TEAMCODE: 70

TEAMCODE: 70

10TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MOOT COURT COMPETITION, 2016

IN THE SUPREME COURT OF INDUS

W.P. No. ____ / 2016
(suo motu transfer from the High Court of Dilli Pradesh)

.......................Petitioner 1

STATE OF DILLI PRADESH

versus

.Respondent

CENTRAL GOVERNMENT OF INDUS

(THROUGH LIEUTENANT GOVERNOR OF STATE OF DILLI PRADESH)

W.P. No. ____ / 2016

.......................Petitioner 2

KING BIRD PRIVATE LIMITED

versus

.Respondent

CENTRAL GOVERNMENT OF INDUS

(THROUGH LIEUTENANT GOVERNOR OF STATE OF DILLI PRADESH)

As Submitted to the Chief Justice & other Companion judges of the

Honble Supreme Court of Indus.

--W
WRRI ITTTTEENN SSUUBBMMI ISSSSI IOONNSS OONN BBEEHHAALLFF OOFF TTHHEE RREESSPPOONNDDEENNTT--

-TABLE OF CONTENTS-

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TABLE OF CONTENTS
INDEX OF AUTHORITIES ................................................................................................................II
STATEMENT OF JURISDICTION ..................................................................................................... IV
STATEMENT OF FACTS ................................................................................................................. V
QUESTIONS PRESENTED .............................................................................................................. VI
SUMMARY OF PLEADINGS .......................................................................................................... VII

PLEADINGS AND AUTHORITIES .......................................................................................... 1

I.

WHETHER THE LIEUTENANT GOVERNOR OF THE STATE OF DILLI PRADESH HAS THE

LEGISLATIVE COMPETENCE TO ENACT THE IMPUGNED ORDER? .................................................... 1

A.

That the law has been made under entry 1 of List II ................................................ 1
i.

B.

Pith and Substance .................................................................................................. 2

That Lt. Governor is not bound by aid and advice of Council of Ministers ............. 3

ii.

Sole Discretion under the NCT Act ......................................................................... 4

iii. Lt. Governor is not akin to a State Governor .......................................................... 4

II.

WHETHER THE FUNDAMENTAL RIGHTS OF PETITIONER 2 HAVE BEEN VIOLATED? ............ 7

A.

That Article 14 of the Constitution is not violated ................................................... 7

B.

That Article 19 of the Constitution is not violated ................................................... 9

i.

Right to carry on trade in liquor ............................................................................. 9

ii.

Reasonableness ...................................................................................................... 12

C.

That medicinal and toilet preparations are not prohibited. ..................................... 13

D.

That the law imposing such prohibition is passed by a competent authority ......... 15

PRAYER FOR RELIEF.................................................................................................................. VIII

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INDEX OF AUTHORITIES
Cases
Amar Chandra Chakraborty v. The Collector of Excise, Government of Tripura and Ors.,
(1972) 2 SCC 442............................................................................................................... 7, 8
Animal Welfare Board of India v. A. Nagaraja and Ors., (2014) 7 SCC 547. ........................ 13
B. Viswanathiah v. State of Karnataka, (1991) 3 SCC 358. ...................................................... 3
C.S. Rowji v. State of Andhra Pradesh, [1964]6 SCR330. ....................................................... 7
Charles Russell v. The Queen, [1882] 7 AC 829....................................................................... 1
Cooverjee B. Bharucha v. Excise Commr. and Chief Commr. Ajmer, AIR 1954 SC 220. .... 11
Devji Vallabhbhai Tandel v. Administrator Goa, Daman & Diu , (1982) 2 SCC 222. ............. 4
Dhampur Sugar (Kashipur) Ltd. v. State of Uttranchal and Ors., (2007) 8 SCC 418. ............ 14
Dr. K. R. Lakshmanan v. State of Tamil Nadu and another, (1996) 2 SCC 226 ..................... 10
Dy. Commissioner of Income Tax, Lucknow v. M/s U.P. Cooperative Sugar Factories
Federation Ltd. Lucknow , 2013 (1) ADJ 73. ...................................................................... 12
Emperor v. Sibnath Banerjee, AIR 1943 FC 75. ....................................................................... 1
Federation of Hotel and Restaurant Association of India v. Union of India, (1989) 3 SCC 634.
................................................................................................................................................ 3
Har Shankar and Ors. v. Dy. Excise and Taxation Commissioner, [1975] 3 SCR 254. ........ 8, 9
India Brewery & Distillery v. Income Tax Officer, (1994) 48 TTJ Bang 11. ......................... 12
Indian Handicrafts Emporium and Ors. v. Union of India and Ors., 2003 (3) Suppl. SCR 43.
.............................................................................................................................................. 11
Ishwari Khetan Sugar Mills (P) Ltd. and Ors. v. State of Uttar Pradesh and Ors., [1980] 3
SCR 331. ................................................................................................................................ 2
K.S.E. Board v. India Aluminium Co., AIR 1976 SC 1031 ...................................................... 2
Kanaka Durga Wines and Ors. v. Govt. of A.P. and ors., 1995 (3) ALT 228. .......................... 6
Khoday Distilleries Ltd. and Ors. v. State of Karnataka and Ors., (1995) 1 SCC 574. ............. 9
Krishna Kumar Narula v. State of J.K., [1967] 3 SCR 50. ...................................................... 13
M/s. Ugar Sugar Works Ltd. v. Delhi Administration & Ors., (2001) 3 SCC 635.................. 10
Madhu Limaye v. S.D.M. Monghyr, AIR 1971 SC 2486. ......................................................... 1
Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731. .................................................... 7
Prafulla Kumar Mukherji v. Bank of Commerce Ltd., AIR 1947 PC 60 .................................. 2
Ramkrishna Ramnath Agrawal v. Municipal Committee Secretary, AIR 1950 SC 11 ............. 2

