AMAR CHANDRA CHAKRABORTY versus COLLECTOR OF EXCISE, GOVERNMENT OF TRIPURA & ORS.

Dua, J.· This appeal is by special leave. The appellant assails the order of the Jl!.dicial Commissioner, Tripura dated June 25, 1971 dismiss.ing his petition under Art. 226 of the Constitution challenging the order of the Collector of Excise, Tripura, dated July 5, 1970.

p. 535, margin E

The appellant was granted licence for the period April 1, 1963 to March 31,' 1966 for running a warehouse for supply of country liquor to excise vendors in the territory of Tripur~. The Bengal Excise Act, 1909 (hereinafter called the Act) had been ~xtended to that territory on August 1, 1962. The appellant's licence was subsequently extended for a further period of two years ending March 31, 1968. On November 6, 1967 the appellant applied to the Excise Collector praying that he should -be pennitted to continue the supply of country liquor for a period of five years ~om­ mencing April 1, 1968. The Collector recommended the appellant's case to the Government on November 18, 1967 for extension of his licence for a further period of only two years. On .December 22, 1967 the Collector of Exciset Tripura, Agartala, wrote to the appellant that he had been appointed by the Chief Commissioner "a. contractor for the supply of country liquor to the excise vendors for the territory of Tripura for five years i.e., from 1-4-68 to 31-3-73 at the existing rate i.e., Rs. 2.25 only being the cost of one L.P. litre of country liquor of 40 U.P. strength for sale to the excise vendors" of tha:t territory from the cintral Warehouse at Agartala. On January 13, 1963 the appel· · lant was asked by the Collector of Excise to deposit Rs. ltOOO/· as security and Rs; 2,500/ - as licence fee.for five years at the rate: of Rs. 500/- per year. On March 13, 1968 the appellant was accordingly granted a licence. to establish ~ warehouse for Jhe storage in bond and wholesale vend of country spirit by import and for supply to the excise vendors in the territory of Tripura for five years commencing April1,,1968 and ending March 31, 1973. It was granted by the Excise Collector.

pp. 535–536, margin F

The Committee of Estimates in their Fifth Report about the working of Excise Department in the territory of Tripura in general and about the procedure adopted in· giving contract to the appellant for a period of five years from 1968 to 1973 in particular . made some adverse observations criticising the method of appointment by means of selection because this method, according to the report, left loopholes for corruption. As a result of this report the Lt. Governor of Tripura on July 2, 1970 inserted r. 164-A in the Tripura Excise Rules of 1962 in exercise of the power conferred by s. 86 of the Act. According to the new rule, fees for licence for the wholesale vend of country spirit were required to be. fixed by tender-cum-auction. On July 6, 1970 the Exci8e Collector issued the following order to the appellant :.

p. 536, margin C

''GOVERNMENT OF TRIPURA

p. 536, margin E

OFFICE OF THE COLLECTOR OF EXCISE No. 810/DM/ EX/5(19)/70-71 dated, Agartala the

p. 536, margin E

6-7-1970

p. 536, margin E

Whereas it has been decided by the Government of Tripura that the licenses for the wholesale of country spirit shall hence forwards be granted by the method of tender-cum-auction and to different persons for different specified areas as far as practicable, instead of the present system of selection of one licensee for the whole territory of Tripura, in the interests of excise revenue.

p. 536, margin E

And whereas I, Sri Omesh Saigal, Collector . of Excise, Tripura consider that for the afor~said reason the license 1 dated the 13th March, 1968 issued to

p. 536, margin G

no. Sri Amar Chandra Chakraborty for the wholesale vend

p. 536, margin H

(Dua, ],) 5:J7 of country spirit in the Union Territory of Tripura for the period from the 1st April, 1968 to 31st March, 1973 should be withdrawn.

p. 537

Now, therefore, in exercise of the powers conferred on me under Section 43 of the Bengal Excise Act, 1909, as extended to the Union Territory of Tripura, I remit a sum of Rs. 20.84 equal to the amount of the fees paya· ble in respect of the said license for 15 days and hereby give the licensee 15 days' notice of my intention to withdraw the said license and order that the said license be withdrawn with effect from 1st September, 1970.

