Modi, J. - (1.) THESE are connected writ applications under Article 226 of the Constitution of India presented by certain Jagirdars holding their Jagirs in what is now the Udaipur Division, but what was formerly the State of Udaipur, praying for a writ of Mandamus or any other appropriate writ or direction against the Rajasthan State with the object of preserving their alleged rights to manufacture liquor and to the receipt of certain cash grants in the same connection, alleged to have been enjoyed by them hitherto, but of which they have been deprived since 1952 A.D.
(2.) THE case of all the petitioners with the exception of the Jagirdars of Jawas and Sarwan (Writ application No. 145 of 1952 and No. 41 of 1953) is one and the same, and even the case of the two Jagirdars above-named presents the same features save that they claim the setting up of their Thikanas before the Ruling House of Mewar was founded in Udaipur, and, therefore, they claim to possess the right not merely to manufacture liquor for their personal consumption like other petitioners but also for purposes of sale. Leaving aside this differentiating feature for the moment with, which we propose to deal at the proper place, the case of all the petitioners is that they had been from time immemorial in enjoyment of the right to manufacture liquor and also to sell it within their Jagirs until in 1931 A.D. the Government of the former state of Udaipur, as it then was, took over the excise administration in the entire territory of that State and partially acquired the excise rights of the petitioners and granted to them in lieu thereof a certain amount of cash compensation and further allowed them the right to distil a certain quantity of liquor for their personal consumption, the cash allowances and the quantities of liquor to be privately distilled varying between the various Thikanas. THE petitioners claim that the said obligations of the covenanting State of Udaipur devolved upon the respondent State of Rajasthan, by virtue of the provisions of Article 6 of the Covenant entered into at the time of the integration of the States which now form the Rajasthan State and also by virtue of Article 295(2) of the Constitution. THE contention of the petitioners is that their rights to distil liquor and as to the monetary compensation were rights of property and as such stood guaranteed to them as a fundamental right under Article 31 of the Constitution and that these were enjoyed by them even after the integrated State of Rajasthan had been formed up to 18-7-1952. On the date last-named, however, the Rajasthan State terminated the arrangements above referred to by two notifications which were both issued as No. P. 41(1)S.R../51, and one of which purported to have been issued under Section 71(2), Rajasthan Excise Act, 1950 (Act No. 2 of 1950), and the other, it is contended, was issued under no law at all. It is thus claimed that the action taken by the State violates Article 31 of the Constitution inasmuch as the petitioners have been deprived of their rights of property without the authority of law and further without any compensation having been granted to them, and, therefore, such action is void and illegal and inoperative. THE petitioners pray, therefore, that the respondent 'State of Rajasthan be enjoined by a writ of mandamus to forbear from giving effect to the notifications referred to above and to others to the pre-existing arrangements as regards the distillation of liquor and the payment of cash compensation to the petitioners. In reply it is admitted on behalf of the respondent State of Rajasthan that the petitioners were in receipt of certain cash allowances from the former State of Udaipur and it is further admitted that they were also allowed to distil a certain quantity of liquor for their personal consumption. It is contended, however, that the then State of Udaipur had done so merely to achieve the smooth introduction of a uniform excise administration in the State and to enlist the cooperation of the important Jagirdars (who were called Umraos in that State) towards that end. It is thus contended that what was enjoyed by the Jagirdars was a sort of a political grant made for political purposes to eliminate opposition to the introduction of the system of State' control over the manufacture and distribution of liquor throughout the territory of the State; but such special treatment extended to the Jagirdars did not and could not amount to the creation of any right in their favour, and in any event, the supposed resultant right was not a right of property. It was further disputed that in no case the obligations which, if at all, rested on the former Udaipur State were in law available against the present State of Rajasthan owing to a change in the sovereignty and it is, therefore, claimed that the notifications issued by the respondent State on 18-7-1952, withdrawing the concession in question were valid and legal as being within the competence of the State and also in accordance with the Rajasthan Excise Act (No. II of 1950). It was further contended that the continuance of distinctions in the matter of manufacture of liquor in favour of certain Jagirdars after the Constitution came into force would itself be un-constitutional being in conflict with Article 14 of the Constitution. Finally, it was contended that the petitioners had an alternative remedy by way of a suit which was equally beneficial and efficacious and in view of the important issues of fact and mixed fact and law involved in the matter, this was not a fit and proper case in which this Court should interfere in the exercise of its extraordinary jurisdiction. We may state at the outset