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TMI Blog1967 (3) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 complained against the location of the appellant's bar and restaurant there. As the licence for 1965-66 would expire on March 31, 1966, the appellant applied for a fresh licence for 1966-67 and deposited the prescribed licence fee in the Government treasury. The appellant in Civil Appeal No. 66 of 1967 was carrying on business in liquor in his hotel, named Bliss Hotel and Bar, situated in Parade Ground, Jammu, under a licence issued by the Government of the said State. He obtained a licence for the first time in 1964. After obtaining the licence, it is alleged, he had spent about Rs. 70,000/- in furnishing the Hotel and Bar, but for unavoidable reasons he could not do business during the financial year 1964-65. For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 as a matter of course, the appellants were entitled to notice and an opportunity to explain why the licence should be renewed. (4) The ground relating to objections as to locality was not in substance accepted by the High Court. The first point, namely, the constitutional validity of S. 20 of the Act was not raised in the High Court. We cannot permit the appellant to raise that question for the first time before us. But we should not be understood to have expressed our view one way or other on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 activity though it may be a ground for imposing a restriction on the said activity. The illegality of an activity does not affect the character of the activity but operates as a restriction on it. If a law prohibits dealing in liquor, the dealing does not cease to be business, but the said law imposes a restriction on the said dealing. But it is said that the decisions of this Court have held that dealing in liquor is not a business or trade within the meaning of Art. 19 of the Constitution. In T. B. Ibrahim v. Regional Transport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; "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 restriction on the said right. The decision of this Court in The State of Assam v. A. N. Kidwai, Commissioner of Hills Division and Appeals, Shillong ([1957] S.C.R. 295, 301) has no relevance to the present enquiry. The following- passage from the said judgment is relied upon "A perusal of the Act and rules will make it clear that no person has any absolute right to sell li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, and the im pugned provision confers arbitrary or excessive powers on the authority, that it is liable to be struck down. The nature of the restrictions imposed will necessarily vary with the nature of the business. Restrictions on the carrying on of business in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 first time before us. In the result the appeals fall and are di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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