p. 537, margin A

Any fee paid in advance or deposit made by the licensee in respect thereof shall be refunded to hini after deducting the amount, if any due to the Government.

p. 537, margin C

Sd/- Omesh Saigal

p. 537, margin C

5·7-70

p. 537, margin C

Collector of Excise." Feeling aggrieved the appellant challenged this order in the court of the Judicial Commissioner by means of a writ petition under Art. 226 of the Constitution which was dismissed by the impugned order.

p. 537, margin C

The order of the Collector dated July 6, 1970 was challenged by the appellant on a number of grounds, including invalidity of s. 43 of the Act and r. 164A of the Rules framed thereunder. The learned Judicial Commissioner in an exhaustive order came to the conclusion that the appellant had been given a contract fot five years on the basis of his applicatio~ dated November 6, 1967 without issuing a public notice as required by the proviso to s. 22 ( 1) of the Act. This violation of the statutory provision invalidated the contract or the privilege of selling country liquor secured by the appellant. According to the Judicial Commissioner this ground by itself was enough for throwing out of the appellant's writ petition. The contention that s. 43 of the Act does not envisage withdrawal by the Collector of the licence pertaining to the privilege granted by the Chief Commissioner of TripU:ra under s. 22 of the Act was also negatived by the Judicial Commissioner as in his opinion the Collector who had issued the licence was fully competent to withdraw the same. Similarly challenge to the cons~ titutionality of s. 43 of the Act was repelled and it was held that this section merely imposes reasonable restrictions in the matter of trade in liquor. The argument that 15 days' notice as contem, plated by s. 43 of the Act had not been given was also rejected because in the Judicial Commissioner's opinion notice had actually been given to the appellant but be had· not cared to avail of it as he never approached the Collector for representing to him his case against the action withdrawing the licence. Rule 164A was held to be intra vires and within the terms of s. 86 of the Act.

pp. 537–538, margin D

In this Court the principal contention raised by Shri A. K. Sen, on behalf of the appellant, is that s. 43 of the Act contemplates a show cause notice which has not been given and that in any event this section clothes the authority granting the licence with unguided and uncanalised power to withdraw the licence and is, therefore, violative of Art. 14 and also Art. 19 of the Constitution as it encroaches on the appellant's fundamental right of canying on trade or business.

p. 538

Shri Sen further submitted that the authority granting the licence was the Chief Commissioner but the order dated July 6, 1970 was issued by the Collector of Excise. The order withdrawing the licence, according to the learned counsel could only be made by the authority granting the licence and that too .after the expiry of 15 days. The counsel added that withdrawal of licence \'irtually amounts to its forfeiture with the resuit that the provisions dealing with such withdrawal calls for a strict construction.

p. 538, margin C

The contentioit. that the authority granting the licence was the Chief COmmissioner and, therefore, the .notice issued by the Collector of Excise is bad, cannot be accepted. The licence dated March 13, 1968 was issued from the office of the Collector of Excise, Agartala and was signed by that officer. Even in the appellant's writ petition in para 15 there is an express averment that the licence dated March 13, 1968 had been issued under the signatures of the Collector of Exci"e, Tripura. No doubt, it is added in the same paragraph that the Collector is not the authority to exercise power under s. 43 of the Act but this submission has not been substantiated at the bar and is contrary to the statutory provisions. Under s. 22, sub-s. ( 1), the Chief Commissioner is no doubt given the power of granting the exclusive privilege of manufacturing and selling country liquor or intoxicating drugs as mentioned in cls. (a) to (e) but sub-s. ( 2) of this section in express terms provides that no grantee of any privilege under sub-s. ( 1 ) shall exercise the same unless or until he has received a licence in that behalf from the Collector or the Excise· Commissioner. In view of this provision it is obvious that it is the Collector who grants the licence within the contemplation of s. 43 and, therefore, it was this very officer who rightly granted the licence to the appellant and is empowered to withdraw the licence under s. 43.

