- (1.) ALL the petitioners were licensees for vending foreign liquor as retailers for Bali Tehsil for the financial year 1977-78 commencing from the 1st of April, 1977 and ending on the 31st of March, 1978 In exercise of powers conferred under sub-section (3) of section 1 of the Rajasthan Prohibition Act, 1969 (Rajasthan Act 17 of 1969) in short the Prohibition Act, the State Government by a notification dated 20th of October, 1977 extended the provisions of the Prohibition Act to the area covered by Tehsil Bali with effect from the 1st of December, 1977. By another notification of the same date it has been notified that from the 1st of October, 1977, it would not be permissible for any one to either possess liquor or to transport it or to import it. ALL the petitioners have been served with notice issued by Excise Commissioner stating therein that as the State Government is introducing prohibition in the area covered by Tehsil Bali by extending the prohibition Act from the 1st of December, 1977, the licences for sale of foreign liquor in retail are cancelled under sec. 35 of the Rajasthan Excise Act, hereinafter called the Excise Act. The petitioners, therefore, in all these nine petitions pray for writ, direction or order declaring sub sec. (3) of sec. 1 of the Prohibition Act and sec. 13 and sub-sec. (4) of sec. 19 of the Excise Act ultra vires of the Constitution of India. They further pray for quashing the notification dated 20th of October, 1977, bringing into operation the provisions of the Prohibition Act in Tehsil Bali of District Pali. The petitioners also pray for quashing the notification dated the 20th of October 1977 introducing the prohibition in Bali Tehsil from 1st of December, 1977. The petitioners further pray for quashing the notice cancelling their licences isued by the Excise Commissioner and restraining the respondents from interfering with their right of carying on trade in vending foreign liquor in retail in their respective licences which are valid upto 31st of March, 1978.
(2.) AS the common questions of fact and law are involved in all these 9 writ petitions they are, therefore, being disposed of by a common order. These cases came up for admission before me for the first time on 23rd of November, 1977 on which date I directed that let the notices go to the opposite parties to show cause why these petitions should not be admitted- In response to the show cause notices the State has opposed the admission by submitting written reply wherein it has been prayed that the writ petitions be dismissed in limini. I have heard the learned counsel for both the sides at some length. Various contentions have been put forth on behalf of the petitioners Mr. G. M. Lodha the learned counsel for the petitioners. The first contention of Mr. Lodha is that sub section (1) of section 3 of the Prohibition Act which empowers the State to specify area for extending the operation of the Prohibition Act is ultra vires as it gives unbridled power to the State Government in the matter of including and applying Prohibition Act to any area at any time without prescribing any criterion or principle. It is, therefore, urged that this provision is ultra vires of the constitution being violative of the Article 14 of the Constitution. Having heard the learned counsel for both the sides I do not find any merit in this contention. Our Constitution contemplates the concept of a wel-fare State. The Government is supposed to know the conditions and habits of the inhabitants of the particular geographical region of the State and in its wisdom may carve its own policy for the wel fare of the people of particular region of particular area and specify the same for introduction of prohibition in that particular area. This is a matter which relates to the policy of the State and the Government is the best Judge to implement its policy in such manner as will effectively subserve the wel fare of its people. The question of absence of guide lines in the matter or introduction of policy is hardly of any relevance because the matter being a matter of policy it is within the plenary power of the State to implement its policy of prohibition in the phased manner looking to over all facts and circumstances and also its financial implications. The matter as it relates to policy is above challenge and cannot be impeached on the ground of violation of Article 14. The challenge to sub-sec. (3) of sec. 1 is therefore futile and is not substantial in law. The next contention put forth on behalf of the petitioners is that in view of the introduction of Prohibition Act, by virtue of sec. 4 of the Prohibition Act the petitioners shall be debarred from carrying on their retail trade in vending foreign liquor and further in view of the cancellation of their licences they will be deprived of their fundamental right of carrying on business and their right to property and thus there will be infringement of their fundamental right conferred by Articles 19 and 31 of the Constitution Another contention in regard to plea of violation of fundamental right is based on the infringement of Article 14 of the Constitution of India. The argument of the learned counsel in respect of those contentions are like this. The petitioners have right to carry on their trade under Article 19 (l) (f) and they have right to reap, the benefits under the licence which is valid upto 31st of March, 1978, but due to introduction of Prohibition Act and cancellation of their licences they will be deprived of carry in on their trade under the licences which are valid upto 31st of March, 1978. It is, therefore, contended that they are being denied right to carry on their trade in violation of Article 19 (1) (f) and are further being denied the right to property which they are entitled under the licences granted to them. As regards the violation of Article 14 it has been contended that the Tehsil Bali in which the petitioners have been carrying on their trade of vending foreign liquor on retail basis are being subjected to hostile discrimination without any retionai basis as the areas of some of the neighbouring Tehsils have not been declared dry. The contention is that the Tehsil Bali has been arbitrarily picked up without any intelligible differentia between the area covered by Tehsil Bali and the neighbouring areas outside the Tehsil Bali. These contentions are fully answered by Article 31c of the Constitution which was introduced by 42 and Amendment Act of the Constitution. Article 31c lays down that notwithstanding anything contained in Article 13 no law giving effect to the policy of the State securing any of the principles laid down in part IV of the Constitution shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Article 14, 19 or 31 of the Constitution. Now introduction of Prohibition Act is with in the four corners of Article 47. Article 47 finds place in part IV of the Constitution. Under Article 47 it has been laid down that it shall be the primary duty of the State that it shall give due regard to the raising of the level of the nutrition and standard of living of its