State
of U.P. & Ors Vs. Garib Dass & Orssheo
Kumar [1996] INSC 1473 (20
November 1996)
Cji, S.C. Sen, K.S. Paripoornan Ahmadi, Cji.
ACT:
HEAD NOTE:
J U D
G M E N T
Special
leave granted in SLP (civil) Nos.4669-4771 of 1978.
A
group of writ petitions came to be filed in the High Court of Judicature at Allahabad questioning the constitutional
validity of Section 37-A of the U.P. Excise Act, 1910 (hereinafter called 'the
act') and the Notifications issued thereunder on March 30 and 31, 1978. By the
said Notifications, a total prohibition on 'Tari' (Toddy) was introduced in the
State and partial prohibition was introduced in respect of the country liquor
and foreign liquor. The Constitutional validity of Section 37-A was
unsuccessful challenged in an earlier Writ petition No.2972 these Writ
petitions were heard and disposed of by a Full Bench of the High Court and were
allowed by the judgment dated 25.5.1978. The Full Bench held the said provision
to be ultra vires Article 14 of the Constitution and hence a nullity.
Consequently, it held that the Notifications issued under the said provision
were unsustainable. Both the Section and the Notifications were, therefore,
quashed.
Feeling
aggrieved by the said order, the State of U.P.
sought a certificate under Article 133 of the Constitution of India which was
granted. The appeal was filed on 29.5.1978 along with an application for stay.
Interim stay against the implementation of the impugned judgment was granted.
The other special leave petitions followed.
Section
20(1) of the Act states that no person, not being licensed to manufacture,
cultivate, collect or sell any intoxicant, shall have in his possession any
quantity of any intoxicant in excess of such quantity as the State Government
has, under Section 6 declared to be the limit of sale by retail except under a
permit granted by the Collector in that behalf. Sub-section (2) next provided
that sub-section (1) shall not extend to any foreign liquor in the possession
of any common carrier or warehouseman as such or which has been purchased by
any person for his bona fide private consumption and not for sale. Section 37-A
was then introduced by U.P. Excise (Amendment) Act, 1972 with effect from
22.1.1972 and read as under:
"37-A.
Prohibition of import, export, transport or possession of intoxicants—
(1)
The State Government may by notification—
(a) prohibit
the import or export of any intoxicant into of from the Uttar Pradesh or any
part thereof; or
(b) prohibit
the transport of any intoxicant.
(2)
Without prejudice to the provisions of Section 20, the State Government may, by
notification, prohibit the possession by any person or class of person or
subject to such exceptions, if any, as may be specified in the notifications,
by all persons in Uttar Pradesh or in any specified area or areas thereof, of
any intoxicant either absolutely or subject to such conditions as may be
specified in the notifications." The rest of the provisions are not
necessary to be stated. This Amending Act received the assent of the President
on 19.1.1972 and was published in the U.P. Gazette Extraordinary dated
22.1.1972. Sub-section (3) made it clear that the power of the State Government
under sub-section (1) to prohibit the import, export or transport of any
intoxicant and its power under sub-section (2) to prohibit the possession of
any intoxicant may be exercised in pursuance of the policy of gradual extension
of prohibition in the State, and different areas may from time to time be
selected in that behalf after taking into account certain factors indicated in
that sub-section.
The
High Court struck down the validity of Section 37-A on the following line of
reasoning:
"On
a harmonious construction of the two provisions, the position is that Section
37-A operates subject to an exemption in favour of foreign liquor possessed by
an individual for his personal consumption, no reason is apparent in the
provisions of Section 37-A to make this invidious distinction against other
kinds of intoxicating liquors. The learned Advocate General has also to been
able to suggest any rational basis for classifying intoxicating liquors other
than the foreign liquors, for adverse treatment. Foreign liquors is as much an
intoxicating liquor as country liquor, or for that matter Tari. From the point
of view of enforcing the policy of prohibition both stands on an identical
footing. The placing of foreign liquor and country liquor in separate classes
is arbitrary, fanciful and illicit. This classification is not based on any
rational nexus with the object sought to be achieved. The object of Section
37-A was to execute the policy of prohibition in this State. This
classification defeats rather than achieves the aim and objection. Section 37-A
(2) is clearly violative of equality clause of the Constitution." The Full
Bench then proceeded to add that since Section 20 was already on the statute
book when Section 37-A was added on 2.1.1972, the latter was violative of
Article 14 of the Constitution of India at its very inception and was,
therefore, void ab initio and the subsequent repeal of Section 20(2) by the
U.P. Act 9 of 1978 with effect from 1.5.1972 could not revive Section 37-A
which was stillborn.
