BIRENDRA SINGH Vs. EXCISE COMMISSIONER
HIGH COURT OF MADHYA PRADESH
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Chaturvedi, J. -
(1.) THIS is an application under Article 226 of the Constitution for a writ in the nature of Mandamus for directing the Excise Commissioner of Madhya Bharat State not to prohibit, or debar the Petitioner from taking part or from bidding for the excise shops of Muskarat (Intoxicants) and opium auctioned by the Excise Department and for a declaration that the action of the Excise Commissioner in debarring the applicant orally from bidding at the auction of excise shops at Gwalior and Indore on 19 -1 -1954 and 17 -2 -1954, is unconstitutional and illegal.
(2.) THE Petitioner has been a license -holder of Excise shops in Gwalior State and continued as such in Madhya Bharat also. It is stated that during the last three years die Petitioner was the biggest contractor and the license -holder of the State, holding licenses of all the shops of excise for Intoxicants and Opium at Gwalior, Indore, Ujjain and other towns.
The Petitioner was to stand as a bidder in the auction of the excise shops at Gwalior and Indore on 19 -1 -1954 and 17 -2 -1954. It is alleged that the Petitioner was debarred orally from bidding in the auction of those shops. He was not given an order in writing nor a copy of the order passed was given to him. The order was of course communicated orally on 19 -1 -1954 when the auction was to take place at Gwalior. The Petitioner submitted an application on 15 -5 -54 and again one on 29 -7 -54 through registered post and specifically requested for a copy of the order so that he may seek redress in a Court of law. But the Excise Commissioner neither supplied him any copy of the order nor informed the reasons thereof.
The Petitioner urges that Rule 26 of the Rules for Distribution of Shops and Grant of Licenses Samvat 2009 provides clearly that in any case in which a District Excise Officer debars from bidding any person for one or more years the reasons thereof would be clearly stated in the order.
The Petitioner also stated that he has been debarred from bidding of the licenses in Excise shops without giving him any chance of explanation and that it is against all canons of natural justice and also infringed his fundamental rights. It was added that it is a violation of - the rights conferred under Article 19(g) of the Constitution. He urged that as there was no other efficacious and appropriate remedy he has come to this Court under Article 226 of the Constitution.
In reply an affidavit sworn to non -applicant 1 the Excise Commissioner, was filed wherein it is admitted that the Petitioner had been a license -holder in the former Gwalior State and also in Madhya Bharat, that he has been the highest bidder for Gwalior Excise shops from 1951 -53 and was also the highest bidder for Indore shops in 1953 -54.
But it is denied that the Petitioner performed his duties as a licencee honestly and faithfully or that his record of business remained clean, meritorious and honest. It was stated that there has been serious complaints about his illegal activities and his record of business in Madhya Bharat as well as with the Government of India is not free from taint and tarnish.
It is admitted that the Petitioner was forbidden, to participate in the bidding both at Gwalior and at Indore and the order was communicated to him by the Excise Commissioner himself on the spot. The learned Excise Commissioner further admitted that the copy of the order was not given to the Petitioner but in the affidavit no reason is mentioned for not giving a copy of the order.
The only thing stated is that the Petitioner was duly informed by a letter No. 27176 dated 27 -11 -54 to the effect that on the basis of information received from the Narcoties Commissioner to the Government of India (regarding his illegal activities) he had been debarred from participation in the auction of excise shops. This information being of a secret and confidential nature, it was not possible to furnish details to the Petitioner.
It was further stated that the fact that the Petitioner was the highest bidder or previously allowed to participate in the auctions cannot by itself be a reason for permitting the Petitioner in future auctions also, if the authorities concerned are satisfied that his activities in the business of intoxicants were not proper. It was denied that the Petitioner or that any person has any unfettered right or any fundamental right to carry on trade in respect of articles covered and dealt with by the Excise Act and it was also denied that there was any violation of Article 19(1)(g) of the Constitution.
It was added that the Petitioner had an alternative remedy both under the Excise law and Rules and therefore it was contended that the Petitioner being not entitled to the issue of a Writ the petition ought to be dismissed.
(3.) NOW it is well settled by a decision of the Supreme Court that there is no question of the violation of Article 19(1)(g) and Article 19(6) of the Constitution as there is no inherent or fundamental right in a citizen to sell intoxicating liquors. It is not a privilege of a citizen. As it is a business attended, with danger to the community it can be permitted only under such conditions as will limit to the utmost it evils.
The manner and extent of regulation rest in the discretion of the governing authority. Then, mere irregularity committed in conducting any auction sale held under the provisions of the Excise Act cannot be said to have abridged or infringed the Petitioner's fundamental rights. Cooverjee B. Bharueha v. Excise Conner Ajmer : AIR 1954 S.C. 220(A).;
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