NAOLEKAR, J. - (1.) ALL petitioners are holder of licence for the retail on sale of beer at restaurants. Petitioners are aggrieved by the policy decision taken by the government not to renew the licences of the petitioners to sale the beer from their respective restaurants.
(2.) WITH a view to enact for Rajasthan a uniform law relating to export, import, transport, manufacture, sale and possession of intoxicating liquor the Rajasthan Excise Act, 1950 was enacted and was brought into force with effect from 1. 7. 1950. Some of the provisions regulating sale and possession of the intoxicating liquor are contained in the following Sections of the Act of 1950. Section 19 of the Act prohibits possession of excisable articles in excess of the prescribed limits otherwise than the permits granted by the Excise Commissioner. Likewise Sections 20 and 21 prohibits sale of excisable articles without licence from the competent authority. Section 24 empowers the Excise Commissioner to grant a licence for the exclusive privilege of manufacture and sale of country liquor, foreign liquor or intoxicating drugs. Section 26 permits the grant of such exclusive privilege to let or assign any portion of his privilege which is subject to the licence by the Excise Commissioner. Section 28 provides for excise duty and Section 31 authorises imposition of restriction on a licence that the licence shall be subject to the payment of fees and shall be subject to such conditions as may be described by the State Government under the Rules. Section 34 gives power to the licensing authority for cancellation or suspension of any licence. Section 37 lays down that no person to whom a licence has been granted under the Act shall have any claim to the renewal of any such licence or to any claim for compensation on the determination or non-renewal thereof. Section 41 is a rule making power for regulating the period and localities for which licence for sale of excisable article may be granted. Procedure to be followed and matters to be ascertained before granting any such licences, prohibiting sale of any excisable article to any person or class of persons, for preventing drunkens or disorderly conduct in or near any licensed premises. Sub-section (3) provides that rule making power shall be exercised with previous publication. The proviso thereto, however, provides that any such rule may be made without previous publication if the State Government considers that it should be brought into force at once. In exercise of the powers conferred by Section 41 of the Rajasthan Excise Act, 1950 (Rajasthan Act II of 1950) the State Government, has made the Rajasthan Excise (Grant of Hotel Bar/club Bar/restaurant Beer Bar Licences) Rules, 1973 (hereinafter referred to as `the Rules of 1973 ). It would be useful to reproduce Rule 2 of the Rules of 1973 in its entirety, which reads as under:- " 2. (a) Hotel means all Tourist Bungalows and hotels run by the Department of Tourism and Hotel Corporation of the State Government and the Government of India including Hotels recognised by the Government of India as Heritage Hotels and shall also include any other hotel with at least 20 bedrooms which is adjudged to be of at least Two State Category by the Department of Tourism, Government of India or any other authority authorised specially for this purpose by the Government of India. (b) Hotel Bar/club Bar/restaurant Beer Bar Licence means a "retail on licence" for the sale of foreign liquor granted to a hotel which makes sales to foreign and Indian tourists and visitors staying or residing in it for consumption in a room earmarked for serving liquor or dining hall or drawing room or such other part of the hotel as may be approved by the State Government. (c) "club" means a duly registered association of persons for social and recreational purposes or for the promotion of some common object on joint expenses. (d) "club Bar Licence" means a licence granted to a club for retail sale of foreign liquor by it, to its bonafide members for consumption in the club premises. (dd) "restaurant" means any place to which the public are admitted for the consumption of food or drink, for consideration. (ddd) "restaurant Licence" means a "retail on licence" for the sale of Beer granted to a Restaurant which makes sale to customers for consumption in a Restaurant. (e) The words and expressions defined in the Rajasthan Excise Act, 1950 and Rajasthan Excise Rules, 1956 and not defined in these rules shall have the meaning as defined in the Rajasthan Excise Act, 1950 (Rajasthan Act II of 1950) and the Rajasthan Excise Rules, 1955 as the case may be. " Under Rule 2 the competent authority is authorised to issue hotel licence for sale of foreign liquor, club bar licence and the restaurant licence. The petitioners are the holder of the restaurant licence for sale of beer to the customers for consumption in the restaurant. By policy decision taken by the Government it is this licence which was decided not to be renewed. Rule 2 (b) defines the expression `hotel bar/club Bar/restaurant Beer