Full Judgment Text
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CASE NO.:
Appeal (civil) 3195 of 2002
PETITIONER:
STATE OF WEST BENGAL & ANR.
Vs.
RESPONDENT:
MADAN MOHAN GHOSH & ORS.
DATE OF JUDGMENT: 30/04/2002
BENCH:
N. Santosh Hegde & Shivaraj V. Patil
JUDGMENT:
SANTOSH HEGDE,J.
Leave granted.
The State of West Bengal has preferred this appeal against
the judgment of the Division Bench of the Calcutta High Court
dated 17th of August, 2001 whereby the said High Court allowed
the writ petition filed by the respondents herein and set aside the
judgment of the West Bengal Taxation Tribunal and directed the
State Government to consider the case of the respondents for grant
of foreign liquor off-shop licences at the new sites selected by the
State Government along with other eligible candidates.
The respondents are holders of licence under the West
Bengal Excise Act for sale of 50 U.P. Rum and Beer issued to
them by the State Government with a view to rehabilitate these
persons whose business in ganja, opium and bhang came to be
prohibited under the Narcotic Drugs and Psychotropic Substance
Act, 1985.
The State of West Bengal notified the West Bengal Excise
(Selection of Persons for Grant of License at New Sites for Retail
Sale of Spirit and certain other Intoxicants other than foreign liquor
on categories of licences and licence for Denatured Spirit) Order,
2000 w.e.f. 4th of February, 2000. As per this order the application
of an applicant for grant of excise licence was liable to be rejected,
if the applicant held any other excise licence. The respondents who
sought for grant of licence for the right to sell foreign liquor
(Indian made foreign liquor) were told that because of their
holding of another excise licence, they were not eligible to get
another licence for the sale of foreign liquor. This stand of the
Government came to be questioned by certain licencee similarly
situated as the respondents wherein the question of validity of the
Government Order of 2000, referred to herein above, was
questioned in Writ Petition No.7335(W) of 2000 which challenge
came to be dismissed by the High Court upholding the validity of
the Government Order of 2000. It is stated at the bar that an SLP
filed against this order by the aggrieved applicants also came to be
dismissed.
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However, the present respondents once again sought to
challenge the restrictions imposed by the Order of 2000 by way of
a petition before the West Bengal Taxation Tribunal which by its
order dated 12.4.2001 following the earlier order of the High Court
dismissed the said challenge. Against the said order of the tribunal,
the respondents preferred the writ petition wherein the High Court
by the impugned order held that in view of the overriding effect of
Rule 17 of the West Bengal Excise (Selection of New Sites and
Grant of Licence for Retail Sale of Spirit and Certain Other
Intoxicants) Rules, 1993 (the 1993 Rules), the restrictions imposed
by the Government Order of 2000 of not granting more than one
excise licence would not operate as a bar against the holder of an
existing excise licence from seeking the grant of another licence. It
is against this order of the High Court, the above civil appeal is
preferred.
Shri Mukul Rohatgi, learned Addl. Solicitor General
appearing for the State of West Bengal contended that it is the
policy of the State Government to restrict the concentration of
excise licences in the hands of the persons who already hold
another excise licence. This policy of the State Government being
in consonance with the public policy and there being no
fundamental right on a citizen to deal in liquor, the respondents
herein could not have challenged the said Order nor could the High
Court have granted relief to the respondents contrary to the said
policy. He contended that the view taken by the High Court that
Rule 17 of the 1993 Rules had an overriding effect on all other
rules and orders made by the Government under the delegated
power under the Excise Act, is wholly erroneous. It is the
contention on behalf of the State Government that the Order of
2000 was issued by the State Government under the exercise of its
powers conferred on it by Sections 85 and 86 of the West Bengal
Excise Act which was in supersession of the earlier Government
Order of 25th of April, 1991. He further argued that this
Government Order though called a notification, was published in
the official gazette in compliance with the requirement of Section
88 of the Excise Act, consequently even though the notification is
termed as an order, the same is in fact had the effect a rule made
under Sections 85 and 86 of the Excise Act. Therefore, it stands on
the same footing as the Rules of 1993, that being the case the
Order of 2000 being a subsequent order and having specifically
provided for a condition of rejection of an application which is not
covered under the Rule of 1993, could not have been held to be in
effective because of a non obstante clause in Rule 17 of the 1993
Rules. Learned counsel further contended that the non obstante
clause in Rule 17 refers only to rules which were in existence at
the time when the said rule was brought into force and the same
could not be construed as having an overriding effect for all times
to come. He also pointed out that under Rule 13 of the 1993 Rules,
it was still open to the State Government to issue a notification to
modify the conditions prescribed for grant of licence or impose
restrictions as to eligibility in addition to what was specified under
Rules 10 to 13 of 1993 Rules. Even otherwise, he contended that
there was no conflict between the imposition of restriction under
the Order of 2000 and the provision of Rules 10 to 13 of 1993
Rules.
