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IN THE HIGH COURT OF PATNA
S.K. Jha and M.P. Varma, JJ.
Shivjee Prasad - Appellants
Vs.
The State of Bihar and Others - Respondent
C.W.J.C. Nos. 1029, 1030 and 1046 of 1979
C.W.J.C. Nos. 999 and 1031 of 1979
C.W.J.C. No. 1068 of 1979
Decided On: 18.05.1979
The impugned notification issued by the State Government purporting to prohibit the possession and/or consumption of any intoxicant other than Bhang and Tari by any person except a person specially authorised in this behalf or a holder of a licence, pass or permit duly granted in this behalf, was challenged on the grounds of violation of fundamental rights, principles of equality, and directive principles of state policy. The court held that the impugned notification was not an expression of the legislative will and was, therefore, ultra vires. The court also held that the notification violated the principles of equality as it made an invidious discrimination between Adibasis and non-Adibasis in the matter of manufacture and consumption of country liquor.
Fact of the Case:
The petitioners, including licensees of country liquor shops, employees of country liquor and Ganja shops, and consumers of liquor, challenged the validity of a State Government notification imposing complete prohibition on the possession and/or consumption of intoxicating liquors. The notification was issued in purported exercise of the power conferred on the Government by Section 19(4) of the Bihar and Orissa Excise Act, 1915.
Finding of the Court:
The court held that the impugned notification was not an expression of the legislative will and was, therefore, ultra vires. The court also held that the notification violated the principles of equality as it made an invidious discrimination between Adibasis and non-Adibasis in the matter of manufacture and consumption of country liquor.
Issues: 1. Whether the impugned notification was an expression of the legislative will? 2. Whether the notification violated the principles of equality?
Ratio Decidendi: 1. The court held that the impugned notification was not an expression of the legislative will as it was not contemplated by Article 47 of the Constitution, which merely laid down a guide line to the State to endeavour to bring about prohibition as a part of the directive principles of state policy. The court also held that the notification was not authorised by Section 19(4) of the Bihar and Orissa Excise Act, 1915, as the expression 'any person' in the provision could not be interpreted to include the public at large. 2. The court held that the notification violated the principles of equality as it made an invidious discrimination between Adibasis and non-Adibasis in the matter of manufacture and consumption of country liquor.
Final Decision: The court allowed the writ petitions and quashed the impugned notification. The court also issued a writ of mandamus commanding the respondents not to give effect to the notification.
S.K. Jha, J.
1. These cases involve an enquiry into the validity of the State Government notification no. S.O. 566 dated 27th of March, 1979 published in the Bihar Gazette Extraordinary of the same date. The notification in question has been purported to be issued in exercise of the powers conferred on the Government by Sub-section (4) of Section 19 of the Bihar and Orissa Excise Act, 1915 (Bihar and Orissa Act II of 1915) hereinafter to be referred to as the 1915 Act. By this notification, "the Governor of Bihar is pleased to prohibit throughout the State of Bihar the possession and/or consumption of any intoxicant other than Bhang and Tari by any person except a person specially authorised in this behalf or a holder of a licence, pass or permit duly granted in this behalf". The notification has been made effective from the 1st of April, 1979. There are two provisos to this provision in the notification to which reference may have to be made at an appropriate place. Suffice it to say that generally speaking by the impugned notification a complete prohibition on the possession and/or consumption of Intoxicating liquors--both country and foreign--has been imposed. The petitioners of all these applications some under Article 226 and some under Articles 226 and 227 of the Constitution of India-have challenged the validity of this notification as also of the circular preceding the notification, the circular being marked 'confidential' bearing no. 2390 dated 23rd March, 1979 addressed to all the Collectors and Deputy Commissioners in the State purporting to have been issued under the Bihar Prohibition Act, 1938 (Bihar Act 6, 1938) hereinafter to be referred to as the 1938 Prohibition Act, intimating that sale and consumption of country-made liquor as also foreign liquor shall be banned with effect from the 1st of April, 1979. Various grounds of attack have been suggested in the petitions as also submitted in course of arguments by various counsel appearing for different sets of petitioners. The real bone of contention, however. Is whether the impugned notification can be said to be an expression of the legislative will without which it can have no legal sanction. Before coming to the legal aspects of the matter it is only meet and proper that I should give the bare; minimum and the only relevant facts on the basis of which such a challenge has been made. The petitioners of C.W.J.C. Nos. 999, 1029 and 1030 all of 1979 were licensees on the day they filed their applications of the country liquor shops. They were engaged in the trade of vending country spirit and Mashaladar country liquor. The petitioners of C.W.J.C. 1046 of 1979 were holders of licences on the date that writ application was filed for dealing exclusively in foreign liquor. Petitioner No. 16 of that writ application is an association of dealers called the Bihar Wine Association. The petitioners of C.W.J.C. 1031 of 1979 assert to be consumers of liquor, be it country liquor or foreign liquor, with temperance with a view to preserve their vitality which is essential for their life and health. Admittedly, on the 13th of March; 1978 the State Government took a decision for phase-wise prohibition in the State in course of four years. A copy of the notification of that date has been marked annexure 1 in C.W.J.C. 1029 of 1979. It is worthwhile to mention here that the legality and validity of that notification was also the subject-matter of challenge in a batch of cases, namely, C.W.J.C. 640 of 1978 and 3 other cases which came up for final hearing before a Bench of which I was the presiding Judge and delivering the JUDGMENT : on behalf of the Bench on 27th June, 1978, the validity, and legality of that notification dated 13-3-78 was upheld as being reasonable restriction by banning or prohibiting sale of liquor (mostly country liquor shops) in certain specified areas. The notification impugned in that writ application being in favour of a class of persons within the
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