p. 538, margin D

As sec. 43 provides for withdrawal of a .licence for any cause other than those specified in s. 42 of the Act we consider it proper to reproduce both these sections. They read:

p. 538, margin H

(Dua, J.)

p. 539

"42. Power to cancel or· suspend license, permit or pass.-.

p. 539

( 1) Subject to such restrictions as. the Chief Commissioner may prescribe, the authority who granted any license, permit or pass under this Act may ~ancel or suspend it- ( a) if it is transferred or sublet by the holder thereof without the permission of the. said authority;

p. 539

or (b) if any duty or fee payable by the holder ther~of

p. 539, margin B

be not duly paid; or (c) in the event of any breach by the holder thereof, or by any of his servants, or by any one acting on his behalf with his . express implied permis-

p. 539, margin B

sion, of any of the terms or conditions thereof; or (d) if the holder thereof is convicted of any offence punishable-under this Act or any other law for the time being in force relating to revenue, or of any cognizable and non-bailable offence, or of any offence puni!'hable under the Dangerous Drugs Act, 1'930' (II of 1930), or under the Trade. and Merchandise Marks Act, 1958 ( 43 of 19S8), or under an-y section which has been introduced into· the Indian Penal Code by Section 3 of that A't

p. 539, margin C

(Act XLV of 1860); or (e) if the holder thereof is punished for any offence referred to-in clause 8 of section 167 of the Sea

p. 539, margin D

Customs Act, 1878· (VIII of 1878); or {f) where a licence, permit or pass has been granted·· on the application of the holder of an exclusiv~ privilege granted under section 22, on the requi-.

p. 539, margin D

sition. in writing of such holder;· or (g) if the conditions of the license, permit or pas provide for stich cancellation er suspension at

p. 539, margin F

will.

p. 539, margin F

(2) When a license, permit or pass held by any person is cancelled under clause (a), clause (b), clause· ( c}, clause (d) or clause (e) of sub-section ( 1) the· authority aforesaid may cancel any other licence, permit or pass granted to such person by, or by the authority oi: the Chief Commissioner under this Act, or under the Opium Act, 1878 (I of 1878).

p. 539, margin F

( 3) The holder of a license, permit or pass shall not be entitled to any compensation for its cancellation or suspension under this section, or to the refund of any fee paid or deposit made in respect thereof.

p. 540, margin A

43. Power to withdraw licenses.- ( 1) Whenever the authority who granted any license under this Act considers that the license should be withdrawn for anv cause other than those specified in section 42, it shall remit a sum equal to the amount of the fees payable ill respect thereof for fifteen. days, and may withdraw the licens~ either- ( a) on the expiration of fifteen days' notice in writing

p. 540, margin A

of its intention· to do so, or (b) forlhwith, without notice.

p. 540, margin C

(2) li any license be withdrawn under clause (b) of ~ub-section ( 1), the said authority shall, in addition to remitting such sum as aforesaid, pay to the licensee such further sum (if any), by way of compensation, as the Exci(ie Commissioner may 'direct.

p. 540, margin C

( 3) When a license is withdrawn under sub-section ( 1), any fee paid in advance, or deposit made by the licensee in respect thereof shall be refunded to him after deducting the amount (if any) due to the Government."

p. 540, margin C

Before dealing with the contention relating to Art. 19. we consider it proper to dispose of the- argument founded on the ejusdem generis rule and Art. 14 of the Constitution. It was contended by Shri Sen that the only way in which s. 43 can be saved from the challenge of arbitrariness is to construe the expression "any cause other than" in s. 43 ( 1) ejusdem generis with the causes specified in ell. (a) to (g) of s. 42(1). We do not agree with this submission. The ejusdem generis rule strives to reconcile· the incompatibility between specific and general words. This doctrine applies when (i) the statute contains an enumeration of specific words; (ii) the subjects of the enumeration constitute a c~ or..category; (iii) that class or category is not·exhausted by the enumeration; (iv) the general term follows the enumeration and ( v) there is· no indication of a different legislative intent. In the present case it is not easy to construe the various clauses of s. 42 as constituting one category or class. But that apart, the very language of the two sections and the objects intended respectively to be achie·: ;:d 1:-y them also negative any intention of the legislature to attract tae rule of ejusdem generis.

