Rajasthan High Court - Jaipur
Rao Manohar Singh And Ors. vs State Of Rajasthan on 27 October, 1953
JUDGMENT Modi, J.
1. These are connected writ applications under Article 226 of the Constitution of India presented by certain Jagirdars holding their Jagirs in what is now the Udaipur Division, but what was formerly the State of Udaipur, praying for a writ of Mandamus or any other appropriate writ or direction against the Rajasthan State with the object of preserving their alleged rights to manufacture liquor and to the receipt of certain cash grants in the same connection, alleged to have been enjoyed by them hitherto, but of which they have been deprived since 1952 A.D.
2. The case of all the petitioners with the exception of the Jagirdars of Jawas and Sarwan (Writ application No. 145 of 1952 and No. 41 of 1953) is one and the same, and even the case of the two Jagirdars above-named presents the same features save that they claim the setting up of their Thikanas before the Ruling House of Mewar was founded in Udaipur, and, therefore, they claim to possess the right not merely to manufacture liquor for their personal consumption like other petitioners but also for purposes of sale.
Leaving aside this differentiating feature for the moment with, which we propose to deal at the proper place, the case of all the petitioners is that they had been from time immemorial in enjoyment of the right to manufacture liquor and also to sell it within their Jagirs until in 1931 A.D. the Government of the former state of Udaipur, as it then was, took over the excise administration in the entire territory of that State and partially acquired the excise rights of the petitioners and granted to them in lieu thereof a certain amount of cash compensation and further allowed them the right to distil a certain quantity of liquor for their personal consumption, the cash allowances and the quantities of liquor to be privately distilled varying between the various Thikanas.
The petitioners claim that the said obligations of the covenanting State of Udaipur devolved upon the respondent State of Rajasthan, by virtue of the provisions of Article 6 of the Covenant entered into at the time of the integration of the States which now form the Rajasthan State and also by virtue of Article 295(2) of the Constitution. The contention of the petitioners is that their rights to distil liquor and as to the monetary compensation were rights of property and as such stood guaranteed to them as a fundamental right under Article 31 of the Constitution and that these were enjoyed by them even after the integrated State of Rajasthan had been formed up to 18-7-1952. On the date last-named, however, the Rajasthan State terminated the arrangements above referred to by two notifications which were both issued as No. P. 41(1)S.R../51, and one of which purported to have been issued under Section 71(2), Rajasthan Excise Act, 1950 (Act No. 2 of 1950), and the other, it is contended, was issued under no law at all. It is thus claimed that the action taken by the State violates Article 31 of the Constitution inasmuch as the petitioners have been deprived of their rights of property without the authority of law and further without any compensation having been granted to them, and, therefore, such action is void and illegal and inoperative.
The petitioners pray, therefore, that the respondent 'State of Rajasthan be enjoined by a writ of mandamus to forbear from giving effect to the notifications referred to above and to others to the pre-existing arrangements as regards the distillation of liquor and the payment of cash compensation to the petitioners.
3. In reply it is admitted on behalf of the respondent State of Rajasthan that the petitioners were in receipt of certain cash allowances from the former State of Udaipur and it is further admitted that they were also allowed to distil a certain quantity of liquor for their personal consumption. It is contended, however, that the then State of Udaipur had done so merely to achieve the smooth introduction of a uniform excise administration in the State and to enlist the cooperation of the important Jagirdars (who were called Umraos in that State) towards that end. It is thus contended that what was enjoyed by the Jagirdars was a sort of a political grant made for political purposes to eliminate opposition to the introduction of the system of State' control over the manufacture and distribution of liquor throughout the territory of the State; but such special treatment extended to the Jagirdars did not and could not amount to the creation of any right in their favour, and in any event, the supposed resultant right was not a right of property.
It was further disputed that in no case the obligations which, if at all, rested on the former Udaipur State were in law available against the present State of Rajasthan owing to a change in the sovereignty and it is, therefore, claimed that the notifications issued by the respondent State on 18-7-1952, withdrawing the concession in question were valid and legal as being within the competence of the State and also in accordance with the Rajasthan Excise Act (No. II of 1950).
It was further contended that the continuance of distinctions in the matter of manufacture of liquor in favour of certain Jagirdars after the Constitution came into force would itself be un-constitutional being in conflict with Article 14 of the Constitution. Finally, it was contended that the petitioners had an alternative remedy by way of a suit which was equally beneficial and efficacious and in view of the important issues of fact and mixed fact and law involved in the matter, this was not a fit and proper case in which this Court should interfere in the exercise of its extraordinary jurisdiction.
4. We may state at the outset that all the cases which are before us relate to certain Jagirdars of the Udaipur Division, but as there are similar cases pertaining to the Jaipur Division pending before the Jaipur Bench of this Court and as common questions were involved, we permitted Mr. H. P. Gupta, a learned advocate from Jaipur to appear as 'amicus curiae' at the hearing of these petitions.
5. We think it proper to reproduce the impeached Notifications which were issued .by the Rajasthan State and published in the official Gazette No. 76 in Vol. IV, dated 26-7-1952:
SEPARATE REVENUE DEPARTMENT.
ORDER.
Jaipur July 18, 1952.
No. F.41 (1) S..R./51. The Government has reviewed the commitments made by the Covenanting. States of Rajasthan in the form of cash grants to Jagirdars and to other persons for certain excise concessions or privileges and is satisfied that, in the changed circumstances, these are against public interest. It has, therefore, been decided to terminate these arrangements and any compensation or cash grants payable under the old commitments will cease to be payable with effect from the date of this Order".
6. The other Order which also bears the same number and the same date reads as follows:
"Jaipur July 18, 1952.
No. P. (41) (1) S.R./51. In exercise of the powers conferred by Sub-section (2) of Section 71, Rajasthan Excise Act 1950 read with Section 21, General Clauses Act 1897 of the Central Legislature, the Government of Rajasthan is pleased to order that all permissions, exemptions and concessions granted in respect of manufacture or distribution of liquor or other excisable articles or in respect of any distillery, brewery, potstill or warehouse under the laws of the former Jodhpur and Bikaner States and other covenanting States or under any rule made thereunder, shall be cancelled with immediate effect.
