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1981 DIGILAW 33 (RAJ)

Dal Chand v. State of Rajasthan

1981-02-02

P.D.KUDAL

body1981
P.D. KUDAL, J.—This writ petition is directed against the order of the respondent whereby the renewal of the license for sale of foreign and Indian liquor was not granted. This license was issued to the petitioner for retail sale of foreign and Indian liquor for Apsara Hotel on 30th August, 1969. This license was renewed from time to time and the last renewal was for the period commencing from 1st April, 1979, to 31st March, 1980. The petitioner applied for renewal of the license vide his application dated 28th February, 1980 and also deposited a sum of Rs. 10,000/-on account of renewal fee of the license and Rs. 1,000/- being the ware Fee. 2. In exercise of the power conferred by sub-section (3) of section 1 of the Rajasthan Prohibition Act, 1969 (hereinafter to be referred to as the Act) the State Government proceeded to specify Udaipur inter alia as an area in which the Act shall come into force with effect from 1st April, 1980 vide SO. No. 245 published in the Rajasthan Gazette Extra-ordinary dated 31st March, 1980. The stock of liquor which was available with the petitioner in the Bar attached to bis Hotel came to be sealed after preparation of the inventory on 31st March, 1980. The petitioners grievance is that the stock of liquor which was available in the Bar maintained by Three Star and above Hotel, Tourists Corporation Hotel and Midways was not sealed and they were allowed to be available of the license granted to them during the year preceding 1st April, 1980, if they had made an application for renewal. It was further contended by the petitioner that vide Annexure 7 dated 3rd April. 1980, the Excise Inspector, Udaipur, called upon the petitioner to appear before him with record of the sale of the liquor to the foreigners. The petitioner accordingly appeared before the Excise Inspector and produced the necessary record. As the license was not renewed and the petitioner did not hear anything about his application for renewal he submitted an application for grant of license by way of renewal along with submission of the list of foreign tourists. But, having not heard anything on this application, further applications were moved on 18th April, 1980 and 20th April, 1980. As the license was not renewed and the petitioner did not hear anything about his application for renewal he submitted an application for grant of license by way of renewal along with submission of the list of foreign tourists. But, having not heard anything on this application, further applications were moved on 18th April, 1980 and 20th April, 1980. The Act came into force on 19th September, 1969, but so far as Udaipur was concerned it was extended to 1st April, 1980. 3. Under section 31 of the Act, power is vested in the Prohibition Commissioner to issue licenses inter alia to the Proprietors of the Hotel to possess liquor and issue it to the visiters who hold permits under clause (a) of sec. 31 of the Act. The petitioner further contended that in exercise of the power conferred upon it by sections 31, 32, 34 and 68 of the Act, the State Government proceeded to make the Rajasthan Prohibition (Grant of Hotel Licences) Rules, 1976 (hereinafter to be referred to as the Rules). Rule 3 of the Rules lays down the eligibility and procedure for grant of hotel license and provides that any person who owns and runs a hotel as defined in these rules and who does not possess any of the disqualifications mentioned in sub-rule (10) of Rule 3 shall be eligible to apply for a hotel license. The petitioner states that he is fully eligible for grant of a license, and he does not suffer from any disqualifications mentioned in clauses (a) to (e) of sub-rule (10) of Rule 3 of the Rules. The petitioner has further contended that in order to meet the situation prevailing on account of the enforcement of the Act, the State Government proceeded to issue telegraphic instructions providing inter alia that the licenses granted to Three Star and above hotels, Tourist Corporation Hotels and Midways and other hotels, in the preceding year to continue to operate under old license if applied for renewal with conditions substituted as prescribed under the Prohibition Rules such license, if granted to be deemed effective from 1st April, 1980 and that the sale of liquor in other hotels shall be stopped. The contention of the petitioner is that this action of the State Government is discriminatory in nature and strikes at the fundamental rights of the petitioner to carry on the trade and business in the sale of liquor. 