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GAUHATI HIGH COURT
K.N.Saikia, N.Ibotombi Singh, JJ.
B.N.Dey & Co.and others -Appellant
Versus
State of Assam & Ors. -Respondent
Civil Rules No. 315,316,318,319,325,333 and 335 of 1980.
Decided On : 21-09-1982
LIQUOR PROHIBITION ACT - FOREIGN LIQUOR - SETTLEMENT OF SHOPS - NOTICE - VALIDITY - LEGISLATION BY REFERENCE - INCORPORATION BY REFERENCE - DISTINCTION - CRITERIA TO DETERMINE - GENERAL CLAUSES ACT (1897), SECTION 8(1) - APPLICABILITY - ASSAM LIQUOR PROHIBITION ACT (1 OF 1953), SECTIONS 3, 20, 21, 22, 23 - ASSAM LIQUOR PROHIBITION RULES, 1953, RULES 6, 7, 11 - ASSAM EXCISE ACT (1 OF 1910), SECTIONS 2(5), 2(6) - ASSAM EXCISE RULES, 1945, RULES 272, 273.
Fact of the Case:
The petitioners, who were retail 'off' licence holders of India made foreign liquor, challenged the impugned notice issued by the Deputy Secretary to the Government of Assam, Excise Department, inviting applications for the grant of wholesale/retail off licences for a period of 3 (three) years from 1.8.80/the date of settlement, whichever is later, in the places mentioned in the Notice. The petitioners contended that the impugned notice was bad in law inasmuch as under Rule 11 of the Prohibition Rules licences for the purposes enumerated in Section 21 of the Prohibition Act shall be granted by the Deputy Commissioner/Sub-Divisional Officer or any other officer authorised by him and the State Government had no power, jurisdiction or authority to issue licence, nor had it any authority under the law to direct the Deputy Commissioner to accept or reject any such application.
Finding of the Court:
The Court held that the impugned notice was bad in law and quashed the same. The Court further held that the Government of Assam was restrained from making any settlement pursuant thereto. The Court also held that the petitioners had no fundamental right to liquor business, and that they having applied for licences were not estopped from questioning the notice.
Issues: 1. Whether the impugned notice was valid? 2. Whether the State Government had the power to issue licence or direct the Deputy Commissioner to accept or reject any such application? 3. Whether the petitioners had any fundamental right to liquor business? 4. Whether the petitioners were estopped from questioning the notice?
Ratio Decidendi: 1. The Court held that the impugned notice was bad in law as it was issued by the State Government, which had no power, jurisdiction or authority to issue licence, nor had it any authority under the law to direct the Deputy Commissioner to accept or reject any such application. 2. The Court held that the State Government had no power to issue licence or direct the Deputy Commissioner to accept or reject any such application. 3. The Court held that the petitioners had no fundamental right to liquor business. 4. The Court held that the petitioners were not estopped from questioning the notice.
Final Decision: The impugned Notice No. EX. 26/76/240 dated 7.6.80 is quashed and the Government of Assam is restrained from making any settlement pursuant thereto. The petitions are allowed and the Rules made absolute. We, however, make no order as to costs.
In these seven wit pe'imns the petitioners impugn the sime Notice NX EX. 26/76/240 dated 7. 6. 80 for settlement of fcreign liquor shop, issued by the Dsputy Secretary to the Government of Assam, Excite Department uuder the provisions of A sam Liquor Prohibition Act. inviting application in prescribed form for the grant of wholesale/retail off licences for a period of 3 (three) years from 1.8.80/the date of settlement, whichever is later, in the places mentioned in the Notice. As the Notice Impugned and the questions of law involved are common, the petitions are being disposed of by this common judgment.
2. The merit of legislation by incorporation by reference is brevity which is largely counter-balanced by difficulties and obscurities which it is likely to create. Modern tendency to overdo legislation by referetce and to attempt brevity at the expenses lucidity is deprecated, when a prior general Act is incorporated into a subsequent special one, shoud the previsions of the latter prevail over any of the former with which they are inconsistent ? Will anundmert of the former be bicding on the latter ? These are precisely the questions tlat srise in thess applications.
3. As the individual facts will not be so much material for the purpose of adjudication of the common questions of law, thoss teed not be specifically described. In Civil Rule No. 315/80 the petitioner, M/S, B.N. Dey & Co., Gauhati is a registered partnership firm and has been holding retail 'off' licence of India made foreign liquor as such for Less than 25 consecutive years. In Civil Rule 316/80 the petitiorer M/S. Khubchand & Sons, Gauhati is a Hindu Undivided Family firm of three copareners and has bscn hotting a retail India made foreign Hguor 'off' licence since 1956. In Civil Rule No. 318/80 the petitioner Shri Benoy Kumar Ghosh of Mifgaldoi has been holding a similar licence since 1960. The petitioner in Civil Rule No. 319/80 Shri Upendra Nath Paul of Kokrajhar has been holding a similar licence sicce 1962. The petitioner in Civil Rule No. 323 of 1980, M/S. Jagatbandhu Pharmacy & Stores is a registered partneiship fiim of Tezpur town and has been holdicg a similar licence since 1969. The petitioner in Civil Rule No. 333/80 Shri Makhan Lai Das is the partner of M/S. Meghamall & Sons of Nowgong town and has been holding a similar licence since 1968. The petitioner in Civil Rule No. 335/80 M/S. Doss & Co. of Nowgong is a registered partnership firm acd has been holding a similar licence since 1976. All the above seven petitioner are from prohibited area and been India made foreign liquor off the premises licenceholders are aggrieved by the Impugned notice which all have challenged.
4. The impugned notice has purportedly been issued under the provisions of the Assam Liquor prohibition Acf, 1952 (Act 1 of 1953) hereinafter referred to as "the Prohibition Act", which is an Act to prohibit possession, consumption and manufacture of liquor in and smuggling thereof into tin Barpeta Sub-division, and other prohibited areas of the State. It was first applied to the Barpeta Sub-Division aad was later extended to the Gauhati Sub-divisibn of Kamrup district and several other plains Districts of Assam. This Act, though a short one with only 23 Sections, has been envisaged as a self contained code for the prohib ted areas as the Assam Excise Act, his been envisaged for the areas other than the prohibited areas of the State. Tnis will be apparent from the different provisions of the Act.
5. As defined in sub- section (3) of Section-2 of the Prohibition Act, 'liquor' means any intoxicating liquor and includes all liquid consisting of or containing alcobal, also twi and pachwai in any form and any substance which the State Government miy, by notification, declare to be liquor for the purposes of the Act. Foreign liquor is a kind of liquor under this provisions. As defined in sub section (6) of section 2, "prohibited area" means the area where the Act is enforced
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