Full Judgment Text
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PETITIONER:
LAKSHMI NARAIN AND OTHERS
Vs.
RESPONDENT:
DISTRICT EXCISE OFFICER, FATEHPUR & ORS
DATE OF JUDGMENT16/08/1978
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
DESAI, D.A.
REDDY, O. CHINNAPPA (J)
CITATION:
1978 AIR 1476 1979 SCR (1) 161
ACT:
U.P. Excise Act- Section 41(e)(v) & U P. Excise Rules
138-Valid and not unconstitutional.
Constitution of India 1950- Article 32- petitions
under-petitioners participating in an auction with full
knowledge of conditions if could object to condition.
Section 41(e)(v) of the U.P. Excise Act empowered the
Excise Commissioner to make rules fixing the days and hours
during which licensed premises may be kept open or closed:
HEADNOTE:
The petitioners who were licensees in sale of liquor
challenged the validity of the rule.
Dismissing the writ petition,
^
HELD: l. As the provisions of Rule 13B of the U.P.
Excise Rules are in pari materia with Rule 37 of the Punjab
liquor Licence Rules 1956, the decision in P. N. Kaushal v.
Union of India etc. [1979] 1 S.C.R. 122 is applicable. [161
G]
2. The licences were awarded at public auction and the
conditions regarding closure of business on certain days
were printed in the auction notice. With full knowledge of
these restrictions which the petitioners considered
reasonable when They participated in the bids, they took the
licences. They cannot assail the same in the writ petitions.
[162F-G]
(For appearance refer to pages 125-126).
The Judgment of the Court was delivered by
JUDGMENT:
KRISHNA IYER, J. We have today disposed of a batch of
writ of petitions arising under the Punjab Excise Act, 1914
(Annexure A). There the petitioner had challenged Sec.
59(f)(v) and rule 37 as unconstitutional. In the present
batch of writ petitions ’he contention is identical except
that the enactment and rule are formally different but in
pari materia. Sec. 41(e)(v) of the U.P. Excise Act empowers
the Excise Commissioner to make rules fixing the days and
hours during which licensed premises may be kept opened or
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closed. Rule 13 is one such rule which forbids sale of
liquor "of all Tuesdays as well as the first day of every
month‘’. Aggrieved by- rule 13 (as amended), because it
prohibits liquor trade on the 1st of every month the
petitioners, who are licensees, have come up to this Court
challenging its vires. Rule 13 reads thus:
162
"13B. All excise shops (including foreign liquor
country spirit, home drugs, opium (tari and outstill
shops) shall not be kept open on Independence day
(August 15) Mahatma Ghana Birthday (October 2) and on
the day of Mahatma Gandhi’s tragic death (January 30)
every year an(l also on all Tuesdays as well as on the
first day of every month.
Provided that if the first day of the month happen
to be a public holiday, the day next following of that
month shall be the day on which the excise shops shall
not be kept open. Provided further Excise Commissioner,
may in consultation with the Collector of the District
concerned, waive the condition of not keeping an
exercise shop open on Tuesday; or the first day of the
month or the day next following of that month, as the
case may be, for such specified period as he may think
fit, in the case of hotels possessing a licence in Form
F.L. for the sale of foreign liquor for the benefit of
such foreign tourists as may hold a valid permit under
the All India liquor permit scheme of the Government of
India.’
The source of the rule-making power is Sec. 11(c)(v)
which hardly needs reproduction.
It is easy to see that the provisions in the Punjab
Law, challenged unsuccessfully before us, and these U.P.
provisions are virtually the same. The contentions put
forward by counsel for the petitioners and the submissions
by the Solicitor General and shri O. P. Rana in reply are
also identical with what we have heard and considered in the
Punjab cases. Indeed, the U.P. cases, from the point of view
of the State, are stronger because the licences were awarded
at public auctions and all the conditions now objected to in
these writ petitions regarding closure of business on
certain days are printed in the auction notice. With full
knowledge of these restrictions, which they considered
reasonable when they participated in the bids (and which we
consider reasonable for reasons we have given in the Punjab
cases), they took the licences. So their present challenge
must meet with its Waterloo in the decision of this Court in
the Punjab Cases. Without more ado, we dismiss the Writ
Petitions with costs (one hearing fee).
N.V.K. Pettions dismissed.
163