G. C. Mathur, J. - (1.) (On difference of opinion between the Judges constituting the Division Bench before the Special Appeal came for hearing): Consequent upon a difference of opinion between the learned Judges constituting the Bench hearing the Special Appeal and the writ petitions the following three questions have been referred to me for opinion :- 1. What is the true interpretation and scope of S. 41 (e) (v) of the U. P. Excise Act?
(2.) WHETHER the Excise Commissioner can make R. 13-B in exercise of his powers under the U. P. Excise Act? Whether the closure of the licensed premises on Tuesdays as a condition in the licence of the petitioner became a binding term of the contract and the licensee could not be allowed to avoid it through a petition under Art. 226 of the Constitution? 2. The U. P. Excise Act, 1910, makes provisions relating to the import, export, transport, manufacture, sale and possession of intoxicating liquors and intoxicating drugs. S. 3 of the Act defines in sub-ss. (11) and (12) "liquor" and intoxicating drugs. Sub-s. (13) defines "intoxicant" to mean any liquor or intoxicating drug as defined in the Act. S. 21 provides that no intoxicants shall be sold without a licence from the Collector. S. 31 deals with the form and condition of licences. S. 10 confers powers on the State Government to make rules for the purpose of carrying out the provisions of the Act or other law for the time being in force relating to excise revenue. S. 41 empowers the Excise Commissioner to make rules with the previous sanction of the State Government. The relevant part of this Section reads as follows: "41. The Excise Commissioner, subject to the previous sanction of the State Government may make rules- (a) Regulating the manufacture, supply, storage or sale of intoxicants including - .................. (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) . . . . . . . . . . . . . . . . . (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 premises on special occasions. (vi) . . . . . . . . . . . . . . . . . . 3. Under the Act as it stood before its amendment in 1923, the power to make rules under S. 41 was conferred on the Chief Revenue Authority. Under this power the Board of Revenue framed the U. P. Excise Rules, 1910. By a notification dated January 2, 1971, the Excise Commissioner in exercise of the power under S. 41 (e) (v) of the Act made the U. P. Excise (Amendment) Rules, 1970. These Amendment Rules introduced the following Rules 13-A and 13-B:- "13-A. Every shop licensed for the sale of- 1. Country spirit. 2. Tari. 3. Foreign liquor for consumption 'on' and 'off' the premises. shall be kept closed on the day following the burning of Holi and on the principal Diwali day. Exception - This condition does not apply to railway refreshment rooms, dining cars and such hotels and restaurants which are licensed for the sale of foreign liquor to foreign tourists. "13-B. All excise shops including foreign liquor, country spirit, hemp drugs, opium, tari and outstill shops shall remain closed on Independence day (August 15), Mahatma Gandhi Birthday (Oct. 2) and on the day of Mahatma Gandhi's tragic death (Jan. 30) every year and also on all Tuesdays: Provided that the Excise Commissioner may in consultation with the Collector of the District concerned waive the condition of keeping on excise shop closed on Tuesday for such specified period as he may think fit, in the case of hotels possessing a licence in Form F. L. 6 for the sale of foreign liquor for the benefit of such foreign tourists as may hold a valid permit under the All India Liquor permit Scheme of the Government of India." As a consequence of the making of R. 13-B a condition was added in licences for the retail sale of liquor providing that all licensed shops shall remain closed on the following days every year:- (i) Independence day (August 15), (ii) Mahatma Gandhi's birthday (October 2), (iii) Mahatma Gandhi's death day January 30), (iv) On each Tuesday. All licences hereafter for the retail sale of liquor were granted subject to this condition. A large number of writ petitions were filed in this Court challenging the validity of Rule 13-B in respect of closing of the excise shops on all Tuesdays. A learned Single Judge allowed Writ Petition No. 441 of 1975 and special Appeal No. 173 of 1975 was filed by the state Government against that judgment. This special Appeal together with the writ petitions came up for hearing before a Division Bench. One of the learned Judges was for dismissing the Special Appeal and allowing the writ petitions, while the other was for allowing the appeal and dismissing the writ petitions. Hence this reference.
(3.) THE first question referred relates to the true interpretation and scope of S. 41 (e) (v) of the Act. THE real question is whether this provision permits the Excise Commissioner to make a rule for the closure of licensed premises on every Tuesday. Sub-cl. (v) of clause (e) of S. 41 is in two parts: THE first part empowers the Excise Commissioner to make rules, fixing the days and hours during which any licensed premises may or may not be kept open. THE second part empowers him to make rules for the closure of licensed premises on special occasions. It was contended by learned counsel for the licensees that the two parts provided for different contingencies and, closure being specifically provided for in the second part, no rule for closure can be made under the first part. It was urged that the words 'may not be kept open' do not mean 'closure'. THEre is really no difference between closure and not keeping open. Whether the rule directs a licensed premises to be closed or whether it directs the licensed premises not to be kept open during a particular period or on a particular day means the same thing. It is, therefore, not correct to say that, under the first part, no rule can be made for the closing of licensed shops. Admittedly, every Tuesday is not a special occasion and a rule for the closure of licensed premises on every Tuesday cannot be made under the second part of sub-cl. (v). The question is whether such a rule can be made under the first part of sub-cl. (v). This part empowers the making of a rule, "fixing days and hours" during which a licensed premises may or may not be kept open. The normal meaning of the expression 'fixing days and hours' is fixing days as well as hours. That is the normal result of using the word 'and' between days and hours. Read thus, the first part empowers the making of rules fixing the days as well as the hours during which licensed premises may or may not be kept open. But it is contended for the licensees that the words fixing days and hours' really mean 'fixing hours of the day'. There is no warrant for changing the language of the sub-clause in this manner. If the Legislature intended to empower the Excise Commissioner only to fix the hours of the day during which the licensed premises may or may not be kept open, it could have used the language suggested by the licensees. If this were the intention, the word 'days and' in sub-cl. (v) were unnecessary and the words 'fixing hours during which licensed premises may or may not be kept open' would have been sufficient to achieve the object. The language of the first part of sub-cl. (v) is unambiguous and clearly empowers the Excise Commissioner to make rules, fixing the days as well as the hours during which the licensed premises may be kept open or kept closed.;