Benudhar Saikia and Another vs S.K. Bhattacharya and Another

Mehrotra JJ.

As common points have been raised in these two petitions, they are disposed of by one judgment.

Civil Rule 24 of 1960 arises out of an application by one Benudhar Saikia who was the lessee of the Nowgong town country spirit shop. He was granted licence which expired on 31st March 1960. His contention is that tenders were invited and the tame shop was settled with the petitioner for the year 1960-61. Before, however, any licence could be granted to him, by an order of the Governor vide notification issued by the Government of Assam on 9th of February 1960, the provisions of Assam Liquor Prohibition Act, 1952, hereinafter called the Act, were extended to the district of Nowgong with effect from 1st of April 1960. A letter was sent by the Collector and District Magistrate, Nowgong, to the petitioner on 16th of February 1960 asking him to close his accounts by the 31st of. March 1960 and to report to the office of the District Magistrate the balance in stock, if any, ending on the 31st of March 1960.

He was further directed to deposit the licences and the daily sale Account Books at the office of the District Magistrate by 10 A.M. on the 1st of April. 1960. This step was taken by the District Magistrate in view of the fact that the provisions of the Act had been extended to this area and by virtue of Section 22 of the Act, the Eastern Bengal and Assam Excise Act, 1910, had been repealed. The petitioner''s contention is that in view of the settlement with him of the liquor shop for the period of 1960-61, he had deposited the necessary security and had made investments for carrying on the trade in selling liquor in the year 1960-61. He has thus suffered by the order given by the District Magistrate of Nowgong.

The Civil Rule 26 of 1960 arises out of an application made by Ganesh Chandra Das under similar circumstances.

Mr. Bhuyan, who appears for the petitioners, has contended that the Act in question is ultra vires inasmuch as it being an Act covered by item No. 8 of List II in the Seventh Schedule of the Constitution of. India, the assent of the Governor was necessary. From the publication it appears that the Act had received the assent of the President, and, from that circumstance, the petitioner contends that the Act was invalid inasmuch as it did not receive the assent of the Governor. The counter-affidavit filed in reply to the petition states that as the Governor thought that certain provisions of this Act were repugnant to the provisions of the Code of Criminal Procedure, the bill was reserved for consideration of the President and the President gave his duo consent to the bill. The Act, therefore, cannot be challenged on that ground before this Court. Article 200 of the Constitution provides that:

when a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President.

As it was open to the Governor, when the Bill was presented to him, to reserve it for consideration of the President, the action taken by the Governor cannot be held to be illegal, and, if on his reservation of the Bill for consideration of the President, the President gives his assent, the Bill is a valid law and its constitutionality cannot be challenged on this ground. We accept the contention of the State Counsel and we are of opinion that in the present case the Governor having reserved the Bill for consideration of the President and the Bill having received the assent of the President, the Act is valid and cannot be challenged on that ground. Whether the provisions of the Act are in fact repugnant or not repugnant to the provisions of the Criminal Procedure Code is a matter which need not be examined by this Court.

The next point urged by the petitioner is that there was no legislative competence for the enactment in question. Item No. 8 of list II of the Seventh Schedule of the Constitution provides as follows:

Intoxicating liquors, that is to say, the production, manufacture, possession, transport, purchase, and sale of intoxicating liquors.

The word liquor as defined in the impugned Act means

any intoxicating liquor and includes all liquid consisting of or containing alcohol, also tari and pochwai in any form and any substance which the 1981 Assam D.F.(SIC) State Government may, by notification, declare to be liquor for the purposes of this Act.

It is contended that the concluding portion of this definition is wide enough to include substances which may not be intoxicant and thus the enactment goes beyond the powers given by the Legislature to enact under tire provisions of Item No. 8 of List II. We do not think that there is, any substance in this contention. The word ''liquor'' in item 8 of list II has a wider meaning and thus the impugned Act which gives such a wider meaning to the word ''liquor'' comes within the ambit of item 8, list II of the Constitution. In the case of the State of Bombay v. F. N. Balsara, AIR 1951 SC 318, one of the grounds taken in appeal, on which the Bombay High Court had held, was that the word ''liquor'' used in the Legislative list was confined to the sub-stance containing, alcohol.

The contention was repelled by the Supreme Court and it was held that the word ''liquor'' is wide enough to bring within its ambit the substance which may not necessarily include alcohol, and therefore, the Act there in question was within the Legislative competence of the State Legislature. It cannot, therefore be said in the present case that the Act was not within the Legislative competence of the Assam Legislature.

The next point urged was that by giving very wide powers to the State Government by notification to declare any substance as a liquor, arbitrary and uncontrolled power has been given to the executive -- that is an excessive delegation. This matter was also considered in the case of the Supreme Court referred to in the earlier part of my judgment. The matter was also considered by this Court in the case of Balbir Singh and Another Vs. The State, In order to ascertain whether unregulated power has been given to the executive, the entire scheme of the Act and all the provisions of the Act have got to be considered and when this power is considered in the light of the object of the Act and the other provisions of the Act, it cannot be said that an uncontrolled power has been given to the executive. The power to issue notification is to be guided by the underlying object of the Act itself.

The Act has been passed with a view to carry out the directive principles of the Constitution and, as will appear from the other provisions of the Act and the preamble of the Act, the whole object of the Act was to restrict the use of liquor and also to introduce prohibition. When all the provisions of the Act are taken into consideration it cannot be said that the impugned provision is uncontrolled so as to be hit by the doctrine of excessive, delegation. When any particular notification is challenged on the ground that it is an unreasonable restriction on the rights of the petitioner, it may be examinable by the Court but, the Act cannot be struck down on that ground.

The next line of argument was that the restriction placed on the citizens to carry on trade in respect of the substances which do not contain alcohol will be an unreasonable restriction to carry on trade and business, and, as the definition of the word ''liquor'' is wide enough to include substances which may not contain alcohol, the section itself imposes an unreasonable restriction on the rights of the citizens to carry on any profession or trade. The same reason which holds good with regard to the argument that it is hit by the doctrine of excessive delegation applies also to this argument of the petitioner. In the definition it has been made clear that it does not apply to any toilet preparation or medicine containing alcohol. The substances, restriction on which would have been considered unreasonable, have been expressly omitted from the definition of intoxicating liquor.

The Act, therefore, cannot be struck down on that ground''. Even if the argument of the petitioner would have been accepted, it would have been difficult to hold that the entire Act falls through on that ground. This provision is clearly severable from the other portion of the Act and the petitioner himself having come to this Court on the ground that his right to carry on trade in intoxicating liquor has been restricted cannot now come forward and say that the order should be set aside on the ground that a portion of the section dealing with non-intoxicating substances is invalid.

There is no substance in the contention of the petitioner that his rights have been affected. As I have already pointed in the earlier part of my judgment, the licence granted to the petitioner expired on the 31st March, 1960. Beyond 31st March 1960 the only right which he had was that the shop had been tentatively settled with him, but he had acquired no right to carry on the business and in that view of the matter it cannot be said that any right of the petitioner has been affected in the present case.

No other point was argued before us. In the result, we see no force in these petitions and (they are rejected. But, we make no order as to costs.

Deka, J.

I agree.