that all the cases which are before us relate to certain Jagirdars of the Udaipur Division, but as there are similar cases pertaining to the Jaipur Division pending before the Jaipur Bench of this Court and as common questions were involved, we permitted Mr. H. P. Gupta, a learned advocate from Jaipur to appear as 'amicus curiae' at the hearing of these petitions. We think it proper to reproduce the impeached Notifications which were issued .by the Rajasthan State and published in the official Gazette No. 76 in Vol. IV, dated 26-7-1952: SEPARATE REVENUE DEPARTMENT. ORDER. Jaipur July 18, 1952. No. F.41 (1) S..R./51. The Government has reviewed the commitments made by the Covenanting. States of Rajasthan in the form of cash grants to Jagirdars and to other persons for certain excise concessions or privileges and is satisfied that, in the changed circumstances, these are against public interest. It has, therefore, been decided to terminate these arrangements and any compensation or cash grants payable under the old commitments will cease to be payable with effect from the date of this Order". The other Order which also bears the same number and the same date reads as follows: "Jaipur July 18, 1952. No. P. (41) (1) S.R./51. In exercise of the powers conferred by Sub-section (2) of Section 71, Rajasthan Excise Act 1950 read with Section 21, General Clauses Act 1897 of the Central Legislature, the Government of Rajasthan is pleased to order that all permissions, exemptions and concessions granted in respect of manufacture or distribution of liquor or other excisable articles or in respect of any distillery, brewery, potstill or warehouse under the laws of the former Jodhpur and Bikaner States and other covenanting States or under any rule made thereunder, shall be cancelled with immediate effect. By Order of His Highness the Rajpramukh. Sd/. Secretary to the Government." As regards the first order, it was conceded on behalf of the State by the learned Advocate Genera] that it was not issued under the authority of any law. It was claimed, however, that the cash grants made by the former Government of Udaipur were not made under any law as such but by an executive order, and it was, therefore, open, to the Rajasthan State to discontinue and terminate such grants also by an executive order. 'The second Notification withdrew permissions, exemptions or concessions with respect to the manufacture or distribution of liquor granted under certain-enactments of the Covenanting States clearly appears to have been issued under the authority of a statute viz., The Rajasthan Excise Act (No. II of 1950),' which is hereinafter referred to as the Rajasthan Act. It is common ground, however, that so far as the petitioners' cases are concerned, there was no law under which such concessions or exemptions had been granted. The authority behind the said exemption, it is claimed, was an executive order of His Highness the Maharana of Udaipur. Be that as it may, it is obvious that the second notification also did not and could not apply in terms to any of the Udaipur cases and that notification, therefore, clearly could not have any operation to stand in the way of the petitioners' rights, if any, pertaining to the private distillation of liquor. But it is equally clear to us that the matter does not end there. The Kajasthan Act had come into force as early as 20-6-1950. That Act was a prohibitory or a regulative Act as regards the manufacture of liquor and other excisable articles, and, therefore, there can be no question, in our opinion, that the alleged right of the petitioners was and could not but be adversely affected by this Act, apart altogether from the notification above referred to. The relevant portion of Section 16 of the Rajas-than Act which governs the matter reads as follows: "1. (a) No excisable article shall be manufactured. (b), (c), (d), (e). (f) (g) no person shall use, keep or have in his possession any materials, still, utensil, implement, instrument or apparatus whatsoever for the purposes of manufacturing any excisable article, except under the authority and subject to the terms and conditions of licence granted in that behalf by the Excise Commissioner. 2. No distillery, brewery or pot-still shall be constructed or worked except under the authority and subject to the terms and conditions of a licence granted in that behalf by the Excise Commissioner". The language of this section clearly prohibits the private distillation of liquor except in accordance with the terms and conditions of a licence granted under the Act. Mr. Trivedi, learned counsel for the petitioners contended, to start with, that the Rajas-than Act did not come into operation at all owing to the defective manner in which it had been brought into force. The argument was that whereas it was enacted in the Act itself that it shall come into force with effect from such date as the Government may -by notification in the Rajasthan Gazette appoint for the purpose, eventually the State instead of fixing a definite date for its enforcement which it should have done, issued a further notification No. P.49(1)S.R./50 dated 20-6-1950, saying that the Act would come into force with effect from the date of the publication of the said notification in the Gazette and that this method of enforcement of the Act was irregular. It is admitted that the last notification was actually published in the State Gazette dated 1-7-1950, but it is again contended that that notification was stated to have been issued under sub-section 13 of Section 1 of the Rajasthan Act which sub-section however did not exist at all. We may say at once that we see no force in these contentions. We