Bar licence' to mean on retail on licence for the sale of foreign liquor granted to a hotel which make sale to Indian and Foreign tourists and visitors. Rule 2 (dd) defines the expression `restaurant' to mean any place to which the public are admitted for consumption of food or drink for consideration. Rule 2 (ddd) defines the expression `restaurant Licence' to mean a `retail on licence' for sale of beer granted to a Restaurant which makes sale to the customers for consumption in a Restaurant. It is urged by the counsel for the petitioners that it is a settled law that the executive instruction can supplement a statute or cover an area to which the statute does not extent but they cannot run contrary to the statutory provisions or whittle down there effect and the Government cannot over rule or supersede statutory rules by administrative instructions in the nature of policy. The government is only authorised to fill up the gapes and supplement the rules and issue instructions not inconsistent with the rule framed. When the Rules permits issuance of restaurant licence, the State Government has no authority or jurisdiction to spell out a policy which contravenes the Rules. It is not open for the executive by policy decision to change or alter the policy which has been declared and laid down in the Act or the Rules. The Government has already laid down a policy of issuance of the beer bar licences to the restaurants under the Rules which cannot be whittle down by issuance of the policy decision of non renewal. It is submitted by Mr. K. S. Rathore, Additional Advocate General, that petitioners have no Fundamental right to carry on trade in liquor. The Rules of 1973 does not in any way permits trade in liquor as of right. The Rules of 1973 recognise right to apply for Restaurant Licence if offered and nothing more.
(3.) THE Supreme Court has considered the entire case law relating to right to carry on trade and business in potable liquor in the case of Khodia Distilleries & others vs. State of Karnataka & Others (1 ). Hon'ble Mr. Justice P. B. Sawant speaking for the constitution bench has said that rights protected under Article 19 (1) of the Constitution of India are not absolute but qualified. THE right to practice any profession or to carry on any profession, trade or business does not extend to practising a profession or carrying on an occupation, trade and business which is inherently vicious and pernicious and condemned by all civilised societies. It does not entitle citizens to carry trade and business in activities which are immoral and criminal and in article or goods which are obnoxious and injurious to health, safety and welfare of general public. THEre cannot be business in crime. A citizen has, therefore, no fundamental right to do trade or business in liquor. Hence the trade or business in liquor can be completely prohibited. THE State has, therefore, power to completely prohibit the manufacture, sell, possession, distribution and consumption of potable liquor as a beverage except when it is used and consumed for medicinal purposes. For the same reason, State can create a monopoly either in itself or in the Agency created by it for the manufacture, possession, sell and distribution of the liquor as beverage and also sell the licence to citizens for the said purpose by charging fees. This can be done under Article 19 (6) or even otherwise. THE restrictions and limitations can extend to the State carrying on the trade and business itself to the exclusion of and elimination of others and/or to preserving to itself the right to sell licence to be trade or business in the same, to others. In the matters of State of Bombay vs. F. N. Balsara (2), Cooverjee B. Bharucha vs. Excise Commissioner and Chief Commissioner (3), The State of Assam vs. Sristikar Dowerah & others (4), Nagendra Nath Bora vs. Commissioner Hills Division & Appeals (5), Amar Chandra Chokraworti vs. Collector of Excise (6), and State of Bombay vs. R. M. D. Chamarbaugwala (7) , the Apex Court has also held, that there is no fundamental right to do trade and business in intoxicants. The State under its regulatory powers has the right to prohibit absolutely every form of activity in relation to intoxicants, its manufacture, storage, export, import sell and possession. In all their manifestations, these rights are vested in the State and indeed without such vesting there can be no effective regulation of various forms of activities in relation to intoxicants. It is thus clear that the State has absolute right to prohibit trade in liquor and also to carry on the business itself to the exclusion and elimination of others or to sale the licence to the citizens for such purpose. No one can claim as against the State right to carry on trade and business in any intoxicants nor the State can be compelled to part with its exclusive right or privilege of manufacture, sell, storage of liquor. The State can part with that right or privilege to others consistent with the principles of equities enshrined under Article 14 of the Constitution of India. ;