p. 540, margin E

Trade or business in country liquor has from its inherent nature been treated by the State and the society as a special category requiring legislative control which h~ been in f?r~e .in the whole of India since several decades. In vtew of the lllJUnous effect of ex.cessiv~ consumption of liquor on health this trade or business must be treated as a Class by itself and it cannot be treated on the same basis as other trades while considering Art. 14. This classification is founded on an intelligible differentia having a rational relation to the object to be achi~ved by the cont~ol imposed . on the trade or business in country hquor. Art. 14, 1t may be pomted out, only forbids class legisl~t~o.n but reas?nable cl~ss~l!cation does not come within the prohtb1t10n. Nothmg convmcmg was urged at the bar to attract the prohibition embodied in Art. 14.

pp. 540–541, margin H

The submission that a separate order withdrawing the licence after the expiry of 15 days' period from the order dated July 6, 1970 was necessary has also not appealed to us. Section 43 does not provide any such procedure. All that this section contemplates is that whenever the authority concerned considers that the licence should be withdrawn for any cause other than those specified in s. 43 it may withdraw the same but to do so it mu,;t remit a sum equal to the amount of fees payable in respect of tne licence for 15 days. It is not complained that this amount was not remitted as required. Now if the licence -is withdrawn under s. 43 ( 1 ) (a) on the expiration of 15 days' written notice of the authority's intention to do so then nothing further need be done. It is only when the licence is desired to withdrawn forthwith without notice contemplated by s. 43 ( 1) (b) that the authority is under a further obligation to pay compensation 'as may be directed by the Excise Commissioner. Here the licence stood withdrawn on September 1, 1970 as stated in the intimation contained in the order datt:d July 6, 1970. That intimation fully complies with -the proYisions of s. 43.

p. 541, margin B

The argument that no show cause notice was .given to the appellant before withdrawing the licence is equally· unacceptable for reasons just stated. The section does not contemplate two separate notices. Th_e order dat~d July 6, 1970 also clearly states that 15 days' notice was being given to the licensee f.)O"ardino the intention of the Collector of Excise to withdraw his lic~nce a~id it "is also specifically mentioned in the orde.r that the said .Jicence would be withdrawn with effect from September 1, 1970. The fact that urider the notice the licence was-to be withdrawn more than 15, days after the date of the notice did not cause the appellant any prejudice and ~ndeed no objection was raised on thi.-, score. The contents of this order also quite clearly show that the appellant had ample opportunity. of sho~ing cau~e . against the intention of the Collector to withdraw the licence with effect from September 1, 1970. Rules of natural justice on v.rhic"h the appellant's counsel relied for his grievance vary with the varying comtitutions o( stat_u~"ry bodies and the rules prescribed by th~ legislature under whi~h they have to act and the queStion whether in a particular c~· the rules of natural justice have been contravened must be judged not by any pre--conceived opinion of what they. may be but in the light of the relevant statutory provisions: Gullapalli Nageswara Rao v. A. P. State Road Transport Corporation (1). Applying this test to the present case the vrder dated July 6, 1970 cannot be considered to violate any rule of natural justice.

pp. 541–542, margin F

According to Shri Sen the business of selling liquor is prot~ct~ ed by Art. 19 of the Constitution as a fundamental right and reliance for this submission has been placed on K. K. Narula v. The State of J & K(Z). This fundamental right has been illegally infringed, said the counsel. . It is no doubt true that this Court in the cas~ cited held that dealing in liquor is business and a citizen has a right to do business in that commodity but it was added that the State can make a law imposing reasonable restrictions on the said right in public interest. In dealing with reasonable restrictions- no abstract standard or general p~tt~rn is possible to lay . down. In each case, regard has to b(f ha<;i to the natur~ of trade or business, the conditions. pr~v~iling in soch trade or busioo~, the nature of the infrin~ement aUeg~d, and tJ!e q.nd.~rlying puroose of the restriction, the 11llposition of which is a,lleged to- constitute an' infringement.