are completely unable to agree that the Rajasthan Act failed to have effect or was prevented from' coming into force merely because the State instead of itself fixing a definite date for its enforcement- specified such date with reference to a future point of time viz., the publication of the notification in the Gazette which was in fact made Mr. Trivedi was unable to cite any authority in support of his contention. As regards the effect -- notification having been issued under a non-existent section of the Act, we have no doubt that the figure (13) was only a printing error for 3 (i.e., sub-section 3 of Section 1) and that such an error could not possibly rob the notification of its due effect and force. Learned counsel for the petitioners next contended that in so far as the said Act deprived the petitioners of their right to continue to distil liquor for their private or domestic consumption, and of their cash grants it infringed a right of property of the petitioners and, therefore, fell within the mischief of Article 31 of the Constitution and, was therefore void and inoperative. Thus, for instance, taking the case of one of the petitioners namely Rao Manohar Singhji of Bedla, it was submitted before us that the petitioner was deprived of his right to manufacture 100 maunds of liquor which was equal to 4000 bottles and that, the price thereof at Government rate came to Rs. 12,000/- that the cost of manufacture of the said, quantity worked out to Rs. 2,000/only and thus it was contended that the petitioner was put to a loss of income amounting to Rs. 10,000/-on this account alone. It was further pointed out that to this must, be added the amount of the annual cash compensation namely Rs. 4,9107- granted by the former State of Udaipur; the total loss of income was thus stated to amount to Rs. 14,9107- in this case. We consider it unnecessary to give similar-figures in the case of the other petitioners. The principal question for determination., before us, therefore, is what is precisely the nature of the so-called right claimed by the petitioners in the cases before us. This question, in our opinion, requires to be considered separately; first with reference to the alleged right to manufacture liquor and secondly to the cash allowances withdrawn by the State and sought to be preserved by the petitioners. Historically speaking, however, it seems to us that both things flowed from a common origin. The former States which now constitute the integrated State of Rajasthan, it cannot be gainsaid, were very largely dominated by feudal influence particularly in the times which are relevant for the purpose of our present enquiry. The authority of the State in the political and geographical-conditions which prevailed then, was naturally nebulous to a degree and was effectively exercisable with reference to activities which were necessarily limited in scope and character. The feudal lords who in many cases represented the younger branches of the ruling family exercised overwhelming influence and power with the authorities that were and in the country at large, and enjoyed considerable liberty of action and did not fail, to take advantage of the situation as it existed, and raised such levies from the people living under their immediate protection as commended themselves to their sweet will and pleasure. The central authority was in no situation to counteract such activities. Gradually, however, the State administration became more steady and erect and as and when it grew in stature and authority, it directed its attention to the taking over of the control of activities which properly fell within the legitimate functions of the State. But it is only to be expected that in effecting such a change over, the administration had to pay a price in the very nature of things and this process, in our opinion, more or less correctly depicts the historical background behind the so-called excise ' rights and similar other privileges which may have been granted by the State to the feudal lords in the various parts of Rajasthan. We may also point out that it is remarkable that compensation in cash or Rind was granted to only such of the Jagirdars as had the potentiality to create trouble and cause obstruction but not to others although they were equally deprived of similar perquisites. In this connection, we would invite a reference to notification No. 27496 dated 22-11-28 and another notification No, 66316 dated 25-5-1929, issued by the Mehkma Khas of the former State of Udaipur -- these are documents produced by the petitioners themselves and are marked as Nos. 9 and 10 -- by which the smaller Jagirdars were deprived of their power or authority to manufacture "and sell liquor within their Jagirs but without any compensation having been paid to them whatever.
(3.) WE now turn our attention to the document which constitutes the very foundation of the claim of the petitioners in the present case. This is marked as No. 13 by the petitioners and is dated Sawan Sudi 5, Smt. 1987, and was addressed by the Mehkma Khas of the former State of Udaipur to the Madak Prachar Sudharak Sabha which was, to all intents and purposes, the Excise Department of that State and will hereinafter be referred to as "the Sabha". WE propose to summarize the contents of this order. It provided in its introductory para that the control as to manufacture, distribution and sale of iiquor within the Jagirs of the "Umraos" (who constituted a very important and influential class of Jagirdars in Mewar) has been taken over from them and placed in the hands of the Sabha and that the new arrangements would come into force from 1-1-31, In para. 1, it was provided that in lieu of