C.S.P Singh, J.:— The controversy which had been set at rest in this Court by the Division Bench decision in the case of Sheo Pat Rai v. State of U.P 1972 A.L.J 1000., has recurred with greater fervour. The dispute relates to auction of foreign liquor shops by the State Government. The petitioners held licence in Form F.L 5 for retail sale of foreign liquor and by this petition originally challenged the U.P Excise (Amendment) (Re-enactment and Validation) Ordinance, 1976 (U.P Ordinance No. 15 of 1976) as also the U.P Excise (First Amendment) Rules 1976. Prayer for mandamus has been made for a direction that the respondents should not auction the right of retail and wholesale of foreign liquor. After the petition was filed, the Ordinance was replaced by the U.P Excise (Amendment) (Re-enactment and Validation) Act, 1976, and we permitted the petitioners to challenge this Act which has now replaced the Ordinance. The controversy raised in this petition, arises thus. In 1972, the State promulgated an Ordinance which was published in U.P Gazette Extraordinary on 30-6-1972, and the Excise Commissioner issued three notifications amending certain Rules framed under the Excise Act, and thereafter proceeded to sell by auction the right of retail and wholesale of foreign liquor. That attempt failed, as a Division Bench of this Court held that the relevant provisions of the Ordinance entitling the State to sell by auction were ultra vires. An appeal has been filed against the judgment but still is pending in the Supreme Court. That attempt has now been revived by the promulgation of Act No. 5 of 1976, being the U.P Excise (Amendment) (Re-enactment and Validation Act), 1976. Justification for this action is based on Secs. 24-A and 24-B which have been introduced in the Excise Act by the Amendment Act and may now be conveniently quoted here:—

“24-A (1) Subject to the provisions of Sec. 31, the Excise Commissioner may grant to any person a licence or licences for the exclusive or other privilege

(a) of manufacturing or of supply by wholesale, or of both; or

(b) of manufacturing or of supplying by wholesale, or of both and selling by retail; or

(c) of selling by wholesale (to whole-sale or retail vendors) or

(d) of selling by retail at shops (for consumption ‘off’ the premises only).

and foreign liquor in any locality.

(2) The grant of licence or licences under clause (d) of sub-sec. (1) in relation to any locality shall be without prejudice to the grant of licences for the retail sale of foreign liquor in the same locality in hotels and restaurants for consumption in their premises.

(3) Where more licences than one are proposed to be granted under clause (d) of sub-sec. (1) in relation to any locality for the same period, advance intimation of the proposal shall be given to the prospective applicants for every such licence.

(4) The provisions of Sec. 25, and proviso to Sec. 39 shall apply in relation to grant of a licence for an exclusive or other privilege under this section as they apply in respect of the giant of a licence for an exclusive privilege under Sec. 24.

24-B For the removal of doubts, it is hereby declared (a) that the State Government has an exclusive right or privilege of manufacture and sale of country liquor and foreign liquor;

(b) that the amount described as licence fee in clause (c) of Sec. 41 is in its essence the rental or consideration for the grant of such right or privilege by the State Government:

(c) that the Excise Commissioner as the head of the Excise Department of the State shall be deemed, while determining or realising such fee, to act for and on behalf of the State Government.”

2. The preamble to this Act runs thus:—

“Whereas it is expedient in the public interest to provide for the adoption of the system of grant of licence prevailing in respect of country liquor with necessary modifications for the grant of licences in respect of foreign liquor;

And whereas the Uttar Pradesh Excise (Amendment) Ordinance, 1972 (U.P Ordinance No. 13 of 1972), which was replaced by the Uttar Pradesh Excise (Amendment) Act, 1972 (U.P Act No. 30 of 1972), was adjudicated by the High Covert of Judicature at Allahabad in its judgment in Sheo Pat Rai v. State of Uttar Pradesh, to be beyond the competency of the State Legislature:

