1953 Supreme(Raj) 221

Rajasthan High Court
Wanchoo C.J. Dave J. & Sharma, J.
Rao Manohar Singh - Appellant
Versus
The State Of Rajasthan - Respondents
D.B. Civil Miscellaneous Writ Application Nos. 144, 145, 331, 333. 405, 416, 417, 418, 419, 420, 423, 428, respectively of 1952, and Nos. 2, 3, 40 and 41 respectively of 1953
Decided On : October 27, 1953

Headnote:(a) Rajasthan Excise Act, sec. 71(2)—Notification dated 18/07/1952 withdrawing excise concessions—Scope—Notification inoperative where concession enjoyed under executive order of former ruler and not under any law.(b) Rajasthan Excise Act, Sec. 16—Scope—Concession of private distillation adversely affected by Act—Rights claimed by Jagirdars of former Udaipur State only privileges and affected by the Act.(c) Constitution of India, Art. 31—Right in property—Private distillation—Only concession for status and not a right in property.(d) Rajasthan Excise Act, secs. 16 and 2—Rights of private distillation claimed under executive order of former ruler not licence—Such rights not preserved under Act.(e) Rajasthan Excise Act, sec. 71 (2)—Provision void being discriminantry—Jaipur Excise Act, 1954, Sec. 20 also void on same ground —Private distillation of liquor not permissible after coming into force of Constitution.(f) Constitution of India, Arts. 13 and 14—Discriminatory legislation—Rajasthan Excise Act, sec. 71 (2) and Jaipur Excise Act sec. 20 void—Priviledges of private distillation under later section cannot continue after Constitution came into force.(g) Constitution of India, Art. 226—Scope—Right claimed controversial — High court may refuse writ.(h)—Constitution of India, Art. 226 and 228 — Alternative remedy — Civil P. C. sec. 113— Contention that question may eventually come before High Court — Right claimed controversial—High Court will be better able to decide after evidence.(i) Rajasthan Excise Act. sec. 73(2)—Scope—Notification dated 18th July— Discontinance of cash grants—Section no bar to suit challenging validity of Notification. (Para 34)

       The so called right of private distillation claimed by certain Jagirdars of former Udaipur State was not a right at all in any strict or legal sense of the term but a privilege enjoyed during the good pleasure of the Ruler. The Rajasthan Excise Act being a prohibitory or a regulative Act as regards the manufacture of liquor and other excisable articles the alleged right could not but be adversely affected by this Act apart altogether from the notification dated 18/07/1952. (Paras 16 & 10)

       The practice of private distillation claimed by certain Jagirdars as a right of property was a mere dignity, a matter more of status than of property, and withdrawal of any such privilege by the State cannot be properly characterized as the taking away of any right of property and does not constitute any infringement of the fundamental right guaranteed under Art. 31 of the Constitution. The circumstance that some Jagirdars made some money out of the exercise of such private distillation would not, be sufficient to raise the privilege of private distillation in their case to the status of a right of property and would not make any difference as to the conclusion. (Paras 19 & 22)

       It is impossible to discover any basis or guiding principle of classification in sec. 71 (2) whether from the language thereof or from anything contained in the Act as a whole, and, therefore, the discretion which this provision vests in the executive is entirely unguided and uncontrolled. This section is, therefore, discriminatory on the very face of it and is void. Consequently, the Notification dated 18/07/1952, issued by the respondent State of Rajasthan under sec. 71(2) of the Rajasthan Act must be held to be void and of no effect.

       Sec. 20 of the Jaipur Excise law 1924, is worded almost identically as sec. 71(2) of the Rajasthan Act. It therefore, suffers from the same infirmities as sec. 71 (2) and the same absolute and unguided discretion must be held to have been vested in the executive without any objective or basis of classification having been disclosed either in the section itself or anywhere else in the Act. If sec. 71(2) of the Rajasthan Act is void as discriminatory, so is sec. 20 of the Jaipur Act and when sec. 2o is so eliminated, the resultant position under the Jaipur Act is the one created by sec. 4 thereof. Under the Jaipur Excise Law 1924 certain Jagirdars enjoyed the right of private distillation of liquor. This right was enjoyed by them right up to July, 1952, when it was sought to be taken away by the State under its notification dated 18th July 1952, which was issued under sub-sec. (2) of sec. 71 of the Rajasthan Excise Act, 1950, read with sec. 21 of the General Clauses Act, 1897. In view of sec. 20 being held void from the 26/01/1950, onwards no one in the former State of Jaipur could possibly manufacture or sell liquor except as permitted under the Jaipur Act, and if anybody indulged in such private distillation or sale, that was and would be clearly in disobedience of the provisions of the Jaipur Act and must entail the provided thereunder.

       In coming to this conclusion it is not intended to give any retrospective operation to Art. 13 and 14 of the Constitution. This finding is directed against the exercise of the privilege of private distillation after the commencement of the Constitution and not prior to it. Having regard to the nature of the privilege claimed, it must be held that it was a privilege of a continuing character and any effect on the exercise of such a privilege after the commencement of the Constitution must truly be postulated as prospective and not retrospective. (Paras 27, 28, 29, 23 and 30)

       It is perfectly open to this Court to decline to give relief under Art. 226 in cases where it is left in doubt as to whether a fundamental right or any other legal right is infringed or where it comes to the conclusion that an equally convenient, beneficial and efficacious alternative remedy is available to a party, and where it may not consider fit to make any pronouncement as to the rights in controversy in the circumstances of a particular case. (Para 33)

       Where the right claimed is controversial and the alternative remedy of filing a civil suit is available to the petitioner, the contention that such a suit will involve the interpretation of certain articles of the Constitution and, therefore, such a suit would again be triable by the High Court under the amended sec. 113 of the Code of Civil Procedure cannot be accepted. The mode of trial in such a suit, even if it shall have to be tried by the High Court, would be basically different from the procedure which is adopted in the disposal of writ applications. If and when a suit is filed, both parties will have an opportunity to lead their full evidence, definite issues will be fixed and tried, and when all that will have been done, this Court will be in a far better position to appreciate and adjudicate upon the complex nature of the right claimed and to decide the further question whether such a right was enforceable at law, (Para 35)