By Order of His Highness the Rajpramukh.
Sd/.
Secretary to the Government."
7. As regards the first order, it was conceded on behalf of the State by the learned Advocate Genera] that it was not issued under the authority of any law. It was claimed, however, that the cash grants made by the former Government of Udaipur were not made under any law as such but by an executive order, and it was, therefore, open, to the Rajasthan State to discontinue and terminate such grants also by an executive order. 'The second Notification withdrew permissions, exemptions or concessions with respect to the manufacture or distribution of liquor granted under certain-enactments of the Covenanting States clearly appears to have been issued under the authority of a statute viz., The Rajasthan Excise Act (No. II of 1950),' which is hereinafter referred to as the Rajasthan Act.
It is common ground, however, that so far as the petitioners' cases are concerned, there was no law under which such concessions or exemptions had been granted. The authority behind the said exemption, it is claimed, was an executive order of His Highness the Maharana of Udaipur. Be that as it may, it is obvious that the second notification also did not and could not apply in terms to any of the Udaipur cases and that notification, therefore, clearly could not have any operation to stand in the way of the petitioners' rights, if any, pertaining to the private distillation of liquor.
8. But it is equally clear to us that the matter does not end there. The Kajasthan Act had come into force as early as 20-6-1950. That Act was a prohibitory or a regulative Act as regards the manufacture of liquor and other excisable articles, and, therefore, there can be no question, in our opinion, that the alleged right of the petitioners was and could not but be adversely affected by this Act, apart altogether from the notification above referred to.
9. The relevant portion of Section 16 of the Rajas-than Act which governs the matter reads as follows:
"1. (a) No excisable article shall be manufactured.
(b), (c), (d), (e). (f)
(g) no person shall use, keep or have in his possession any materials, still, utensil, implement, instrument or apparatus whatsoever for the purposes of manufacturing any excisable article, except under the authority and subject to the terms and conditions of licence granted in that behalf by the Excise Commissioner.
2. No distillery, brewery or pot-still shall be constructed or worked except under the authority and subject to the terms and conditions of a licence granted in that behalf by the Excise Commissioner".
10. The language of this section clearly prohibits the private distillation of liquor except in accordance with the terms and conditions of a licence granted under the Act.
11. Mr. Trivedi, learned counsel for the petitioners contended, to start with, that the Rajas-than Act did not come into operation at all owing to the defective manner in which it had been brought into force. The argument was that whereas it was enacted in the Act itself that it shall come into force with effect from such date as the Government may -by notification in the Rajasthan Gazette appoint for the purpose, eventually the State instead of fixing a definite date for its enforcement which it should have done, issued a further notification No. P.49(1)S.R./50 dated 20-6-1950, saying that the Act would come into force with effect from the date of the publication of the said notification in the Gazette and that this method of enforcement of the Act was irregular.
It is admitted that the last notification was actually published in the State Gazette dated 1-7-1950, but it is again contended that that notification was stated to have been issued under sub-section 13 of Section 1 of the Rajasthan Act which sub-section however did not exist at all.
We may say at once that we see no force in these contentions. We are completely unable to agree that the Rajasthan Act failed to have effect or was prevented from' coming into force merely because the State instead of itself fixing a definite date for its enforcement- specified such date with reference to a future point of time viz., the publication of the notification in the Gazette which was in fact made Mr. Trivedi was unable to cite any authority in support of his contention. As regards the effect -- notification having been issued under a non-existent section of the Act, we have no doubt that the figure (13) was only a printing error for 3 (i.e., sub-section 3 of Section 1) and that such an error could not possibly rob the notification of its due effect and force.
12. Learned counsel for the petitioners next contended that in so far as the said Act deprived the petitioners of their right to continue to distil liquor for their private or domestic consumption, and of their cash grants it infringed a right of property of the petitioners and, therefore, fell within the mischief of Article 31 of the Constitution and, was therefore void and inoperative. Thus, for instance, taking the case of one of the petitioners namely Rao Manohar Singhji of Bedla, it was submitted before us that the petitioner was deprived of his right to manufacture 100 maunds of liquor which was equal to 4000 bottles and that, the price thereof at Government rate came to Rs. 12,000/- that the cost of manufacture of the said, quantity worked out to Rs. 2,000/- only and thus it was contended that the petitioner was put to a loss of income amounting to Rs. 10,000/-on this account alone.
It was further pointed out that to this must, be added the amount of the annual cash compensation namely Rs. 4,9107- granted by the former State of Udaipur; the total loss of income was thus stated to amount to Rs. 14,9107- in this case. We consider it unnecessary to give similar-figures in the case of the other petitioners.
13. The principal question for determination., before us, therefore, is what is precisely the nature of the so-called right claimed by the petitioners in the cases before us. This question, in our opinion, requires to be considered separately; first with reference to the alleged right to manufacture liquor and secondly to the cash allowances withdrawn by the State and sought to be preserved by the petitioners. Historically speaking, however, it seems to us that both things flowed from a common origin.
The former States which now constitute the integrated State of Rajasthan, it cannot be gainsaid, were very largely dominated by feudal influence particularly in the times which are relevant for the purpose of our present enquiry. The authority of the State in the political and geographical-conditions which prevailed then, was naturally nebulous to a degree and was effectively exercisable with reference to activities which were necessarily limited in scope and character. The feudal lords who in many cases represented the younger branches of the ruling family exercised overwhelming influence and power with the authorities that were and in the country at large, and enjoyed considerable liberty of action and did not fail, to take advantage of the situation as it existed, and raised such levies from the people living under their immediate protection as commended themselves to their sweet will and pleasure. The central authority was in no situation to counteract such activities.
