Back
HIGH COURT OF BOMBAY
CHAGLA, GAJENDRAGADKAR, TENDOLKAR, JJ.
Fram, Nusserwanji Balsara
Versus
State of Bombay
Misc. Appln. No. 139 of 1950
Decided On : 22-08-1950
The Bombay Prohibition Act, 1949 (Act XXV [25] of 1949) was challenged on the grounds of ultra vires, contravention of fundamental rights, and delegation of legislative powers. The court held that the Act was intra vires the Provincial Legislature, except for certain provisions that were void for contravening fundamental rights or constituting delegation of legislative powers. The court also held that the petitioner was entitled to an order restraining the government from enforcing the void provisions against him.
Fact of the Case:
The petitioner, Fram Nusserwanji Balsara, challenged the Bombay Prohibition Act, 1949 (Act XXV [25] of 1949) on the grounds that it was ultra vires the Provincial Legislature, contravened his fundamental rights, and constituted delegation of legislative powers. The petitioner sought a writ of mandamus or an order under Section 45 of the Specific Relief Act, 1877, directing the respondents to forbear from enforcing the provisions of the Act against him and to allow him to exercise his right to possess, consume, or use the articles which had been prohibited.
Finding of the Court:
The court held that the Act was intra vires the Provincial Legislature, except for certain provisions that were void for contravening fundamental rights or constituting delegation of legislative powers. The court also held that the petitioner was entitled to an order restraining the government from enforcing the void provisions against him.
Issues: 1. Whether the Bombay Prohibition Act, 1949 (Act XXV [25] of 1949) was ultra vires the Provincial Legislature? 2. Whether the Act contravened the petitioner's fundamental rights? 3. Whether the Act constituted delegation of legislative powers? 4. Whether the petitioner was entitled to an order restraining the government from enforcing the void provisions of the Act against him?
Ratio Decidendi: 1. The court held that the Act was intra vires the Provincial Legislature, except for certain provisions that were void for contravening fundamental rights or constituting delegation of legislative powers. The court reasoned that the Act fell within the scope of Items 29, 31, and 40 in List II of the Seventh Schedule to the Government of India Act, 1935, which dealt with production, supply, and distribution of goods; intoxicating liquor and narcotic drugs; and excise duties, respectively. The court also held that the Act was not ultra vires on the ground that it prohibited the possession, use, and consumption of certain articles, which were not intoxicating drinks, as the Legislature had the power to enact such provisions in order to enforce prohibition of intoxicating drinks. 2. The court held that certain provisions of the Act contravened the petitioner's fundamental rights under Articles 14, 19(1)(a), and 19(1)(f) of the Constitution of India. The court held that the provisions which prohibited the possession, use, and consumption of non-beverages and medicinal and toilet preparations containing alcohol were void as they offended against the petitioner's right to acquire, hold, and dispose of property under Article 19(1)(f). The court also held that the provisions which prohibited the legitimate use of non-beverages and medicinal and toilet preparations containing alcohol were void as they offended against the petitioner's right to freedom of speech and expression under Article 19(1)(a). 3. The court held that certain provisions of the Act constituted delegation of legislative powers. The court held that the provisions which empowered the government to grant licenses in cases other than those specifically provided for by the Act, to vary or substitute any of the conditions of the license, and to exempt persons or classes from the provisions of the Act were void as they constituted delegation of legislative powers. 4. The court held that the petitioner was entitled to an order restraining the government from enforcing the void provisions of the Act against him. The court reasoned that the petitioner had a right to enforce his fundamental rights under the Constitution and that the void provisions of the Act violated those rights.
Final Decision: The court held that the Bombay Prohibition Act, 1949 (Act XXV [25] of 1949) was intra vires the Provincial Legislature, except for certain provisions that were void for contravening fundamental rights or constituting delegation of legislative powers. The court also held that the petitioner was entitled to an order restraining the government from enforcing the void provisions against him.
Chagla, C. J. :- This is a petition by one Fram Nusserwanji Balsara who is a citizen of India, He has in his possession one bottle of whisky, one bottle of brandy (both partly used), one bottle of wine, two bottles of beer, one bottle of medicated wine, one bottle of eau-de-cologne, one bottle of lavender water, and some bottles of medicinal preparations. He alleges that he has been accustomed to drink and consume foreign liquor in a moderate manner for several years past and is also accustomed to the use of eau-de-cologne and lavender water. He challenges the Bombay Prohibition Act, 1949, as being ultra vires of the State Legislature and being also void as contravening several of the fundamental rights guaranteed to the citizen by the Indian Constitution. Originally he sought by his petition a writ of mandamus against the State of Bombay, which is respondent 1, and the Prohibition Commissioner, who is respondents ordering these respondents to forbear from enforcing against him the provisions of the Bombay Prohibition Act. He also sought for a writ of mandamus or an order under S. 45, Specific Relief Act, ordering the respondents to allow the petitioner to exercise his right to possess, consume or use the articles which have been mentioned before. It was realised by the petitioner in the course of the argument of this petition that even if he were to succeed, reliefs of the nature asked for by him may not be available to him. He therefore sought for an amendment of the petition. The amendment was opposed by the Advocate-General on behalf of the respondents. We gave him leave to amend as we took the view that by this amendment the petitioner was in no way altering his cause of action. He relied on the same averments as were contained in the original petition and all that he asked for was reliefs different from those which he had originally asked. We will consider the nature of the reliefs, and whether he is entitled to any of them, later.
2. The impugned Act is Act XXV [25] of 1949 passed by the Bombay Provincial Legislature as it then was. It is both an amending and consolidating Act and it contains provisions for the promotion and enforcement of and carrying into effect the policy of prohibition and also the Abkari law. The Abkari Act which was on the statute book was repealed by this Act and its provisions were incorporated into this measure. It also contains new provisions putting into force the policy of prohibition. Chapter I contains definitions of various expressions used in the statute and the material ones are those set out in S. 2 (22) and S. 2 (24). "Intoxicant" is defined as
". . . any liquor, intoxicating drug, opium or any other substance which the Provincial Government may, by notification in the Official Gazette, declare to be an intoxicant" ;, ..
Liquor" has an inclusive definition and it is defined as
"(a) spirits of wine, methylated spirits, wine, beer, toddy and all liquids consisting of or containing alcohol; and
(b) any other intoxicating substance which the Provincial Government may, by notification in the Official Gazette, declare to be liquor for the purposes of this Act....."
It will therefore be noticed that an "intoxicant" as defined by the Act is not merely an intoxicating liquor, but it embraces a much wider class of articles. It includes all liquids consisting of or containing alcohol. Chapter II deals with establishment with which we are not concerned. Chapter III is headed "Prohibitions". Section 11 makes it lawful to import, export, transport, manufacture, sell, buy, possess, use or consume any intoxicant only in the manner and to the extent provided by the provisions of the Act, any rules, regulations or orders made or in accordance with the terms and conditions of a licence, permit pass or authorization granted thereunder. Therefore, the right to intoxicants is restricted in a manner laid down in this section. Then follow Ss. 12 to 17 which contain prohibitions and these prohibitions ext
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
