liquor shop was blocked by the women
sitting at the main door of the liquor shop and opening of the
liquor shop was being opposed. The licensee has to shut down the
liquor shop for some time as the crowd was getting out of control.
The local residents have taken an objection that the place is not
suitable for the liquor shop due to school nearby and dense
population settlement around it. Several slogans and protest were
raised by the local residents. Considering the inspection report
which has been submitted under the signatures of the Excise
Commissioner dated 05.04.2022 which is filed along with the
return, apprehending a law and order situation, the Collector has
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passed the impugned order. It is within the domain of the Collector
to pass such order for shifting/relocation of the shop.
7. It is argued that the petitioner is bound by his affidavit
which has been given at the time of allotment of the shop and it is
the responsibility of the petitioner to shift the liquor shop at a non-
objectionable place in terms of Rules of General Application. It is
argued that the Collector has power to regulate the functioning or
relocation of the liquor shop, in case, the same is affecting the
public. He has further drawn attention of this Court to Section 24
of the M.P. Excise Act, 1915 wherein for closing of a shop for sake
of public peace the powers are with the District Collector who can
even direct for closure of the shop for maintaining the public
peace. It is submitted that in the present case, the Collector has not
directed for closure of the liquor shop rather, he has directed for
shifting of the liquor shop to a non-objectionable place within a
reasonable time, for which four days time was granted to the
petitioner, but the fact remains that the petitioner has not shifted
the shop in question and has challenged the aforesaid order by
filing a writ petition, which is contrary to the affidavit which has
been submitted by the petitioner at the time of allotment in the
tender proceedings. It is argued that the case laws which have been
relied upon by the petitioner are with respect to closure of the shop
or shifting of the shops but in the present case there is a huge
agitation taken by the public at large which was taken cognizance
by the competent authority i.e. the Collector. It is submitted that
prior to passing such orders a spot inspection was already carried
out, therefore, there is no illegality in the impugned order passed
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by the Collector in directing for shifting the liquor shop. Even
otherwise, running a liquor business is not fundamental right as
has been held by the Constitutional Bench of the Supreme Court as
well as by this Court in large number of cases, therefore, the
petitioner is bound to shift the shop in question at a non-
objectionable place and should have followed the terms and
conditions of the New Excise Policy of 2022-23 and also comply
with the affidavit which has been submitted by him.
8. Heard the learned counsel for the parties and perused the
record.
9. From a perusal of the record, it is not disputed that the
petitioner is a license holder for running a liquor shop and in terms
of Excise Policy of 2022-23, he has been allotted a composite
license to run liquor shops in the area Gorakhpur. A Panchanama
has also been prepared with respect to the shop in question in
presence of Assistant Commissioner, Excise wherein he has
pointed out that distance from the school is 75 meters. However,
there a big objection taken by the public at large regarding running
of a liquor shop at the premises in question by the petitioner and to
certain extent some agitations are also being pointed out which is
reflected from the reply filed by the State Government. It is the
case of the petitioner that the impugned order is having civil
consequences, therefore, atleast an opportunity of hearing should
have been granted to him prior to passing of such an order.
10. The basic question which is required to be dealt with in the
present case is that as to whether the petitioner is having any right
to run the shop in question at the said premises?; and whether the
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District Magistrate is having power and authority to pass such an
order without even providing any opportunity of hearing to the
petitioner?
11. Section 24 of the M.P. Excise Act, 1915 is required to be
seen in this regard, which read as under:
"24. Closing of shops for the sake of public peace.--
(l) The District Magistrate, by notice in writing to the
licensee, may require, that any shops in which any intoxicant is
sold shall be closed at such times or for such period as he may
think necessary for the preservation of the public peace.
(2) If a riot of unlawful assembly is apprehended or
occurs in the vicinity of any shop, a Magistrate of any class,
who is present, may require such shop to be kept closed for
such period as the may think necessary: Provided that,
when any such riot or unlawful assembly occurs, a licensee
shall, in the absence of the Magistrate, close his shop
without any order.
