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PETITIONER: LAKSHMI NARAIN AND OTHERS

       Vs.

RESPONDENT: DISTRICT EXCISE OFFICER, FATEHPUR & ORS

DATE OF JUDGMENT16/08/1978

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. DESAI, D.A. REDDY, O. CHINNAPPA (J)

CITATION:  1978 AIR 1476            1979 SCR  (1) 161

ACT:      U.P. Excise  Act- Section  41(e)(v) & U P. Excise Rules 138-Valid and not unconstitutional.      Constitution  of  India  1950-  Article  32-  petitions under-petitioners participating  in  an  auction  with  full knowledge of conditions if could object to condition.      Section 41(e)(v)  of the  U.P. Excise Act empowered the Excise Commissioner  to make rules fixing the days and hours during which licensed premises may be kept open or closed:

HEADNOTE:      The petitioners  who were  licensees in  sale of liquor challenged the validity of the rule.      Dismissing the writ petition, ^      HELD: l.  As the  provisions of  Rule 13B  of the  U.P. Excise Rules  are in pari materia with Rule 37 of the Punjab liquor Licence  Rules 1956, the decision in P. N. Kaushal v. Union of  India etc. [1979] 1 S.C.R. 122 is applicable. [161 G]      2. The  licences were awarded at public auction and the conditions regarding  closure of  business on  certain  days were printed  in the  auction notice. With full knowledge of these  restrictions   which   the   petitioners   considered reasonable when They participated in the bids, they took the licences. They cannot assail the same in the writ petitions. [162F-G]      (For appearance refer to pages 125-126).      The Judgment of the Court was delivered by

JUDGMENT:      KRISHNA IYER,  J. We  have today disposed of a batch of writ of  petitions arising under the Punjab Excise Act, 1914 (Annexure A).  There  the  petitioner  had  challenged  Sec. 59(f)(v) and  rule 37  as unconstitutional.  In the  present batch of  writ petitions  ’he contention is identical except that the  enactment and  rule are  formally different but in pari materia.  Sec. 41(e)(v) of the U.P. Excise Act empowers the Excise  Commissioner to  make rules  fixing the days and hours during  which licensed  premises may be kept opened or

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closed. Rule  13 is  one such  rule which  forbids  sale  of liquor "of  all Tuesdays  as well  as the first day of every month‘’. Aggrieved  by- rule  13 (as  amended),  because  it prohibits liquor  trade  on  the  1st  of  every  month  the petitioners, who  are licensees,  have come up to this Court challenging its vires. Rule 13 reads thus: 162           "13B. All  excise shops  (including foreign liquor      country spirit,  home drugs,  opium (tari  and outstill      shops) shall  not be  kept  open  on  Independence  day      (August 15)  Mahatma Ghana  Birthday (October 2) and on      the day  of Mahatma  Gandhi’s tragic death (January 30)      every year  an(l also on all Tuesdays as well as on the      first day of every month.           Provided that if the first day of the month happen      to be  a public holiday, the day next following of that      month shall  be the day on which the excise shops shall      not be kept open. Provided further Excise Commissioner,      may in  consultation with the Collector of the District      concerned,  waive  the  condition  of  not  keeping  an      exercise shop  open on Tuesday; or the first day of the      month or  the day  next following of that month, as the      case may  be, for such specified period as he may think      fit, in the case of hotels possessing a licence in Form      F.L. for  the sale of foreign liquor for the benefit of      such foreign  tourists as may hold a valid permit under      the All India liquor permit scheme of the Government of      India.’      The source  of the  rule-making power  is Sec. 11(c)(v) which hardly needs reproduction.      It is  easy to  see that  the provisions  in the Punjab Law, challenged  unsuccessfully before  us, and  these  U.P. provisions are  virtually  the  same.  The  contentions  put forward by  counsel for  the petitioners and the submissions by the  Solicitor General  and shri  O. P. Rana in reply are also identical with what we have heard and considered in the Punjab cases. Indeed, the U.P. cases, from the point of view of the State, are stronger because the licences were awarded at public auctions and all the conditions now objected to in these  writ  petitions  regarding  closure  of  business  on certain days  are printed  in the  auction notice. With full knowledge  of  these  restrictions,  which  they  considered reasonable when  they participated in the bids (and which we consider reasonable  for reasons we have given in the Punjab cases), they  took the  licences. So their present challenge must meet with its Waterloo in the decision of this Court in the Punjab  Cases. Without  more ado,  we dismiss  the  Writ Petitions with costs (one hearing fee). N.V.K.                                   Pettions dismissed. 163