U P Vs. K P SUI

JUDGEMENT

(1.) (On difference of opinion between the Judges constituting the Division Bench before the Special Appeal came for hearing): Consequent upon a difference of opinion between the learned Judges constituting the Bench hearing the Special Appeal and the writ petitions the following three questions have been referred to me for opinion :- 1. What is the true interpretation and scope of S. 41 (e) (v) of the U. P. Excise Act?

(2.) WHETHER the Excise Commissioner can make R. 13-B in exercise of his powers under the U. P. Excise Act?

(3.) THE first question referred relates to the true interpretation and scope of S. 41 (e) (v) of the Act. THE real question is whether this provision permits the Excise Commissioner to make a rule for the closure of licensed premises on every Tuesday. Sub-cl. (v) of clause (e) of S. 41 is in two parts: THE first part empowers the Excise Commissioner to make rules, fixing the days and hours during which any licensed premises may or may not be kept open. THE second part empowers him to make rules for the closure of licensed premises on special occasions. It was contended by learned counsel for the licensees that the two parts provided for different contingencies and, closure being specifically provided for in the second part, no rule for closure can be made under the first part. It was urged that the words 'may not be kept open' do not mean 'closure'. THEre is really no difference between closure and not keeping open. Whether the rule directs a licensed premises to be closed or whether it directs the licensed premises not to be kept open during a particular period or on a particular day means the same thing. It is, therefore, not correct to say that, under the first part, no rule can be made for the closing of licensed shops.