JUDGMENT R.K. Agrawal, J.
1. By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, Sameer Ahmad, seeks the following reliefs:-
"(a) to issue a writ, order or direction in the nature of mandamus commanding the respondents to permit the petitioner to sell his unsold stock of country liquor for the excise year 2003-04 in the current year.
(b) to issue any such other suitable writ, order or direction as this Hon'ble Court may deem fit and proper under the circumstances of the case.
(c) to award the costs of this petition to the petitioner."
2. By way of an amendment which has been allowed vide Court's order dated 14.12.2004, another relief No. (d) has been, added, as follows:-
"(d) to issue a writ, order or (direction in the nature of certiorari quashing the orders dated 9.8.2004 (Annexure "6" to the writ petition) and the order dated 11.8.2004 (Annexure "7" to the writ petition) passed by the District Excise Officer, Aligarh, respondent No. 4."
3. As the counter affidavit and rejoinder affidavit have been exchanged between the parties and the pleadings are complete, with the consent of the learned counsel for the parties, the writ petition is being heard and finally disposed of at the admission stage itself in accordance with the Rules of Court.
4. Briefly stated, the facts giving rise to the present petition are as follows:-
The petitioner was a licensee of country liquor shop situate at Gram Panchayat Sarsaul, District Aligarh for the excise year 2002-03. The licence has been renewed for the year 2003-04. The petitioner was the licensee for the excise year 2004-05 also. At the commencement of the excise year 2003-04, the State Government had taken a policy decision permitting the existing licensees of the year 2002-03 whose licenses have been renewed for the year 2003-04, to sell undisposed of quota of country liquor remaining in the stock as on 31.3.2003. However, this policy was given a go-bye in the year 2004-05 when the State Government only permitted the licensees of beer and foreign liquor shops to sell the undisposed of quota of the earlier year remaining in stock as on 31.3.2004 in the event their licenses have been renewed for the year 2004-05. The State Government did not permit the country liquor licensees to dispose of the unsold quota of country liquor remaining in stock as on 31.3.2004. The policy decision in not permitting the country liquor licences to sell undisposed of quota which existed as on 31.3.2004, by the existing licensees whose licenses have been renewed for the year 2004-2005, is under challenge in the present writ petition as being discriminatory, arbitrary and violative of Article 14 of the Constitution of India.
5. The petitioner had the following quantity of country liquor in the stock as on 31.3.2004, which he could not sell during the excise year 2003-04:-
6. He gave an application to the District Excise Officer, Aligarh to permit him to sell the abovementioned unsold quota of the excise year 2003-04 on 1.4.2004 but, according to the petitioner, no orders have been passed so Car. According to the petitioner, on 1.4.2004 itself the Excise Inspector, Sector II, Aligarh, had taken over possession of the unsold quantity of country liquor and had handed over in the supurdagi of Sri Yogeshwar Singh Chaudhary son of Sri Jagdish Prasad, resident of Burgara, P.S. Kiratpur, District Bijnor On 9.8.2004 the District Excise Officer, Aligarh had passed an order directing the Senior Treasury Officer, Aligarh to adjust a sum of Rs. 3,47,940/- towards the dues of illegal sale of left over quantity of country liquor out of the security amount under the orders dated 7.8.2004 passed by the District Magistrate. By another order dated 11.8.2004 the District Excise Officer, Aligarh had directed the petitioner to make good the deficiency of Rs. 3,47,940/- towards the security amount. The two orders dated 9.8.2004 and 11.8,2004 have been challenged by means of relief (d) pursuant to the amendment allowed on 14.12.2004.
7. We have heard Sri A.K. Gupta, learned Counsel for the petitioner, and Sri K.M. Sahai, learned counsel appearing for the respondents.
8. The learned counsel for the petitioner submitted that during the excise year 2003-04 the State Government had permitted all excise licensees whether they held licences for the sale of country liquor, foreign liquor, beer or any other intoxicant, to sell the unsold quantity of intoxicant/liquor which the existing licensees had in their stock as on 31.3.2003 and the licenses had been renewed. There was no occasion for making a departure and excluding the country liquor from the policy announced on 1.4.2004 in respect of the left over stock of unsold country liquor by the existing licensees whose licences were renewed It amounts to hostile discrimination which is violative of Article 14 of the Constitution of India and also otherwise arbitrary. He further submitted that the orders dated 9.8.2004 and 11.8.2004 have been passed behind the back of the petitioner inasmuch as the petitioner had not sold the left over quantity of country liquor as on 31.3.2004 but had handed it over to the Excise Inspector as per supurdaginama dated 1.4.2004 and, therefore, is not liable to pay any excise dues on the unsold stock. He further submitted that the orders have been passed behind the back of the petitioner without giving any show cause notice or any opportunity of hearing and, therefore, are liable to be set aside on the ground of violation of the principles of equity, fair play and natural justice.
9. The learned Standing Counsel submitted that the State has exclusive privilege in intoxicant liquor and is entitled to formulate its policy to part with the privilege. In its wisdom it has decided not to permit the existing licensees to carry over and sell the unsold quantity of country liquor during the excise year 2004-05 and, therefore, no question of any hostile discrimination or action being arbitrary arises. He further submitted that as the petitioner had sold the left over stock as on 31.3.2004, he is liable to pay demand as raised under the two orders.