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Samsher Singh v. State of Punjab, (1974) 2 SCC 831. .............................................................. 5

State of A.P. and another v. Crag Martin Distillery Pvt. Ltd., Goa and another, 2000 (5) ALT
34. ............................................................................................................................... 8, 11, 14
State of Andhra Pradesh and Ors. v. McDowell & Co., (1996) 3 SCC 709. ......................... 6, 7
State of Bombay v. R.M.D. Chamarbaugwala, [1957]1SCR874. ......................................... 10
State of Bombay v. F.N. Balsara, AIR 1951 SC 318. .......................................................... 2, 13
State of Karnataka v. Ranganatha Reddy, AIR 1978 SC 215 ................................................... 2
State of Kerala and Ors. v. Green Seven Resorts (P) Ltd. and Ors., 2015 (2) KHC 580. ....... 10
State of Punjab and Anr. v. Devans Modern Breweries Ltd. and Anr., (2004) 11 SCC 26. ..... 9
Sushil Flour Dal & Oil Mills v. Chief Commissioner , (2000) 10 SCC 593. ............................ 4
Synthetics and Chemicals Ltd. v. State of U.P., AIR 1990 SC 1927. ..................................... 13
Tansukh Rai Jain v. Niltratan Prasad Shaw, AIR 1966 SC 1780 ............................................. 2
The Kerala Bar Hotels Association and Ors. v. State of Kerala and Ors., AIR 2016 SC 163. 11
The State of West Bengal v. Kesoram Industries Ltd. and Ors., (2004) 10 SCC 201. ............ 12
Statutes
Delhi Excise Act, 2010. ..................................................................................................... 14, 15
Books
AMERICAN JURISPRUDENCE (2nd ed. 1962). .......................................................................... 9, 10
D.D. BASU, SHORTER CONSTITUTION OF INDIA (VOL. C) (6th ed. 1989). ................................. 12
MAXWELL ON THE INTERPRETATION OF STATUTES (12th ed. 1969). ......................................... 13

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-STATEMENT OF JURISDICTION-

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STATEMENT OF JURISDICTION

THE PETITIONER 1
THIS

HAS APPROACHED THE

HON'BLE COURT

COURT UNDER

SUO MOTU TRANSFER ORDER

TRANSFERRING THE CASE FILED UNDER

ARTICLE 226

BY

OF THE

CONSTITUTION OF INDUS AT THE HIGH COURT OF DILLI PRADESH.

THE PETITIONER 2 HAS APPROACHED THE COURT UNDER ARTICLE 32 OF THE CONSTITUTION OF
INDUS .

The Respondent humbly submits to the jurisdiction of this Hon'ble Court.

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STATEMENT OF FACTS
Indus is a Republic in the continent of Asia and is divided into various states and union
territories. The State of Dilli Pradesh is one such Union Territory, which is situated in the
central part of Indus and has a very rich cultural and historical importance. The State of Dilli
Pradesh has been given a special status under Article 239AA of the Constitution of Indus.
In 2015, there had been certain demands and concerns were raised due to the proliferation
and consumption of alcohol in the territory. However, no action was taken on the part of the
State Legislature to address such issue.
The Central Government, which was newly elected, through the Lieutenant Governor, passed
a Prohibition Order in July, 2016 putting an embargo on sale, distribution, marketing and
consumption of whisky, wine, rum, vodka, gin, tequila or any other alcohol within the
territory of Dilli Pradesh. However, beer and any other alcoholic beverage with alcoholic
content of less than 5% were excluded from its purview.
Pursuant to such act, Kind Bird Pvt. Ltd. approached the Hon'ble Supreme Court of Indus
under Article 32 of the Constitution of Indus. Further, a petition under Article 226 of the
Constitution was filed by the State of Dilli Pradesh against the Lieutenant Governor for the
latter's incompetency towards legislating such an Order.
The Supreme Court, through suo motu cognizance, transferred the petition under Article 226
to itself and clubbed both the matters for the final disposal.

-The matter is slated to be heard on 2nd October, 2016-

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QUESTIONS PRESENTED
THE RESPONDENT VERY RESPECTFULLY PUTS FORTH TO THE HONBLE SUPREME COURT, THE
FOLLOWING QUERIES:

I.

WHETHER THE LIEUTENANT GOVERNOR OF THE STATE OF DILLI

PRADESH HAS THE LEGISLATIVE COMPETENCE TO ENACT THE
IMPUGNED ORDER?

II.

WHETHER THE IMPUGNED ORDER VIOLATES THE FUNDAMENTAL

RIGHTS OF THE CITIZENS?

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SUMMARY OF PLEADINGS
III.

WHETHER THE LIEUTENANT GOVERNOR OF THE STATE OF DILLI

PRADESH HAS THE LEGISLATIVE COMPETENCE TO ENACT THE
IMPUGNED ORDER?

It is submitted that the Lieutenant Governor had the legislative competence to enact the
impugned Order. This is because, the law has been made under Entry 1 of State List because
the ambit of the Order is much larger than just liquor and that the Lt. Governor is not bound
by the aid and advice of the Council of Ministers and therefore, he had wide discretionary
powers vested with him not only with respect to executive actions, but also with legislative
actions.

IV.

WHETHER THE IMPUGNED ORDER VIOLATES THE FUNDAMENTAL

RIGHTS OF THE CITIZENS?

It is submitted that the fundamental rights of the petitioner, King Bird Liquor Private Limited,
have not been violated by the imposition of the Prohibition Order passed by the Central
Government. This is because, Article 14 of the Constitution is not violated because there is
intelligible differentia present and a rational nexus with the object of having the Order in the
first place. Article 19 of the Constitution is not violated because there is no right at all to
trade in liquor. Further, the medicinal and toilet preparations are not prohibited and therefore,
this ground is not relevant for the present purpose. Lastly, the law imposing such prohibition
is passed by a competent authority, as had already been discussed in the last issue.

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PLEADINGS AND AUTHORITIES

W.P. No. ____ / 2016
(suo motu transfer from the High Court of Dilli Pradesh)
I.

WHETHER THE LIEUTENANT GOVERNOR OF THE STATE OF DILLI

PRADESH

HAS

THE

LEGISLATIVE

COMPETENCE

TO

ENACT

THE

IMPUGNED ORDER?
1. It is submitted that the Central Government (through the Lieutenant Governor1) is within his
legislative competence to enact such a law. This is because, [A] The law has been made
under Entry 1 of State List and; [B] the Lt. Governor is not bound by the aid and advice of
the Council of Ministers.
A. THAT THE LAW HAS BEEN MADE UNDER ENTRY 1 OF LIST II
2. It is respectfully submitted that the power to make laws with respect to public order forms a
part of Entry 1 of State List of the Seventh Schedule of the Constitution of Indus and the
same is outside the legislative scope of the State Legislature of Dilli Pradesh, as provided for
under Article 239AA(3) of the Constitution. The said clause states:
3. It is submitted that the term Public Order is an expression of wide connotation and not vague.
The Indian Statutes use three terms for describing breakdown of law and order. These are, in
the ascending order of seriousness, Law and Order, Public Order and Security of State.
Law and Order comprehends disorders of less gravity than the term Public order which
comprehends disorders of less gravity that those affecting Security of State. Public Order
includes under its purview, all acts which cause harm to public safety or interest

and

disturbs public tranquility3. In the case of Superintendent Central Prison v. Ram Manohar
Lohia, Justice Subba Rao, giving meaning to the term Public Order, observed as follows:
Public Order is synonymous with public safety and tranquility: it is the
absence of order involving breaches of local significance in contradistinction
to national upheavals, such as civil strike, war, and anything affecting the
security of the state.

1
2
3

Hereinafter, Lt. Governor.

Emperor v. Sibnath Banerjee, AIR 1943 FC 75.
Madhu Limaye v. S.D.M. Monghyr, AIR 1971 SC 2486.

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4. In a Canadian Judgment, Charles Russell v. The Queen4, it was enunciated that prohibition on
liquor falls under the subject matter of Public Order. Therefore, the law making power for the
same is dealt with by the Legislature which has the power to make laws on maintenance of
Public Order. Quoting from the case, their lordships had observed:
Intoxicating liquors, can, of course, be held as property, but a law-placing
restrictions on their sale, custody, or removal, on the ground that the free sale
or use of them is dangerous to the public safety, and making it a criminal
offence punishable by fine or imprisonment to violate these restrictions, cannot
properly be deemed a law in relation to property in the sense in which those
words are used. What Parliament is dealing with in legislation of this kind is
not a matter in relation to property and its rights, but one relating to public
order and safety.
5. The above judgment was referred to in the case of State of Bombay v. F.N. Balsara5. Though
the above observation was not used in that case as it dealt with two entries belonging to
different lists and not two entries belong to the same list as in the present matter. However,
this principle is of prime relevance for the instant matter.
i.

Pith and Substance

6. It is humbly submitted that the Pith and Substance of the Prohibition Order passed by the Lt
Governor was to curb the menace of alcohol that was disturbing public tranquility and
causing issues of safety harming the interests of the public. The doctrine of pith and
substance6 is used for determining the true nature and character of a law. In Ishwari Khetan
Sugar Mills (P) Ltd. and Ors. v. State of Uttar Pradesh and Ors.,7 it was observed that:
It was held that when the validity of the legislation is challenged on the
ground of want of legislative competence and it is necessary to ascertain which
entry in the entry list the legislation is preferable to, the court has evolved the
theory of pith and substance. If in pith and substance a legislation falls within
one entry or the other but some portion of the subject matter of the legislation

4
5
6

[1882] 7 AC 829.
AIR 1951 SC 318.
Ramkrishna Ramnath Agrawal v. Municipal Committee Secretary, AIR 1950 SC 11; State of Karnataka v.
Ranganatha Reddy, AIR 1978 SC 215; K.S.E. Board v. India Aluminium Co., AIR 1976 SC 1031; Tansukh
Rai Jain v. Niltratan Prasad Shaw, AIR 1966 SC 1780; Prafulla Kumar Mukherji v. Bank of Commerce Ltd.,
AIR 1947 PC 60.
[1980] 3 SCR 331.

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incidentally trenches upon and might enter a field under another list, the
Statute as a whole would be valid notwithstanding such incidental trenching.
7. It is worth noting here that, no question of conflict between two Lists (State and Central
Lists) will arise if the impugned legislation by the application of the doctrine of pith and
substance appears to fall exclusively under one list, and the encroachment upon another list
is only incidental.8
8. It is submitted that taking recourse from a catena of judicial pronouncements, it can be stated
that the subject matter of an enactment though might fall under a particular entry of one list,
but the object, scope and effect of it is the primary criteria to decide legislative competence of
a law making body to pass the same. Thus, in the present matter, the subject matter of the
Prohibition Order is Liquor but its object, scope and effect is to curb the menace caused by
liquor to public peace, safety and tranquility9 i.e. maintenance of Public Order.
9. Further, it is submitted that in addition to the Doctrine of Pith and Substance, the Aspect
Theory, which has been developed by judicial pronouncements, gives precedence to the
legislative intention behind an enactment rather than its subject matter. The case of
Federation of Hotel and Restaurant Association of India v. Union of India10 talks about this
theory. Conclusively, the Court had defined Aspect Theory in connection with distribution of
legislative power. This means that, subjects, which in one aspect and for one purpose fall
within the power of a particular legislature, may in another aspect and for another purpose
fall within another legislative power.
10. Therefore, in the present matter, it can be accordingly put forth that the prohibition envisaged
in the Prohibition Order is essentially for maintaining the public order situation in the State as
provided for in Entry 1 of State List and not purely on the subject matter of Liquor falling
under Entry 8 of State List, that is within the State power. The distinct aspect, namely the
Public tranquility and safety aspect falling within the Union Power must be distinguished and
the legislative competence to pass such a prohibition order should be sustained.
B. THAT LT. GOVERNOR IS NOT BOUND BY AID AND ADVICE OF COUNCIL OF MINISTERS
11. It is humbly submitted that the Lt. Governor is not bound by the aid and advise of the Council
of Ministers on two grounds, namely: a) He has the sole discretion to legislate on certain
matters, as provided under Section 41 of the Government of National Capital Territory of
8
9
10

B. Viswanathiah v. State of Karnataka, (1991) 3 SCC 358, 9.

3, Factsheet.
(1989) 3 SCC 634.

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Delhi Act, 199111; b) The position of a Lt. Governor is not akin to that of the Governor of the
State.
ii.

Sole Discretion under the NCT Act

12. It is submitted that in view of Section 41 of the NCT Act, 1991, the Lt. Governor is required
to act in his discretion in respect of the matters enumerated therein, and not on the aid and
advice of the Council of Ministers. Section 41 is read as follows:
Matters in which Lieutenant Governor to act in his discretion.: The
Lieutenant Governor shall act in his discretion in a matter: (i) which falls
outside the purview of the powers conferred on the Legislative Assembly but in
respect of which powers or functions are entrusted or delegated to him by the
President
13. It is also submitted that the Lt. Governor is the Administrator of the Union Territory and thus,
acts as a delegate to the President. While describing the status of the Administrator of the
Union Territory as a delegate of the President, it was observed by the Supreme Court in
Sushil Flour Dal & Oil Mills v. Chief Commissioner,12 that:
Under Part VIII of the Constitution the power to administer the Union
Territories vested in the President and the President could exercise that power
directly or through an Administrator appointed by him. An Administrator so
appointed was the medium through which the President exercised the function
of administering the Union Territories.
14. Thus, it is submitted that in the present matter, the Prohibition Order passed by the Lt.
Governor falls under Entry 1 of List II which is outside the law making purview of the State
Legislative Assembly of Dilli Pradesh, as provided under Article 239AA. Additionally, the
power to make laws under Enter 1 List II is with the Central Government, and such power
has been delegated and entrusted upon the Lt. Governor. Thus, in lieu of the aforesaid
principles of the law, the Lt. Governor exercises discretion and acts as a delegate of the
President13.
iii.

11
12
13

Lt. Governor is not akin to a State Governor

Hereinafter, the NCT Act.

(2000) 10 SCC 593.
Article 239(1) of the Constitution of Indus.

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15. It is humbly submitted that the position of Lt. Governor is not akin to Governor. The scope of
aid and advise under Article 239AA(4) of the Constitution is not comparable to the scope
of aid and advise received by the Governor of a State under Article 162 of the Constitution.
This has been enunciated in the case Devji Vallabhbhai Tandel v. Administrator Goa, Daman
& Diu14:
The Legislative Assembly of NCT of Delhi has no legislative competence to
legislate in respect of any subjects covered under Entries 1, 2 and 18 of State
List. As a corollary, the Government of NCT of Delhi has no executive
authority in respect of these enumerated subjects.
16. It is further submitted that the Honble Supreme Court of India in Samsher Singh v. State of
Punjab, 15 after noticing the contents of Article 163(1) and Article 239AA(4) of the
Constitution, explained the legal position as under:
As is evident, both Article 163(1) and Article 239AA (4) of the Constitution
provide for the Governor/Lt. Governor acting in his discretion. However, the
discretion of the Governor of a State under Article 163(1) is confined only to
the Constitutional provisions, whereas under Article 239AA(4), the Lt.
Governor may act in his discretion with regard to all the matters in respect of
which he is required to act in his discretion "by or under any law".
17. Further, Rule 23 of Transaction of Business Rules, 1993, specifies the matters which
essentially require the approval of the Lt. Governor before orders thereon can be issued by
the Government of NCT of Delhi (Government of the State of Dilli Pradesh, in the instant
matter), which is a departure from the titular nature of Governors in States in that these are
matters where proposals need to be necessarily placed before the Lt. Governor for approval
before the Government can act on them. This also entitles the Lt. Governor to exercise a
difference of opinion vis--vis the advice tendered by the Council of Ministers, as mandated
in Article 239AA(4).
18. Moreover, the above provision is supplemented by Chapter V of Transaction of Business
Rules where Rules 49 to 52 inter alia provide for mechanism(s) and procedure(s) for
resolution of the difference of opinion, between the Lt. Governor and the Council of
Ministers, by the Central Government. Thus, it is conclusively submitted that the Lt.
Governor has acted within his legislative competence in enacting the said law. Also, he was
14
15

(1982) 2 SCC 222.

(1974) 2 SCC 831.

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not required to act on the aid and advise of the Council of Ministers since his power and
responsibility is different to that of the Governor of the State.

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W.P. No. ____ / 2016

II.

WHETHER THE FUNDAMENTAL RIGHTS OF PETITIONER 2 HAVE BEEN

VIOLATED?
19. It is submitted that the fundamental rights of the petitioner, King Bird Liquor Private
Limited16, have not been violated by the imposition of the Prohibition Order passed by the
Central Government.17 This is because, [A] Article 14 of the Constitution is not violated; [B]
Article 19 of the Constitution is not violated; [C] The medicinal and toilet preparations are
not prohibited; and [D] The law imposing such prohibition is passed by a competent
authority.

A. THAT ARTICLE 14 OF THE CONSTITUTION IS NOT VIOLATED

20. It is submitted that a law made by the Parliament or the Legislature can be struck down by
courts on two grounds and two grounds alone, viz., (1) lack of legislative competence and (2)
violation of any of the fundamental rights guaranteed in Part-III of the Constitution or of any
other constitutional provision. 18 However, in the instant matter none of these grounds is
present so as to negative the authority of the Lt. Governor to pass the impugned Order or tom
make it as being violative of Articles 14, 19 or 21 of the Constitution of Indus.
21. It is submitted that the Allahabad High Court in the case of Kanaka Durga Wines and Ors. v.
Govt. of A.P. and ors.19 held that:
On these facts, can we say that the test of reasonable classification is not
satisfied and therefore the definition of 'liquor' in Section 2(7) of the
Prohibition Act should be struck down so as to exclude all other intoxicating
drinks from the definition of 'liquor'? We think we cannot and we shall not. [...]
it has been well settled that the Legislature understands and correctly
appreciates the needs of its own people and that its laws are directed to the
problem made manifest by experience and that its discriminations, including
beer and draught beer in and excluding toddy from the definition of 'liquor' are
based on adequate grounds and further that the Legislature is free to recognize

16
17
18
19

Hereinafter Petitioner 2.
7, Factsheet.
State of Andhra Pradesh and Ors. v. McDowell & Co., (1996) 3 SCC 709.
1995 (3) ALT 228.

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degree of harm and may confine its restrictions to those cases where the need
is clear. 20
22. Although, the Government has, chosen to prohibit sale, purchase, possession and
consumption of other intoxicating drinks and yet has left out a particular type of intoxicating
liquor from the ambit of prohibition, the Court should not strike down such a legislation on
the ground of discrimination so as to destroy achievement of that part of the constitutional
objective of endeavoring to bring about prohibition which the Legislature has admittedly
covered by the impugned legislation.21
23. Along the lines, in a similar case, where the production and manufacturing of all intoxicating
liquors was banned while excluding a particular type of liquor, and that too on the basis of
alcohol content, the Supreme Court upheld such prohibition. In the circumstances, it cannot
be said that it is not a case of reasonable classification having regard to the object or
legislation. Moreover, it is always open to the State to introduce prohibition in stages. It is not
necessary that the prohibition should be total and absolute whenever it is imposed.22
24. The test of classification which is sine qua non for testing the validity of every legislation
under Article 14 of the Constitution will not be rigidly applied in cases of classification of
intoxicating drinks.23 The basis of classification for judging the validity of the law can be
gathered from surrounding circumstances 24 and in the instant matter, the surrounding
circumstances point to the menace being caused by the proliferation and high consumption of
alcohol in the State of Dilli Pradesh25 and therefore, it was necessary for the public health,
morals, safety and order and public interests that such Order be passed.
25. As the Supreme Court in the case of Amar Chandra Chakraborty v. The Collector of Excise,
Government of Tripura and Ors.,26 put it:
In the case of country liquor, therefore, the question of determining
reasonableness of the restriction may appropriately be considered by giving
due weight to the increasing evils of excessive consumption of country liquor in
the interests of health and social welfare. Principles applicable to trades which

20
21
22

23
24
25
26

Id. at 25.
Supra note 19 at 25.
State of Andhra Pradesh and others, etc. v. McDowell and Co. and others, etc., (1996) 3 SCC 709; see, C.S.
Rowji v. State of Andhra Pradesh, [1964]6 SCR330.
Supra note 19 at 25.
Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731.
5, Factsheet.
(1972) 2 SCC 442.

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all persons carry on free from regulatory controls do not apply to trade or
business in country liquor. This is so because of the impact of this trade on
society due to its inherent nature.
26. Therefore, the respondent contends that the impugned Order is not violative of Article 14 of
the Constitution under the light of the above principles. It has accordingly passed the test of
having an intelligible differentia and of having reasonable nexus to the object sought to be
achieved, i.e. to uplift public health, morals, and public order.
B. THAT ARTICLE 19 OF THE CONSTITUTION IS NOT VIOLATED
27. It is humbly submitted that there is no right to carry on a business in liquor. This principle is a
settled law under the scheme of the Constitution's Article 19(1)(g). It is submitted that trade
or business in country liquor has from its inherent nature been treated by the State and the
society as a special category requiring legislative control which has been in force in the
whole of India since several decades. An argument that a citizen has a fundamental right to
trade, or business in liquor is to be construed in the sense to mean that only when the State
does not prohibit the trade in liquor, can a citizen has the right to do such trade but that too
subject to the limitations so placed by the State.27
i.

Right to carry on trade in liquor

28. In Har Shankar and Ors. v. Dy. Excise and Taxation Commissioner28, the law was summed
up as:
These unanimous decisions of five Constitution Benches uniformly
emphasized after a careful consideration of the problem involved that the State
has the power to prohibit trades which are injurious to the health and welfare
of the public, that elimination and exclusion from business is inherent in the
nature of liquor business, that no person has an absolute right to deal in liquor
and that all forms of dealings in liquor have, from their inherent nature, been
treated as a class by themselves by all civilized communities. The contention
that the citizen had either a natural or a fundamental right to carry on trade or
business in liquor thus stood rejected.

27
28

State of A.P. and another v. Crag Martin Distillery Pvt. Ltd., Goa and another, 2000 (5) ALT 34.
[1975] 3 SCR 254.

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29. Reference must also be made to the ruling by the Supreme Court of India in Amar Chandra
Chakraborty v. The Collector of Excise, Government of Tripura and Ors., 29 wherein the
Court held that:
An activity which has harmful effects on the society cannot be classified as a
profession or trade for protection under Article 19(1)(g) of the Constitution.
30. Reliance is also placed on the observations made by this Court in the case of State of Bombay
v. R.M.D. Chamarbaugwala and Anr. 30 In this case, it was observed by this Court that
activity of gambling could not be raised to the status of trade, commerce or intercourse and to
be made subject matter of a fundamental right guaranteed by Article 19(1)(g).
31. Along the lines, it is submitted that Article 19(1)(g) of the Constitution does not make an
inherent entitlement towards the citizens to carry on a business in activities which are
immoral and criminal and in articles or goods which are obnoxious and injurious to health,
safety and welfare of the general public, i.e., res extra commercium. Potable liquor as a
beverage is an intoxicating and depressant drink which is dangerous and injurious to health
and is, therefore, an article which is res extra commercium. Hence the trade or business in
liquor can be completely prohibited.31
32. In Har Shankar and Ors. v. Deputy Excise and Taxation Commissioner32, it was also held
that:
...The state, under its regulatory powers, has the right to prohibit absolutely
every form of activity in relation to intoxicants - its manufacture, storage,
export, import, sale and possession. In all their manifestations, these rights are
vested in the State and indeed without such vesting there can be no effective
regulation of various forms of activities in relation to intoxicants.
33. In the aforementioned cases, the principles were reiterated from Khoday Distilleries Ltd. and
Ors. v. State of Karnataka and Ors.33 in support of the submission that the trading in liquor is
not a fundamental right. In this case, it was held that:
The correct interpretation to be placed on the expression "the right to
practice any profession, or to carry on any occupation, trade or business" is to
interpret it to mean the right to practice any profession or to carry on any
29

(1972) 2 SCC 442.

AIR 1957 SC 699.
31
State of Punjab and Anr. v. Devans Modern Breweries Ltd. and Anr., (2004) 11 SCC 26.
32
Supra note 28.
33
(1995) 1 SCC 574.
30

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occupation, trade or business which can be legitimately pursued in a civilised

society being not abhorrent to the generally accepted standards of its
morality.
34. It is stated that while engaging in liquor traffic is not inherently unlawful, nevertheless, it is a
privilege and not a right, which is subject to State's control34. This power of control is an
incident of the society's right to self-protection and it rests upon the right of the state to care
for the health, morals and welfare of the people. Liquor traffic is a source of pauperism and
crime.35
35. In the case of State of Kerala and Ors. v. Green Seven Resorts (P) Ltd. and Ors.36,it was held
by the Supreme Court that:
The fundamental rights conferred by our Constitution are not absolute.
Article 19 has to be read as a whole. [...] The correct interpretation to be
placed on the expression "the right to practise any profession, or to carry on
any occupation, trade or business" is to interpret it to mean the right to
practise any profession or to carry on any occupation, trade or business which
can be legitimately pursued in a civilised society being not abhorrent to the
generally accepted standards of its morality [...] and it is not possible to
enumerate all professions, occupations, trades and businesses which may be
obnoxious to decency, morals, health, safety and welfare of the society [...]That
is apart from the fact that Article 47 of the Constitution enjoins upon the State
to prohibit consumption of intoxicating drink like liquor, which falls for
consideration in the present case and, therefore, the right to trade or business
in potable liquor is subject also to the provisions of the said article.
36. With regards to the nature of the activity, the Supreme Court categorically held that the words
trade, business or intercourse do not cover activities which are, from their very nature
and in essence, extra commercial or res extra commercium, although the external forms,
formalities and instruments of trade may be employed and they are not protected either by
Article 19(1)(g) or Article 301 of our Constitution.37

34
35
36
37

30 AMERICAN JURISPRUDENCE 538 (2nd ed. 1962). See, Har Shankar Case, supra note 29.
Id. at 539-541.
2015 (2) KHC 580.
Dr. K. R. Lakshmanan v. State of Tamil Nadu and another, (1996) 2 SCC 226. See, State of Bombay v.
R.M.D. Chamarbaugwala, [1957]1SCR874.

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37. In a landmark case of M/s. Ugar Sugar Works Ltd. v. Delhi Administration & Ors.38, the
Supreme Court was considering the augment of the Petitioner challenging the validity of an
executive action regulating liquor in Delhi. The mere fact that such a policy would hurt
business interests is not a ground to challenge a policy decision regulating liquor.39
ii.

Reasonableness

38. With regards to reasonableness, it is submitted that, in order to determine the reasonableness
of the restriction regard must be had to the nature of the business and the conditions
prevailing in that trade.40 It was laid down that:
It can also not be dented that the State has the power to prohibit trades which
are illegal or immoral of injurious to the health and welfare of the public.
Laws prohibiting trades innoxious or dangerous goods or trafficking in women
cannot be held to be illegal as enacting a prohibition and not a mere
regulation.
39. Reference must also be made to a recent case of 2015, The Kerala Bar Hotels Association
and Ors. v. State of Kerala and Ors.41, wherein the Supreme Court said that:
27. We now move to the arguments predicated on Article 19 of the
Constitution. We have already noted that the business in potable liquor is in
the nature of res extra commercium and would therefore be subject to more
stringent restrictions than any other trade or business. Thus while the ground
of Article 19(1)(g) can be raised, in light of the arguments discussed with
regard to Article 14, it cannot be said that the qualification on that right is
unreasonable.
40. For the reasonableness of the restrictions imposed, there cannot be any exception to the right
of the State to place reasonable restrictions on the trade or business even of industrial alcohol
to prevent its diversion for the use in or as intoxicating beverage.42
41. In the case of Indian Handicrafts Emporium and Ors. v. Union of India and Ors. 43 , the
Supreme Court said:

38
39
40
41
42
43

(2001) 3 SCC 635.

Id. at 17.
Cooverjee B. Bharucha v. Excise Commr. and Chief Commr. Ajmer, AIR 1954 SC 220.
AIR 2016 SC 163.
State of A.P. and another v. Crag Martin Distillery Pvt. Ltd., Goa and another, 2000 (5) ALT 34.
2003 (3) Suppl. SCR 43.

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It is now settled that no inflexible answer to this question is possible, and that
it is the nature of the business or property which is an important element in
determining how far the restriction may reasonably go:
(A) In the case of inherently dangerous or noxious trades, such as production
or trading in liquors or cultivation of narcotic plants, or trafficking in women,
it would be a 'reasonable restriction' to prohibit the trade or business
altogether.
(B) Where the trade or business is not inherently bad, as in the preceding
cases, it must be shown by placing materials before the Court that prohibition
of private enterprise in the particular business was essential in the interests of
public welfare.44
42. Therefore, taking the trade of liquor or other noxious substance out of the purview of Article
19(1)(g) does not warrant the test of reasonableness in the instant matter. Accordingly, not
only is there no right in liquor but also, there is no qualification towards its reasonableness
with regard to the prohibition.
C. THAT MEDICINAL AND TOILET PREPARATIONS ARE NOT PROHIBITED.
43. It is submitted that, in the instant matter, alcohol in the Prohibition Order must be taken as to
include other types of intoxicating liquors and not to include medicinal and toiletries'
preparations. This argument is based on the rule of ejusdem generis.
44. The rule of ejusdem generis entails taking colour from other words and phrases employed in
the same clause.45 The words ejusdem generis means of the same kind or nature. This
rule is that where particular words are followed by general words, the general words should
not be construed in their widest sense but should be held as applying to objects, persons or
things of the same general nature or class as those specifically enumerated, unless of course
there is a clear manifestation of a contrary purpose; or to put in a slightly different way,
where general or special words which are capable of analogous meaning are associated
together, they take colour from each other and the general words are restrained and limited to
a sense analogous to the less general.46

44
45
46

D.D. BASU, SHORTER CONSTITUTION OF INDIA (VOL. C) 45-46 (6th ed. 1989).
The State of West Bengal v. Kesoram Industries Ltd. and Ors., (2004) 10 SCC 201.
India Brewery & Distillery v. Income Tax Officer, (1994) 48 TTJ Bang 11 at 7.

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45. To this point, the Allahabad High Court in Dy. Commissioner of Income Tax, Lucknow v. M/s
U.P. Cooperative Sugar Factories Federation Ltd. Lucknow,47 while interpreting the phrase
other alcoholic spirits held that:
Language is clear and speaks for beer and wine followed by the words 'other
alcoholic spirits'. The latter words indicate the same species i.e. of liquor
falling within the category of beer and wine fit for human consumption. The
spirits itself may be divided into categories i.e. methylated spirit and others.
Legislature to their wisdom points out beer and wine and other identical or
alcoholic spirits. Industrial alcohol constitute separate class seems to be
undisputed fact.
46. In yet another recent case, the Supreme Court while interpreting the phrase or otherwise
held that it must be construed to include all situations where the animals are subjected to
unnecessary pain or suffering.48
47. As Maxwell puts it,
Where two or more words which are susceptible of analogous meaning are
coupled together, noscitur a sociis, they are understood to be used in their
cognate sense. They take, as it were, their colour from each other, the meaning
of the more general being restricted to a sense analogous to that of the less
general.49
48. Therefore, the principles enunciated above point to the fact that the phrase or any other
alcohol50 must be construed to include any other type of intoxicating liquor of the same
nature as expressly provided in the preceding words, that is, whisky, wine, rum, vodka, gin,
tequila, unless a kind is specifically excluded. Therefore, pursuant to this, there is no point of
interpreting the phrase to include medicinal or toiletries.
49. As an Arguendo, it is submitted that the Supreme Court in Synthetics and Chemicals Ltd. v.
State of U.P.,51 held that:
75. F.N. Balsara case52 dealt with the question of reasonable restriction on
medicinal and toilet preparations. In fact, it can safely be said that it impliedly
47
48
49
50
51
52

2013 (1) ADJ 73.

Animal Welfare Board of India v. A. Nagaraja and Ors., (2014) 7 SCC 547.
MAXWELL ON THE INTERPRETATION OF STATUTES 765 (12th ed. 1969).
7, Factsheet.
AIR 1990 SC 1927.
AIR 1951 SC 318.

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and sub-silentio clearly held that medicinal and toilet preparations would not
fall within the exclusive privilege of the States. If they did there was no
question of striking down of Section 12(c) and (d) and Section 13(b) of the
Bombay Prohibition Act, 1949 as unreasonable under Article 19(1)(f) of the
Constitution because total prohibition of the same would be permissible. In
K.K. Narula case 53 it was held that there was right to do business even in
potable liquor. It was not necessary to say whether it is good law or not. But
this must be held that the reasoning therein would apply with greater force to
industrial alcohol.
50. Therefore, it is contended that by the application of the principles of ejusdem generis as a rule
of interpretation of a statute, the word or any other alcohol has to be read in context of the
whole law, and must not be meant to make the purpose of the Prohibition Order as
ambiguous.
D. THAT THE LAW IMPOSING SUCH PROHIBITION IS PASSED BY A COMPETENT AUTHORITY
51. It is contended that the Prohibition Order has been passed by the Lt. Governor of Dilli
Pradesh54 under his authority. Such authority is vested on him by the Constitution itself and
therefore, a Lt. Governor having the legislative power as being co-extensive to that of the
State Legislature is competent to make the impugned law.
52. The Supreme Court in State of A.P. and another v. Crag Martin Distillery Pvt. Ltd., Goa and
Anr.55 held that:
This is apart from the fact that the trade or business in potable liquor is a
trade or business in res extra commercium and hence can be regulated and
restricted even by executive order provided it is issued by the Governor of the
State. We, therefore, answer the question accordingly.
53. Most importantly, so far as the power of Executive to prohibit liquor in the region is
concerned, the Supreme Court of India in State of A.P. and another v. Crag Martin Distillery
Pvt. Ltd., Goa and Anr.,56 observed:
This is apart from the fact that the trade or business in potable liquor is a
trade or business in res extra commercium and hence can be regulated and
53
54
55
56

[1967] 3 SCR 50.

7, Factsheet.
2000 (5) ALT 34.
2000 (5) ALT 34.

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restricted even by executive order provided it is issued by the Governor of the

State. We, therefore, answer the question accordingly.
54. The State and its instrumentality have also power to change the policy. The executive power
is not limited to frame a particular policy. It has untrammeled power to change, re-change,
adjust and readjust the policy taking into account the relevant and germane considerations. It
is entirely in the discretion of the Government how a policy should be shaped.57
55. Further, it may be noted that the Lt. Governor derived its power for imposing such
prohibition from the [Dilli Pradesh] 58 Excise Act, 2010. The Government may issue such
order and take such measures as may be deemed appropriate to regulate drinking or to
enforce prohibition in whole or in any part of Delhi.59 For the purpose of this derivation, it is
appropriate to refer to the definitions' section which gives the definition of Government:
Government means the Lieutenant Governor of the [Dilli Pradesh]60 appointed
by the President under article 239 and designated as such under article 239
AA of the Constitution.61
56. Therefore, it is contended by the Respondent that the executive had the legislative power to
enact the impugned law, and as has already been dealt by the previous issue of legislative
competence, the law must be held to be valid. Accordingly, this Court must dismiss this
petition.

57
58
59
60
61

Dhampur Sugar (Kashipur) Ltd. v. State of Uttranchal and Ors., (2007) 8 SCC 418.
1, Factsheet.
77, Delhi Excise Act, 2010.
1, Factsheet.
2(35), Delhi Excise Act, 2010.

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PRAYER FOR RELIEF

WHEREFORE, IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED, REASONS GIVEN
AND AUTHORITIES CITED, THIS HONBLE COURT MAY BE PLEASED TO

DISMISS THE PRESENT SUIT

AND ANY OTHER RELIEF THAT THIS HONBLE COURT MAY BE PLEASED TO GRANT IN THE
INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE, ALL OF WHICH IS RESPECTFULLY
SUBMITTED.

Sd/COUNSELS FOR THE RESPONDENT

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