(3) When any Magistrate issues an order under sub-section (2),
the shall forthwith inform the Collector of his action and his
reasons thereof. "
12. A perusal of Section 24 of the Act, 1915 makes it clear that
the District Magistrate is having power to direct closure of a liquor
shop, if there is apprehension of a riot or unlawful assembly.
13. The vires of Section 24 was changed in the case of
Shatrughanlal vs. State of M.P., 1997(2) MPLJ 54, wherein, the
Division Bench of this Court has rejected a petition holding that
the provision does not suffer any invalidity of conferring
channelized and unfettered power on the District Magistrate.
14. New policy of the year 2022, Clause 2 provides for efnjk
nqdkuksa dh uohu O;oLFkk which read as under:
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"2 efnjk nqdkuksa dh uohu O;oLFkk %&
2-1 dEiksftV nqdku %& o"kZ 2022&23 esa çns'k dh leLr efnjk
nqdkus dEiksftV 'k‚i gksaxh vFkkZr bu ij ns'kh ,oa fons'kh efnjk
nksuksa gh foØ; gsrq miyCèk jgsxh ijUrq xzkeh.k {ks= dh ,slh nqdku
tks o"kZ 2021&22 esa ns'kh efnjk nqdku Fkh] ij ns'k ds ckgj ls
vk;kfrr ¼BIO½ efnjk ds foØ; dh vuqefr ugha gksxh A
2-2 orZeku efnjk nqdkuksa dk fjyksds'ku ¼LFkku ifjorZu½:&
dysDVj ,oa ftys ds leLr ekuuh; foèkk;d x.k dh mPp Lrjh;
ftyk lfefr dks muds ftys dh LFkkuh; vko';drkvksa ds vuq:i
efnjk nqdkuksa dks HkkSxksfyd -f"V ls fjyksdsV ¼LFkku ifjorZu½ djus
dk vfèkdkj gksxkA ,sls LFkku ifjorZu djrs le; bl ft+yk
lfefr }kjk LFkkuh; Hkkoukvksa rFkk vkcdkjh fu;eksa dks -f"Vxr
j[kk tk,xkA ,slh jhyksdsVsM nqdkuksa ds lewg ds Bsdk dk
uohuhdj.k ugha fd;k tk,xkA budk fu"iknu bZ&VsaMj ds ekè;e
ls gh fd;k tkosxkA"
15. From a perusal of the aforesaid Clauses, it is apparently
clear that the Collector is having powers to direct for relocation of
the shop in question.
16. A committee has been constituted which is reflected from
order dated 25.01.2022 issued by the Excise Commissioner, which
reads as under:
2 efnjk nqdkuksa ds fu"iknu gsrq çR;sd ftys esa xfBr lfefr
fuEukuqlkj gksxh
1.1 dysDVj vè;{k
1.2 iqfyl vèkh{kd LnL;
1.3 lacafèkr laHkkx ds mik;qä vkcdkjh LnL;
1.4 eq[; dk;Zikyu vfèkdkjh ¼ftyk iapk;r½ LnL;
1.5 lgk;d vkcdkjh vk;qä@ftyk vkcdkjh vfèkdkjh LnL;
lnL; lfpo
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17. The procedure for relocating the shop is also provided in
clause 1 which reads as under:
"1& orZeku efnjk nqdkuksa dk fjyksds'ku ¼LFkku ifjorZu½
vkcdkjh uhfr o"kZ 2022&23 dh df.Mdk 2-2 rFkk df.Mdk 4 ds çkoèkkuksa ds
vuq:i dysDVj ,oa lEcafèkr foèkkulHkk {ks= ds ekuuh; foèkk;d x.k ¼os
foèkk;d ftudh foèkkulHkk {ks= ls efnjk nqdku dks gVk;k tkuk rFkk ftudh
foèkkulHkk {ks= esa efnjk nqdku dks LFkkfir fd;k tkuk çLrkfor gS½ dh mPp
Lrjh; lfefr dh lgefr ls] muds {ks= dh LFkkuh; vko';drkvksa ds vuq:i
efnjk nqdku dk HkkSxksfyd -f"V ls fjyksds'ku ¼LFkku ifjorZu½ fd;k tk
ldsxkA ,slk LFkku ifjorZu djrs le; bl mPp Lrjh; lfefr }kjk LFkkuh;
Hkkoukvksa rFkk vkcdkjh fu;eksa dks -f"Vxr j[kk tk,xkA bl lacaèk esa lHkh
ftyk dysDVj dks tkjh bl dk;kZy; ds i= Øekad 7&[email protected]&[email protected]
dSEi] Hkksiky fnukad 22-01-2022 ds vuqlkj dk;Zokgh] fnukad 28&01&2022
rd dh tkuk lqfuf'pr djsaA""
18. A perusal of the aforesaid provisions, it is apparently clear
that prior to relocating a liquor shop, a High Level Committee has
been formulated, is required to give an opinion and the committee
should give opinion of relocation of a liquor shop and the
committee is required to take into consideration the public
sentiments and Excise Rules while giving an opinion with respect
of relocation of a liquor shop. Although the Collector is having
powers to direct for shifting of a liquor shop at a non-objectionable
place, the impugned order also reflects the same that the shop in
question is directed to be shifted at a non-objectionable place.
