STATE OF KERALA Vs. P J JOSEPH

JUDGEMENT

(1.) This appeal filed with a certificate of fitness under Art. 132 (1) of the Constitution of India is against the judgment and order pronounced on October 24, 1952, by a Division Bench of the High Court of Judicature for Travancore Cochin in writ petition No. 32 of 1952, presented on March 26, 1952, before the said High Court by the present respondent.

(2.) The facts are shortly as follows: Since 1945 the respondent had been a wholesale dealer in foreign liquor in Ernakulam in the erstwhile State of Cochin. In that State there was an Act called the Cochin Abkari Act (Act 1 of 1077 M. E.) For the neighbouring State of Travancore there was the Travancore Abkari Act (Act IV of 1073 M. E.). The Travancore State framed rules under its Abkari Act which were duly published in the Official Gazette under S. 65 of the Travancore Act. The Travancore practice was to fix a quota for each licensee for the sale of different varieties of foreign liquor on which no commission was charged and to charge each licensee 20 per cent. commission in respect of sales in excess of the quota. No rules had been framed by the Cochin State under its Abkari Act until 2-6-1949, when a set of rules was published in the Cochin Sarkar Gazette under S. 69 of the Cochin Act. On 1-7-1949, the two States of Travnacore and Cochin were united together and became the United State of Travancore Cochin. The respondent used to take out wholesale license under the Cochin Abkari Act 1 of 1077, M. E. At the date of the integration of the two States the respondent held a license for 1125 M. E. which covered the period between 17-8-1949 to 16-8-1950. He took out another license for the period between 17-8-1950 to 31-3-1951, and thereafter another for the period between 1-4-1951 to 31-3-1952. The licenses were wholesale licenses for the sale of foreign liquor, Indian made foreign spirits, Indian made wines and beer brewed in India, not to be consumed on the licensed premises. They were in Form No. F. L. 1 as prescribed by R. 7 of the Cochin Rules. By Cl. (1) of these licenses the privilege extended only to sales to other wholesale or retail licensees and sale to persons other than licensees was prohibited except in sealed receptacles to such extent and in such manner as might be permitted by the Commissioner. The licenses further provided that the quantity to be sold in one transaction to person other than licensees was not to be less than one pint.

(3.) By an order dated December 19, 1949, (Exb. B) the Board of Revenue of the United State of Travancore Cochin, one of the appellants before us, informed the respondent that his sale quota to persons other than licensees had been fixed as therein mentioned. By a memorandum (Exb. C) issued by the Assistant Excise Commissioner on June 23, 1951, and endorsed by the Excise Inspector, Ernakulam on July 1, 1955, the respondent was informed that he must remit a commission on all sales in excess of the quota fixed for him calculated at 20% on his cost price for such excess quantity sold by him. The respondent maintained that the excise authorities had no right whatever to fix the quota or to direct that commission would be payable on sales in excess of that quota. He complained that the excise authorities had no right to fix different quotas for different licensees as had been done and thereby introduce unfair discrimination opposed to Art. 14 of the Constitution. He further contended that the aforesaid two orders amounted to an unreasonable restriction on his freedom to carry on his business and constituted an infringement of his fundamental rights under Art. 19 (1) (g) of the Constitution.