p. 542

According to Shri Sen the licence was granted to th~ ~ppeUa.nt for five years and withdrawal of this li,cen.c;e before th~ ~xpicy Qf five years has caused him immense financial ~oss. The lice~~ was. withdrawn without any fault on his part. Unreasol;}.ableness of the provision contained in s. 43, according to him, is m({nifest because it pennits the licensing authority to withdraw the licence for any reasoQ. whatsover not falling under s. 42. '{his wi~ and arbitrary power being unreasonable, i.s violative of the appellant's fundamental right under Art 19. Let us see if this ~ubmission is. well-founded.

p. 542, margin C

Section 42 empowers the authority granting a licence, permit or pass under the Act to cancel or suspend it slibject to such restrictions as may be imposed by. the- Chief Commis.wner. The grounds on which the order of cancellation or suspension may be based are contained io. ell. (a) to· (g) of sub-s. (1). Except for ell. (f) and (g) all other clauses suggest some impropriety or default on the part of the licensee. Clause (f) speaks of can~ cellation or suspension on the written requisition by the holder of the exclusive privilege under s. 22 and cancellation or suspension under cl. (g) is in accordance with the conditionS' of the lice~ce~ permit or pass in question. Sub-section ( 3) expressly negatives l)

p. 542, margin C

~e .~gbt t~ co'lnpe~ation ~Rd :~ to refund of fee a'nd deposit. ~ 43 tpro~idibg WttlldrdWalltif Httnce ·only empowers the .alttbonty grl.{titiJ\g a 1\cci\ce under' the Act to withcfr:iw the same for•a.ny causb ~er. t~ those speelfied in'S. 42 on remitting a sum equal to ~e: amount <1 fee )>ayable for 15 days. It is no doubt ttue rll:at tn s. ~3 _ ·no e~pr~s mention of the precise grounds ~ ~hic!t 'the IJCence can Wlthdrawn. But in our opinion ~eep­ tng m the nature the trade or business for which the arimt of lirence under the Act is provided the cause contemplated by s. 43 rnus~ be S?Ch as may haye reasonable nexus with the object of regulatmg th1s t~ade_ or .busmes~ in the general interest of the

p. 543

. In the determmatlon of reasonableness of restrictions on trade or business regard must be had to its nature, the conditions prevailing in it and its impact on the society as a whole. The-se factor'S must inevitably differ from trade to trade and no general rule governing all trades or businesses is possible to lay down. The tigbt to carry on lawful trade or business is subject to such reasonable conditions as may be considered essential the appropriate authority for the safety, health, peace, order and morals of the society. Article 47 of our Constitution directs the State to endeavour to prohibit consumption intoxicating drinks of drugs which are injurious to health except for medicinal purposes. In the case of country liquor, therefore, the question of determin in ~ reasonabk nb s of the re triction may appropriately considered by giving due weight to the increasing evils of e.,cessivc consumpon of country liquor in the interests of health and social welfare. Principtes applicable to trades which all p dns c_arry ~n free from regulatory controls do not apply to trade or ~usmess m cou~try liquor : is so because of the impact of thts trade on soctety due to its inherent nature.

p. 543

tne present case, according the_counter-affidayi_t after the Committee of Estimates had in thetr Fifth Report cntlctsed · the working of the Exc~e Iftpartment i!l the te~tory of Tri~~~a in eneral and the procedure adopted wantJO~ ~ve years . • tcence

p. 543

tbe appellant in particular. the Counc of M~tste£'S, ~s.a cunse- (jUence of this criticism, resolved th:it the exclustve pnvtle~e of supplying country liquor wholesale shdold allowed to ~~ree

p. 543

and not to one and that also by ten_der-cum-au~hon. Pursuant this decision r. 164A was inserted ~~ the Tr!pura bcise Rules on July 2. 1970. The_ l:J~ion Temtory of Tnpura was accordingly divided into tflree districts for the purpose ot licence for wholesale supply of country liquor ~th ~fleet · ~r?m ~ptember J, 1970. It was for intplc:rrrenting thiS pohcy decJston of the State Government that on Joly 6, 1970 the Collector ~f ~.\c ise Informed 1he ~ellan't by the impugned order that Ius l~ce11ce would withdrawn on September l, at the same Temitting to 15 days' licence fee as reqnm:d by statute.