Letter dated 06.04.2022 has been issued by the Assistant Excise
Commissioner pointing out the fact that the shop in question is
required to run at a non-objectionable place.
19. A detailed representation to the District Collector, Jabalpur
has been given by the local residents of Goodluck Apartments,
Narmada Homes for shifting of the liquor shop. The photographs
which have been filed alongwith the reply filed by the State
Government also show that there is a protest and agitation taken up
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by the public at large and local residents with respect to running of
a liquor shop in their locality.
20. From the aforesaid, it is apparently clear that the District
Magistrate is having powers to direct for relocation of a liquor
shop in case there is an objection and possibility of law and order
situation.
21. Hon'ble Supreme Court in the case of Chingleput Bottlers
vs. Majestic Bottling Company reported in 1984 (3) SCC 258
has held as under:
"32. There is authority for the proposition that an
authority or body need not observe the rules of natural justice
where its decision, although final, relates not to a "right" but to a
"privilege or licence". In a number of recent decisions, the courts
have, while extending the protection of natural justice in the
former category of claims, denied such protection to the latter
category. All that is emphasized in such cases is that the
applications must be considered fairly. In R.v.Gaming Board for
Great Britain, ex parte Benaim[(1970) 2 All ER 528 : (1970) 2
QB 417 : (1970) 2 WLR 1009 (CA)] the Court of Appeal held
that in refusing a certificate for reasons concerning the character
and suitability of the applicants, the Board must act fairly and
obey the broad principles of natural justice. In fact, it was held
that they had done so since they had given the applicants full
opportunity to know and contest the case against them, even
though they had not revealed the sources of their information or
given their reasons. It follows that the right to know the case to
be met does not necessarily involve any right to know the source
of adverse information or to confront the informants, for in some
cases it would be quite proper for the authority to employ
confidential sources.
39. It is now well-settled that, while considering the question of
breach of the principles of natural justice, the Court should not
proceed as if there are inflexible rules of natural justice of
universal application. Each case depends on its own
circumstances. Rules of natural justice vary with the varying
constitutions of statutory bodies and the rules prescribed by the
Legislature under which they have to act."
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22. Hon'ble Supreme Court in the case Khoday Distilleries
Ltd. And others vs. State of Karnataka and others, reported in
(1995) 1 SCC 574 has held as under:
"62. We, therefore, hold that a citizen has no
fundamental right to trade or business in liquor as beverage. The
State can prohibit completely the trade or business in potable
liquor since liquor as beverage is res extra commercium. The
State may also create a monopoly in itself for trade or business
in such liquor. The State can further place restrictions and
limitations on such trade or business which may be in nature
different from those on trade or business in articles res
commercium. The view taken by this Court in K.K. Narula case
[(1967) 3 SCR 50 : AIR 1967 SC 1368] as well as in the second
Synthetics and Chemicals Ltd. case[(1990) 1 SCC 109] is not
contrary to the aforesaid view which has been consistently taken
by this Court so far."
