This bench allowed the writ petition relying on a connected judgment, holding that the order restricting liquor trade was an administrative decision not mandatorily shielded by policy immunity.
The order dated 13.03.2024 is quashed; respondents directed to refund dues in four weeks with 6% interest.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
[2024:RJ-JD:27758]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Writ Petition No. 5194/2024
Om Prakash Suhalka S/o Shri Ganga Ram Suhalka, Aged About 56 Years, R/o 33, Gokulpura, North Ayad, Udaipur (Raj.)
----Petitioner
Versus
----Respondents
| For Petitioner(s) | : Mr. Nishank Madan |
|---|---|
| For Respondent(s) | : Mr. Mahaveer Bishnoi,AAG |
JUSTICE DINESH MEHTA
Order
09/07/2024
(2 of 3)
[2024:RJ-JD:27758]
[CW-5194/2024]
“Contention of Shri Bharat Vyas, learned AAG that it is not permissible for the petitioners to raise any grievance against the order dated 31.3.2024 inasmuch as right to trade in liquor is not a fundamental right and the State Government can always put reasonable restrictions in it, requires not much deliberation inasmuch, there cannot be any two views against the proposition that not to carry on trade in liquore specially, it not being an essential commodity, in absence of any statutory or contractual obligation/compulsion is the fundamental right of the petitioners which is impinged upon vide order dated 13.3.2024. For this reason also, the order dated 13.3.2024 deserves to be quashed and set aside.
The judgment of the Constitution Bench in the case of State of Punjab & Anr. (supra) does not come to rescue of the respondents wherein, validity of levy of tax on import of potable liquor manufactured in other States was under challenge. It was held that conduct of the respondent licensees in an attempt to wriggle out of his contractual obligations cannot be countenanced having fully exploited the advantage flowing from the contract to the exclusion of the others and having reaped rich commercial benefits from that activity by challenging, inter alia, any particular condition of that contract/licence. However, these observations were made as the levy of import tax was contemplated under the terms of the contract; whereas, in the present cases, the facts are not identical. As already held, the terms of the agreement executed between the parties did not entitle the State Government to unilaterally extend its term after expiry by efflux of time that too with new terms and conditions onerous to the licence holders.
This Court is in respectful agreement with the law laid down by the Hon’ble Supreme Court in the cases of Tata Cellular (supra) and Vivek Narayan Sharma (supra) relied upon by the learned Additional Advocate General to canvass his submission that scope of judicial review in policy matters; specially and specifically in economic matters, is very narrow and limited. However, the same has no applicability in the
(3 of 3)
[2024:RJ-JD:27758]
[CW-5194/2024]
cases in hand for the reasons; firstly, this Court is not convinced that the order impugned dated 13.3.2024 falls within the mischief of “policy decision”; rather, it is an administrative order issued allegedly to meet an exigency created on account of MCC. The policy decision is a decision laying down broad guidelines togovern the affairs in long term based thereon beyond running day to day affairs and the order dated 13.3.2024 fails to meet this criteria. Secondly, even assuming it to be a policy decision, it is not sacrosanctand beyond the reach of judicial review and deservesto be quashed and set aside for the reasons expressed hereinabove.
In view of aforesaid discussion, the writ petitions deserve to be allowed.
Resultantly, the writ petitions are allowed. The order impugned dated 13.3.2024 is quashed and set aside. The respondents are directed to refund the refundable dues to the petitioners within a period of four weeks from today failing which it shall carry an interest @ 6% per annum from today.
Office to place a copy of this judgment in each connected file.”
(DINESH MEHTA),J
310-raksha/-
2 issues framed by the court
Whether the order dated 13.03.2024 restricting trade in liquor constitutes a policy decision or an administrative order subject to judicial review.
Whether the petitioners have a fundamental right to trade in liquor and if their rights are impinged by the impugned order.
Colour shows how this judgement treated each authority
State of Punjab & Anr.Distinguished¶21
State of Punjab & Anr.
Tata CellularDistinguished¶23
Tata Cellular
Vivek Narayan SharmaDistinguished¶23
Vivek Narayan Sharma
Krishna Sharma Vs. State of RajasthanFollowed¶17
Krishna Sharma Vs. State of Rajasthan : SBCWP No.4606/2024
Om Prakash Suhalka
The State Of Rajasthan
Additional Chief Secretary, Finance Department, Government Of Rajasthan
Joint Secretary, Finance (Excise) Department, Government Secretariat, Jaipur
Commissioner, Excise Department, Government Of Rajasthan, Udaipur
District Excise Officer, Udaipur
Dinesh Mehta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