the taking over, a monetary compensation amounting to 20 per cent, over and above the excise income of the Thikana for the Smt. Year 1980 would be payable annually. It was further provided that this amount would be drawable in two half-yearly instalments from the nearest sub-treasury or the excise department whichever was nearer and would be exempt from any attachment whatsoever. In para. 2 it was provided that the Sabha would have the power to permit a Thikana to set up, at the maximum, a hundred stills annually for manufacturing liquor,' under the former's supervision, but such distillation would be exclusively for the personal or domestic consumption of the Jagirdar, each still being considered equal to one maund of liquor. It was also laid down that small presents as between Jagirdars who enjoyed the privilege of private distillation would be permissible but the Sabha would have to be informed of such presents if and when made. Paragraph 3 of the notification provided that on occasions of marriage or other ceremonies, the Jagirdars would be supplied liquor up to such quantity as the Sabha thought proper at cost price or alternatively the Sabha may permit the setting up of additional stills for distilling liquor for such occasions under its own supervision. By para. 4 it was further provided that if at any time, the income to the State from the sale of liquor within a particular Thikana might fall below 50 per cent, of the Thikana income of Smt. 1980, which, it will be remembered, was considered to be the base for the calculation of the monetary compensation, it would be open to the State to re-consider the quantum of the cash compensation payable to that Thibana. Lastly, it was laid down that if for any reason, the income of the State from the manufacture, distribution or sale should cease altogether, then the compensation and the amenities referred to above would also automatically end. It is on this notification that the present petitioners have founded their claim. It is common ground between the parties that there was no law under which the monetary compensations and the other amenities were permitted to the petitioners. To us, it is not without significance that the said notification separately provided for two kinds of things; first, a cash compensation, and secondly, the liberty of setting up of a certain number of stills for the manufacture of liquor for the domestic consumption of the Jagirdar. It is also not without significance that the cash compensation was allowed to be based on the actual income of the grantee from the manufacture and sale of liquor for a certain year which was Smt. 1980 to which another 20 per cent, was directed to be added. The other amenity viz., of private distillation was in addition to the actual income which used to be derived by the Thikana from the sale of liquor. This obviously, in our opinion, did not and could not have a money value. We have reasons to believe that the privilege of private distillation more or less rested in the pleasure of the ruler and could also be withdrawn at his pleasure for some reason or another. Having regard to one essential nature of this particular privilege and its surrounding circumstances, we are inclined to think that it was a sort of a privilege or a dignity which had been extended by the ruler to those who were his kith and kin being members of younger branches of his family or to those who had been fortunate enough to secure his patronage for some reason or another, Mr. Trivedi, learned counsel for the petitioners, strenuously urged, however, that this was an incident of the jagirdari tenure and was actually conditioned on the Rekh or scheduled income of the estate of a Jagirdar and was as such a right of property. This contention, in our opinion, is without any foundation. We may point out that no document or sanad evidencing the grant of a jagir was produced before us to show that such grant necessarily involved the grant to a Jagirdar of a right to derive the income from the manufacture or sale of liquor, whether for purposes of private consumption or of public sale. As we have already pointed out with reference to notifications of 1928 and 1929, documents marked as Nos. 9 and 10 referred to above that similar amenities were taken away from the other Jagirdars and their Jagirs were not thereby touched in any manner whatsoever. We may in this connection refer to the case of the Jagirdar of Khachariawas in the Jaipur division, which was brought to our notice and which shows that the privilege of setting up of stills was allowed to him as a special case and could also be withdrawn without at the same time affecting the jagirdar's estate as such. (Vide former Jaipur State Council Resolution No. 1 dated 9-12-1932). All these facts and circumstances, in our opinion, go to show one thing more than any other, and that is that the so-called right, whatever else it might be, is not an incident which can be considered to form part and psrcel of the Jagirdari tenure held and enjoyed by the petitioners. We are, therefore, decidedly of the opinion that so far as this branch of the petitioners' case is concerned, the so-called right of private distillation was not a right at all in any strict or legal sense of the term but a privilege enjoyed during the good pleasure of the Ruler. In this view, it is not necessary to consider in any great detail the further question whether it is a right of property. As learned counsel vehemently argued that the deprivation in this case amounted to taking possession of private property, we, think it proper to briefly dispose of this contention also. His argument at one stage was that every right was a right of property. We