RATANSHAW NUSSERWANJI TODIWALLA Vs. GEOFFREY WILLIAM MCELHINNY

JUDGEMENT

(1.) THE petitioner is the owner of land in various districts upon which grow toddy-producing trees. Up to July 31, 1939, licences were granted to his agents or managers for tapping the trees and supplying toddy to shops. THEreafter owing to the introduction of prohibition no such licences were granted. By a letter dated November 18, 1940, from his solicitors to the Collector of Bombay, the petitioner applied for the issue of a licence to tap and draw toddy from the trees on his land at Lady Jamsetji Road, Upper Mahim, for private consumption, and not for sale. This application is not in the form prescribed by Rule 4 of the rules for the tapping of toddy-producing trees to which I shall presently refer, but the Advocate General informed me that he desired the matter to be argued as if the application were in the form prescribed by the rules. In a letter in reply dated November 29, 1940, the Collector regretted his inability to grant a licence. THE petitioner then appealed, as he was entitled to do, to the Commissioner of Excise, Bombay, by a petition dated December 3, 1940. By his letter dated December 7, 1940, the Commissioner informed the petitioner that the Collector was not bound to issue a tapping licence to the petitioner, and that he saw no reason for interfering with the order of the Collector. THE petitioner then presented a petition under Section 45 of the Specific Relief Acticle 1877, against both the Collector and the Commissioner asking that they and/or either of them might be ordered to grant and issue a licence. Copies of the application made to the Collector and the other documents above referred to are exhibited to the petition. A rule nisi was granted upon this petition. Before it came on for argument respondent No.2 went on leave. Mr. M. D. Bhansali, who has been appointed to officiate as Commissioner of Excise, has agreed to abide by any order made by the Court.

(2.) I propose in the first instance to consider the law as to the application for and the granting of licences for the tapping and drawing of toddy from toddy-producing trees before the introduction of prohibition into certain areas in the Province of Bombay, and thereafter to consider what effect prohibition had upon the law as it previously stood. The law is to be found in the Bombay Abkari Act of 1878 and in the rules made thereunder. As was pointed out by the Court in Emperor v. Woman Dhanraj (1908) 10 Bom. L. R. 171, the Abkari Act is a Licencing Statute, and in Emperor v. Chinubhai Lalbhai (1940) 42 Bom. L. R. 669, S. B. , the Court expressed the opinion that the object of the Act was primarily to secure Abkari revenue, though some of the sections, for example Section 17a and Section 35 (2) (g) and (h), showed that the Legislature intended also to confer power to control the trade in drink and drugs, and to obviate abuses which might arise from such trades. I proceed to review the relevant sections of the Act and the rules.

(3.) SECTION 5 is as follows:- The Provincial Government may, by notification in the Official Gazette, appoint any person other than the Collector of Land-revenue to exercise, in any district or place, all the powers and perform all the duties conferred and imposed by this Act on a Collector, subject to such control, if any, in addition to that of the Commissioner and of the Provincial Government as the Provincial Government may from time to time direct. This section in my opinion also relates to control of establishment, and not to the power to grant such licences.