C.S.P. Singh, J. - (1.) The controversy which had been set at rest in this Court by the Division Bench decision in the case of Sheo Pat Rai v. State of U.P., 1972 ALJ 1000 , has recurred with greater fervour. The dispute relates to auction of foreign liquor shops by the State Government. The Petitioners held licence in Form F.L. 5 for retail sale of foreign liquor and by this petition originally challenged the U.P. Excise (Amendment)(Re-enactment and Validation) Ordinance, 1976 (U.P. Ordinance No. 15 of 1976) as also the U.P. Excise (First Amendment) Rules 1976. Prayer for mandamus has been made for a direction that the Respondents should not auction the right of retail and wholesale of foreign liquor. After the petition was filed, the Ordinance was replaced by the U.P. Excise (Amendment)(Re-enactment and Validation) Act, 1976, and we permitted the Petitioners to challenge this Act which has now replaced the Ordinance. The controversy raised in this petition, arises thus. In 1972, the State promulgated an Ordinance which was published in U.P. Gazette Extraordinary on 30-6-1972, and the Excise Commissioner issued three notifications amending certain rules framed under the Excise Act, and therein certain Rules framed under the Excise Act, and thereafter proceeded to sell by auction the right of retail and wholesale of foreign liquor. That attempt failed, as a Division Bench of this Court held that the relevant provisions of the Ordinance entitling the State to sell by auction were ultra vires. An appeal has been filed against that judgment but still is pending in the Supreme Court. That has now been revived by the promulgation of Act No. 5 of 1976, being the U.P. Excise (Amendment)(Re-enactment and Validation Act), 1976. Justification for this action is based on Sections 24-A and 24-B which have been introduced in the Excise Act by the Amendment Act, and may now be conveniently quoted here: 24-A (1) Subject to the provisions of Section 31, the Excise Commissioner may grant to any person a licence or licences for the exclusive or other privilege: (a) of manufacturing or of supplying by wholesale, or of both or (b) of manufacturing or of supplying by wholesale, or of both and selling or retail; or (c) of selling by wholesale (to wholesale or retail vendors) or (d) of selling by retail at shops (for consumption 'off' the premises only); and foreign liquor in any locality. (2) The grant of licence or licences under Clause (d) of Sub-section (1) in relation to any locality shall be without prejudice to the grant of licences for the retail sale of foreign liquor in the same locality in hotels and restaurants for consumption in their premises. (3) Where more licences than one are proposed to be granted under Clause (d) of Sub-section (i) in relation to any locality for the same period, advance intimation of the proposal shall be given to the prospective Applicants for every such licence. (4) The provisions of Section 25, and proviso to Section 39 shall apply in relation to grant of a licence for an exclusive or other privilege under this section as they apply in respect of the grant of a licence for an exclusive privilege under Section 24. 24-B. For the removal of doubts, it is hereby declared- (a) that the State Government has an exclusive right or privilege of manufacture and sale of country liquor and foreign liquor; (b) that the amount described as licence fee in Clause (c) of Section 41 is in its essence the rental or consideration for the grant of such right or privilege by the State Government ; (c) that the Excise Commissioner as the head of the Excise Department of the State shall be deemed, while determining or realising such fee, to act for and on behalf of the State Government." The preamble to this Act runs thus: "Whereas it is expedient in the public interest to provide for the adoption of the system of grant of licence prevailing in respect of country liquor with necessary modifications for the grant of licences in respect of foreign liquor: And whereas the Uttar Pradesh Excise (Amendment) Ordinance, 1972 (U.P. Ordinance No. 13 of 1972), which was replaced by the Uttar Pradesh Excise (Amendment) Act, 1972 (U.P. Act No. 30 of 1972), was adjudicated by the High Court of Judicature at Allahabad in its judgment in Sheo Pat Rai and others v. State of Uttar Pradesh and Ors. reported in 1972 ALJ 1000 , to be beyond the competency of the State Legislature ; And whereas subsequently, in the case Nashirwar and Ors. v. State of Madhya Pradesh, AIR, 1975 SC 360 , the Supreme Court has upheld the power of the State Legislature to make provision for holding of public auction for the grant of right or privilege to possess and sell foreign liquor; And whereas it has become necessary to repeal and re-enact the Uttar Pradesh Excise (Amendment) Act, 1972 (U.P. Act No. 30 of 1972); Now therefore, it is hereby enacted in the twenty seventh year of the Republic of India, as follows:"
(2.) The Amending Act, as is apparent has been promulgated in view of the decision of the Supreme Court in Nashirwar v. State of Madhya Pradesh, AIR 1975 SC 360 . We are as such in the present petition again concerned with the validity of provisions which are somewhat similar to the provisions of the Ordinance of 1972 which was struck down in Sheo Pat Rai's case.
(3.) The two Petitioners in this petition are also Petitioners in Writ Petition No. 1127 of 1976 and had to file the present petition in these circumstances. A very large number of Petitioners hailing from almost all the districts in the State filed about 35 petitions challenging the auction system no sooner than it was introduced. These petitions were listed for hearing on 30-3-1976. On the 30th March 1976, counsel for the Petitioners made statements in the court, expressing the helplessness to proceed with the arguments as some of the office bearers of U.P. Foreign Liquor Merchants Association, who were Petitioners in some of the petitions had overnight been detained under the Maintenance of Internal Security Act, and as such could not come for filing rejoinder affidavits. Others, it was stated had also become scarce. In these circumstances adjournment was prayed for and granted. Subsequently, on statement made by counsel, almost all the petitions were dismissed as withdrawn. The remaining were dismissed for want of prosecution, as neither counsel nor party appeared to press the petition. One of the petitions dismissed on such a statement was that of P.L. Kapoor v. State of U.P. W.P. No. 1127 of 1976 in which the two Petitioners in W.P. No. 1446 of 1976 were parties. Subsequently, on application made, that the two Petitioners had not given any instruction to their counsel to withdraw the petition on their behalf, the order dismissing W. P. No. 1127 of 1976, as respects the Petitioners was rescinded. The present petition i.e. W.P. No. 1446 of 1976 was filed as a matter of abundant caution. This judgment will, therefore, govern Writ Petition No. 1127 of 1976 and Writ Petition No. 1446 of 1976 i.e. the present petition.;