are unable to accede to this contention. It can be only a very loose way of saying things in modern times. A right as to security of one's own person or the right of personal liberty or the right of reputation or rights in respect of one's domestic relations are rights of great importance, but we are not prepared to accept that in modern legal parlance, they can be characterised as rights of property. Learned counsel then relied on --'Charanjit Lal v. Union of India', AIR 1951 SC 41 (A) in support of his, argument. In that case the Governor General of India first promulgated an Ordinance which was later passed as an Act by the Parliament by which special provisions were made for the State management and administration of the Sholapur Spinning and Weaving Company, and in pursuance of the provisions of the said enactment, the Central Government first delegated all its powers to the Government of Bombay and immediately thereafter the Government of Bombay removed all directors of the Company and appointed certain persons as directors of the Company. It was argued that the provisions of the Act amounted to deprivation of property of the shareholders and that the restrictions imposed on the rights of the share-holders constituted an unjustifiable interference with their rights to hold property. It was held by Mukherjea J. who delivered the leading judgment of the majority that the petitioner had not been dispossessed of the share held by him. It was further observed that his right of voting at the election of directors had been kept in abeyance so long as the statutory management continued and that to such extent his right to participate in the management of the company had been curtailed and similarly certain other rights possessed by him, such as to institute winding up proceedings had also been abridged, but all this notwithstanding such deprivation was not sufficient for the purpose of holding that the petitioner had been dispossessed of the property owned by him. Dealing with the case further, his Lordship proceeded to observe with reference to Article 19 (1) of the Constitution that certain limitations had undoubtedly been imposed upon the petitioner but that these were rights or privileges which by themselves or taken independently could not be reckoned as property within the meaning of Article 19 (1) (f) of the Constitution, even though it were accepted that they were rights or privileges which were appurtenant to or flowed from the ownership of the property. In a concurring judgment, Das J. also dealt with this question and held that the shareholders' rights to elect directors and to present a petition for the winding up of the Company and similar other rights of which they had been deprived during the pendency of the statutory management, were privileges incidental to the ownership of the share but they could not be reckoned as rights by themselves within the meaning of Articles 31 or 19 of the Constitution. It was further held that such rights were personal rights although they flowed from the ownership of the property which was a share, and could not by themselves and apart from the share be construed as property. In our opinion, this case affords no assistance whatsoever to the learned counsel for the petitioners and in fact appears to us to be an authority against him. So far as the property from which liquor may be distilled is concerned, there has been undoubtedly no taking away of it from the petitioners. It is only the purpose of distillation to which these articles may be put which has been taken away. This purpose or privilege of distillation, in our opinion, is by itself not property within the meaning of Article 31 of the Constitution. We would go further and say that even if it were conceded that such a right flowed from or was appurtenant to the holding of their Jagirs by the petitioners which, in our opinion, it is not, such a right would still be not a proprietary right but a personal right. In other words, it was a matter which pertained more to the status of the parties as Jagirdars than to their property as such. Mr. Trivedi next contended that the distillation of liquor had by itself some kind of money value, and, therefore, was a right of property, inasmuch as the petitioners would have to pay a higher price if they were required to purchase liquor from the market instead of distilling it themselves. That may undoubtedly be so, but we fail to see what objection the petitioners can have to paying the same price which other citizens are or may be called upon to pay. Judged from this standpoint, we cannot but think all that the petitioners want is nothing but a permanent exemption from the payment of the State tax on liquor which other citizens have to pay. We are emphatically of the opinion that the so-called right to distil liquor in so far as it may have any money value as claimed by the petitioners is based upon this indirect immunity from taxation and cannot be countenanced at all. The reason in our opinion is clear and unassailable, as such an immunity cannot be claimed in law and would be hit by Article 14 of the Constitution and come into conflict with the principle of equality & equal protection enshrined in that Article. We have, therefore, no hesitation in holding that in its essence, the practice of private distillation was a mere dignity or a privilege accorded to rank and nobility and was a matter more of status than of property, and that the withdrawal of any such privilege by the State cannot be properly characterized as the taking away of any right of property and does not constitute any infringement of the fundamental right guaranteed under Article 31 of the Constitution. ;