And whereas subsequently, in the case of Nashirwar v. State of Madhya Pradesh 1975 1 SCC 29, the Supreme Court has upheld the power of the State Legislature to make provision for holding of public auction for the giant of right or privilege to possess and sell foreign liquor;

“And whereas it has become necessary to repeal and re-enact the Uttar Pradesh Excise (Amendment) Act, 1972 (U.P Act No. 30 of 1972);

Now therefore, it is hereby enacted in the Twenty-seventh year of the Republic of India, as follows:—”

3. The Amending Act, as is apparent has been promulgated in view of the decision of the Supreme in Nashirwar v. State of Madhya Pradesh. We are as such in the present petition again concerned with the validity of provisions which are somewhat similar to the provisions of the Ordinance of 1972 which was struck down in Sheo Pat Rai's case. The two petitioners in this petitioners are also petitioners in Writ Petition No. 1127 of 1976 and had to file the present petition in these circumstances. A very large number of petitioners hailing from almost all the districts in the State filed about 35 petitions challenging the auction system no sooner than it was introduced. These petitions were listed for hearing on 30-3-1976. On the 30th March, 1976, counsel for the petitioners made statements in the court, expressing the helplessness to proceed with the arguments as some of the office bearers of U.P Foreign Liquor Merchants Association, who were petitioners in some of the petitions had overnight been detained under the Maintenance of Internal Security Act, and as such could not come for filing rejoinder affidavits. Others, it was stated had also become scarce. In these circumstances adjournment was prayed for and granted. Subsequently, on statement made by counsel, almost all the petitions were dismissed as withdrawn. The remaining were dismissed for want of prosecution, as neither counsel nor party appeared to press the petition. One of the petitions dismissed on such a statement was that of P.L Kapoor v. State of U.P W.P No. 1127 of 1976. in which the two petitioners in W.P No. 1446 of 1976 were parties. Subsequently, on application made, that the two petitioners had not given any instruction to their counsel to withdraw the petition on their behalf the order dismissing W.P No. 1127 of 1976 as respects the petitioners was rescinded. The present Petition i.e W.P No. 1446 of 1976 was filed as a matter of abundant caution. This judgment will, therefore, govern writ petition No. 1127 of 1976 and writ Petition No. 1446 of 1976 i.e the present petition.

4. Sri S.N Kacker counsel for the petitioners has contended that the decision in Sheo Pat Rat's case is still good law, as it has not yet been reversed by the Supreme Court, and that the decision of the Supreme Court in Nashirwar v. State of Madhya Pradesh and Har Shanker v. Deputy Excise and Taxation Commissioner should not be followed as they run counter to the decision of the Supreme Court in Saghir Ahmed v. State of Uttar Pradesh A.I.R 1954 S.C 728. and Krishna Kumar Narula v. State of Jammu and Kashmir A.I.R 1967 S.C 1368.. The contention has been adumbrated thus. It has been urged that every citizen has a right to trade or do business in foreign liquor, subject only to such reasonable restrictions as may be imposed by the State. It is urged that the State has no exclusive right to trade in foreign liquor, and this being so, it could not auction the right of retail or wholesale business in foreign liquor to the detriment of the petitioners. It is contended that the State enjoys only such rights as are conferred either by the Constitution or by a valid statute, and has no monopoly in doing trade, in foreign liquor, no such right has been conferred either by the Constitution or by a valid statute, Secs. 24-A and 24-B are ultra vires the powers of the State Legislature. In this context, it is urged that the basic assumption on which Sec. 24-A and Sec. 24-B have been promulgated viz. that the state has a franchise in foreign liquor is baseless, as under our constitution the doctrine of franchise has no place, and this being so, the State could not auction the right of retail sale and do wholesale business in foreign liquor.