Gradually, however, the State administration became more steady and erect and as and when it grew in stature and authority, it directed its attention to the taking over of the control of activities which properly fell within the legitimate functions of the State. But it is only to be expected that in effecting such a change over, the administration had to pay a price in the very nature of things and this process, in our opinion, more or less correctly depicts the historical background behind the so-called excise ' rights and similar other privileges which may have been granted by the State to the feudal lords in the various parts of Rajasthan. We may also point out that it is remarkable that compensation in cash or Rind was granted to only such of the Jagirdars as had the potentiality to create trouble and cause obstruction but not to others although they were equally deprived of similar perquisites.
In this connection, we would invite a reference to notification No. 27496 dated 22-11-28 and another notification No, 66316 dated 25-5-1929, issued by the Mehkma Khas of the former State of Udaipur -- these are documents produced by the petitioners themselves and are marked as Nos. 9 and 10 -- by which the smaller Jagirdars were deprived of their power or authority to manufacture "and sell liquor within their Jagirs but without any compensation having been paid to them whatever.
14. We now turn our attention to the document which constitutes the very foundation of the claim of the petitioners in the present case. This is marked as No. 13 by the petitioners and is dated Sawan Sudi 5, Smt. 1987, and was addressed by the Mehkma Khas of the former State of Udaipur to the Madak Prachar Sudharak Sabha which was, to all intents and purposes, the Excise Department of that State and will hereinafter be referred to as "the Sabha". We propose to summarize the contents of this order.
It provided in its introductory para that the control as to manufacture, distribution and sale of iiquor within the Jagirs of the "Umraos" (who constituted a very important and influential class of Jagirdars in Mewar) has been taken over from them and placed in the hands of the Sabha and that the new arrangements would come into force from 1-1-31, In para. 1, it was provided that in lieu of the taking over, a monetary compensation amounting to 20 per cent, over and above the excise income of the Thikana for the Smt. Year 1980 would be payable annually. It was further provided that this amount would be drawable in two half-yearly instalments from the nearest sub-treasury or the excise department whichever was nearer and would be exempt from any attachment whatsoever. In para. 2 it was provided that the Sabha would have the power to permit a Thikana to set up, at the maximum, a hundred stills annually for manufacturing liquor,' under the former's supervision, but such distillation would be exclusively for the personal or domestic consumption of the Jagirdar, each still being considered equal to one maund of liquor.
It was also laid down that small presents as between Jagirdars who enjoyed the privilege of private distillation would be permissible but the Sabha would have to be informed of such presents if and when made. Paragraph 3 of the notification provided that on occasions of marriage or other ceremonies, the Jagirdars would be supplied liquor up to such quantity as the Sabha thought proper at cost price or alternatively the Sabha may permit the setting up of additional stills for distilling liquor for such occasions under its own supervision. By para. 4 it was further provided that if at any time, the income to the State from the sale of liquor within a particular Thikana might fall below 50 per cent, of the Thikana income of Smt. 1980, which, it will be remembered, was considered to be the base for the calculation of the monetary compensation, it would be open to the State to re-consider the quantum of the cash compensation payable to that Thibana.
Lastly, it was laid down that if for any reason, the income of the State from the manufacture, distribution or sale should cease altogether, then the compensation and the amenities referred to above would also automatically end.
15. It is on this notification that the present petitioners have founded their claim. It is common ground between the parties that there was no law under which the monetary compensations and the other amenities were permitted to the petitioners. To us, it is not without significance that the said notification separately provided for two kinds of things; first, a cash compensation, and secondly, the liberty of setting up of a certain number of stills for the manufacture of liquor for the domestic consumption of the Jagirdar.
It is also not without significance that the cash compensation was allowed to be based on the actual income of the grantee from the manufacture and sale of liquor for a certain year which was Smt. 1980 to which another 20 per cent, was directed to be added. The other amenity viz., of private distillation was in addition to the actual income which used to be derived by the Thikana from the sale of liquor. This obviously, in our opinion, did not and could not have a money value.
We have reasons to believe that the privilege of private distillation more or less rested in the pleasure of the ruler and could also be withdrawn at his pleasure for some reason or another. Having regard to one essential nature of this particular privilege and its surrounding circumstances, we are inclined to think that it was a sort of a privilege or a dignity which had been extended by the ruler to those who were his kith and kin being members of younger branches of his family or to those who had been fortunate enough to secure his patronage for some reason or another, Mr. Trivedi, learned counsel for the petitioners, strenuously urged, however, that this was an incident of the jagirdari tenure and was actually conditioned on the Rekh or scheduled income of the estate of a Jagirdar and was as such a right of property. This contention, in our opinion, is without any foundation. We may point out that no document or sanad evidencing the grant of a jagir was produced before us to show that such grant necessarily involved the grant to a Jagirdar of a right to derive the income from the manufacture or sale of liquor, whether for purposes of private consumption or of public sale.
As we have already pointed out with reference to notifications of 1928 and 1929, documents marked as Nos. 9 and 10 referred to above that similar amenities were taken away from the other Jagirdars and their Jagirs were not thereby touched in any manner whatsoever. We may in this connection refer to the case of the Jagirdar of Khachariawas in the Jaipur division, which was brought to our notice and which shows that the privilege of setting up of stills was allowed to him as a special case and could also be withdrawn without at the same time affecting the jagirdar's estate as such. (Vide former Jaipur State Council Resolution No. 1 dated 9-12-1932). All these facts and circumstances, in our opinion, go to show one thing more than any other, and that is that the so-called right, whatever else it might be, is not an incident which can be considered to form part and psrcel of the Jagirdari tenure held and enjoyed by the petitioners.
16. We are, therefore, decidedly of the opinion that so far as this branch of the petitioners' case is concerned, the so-called right of private distillation was not a right at all in any strict or legal sense of the term but a privilege enjoyed during the good pleasure of the Ruler. In this view, it is not necessary to consider in any great detail the further question whether it is a right of property. As learned counsel vehemently argued that the deprivation in this case amounted to taking possession of private property, we, think it proper to briefly dispose of this contention also.
17. His argument at one stage was that every right was a right of property. We are unable to accede to this contention. It can be only a very loose way of saying things in modern times. A right as to security of one's own person or the right of personal liberty or the right of reputation or rights in respect of one's domestic relations are rights of great importance, but we are not prepared to accept that in modern legal parlance, they can be characterised as rights of property.
