BABULAL JAISWAL Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) These Writ Petitions are filed challenging the Chhattisgarh Excise (Amendment) Ordinance, 2017 and consequential Rules framed to give effect to the modality of enforcing the amended provision. Writ Petition (C) No. 726/2017 and Writ Petition (C) No. 728/2017 are by two licensees who at or before coming into force the Amendment Ordinance were licensee IMFL outlets who were permitted to sell Indian made foreign liquor in retail. The third Writ Petition, WP(PIL) No. 49/2017 is instituted in public interest.

(2.) The Public Interest Litigation is footed on a plea referable to constitutional amalgamation which arises out of the composite and comprehensive considerations of Article 14, 47 and 298 of the Constitution. The other two Writ Petitions are on assertions as to fundamental rights referable under Article 19(1)(g) rendered along with Article 14 thereof, as also the plea that the provisions of Article 298 of the Constitution should be understood in the backdrop of the rights of the private vendors.

(3.) The plea of the IMFL retailers who are before us fundamentally stands answered through the Judgment of the Apex Court in Khoday Distilleries Ltd v. State of Karnataka1 wherein it was held that the right to deal in potable liquor is not available as part of the fundamental right to trade or carry on business and such activity would be res extra commercium. With such law laid by the Apex Court, the plea of the Petitioners in the Writ Petitions filed in private interest cannot be traced to Article 19(1)(g). That being so, much labour is not required to hold that notwithstanding the availability of the monopoly rights to the State as per Article 19(6)(ii) of the Constitution, such exclusive right of the State is also traceable to Entry 21 in List III of the Seventh Schedule of the Constitution, in terms whereof, the State gets the power to legislate in relation to the commercial and industrial monopoly. It is beyond any dispute in the realm of the constitutional law that the executive power is co-extensive with the legislative power. That being so, the granting of monopoly to institutions, or a firm, or corporation and company exclusively under the control of the Government concerned would easily stand the test as to constitutionality on the face of Article 19(1)(g) as well as 1 (1995) 1 SCC 574 Article 14 of the Constitution.