5. Before referring to the decision of the Supreme Court touching the point, it will be useful to recaptulate what was deeded in the case of Sheo Pat Rai v. State of U.P. This Court held that levy on retail vend of foreign liquor by auction is in the nature of tax and cannot be justified as a fee under Sec. 31 of the U.P Excise Act. Referring to the competence of the State Legislature to pass the Ordinance in question in that case, it was held that the impose in question could not be levied either under Entry 51 list II or Entry of List II. In this connection, it was held that in as much as the imposition in question was in the nature of a tax, in view of the decision of the Supreme Court in the case of M.P.V Sunderamier and Co. v. State of Andhra Pradesh A.I.R 1958 S.C 468. the impost had to be justified with reference to some specific entry relating to imposition of tax of the nature sought to be imposed under the Ordinance. On a consideration of the nature of the levy sought to be raised, it was held that it was not referrable to any specific taxing entry in List II. It also repelled the contention on behalf of the State that the right to carry on business in intoxicant was a privilege or monopoly or a right of the State, and the State could permit any person to carry on such business and confer on him this special privilege, and in consideration thereof charge a price. This conclusion was based on the decision of Krishna Kumar Narula v. State of Jammu and Kashmir. This view was reached after distinguishing the decisions of the Supreme Court in the case State of Bombay v. F.N Balsara A.I.R 1951 S.C 318.; Cooverjee B. Barucha v. Excise Commissioner and Chief Commissioner, Ajmer A.I.R 1954 S.C 220. as also the case of State of Assam v. Sristikar Dowerah A.I.R 1957 S.C 414.. It was held that these cases only laid down was that restrictions could be imposed on the right of vend in retail or wholesale of foreign liquor, but that if any revenue was sought to be raised, that had to be justified with reference to some entry in the Legislative List; and there was no such entry which authorised the levy in question.

6. We will now immediately come to the decision of the Supreme Court in Nashirwar v. State of M.P and that of Har Shanker's4 case. In Nashirwar's case, the provisions of two State Acts had come up for consideration. One was the Central Provinces and Berar Excise Act, 1950 which had become applicable to the Madhya Pradesh as the Central Provinces Excise Act, 1950 and the other was the Abkari Act (Act No. I of 1077) which governed the appeals coming up from Kerala. In Madhya Pradesh, prior to April 1964 licences for sale of foreign liquor were granted by the excise authorities, under the fee per bottle system. In 1964-1965, the State decided that licence for foreign liquor would be disposed of by public auction to the highest bidder. Before embarking on this course, the Madhya Pradesh Legislature had amended the Excise Act, with the result that whereas formally the State could grant lease only in respect of country liquor, the amendment empowered the Government to grant lease to vend both foreign and country liquors. Sec. 17 of the Madhya Pradesh Act contemplated granting of licences for sale of liquor, and Sec. 18 empowered the State to grant a lease to any person on such condition and for such period as it thought fit permitting (a) the manufacturing or of supplying by wholesale or of both, or (b) of selling by wholesale or by retail, or (c) of manufacturing or of supplying by wholesale, or of both, and selling by retail liquor or intoxicating drugs within any specified area. The Abkari Act which prevailed in Kerala by Sec. 17 permitted the imposition of duty on liquor or intoxicating drugs. Sec. 18 conferred power on the Government to grant on condition for such period as it thought fit, the exclusive or other privilege of manufacturing or supplying by wholesale; or of selling by retail; or of manufacturing or supplying by wholesale and selling by retail any liquor or intoxicating drugs within any local area, on payment to the Government of an amount as rental in considration of the grant of such privilege. It was held that the amount of bid by public auction represented the consideration for the grant of such a right or privilege. The contention that a citizen had a fundamental right to deal in liquor raised on behalf of the appellant was rejected. Pointed reliance was placed on behalf of the appellant on Narula' case. The Court considered Narula's case and also Barucha's case as under:—