It
further observed that 'in order to effectuate the scheme of prohibition Section
37-A will have to be re-enacted by the State Legislature'. On this line of
reasoning both the Section and the Notifications came to be quashed.
After
the impugned judgement was delivered on 25.5.1978, the Act was further amended
by the U.P. Excise (Second Amendment) Act, 1978, U.P. Act No.30 of 1978,
whereby a new section 37-A was submitted for the existing one. The new Section
which came to be substituted with retrospective effect from 1.5.1972 insofar as
relevant for our purposes reads as under:
"37-A.
Prohibition of import, export, transport, possession or consumption of
intoxicants.---(1) Subject to the provisions in sub- section (4), the import or
export of any intoxicating into or from Uttar Pradesh of any intoxicate shall
be prohibited.
(2)
Notwithstanding anything contained in Section 20, but subject to the provision
of sub- section (4), the possession or consumption by any person or class of
persons or subject to such exceptions, if any, as may be specified, by all
persons in Uttar Pradesh or if any specified area or areas thereof, of any
intoxicate shall absolutely or subject to such conditions as may be specified,
be prohibited." Sub-section (3) is materially the same; while sub- section
(4) which is made subject to sub section (3) provides that the areas to which
the prohibition on import, export or transport of any intoxicant under
sub-section (2) extends and the date on which the prohibition in any area comes
into force shall be such as the State Government may, from time to time,
specify by notifications. Sub-section (3) permits the State Government to
select different areas after taking into account any one or more of the factors
enumerated therein which, inter alia, can be (a) the character of an area, (b)
the general economic condition of the local population, including their level
of nutrition and standard of living, (c) the local public opinion, or (d) any
other relevant factor which in the opinion of the State Government is material
in the public interest. Sub-section (2) of Section 20 was deleted by U.P. Act No.9
of 1978 with effect from 1.5.1972. The newly introduced Section 37-A is
different in many respects from the earlier one. In the first place sub-section
(2) of Section 37-A now begins with the words 'notwithstanding anything
contained in Section 20' as against the earlier on which opened with the words
'without prejudice to the provisions of section 20' and went on to provide
that' the State Government may by Notification prohibit the possession by any
person or class of persons ...of any intoxicant ....'. The new Section 37-A
begins with a non obstante clause 'notwithstanding anything contained in
Section 20 but subject to sub-section (4)'. This amendment was introduced
specifically to correct the situation that arose on account of impugned judgement.
The Prefatory Note - statement of objects and reasons - makes this abundantly
clear. We may extract the Prefatory Note at this stage:
"Prefatory
Note- statement of Objects and Reasons.-- (1) For giving effect to the
directive principle of State policy contained in Article 47 of the
Constitution, the State Government enforced prohibition in seven districts (Kanpur,
Lucknow, Unnao, Bara Banki, Dehra Dun, Naini Tal and Almora) by notifications,
dated March 30, 1978 and March 31, 1978, issued under Section 37-A of the U.P.
Excise Act, 1910. Apart from these districts, prohibition had already been
enforced in five hill districts, (Chamoli, Uttar Kashi, Pithoragarh, Pauri Garhwal
and Tehri-Garhwal), by notifications dated March 31, 1972 and July 22, 1972.
Section 37-A and the notification dated March 30 and 31, 1978, aforesaid were
declared ultra vires of Article 14 of the Constitution by a Full Bench of the
High Court on May 25, 1978 in the case reported in 1978 All LJ 581 (Sheo Kumar
V. State of U.P. and Others). The State has preferred appeal to the Supreme
Court against the decision of the high Court and the operation of the decision
of the High Court has been stayed, Yet with a view to remove doubts it was
decided to amend the U.P. Excise Act, 1910.
