TMI Blog1967 (3) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... ashmir, R. N. Sachthev for S. P. Nayyar, for the respondent JUDGMENT Subba Rao, C.J. These two appeals arise out of a common judgment of a Division Bench of the High Court of Jammu Kashmir dismissing the two petitions filed by the appellants for the issuance of a writ quashing the order passed by the Taxing and Excise Officer, Jammu, refusing to renew their licences for the year 1966-67 in respect of their liquor shops. The facts giving rise to these two appeals may be briefly and separately stated. Civil Appeal No. 65 of 1967 relates to Glory Restaurant situated in Moti Bazaar, Jammu. The appellant in the said appeal, who is the proprietor of the said restaurant, after taking the requisite licence from the Government, had been carrying on for the last 7 years the business of retail sale of country and foreign liquor in the said restaurant. The licence was an annual licence and it was being renewed from year to year. On December 11, 1965, the Deputy Excise and Taxation Commissioner, Jammu, issued a notice to the appellant ordering the shifting of the premises of the said restaurant to some other locality on the ground that the inhabitants of the locality had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, bona fide, in exercise of his discretion, refused to give licence to the appellants to carry on business in the said localities. In the High Court the Writ petitions, along with others, were decided by a Division Bench consisting of Chief Justice and Justice Syed Murtaza Fazl Ali. They gave concurrent but separate judgments. Both the Judges agreed on merits in dismissing the petitions, but expressed different views on the question whether the petitioners had fundamental right to do business in liquor. Hence the appeals. Mr. Desai, learned counsel for the appellants, contended as follows :- (1) If s. 20 of the Act was construed as conferring an absolute discretion on the Commissioner of Excise and Taxation to issue or not to issue a licence to do business in liquor, it would be void on the ground that it infringed Art. 19 of the Constitution. (2) The licence being renewable as a matter of course, the Commissioner of Excise and Taxation could not refuse to renew the same on a ground other than those similar to the grounds contained in s. 22, cls. (a), (b), (c) and (d) of the Act. (3) In any case, as the licences were renewable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trictions on, or even prohibit the carrying on of a particular trade or business and the Court, having regard to the circumstances obtaining at a particular time or place may hold the restrictions or prohibition reasonable. The question, therefore, is, what is trade or business ? Though the word business is ordinarily more coin-prehensive than the word trade , one is used as synonymous with the other. It is not necessary to bring out the finer points of distinction between the said two concepts in this case. In the words of S.R. Das, J., as he then was, in Narain Swadeshi Weaving Mills v. The Commissioner of Excess Profits Tax ([1955] 1 S.C.R.952,961), the word business connotes some real, substantial and systematic or organised course of activity or conduct with a set purpose. Even accepting this test, if the activity of a dealer, say, in ghee is business, then how does it cease to be business if it is in liquor ? Liquor can be manufactured, brought or sold like any other cornmodity. It is consumed throughout the world, though some countries restrict or prohibit the same on economic or moral ,rounds. The morality or otherwise of a deal does not affect the quality of the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to thus sell intoxicating liquors by retail; it is not a privilege of a citizen of the State or of a citizen of the United States. As it is a business attended with danger to the community, it may, as already said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evil. After citing the entire passage, this Court concluded thus These observations have our entire concurrence and they completely negative the contention raised on behalf of the petitioner. The provisions- of the regulation purport to regulate trade in liquor in all its different spheres and are valid. It will be seen that the said passage from the judgment of Field. J., has nothing to do with the construction of Art. 19 (1) (g) of the Constitution of India. The learned Judge was considering the scope of the police power and in that context the said observations were made. This Court applied those observations in considering the reasonableness of the restrictions imposed on the fundamental rights. Indeed, a perusal of the entire judgment shows that the Court conceded the fundamental right but held that the said regulation operated as a reasonable re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... propensity for making easy gain by lot or chance, which lead to the loss of the hard earned money of the undiscerning and improvident common man and thereby lower his standard of living and drive him into a chronic state of indebtedness and eventually disrupt the peace and happiness of his humble home could possibly have been intended by our Constitution makers to be raised to the status of trade, commerce or intercourse and to be made the subject-matter of a fundamental right guaranteed by Art. 19(1) (g). This decision only lays down that gambling is not business or trade. We are not concerned in this case with gambling. A division Bench of the Orissa High Court in Ranchhorlalji v. Revenue Divisional Commissioner, Northern Division, Sambalpur (A.I.R. 1960 Orisa 88, 92) maintained the validity of the provisions of the Orissa Cinema (Regulation) Act, 1954, on the ground that it did not infringe the fundamental right guaranteed under Art. 19 (1) (g), read with Art. 19(6) of the Constitution. The learned Judges observed : It is only when no policy or principle has been laid down either in the Preamble or in the other provisions of the statute or statutory rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) Even the High Court held that in regard to licensees against whom there were no complaints a further inquiry should be held. In support of the contention we were taken through all the necessary correspondence. The learned Judges on a consideration of the entire material placed before them, held that the Commissioner of Excise and Taxation made a bona fide enquiry and found that the locality was not suitable for carrying on business in liquor in view of the various circumstances mentioned in the counter-affidavit. We do not think we are justified in interfering with the finding of fact arrived at by the High Court on the material placed before it. On the said finding it cannot be held that the order of the Commissioner was arbitrary or unreasonable. We cannot agree with the learned counsel that S. 22 controls s. 20 of the Act for the former deals with the cancellation of a licence and the latter with the issuance of a fresh licence : they deal with two different subject-matters. Lastly, the learned counsel for the appellants contended that the order was mala fide. But this point was not pressed before the High Court and we cannot allow it to be raised for the fi ..... 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