18. Learned counsel then relied on --'Charanjit Lal v. Union of India', AIR 1951 SC 41 (A) in support of his, argument. In that case the Governor General of India first promulgated an Ordinance which was later passed as an Act by the Parliament by which special provisions were made for the State management and administration of the Sholapur Spinning and Weaving Company, and in pursuance of the provisions of the said enactment, the Central Government first delegated all its powers to the Government of Bombay and immediately thereafter the Government of Bombay removed all directors of the Company and appointed certain persons as directors of the Company.
It was argued that the provisions of the Act amounted to deprivation of property of the shareholders and that the restrictions imposed on the rights of the share-holders constituted an unjustifiable interference with their rights to hold property.
It was held by Mukherjea J. who delivered the leading judgment of the majority that the petitioner had not been dispossessed of the share held by him. It was further observed that his right of voting at the election of directors had been kept in abeyance so long as the statutory management continued and that to such extent his right to participate in the management of the company had been curtailed and similarly certain other rights possessed by him, such as to institute winding up proceedings had also been abridged, but all this notwithstanding such deprivation was not sufficient for the purpose of holding that the petitioner had been dispossessed of the property owned by him. Dealing with the case further, his Lordship proceeded to observe with reference to Article 19(1) of the Constitution that certain limitations had undoubtedly been imposed upon the petitioner but that these were rights or privileges which by themselves or taken independently could not be reckoned as property within the meaning of Article 19(1)(f) of the Constitution, even though it were accepted that they were rights or privileges which were appurtenant to or flowed from the ownership of the property.
In a concurring judgment, Das J. also dealt with this question and held that the shareholders' rights to elect directors and to present a petition for the winding up of the Company and similar other rights of which they had been deprived during the pendency of the statutory management, were privileges incidental to the ownership of the share but they could not be reckoned as rights by themselves within the meaning of Articles 31 or 19 of the Constitution.
It was further held that such rights were personal rights although they flowed from the ownership of the property which was a share, and could not by themselves and apart from the share be construed as property. In our opinion, this case affords no assistance whatsoever to the learned counsel for the petitioners and in fact appears to us to be an authority against him. So far as the property from which liquor may be distilled is concerned, there has been undoubtedly no taking away of it from the petitioners. It is only the purpose of distillation to which these articles may be put which has been taken away. This purpose or privilege of distillation, in our opinion, is by itself not property within the meaning of Article 31 of the Constitution. We would go further and say that even if it were conceded that such a right flowed from or was appurtenant to the holding of their Jagirs by the petitioners which, in our opinion, it is not, such a right would still be not a proprietary right but a personal right. In other words, it was a matter which pertained more to the status of the parties as Jagirdars than to their property as such.
19. Mr. Trivedi next contended that the distillation of liquor had by itself some kind of money value, and, therefore, was a right of property, inasmuch as the petitioners would have to pay a higher price if they were required to purchase liquor from the market instead of distilling it themselves. That may undoubtedly be so, but we fail to see what objection the petitioners can have to paying the same price which other citizens are or may be called upon to pay. Judged from this standpoint, we cannot but think all that the petitioners want is nothing but a permanent exemption from the payment of the State tax on liquor which other citizens have to pay.
We are emphatically of the opinion that the so-called right to distil liquor in so far as it may have any money value as claimed by the petitioners is based upon this indirect immunity from taxation and cannot be countenanced at all. The reason in our opinion is clear and unassailable, as such an immunity cannot be claimed in law and would be hit by Article 14 of the Constitution and come into conflict with the principle of equality & equal protection enshrined in that Article. We have, therefore, no hesitation in holding that in its essence, the practice of private distillation was a mere dignity or a privilege accorded to rank and nobility and was a matter more of status than of property, and that the withdrawal of any such privilege by the State cannot be properly characterized as the taking away of any right of property and does not constitute any infringement of the fundamental right guaranteed under Article 31 of the Constitution.
20. Before proceeding further, we consider it convenient to refer to an argument of Mr. Jeewan Singh Chordia, learned counsel for some of the petitioners, who urged that the right of private distillation vouchsafed to the petitioners under the order of His Highness the Maharana of Udaipur was not taken away by the Bajasthan Act. 1950, but was preserved under Section 16 thereof, and he relied in support of his argument on the exception provided in Sub-section (1) of Section 16. We have already quoted above the relevant portion of this section upon which learned counsel relies in support of his argument, and need not repeat it.
21. The argument of learned counsel was that the order of His Highness the Maharana of Udaipur amounted to a licence provided under the exception to Section 16 and, therefore, the petitioners' right of private distillation could not be held to have been taken away by the Rajasthan Act. This argument is, in our opinion, wholly unsustainable. We cannot possibly accede to the contention that the privilege of private distillation allowed to the petitioners under the order of the Ruler of Udaipur was a licence granted to the petitioners within the meaning of Section 16 of the Rajasthan Act, or such as would be preserved under the saving Section 2 of that Act.
The relevant portion of Section 2 runs as follows:
"The Excise Acts or Laws in force in any part of Rajasthan are hereby repealed:
Provided that the repeal shall not affect any thing done or action taken under the Acts or Laws so repealed before the date on which this Act comes into force:
Provided also that all licences and other permissions issued under any of the said Acts or Laws in force at the date of commencement of this Act shall, continue for their respective periods as if issued under the appropriate provision of this Act and subject to other provisions thereof.'' We have only to cast a casual glance at Chapter 6 of the Rajasthan Act which deals with the form, conditions, renewal and cancellation of a licence under the Act to repel this argument. It is quite clear to us that the order of His Highness the Maharana of Udaipur was not a licence at all and the scheme of the Act does not and cannot contemplate the grant of any permanent licences such as are claimed by the petitioners to have been granted to them by the Maharana of Udaipur. We have, therefore, no hesitation in holding that the privilege of private distillation of liquor or even the possession of any materials for the purposes of manufacturing liquor by the petitioners was directly hit by Section 16 of the Rajasthan Act and could not be exercised or enjoyed after the commencement of the Act.
