GEHLOT ENGINEERING WINE STORE Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) ALL the petitioners were licensees for vending foreign liquor as retailers for Bali Tehsil for the financial year 1977-78 commencing from the 1st of April, 1977 and ending on the 31st of March, 1978 In exercise of powers conferred under sub-section (3) of section 1 of the Rajasthan Prohibition Act, 1969 (Rajasthan Act 17 of 1969) in short the Prohibition Act, the State Government by a notification dated 20th of October, 1977 extended the provisions of the Prohibition Act to the area covered by Tehsil Bali with effect from the 1st of December, 1977. By another notification of the same date it has been notified that from the 1st of October, 1977, it would not be permissible for any one to either possess liquor or to transport it or to import it. ALL the petitioners have been served with notice issued by Excise Commissioner stating therein that as the State Government is introducing prohibition in the area covered by Tehsil Bali by extending the prohibition Act from the 1st of December, 1977, the licences for sale of foreign liquor in retail are cancelled under sec. 35 of the Rajasthan Excise Act, hereinafter called the Excise Act. The petitioners, therefore, in all these nine petitions pray for writ, direction or order declaring sub sec. (3) of sec. 1 of the Prohibition Act and sec. 13 and sub-sec. (4) of sec. 19 of the Excise Act ultra vires of the Constitution of India. They further pray for quashing the notification dated 20th of October, 1977, bringing into operation the provisions of the Prohibition Act in Tehsil Bali of District Pali. The petitioners also pray for quashing the notification dated the 20th of October 1977 introducing the prohibition in Bali Tehsil from 1st of December, 1977. The petitioners further pray for quashing the notice cancelling their licences isued by the Excise Commissioner and restraining the respondents from interfering with their right of carying on trade in vending foreign liquor in retail in their respective licences which are valid upto 31st of March, 1978.

(2.) AS the common questions of fact and law are involved in all these 9 writ petitions they are, therefore, being disposed of by a common order.

(3.) THE next contention which has been put forth on behalf of the petitioners is that their licences for vending foreign liquor as a retailer has been revoked in contravention of the provisions of section 35 of the Rajasthan Excise Act Mr Lodha contends that licence can be cancelled under section 35 on the fulfilment of certain preconditions which are conditions precedent for the cancellation of licence under section 35 of the Excise Act. His submission is that licence can be cancelled only on remitting a sum equal to the amount of the fee payable in respect thereof for 15 days but in the instant cases preconditions laid down in sec. 35 having not been fulfilled the cancellation of licences was illegal being contrary to the provisions of sec. 35. It has further been argued that if the cancellation of licences of the petitioners is hold to be invalid then the petitioners are entitled to carry on business under the licences despite the introduction of the Prohibition Act as under sec. 76 of the Prohibition Act the petitioners' right of privilege acquired under the licences is saved. THE question that at once arises is whether the petitioners' licences have been rightly cancelled under sec. 35. Admittedly conditions precedent for exercising power of cancelling licences under sec. 35 having not been fulfilled by remitting the requisite money as contemplated by that section. THE petitioners' right under the licence will be saved by virtue of clause (l) (b) of sec. 76 of the Act as the Excise Act repealed by virtue of promulgation of the Prohibition Act shall stand repealled but the repeal shall not affect any right, privilege acquired, accrued under the Excise Act. I, am, therefore, of the opinion that the order to bring into force the Prohibition Act in an effective manner, the State Government should take care to firstly validity cancel the licence as provided under sec. 35 so that no vestiges of right or privilege saved under sub-sec. (l) (b) of sec. 76 may rest in the licencee. THE State should, therefore, take due care in future to validly cancel the licence in order to avoid unnecessary complication by giving a lever to the licensee to seek the protection under sec. 76 of the Prohibition Act