B.S. Dhillon, J. - (1.) THE Petitioner is carrying on business of foreign liquor in the State of Punjab for the last several years. He had a licence described L -2 under the Punjab Liquor Licence Rules for Mukerian and Talwara. The Petitioner applied for the renewal of both the licences for the year 1979 -80 on 3rd November, 1978 in the prescribed form. Respondent No. 2, Collector -cum -Deputy Excise and Taxation Commissioner, Jullundur Division, Jullundur, is the authority who has the power to renew such a licence. The said Respondent, - -vide his order dated 29th March, 1979, renewed both the licences of the Petitioner and in consequence thereof, the Petitioner was asked to deposit a sum of Rs. 5,000 as a fixed licence fee for each vend and to furnish bank guarantee for Rs. 10,000 for the year 1979 -80. The Petitioner deposited a sum of Rs. 5,000 on 31st March, 1979, qua the vend at Talwara. However, by a Gazette notification dated the 30th March, 1979, the Excise and Taxation Commissioner, exercising the powers of the Financial Commissioner, added proviso to Rule 4 of the Punjab Liquor Licence Rules, 1956, in the following terms: Provided that a person who has been granted a licence in form L -2 anywhere in the State of Punjab shall not be granted another Licence in form L -2.
(2.) IN view of this proviso, the Collector -cum -Deputy Excise and Taxation Commissioner reviewed his order renewing the licence and issued order dated 31st March, 1979, copy of which is Annexure 'P -3' with the writ petition, holding that in view of the amendment in the Punjab Liquor Licence Rules, the renewal of L -2 Licence of the Petitioner for the year 1979 -80 at Talwara is withdrawn. This order of Respondent No. 2 is the subject -matter of attack in this petition. The Petitioner filed an appeal before the Excise and Taxation Commissioner which was dismissed by him, - -vide order dated 16th May, 1979. The order under appeal is also sought to be impugned in this writ petition. Shri Munjral, the learned Counsel for the Petitioner, has vehemently contended that the Excise and Taxation Commissioner, while exercising the powers of the Financial Commissioner, has no jurisdiction to frame the rule by which he added proviso to Rule 4 as the powers for framing the rules, as to which class of persons is entitled to obtain the licences, vests with the State Government under the provisions of Section 58 of the Punjab Excise Act, 1914 (hereinafter referred to as the Act). The learned Counsel contends that the plea taken in the return that the said rule could be framed by the Financial Commissioner in view of the powers vested in him under Section 59, Clauses (d) and (f), cannot stand the scrutiny. With a view to examine this contention, the provisions of Clause (e) of Section 58 of the Act, and Clauses (d) and (f) of Section 59 of the Act, are reproduced as under: 58. Powers of State Government to make rules: (1) The State Government may, by notification make rules for the purpose of carrying out of the provisions of this Act or any other law for the time being in force relating to excise revenue. (2) In particular, and without prejudice to the generality of the foregoing provisions, the State Government may make rules, - - * * * * * * (e) regulating the periods and localities for which, and the persons, or classes of persons, to whom, licenses, permits and passes for the vend by wholesale or by retail of any intoxicant may be granted and regulating the number of such licenses which may be granted in any local area. * * * * * * 59. Powers of Financial Commissioner to make rules: The Financial Commissioner may, by notification, make rules - * * * * * * (d) prescribing the scale of fees or the manner of fixing the fees payable in respect of any license, permit, or pass or in respect of the storing of any intoxicant. * * * * * * (f) prescribing the authority by,, the restrictions under, and the conditions on, which any license, permit or pass may be granted including provision for the following matters: (i) the prohibition of the admixtures with any intoxicant of any substance deemed to be noxious or objectionable; (ii) the regulation or prohibition of the reduction of liquor by a licensed manufacturer or licensed vendor from a higher to a lower strength; (iii) the fixing of the strength, or price below which any intoxicant shall not be sold, supplied or possessed; (iv) the prohibition of sale of any intoxicant except for cash; (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) the specification of the nature of the premises in which any intoxicant may be sold; and the notice to be exposed at such premises; (vii) the form of the accounts to be maintained and the returns to be submitted by license -holders ; and (viii) the prohibition or regulation of the transfer of licenses. * * * * *
(3.) THE bare reading of the provisions of Clause (e) of Section 58(2) of the Act would suggest that the State Government has been given powers to frame Rules for regulating the periods and localities for which, and the persons, or classes of persons, to whom, licenses, permits and passes for the vend by wholesale or by retail of any intoxicant may be granted and regulating the number of such licenses which may be granted in any local area. The power to frame rules as to which class of persons or classes of persons are debarred from taking the licence or are qualified to take the licence, vests with the State Government. The provisions of Section 59(a) of the Act vest powers in the Financial Commissioner to make rules for regulating the manufacture, supply, storage or sale of any intoxicant. As regards Clause (d) of this section, the said provisions give power to the Financial Commissioner for prescribing the scale of fees or the manner of fixing the fees payable in respect of any license, permit, or pass or in respect of the storing of any intoxicant. This power hardly touches a person or class of persons who are debarred from taking licence. As regards Clause (f) of this section, it relates to the prescribing the authority by, the restrictions under, and the conditions on, which any license, permit or pass may be granted. The refusal to grant a licence by no stretch of imagination can be termed as condition of licence. For instance, in the present case, the licence held by the Petitioner at Mukerian had been renewed and admittedly no condition has been added to the conditions of that licence whereas the licence held by him regarding Talwara, has not been renewed. Framing a rule debarring person who holds one licence in L -2 anywhere in the State of Punjab, from having another L -2 licence, cannot be termed as a condition of licence. Shri Rampal, the learned Counsel appearing for the Respondents, has not drawn my attention to any other provision in Section 59 of the Act to justify the source of power for framing the rule which is under attack.;