22. We next turn to the cases of the Jagirdars of Jawas and Sarwan who unlike other petitioners enjoyed and still claim the right of distillation not for their domestic or private consumption only but also for sale. It was submitted that on account of their claim that their Thikanas had an earlier origin than the former State of Udaipur, they were treated on a different and perhaps a more dignified footing and allowed to distil liquor not only for purposes of personal consumption but also for sale, even subsequent to 1931 when the former State of Udaipur took over the control of the manufacture and sale of liquor under its administration throughout the State.
At first sight, therefore, it may appear as if the right claimed by these Thikanas stands on a higher footing. Oil a closer examination, however, we have come to the conclusion that the case of these Jagidars cannot be differentiated in principle from that of the other petitioners which we have discussed at length above.
We have already held that the right of private distillation as such could not but be adversely affected by the introduction of the Rajasthan Act and could not be carried on except in accordance with the provisions of the said Act. The irresistible consequence therefore was and must be that the old right, if any, in its unregulated form was taken away once and for all, and a system of licences was introduced according to which only such persons as held a licence from competent authority under the Act could manufacture and sell liquor. The question is whether in these circumstances it can be premised that the Act was. illegal or inoperative in so far as it took away the income of these petitioners or of those who enjoyed a like immunity. Our answer to this question is in the negative.
As we have already held above, the so-called right of private distillation was in its essence a matter of personal privilege and was not a right which could be recognized in any legal sense of the term and also was not property within the meaning of Article 31 of the Constitution. We further consider that all that the Rajasthan Act did was to regulate the distillation of liquor in accordance with civilised notions elsewhere and we do not see nor has it been contended before us that the restrictions imposed by the Act are by any means unreasonable or improper or that the said legislation was passed to fulfil any objective save that of 'public interest. The circumstance that these Jagirdars made some money out of the exercise of such private distillation would not, in our opinion, be sufficient to raise the privilege of private distillation ir, their case to the status of a right of property and would not make any difference as to the conclusion at which we have arrived. We hold accordingly that the cases of these Jagirdars cannot be treated on a different footing from those of the other Jagirdars who had the right to distil but not to sell liquor.
23. We next turn to the arguments addressed to us by Mr. Gupta who appeared as amicus curiae. He contended that the position of the Jagirdars of Jaipur, so far as their alleged right of private distillation was concerned, was governed not by any executive order as in the case of the petitioners, but by statute which was called the Jaipur Excise Law, 1924 (hereinafter referred to as the Jaipur Act) and, therefore, stood on a somewhat different footing. Learned counsel put forward his case like this. Under the Jaipur Act,, certain Jagirdars enjoyed the right of private distillation of liquor. This right was enjoyed by them right up to July, 1952, when it was sought to be taken away by the State under its notification which has already been set out above, and which was issued under Sub-section (2) of Section 71 of the Rajasthan Act, 1950, read with Section 21, General Clauses Act, 1897.
Learned counsel contended that Section 71 (2) was hit by Article 14 of the Constitution and was, therefore, void and inoperative, and could not have the effect of withdrawing the exemptions which were granted under the Jaipur Act. In support of his argument learned counsel relied upon -- 'State of West Bengal v. Anwar All', AIR 1952 SC 75 (B); anil -- 'Kathi Raning v. State of Saurashtra', AIR 1952 SC 123 (C). The contention was that that once Section 71 (2) was itself held to be void under the authority whereof the State had withdrawn the permissions for distillation of liquor, such permissions were bound to receive full effect in accordance with the Jaipur Act; and, therefore, the action of the State in withdrawing the said permissions must be adjudged to be illegal and inoperative.
Section 71 of the Rajasthan Excise Act reads as follows:
"71. Exemptions.-- (1) Nothing in the foregoing provisions of this Act applies to the import, manufacture, possession, sale or supply of any bona fide medicated 'article for medicinal purposes by medical practitioners, chemists, druggists, apothecaries or keepers of dispensaries, except in so far as the Government may by notification in the Rajasthan Gazette so direct.
(2) The Government may by like notification and subject to such conditions as it may think fit to prescribe, exempt any person or class of persons, or any excisable article wholly or partly from the operation of all or any of the provisions of this Act or of all or any of The rules made thereunder either throughout Rajasthan or in any specified area comprised therein or for any specified period or occasion."
24. Having given our very careful consideration to this aspect of the case, we have been constrained to come to the conclusion that Section 71 (2) is discriminatory and, therefore, void. Our reasons are these. As Sub-section (2) is worded, it does not contain any basis of classification itself although we should like to add that that is not an indispensable requirement for upholding a classification. We would next point out that there is nothing in the entire Act either in the preamble or elsewhere therein to show whether and if so on what basis an exemption from the operation of the provisions of the Act could be granted to any class of persons, and in respect of any excisable articles or with reference to any specified area or any specified period or occasion. It is further remarkable that the section permits exemption in the case of a single person as well. Section 71 (2) therefore seems to us to be clearly of a character which would place unregulated and unbridled power in the hands of the Government by which it would be open to it to exempt any person whatsoever from the operation of the Act as contra-distinguished from any other person without any rhyme or reason.
The conclusion at which we have arrived is fully supported by the decisions of their Lordships of the Supreme Court in what are known as the -- 'West Bengal (B)' and -- 'Saurashtra cases (C)' referred to above. Each case arose with reference to legislation by which special courts were constituted for trying certain offences or class of offences or cases- or class of cases as the State Government might by general or special order in writing direct. The enactments prescribed special procedure with a view to shorten and simplify the procedure for the trial of such cases.
It was held by Mukherjea J. who delivered the leading judgment of the majority of their Lordships of the Supreme Court in the -- 'West Bengal Case (B)' that, "If a legislation discriminates one person or class of persons against others similarly situated and denies to the former the privileges that are enjoyed by the latter, it cannot taut be regarded as "hostile" in the sense that it affects injuriously the interests of that person or class."
