Hari Swarup, J. - (1.) THIS petition has been filed challenging a rule framed by the Excise Commissioner in purported exercise of his power under Section 41(e)(v) of the U.P. Excise Act, 1910 (hereinafter referred to as the Act). The rule provides for the closure of the shop on every Tuesday and some other days. The petition is confined only to that part of the rule which deals with the closure of the shop on Tuesdays. The Petitioners have obtained licence for tapping and sale of Tari and contend that the rule requiring the closure of shop on Tuesday as well as attachment of the condition in respect thereof in the licence are void.
(2.) LEARNED Counsel for the Petitioner has contended that this power exercised by the Commissioner is beyond the rule -making power conferred on him by Section 41(e)(v) of the Act as Tuesday in every week cannot be regarded as a special occasion within the meaning of that Section. It is contended that if the shop remains closed on Tuesday it will not be possible for the Petitioners to sell Tari collected on Mondays before ft gets spoiled. It is also contended that if Tari is not allowed to be tapped and kept in the shop on Tuesday, the trees themselves will get dried up. According to the Petitioners they cannot keep the Tari tapped on Tuesday anywhere if the shop is to remain closed. The contention is that the rule about closure is for these reasons an unreasonable restriction placed by the Commissioner on the Petitioners' right to sell Tari. On behalf of the Respondents the rule is said to be justifiable on the ground that it is covered by the rule -making power of the Commissioner under Section 41(e)(v) of the Act. It is also denied that either the Tari tapped on Monday becomes unfit for consumption because of being not sold on Tuesday, or that trees get dried because of non -tapping. The contention of the learned Standing Counsel is that the Tari collected on Monday can be kept preserved till Wednesday and that there is no prohibition to the tapping of Tari on Tuesday or even to the opening of the shop on Tuesday for keeping the stock which is collected on Tuesday or collected on Monday and brought on Tuesday. The Petitioner had filed a representation before the Commissioner in October 1974 but that was rejected by an order dated 12 -2 -1975, and the ground given for closure of shop on Tuesday was that this was done in view of the policy of prohibition. In the order it was further said that to further the policy of prohibition it was necessary that at least once in a week intoxicating liquor should not be sold. This plea again has been reiterated by the learned Counsel for the Respondents.
(3.) SECTION 40 of the Act gives power to the State Government to make rules. It runs as under: Section 40(1) - The State Government may make rules for the purpose of carrying out the provisions of this Act or other law for the time being in force relating excise revenue. (2) In particular and without prejudice to the generality of the foregoing provision, the State Government may make rules - (g) for the prohibition of the sale of any intoxicant to any person or class of persons. (1) for the prevention of drunkenness, gambling or disorderly conduct in or near any licensed premises, and the meeting or remaining of persons of bad character in such premises. Section 41 defines the power of the Excise Commissioner to make rules. The relevant portion of Section 41 runs as under: The Excise Commissioner, subject to the previous sanction of the State Government may make rules: .... .... (e) prescribing the restrictions under and the conditions on which any licence, permit or pass may be granted including provision for the following matters: (i).... (ii).... (iii).... (iv).... (v) the fixing of the days and hours during which any licensed premises may or may not be kept open, and the closure of such permises on special occasions. It is thus clear that Section 40 confers on the State Government a general rule making power for the purpose of carrying out the provisions of the Act, and Section 41 confers only specific powers on the Excise Commissioner. The powers of the Excise Commissioner to make rules are circumscribed by the provisions of Section 41 and he can only prescribe restriction thereunder and the condition on which any licence may be granted.;