10. Having heard the learned counsel for the parties, we find that it is well settled by the numerous decisions of the Apex Court that there is no fundamental right to do trade or business in intoxicants and the State, under its regulatory powers, has the right to prohibit absolutely every form of activity in relation to intoxicants, its manufacture, storage, export, import, sale and possession. In all their manifestations, these rights are vested in the State and indeed without such vesting there can be no effective regulation of various forms of activities in relation to intoxicants. See, The State of Bombay v. F.N. Balsara, AIR 1951 SC 318; Cooverjee B. Bharucha v. Excise Commissioner and Chief Commissioner, Ajmer, AIR 1954 SC 220; State of Assam v. A.N. Kidwai, AIR 1957 SC 414; Nagendra Nath v. Commissioner of Hills Division, AIR 1958 SC 398; Aman Chandra Chakraborti v. Collector of Excise, Government of Tripura, AIR 1972 SC 1863; State of Orissa v. Hari Narayan Jaiswal, AIR 1972 SC 1816; Nashirwar etc. v. State of Madhya Pradesh, AIR 1975 SC 360; Har Shanker and Ors. (supra); Lakhanlal v. State of Orissa, (1976) 4 SCC 660; Sat Pal & Co. v. Lt. Governor of Delhi, (1979) 4 SCC 232; Southern Pharmaceuticals and Chemicals v. State of Kerala, (1981) 4 SCC 391; State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566; Doongaji & Co. (I) v. State of M.P., 1991 Supp (2) SCC 313; Khoday Distilleries Ltd. and Ors. v. State of Karnataka and Ors., (1995) 1 SCC 574; Rajendra Singh v. State of M.P. and Ors. (1996) 5 SCC 460 and Yadar Shafi and Ors. v. State of J & K and Ors. (1996) 5 SCC 740.
11. The Apex Court in the case of Government of Maharashtra and Ors. v. Deokar's Distillery, (2003) 5 SCC 669 has once again reiterated the above principle. Paragraphs 43 to 45 of the report is reproduced below :-
"43. Concededly, a citizen of India in view of a catena of decisions of this Court has no fundamental right to carry on trade or business in potable liquor. The State indisputably has a right to regulate or prohibit business in potable liquor as a beverage or otherwise keeping in view the fact that the same is dangerous and injurious to health and is, therefore, an article which is res extra commercium being inherently harmful. The State is, therefore, entitled to completely prohibit a trade or business in liquor and create monopoly either in itself or in an agency created by it or take over such activities itself. For the purpose of selling the licence it can adopt any mode with a view to maximize its revenue so long as the method adopted is not discriminatory.
44. However, when the State permits trade or business in potable liquor, the citizen has the right to carry on trade or business subject to the limitations, if any, and the State cannot make discrimination between the citizens who are qualified to carry on the trade or business (See Khoday Distilleries Ltd (supra)).
45. Although a citizen has no fundamental right to carry on trade or business in potable liquor, but when he is permitted to carry on such business, he would be entitled to claim equal right as against other citizens. In absence of the State imposing any prohibition or monopolizing the business, the same may be carried on by the licensee without being subjected to any discrimination. Such a right although may not be elevated to the status of a fundamental right but all the same it is a right."
12. In "American Jurisprudence", Volume 30, it has been stated, at page 538-541, that while engaging in liquor traffic is not inherently unlawful, nevertheless it is a privilege, and not a right, subject to government control. This power of control is an incident of the society's right to self-protection and it rests upon the right of the State to care for the health, morals and welfare of the people. Liquor traffic is a source of pauperism and crime.
13. In view of the aforesaid principles, we are of the considered opinion that the State has the exclusive privilege to deal in intoxicant. Each of the intoxicants constitute a separate class by itself and if in its wisdom the State Government has decided to permit only the existing licensees of foreign liquor and beer to sell/dispose of unsold quantity of the liquor, it cannot he said to have resulted in any hostile discrimination. The circumstances under which the State Government has not permitted the country liquor licensees to sell/dispose of unsold quantity of country liquor during the excise year 2004-05, is not open to challenge under Article 226 of the Constitution of India since it is a policy decision and the licensees of country liquor and foreign liquor cannot be paced in the same class. They constitute different class and, therefore, there is no discrimination. The submission based on the plea of arbitrariness and discrimination is, therefore, rejected.
14. So far as the question of demand of Rs. 3,47,940/- is concerned, we find that in paragraphs 22A and 22B of the amended writ petition it has been stated that the order dated 9.8.2004 as well as the order dated 11.8.2004 are ex parte orders and have been passed behind the back of the petitioner. There is no specific denial in the counter affidavit filed by Sri S.S. Yadav, District Excise Officer, Aligarh, except the fact that paragraphs 22A and 22B are wholly incorrect, misconceived and denied. There is no specific denial to the effect that the said orders have been passed ex parte. Since the two orders dated 9.8.2004 and 11.8.2004 have been passed ex parte, which averment has not been specifically denied, the two orders cannot be sustained and are hereby set aside. The matter is remanded to the District Excise Officer, Aligarh, to pass fresh orders in accordance with law after giving opportunity of hearing.
15. In the result, the writ petition succeeds and is allowed in part. The orders dated 9.8.2004 and 11.8.2004 are set aside. However, the parties shall bear their own costs.