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Judgment
D.S. Tewatia, J.—The petitioner, through the present writ petition, has sought a direction to the respondents to remove the liquor vend auctioned by the Excise Department to respondent No. 4 on 11th March, 1974 for the year 1974-75 from within the jurisdiction of the petitioner Panchayat on the allegations that the petitioner-Panchayat apprehending the opening of a liquor vend within its jurisdiction passed an unanimous resolution on 7th March, 1974 (annexure '' P1''), by virtue of powers vested in it by the provisions of section 26(1) of the Punjab Gram Panchayat Act, 1952 (hereinafter referred to as the Act) of enforcing prohibition within its jurisdiction; that on that very day it brought the said resolution to the notice of the Excise and Taxation Officer, respondent No. 3; and that despite the said resolution of the petitioner-Panchayat the country liquor vend in question was auctioned by him to respondent No. 4, to be opened within the jurisdiction of the petitioner Panchayat.
On 29th March, 1974 the petitioner-Panchayat passed a resolution authorizing Karam Singh Panch to file a petition in the High Court seeking relief against, the opening of the liquor vend within the jurisdiction of the petitioner-Panchayat and on 24th April, 1974 the present petition was filed.
In the reply filed on behalf of respondents Nos. 1 to 3, the facts stated above have not been denied. However, they have taken the stand that the resolution dated 7th March, 1974 had been ignored vide order dated 13th June, 1974 by the Excise and Taxation Commissioner, respondent No.1, by virtue of power conferred on him by proviso to sub-section (3) of section 26 of the Act. The petitioner in its replication to the return has denied that any illicit distillation or smuggling of alcohol had been carried on or connived at, within two years preceding the date of the passing of the resolution dated 7th March, 1974, by anybody except Mela Ram a partner of respondent No. 4, in a liquor vend auctioned to him in village Gholian Khurd.
In a rejoinder filed on behalf of respondents 1, 2 and 3, it has been averred that their record did not show that Mela Ram was the partner of respondent No, 4, as suggested on behalf of the petitioner. In the rejoinder, reference was also made to the apprehension of Mela Ram for possession of 19 bottles of illicit liquor on 10th December 1973, and his consequent prosecution u/s 61--1.14 of the Excise Act. It was further mentioned therein that Banarsi Dass son of Gan Pati Rai was convicted u/s 61--1.14 of the said Act on 2nd February, 1972.
Before proceeding to notice, the rival contentions advanced on behalf of the parties, the provisions of section 26 of the Act be taken notice of at this very stage--
(1) A Gram Panchayat may by vote of at least two-thirds majority of Panches, direct that intoxicating liquor may not be sold at any licensed shop within the local area of the Gram Panchayat.
(2) When resolution has been passed under sub-section (1) above, it shall notwithstanding any resolution passed by an empowered District Board u/s 5 of the Punjab Local Option Act, 1923, or any other Act for the time being in force, take effect from the first day of April of the year next after such resolution.
(3) Notwithstanding anything contained in the Punjab Excise Act, 1914, or any other Act for the time being in force, and the rules made thereunder with regard to the powers and functions of the Collector under the said Act, such a resolution will be binding upon the Excise and Taxation Commissioner:
Provided that if the Excise and Taxation Commissioner is of opinion for reasons to be recorded in writing that within such local area illicit distillation or smuggling of alcohol has been carried on or connived at, within two years preceding the date of the passing of such resolution, in such local area, such resolution shall not be binding upon him, unless the Government orders that it shall be so binding.
The first contention advanced on behalf of respondents by Mr. Joginder Singh Wasu was that the expression ''take effect from the first day of April of the year next after such resolution'' used in sub section (2) of section 26 of the Act clearly refers to the first of April of the next calendar year. The Learned Counsel, besides seeking support for his above submission from the definition of the word ''year'' as contained in the General Clauses Act, 1897 (Act 10 of 1897), which has defined the word ''year'' as ''a year reckoned according to the British calendar'', also stressed that the Legislature could not have intended that a resolution if happened to be passed on thirty first of March of a particular year would take effect from the very next morning of that year i.e. from first of April, for that would give no time to the Excise and Taxation Commissioner to consider the resolution of the Panchayat and exercise his powers vested in him by proviso to sub-section (3) of section 26 of the Act and decide as to whether the resolution is to be approved or to be ignored and in either event to decide further as to whether the liquor vend has, or has not to be auctioned.