4. The petitioner further contends that because of the following circumstances the respondents should be directed to issue a license to the petitioner for which he has already made an application and that the exercise of discretion by the respondent not to renew the license be declared as arbitrary, capricious and discriminatory : (a) It was not open to the Excise Commissioner to seal the stock of liquor and the Bar maintained for the sale of the same in Apsara Hotel of the petitioner. Telegraphic instructions (Annx 12) are discriminatory and deserve to be struck down. (b) That the whole purpose of issuing instructions is to ensure that no inconvenience is caused to the foreign tourists for whom liquor is normally indispensable and therefore if any person running a hotel to which a license is granted before 1st April, 1980 is not allowed to avail the license granted to it if a renewal application has been made, then this will clearly be a case which has no nexus for the purpose for which the instructions have been issued so as to render such an action ultra vires of Article 14 of the Constitutions of India. (c) That the hotel run by the petitioner is in no way inferior to a Three Star Hotel and, therefore, the refusal to renew license in favour of the petitioner tent amounts to discrimination. (d) That such on order has not been made by the State Government despite the lapse of so much of time. Once a person is found to be eligible for the grant of a licence, then he cannot be denied the grant of the license except on merits and the State Government cannot just remain silent as it is obliged to pass an order in terms of Sub-rule (9) of Rule 3 of the Rules. 5. The respondents have filed reply to the writ petition. It has been contended on behalf of the respondents that the petitioner does not own a hotel which can be ear-marked as a Three Star, Four Star and Five Star Hotel. 5. The respondents have filed reply to the writ petition. It has been contended on behalf of the respondents that the petitioner does not own a hotel which can be ear-marked as a Three Star, Four Star and Five Star Hotel. It was further contended that the petitioners hotel is mainly housed with the various offices of government departments and rest of the accommodation is being given to the foreign students who come Udaipur for a study for limited period. Thus, it was submitted that this hotel cannot be specifically meant for foreign tourists. It was further contended that in accordance with Rule 2(f) of the Rajasthan Prohibition (Grant of Hotel Licenses) Rules, 1976, the Prohibition Commissioner shall grant the retail licenses for sale of foreign liquor to such of the hotels which makes sale to the persons holding the permits under section 31 (a) of the Rajasthan Prohibition Act, 1969 and foreign and Indian tourists visitors staying or residing in it for consumption room ear-marked for serving liquor or dining hall or drawing room or any other part of the hotel as may be approved by the Prohibition Commissioner. Thus, the condition precedent for the grant of hotel licenses under these provisions is that first the hotel owner is to get it approved a particular dining hall or room to be get approved or ear-marked by the Prohibition Commissioner and this has not been done by the petitioner in the present case. 6. It was further contended that the Apsara Hotel is a very ordinary hotel in which no facilities for the stay of foreign tourists are available: no res-tourent facility is available to the foreign tourists. It has been further contended that for the purpose of accommodating the foreign tourists, Udaipur has got Tourists Bongalows, Circuit House, Anand Hotel, Laxmi Vilas Hotel and Lake Palace Hotel. Generally, all these tourists stay in these hotels. The petitioner has also given a major portion of the hotel on rent to the Government offices and the remaining portion can hardly be called hotel at all. It was further contended that the remaining portion of the hotel is given to some foreign students who come for study at Udaipur University and who stay for about three or four months. 7. It was further contended that the remaining portion of the hotel is given to some foreign students who come for study at Udaipur University and who stay for about three or four months. 7. It was further contended that the petitioner had applied for the renewal of license for the year 1980-81 and on that application the information was collected and inquiry was conducted; but the management of the Apsara Hotel did not furnish the necessary information. It was further contended that the application on behalf of Apsara Hotel was not in the prescribed form, but was merely an application and consequently, the petitioner was not entitled for renewal or grant of new license or permission in this regard. It was further contended on behalf of the respondents that in accordance with Rule 3 of the Rajasthan Prohibition (Grant of Hotel Licences) Rules, 1976, the procedure for grant of license to the approved hotels is prescribed. The State Government has specified that the Bar licenses would be granted only to the three stars, four stars, five stars hotels and the hotels managed exclusively by for the purposes of foreign tourists. The petitioners hotel does not come within any of the categories mentioned above. It was further contended that the petitioner did not apply in the prescribed form. The petitioner was, thus, not entitled for grant of license, as the petitioner did not apply in the prescribed form, the State Government could have rejected the petitioners application without giving any reasons whatsoever. It was further contended that when the Prohibition Commissioner did not renew the petitioners license, the petitioner had remedy by way of appeal to the Board of Revenue, Ajmer under section 67 of the Rajasthan Prohibition Act, 1969. The petitioner did not avail of this opportunity. It was further contended on behalf of the respondents that the Prohibition Commissioner has personally informed the petitioner that his hotel does not come within the category of hotels mentioned