“17. This court is Narula's case referred to the decision in Barucha's case and the concurrence of this Court in Barucha's case with Crowley's11 case that there is no inherent light in a citizen to sell intoxicating liquor. In Narula's case this Court lead the observations of this Court in Bvarucha's case to have considered the inherent and fundamental right of a citizen to carry on business is sale of intoxicating liquor. Bharucha's case in no uncertain terms repelled the citizen's contention of inherent right to sell intoxicating Liquor. Bharucha's case is a constitution Bench decision. Narula's case is also a Constitution Bench decision. Narula's case cannot be said to have overruled Bharucha's case and on page 365 of the Report the Court summed up the reasons for holding that citizens do not have any fundamental right to carry on trade in liquor, and observed:—

“There are three principal reasons to hold that there is no fundamental right of citizens to carry on trade or to do business in liquor. First, there is the police power of the State to enforce public morality to prohibit trades in noxious or dangerous goods. Second, there is power of the State to enforce an absolute prohibition of manufacturer or sale of intoxicating liquor. Article 47 states that the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intox cating drinks and of drugs which are injurious to health. Third, the history of excise law shows that the State has the exclusive right of privilege of manufacture or sale of liquor.”

7. As regards the competence of the State Legislature to enact the law, the Lordships observed thus:—

“11. The State Legislature is authorised to make a provision for public auction by reason of power contained in Entry 8 of List II of the Constitution. That Entry empowers the State Government to legislate with regard to intoxicating liquor, that is to say, production, manufacture, possession, transport, purchase and sale of intoxicating liquor.”

8. The matter was considered at greater length by a Bench of five Judges in Har Shanker's case. After referring to the decisions in Cooverjee B. Barucha v. Excise Commissioner and Chief Commissioner, Ajmer; State of Assam v. Sristikar Dowerahu, State of Bombay v. F.N Balsara; Nagendra Nath Bma v. Commissioner of Hills Division A.I.R 1958 S.C 398. and Amar Chandra Chakraborty v. Collector of Excise, Government of Tripura, Agartala 1972 1 SCC 570, it was observed that the Constitution Benches in these cases, had held that no person had an absolute right to deal in liquor, and that all forms of dealing in liquor did not treat as a class by themselves, and a citizen did not either have a natural or a fundamental right to carry on trade or business in liquor. Coming to Narula's case, it was observed that a different note was struck by this Constitution Bench. The observations in Narula's case which led to these comments, are extracted in Har Shanker's case and were to the following effect:—

“We, therefore, hold that dealing in liquor is business and a citizen has right to do business in that commodity: but the State can make the law imposing reasonable restrict on the said right in public interest.”

9. Possibly their Lordships had also in mind, the following observations in Krishna Kumar Narula v. State of Jammu and Kashmir which are to the following effect:—

“13. A scrutiny of these decisions does not support the contention 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.”

10. The observation in Narula's case that a citizen has a fundamental right to trade in liquors were held not to be necessary for deciding the controversy raised and it was observed that the discussion of the point proceeded from the desire to clear the confusion arising from “different views” expressed by two Judges of Jammu and Kashmir High Court. The Constitution Bench in Har Shanker v. The Deputy Excise and Taxation Commissioner laid down the law relating to trade and intoxicating liquors in the following words:—

In our opinion, the true position governing dealings in intoxicants is stated and reflected in the Constitution Bench decisions of this Court in Balsara's case, Cooverjee's case. Kidwai's14 case, Nagendra Nathis case; Amar Chakraborty's case and R.M.D.C's15 case as interpreted in Harinarayan Jaiswal's16 case and Nashirwar's case. There is no fundamental right to do trade or business in intoxicants. 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. In ‘American Jurisprudence’ Volume 30, it is stated that while engaging in liquor traffic is not inherently unlawful, nevertheless it is a privilege and not a right subject to governmental control (page 538). 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 (pp. 539, 540, 541) Now, if we adopt the principles laid down in Nashirwa's case and Har Shanker's case the basis on which the decision in Sheo Paf Rai's case is given is no longer good, for these cases lay down firstly that a citizen has no fundamental right to trade in foreign liquor, and that the State could auction the right to vend by retail or whole sale foreign liquor by appropriate legislation, which would be justified under Entry No. 8 of List II.