23. A full Bench of this Court in the case of Chingalal Yadav
vs. State of M.P. and others, reported in 2010 (2) MPLJ 443
following the judgment passed by the Hon'ble Supreme Court in
the case of Khoday Distillers Ltd. (supra) has held as under:
"24. Having formulated the issues which arise for
consideration we proceed to deal with them in seriatim.
(i) nature of right to deal in business of liquor :
25. The Constitution Bench of the Supreme Court in Har
Shankar and Others etc. v. The Deputy Excise and Taxation
Commissioner and others, etc., AIR 1975 SC 1121 while
dealing with right to deal in the business of intoxicants
approved the ratio of earlier decisions, namely, decision of the
Constitution Bench in the State of Bombay vs. F.N. Balsara,
AIR 1951 SC 318 and Cooverjee B. Bharucha v. Excise
Commr. And the Chief Commr. , Ajmer, AIR 1954 SC 220,
State of Assam v. A. N. Kidwai AIR 1957 SC 414, Nagendra
Nath Vora and another vs. Commissioner of Hills Division, AIR
1958 SC 398, Amar Chandra Chakraborty v. Collector of
Excise, Government of Tripura, AIR 1972 SC 1863, State of
Bombay vs. R.M.D.Chamarbaugwala, AIR 1957 SC 699, State
of Orissa v. Harinarayan Jaiswal, AIR 1972 SC 1816 and
Nashirwar etc. vs. State of M.P. And others, AIR 1975 SC 360
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and has held that there is no fundamental right to do the
business or deal in intoxicants.
26. Another constitution Bench of the Supreme Court in
Khoday Distilleries Ltd. And Others v. State of Karnataka and
Others, (1995)1 SCC 574 after taking note of all previous
decisions on the nature of right to deal in business of liquor
summarized the law on the subject as follows:
"60. We may now summarise the law on the subject
as culled from the aforesaid decisions.
(a) The rights protected by Article 19(1) are not
absolute but qualified. The qualifications are stated in
clauses (2) to (6) of Article 19. The fundamental
rights guaranteed in Article 19(1) (a) to (g) are
therefore, to be read along with the said
qualifications. Even the rights guaranteed under the
Constitutions of the other civilized countries are not
absolute but are read subject to the implied
limitations on them. Those implied limitations are
made explicit by clauses (2) to (6) of Article 19 of our
Constitution.
(b) The right to practice any profession or to carry on
any occupation, trade or business does not extend to
practicing a profession or carrying on an occupation,
trade or business which is inherently vicious and
pernicious, and is condemned by all civilized
societies. It does not entitle citizens to carry on trade
or business in activities which are immoral and
criminal and in articles or goods which are obnoxious
and injurious to health, safety and welfare of the
general public, i.e., res extra commercium, (outside
commerce). There cannot be business in crime.
(c) Potable liquor as a beverage is an intoxicating and
depressant drink which is dangerous and injurious to
health and is, therefore, an article which is res extra
commercium being inherently harmful. A citizen has,
therefore, no fundamental right to do trade or
business in liquor. Hence, the trade or business in
liquor can be completely prohibited.
(d) Article 47 of the Constitution considers
intoxicating drinks and drugs as injurious to health
and impeding the raising of level of nutrition and the
standard of living of the people and improvement of
the public health. It, therefore, ordains the State to
bring about prohibition of the consumption of
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intoxicating drinks which obviously include liquor,
except for medicinal purposes. Article 47 is one of the
directive principles which is fundamental in the
governance of the country. The State has, therefore,
the power to completely prohibit the manufacture,
sale, possession, distribution and consumption of
potable liquor as a beverage, both because it is
inherently a dangerous article of consumption and
also because of the directive principle contained in
Article 47, except when it is used and consumed for
medicinal purposes.
(e) For the same reason, the State can create a
monopoly either in itself or in the agency created by
it for the manufacture, possession, sale and
distribution of the liquor as a beverage and also sell
the licences to the citizens for the said purpose by
charging fees. This can be done under Article 19(6) or
even otherwise.
