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TMI Blog2001 (3) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... where and had been accepted largely by the public in other parts of India to determine if that particular brand of liquor can be considered to be liquor of good quality keeping the health and welfare of the public in view. The impugned notification in our opinion furthers the object of providing good liquor having larger acceptability. The policy is made in the interest of health, welfare and morals to benefit all citizens of Delhi and not the big industrial houses as alleged. Determination of wide scale acceptability on the basis of revised minimum sales figures (MSF) does not strike us as being unreasonable let alone irrational, arbitrary or unfair. Under these circumstances there is no justifiable reason warranting interference with the impugned notification. Writ petition dismissed. - Writ Petition (civil) 321 of 2000 - - - Dated:- 22-3-2001 - DR. A.S. ANAND C.J., R.C. LAHOTI SHIVARAJ V. PATIL, JJ. JUDGMENT DR. A.S. ANAND, CJ. Whether impugned notification issued by Respondent No. 2 laying down terms and conditions for registration of different brands of Indian Made Foreign Liquor (IMFL) for supply within the territory of Delhi during 2000-2001 and laying down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through its judgment dated 25.4.1996 in Civil Writ Petition No. 4843 of 1995. That SLP is also pending. Both these cases pertain to the challenge to the notification issued for the period 1996-97. The present writ petition has put in issue the notification issued for the year 2000-2001 fixing enhanced MSF requirements as a condition of eligibility to get L-l Licence. The grounds of challenge in all the three cases are similar. Through the impugned notification MSF requirement for the lowest price tag has been raised from 60,000 cases (7.2. lac bottles) to 75,000 cases (9 lac bottles) over the previous year s MSF requirements for the lowest price tag brand of liquor and this raise, according to the petitioner is unfair, unreasonable, arbitrary and violative of Article 19(l)(g) and 14 of the Constitution. Let us first examine some of the Statutory provisions dealing with the issue. Respondent No. 1 is empowered by Section 5 of the Act to issue notifications laying down maximum/minimum quantity of any intoxicating liquor which may be sold either in retail or in wholesale in the territory of Delhi Section 5 provides : "5. Power of the Lieutenant (Governor to declare lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion on any premises which have not been no licensed in the preceding year, the Collector shall take such measure in accordance with rules to be made by the State Government in this behalf, as may best enable him to ascertain local public opinion in regard to the licensing of such premises. (3) A licence for sale in more than one district of the Punjab (Haryana) shall be granted by the Financial Commissioner only." Rule 16 of the Rules aims at controlling the quality of liquor and lays down : "Quality of Liquor - (i) The liquor shall be of good quality which shall be subject to periodical analysis, and the licensee shall be bound to take all possible steps to remedy the defects which the Collector of Excise may consider material and the licensee shall thereon report to the Collector of Excise after rectification. (ii) The licensee shall ensure that if any country liquor received in the Bonded Warehouse is of inferior quality, he shall refrain from issuing it and shall immediately report the matter to the Excise Officer, Bonded Warehouse. The said Excise Officer shall cause samples to be taken of such liquor and submit a report to the Collector of Excise who ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l drugs which are injurious to health. For the same reason, the Bench held, the State can treat a monopoly either in itself or in an agency created by it for the manufacture, possession, sale and distribution of liquor as a beverage. The holding is emphatic and unambiguous. 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, Shri Ganguly argued that this decision implicitly recognises that business in liquor is a fundamental right under Article 19(l)(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 restricti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the health and welfare of the public, that elimination and exclusion from business is inherent in the nature of liquor business, that no person has an absolute right to deal in liquor and that all forms of dealings in liquor have, from their inherent nature, been treated as a class by themselves by all civilised communities. The contention that the citizen had either a natural or a fundamental right to carry on trade or business in liquor thus stood rejected". (Emphasis supplied) In view of this settled position of law, any argument impugning the policy decision of the State Government, as reflected in the impugned notification, based upon Article 19(l)(g) is totally out of place and merits outright rejection and we have no hesitation in doing so most emphatically. Faced with the settled legal position that there is no fundamental right to trade in liquor, learned counsel for the petitioner did not pursue the argument based on Article 19(l)(g) to question the competence of Delhi Administration to take a policy decision with regard to regulating trade in liquor and laying down various regulatory measures and in our opinion rightly so. Learned counsel, however, mounted his chal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtraneous factor fouls." It would also be prudent to recall the following observations of Lord Justice Lawton in Laker Airways, (1977) 2 WIR 234 at 267, while considering the parameters of judicial review in matters involving policy decisions of the executive : "In the United Kingdom aviation policy is determined by ministers within the legal framework set out by Parliament. Judges have nothing to do with either policy making or the carrying out of policy. Their function is to decide whether a minister has acted within the powers given him by statute or the common law. If he is declared by a court, after due process of law, to have acted outside his powers, he must stop doing what he has done until such time as Parliament gives him the powers he wants. In a case such as this I regard myself as a referee. I can blow my judicial whistle when the ball goes out of play; but when the game restarts I must neither take part in it nor tell the players how to play." In the present case the executive policy regulating the sale of liquor in the territory of Delhi is sought to be challenged by petitioner on the ground that it is unfair and unreasonable besides being arbit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at fixation of MSF requirements as a criteria for such deter-mination is in any manner "unfair, irrational or unreasonable". The argument that since MSF laid down for the year 1994-1995 were not changed till 1998-99, there was no need to increase MSF requirements in 1999-2000 or to further increase the same in the year 2000-2001 for the lowest price tag brand of liquor from 60,000 cases (7.2 lac bottles) to 75,000 cases (9 lac bottles) for the current year, suffers from the basic infirmity that it invites the court to enter into an area of testing the executive policy, not on grounds whether it is "just, fair and reasonable", but whether the object could not have been achieved by fixing a lower MSF requirement. In other words Court is being invited to prescribe MSF requirements in exercise of its power of judicial review. That is not permissible and we must decline the invitation to enter that area It is not within the province of this Court to lay down that the executive policy must always remain static, even if its revision is "just, fair and reasonable". What is relevant is to find out whether the executive action is mala fide, unreasonable or irrational as a criterion. As alr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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