11. Mr. S.N Kacker points out that as there is a conflict between Narula's case and Nashirwa's case and Har Shanker's case, this Court is free to choose between these two conflicting decisions. The Advocate General appearing on behalf of the State of U.P has contended firstly, that there is no such conflict, in as much as the Supreme Court has interpreted Narula's case in its subsequent decision in Har Shanker's case. It has also been contended that so far as competence of the State to pass the impugned amendment is concerned, that now stands finally settled by Nashirwa's case, and the legislation of such a character has been held to be falling under Entry No. 8 List II of the Second Schedule to the Constitution. It is also contended that so far as the legislative competence of the State to pass the impugned legislation is concerned, that is settled by Nashirwa's case and there is no conflict of authority on this point, as this point was not considered in Narula's case.

12. Now, with respect, it is not possible to hold that there is no conflict in the view taken in Narula's case and that taken in Nashirwar case and Har Shanker's case. We have already extracted the observations of the Constitution Bench in Narula's case, where it has been held that a person has a fundamental right to trade in liquor. The observation in Nashirwa's case and Har Shanker's case lay down that no such fundamental right exists. There is thus an obvious divergence of opinion on this point between a Bench of five Judges and two other benches, one of three Judges another of equal strength as the first one. In case the subsequent decisions had been by larger Benches, the present argument would not have been open to the petitioners.

13. Salmond on Jurisprudence 12th Edition considering such a situation on page 153 states:—

“Where authorities of equal standing are irreconcilably in conflict, a lower court has the same freedom to pick and choose between them as the schizopherenic court itself. The lower court may refuse to follow the later decision on the ground that it was arrived at per incuriam, or it may follow much decision on the ground that it is the latest authority. Which of these two courses the court adopts depends, or should depend, upon its own view of what the law ought to be. However, it takes a somewhat bold judge to disregard a precedent handed down by a court of higher standing on the ground that the decision was per incuriam.”

14. That Judges have in these circumstances embarked on such bold ventures is sought to be illustrated by the course taken by Lord Denning in Broome v. Cassell and Co. Ltd. 1971 2 All E.R 187.. Lord Denning in that case after taking the view that the remarks of Lord Delin in Rookes v. Barnard 1964 I All E.R 367. had been given per incuriam, posed the question as to the course to be adopted in such a case in the following words:—

“All this leads me to the conclusion that, if ever there was a decision of the House of Lords given per incuriam, this was it. The explanation is that the house, as a matter of legal theory, thought that exemplary damages had no place in the civil code, and ought to be eliminated from it; but, as they could not be eliminated altogether, they ought to be confined within the strictest possible limits, no matter how illogical those limits were. Yet I am conscious that, in all that I have said I may myself be at fault. Some will say that it is our duty to follow the house of Lords and not to question their decision. We are not to reason why. Ours is but to do and die. If this be so, then I turn to consider the case on the footing that we are bound by Rookes v. Barnard.” and then proceeded to hold that the decision in Rookes v. Barnard was unworkable and in the mean time directed that Judges should direct juries to decide in accordance with law as it was understood before Rookes v. Barnard which in the words of Lord Denning M.R was ‘settled.’

15. Fortunately for us, it is not necessary to adopt the course which Lord Denning did and meet the oppobrium of the Supreme Court, for the Supreme Court has laid down the limits of the applicability of the principle of per incuriam, in the case of Mamleshwar Prasad v. Kanhaiya Lai 1975 2 SCC 232. Their Lordships on p. 909 of the Report observed thus:—

“We need not debate, in the present case, this fresh ground to undermine otherwise conclusive judgments for other paramount rules governing justice administration prevail, as earlier indicated. But it is extremely significant that this facile theory was forowned upon by the House of Lords in Cassell and Ltd. v. Broome 1972 I All E.R 801. In that case the highest Court viz., the House of Lords.

“rejected in condemnatory terms the Court of Appeal's decision to the effect that the decision of the House of Lords in Rookes v. Barnard on the issue of exemplary damages had been reached per incuriam because of two previous decisions of the House. Lord Hailsham L.C in the course of the leading speech for the majority, asserted that.