(f) For the same reason, again, the State can impose
limitations and restrictions on the trade or business in
potable liquor as a beverage which restrictions are in
nature different from those imposed on the trade or
business in legitimate activities and goods and
articles which are res commercium. The restrictions
and limitations on the trade or business in potable
liquor can again be both under Article 19(6) or
otherwise. The restrictions and limitations can extend
to the State carrying on the trade or business itself to
the exclusion of and elimination of others and/or to
preserving to itself the right to sell licences to do
trade or business in the same, to others.
(g) When the State permits trade or business in the
potable liquor with or without limitation, the citizen
has the right to carry on trade or business subject to
the limitations, if any, and the State cannot make
discrimination between the citizens who are qualified
to carry on the trade or business.
(h) The State can adopt any mode of selling the
licneces for trade or business with a view to
maximize its revenue so long as the method adopted
is not discriminatory.
(i) The State can carry on trade or business in potable
liquor notwithstanding that it is an intoxicating drink
and Article 47 enjoins it to prohibit its consumption.
When the State carries on such business, it does so to
A.F.R.
restrict and regulate production, supply and
consumption of liquor which is also an aspect of
reasonable restriction in the interest of general public.
The State cannot on that account be said to be
carrying on an illegitimate business.
(j) The mere fact that the State levies taxes or fees on
the production, sale and income derived from potable
liquor whether the production, sale or income is
legitimate or illegitimate, does not make the State a
party to the said activities. The power of the State to
raise revenue by levying taxes and fees should not be
confused with the power of the State to prohibit or
regulate the trade or business in question. The State
exercises its two different powers on such occasions.
Hence, the mere fact that the State levies taxes and
fees on trade or business in liquor or income derived
from it, does not make the right to carry on trade or
business in liquor a fundamental right, or even a legal
right when such trade or business is completely
prohibited.
(k) The State cannot prohibit trade or business in
medicinal and toilet preparations containing liquor or
alcohol. The State can, however, under Article 19(6)
place reasonable restrictions on the right to trade or
business in the same in the interests of general public.
(l) Likewise, the State cannot prohibit trade or
business in industrial alcohol which is not used as a
beverage but used legitimately for industrial
purposes. The State, however, can place reasonable
restrictions on the said trade or business in the
interests of the general public under Article 19(6) of
the Constitution.
(m) The restrictions placed on the trade or business in
industrial alcohol or in medicinal and toilet
preparations containing liquor or alcohol may also be
for the purposes for preventing their abuse or
diversion for use as or in beverage."
27. Similarly another Constitution Bench of the Supreme Court
in Devans Modern Breweries Ltd and another (supra) held that
trade in liquor is not a fundamental right. It is a privilege of the
State. The State parts with this privilege for revenue
consideration. It was further held that permissive privilege to
deal in liquor is not a right at all. The levy charged for parting
with that privilege is neither a tax nor a fee. It is simply a levy
for the act of granting permission or for exercise of power to
A.F.R.
part with privilege. Similar view was taken by a two-Judge
Bench of the Supreme Court in a recent decision reported in
(2009) 3 SCC 157 wherein once again it was reiterated that no
person has any fundamental right to carry on business in liquor
it being res extra commercium.
28. Thus, from the aforesaid authoritative pronouncement of
law by the Supreme Court it is graphically clear that no citizen
has any fundamental right to trade or carry on business in liquor
and all forms of dealing in liquor have from their inherent
nature, been treated as class by themselves by all civilized
societies. In view of injurious effect of excessive consumption
of liquor on health the trade or business of liquor must be
treated as a class by itself and cannot be treated on the same
basis while considering the challenge on the touchstone of
Article 14 of the Constitution of India."
24. From the aforesaid proposition of law settled by the
Constitution Bench of Hon'ble Supreme Court as well as a Full
Bench of this Court, it is apparently clear that no person is having
any fundamental right to trade or carry on the business of liquor.