An identical contention was advanced before me in (Gram Panchayat, Oon v. Excise and Taxation Commissioner Haryana, Chandigarh C.W.No. 1431 of 1974) decided on 24th May, 1974. Repelling the contention I observed as follows:
The Word ''Year'' has not been defined in the Panchayat Act, but if sub section (2) is read in conjunction with the other provisions of section 26 of the said Act including the proviso, then no doubt is left that the Word ''Year'' does not have the British calendar year in view for determining the point of time on which the resolutions referred to in sub-section (1) of section 26 of the Panchayat Act is to take effect.
Proviso to sub-section (3) of section 26 of the Panchayat Act authorises the Excise and Taxation Commissioner to ignore the resolution of the Panchayat referred to in sub section (1) of section 26 if he forms an opinion (for reasons to be recorded in writing) that within such local area illicit distillation or smuggling of alcohol had been carried on or connived at within two years preceding the date of the passing of such resolution in such local area. In the present case the Excise and Taxation Commissioner has ignored the resolution in question merely on the ground that two cases of possession of illicit liquor-one involving i.e. bottle and the other involving five bottles on 1st September, 1973 had been detected. If per chance neither any such case of illicit distillation nor smuggling had been detected or carried on in the two years preceding the date of the resolution, then despite large number of cases of illicit distillation and smuggling having been detected between the date on which the resolutions had been passed and the first of April of the next calendar year on which date, according to the Learned Counsel for the respondents, such resolutions should become effective by virtue of the provisions of sub-section (2) of section 26 of the Panchayat Act, Excise and Taxation Commissioner in law would have no power to ignore the said resolutions. That would be a rather fantastic proposition and in my opinion the Legislature cannot be held to have intended such a consequence, In view of the above, I have no hesitation to hold that the Legislature in using the word ''year'' had the financial year in view and not the English calendar year and, therefore, the resolutions in question became effective from 1st April, 1974 and were to remain so unless ignored by the Excise and Taxation Commissioner for valid reasons.
To the above observations I may only further add that the language used in sub-section (2) of section 26 of the Act also militates against the construction sought to be put on behalf of the respondents, for if that had been the intention of the authors of the Act, then they would have, instead of using the expression ''take effect from the first day of April of the year next after such resolution'', adopted the expression ''take effect from the first day of April of the next year after such resolution.''
As for the second limb of his contention, I envisage no problem even if the Panchayat was to adopt the resolution on the hypothetical date of thirty first of a particular year, as suggested by Mr. Wasu In that eventuality, the Excise and Taxation Commissioner could, in the case of his acceptance of the resolution, cancel the liquor vend if already auctioned or he could allow the liquor vend to continue to function in the other eventuality of ignoring the resolution in exercise of powers vested in him by proviso to sub-section (3) of section 26 of the Act.
Mr. Wasu then argued that in the eventuality of the cancellation of the liquor vend the Excise and Taxation Department, as also the liquor contractor, would suffer financially add the Legislature could not have intended to frame a legislation that could result in a financial loss to the State.
I am afraid this appears to me to be an argument of despair. The Punjab Excise Act, 1914, expressly envisages cancellation of liquor licences and lists the grounds therefor. The provision of section 41 in the Punjab Excise Act seems to have been inserted in the statute precisely to take care of a contingency where a contract of the kind entered into between respondent No. 4 and the Excise authorities stands frusterated for reasons other than those envisaged in section 36 of the Punjab Excise Act.
Now coming to the primary contention of Mr. Wasu that the resolution Exhibit P.1 of the petitioner panchayat stood validly ignored and thus there is no merit in the petition, it must be observed, to begin with, that a copy of the order of the Excise and Taxation Commissioner, respondent No. 1, had not been placed on the record and in the written statement neither the names of the offenders nor the F.I.R number had been indicated. The perusal of the official record, which the learned Advocate-General produced for my scanning, did not make us any the wiser as it revealed no additional facts. The note that was put to respondent No. 1 by his subordinates merely mentioned that two cases of illicit distillation within the jurisdiction of the petitioner-Panchayat had come to their notice In that note too neither the names of the persons nor any F.I.R. number was indicated and it is on the basis of this information alone that respondent No. 1 is claimed to have been satisfied that within local limits of the petitioner-Panchayat illicit distillation or smuggling of alcohol had been carried on or connived at within two years preceding the date of the passing of the resolution in question by the petitioner-Panchayat.
