Judgment

VENKATACHALA, J. - This appeal on certificate of fitness to appeal to this Court ranted by the High Court of Judication at Hydrabad relates to its judgment dated August 29, 1972 in Civil Miscellaneous Writ Petition No. 4163 of 1972.

2. Antecedent facts of this appeal, which need brief mention, are these :

On 30th June, 1972, the Uttar Pradesh Excise (Amendment) Ordinance 1972, herenafter referred to as "the Ordinance", was promulgated by the Governor of Uttar Pradesh in exercise of the powers conferred upon him by clause (1) of Article 213 of the Constitution. The Ordinance, which omitted clause (3) of the Proviso to Section 21 and Subsection (3) of Section 40 of the United Provinces Excise Act, 1910, hereinafter referred to as "the U. P. Excise Act", inserted therein Sec. 24-A which read :

"24-A (1) Subject to the provisions of Section 31, the Excise Commissioner may grant to any person a licence or licences for the exclusive privilege of selling by retail at shops (for consumption both on and off the licensed premises or for consumption off the licensed premises only) any foreign liquor in any locality.

(2) The grant of licence or licences under sub-section (I) in relation to any locality shall be without prejudice to the grant of licences for the retail sale of foreign liquor in the same locality in Hotels and Restaurants for consumption on their premises.

(3) Where more licences than one are proposed to be granted under sub-section (1) in relation to any locality over the same period, advance intimation of the proposal shall be given to the prospective applicants for every such licence.

(4) The provisions of Sections 25 and 50 and the proviso to Section 39 shall apply in relation to the grant of a licence for an exclusive privilege under this section as they apply in respect of the grant of a licence for an exclusive privilege under Section 24."

3. Reasons for promulgation of the Ordinance were given in its preamble, thus :

"And whereas while the said Act makes express provision for the grant of licences for the exclusive privilege of selling country liquor by retail in any local area it does not contain express provision in similar terms in respect of foreign liquor ;

And whereas it is expedient in the public interest to make express provision enabling the adoption of the system of grant of licences prevailing in respect of country liquor with necessary modifications for the grant of licences in respect of foreign liquor with a view to affording to all suitable applicants equality of opportunity to obtain such licence and also with a view to raising additional public revenues (through increased licence fees) out of the consumption of foreign liquor which is a luxury."

4. For giving due effect to the Ordinance, the U. P. Excise (Amendment) Rules, 1972, hereinafter referred to as "the Excise (Amendment) Rules", which amended the U. P. Excise Rules, were bought into force with effect from 1st August, 1972, as per Notification dated 5th July, 1972 issued by the Excise Commissioner, U. P. u / S.41(c) of the U. P. Excise Act. Rule 2(1) thereof read :

"The licence fees for the retail vend of the following commodities under the auction system is fixed by public auction periodically, but the Excise Commissioner reserves the right to grant any licence on payment of a fixed fee or fee determined in accordance with a graduated or uniform scale.

(a) Country spirit.

(b) Tari in areas other than those under the Tree Tax system.

(c) Foreign liquor for consumption "on and off the premises in Form FL-4 and "off" premises in Form FL-5.

(d) (i) Hamp drugs: Note (1) the settlement of Tari shops under the auction-cum-tree Tax system is also made by public auction.

(ii) Ganja shops are at present settled under the Uniform Surcharge fee system.

Provided that the licence for the retail vend of foreign liquor for consumption off the premises only in Form F.L. 5 in the prohibition area shall be determined in accordance with a uniform scale."

5. Shop Licenc