His Lordship further observed that "It is not incumbent upon the aggrieved person in such a case to assert and prove that in making the law, the legislature was actuated by a hostile or inimical intention against a particular person or class, nor is it necessary to inquire as to what was the dominant intention of the legislature in enacting the law, and that the operation of Article 14 would be excluded if it is proved that the legislature had no intention to discriminate, though discrimination was the necessary consequence of the Act."
As regards the contention of the learned Attorney General that the principle upon which the differences were made between the cases and offences triable by a special court and those by ordinary courts was indicated in the preamble which had stated in the 'West Bengal case (B)' that it was expedient to provide for speedier trial for certain offences, His Lordship repelled the contention and held that the language of Section 5 (1) vested an unrestricted discrimination in the State Government to direct any cases or class of cases to be tried by the Special Court, and further that the mere necessity of a speedier trial was too vague, uncertain and elusive a criterion to constitute a rational basis for any reasonable classification.
It was laid down that not only was it necessary that a classification has been made but also that it is made on some reasonable grounds -- some difference which bears a just and proper relation to the attempted classification. It was, therefore, held that the discrimination arose on the terms of the Act itself and the fact that it gave unregulated power to the State Government to select in any way the particular cases or offences which should go to a Special Tribunal and withdraw such cases from the purview of the ordinary laws' of the country, was on the face of it discriminatory.
25. In the -- 'Saurashtra case (C)', the --'West Bengal case (B)' again came up for review. It is interesting to note that Section 11 of the Saurashtra State Public Safety Measures Ordinance (No. 9 of 1948) was exactly in the same terms as Section 5(1), West Bengal Special Courts Act (No. 10) of 195C. Yet their Lordships of the Supreme Court held that Section 11 of the Saurashtra Ordinance was not hit by Article 14 of the Constitution as discriminatory. The --'Saurashtra case (C)' was distinguished from the 'West Bengal case (B)' on the ground that the Saurashtra Ordinance did not leave the discretion to the State Government, unguided and uncontrolled, as in the West Bengal case because the preamble of the Saurashtra Ordinance clearly indicated, in the opinion of the majority of their Lordships, the policy or the objective according to which the State Government was required to refer particular type of cases for trial to the special court.
The important point to notice is that their Lordships considered that in the case of the Saurashtra Ordinance it did not depend upon the pleasure of the State Government to make any classification it liked, without any guiding principles but the legislature had indicated a definite objective, namely, the maintenance of public safety and order and the preservation of peace and tranquillity, and the discretion was vested in the State Government as a means of achieving that objective and, therefore, the law itself could not be said to be discriminatory and offending against the equal protection clause. In other words, it was the clear recital of a definite objective which furnished a reasonable basis of classification for choosing only such offences or cases as affected the objective envisaged, which was held to distinguish the latter case from the earlier one.
26. Both these- cases were again reviewed in --'Kedar Nath v. State of West Bengal', AIR 1953 SC 404 (D) and his Lordship Patanjali Shastri C. J. in delivering the judgment of the majority of their Lordships summed up the law on the subject as follows:
"Now it is well settled that the equal protection of the laws guaranteed by Article 14 does not mean that all laws must be general in character and universal in application and that the State is no longer to have the power of distinguishing and classifying persons or things for the purposes of legislation. To put it simply, all that is required in class or special legislation is that the legislative classification must not be arbitrary but should be based on an intelligible principle having a reasonable relation to the object which the legislature seeks to attain. .."
His Lordship further observed-
"The majority decision' in the Saurashtra case would seem to lay down the principle that if the impugned legislation indicates the policy which inspired it and the object which it seeks, the mere fact that the legislation does not itself make a complete and precise classification of the persons or things to which it is to be applied but leaves the selective application of the law to be made by the executive authority in accordance with the standard indicated or the underlying policy or object disclosed is not a sufficient ground for condemning it as arbitrary and therefore obnoxious Co Article 14."
27. Judged in the light of the principles deducible from the cases cited above, we have no hesitation in coming to the conclusion that Sub-section (2) of Section 71 cannot survive the test which must be applied to it. It is impossible to discover any basis or guiding principle of classification in Section 71(2) whether from the language thereof or from anything contained in the Act as a whole, and, therefore, it inescapably follows that the discretion which this provision vests in the executive is entirely unguided and uncontrolled. This section is, therefore, discriminatory on the very face of it and we have no alternative but to hold that it is void.
28. It follows as a necessary corollary from what we have stated above that the Notification issued by the respondent State of Rajasthan under S, 71(2) of the Rajasthan Act must be held to be void and of no effect. Mr. Gupta's contention was that once Section 71(2) is held to be void and inoperative, the permissions as to private distillation enjoyed by those concerned under the Jaipur Act could not be taken away and remained intact and must, therefore, be continued. We must point out however that even though Sub-section (2) of Section 71 is held to be void, this result does not follow. The reason is simple. In our opinion, it is those very grounds which lead us to hold Sub-section (2) of Section 71 to be void also compel us to hold that Section 20 of the Jaipur Act became void as soon as the Constitution came into operation on 26-1-1950. Section 20 of the Jaipur Act runs as follows:
"The Darbar may from time to time, subject to such conditions, if any, as it may impose, exempt generally or within any special local area any specified article or any specified person or class of persons from all or any of the provisions of this law, or of rules made thereunder, and may cancel any such exemption."
29. It will be observed that this section is worded almost identically as Section 71(2) of the Rajasthan Act. It, therefore, suffers from the same infirmities as Section 71(2) and the same absolute and unguided discretion must be held to have been vested in the' executive without any objective or basis of classification having been disclosed either in the section itself or anywhere else in the Act. The conclusion, therefore, must inevitably be that if Section 71(2) of the Rajasthan Act is void as discriminatory, so is Section 20 of the Jaipur Act; both are equally hit by Article 14 of the Constitution.
When Section 20 is so eliminated, the resultant position under the Jaipur Act is the one created by Section 4 thereof, the relevant portion of which reads as follows:
"No person except as allowed under this law, shall;
(1) Manufacture, sell possess, import, export or transport, any excisable article;
(2) ............
