JAGRITI Vs. STATE

JUDGEMENT

(1.) This public interest litigation is filed by Jagriti, a non-political, secular and rural development organisation registered under the Societies Registration Act. It claims that its activities extend to a number of villages in Totapalli, Guduru Mandal and Indukurpet Mandal of Nellore District it claims that it runs 100 non-formal educational centres in 63 villages in Nellore and Kavali Divisions. The relief which the petitioner seeks are -- a declaration that Sub-sec. (3) of S. 1 and S. 2 of the A. P. (Andhra Area) Prohibition Act, 1937 and clause (b) of sub-sec. (2) of S. 1 of A. P. Excise Act, 1968, are illegal and void. It seeks a consequential declaration that G.O.Ms. No. 966 Revenue dt. 6-10-1969 and G.O.Ms, No. 989 Revenue dt. 11-10-1969 are void. A further declaration which it seeks is that Ss. 15, 17, 18, 20, 33 and 67 of the A. P. Excise Act, 1968, and the rules made thereunder in so far as they enable the sale of liquor, are violative of Articles 21, 40 and 47 read with Article 245 of the Constitution of India.

(2.) The Andhra Pradesh (Andhra Area) Prohibition Act, 1937 had the effect of rendering the Andhra Pradesh (Andhra Area) Abkari Act, 1886, ineffective by virtue of S. 2 of the former Act. Section 1(3) of the A. P. (Andhra Area) Prohibition Act, 1937, hereinafter referred to as the 'Prohibition Act' provides as follows: "1(3)(a). This section and Sections 3 and 6 shall come into force in the whole of the Andhra area of the State of Andhra Pradesh at once. (b)The rest of this Act shall come into force - (i)..... (ii) in any local area in the Andhra area of the State of Andhra Pradesh on such date as the State Government, may, by notification, appoint. Section 2 deals with 'repeals' and reads as follows: "From the date on which the provisions of this Act other than Ss. 1, 3 and 6 came into force in any local area, the enactments mentioned in the Schedule shall cease to be in force in such area to the extent specified in the fourth column thereof: Provided that the State Government may, by notification declare that the provisions of this Act other than Ss. 1, 3 and 6 shall cease to be in force in any local area on such dates as may be specified in the notification and thereupon the enactments mentioned in the Schedule with any subsequent statutory modifications thereof shall revive and come into force in such area with effect on and from such date. Explanation: For the removal of doubts, it is hereby declared that if a notification is issued in pursuance of the foregoing proviso, in respect of any area which formerly formed of the State Banganapalle the enactments mentioned in the Schedule with any subsequent statutory modification thereof shall come into force in such area with effect on and from such date as may be specified in the notification." The whole of 'The Andhra Pradesh (Andhra Area) Abkari Act, 1886 is one of the enactments included in the Schedule. The effect of Sec. 1(3)(b)(ii) is that the State Government has got the power to declare that the provisions of the Prohibition Act other than Sees. 1, 3 and 6 shall cease to be in force in any local area on such dates as may be specified in the notification. The State Government is also given the power to provide by notification that the provisions of the Prohibition Act will come into force in any local area on such date as the State Government may appoint. Counsel submits that this power of bringing into force the provisions of a legislation to any local area in the State is a legislative power and the conferment of such power to apply the provisions of the Act by a notification without taking the legislature into confidence is illegal and unsustainable. He submits that it amounts to excessive delegation and also delegating essential legislative powers. He submits that the proviso to S. 2 also suffers from the same infirmity -- in that the Government is given power to declare by notification that provisions of the Prohibition Act other than Ss. 1, 3 and 6 shall cease to be in force in any local area. He submits that such power of annulment tantarnounts to a statutory power of repeal and such power cannot be entrusted to the executive and should not be exercised by a declaration contained in the notification of the State Government. His objection to S. 1(2)(b) of the A. P. Excise Act, 1968, hereinafter referred to as the 'Excise Act' which provides for extension of the provisions of the Act 'to a local area of the State not comprised within the territories referred to in cl.(a), as and when a notification is issued under the proviso to Sec. 2 of the Andhra Pradesh (Andhra Area) Prohibition Act, 1937,declaring that the provisions of the Act, other than Secs.1, 3 and 6, shall cease to be in force in that local area' is also substantially the same. He submits that the above provision also amounts to usurpation by Executive of the essential legislative power. It was in exercise of the powers under the proviso to S. 2 of the Prohibition Act, that the Government issued G.O.Ms. No. 966 Revenue dt. 6-10-1969 declaring that with effect on and from 1/11/1969 the provisions of the A. P. (Andhra Area) Prohibition Act, 1937, other than Sections 1, 3 and 6 shall cease to be in force in all local areas of Andhra Pradesh, not comprising the territories referred to in clause (a) of sub-section (2) of Section 1 of the A.P. Excise Act. By another notification issued under Section 1(3) of the A.P. Excise Act, G.O. Ms. No. 989 Revenue dt. 11-10-1969, the provisions of the Excise Act were extended to that area with effect from 1-11-1969. Petitioner submits that the enabling provisions contained in the Prohibition Act and the Excise Act being illegal and ultra virus, Government orders referred to above, viz., G.O.Ms. Nos. 966 and 989 are illegal and have no effect. He also submits that Sections 15, 17 18, 20, 33 and 67 of the Excise Act in so far as the same enable sale of alcoholic intoxicating liquors, are violative of Articles 21, 40 and 47 read with Art. 245 of the Constitution of India. Counsel submits that under Article 37 of the Constitution of India, the Directive Principles contained in Part IV of the Constitution shall be fundamental in the governance of the country and it shall be the duty of the State to apply those principles in making laws. Reference is then made to Article 47 which states that 'the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxication drinks and of drugs which are injurious to health'. Reference is also made to Article 40 which provide that - 'The State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government." According to the petitioner, the provisions enabling sale of liquor runs counter to Article 21 which provides for life or personal liberty of citizens. He submits that under Article 245, laws made by the legislature shall be subject to the provisions of the Constitution, and that in so far as the impugned provisions of the Prohibition Act, the Excise Act and the notifications issued thereunder are violative of Articles 21, 40 and 47, they are unconstitutional by the vigour of the Constitution of India.

(3.) The Andhra Pradesh (Andhra Area) General Clauses Act, 1867, provides for commencement of future Acts. Section 5 of the Act is in the following terms: "Where in any future Act of the Governor Fort St. George in Council, no time is mentioned at which the same shall come into operation, such Act shall take effect from such date as the State Government may notify by publication in the official Gazette." It is clear from the above that the legislature, in its wisdom, may entrust the power to notify the commencement of the Act to the Government. That power may also incidentadentally include the power to withdraw, cancel or modify the notification in part or fully in terms of Section 15 of the General Clauses Act. These provisions apply by reason of Section 12 of that Act to all Acts of the State of Andhra Pradesh. These provisions of the General Clauses Act apply with all their vigour to the A.P. Excise Act as also the A.P. Prohibition Act. The result is that even if the impugned provisions are absent in the enactment in question, the same powers will be available to the State Government by reason of Sections 5, 12, and 15 of the A.P. General Clauses Act.