(2)
Since the State Legislature was not in session and it was considered necessary
to carry out the required amendments immediately, the Governor was pleased to
promulgate the Uttar Pradesh Excise (Third Amendment) Ordinance, 1978, on June 26, 1978 which is to be replaced by an
enactment.
(3)
The Uttar Pradesh Excise (Second Amendment) Act, 1978, is being introduced
accordingly." Thus, the old Section 37-A now stands replaced and is no
more in existence. The new Section 37-A introduced by Act 30 of 1978 is deemed
to have come into force with effect from 1.5.1972 i.e., the date from which the
old Section 37-A was brought on the state book. Similarly sub-section (2) of
Section 20 which was omitted by U.P. Act 9 of 1978 has also been stated to have
been omitted with effect from 1.5.1972 with the proviso that no act done or
omission taking place during the period commencing on 1.5.1972 and ending with
25.6.1978 which would not be an offence but for such substitution shall
constitute an offence punishable under the principal Act. Clause 5 of the
Amending Act provides that notwithstanding any judgement, decree or order of
any court to the contrary anything done or purporting to have been done and any
action taken or purporting to have been taken under the provisions of the principal
Act before the commencement of this Section shall be valid and be deemed always
to have been valid as if the provisions of the principal Act as amended by this
Act were in force at all material times. It may incidentally be mentioned that
before this Amending Act 30 of 1978 became law there was in existence the U.P.
Excise (Third Amendment) Ordinance, 1978 (Ordinance No.11 of 1978) which stood
repealed by this amending Act but notwithstanding the repeal anything done or
any action taken under the provisions of the principal Act as amended by the
said Ordinance shall be deemed to have been done or taken under the
corresponding provisions of the principal Act as amended by the Amending Act as
if the latter were enforced at all material times. The effect of these
amendments clearly is to overcome the consequences flowing from the impugned judgement
of the Full Bench of the High Court. The underlying idea is to sub-serve the
objective of Article 47 of the Constitution of India.
The
question then is what is the effect of these legislative changes on the
impugned decision of the Full Bench of the High Court. In the first place, it
is necessary to remember that the validity of the newly introduced Section 37-A
is not in challenge before us. Secondly, sub- section 20 of the Act was omitted
by Act No.9 of 1978 and again by Act No.30 of 1978 with retrospective effect
from 1.5.1972. These legislative changes would undoubtedly make a profound
impact on the impugned decision more so because the entire structure of Section
37-A has also undergone a change. The discriminatory part of Section 20(2) has
been effaced from the statute book with effect from 1.5.1972 itself, thereby
removing that which the High Court considered violative of Article 14 of the
Constitution.
Therefore,
even if the line of reasoning adopted by the High Court as extracted
hereinbefore was correct (of course this is contested by the appellants), the
foundation on which it was based having disappeared with retrospective effect,
the basis for the decision is non est and therefore, contend the appellants,
the impugned judgement cannot be allowed to stand. We see considerable force in
this line of reasoning.
The
deletion of Section 20(2) of the Act with retrospective effect from 1.5.1972
and the substitution of a new Section 37-A by Act No.30 of 1978 also with
retrospective effect from 1.5.1972 has virtually altered the law on the subject
and has removed the part which in the opinion of the High Court was
discriminatory. As pointed out earlier, in the opinion of the High Court even
the omission of Section 20(2) would not make any difference since Section 37-A
was stillborn, a proposition which in the submission of the appellant State was
extremely doubtful. Ex Facie there is a good deal of force in this submission
but it is not necessary for us to examine the same because as suggested by the
High Court, Section 37-A has been re-enacted, albeit in a modified form which
seeks to remove the nexus with Section 20 altogether. Thus, the very foundation
on which the High Court decision is based having disappeared the decision is
rendered ineffective in view of the legislative changes introduced with
retrospective effect. Since these legislative changes are not challenged as
unconstitutional, they must operate as if they were on the statute book in
their present form from 1.5.1972 and must be so implemented.
In the
result, these appeals are allowed, in that, it is declared that in view of the
subsequent legislative changes made in Section 20(2) and Section 37-A of the
Act with retrospective effect from 1.5.1972 the impugned judgement has been
rendered incapable of implementation and therefore the interim stay against its
operation granted and confirmed by this court is made absolute. These appeals
are disposed of accordingly with no order as to costs.
Back
Pages: 1 2
