BANGSHIDHAR BARGOHAIN Vs. STATE OF ASSAM & OTHERS

JUDGEMENT

(1.) The Commissioner of Excise of Assam invited on July 31, 1989 tenders for supply of rectified Spirit Grade I inter alia for three Warehouses, one at Jorhat, the second at Nazira and the third at Tinsukia. A large number of persons submitted tenders. The tenders were opened on Sept. 15 and were scrutinised and in suitable cases the Excise Commissioner with his recommendation tendered the papers to the State Government for settlement. The State at first decided the rates for each of the Warehouses and later identified the persons who should supply liquor to the Warehouses. In Memo No. 133/89/28 on May 15, 1990 Jorhat Warehouse was settled in favour of Niren Sarma for the period June 1, 1990 to May 31, 1993. In Memo No. 130/89/38 dated June 1, 1990 for Nazira Warehouse the settlement was made with a firm called M/S.R.. P. Associates for the period June 16, 1990 to June 15, 1993. As respects Tinsukia Warehouse in Memo No. Ex.129/89/20 dated May 14, 1990 the settlement was made with Pradip Kumar Dutta for the period June 1,1990 to May 31, 1993.

(2.) The three orders of the State Government are assailed in the group of above five writ petitions. Civil Rule 1095/90 is by Ajoy Dutta and Civil Rule 1136/90 is by Bangshidhar Bargohain, the two assail the order affecting Jorhat Warehouse. Ajoy Dutta in Civil Rule 1082/90 and Bangshidhar Bargohain in Civil Rule 1137/90 assail the settlement made of Nazira Warehouse. The settlement for Tinsukia is assailed in Civil Rule 1156/90 by Kuladhar Dutta. The three persons in whose favour the settlements are mace resist the writ petitions on more or less similar grounds as that of the State Government, therefore, all the five petitions are considered in one common judgment.

(3.) The settlement is made under Excise Act 1 of 1910, Assam Excise Rules of 1945 and under Executive Instructions. It is necessary to mention the character of liquor business under our Constitution at the outset. Art. 47 of the Constitution recites the State can enforce prohibition. Because of the Directive Principle in Art. 47, the Supreme Court in AIR 1951 SC 318, State of Bombay Vs. F.N. Balsara held a citizen has no fundamental right to trade in liquor. Besides from ancient times liquor is considered dangerous and harmful to health therefore the State created a monopoly in its favour. In view of these two aspects the Supreme Court held it would be "antithetical" if Courts recognise a right in favour of a citizen. In AIR 1975 SC 360, Nashirwar Vs. State of Madhya Pradesh , some cases holding to the contrary all were considered and overturned. Thus the petitioners and those with whom the settlement is made none of the persons therefore can claim any right or fundamental right in the business of liquor. In this connection a contention is raised at the inception as respects one of the conditions incorporated in the invitation to the advertisement on July 31, 1989. In that the State reserved right to alter the location of the Warehouses and in such a contingency of alteration no person will be heard to complain. The tenders to contain names of persons, firm or company to be furnished. The persons in whose favour the settlement is made perforce of necessity to take over the existing vats apparatus as prescribed in Rule 102 of Rules. The Government reserved the right to accept or reject or reduce the tender amount without disclosing the reasons. The spirit supplied must be of Gul Mahua or of Molasses. The liquor supplied to conform to ISI standards. The liquor to be transported in approved vehicles.