p. 543

SUPREME C9URT REPORTS U97Jl 1 s.c:tt. The Government then took steps to invite tenders and fix. a date for auction of wholesale supply of country liquor. The cause for · withdrawing the appellant's licence is in terms of the major policy d~ision taken by the Tripura Gov~ment and this, in our opinion,' is a cause which, keeping in view the purpose and object of granting such exclusive privileges and licences, cannot be co~sidered to ~ either irrelevant or collateral to that purpose and obJect. The appellant had, it may be. recalled, secured his licence for the maximum period of five years as provided by r. 22( 4) of the Tripura Excise Rules, 1962 for a nominal annual sum. On the .withdrawal of the licence, fee for 15 days was remitted to him and the fee paid in advance and the deposit made were also directed to be refunded provided by s. 43 ( 3).

p. 544

But this apart, the learned Judicial Commissioner has also held in the judgment under appeal that since the contract for five years had been givtn to the appellant in complete violation of the statutory provision enacted in the proviso to s. 22 ( 1) of the Act he could not claim to be a holder of any valid contract or of a valid privilege. Nothing serious was urged at the bar against this conclusion. Shri Mukheriee, however, did make a faint attempt to dislodge the conclusions of the learned Judicial Commissioper by submitting that the appellant was not aware of non-compliance with the proviso to s. 22 ( 1) of the Act and that he could >~Ot be penalised for any such non-compliance. We are not impressed by this submission.

p. 544, margin C

Section 22 cont~mplates the grant of exclusive, priVilege which amounts to a virtual monopoly for manufacturing·, supvtying and selling "~ wholesale or retail country liquor or in~xicating drugs \Vithin a specified local area. Keeping in view the nature· o£ this trade or business particularly the unhealthy effects of intoxicants on certain important sections of the society it cannot be· denied' that the residents of the local area concerned would be' vftally interested in the niatter of grant of exclusive privileges and liCences for sale of liquor as unless appropriately re-guta.ted' such trade' or business may prove a source of nuisance and ann·oyance to tlie· persons presiding ·in the vicinity. It is apparently in recognition of this vital interest of the residents of the locality that public notice of the intention to grant such exclusive privilege is provid~d· so that objections thereto, if any, may be preferred before the exclusive privilege is actually granted. The public notice is thus a condi~ tion. precedent to the grant of exclusive privilege. The underlying policy of s. 22 seems to be not to allow such an important matter to be decided in tht: secrecy of office without giving it proper publicity: All the conditions of the proposed grant including its duration are. eltpetted to be notified. Such notification would serve· a1so to eliminate chances of favouritism, nepotism and corruption. Section 22' seems also to have its roots in these deeper considerations. Failure to give such public notice was, therefore, in our opinion, rightly considered by the learned Judicial Commissioner tc be fatal to the grant of the exclusive ·privilege to the appellant. Nothing convincing has ~en said at the bar against this view. If non compliance with the proviso to s. 22( 1) is by itself· fatal to the grant of exclusive privilege than the impugned order dated July 6, 1970 is sustainable on this ground alone and the writ petition was thus rightly dismissed. In any event, this ground, along with the o~bers already noticed, .would, in our opinion, constitute a good cause for withdrawing the licence under s. 43 of the Act. On this view the impugned judgment of tl!e learned Judicial Commissioner does not seem . to us to be open to challenge p,articularly un~r Art. 136 of the Constitution. This appeill acc~rdingly fails and is dismissed with costs. G.C. Appeal dismissed

pp. 544–545, margin E