people and take it as its primary duty to take steps for the improvement of public health and for that purpose the State shall endeavour to bring about the prohibit on of the consumption of liquor or intoxicating drinks except for medicinal purposes as the same are injurious to public health. Indisputably the object underlying the prohibition is to improve the public health and to raise the level and nutrition and standard of living of people. Need less to say that the addiction to drink has, besides cutting through the economy of the community, tended to undermine the public health, thus bringing misery, to the community both economically and in the matter of deterioration in health of the community which in its turn has brought ruin to many families of the citizens. The object underlying the introduction of prohibition is to fight this melody. The introduction of the Prohibition Act is, therefore, beyond re appreach as it is covered by blanket protection of Article 31c and is immune from the challenge based on Articles 14, 19 and 31 of the Constitu-tion of India In my opinion, therefore, contentions of the learned counsel in this be half stand conclusively negatived by the provisions of Article 31c of the Constitution. In this view of the matter the contentions based on Articles 14, 19 and 31 of the Constitution cannot be entertained. However, even on merits no valid case has been made out by the petitioners. It is erroneous to contend that the petitioners have fundamental right to carry on trade in foreign liquor. It is well settled that there is no fundamental right in the matter of carrying on trade in liquor. The right to manufacture or sell liquor absolutely vests in the State and the State in its regulatory power can take away the right to vend foreign liquor. In fact the right to vend foreign liquor is a sort of concession given by the State by granting licences under which the citizens are permitted to carry on trade in liquor. But that right is not an indefeasible one and such right is always at the mercy of the State which can be taken away by introduction of the Prohibition Act which is primarily meant for the welfare of the people for the improvement of their health.
(3.) THE next contention which has been put forth on behalf of the petitioners is that their licences for vending foreign liquor as a retailer has been revoked in contravention of the provisions of section 35 of the Rajasthan Excise Act Mr Lodha contends that licence can be cancelled under section 35 on the fulfilment of certain preconditions which are conditions precedent for the cancellation of licence under section 35 of the Excise Act. His submission is that licence can be cancelled only on remitting a sum equal to the amount of the fee payable in respect thereof for 15 days but in the instant cases preconditions laid down in sec. 35 having not been fulfilled the cancellation of licences was illegal being contrary to the provisions of sec. 35. It has further been argued that if the cancellation of licences of the petitioners is hold to be invalid then the petitioners are entitled to carry on business under the licences despite the introduction of the Prohibition Act as under sec. 76 of the Prohibition Act the petitioners' right of privilege acquired under the licences is saved. THE question that at once arises is whether the petitioners' licences have been rightly cancelled under sec. 35. Admittedly conditions precedent for exercising power of cancelling licences under sec. 35 having not been fulfilled by remitting the requisite money as contemplated by that section. THE petitioners' right under the licence will be saved by virtue of clause (l) (b) of sec. 76 of the Act as the Excise Act repealed by virtue of promulgation of the Prohibition Act shall stand repealled but the repeal shall not affect any right, privilege acquired, accrued under the Excise Act. I, am, therefore, of the opinion that the order to bring into force the Prohibition Act in an effective manner, the State Government should take care to firstly validity cancel the licence as provided under sec. 35 so that no vestiges of right or privilege saved under sub-sec. (l) (b) of sec. 76 may rest in the licencee. THE State should, therefore, take due care in future to validly cancel the licence in order to avoid unnecessary complication by giving a lever to the licensee to seek the protection under sec. 76 of the Prohibition Act Be that as it may, the question that further requires consideration is whether the present are the fit cases where writ or direction asked for should be issued. It is well to remember here that the issuance of writ is of a discretionary character and the writ or order under Art. 226 does not issue as a matter of course Moreover under Article 226 the Court shall not grant any redress of any injury arising by reason of the contravention of any of the provisions of this Constitution or any provision of any enactment or Ordinance or any order, rule, regulation, bye-laws etc. , unless injury complained of is of a substantial character. Having regard to the facts and circumstances of the case I am firmly of the opinion that there shall occasion no substantial injury in the present cases In the first place, the amounts at stake in the various petitions which were to be remitted under sec. 35 before cancelling the licences are not at all substantial but are rather paltry which fact is amply proved by the supplementary affidavit filed on behalf of the State. Secondly, under section 4 of the Prohibition Act the possession, transport and consumption of the liquor have been made offence unless the permit is obtained by the consumer on the medicinal ground. Therefore, the scope for trade in the vending of liquor in retail will be winimal or rather insignificant. These facts clearly establish that there will be no substantial injury on account of the cancellation of the licence. Above all, looking to the public interest and the fact that the Prohibition Act is a social wel-fare measure aimed at the improvement of the public health and raising the living standard of the citizens, the requirement of justice is in refusing the relief claimed for by the petitioners. The money which the petitioners are entitled under section 35 can be recovered from the Sta?e and it is also expected of the State to remit the money which the petitioners would have been entitled before their licence could be cancelled. In this view of the matter the present cases are not fit ones where writ should go against the State. I would, therefore, dismiss these petitions in limini. Mr. Lodha in the last urged before me that I should issue direction to the State that in case licences are granted in the Pali Tehsil in which the petitioners held licences than they be given preference as displaced licence-holders. I am unable to concede to this request as I have no power to issue such a mandate. However, it is expected from the State that if at all it chooses to grant licences to persons in the Pali Tehsil for vending foreign liquor it may sympathetically consider the cases of the petitioners. ;