Judgment

DESAI, K.:- Law touching manufacture, import, use or consumption of liquor (as understood in common parlance) is recently vigorously assailed with almost afflicted sentimentalism that even though we have dismissed this batch of Special Leave Petitions on 23rd March, 1979, in fairness to petitioners on whose behalf all possible contentions that can be formulated by research and dialectics were advanced with eloquence and devoid of inebriation likely to be caused by the subject-matter of dispute, we propose shortly to state our reasons for dismissal of the petitions.

2. To illumine the contours of controversy events preceding the promulgation of the Ordinance amending the Punjab Excise Act, 1914 (Act for short), as in force in the Union Territory of Delhi (Delhi for short) styled as Punjab Excise (Delhi Amendment) Ordinance, 1979 (Ordinance for short) may be stated. Punjab Excise Act, 1914 has been extended to Delhi. While implementing the provisions of the Act, the concerned authority used to hold auction for grant of license in Form L-10 for selling country liquor and at one such auction held on 29th March, 1978 the petitioners bids were accepted and they were granted licences in Form L-10 for the period 1st April, 1978 to 31st March, 1979. The licence included a condition to sell a bottle of 750 ml. of country liquor at Rs. 15/- which was, inter alia, made up of excise duty at the rate of Rs. 10.23 and profit of licensee at the rate of Rs. 2/-. This excise duty was styled as still head duty for obvious reasons. In Writ Petition No. 716/78 filed in the High Court of Delhi by certain petitioners, validity of the levy of still head duty was challenged inter alia on the ground that it was nothing, but countervailing duty and in the absence of manufacture of liquor in Delhi, countervailing duty on the import of liquor cannot be constitutionally levied. This contention found favour with a learned Single Judge of the Delhi High Court and a number of Letters Patent Appeals were filed against that judgment which were pending in the High Court. In the meantime on 20th January, 1979 the President of India promulgated the Ordinance purporting to amend the Punjab Excise Act with retrospective effect and conferring power on the Government under the provisions of the Act of levy special duty on the import of a country liquor in Delhi at rates not exceeding that set out in Schedule 1-A which was introduced in the Act by the Ordinance. Pursuant to the Ordinance amending the principal Act, the Delhi Fiscal Duty Order, 1979, was issued levying special duty at the rates set out in the order on import of country liquor into Delhi. Some of the petitioners questioned the validity generally of the Ordinance and specifically of the impost of special duty in Civil Writ No. 116/79. A Division Bench of the Delhi High Court heard and Letters Patent Appeals against the judgment of the learned single Judge of the Delhi High Court as well as the aforementioned writ petition and by a common judgment held the Ordinance as well as the impost thereunder valid and dismissed the writ petition and allowed the Letters Patent Appeals setting aside the judgment of the learned single Judge. This bunch of petitions is filed against the judgment of the Delhi High Court in Civil Writ No. 116/79 and allied writ petitions and the Letters Patent Appeals.

3. The cardinal question around which the various facets of controversy rotates turns upon the competence of Parliament to enact legislation under challenge which would directly impinge upon the competence of the President to issue the impugned Ordinance. Article 123 of the Constitution enables the President to issue an Ordinance in the circumstances thereunder mentioned and the power to issue Ordinance is co-extensive with the legislative power of Parliament vide Art. 123 (3). The question, therefore, is whether Parliament had the power to impose special duty on the import of country liquor in Delhi.

4. In order to av