(3) Construct work or possess, any brewery or distillery;
(4) ............
(5) Sell any excisable article."
The whole position, in our opinion, boils down, to this that from 26-1-1950, onwards, no one in, the former State of Jaipur could possibly manufacture or sell liquor except as permitted under the Jaipur Act, and we cannot but hold that if anybody indulged in such private distillation orj sale, that was and would be clearly in disobedience of the provisions of the Jaipur Act and must entail the punishment provided thereunder.
30. Learned counsel next contended that even, if Section 20 became void and inoperative, the permissions to distil liquor privately which were already enjoyed under Section 20 of the Act could not be affected because that would amount to giving a retrospective effect to Articles 13 and 14 of the Constitution. Now, it admits of no doubt that the provisions of Part III of the Constitution relating to fundamental rights are prospective and cannot be given a retrospective operation. Reference may be made in this connection to -- 'Keshavan v. State of Bombay', AIR 1951 SC 128 (E). We have no doubt, however, that in coming to the conclusion to which we have come, we are not giving any retrospective operation to Arts. 13 and 14 of the Constitution. Our finding is directed against the exercise of the privilege of private distillation after the commencement of the Constitution and not prior to it.
Having regard to the nature of the privilege claimed, we are unhesitatingly of the opinion that it was a privilege of a continuing character and any effect on the exercise of such a privilege after the commencement, of the Constitution must truly be postulated as prospective and not retrospective. In saying therefore that the exercise of the privilege in question was not possible in law by virtue of the operation of Articles 13 and 14 after the Constitution had come into force, we are clearly not giving any retrospective operation to the said fundamental rights. What is hit is the future exercise, and not the past enjoyment, of the so called right of private distillation, and in so far as the former is concerned, it could not, in our opinion, be continued by the very terms of the Jaipur Act itself after the Constitution came into force, Section 20 of the Jaipur Act having become defunct and inoperative.
31. The net result, therefore, so far as the right of private distillation is concerned, is, in our judgment, the same whether in the cases of the petitioners who claim to enjoy that privilege under an executive order of the Ruler of the former State of Udaipur or with respect to the other cases as in Jaipur where the privilege was enjoyed under statutory authority.
32. We next turn to the other branch, of the petitioners' case which relates to the deprivation of their cash grants. These cash grants, it is admitted, were enjoyed by the petitioners, except in the cases of Jagirdars of Jawas and Sarwan, up to 18-7-1952, as the latter continued to distil liquor not only for private consumption but also for sale and did not accept or receive this benefit. It has already been pointed out that the grants in question were made to the petitioners by the same order of His Highness the Maharana of Udaipur dated Sawan Budi 5, Smt. 1987, by which the privilege of private distillation was permitted to them. The gist of that order has already been set out in the foregoing part of the judgment and need not be repeated.
It is common ground that the cash grants in question were withdrawn by notification No. F.41 (1) S.R./51 dated 18-7-1952. This has also been reproduced above. It is conceded by the learned Advocate General that this notification was not issued under the authority of any statute but it is claimed by him, that as there was no law under which the cash grants had been made, it was open to the respondent State to terminate these grants by another executive order. Be that as it may, the question of the cessation of the cash grants presents considerable difficulties to our mind. It seems to us that the history behind the grant of these allowances was the same as in the case of the privilege of private distillation and we need not repeat all that we have already stated at some length in this connection. But whatever that history may be, the question must still remain whether such grants constitute property or not.
It is strenuously contended by learned counsel for the petitioners and by Mr. Gupta that the deprivation of these cash grants constitutes an invasion of their property rights. The contention is that the amounts of monetary compensation enjoyed by the petitioners up to 18-7-1952, had obviously money value which was something different from and more than a matter of mere status or personal privilege. It was further stressed that the respondent State had itself regarded these grants as commitments and had also recognized and respected them after the formation of the integrated State of Rajasthan. Our attention was invited in support of this argument to the language of the notification withdrawing the monetary compensation in question and it was, therefore, contended that the deprivation of such grants by a mere executive order was illegal and amounted to deprivation of property and an infringement of a fundamental right under Article 31 of the Constitution.
It was vehemently argued on the other hand by the Advocate General that what the petitioners had enjoyed in this connection did not amount to a right of property at all. If, argued the Advocate General, the petitioners founded their case on the footing of a contract, then the agreement relied upon by them was not supported by any valid consideration within the meaning of Section 23, Contract Act, and, was, therefore, not enforceable at law. The cash grants had been made, no doubt, but they had been made under peculiar, historical and administrative conditions and those conditions no longer subsisted and, therefore, the respondent State was not bound to continue the grants and was within its rights to discontinue them altogether. It was also contended in the alternative that the allowances in question were not grounded on contract at all but were merely some thing which came to be granted to the petitioners 'ex gratia and that in that view also it was perfectly within the competence of the State to terminate the grants in question.
The learned Advocate General further contended that the claim put forward by the petitioners in this regard did not amount to a claim to any property as such but, that, put at its highest it was a sort of an actionable claim which again, it was contended, was not enforceable at law. It was also disputed that the former State of Udaipur could not have done anything to fetter its own future executive action, and, therefore, much less could that State make any arrangements or commitments which might serve to hamper the freedom of action of the successor State viz., the respondent State of Rajasthan in regard to such action as the latter might deem fit to take in the interests of the welfare of the State.
It was also hinted that what the respondent State had done was something in the nature of an act of State although this point was not argued at any length before us. It was finally argued that the petitioners had an alternative remedy by way of a civil suit which was equally beneficial, convenient and effectual and that they were therefore not entitled to obtain any relief on this part of their case in the exercise of the extraordinary jurisdiction of this Court.
