K.P. SUI Vs. STATE OF U.P.

JUDGEMENT

(1.) THIS petition has been filed challenging a rule framed by the Excise Commissioner in purported exercise of his power under Section 41(e)(v) of the U.P. Excise Act, 1910 (hereinafter referred to as the Act). The rule provides for the closure of the shop on every Tuesday and some other days. The petition is confined only to that part of the rule which deals with the closure of the shop on Tuesdays. The Petitioners have obtained licence for tapping and sale of Tari and contend that the rule requiring the closure of shop on Tuesday as well as attachment of the condition in respect thereof in the licence are void.

(2.) LEARNED Counsel for the Petitioner has contended that this power exercised by the Commissioner is beyond the rule -making power conferred on him by Section 41(e)(v) of the Act as Tuesday in every week cannot be regarded as a special occasion within the meaning of that Section. It is contended that if the shop remains closed on Tuesday it will not be possible for the Petitioners to sell Tari collected on Mondays before ft gets spoiled. It is also contended that if Tari is not allowed to be tapped and kept in the shop on Tuesday, the trees themselves will get dried up. According to the Petitioners they cannot keep the Tari tapped on Tuesday anywhere if the shop is to remain closed. The contention is that the rule about closure is for these reasons an unreasonable restriction placed by the Commissioner on the Petitioners' right to sell Tari.

(3.) SECTION 40 of the Act gives power to the State Government to make rules. It runs as under: