# KRISHNA KUMAR NARULA ETC v. THE STATE OF JAMMU

- **Citation:** [1967] 3 S.C.R. 50
- **Court:** Supreme Court of India
- **Decided:** 1967-03-01
- **Bench:** K. SuBBA RAo, J. C. Shah, S. M. Sucri, V. Ramaswami, C. A. Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/krishna-kumar-narula-etc-v-the-state-of-jammu-4071
- **Pages:** 9

## Headnote

Co11!Jtit11tion of India, 1950, Art. 19(1) (g):__R/ght to ctlfry on busi·
ness In liquor-If fundamental right.
B
The Jammu and Kashmir Excise Act, 1958, s, 20-Lfcence for Cllfl'1·
ing on business in liquor-Objections by lnhoblrants for location of bar- c
Applicant asked to shift premises as condition for
ls.•ue of
llcenc~
Validity of order under A.rt. 19(6) of the Constitution.
The appellant, who was carrying on business
in liquar in his hotel
under an annual licence issued by the Excise and Taxation Commissioner
under s. 20 of the Jammu and Kashmir Excise Act, 1958, had applied
for a fresh licenoe for another year. Meanwhile, the Excile Dcpartmebt
received complaints from the inhabitants of tho locality objoctinjl to the
D
location of the bar in that locality. The complaints were· inquired Into
and the appellant was informed by the Commissioner that the licence
would not be issued unless he shifted the premises of his hotel : to some
other approved locality. · A writ petition filed by the appellant for quashing the order was dismissed by the High Court.
In appeal to this Court,
HELD : ( i) Dealing in liquor is liusiness, and a citizen has a funda·
mental right to do that business under Art. 19(1) (g) of the Constitution. But the State can make a law imposing reasonable restrictlona on·
the right, in public interests, under Art, 19(6). [S7 D·EJ
Dealing in noxious and dangerous goods does not oease to be business, though the nature of the goods may be a ground for imposing a
restriction on the activity. (53 P; 54 CJ
T. B. Ibrahim v. Regional Transport Authority, Tan/ore, [1953) S.C.R.
290, Coover/ee B. Bharucha v. The Excise Commissioner and the Chief
Commissioner, A/mer, [1954J
S.C.R. 873,
State of Assam v. A. N.
KldwaJ, Commlsrioner of Hills Division and Appeals, Shillong,
[19S7J
S.C.R. 295, Nagendra Nath v. Commissioner of
H/11.r
Div/sion and
Appeals, Asram, (1958) S.C.R. 1240, explained.
Narain Swadesh Weaving Mills v. The Commissioner of Excess Profits
Tax, (1955] I S.C.R. 952, State of Bombay v. R. M. D. Chomarbaugwala,
[1957] S.C.R. 874 and Ranchhorlalfl v. Revenue j)ivlslonai 9ommissloner,
Northern Division, Sambalpur, A.I.R. 1960 Otissa 88, referred to.
.
Since the instant case was one of issuing
a licence, s. 20 of the
Excise Act applies.
As the Excise and
Taxation Commissioner bad
made a bona fide onquiry and carlie to the conclusion that the locality
was not suitable far carrying on business in liquor, for relevant ...-.
it could not be said that his order was arbitra:ry or unreasonable. [SS BJ
(ii) Section 22 of the Act deals with cancellation of a licence and
does not control s. 20. [58 CJ
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K. K. NARULA v. J. & K. STATE (Subba Rao, C.J.)
51
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C1v1L APPELLATE JURISDICTION : Ch·il Appeals Nos: 65 and
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66 of 1967.
Appeals from the judgment and order dated September 16.
1966 of the Jammu and Kashmir High Court in Writ Petitions Nos.
2 and 4 of 1966.
S. T. Desai, S. K. Dholakia, Vineet Kumar and Inder Das
Grover, for the appellants (in both the :ippeals).
Raja Jaswant Singh, Advocate-General, Jammu and Kashmir,
R. N. Sachthey for S. P. Na.vyar, for the respondents (in both the·
appeals).

## Text

KRISHNA KUMAR NARULA ETC.
v.
THE STATE OF JAMMU
0
AND KASHMIR & ORS.
March 1, 1967
[K. SuBBA RAo, C.J., J. C. SHAH, S. M. SUCRI, V. RAMASWAMI
AND C. A. VAIDIALINGAM, JJ,)
Co11!Jtit11tion of India, 1950, Art. 19(1) (g):__R/ght to ctlfry on busi·
ness In liquor-If fundamental right.
B
The Jammu and Kashmir Excise Act, 1958, s, 20-Lfcence for Cllfl'1·
ing on business in liquor-Objections by lnhoblrants for location of bar- c
Applicant asked to shift premises as condition for
ls.•ue of
llcenc~
Validity of order under A.rt. 19(6) of the Constitution.
The appellant, who was carrying on business
in liquar in his hotel
under an annual licence issued by the Excise and Taxation Commissioner
under s. 20 of the Jammu and Kashmir Excise Act, 1958, had applied
for a fresh licenoe for another year. Meanwhile, the Excile Dcpartmebt
received complaints from the inhabitants of tho locality objoctinjl to the
D
location of the bar in that locality. The complaints were· inquired Into
and the appellant was informed by the Commissioner that the licence
would not be issued unless he shifted the premises of his hotel : to some
other approved locality. · A writ petition filed by the appellant for quashing the order was dismissed by the High Court.
In appeal to this Court,
HELD : ( i) Dealing in liquor is liusiness, and a citizen has a funda·
mental right to do that business under Art. 19(1) (g) of the Constitution. But the State can make a law imposing reasonable restrictlona on·
the right, in public interests, under Art, 19(6). [S7 D·EJ
Dealing in noxious and dangerous goods does not oease to be business, though the nature of the goods may be a ground for imposing a
restriction on the activity. (53 P; 54 CJ
T. B. Ibrahim v. Regional Transport Authority, Tan/ore, [1953) S.C.R.
290, Coover/ee B. Bharucha v. The Excise Commissioner and the Chief
Commissioner, A/mer, [1954J
S.C.R. 873,
State of Assam v. A. N.
KldwaJ, Commlsrioner of Hills Division and Appeals, Shillong,
[19S7J
S.C.R. 295, Nagendra Nath v. Commissioner of
H/11.r
Div/sion and
Appeals, Asram, (1958) S.C.R. 1240, explained.
Narain Swadesh Weaving Mills v. The Commissioner of Excess Profits
Tax, (1955] I S.C.R. 952, State of Bombay v. R. M. D. Chomarbaugwala,
[1957] S.C.R. 874 and Ranchhorlalfl v. Revenue j)ivlslonai 9ommissloner,
Northern Division, Sambalpur, A.I.R. 1960 Otissa 88, referred to.
.
Since the instant case was one of issuing
a licence, s. 20 of the
Excise Act applies.
As the Excise and
Taxation Commissioner bad
made a bona fide onquiry and carlie to the conclusion that the locality
was not suitable far carrying on business in liquor, for relevant ...-.
it could not be said that his order was arbitra:ry or unreasonable. [SS BJ
(ii) Section 22 of the Act deals with cancellation of a licence and
does not control s. 20. [58 CJ
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ff
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K. K. NARULA v. J. & K. STATE (Subba Rao, C.J.)
51
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C1v1L APPELLATE JURISDICTION : Ch·il Appeals Nos: 65 and
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66 of 1967.
Appeals from the judgment and order dated September 16.
1966 of the Jammu and Kashmir High Court in Writ Petitions Nos.
2 and 4 of 1966.
S. T. Desai, S. K. Dholakia, Vineet Kumar and Inder Das
Grover, for the appellants (in both the :ippeals).
Raja Jaswant Singh, Advocate-General, Jammu and Kashmir,
R. N. Sachthey for S. P. Na.vyar, for the respondents (in both the·
appeals).
The Judgment of the Court was delivered by
Subba Rao, C.J.
These two appeals arise out of a common
judgment of a Division Bench of the High Court of J ammu &
Kashmir dismissing the two petitions filed by the appellants for the
issuance of a writ quashing the order passed by the Taxing and
Excise Officer, Jammu, refusing to renew their licences for the
year 1966-67 in respect of their liquor shops.
The facts giving rise to these two appeals may be briefly and
separately stated.
Civil Appeal No. 65 of 1967 relates to Glory Restaurant situ·
ated in Moti Bazaar, Jammu. The appellant in the said appeal,
who is the proprietor of the said restaurant, after taking the requisite
licence from the Government, had been carrying on for the last 7
y~.ars 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, J ammu, issued a
notice to the appellant ordering the shifting of the premises of the
said re~taurant 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 year 1965-66 he made an application
for the renewal of the licence and on December 11, 1965, he
received a letter from the Deputy Excise and Tllltation Commis·
sioner, Jammu, desiring the appellant to shift the premises of his
52
SUPREME COURT
REPORTS
[1967) 3 S.C.R.
Hotel and Bar to some other suitable place after getting it approv·
A
ed by the Department on the ground that he had received com·
plaints from the inhabitants of the locality ~gainst the location of
the bar there; At the. instance of the 2nd respondent, the Bxcise
and Taxation Commissioner, J ammu, his licence, along with those
of other licensees, was co:Iected by the 3rd respondet.
As he
was not given a licence to do business in liquor in the same locaB
lity, this appellant also filed a writ petition in the High Court for
a relief similar to that claimed by the appellant in Civil Appeal
I
No. 65 of 1967.
·
To both the petitions, the State of Jammu and Kashmir,
through its Cliief Secretary, the Excise and Taxation Commissioner,
Jammu & Kashmir, and the Deputy Excise and Taxation Commis·
sioner, Jammu, were made respondents 1, 2 and 3 respectively.
The respondents opposed the petitions and pleaded, inter alia,
that the localities wherein the petitioners were ·carrying on the
business were the most congested and frequented parts of the city
and that, as complaints were made against their carrying on the
business in the said localities, the respondents refused to renew
their licences to carry on the said buiiness in the said localitie.~.
They also pleaded that under The Excise Act, 1958, hereinafter
called the Act, the issuing of licence was at the discretion of the
Excise Commissioner and he had, having regard to the complaints
received, bona fide. in exercise of his discretion, refused to give
licence to the appellants to carry on business in the said localities.
· In the High Court the Writ petitions, along with others, were
decided by a Division Bench consisting of Chief Justice and Justice
Syed Murtaza Faz! Ali. They gave concurrent but separate judg·
ments.
Both the Judges agreed on merits in dismissing the peti·
tions, but expressed different views on the question whether the
petitioners had fundamental right to do business in liquor. Hence
the appeals.
Mr. Desai, learned counsel for the appellants, contended as
follows :-( 1) ·If s. 20 of the Act was construed as conferring
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, els. (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 opportu·
nity 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.
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K. K. NARULA v. J. "'K. STATE (Subba Rao, C.J.)
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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 the said question.
As we have pointed out earlier, the learned Chief Justice and
Ali, J., expressed different views on the question whether the
appellants had a fundamental right to do business in liquor. To
avoid further confusion in the inatter it is necessary to make the
position clear. Article 19 of the Constitution qua the right to do
business reads thus :
(i) All citizens shall have the right-
(g) to practise any profession, or to carry on any
occupation, trade or business.
I
( 6) Nothing in sub-clause ( g) of the said clause
shall affect the operation of any existing law in so far
as it imposes, or prevent the State from making any Jaw
imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred
by the said sub-clause, ....... .
A combined reading of els. (1) and ( 6) of Art. 19 makes
it clear that a citizen has a fundamental right to carry on any
trade or business, and the State can make a law imposing reasonable restrictions on the said right in the interests of the general
public. It is, therefore, obvious that unless dealing in liquor is
not trade or business, a citizen has a fundamental right to deal
in that commodity. The learned Advocate General contended that
dealing in liquor was not business or trade, as the dealing in
noxious and dangerous goods like liquor was dangerous to the
community and subversive of its morals. The acceptance of this
broad argument involves the position that the meaninJ!: of the exparticular point of time in our country. Such an approach leads
general acceptance of the standards of morality obtaining at a
particular point of. time in our country. Such an approach leads
to incoherence in thought and expression. . Standards of morality
can afford a guidance to impose restrictions, but cannot limit the
scope of the right. So too, a Legislature can impose restrictions
on, or even prohibit the carrying on of a particular trade or business and the Court, having regard to the circumstances obtaining
at a -particular time or place may hold the restrictions or prohibition reasonable. The question .. therefore. is. what is trade or
business ? Though the word "business" is ordinarily more com-
54
SUPREME COURT REPORTS
[1967] 3 S.C.I..
prehensive than the word "trade", one is used as synonymous with
the other.
It is not necessary to bring put the finer points of
distinction between the said two concepts in ·this case. In the
words of S. R. Das, J., as he then was, in Narain Swadeshi WeavL~g Mills v. The Commissioner of Excess Profits Tax('), 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 commodity. It is consumed throughout the world, though some
cc,>Untries restrict or prohibit the same on economic or moral
,grounds. The morality or otherwise of a deal does not affect the
quality of the. activity _though i~ 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 Authority, Taniore( 2 ) it was held
that restriction placed upon the use of the bus-stand for the purpose of picking up or setting down passengers to or from outward
journeys could not be considered to be an unreasonable restric~
tion on the righ~ to carry on any profession, trade or business of
the appellant and, therefore, Art. 268 was not in any way repugnant to Art. 19 (1) ( g) of the Constitution. In that context,
Ghulam Hasan, J., speaking for the Court, observed :
"There is no fundamental right in a citizen to carry
on business wherever he chooses and his right must be
subject to any reasonable restriction imposed by the
executive authority in the interest of public convenience."
This Court did not say that there was no fundamental right to do
business but only held that a citizen could not claim that his
fundamental right could not be restricted in public interests. Nor
did the decision in Cooveriee B. Bharucha v. The Etcise Commissioner and the Chief Commissioner Ajmer(8 ) !av down any such
proposition.
There the question was whether the Excise Regulation 1 of 1915 imposed a reasonable restriction . within the
meaning of Art. 19(6) of the Constitution on the right given
under Art. 19 (I )(I?) thereof to carrv on the business in intoxicating liquors.
This Court held that the said Regulation was a
Teasonable restriction within the meaning of Art. 19 ( 6) of the
(I) (1955] I S.C.R. 952, 961.
(2) (1953] S.C.R. 290, 299.
(3) (1954] S.C.R. 873, 880.
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K. K. NARULA v. J. & K. STATE (Subba Rao, C.J.)
55
Constitution. But in the course of the judgment Maha.ian, C. J ..
who spoke for the Court, gave an extract from the judgment of
Field, J., in Crowley v. Christensen(').
In that extract the
following passage is found :-
"The police power of the State is fully competent to
regulate the business to mitigate its evils or to suppress it
entirely.
There is no inherent right in a citizen to thus
sell intoxicating liquors by retail; it is not a privilege of a
citizen of the State or·of a citizen of the United States.
As it is a business attended with danger to the community, it may, as already said, be entirely prohibited, or be
pennitted under such conditions as will limit to the
utmost its evil."
After citing the entire passage, this Court concluded thus :
"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 ( l )( 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( 2 ) 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 liquor and
that the purpose of the Act and the rules is to control
and restrict the consumption of intoxicating liquors,
such control and restriction being obviously necessary
fo[ the preservation of public health and morals, and to
raise revenue.''
This Court only said that on the provisions of the Act no absolute
right to sell liquor was given to any person and that the said right
was controlled by the provisions of the said Act.
These observations have nothing to do with the question whether a person
has a fundamental right to do business in liquor.
Nor can the
(I) 34 L.Ed. 62", 623.
(2) [19S7J S.C.R, 295, 301,
56
SUPREME COURT REPORTS
[1967] 3 S.C.R.
respondents draw any supp01t from the de,;ision of this Court in
Nagendra Nath v. Commissioner of Hills Division and Appeals,
Assam('). There, the question was in regard to the scope of
Arts. 226 and 227 of the Constitution vis-a-vis the orders passed
by the appropriate authorities under the East Bengal and Assam
Excise Act, 1910. There incidentally two decisions of this Court,
namely, Cooveriee B. Bharucha v. The Excise Commissioner and
the Chief Commissioner, Ajmer(') and The State of Assam v.
A. N. Kidwai, Commissioner of Hills Division and Appeals,
Shillong( 8 ) were noticed and it was observed that there was no
inherent right to the settlement of liquor shops .. No question of
fundamental right under Art. 19 ( 1) arose in that case.
This
Court in The State of Bombay v. R. M. D. Chamarbaugwa/a(')
upheld the validity of the Bombay Lotteries and Prize Competition
Control and Tax Act, 1948 (Born. LIV of 1948), as amended
by the Bombay Lotteries and Prize Competition Control and Tax
(Amendment) Act (Bombay Act XXX of 1952). One of the
questions raised was whether gambling was business or trade or
commerc_e within the meaning 9£ Art. 19(1)(g) of the Constitution or Art. 301 thereof. Das, C. J., after considering the various
decisions, observed thus :
"We find it difficult to accept the contention that
those activities which encourage a spirit of reckless propensity for making easy gain by lot or chance, which
lead to the loss of the hard earned money of the undiscerning and improvident · common man and thereby
lower his standard of living and drive him into a chronic
state of indebtedness and -eventually disrupt the peace
and happiness of his humble home could possibly have
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 A1i. 19(1)(g)."
This decision only lays down that gambling is not business or
trade.
We are not concerned in this case with gambling.
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A division Bench of the Orissa High Court in Rnnchhor/alji
v. Revenue Divi~ional Commissioner, Northern Division, Sambalpur ( •) maintained the validity of the provisions of the Orissa
G
Cinema (Regulation) Act. 1954, on the ground that it did not
infringe th.e 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 prindple has been
____ laid do~n eithe_!__in _the Preamble or in the other proviH
(I) [!958] S.C.R. 1240,
(21 [1954] S.C.R. 873
(3) [!957] S.C.R. 295.
(4) [1957] S.C.R. $74_ 925.
(5) A.l.R. 1960 Orisa 88, 92.
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K. IC. NARULA v. J. a: IC. STATE (Subba RM, C.J.)
57
sions of the statute or statutory rules, and the impugned
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 'normally available' commodities should not be as drastic as those in
respect of a business or occupation which is likely to
cause nuisance or danger to the public."
This decision also does not say that there is no fundamental right
to do business which is likely to cause nuisance or danger to the
public, but stated that the nature of the restrictions would depend
upon the nature of the trade.
A scrutiny of these decisions does not support the contentien
that the courts held that dealing in liquor was not business or
trade. They were only considering the provisions of the various
Acts Which conferred a restricted right to do business.
None of
them held that a right to do business in liquor was not a fundamental right.
We, therefore, hold that dealing in liquor is business and a
citizen has a right to do business in that commodity; but the State
can make a jaw imposing reasonable restrictions on the said right,
in public interests.
The next question is whether s. 20 of the Act infringes the
fundamental right under Art. 19 of the Constitution.
This question, as we have said earlier, was not raised before the High Court.
We do not, therefore, allow the learned counsel to raise this question before us for the first time.
We assume, therefore, without
deciding !bats. 20 of the Act does not infringe Art. 19(l)(g) of
the Constitution.
Even so it was contended that the order of the Commissioner
of Excise and Taxation was arbitrary and in violation of the principles of natural justice and,_ therefore, it operated as an unreasonable restriction on the appellant's fundamental right to do
business.
This argument was sought to be sustained on the following
grou'!ds : .( 1) Though under the Act yearly leases were issued, in
practice-renewal was a matter of course.
(2) On the basis of the
tssuance of a licence heavy expenditure had been incurred by the
appel~ants. (3) No ~pportunitY, was given to the appellants to
estabhsh that the locahty was smtable for carrying on the said
business and that the complaints made against them were false.
An~ ( 4) Even the High Court held that in regard to licensees
agamst whom there were no complaints a further inquiry should
M4 Sup. Cl/67-S
58
SUPllEME COUil T llEPOll TS
[1967) 3 S.C.R.
be held.
In support of the contention we were taken through all
the necessary correspondence.
The learned Judges on a conside·
ration of the entire material placed before them, held that the
Commissioner of Excise and Taxation made a bona fide enquir>'
and foun~ 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 inter·
fering 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
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In the result the appeals fail and are dismissed with costs.
V.P.S.
Appeal dismissed.