25. As far as following the principle of natural justice, in case
where a public interest is involved is concerned, the Hon'ble
Supreme Court in the case of Swadeshi Cotton Mills vs. Union of
India reported in (1981) 1 SCC 664 has held as under:
"78. The audi alteram partem rule, as already pointed
out, is a very flexible, malleable and adaptable concept of
natural justice. To adjust and harmonise the need for speed and
obligation to act fairly, it can be modified and the measure of
its application cut short in reasonable proportion to the
exigencies of the situation. Thus, in the ultimate analysis, the
question (as to what extent and in what measure), this rule of
fair hearing will apply at the pre-decisional stage will depend
upon the degree of urgency, if any, evident from the facts and
circumstances of the particular case.
106. The principles of natural justice have taken deep root in
the judicial conscience of our people, nurtured by Dr Bina
Pani [AIR 1967 1269 : (1967) 2 SCR 625] , Kraipak [(1969) 2
SCC 262 : (1970) 1 SCR 457], Mohinder Singh Gill [(1978) 1
SCC 405 : (1978) 2 SCR 272],Maneka Gandhi [1964 AC 40 :
(1963) 2 All ER 66 (HL)]. They are now considered so
A.F.R.
fundamental as to be "implicit in the concept of ordered liberty
and, therefore, implicit in every decision-making function, call
it judicial, quasi-judicial or administrative. Where authority
functions under a statute and the statute provides for the
observance of the principles of natural justice in a particular
manner, natural justice will have to be observed in that manner
and in no other. No wider right than that provided by statute
can be claimed nor can the right be narrowed. Where the
statute is silent about the observance of the principles of
natural justice, such statutory silence is taken to imply
compliance with the principles of natural justice. The
implication of natural justice being presumptive it may be
excluded by express words of statute or by necessary
intendment. Where the conflict is between the public
interest and the private interest, the presumption must
necessarily be weak and may, therefore, be readily
displaced. The presumption is also weak where what are
involved are mere property rights. In cases of urgency,
particularly where the public interest is involved, pre-
emptive action may be a strategic necessity. There may
then be no question of observing natural justice. Even in
cases of pre-emptive action, if the statute so provides or if
the courts so deem fit in appropriate cases, a postponed
hearing may be substituted for natural justice. Where
natural justice is implied, the extent of the implication and
the nature of the hearing must vary with the statute, the
subject and the situation. Seeming judicial ambivalence on
the question of the applicability of the principles of natural
justice is generally traceable to the readiness of Judges to apply
the principles of natural justice where no question of the public
interest is involved, particularly where rights and interests
other than property rights and vested interests are involved and
the reluctance of Judges to apply the principles of natural
justice where there is suspicion of public mischief, and only
property rights and vested interests are involved."
26. Thus, from the perusal of the aforesaid, it is apparently clear
that where elements of public interest is involved, there is no
requirement for following the principle of natural justice and the
competent authority is having powers to pass an order considering
the situation of law and order and public interest. In the present
case, element of public interest is involved in the matter, as is
A.F.R.
reflected from the complaints which have been made to the
District Collector by the local residents of the area wherein the
liquor shop in question is opened and is being run by the petitioner.
From the impugned order, it is also clear that no opportunity of
hearing has been provided to the petitioner and no direction for
closing of the liquor shop is being given to the petitioner. An
affidavit has also been submitted by the petitioner that he will run
the liquor shop at a non-objectionable place. The objections which
have been raised by the public at large have to be taken
consideration by the District Collector to make it at a non-
objectionable place. The Assistant Commissioner of Excise has
visited the shop in question and has given his report on 05.04.2022
immediately within four days of the opening of the liquor shop.
The committee which has been formulated for relocation of the
shop in question has to be consulted prior to shifting of the shop
and the District Magistrate has to take an opinion with respect to
the new place where the shop is proposed to be shifted by a license
holder. Thus, no illegality appears to have been committed by the
District Collector, who is the competent authority to pass such an
order for shifting of the liquor shop owing to public agitation. In
such circumstances, the order impugned just and proper and does
not call for any interference in the present writ petition.
27. The petition sans merits and is hereby dismissed.
(Vishal Mishra)
Judge
AM/SJ.
Digitally signed by ANINDYA SUNDAR MUKHOPADHYAY
Date: 2022.04.21 15:36:59 +05'30'