33. We must confess that the case of the petitioners so far as the cessation of their cash grants is concerned and such as has been presented to us is beset with serious difficulties. Some of the important questions which call for determination, in this connection are : as to what is the precise nature of the right relating to the cash grants claimed by the petitioners; what is the history and the incidents of the right claimed; whether such a right is a right of property in the present or merely in the future; or on the other hand is it something which had been granted to the petitioners 'ex gratia'; whether the payment of the cash compensations to the petitioners by the State of Rajasthan up to 18-7-1952, amounted to the recognition of such a right, and if so, is this of any consequence at all; and whether the claim in question is one which was enforceable at law and if not how it would affect the petitioners' case. These are some of the vital questions to which we must require clear and cogent answers before we should find ourselves in a position to be able to mane a proper pronouncement on the claim brought before us.
We must point out however that the arguments presented on both sides have not enabled us to come to any definite conclusion one way or the other and we have, therefore, not been placed in a position unhesitatingly to conclude that the deprivation of the grants in question constitutes or does not constitute the taking away of a right of property within the meaning of Article 31 of the Constitution. After a most careful and anxious consideration of such arguments, as have been addressed to us in this regard, we have come to the conclusion that the petitioners have an alternative remedy by means of a suit which must, in the circumstances of the case, be held to be equally convenient beneficial and efficacious. We have, therefore, not thought it proper or necessary to give our findings on the respective arguments such as were addressed to us on this branch of the case lest we might pre-judge the issue and thereby prejudice the case of either of the parties by any expression of our opinion at this stage.
In these circumstances, all that we felt necessary to do was to give full opportunity to the petitioners to address their arguments to us on the question whether the petitioners did or did not, have an adequate alternative remedy at all. Mr. Trivedi contended that the petitioners were entitled to have a decision of this Court without being called upon to file a civil suit as a breach of the fundamental right of property was involved in the present case. This argument, in our opinion, only begged the question. As we have already indicated above, we have not felt persuaded to come to a definite conclusion on this question as a result of the arguments addressed to us that there has or has not been in the present case a clear and a certain infringement of any fundamental right. Had we been able to come to the conclusion that the so-called right which was infringed, fell with in the ambit of part Third of the Constitution relating to. the fundamental rights, we should have had no hesitation whatsoever in deciding the matter ourselves. We say further that the powers of this Court under Article 228 are wide enough and are not confined to the enforcement of the fundamental rights only but extend to the enforcement of other legal rights as well.
It is, in our opinion, necessary that before our extraordinary jurisdiction under Article 226 can be invoked there must be a clear infringement of a fundamental right or of a legal right that is a right which is recognised in law. Our difficulty in this case has been that neither the petitioners, nor the learned Advocate General has been able to satisfy us beyond all doubt or dispute that there has or has not been a breach of such legal right in the present case. In this view, we are of opinion that it is not incumbent upon us to issue any writ as prayed for by the petitioners.
Reference may be made in this connection to 'State of Orissa v. Madan Gopal, AIR 1952 SC 12 (F). In that case the learned Judges of the Orissa High Court had declined to investigate and make any pronouncement on the rights of the parties and left the decision thereof to a suit in the ordinary course but at the same time issued a temporary order of injunction against the State of Orissa not to disturb the possession of the petitioners over the mining areas in question till the proposed suit was filed within a given time. On appeal by the State of Orissa to the Supreme Court, the order of the High Court was set aside. His Lordship Kania C. J. observed that it was the existence of a right which alone was the foundation for the exercise of jurisdiction of the High Court under Article 226.
His Lordship further proceeded to point out as follows:
"If the court was of the opinion that there was no other convenient or adequate remedy open to the petitioners, it might have proceeded to investigate the case on its merits and come to a decision as to whether the petitioners succeeded in establishing that there was an infringement of any of their legal rights which entitled them to a writ of mandamus or any other direction of a like natur "
These observations, in our opinion, give ample support to our view that it is perfectly open to this Court to decline to give relief under Article 226 in cases where it is left in doubt as to whether a fundamental right or any other legal right is infringed or where it comes to the conclusion that an equally convenient, beneficial and efficacious alternative remedy is available to a party, and where it may not consider fit to make any pronouncement as to the rights in controversy in the circumstances of a particular case.
34. It was then contended that Section 73(2) of the Rajasthan Act would operate as a bar to the petitioners' suit. This contention, in our opinion, is not well founded. Section 73 (2) reads as follows :
"(2) No civil court shall try any suit which may lawfully be brought against the Government in respect of anything done or alleged to have been done, in pursuance of this Act, unless the suit Js instituted within six months after the date of the act complained of."
It has already been pointed out above, and it was indeed common ground between the parties, that the order of the Government withdrawing the cash allowances was not passed in pursuance of the Rajasthan Act but was an administrative order superseding a similar previous order. It is clear, therefore, that Section 73(2) cannot and ought not to operate as a bar to any suit which may be brought by the petitioners in this regard. We may add that no other law has been brought to our notice which would bar the filing of such a suit.
35. It was next contended that even if the petitioners instituted a suit, in the ordinary courts, such a suit will involve the interpretation of certain articles of the Constitution and, therefore, such a suit would again be triable by the High Court under the amended Section 113, Civil P. C. It appears to us that the more appropriate provision which might be applicable in the circumstances of the present case would be Article 228 of the Constitution. But in any case, we are inclined to consider that the mode of trial in such a suit even if it shall have to be tried by the High Court would be basically different from the procedure which is adopted in the disposal of writ applications. If and when a suit is filed, both parties will have an opportunity to lead their full evidence, definite issues will be fixed and tried, and when all that will have been done, this Court will be in a far better position to appreciate and adjudicate upon the complex nature of the right claimed and to decide the further question whether such a right was enforceable at law. We, therefore, overrule this contention also.
36. It remains for us to notice one more point which we think fit to clarify. We think it desirable to observe that notification No. F.41 (1) S.R./51 dated 18-7-1952, by which the respondent State has withdrawn the cash grants was admittedly an executive or an administrative order and was not issued under the authority of any law. That being so, we think that it cannot have the force of law. We also think that this notification cannot have the force of barring any suit which the petitioners may care to institute in order to vindicate their rights relating to the cash grants in question
37. The result is that for the foregoing reasons, these applications must fail and are hereby dismissed.