Bombay High Court
Maharashtra Banjara Jagrati Sangathana
Versus
State of Maharashtra
Decided On:

Headnote:MAHARASHTRA COUNTRY LIQUOR RULES, 1973.

       Rules 23-A, 23-B-Bombay Foreign Liquor Rules, 1953, Rule 24-B-Constitution of India Article 14-Bombay Prohibition Act, 1949, Section 49 (as amended)-Trade or business of liquor Fundamental right to carryon such trade or business - Provision of licence fees Held, there Is no fundamental right for liquor business-Further provision of licence fees is not discriminatory or mala fide.

       However, what is material is that new Rule 23-A is inserted in the Country Liquor Rules under which a committee consisting of the Collector as the Chairman and other ex officio members in constituted to consider the applications for granting licences under Rule 23 Rule 23-B is also inserted in the said Rules by which the said committee also determines the number and location of the required shops and carries out the selection of candidates by drawing lots from the suitable candidates, subject to general or special orders, if any, issued in this behalf by the Government from time to time. The existing sub-rules (1) and (1-A) of Rule 24 are substituted by the new sub-rule (1) under which the Collector bas to grant licence in confirmity with the recommendations of the above committees and after satisfying himself that the premises proposed for location of the shop for selling country liquor are in conformity with the provisions of the Rules and instructions issued in this behalf, by the State Government or the Commissioner, from time to time and that there is no otber objection to grant the licence applied for. The said grant of licence is of course subject to the payment of the licence fee prescribed in sub-rule (1-B) under which, as stated above, the licence fees are revised recently on 16-3-1988.

       As regards the Foreign Liquor Rules, the relevant rules for vendors licence for sale of foreign liquor are Rules 24 and 25, where-under the procedure for grant of licence is almost similar to the procedure for grant of licence for sale of country liquor referred to above. It is however, material to see that the licence fees for foreign liquor are on the higher side as compared to country liquor and that a deposit of Rs. 10,000/- has to be paid in addition to the licence fees under Rule 25 of the Foreign Liquor Rules. The said Rules 24 and 25 of the Foreign Liquor Rules are also similarly amended by the State Government under the Notification 178 No. BPA. 1089/II-PRO-2, dated 17-2-1989, (Maharashtra Government Gazette Part IV-8 dated 9-3-1989, p. 313), and similar provisions about the constitution of the committee for consideration of the applications for grant of licence inserted in the said rules as Rule 24-A and Rule 21-B. It is in the light of the above provisions that the challenges of the petitioner in the instant writ petition have to be considered.

       In considering the challenge of the petitioner under Article 14 of the Constitution, it is necessary to bear in mind the limitations of the said challenge. It is well settled by several decisions of the Supreme Court and in particular its decision in the case of Har Shankar v. Deputy Excise Taxation Commissioner, AIR 1975 SC 1121, that there is no fundamental right in a citizen to carryon trade or business in liquor. The State under its regulatory power has the power to prohibit absolutely every form of activity in relation to intoxicants-its manufacture, storage, export import, sale and possession. No one can claim as against the State the right to carryon trade or business in liquor and the State cannot be compelled to part with its exclusive right or privilege of manufacturing and selling liquor.

       It is true that when the State decides to grant such right or privilege to others the State cannot escape the challenge under Article 14 of the Constitution. However, as held by the Supreme Court in the case of State of M.P. v. Nandlal, AIR 1987 SC 251, the Court would be slow to interfere with the policy laid down by the State Government for grant of licences for manufacture and sale of liquor, having regard to the nature of the trade or business, and thus the Court would allow a large measure of latitude to the State Government in determining its policy of regulating manufacture and trade in liquor. What is important from the point of view of challenge under Article 14 of the Constitution is that since the grant of licences for manufacture and sale of liquor is essentially a matter of economic policy the Court would hesitate to intervene and strike down what the State Government had done, unless it appears to be plainly arbitrary, irrational or mala fide.

       Turning now to the challenge of the petitioner under Article 14 of the Constitution, it must be borne in mind that what procedure should be followed in grant of licence for sale of foreign liquor, country liquor or toddy shop is essentially a matter of policy to be decided by the State Government and if in its wisdom the State Government has decided to prescribe licence fee for grant of licence for sale of foreign liquor and country liquor, which can always be revised at the discretion of the State Government, from time to time to achieve the object of augmenting the finances of the State from these resources; it cannot be said that said Licensing Rules in respect of foreign liquor and country liquor are per se arbitrary and discriminatory only because under the Licensing Rules for toddy shops the licences are granted by bolding auctions or by calling tenders.

       As regard the challenge that by granting additional licences under its present policy, the Government intends to create and perpetrate a liquor lobby of its own and, therefore, the said Licensing Rules for sale of foreign liquor and country liquor should be struck down as mala fide, the said challenge also cannot be upheld, particularly in view of the present amendments to the said Rules by which now the power to grant licence is not with the State Government but is with the Collector who bas to grant the licences in conformity with the recommendations of the committee constituted for the said purpose as referred to above. It may also be seen that there is no scope for favouritism before the committee because under Rule 23-B for country liquor and Rule 24-B for foreign liquor the selection of the candidates for grant of licences from amongst the suitable candidates has to be done by drawing lots. There is thus no scope for the State Government to interfere with the actual process of grant of licences to any individuals much less to create and prepetrate any liquor lobby.

       For citation : (1990) 3 Bom CR 2