in Annexure 12 and, as such the petitioners application is liable to be rejected. It was further contended that the petitioner cannot invoke the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India merely because he has been refused renewal of the license or that he has not been granted license in accordance with the Rajasthan Prohibition (Grant of Hotel Licenses) Rules, 1976. It was further contended that the petitioner cannot invoke the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India merely because he has been refused renewal of the license or that he has not been granted license in accordance with the Rajasthan Prohibition (Grant of Hotel Licenses) Rules, 1976. It was further contended that a remedy by way of appeal before the Board of Revenue for Rajasthan, Ajmer under section 67 of the Act was available and as the petitioner has not availed of the same, the petition is liable to be dismissed. 8. On behalf of the petitioner reliance has been placed on Ramana vs. LA. Authority of India(l) and Kasturilal Lakshmi Ready vs. State of J & K(2). 9. On behalf of the State, reliance has been placed on Har Shanker vs. Dy. E & T Commissioner (3). Reliance was also placed on Kasturi Lal Lakshmi Reddy vs. State of J & K (Supra) and Peerulal vs. State of Rajasthan (4). 10. Respective contentions of the learned counsel for the parties have been considered and the record of the case carefully perused. 11. The main grievance of the petitioner is that while three star, four star and five star hotels along with midways have been permitted to sell liquor by way of renewal of the licence, the petitioners hotel has been denied the same. The contention of the petitioner is that this action of the State Government is arbitrary, capricious and discriminatory. It must be pointed out that, firstly, the classification which the State Government has done is quite reasonable. The tourists who come from abroad are addicted to liquor and not to provide adequate facilities to the foreign tourists would be to deny them their legitimate requirement. The foreign tourists usually come and stay in good hotels which have been classified in Annexure 12 as star three hotels and above, midways, tourists hotel, circuit house and other hotels run by the Indian Tourist Development Corporation. The petitioner has no fundamental right or inherent right to do trade or business in intoxicants. Liquor which is an intoxicant is injurious to public health, morality and welfare. Under such circumstances the State has the power to prohibit the trade in liquor which is harmful to the public health, morality and welfare and, therefore, no person has an absolute right to deal in liquor. Liquor which is an intoxicant is injurious to public health, morality and welfare. Under such circumstances the State has the power to prohibit the trade in liquor which is harmful to the public health, morality and welfare and, therefore, no person has an absolute right to deal in liquor. It cannot be safely contended that in not issuing renewal of license to the petitioner the Prohibition Commissioner has violated the principles of equity before law and has in no way in fringed the provisions contained in Articles 14 and 19(1) (f) and (j) of the Constitution of India. Reference may be made to Hukumchand Mills vs. State of Madhya Pradesh (5) and Afzal Ullah vs. State of Uttar Pradesh (6). 12. In Nashirwar vs. State of M.P. it has been held as under :— "Trade in liquor has historically stood on a different footing from other trades. Restrictions which are not permissible in other trades are lawful and reasonable so far as the trades liquor is concerned That is why even prohibition of the trade in liquor is not only permissible, but is also reasonable. The reasons are public morality, public interest and harmful and dangerous character of the liquor. The State possesses the right of complete control over all aspects of intoxicants, viz, manufacture, collection, sale and consumption. The State has exclusive right to manufacture and sell liquor and to sell the said right in order to raise revenue." 13. The State, under its regulatory powers, has the right to prohibit absolutely every form of activity in relation to intoxicants. This power of control is an incident of the societys right to self-protection and it rests upon the right of the State to care for the health, morals and welfare of the people. Liquor traffic is a source of pauperism and crime. 14 In view of this position of law, if the Prohibition Commissioner has refused to renew the license to the petitioner, in the circumstances mentioned above, it cannot be said that he has done anything which is contrary to the requirement of Articles 14 and 19 of the Constitution of India. It cannot be said by any stretch of imagination that the order of the respondents is in any way arbitrary capricious or discriminatory or violates the fundamental rights of the petitioner to do trade or business in the sale of liquor. It cannot be said by any stretch of imagination that the order of the respondents is in any way arbitrary capricious or discriminatory or violates the fundamental rights of the petitioner to do trade or business in the sale of liquor. 15, For the reasons stated above, there is no force in this writ petition which is hereby dismissed. Looking to the facts and circumstances of the case, the cost is made easy.