Shri Gopal Subramanayam, learned senior counsel
appearing for the respondents, in our opinion, very fairly conceded
that he does not support the view of the High Court that the non
obstante clause of Rule 17 could operate against all future
enactments made by the State Government under the delegated
power vested on it in the excise statute. He, however, very
strenuously contended under Rules 10 to 13 of the 1993 Rules, the
respondents had a right to obtain a licence even if they had another
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excise licence under the very same Act. That right which is given
to them under the Rules could not have been taken away by an
executive order issued by the Government because an executive
order cannot override the Rules made by the State. Therefore, he
contends that imposition of a restriction which is not found in the
1993 Rules by the order of 2000 could not have been made by the
State Government.
Having heard the learned counsel, we are of the opinion that
we need not dilate very much on the finding arrived at by the High
Court in regard to the overriding power of Rule 17 of 1993 Rules
vis-a-vis the order of 2000. We agree with the learned Addl.
Solicitor General that the language of Rule 17 of the 1993 Rules
cannot be construed so as to mean that all future rules and
notifications will be subject to such a non obstante clause.
Be that as it may, we will have to address ourselves to the
argument advanced on behalf of the respondents herein, that a right
conferred on them under a subordinate legislation cannot be
curtailed by an executive order. This argument, in our opinion,
suffers from a basic fallacy which is founded on the fact that 2000
Order indicates it to be an executive order simpliciter. In our
opinion, the words used in the title of an enactment cannot be a
conclusive fact to ascertain the legislative nature of such
enactment. It is undisputed before us that under Sections 85 and 86
the Government had the power to make a legislation of the nature,
we now see in the Order of 2000. The said order specifically
derives the power of the State Government under Sections 85 and
86 of the Excise Act. It is not the case of the respondents that
procedures required for the purpose of enacting this order have not
been followed by the State Government. The contents of the order
are within the delegated power of the Government, the order has
been notified in the official gazette as required under Section 88 of
the Excise Act. Therefore, the State Government has followed the
necessary procedure required to make a rule or an order under the
powers vested in it as a delegate and within the scope of its rule
making power. Taking into consideration the object of the order,
the field that it covers reflecting policy of the State Government
which is in conformity with the constitutional obligation, we think
that the Order of 2000 though termed as an order for all purposes
has the same force as a rule which the State Government is
empowered to make under Sections 85 and 86. Therefore, in our
opinion, the argument of the learned counsel for the respondents
that the Order of 2000 is an executive order being subordinate to a
statutory rule could not have taken away the right that is available
to an applicant under Rules 10 to 13 of 1993 Rules cannot be
sustained. On the contrary, we are of the considered opinion by the
Order of 2000, the State Government has only imposed an
additional restriction to what is found in Rules 11 and 12 of 1993
Rules. As a matter of fact, if we peruse Rule 12 of 1993 Rules, the
restrictions imposed therein are of a particular nature and
additional restrictions now imposed under the Order of 2000 does
not, in any manner, run counter to those restrictions but only
supplements them and the same can very well co-exist with the
object of 1993 Rules. At this stage, we must also note that the
Rules 11 and 12 of 1993 Rules do not create any vested right on
the respondents or other applicants, it only prescribes the eligibility
for applying for the licences. Therefore, a question of taking away
the vested right by a subsequent enactment in the form of the Order
of 2000 does not arise at all.
Apart from the above, we are also of the view that putting a
restriction on a number of licences that could be held by a person
to deal in a trade involving intoxicants is in conformity with the
public policy as also the constitutional objectives.
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For the above reasons, we are of the opinion, that the High
Court fell in error in allowing the writ petition of the respondents.
However, we must note that the respondents herein having
lost their trade because of an enactment which prohibited the
dealings in ganja opium etc. were considered as a class by the State
Government, who ought to be granted on compassionate ground, a
particular type of excise licence. These respondents are now
wanting to improve their business by taking out a licence which, in
their opinion, is more lucrative but the bar of holding more than
one licence prevents them from acquiring this new licence. Before
the final hearing, we had called upon the respondents to say before
this Court whether they are willing to surrender their existing
licence in preference to the licence which they are now seeking.
They have stated that they are willing to surrender their existing
licences for the sake of a new licence they now seek. In these
circumstances and in view of the fact that these respondents have
lost their earlier business, we think it appropriate that we should
direct the State Government to consider the applications of these
respondents for the grant of licences for the sale of foreign liquor
as sought for by them, provided these respondents surrendered
their existing excise licences and approach the concerned excise
authorities for the grant of new licence. If this is done and if the
respondents are otherwise not disqualified, we direct the State
Government to consider their application on a preferential basis. If
for any reason, these respondents cannot be granted the new
licence sought for by them, then the appellants shall restore the
surrendered licence. The above concession given to the
respondents will not, in any manner, entitle them to claim any
other exemption from the requirement of the Excise Act.
For the reasons stated above, the order of the High Court is
set aside. This appeal is allowed with the directions made herein
above.
J.
(N.Santosh Hegde)
.J.
April 30, 2002. (Shivaraj V.Patil)
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