Trilok Singh vs State Of Rajasthan And Ors

The only ground on which the present petition has been filed is that in the absence of publication of an excise policy the State of Rajasthan could not have given effect to such a policy and carried out auction of the excise shops.

On 1.2.2019, the State framed the new excise policy. At that stage, the writ petitioner approached this Court complaining that the policy had not been published and consequently was not enforceable by reason of Section 72 of the Rajasthan Excise Act, 1950. In response to the objection, the State filed an additional affidavit disclosing that the policy was published in the Rajasthan Gazette on 24.5.2019. It was urged that the operation of the policy in the absence of its publication was illegal and arbitrary.

Learned counsel relied upon Sections 41 and 72 of the Rajasthan Excise Act, 1950 as well as Sections 25 and 26 of the Rajasthan General Clauses Act, 1955 ('General Clauses Act') to say that in the absence of prior publication of such policy, its provisions could not have been given effect to and all actions taken pursuant to the new policy are therefore contrary to law.

Sections 41 and 72 of the Act read as follows:-

"41. Power of State Government to make rules.-

(1) The State Government may make rules for the purpose of carrying out the provisions of this Act or other law for the time being in force relating to excise revenue.

(2) In particular and without prejudice to the generality of the foregoing provisions, the State Government may make rules-

(a) regulating the delegation of any powers by the Excise Commissioner;

(b) prescribing the powers and duties of officers of the Excise Department;

(c) regulating the manner in which appeals shall be made to the Excise Commissioner;

(d) regulating the import, export, transport or possession of any excisable article molasses or lanced poppy heads;

(e) regulating the period and localities for which and the person to whom Licences for the vend by wholesale or by retail of any excisable article may be granted;

(f) prescribing the procedure to be followed and the matters to be ascertained before any licence for such vend is granted for any locality;

(g) for the prohibition of the sale of any excisable article to any person or class of persons;

(h) for the grant of expenses to witnesses and compensation for loss of time to persons released under Section 44 on the ground that they have been improperly arrested and to persons charged before a Magistrate with offence punishable under this Act but acquitted;

(i) regulating the power of Excise Officer to summon witnesses from a distance under the provisions of Section 44;

(j) for declaring the Excise Officers to whom, and the manner in which information and aid should be given under Section 50;

(k) for the prohibition of the employment by the licence-holder of any person or class of persons to assist in his business in any capacity whatsoever;

(l) for the prevention of drunkenness, gambling or disorderly conduct in or near any licensed premises, and the meeting or remaining of persons of bad character in such premises;

(m) for the grant and distribution of rewards to informers and Government servants;

(n) prohibiting the printing, publishing or otherwise displaying or distributing any advertisement or other matter commending or soliciting the use of, or offering any intoxicant or calculated to encourage or incite any, individual or class of individuals or the public generally to commit an offence under this Act, or to commit a breach or evade the provisions of any rule or order made thereunder, or the conditions of any licence, permit or pass obtained thereunder.

(o) prohibiting within the State the circulation, distribution or sale of any newspaper, book, leaf-let, book-let or other publication printed and published outside the State which contains any advertisement matter of the nature described in Clause (n); and

(p) declaring any newspaper, book, leaf-let, book-let or other publication wherever printed or published containing any advertisement or matter commending or the use of or offering any intoxicant, to be forfeited to the State Government.

(3) The power conferred by this section for making rules is subject to the condition that the rules shall be made after previous publication:

Provided that any such rule may be made without previous publication if the State Government considers that it should be brought into force at once.

Publication of rules and notifications.- All rules made and notifications issued under this Act shall be published in the Official Gazette and shall thereupon have effect as if enacted in this Act from the date of such publication or from such other date, as may be specified in that behalf."

Sections 25 and 26 of the General Clauses Act generally provide that orders, rules, regulations, by-laws, notifications, schemes and other matters are those which are published in the Rajasthan Gazette.

In the opinion of this Court, in regard to various matters enumerated, Section 41 (which confers the powers to make the rules) per se does not preclude the framing of a policy as long as elements of that policy are in conformity with existing law and regulations framed thereunder.

In these circumstances, the reference to Section 72 of the Act of 1950 also in the opinion of the Court is facilitative; it requires rules and notifications to be published in the official gazette. The policy in this case does not seek to regulate legal relationship and status - in which event it has not been implicated by the rule making or regulating power of the authorities. On the other hand, it seeks to regulate the behavior of the State with respect to award of liquor vends and policies connected therewith. This essential difference between the contents of a policy on the one hand and law, on the other, is to be kept in mind in the context of the present case.

A long time ago in Harla Vs. State of Rajasthan [AIR 1951 SC 467], the Supreme Court had held that where there is requirement to publish, a rule or regulation would be effective only upon its publication. Similar observations are found in B.K. Srinivasan & Anr. Vs. State of Karnataka & Ors. [AIR 1987 SC 1059].

The petitioner was unable to show any provision of the Excise Policy which affected their fundamental rights. In such event, of course, the regulation of fundamental rights or imposition of prohibition and restrictions, must be through enacted law [Satwant Singh Sawhney vs D. Ramarathnam (AIR 1967 SC 1836)].

In the present case, this Court is of the opinion that the lack of publication of a policy which was made known to all, did not in any manner effect its legality.

For the foregoing reasons, this Court is of the opinion that there is no merit in the writ petition, which is accordingly dismissed.