Toddy Tappers Co-operative Society and others vs Commissioner of Prohibition and Excise, Hyderabad and others

This writ petition has been filed by three Co-operative Societies their promoters and it is submitted that for the entire Karimnagar Municipal area consisting of 32 wards only one Toddy Tappers Co-operative Society group was functioning and it consists of 11 Toddy shops, but pursuant to the Excise Policy of the Government for the year 1996-97 the said T.C.S. group of 11 toddy shops covering the entire Karimnagar Municipal area was divided into three Toddy Co-operative Societies viz., 1, II & in. T.C.S., Karimnagar Group No. I was registered with Registration No.3J2/P&E/97, dated 1-2-1997 with 4 Toddy shops and 162 members. Similarly, T.C.S., Karimnagar Group No.II was registered with 2 Toddy shops and 88 member. T.C.S., Karimnagar Group No.III was registered with 5 Toddy shops and 191 members. On the basis of this division, the petitioners submit that, licenses were given for shops 1 to 4 on 1st of February, 1997 valid upto 30th September, 2001 in respect of T.C.S. Karimnagar Group No. 1. Five licences were given on the same date to Petitioner No.2 and 3 also. It appears that certain persons who according to the petitioners were not depending on the occupation of tapping filed applications for creation of three new Toddy shops in Kisan Nagar, Santoshnagar and Srinagar colony on the ground that they were unemployed tappers. The petitioners submit that Kisan Nagar is in Ward Nos.4 & 5 which is within the operational area of T.C.S. Karimnagar Group No.l. Srinagar Colony is situated in Ward Nos. 28, 29 & 30 which is also within the operational area of the 1st petitioner-Society. Santoshnagar is covered by Ward Nos. 1,31 & 32 which is within the operational area of T.C.S. Karimnagar Group No.III. After this application was made the Collector, Karimnagar rejected their application and advised them that they may approach the existing T.C.Ss for enrollment of membership. However, those persons filed an appeal before the Commissioner of Prohibition and Excise -1st respondent. The 1st respondent had accepted the appeal and while passing the impugned order he found:

"After careful examination of the connected records and in accordance with the Excise Policy guidelines for 1997-98, the contention of the Collector, Karimnagar is not tenable and against the guidelines of the Excise Policy for 1997-98 and the guidelines issued by the Commissioner in this behalf guidelines No.6 of the Excise Policy for the year 1997-98 i.e., Annexure to G''.O. Ms. No.835, Revenue (Ex.II) Dept., dated 29-9-1997 clearly lays down that splitting up or bifurcation of existing Toddy Tappers Society group may be permitted wherever warranted as per rules not later than 30-11-1997 subject to the guidelines issued by the Commissioner of Prohibition and Excise. Guidelines No. 21, 22 and 23 of the said G.O. also provided provision for the formation of a new Toddy Group Societies in the places where already T.C.Ss are functioning. Accordingly the Commissioner also issued guidelines in Cr No.9009/97/CPE/El, dated 8-10-1997 as directed by the Government in G.O. Ms. No.835, Revenue (Ex.lI)Dept, dated 29-9-1997 and 7 issued in Cr. No.9009/97/CPE/El, dated 8-10-1997 are also relevant to the instant case."

In view of the above facts and in accordance with the Excise Policy guidelines for 1997-98 and the guidelines issued by the Commissioner in CrNo.9009/97/CPE/El, dated 8-10-1997 in this behalf sanction is hereby accorded for the establishment of (3) new toddy shops at Kisan Nagar, Santoshnagar and Snnagar for 1997/98."

He accordingly sanctioned three new Toddy shops at Kisan Nagar, Santoshnagar and Srinagar colony,

The beneficiaries of the impugned order have not been made respondents in this writ petition. However, they have made an application for impleading them as party. The application WPMP No. 40777/97 is allowed and the Counsel was heard.

The net grievance of the petitioners is that since they were given the operational areas mentioned in the writ petition these areas could not have been taken away from the operation of the petitioner-societies. There is much confusion in this State with regard to trade of liquor. Trading in liquor is not at all permitted as a matter of right and nobody has a fundamental right to trade in liquor muchless create a monopoly in such a trade. It has been the consistent view of the Supreme Court for number of years that a citizen has no fundamental right to carry on the trade or business in liquor. On the other hand it has been held conclusively that dealing in liquor is a privilege of the State and this privilege can only be granted to a citizen by the State. Article 19 or Article 301 of the Constitution of India has no application as far as trading of liquor is concerned, Article 14 has limited application.

Whether a citizen of this Country has a fundamental right to trade in intoxicating liquors is no longer res Integra after the Constitution Bench''s decision in Khoday Distilleries v. State of Kamataka, AIR 1995 SCW 313. After the Khodays case (supra), law on the subject was considered by the Supreme Court and it came to the conclusion that there was no fundamental right to trade or business in intoxicating liquors and even total ban can be imposed upon such a trade or business. It was felt that, dealing in liquors was in the nature of res extra commercium. Even after the Constitutional Bench''s judgment _ referred to above, an attempt was made again before the Supreme Court to make the same argument in a different way and the argument was based on the observations in the judgment of the Constitution Bench. While dealing with the arguments in State of Andhra Pradesh and others, etc. Vs. McDowell and Co. and others, etc., the Supreme Court held:

"Yet an argument is sought to be built upon certain words occurring in clauses (e) and (f) of the summary contained in Para 60 of the decision. In these clauses, it was observed that creation of a monopoly in the State to deal in intoxicating liquors and the power to impose restrictions, limitations and even prohibition thereon can be imposed both under Clause (6) of Article 19 or even otherwise. Seizing upon these observations, Sri Gonguly argued that this decision implicitly recognises that business in liquor is a fundamental right under Article 19(1)(g). If it were not so, asked the learned Counsel, reference to Article 19(6) has no meaning, we do not think that any such argument can be built upon the said observations. In Clause (e), the Bench held, a monopoly in the State or its agency can be created "under Article 19(6} or even otherwise". Similarly, in Clause (f) while speaking of imposition of restrictions and limitations on this business, it held that they can be imposed "both under Article 19(6) or otherwise". The said words cannot be read as militating against the express propositions enunciated in Clauses (b), (c), (d), (e) and (f) of the said summary. The said decision, as a matter of fact, emphatically reiterates the holding in Har Shankar and Others Vs. The Dy. Excise and Taxation Commr. and Others, that a citizen has no fundamental right to trade in intoxicating liquors. In this view of the matter, any argument based upon Article 19(1)(g) is out of place."

Considering the law laid down by the Supreme Court, I do not find any ground to interfere in the matter. The State had given a privilege to the petitioners to deal in the business of Toddy within certain areas and if the State wants to extend the same privilege to some others in the same areas there is no violation of any rights of the petitioners because monopoly if at all anybody has in the limited sense, it is only the State which has the monopoly or the privilege of dealing with the liquors and anybody who wants to deal or trade in liquors has to deal in accordance with the conditions attached to the privilege extended to such a citizen by the State.

For these reasons, I have not been able to find any ground whatsoever in this writ petition to interfere. Since a privilege has been granted to the petitioners they are well within their rights to conduct their business within the parameters as laid down by the State Government. At the same time, the Slate Government is not debarred from creating three shops in the area which was originally given to the petitioners because no absolute right was conferred to the petitioners. The absolute right of trading in the liquor always rests with the State. Since no right is created by conferring a privilege on the petitioners which can also be withdrawn, therefore they cannot complain of any violation of their rights.

The writ petition is dismissed. No costs.