I have no hesitation in holding that respondent No. 1 has absolutely no material whatsoever to reach the above conclusion. The department was in a sorry dilemma and was hard-pressed to dig out two cases of such illicit distillation having been committed within the local-limits of the petitioner-Panchayat within two years preceding the resolution in question, for despite their best efforts they could lay their hands only on one such case which finds mention in their rejoinder. In the other case, even the conviction had been recorded prior to two years preceding resolution Exhibit P.1, the offence must have been committed even much earlier.
For one thing, it is difficult to know with any certainty that the offence detected in 1973 was at all present to the mind of respondent No. 1, for while ignoring the resolution he made no mention of any such particular case in his order; and for another a swallow would not make a summer.
The provisions incorporated in sub-sections (1) and (2) of section 26 of the Act were intended to give a practical shape to the policy of prohibition enshrined in Article 47 of the Constitution of India. The only justification to deviate thereform could be warranted by the concern of the State, also enjoined in the above said Article, for the health and welfare of its citizens a sensitivity which marks out a good Government for the bad one. Only if the Government sincerely feels that the Citizens are consuming liquor illcity distilled which fact posed a hazard to their health, that it would coma forward to place in their hands staff, alcoholic contents of which would be measured and the quality where of would of the prescribed standards.
Precisely for this reason that the legislature must have incorporated the proviso to sub-section (3) empowering the Excise and Taxation Commissioner to ignore the resolution of the Panchayat. But, surely a stray case of illicit distillation or smuggling of liquor would not pose threat of the kind to the health and well-being of citizens and thus the requisite criterion envisaged in the proviso for ignoring the resolution of the Gram Panchayat, which is in consonance with the State policy in regard to prohibition enshrined in the Directive Principles of the Constitution, would not stand satisfied in this case.
Further, the satisfaction envisaged in the proviso is objective and not subjective and to reach an objective satisfaction, it is necessary that the officer concerned should have before him views of both the sides which would necessitate as a corollary the affording of opportunity of hearing to the Gram Panchayat.
The perusal of the official record showed that the petitioner-Panchayat had not been afforded any opportunity of hearing before its resolution was ignored by respondent No. 1. I have already held in the other case taken notice of earlier that it is incumbent on the Excise and Taxation Commissioner to afford reasonable opportunity of hearing to the Panchayat before its resolution enforcing prohibition within its jurisdiction in terms of section 26 of the Act is ignored.
Mr. Wasu next contended that the petition deserved to be dismissed on the ground that the petitioner-Panchayat did not exhaust the alternative remedy of an appeal to the State Government against the order of respondent No. 1. Mr. Wasu attempted to spell out the alternative remedy of appeal to the State Government from the expression ''such resolution shall not be binding upon him, unless the Government orders that it shall be so binding'' appearing in the provisio to subsection (3) of section 26 of the Act.
I am afraid the above expression cannot be read to spell out a right of appeal to the Government against the order in question of the Excise and Taxation Commissioner. What it would appropriately mean, in my view, is that the order of the Excise and Taxation Commissioner ignoring the resolution of the Gram Panchayat would have acquired finality only if the same had received the approval of the Government. In other words, the proviso, in fact, laid a responsibility on the Excise and Taxation Commissioner to place his order along with the material gathered by him, after affording an opportunity of hearing to the Gram Panchayat, before the Government for its final approval of the same. In view of the above, the question of the petitioner-Panchayat having not exhausted its alternative remedy of an appeal to the State Government did not arise.
For the reasons stated the writ petition is allowed with the direction that the liquor vend auctioned to respondent No. 4 to be operated within the local area of the petitioner Panchayat be closed within 30 days from today. The petitioner-Panchayat is allowed Rs. 300/- as costs to be paid by the respondents, other than respondent No. 4.