AI Drafter 
TaxTMI 
TaxTMI 
1954 (1) TMI 26
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.... payable immediately on the provisional acceptance of the bid. Chhoga Lal, however, deposited Rs. 16,500 on the 16th March, 1953, and the balance of Rs. 12,000, on the 18th March, 1953, i.e., two days after the due date, contrary to the provisions of sub-rule 8(a) of rule 6 of the auction rules. In spite of this the sale was eventually confirmed in his favour by the Minister of Excise. The petitioner, when apprised of this irregularity, sent a telegram to the Collector of Excise stating that the sale should not be confirmed in favour of Chhoga Lal as he had failed in paying the price according to the rules, and expressing his willingness to take the licence.on the price fetched at that auction sale. He also preferred an appeal to the Chief Commissioner against the order of the Collector allowing the deposit of Rs.' 12,000 after the due date and in not ordering a resale. His appeal and representation both were unsuccessful. He claims redress for both these grievances by means of this petition. The petition is founded on the following allegations: (1) That the petitioner's fundamental right to carry on trade or business in liquor under article 19(1)(g)had been infringed by the act....
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....2 of the Constitution and will be considered hereinafter. The main contention which needs consideration in the case is regarding the constitutional validity of the Excise Regulation I of 1915. It was contended that the petitioner, a citizen of free India, had an unfettered right to carry on trade and business in liquor and this right had been guaranteed to him under article 19 (1) (g) of the Constitution, and that being so, the provisions of the regulation which confer discretion on the Excise Commissioner to restrict the number of liquor shops, and to license them by auction to the higher bidder amount to creation of a monopoly in liquor trade and are void. The excessive licence fee recovered by public auction was attacked on the ground I that it was not in the nature of a licence fee but was in the nature of a tax and this could not be recovered by having resort to the powers of legislation saved by article 19 (6) of the Constitution. In order to determine the validity of these contentions, it is necessary to refer to the relevant provisions of the regulation which consolidates and amends the law relating to import, export, transport, manufacture, sale and possession of intoxicat....
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....y at such rate or rates as he thinks fit on any excisable article imported, exported, transported or manufactured, cultivated or collected under any licence granted under section 13. Section 27 deals with grant of licences, permits and passes. It provides that a licence shall be granted on payment of such fees, if any, for such period and subject to such restrictions and on such conditions and shall be in such form and contain such particulars as the Chief Commissioner may direct either generally or in any particular instance. Power is then given by section 30 for cancellation or suspension of the licence. Sections 31 and 32 provide for the withdrawal and surrender of licence. Chapter VII of the regulation deals with offences and penalties. Chapter VIII deals with detection, investigation and trial of offences under the regulation. Section 62 provides, inter alia, that the Chief Commissioner has power to make rules prescribing the scale of fees and the manner of fixing the fees payable in respect of any privilege, licence, permit or pass or the storing of any excisable article. Section 64 says that the following moneys, namely, all excise revenue, any loss that may accrue when 'in ....
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....ting liquors. It was urged that ,their sale should be without restriction, that every person has a right which inheres in him, a natural right to carry on trade in intoxicating liquors and that the State had no right to create a monopoly in them. This contention stands answered by What Field J. said in Crowley v. Christensen(34 Law. Ed. 620): "There is in this position an assumption of a fact which does not exist, that when the liquors are taken in excess the injuries are confined to the party offending. The injury, it is true, first falls upon him in his health, which the habit undermines; in his morals, which it weakens; and in the self-abasement which it creates. But as it leads to neglect of business and waste of property and general demoralisation, it affects those who are immediately connected with and dependent upon him. By the general concurrence of opinion of every civilized and Christian community, there are few sources of crime and misery to society equal to the dram shop, where intoxicating liquors, in small quantities, to be drunk at the time, are sold indiscriminately to all parties applying. The statistics of every State show a greater amount of crime and misery a....
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.... be attacked merely on the ground that they create a monopoly. Properly speaking,, there can be a monopoly only when a trade which could be carried on by all persons is entrusted by law to one or more persons to the exclusion of the general public. Such, however, is not the case with the business of liquor. Reference in this connection may be made to the observations of Lord Porter in Commonwealth of Australia v. Bank of New South Wales([1950] A.C. 235). This is what his Lordship said: "Yet about this as about every other proposition in this field a reservation must be made. For their Lordships do not intend to lay it down that in no circumstances would exclusion of competition so as to create a monopoly either in a State or Commonwealth agency or in some other body be justified. Every case must be judged on its own facts and in its own setting of time. Further it seems to us that this argument suffers 'from a fallacy. Under the rules every member of the public who wishes to carry on trade in liquor is invited to make bids. This is the only method by which carrying on of liquor trade can be regulated. Wh....