‘it is not open to the court of Appeal to give gratuitous advice to judges of first instance to ignore decisions of the House of Lords in this way’

while Lord Reid took the view that it was ‘obvious that the Court of Appeal failed to understand Lord Devlin's speech. The per incuriam principle is of limited application. Very few decisions have subsequently been regarded as having been reached per incuriam and in Morelle v. Wekeling 1955 2 Q.B 379. a Master of the Rolls stated that such instances should be ‘of the rarest occurrence’, and should be limited to ‘decisions given in ignorance or forgetfulness of some inconsistent statutory provisions of some authority binding on the court concerned.’ Thus the doctrine will not be extended to cases Which were merely not fully argued or which appear to take a wrong view of the authorities or to misinterpret statute.”

16. In the present case, although in our humble view there is a direct conflict in the view expressed in Narula's case, and that in the subsequent decisions of the Supreme Court in Nashirwa's case and Har Shanker's case, in as much as in Har Shanker's case, the Supreme Court has held that the observations made in Narula's case were not necessary for the purposes of deciding the issue, it will not be wise to choose which case to follow. The statement of law on the joint in Nashirwar's case and Har Shanker's case is to use the words of Dais ‘reshaping the ratio decidendi’ (See page 82 on Dais on Jurisprudence Third Edition). Mr. Kacker also, vehemently argued that the entire hypothesis on which the Supreme Court held that the State has an exclusive monopoly in the trade of intoxicants based upon the doctrine of franchise which is not countenanced by the Constitution. In support of this contention, he has referred us to the case of Saghir Ahmed v. State of U.P and to the following observations on page 734 of the Report:—

“(12)” This identical point was investigated with considerable throughness in a recent decision of the Madras High Court ‘Vide C.S.S Motor Service v. State of Madras’22 and it was pointed out by Venkatarama Ayyar, J., who delivered the judgment of the court, that the rule of special or extraordinary use of highways in America had its roots in the doctrine of ‘franchise’ which is still a recognised institution in that country. The doctrine of ‘franchise’ or ‘privilege’ has its origin in English Common Law and was bound up with the old prerogative of the Crown. The doctrine continued to live in the American legal world as a survival of the pre-independence days, though in an altered form. The place of the royal grants under the English Common Law was taken by the legislative grants in America and the grant of special rights by legislation to particular individuals or companies is regarded there as a ‘franchise’ or ‘privilege’ differing from the ordinary liberties of a citizen.

17. The carrying on of transport buses by common carriers on the public road in America is a ‘franchise’ and not a common law right, which could be claimed by all citizens and a distinction is made, as the cases cited above will show, between contract carriers who carry passengers or goods under particular contracts and common carriers whose business is affected with public interest. Over the latter the State claims and exercises a plenary power of control. Ayyar, J. has, in our opinion, rightly pointed out that this doctrine of ‘franchise’ has no place in our Constitution. Under the Indian Constitution the contract carriers as well as the common carriers would occupy the same position so far as the guaranteed right under Article 19(1)(g) is concerned and both are liable to be controlled by appropriate regulations under clause (6) of that Article. The law on the point, as it stands at present has been thus summed up by the learned Judge:

“The true position, then is, that all public streets and roads vest in the State, but that the State holds them as trustees on behalf of the public. The members of public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways. The State as trustees on behalf of the public is entitled to impose all such limitations on the character and extent of the user as may be requisite for protecting the rights of the public generally;……… but subject to such limitations the right of a citizen to carry on business in transport vehicles on public pathways cannot be denied to him on the ground that the State owns the highways.”

“13. We are in entire agreement with the statement of law made in these passages. Within the limits imposed by State regulations any member of the public can ply motor vehicle on a public road. To that extent he can also carry on the business that the guarantee in Article 191(1)(g) is attached and a citizen can legitimately complain if any legislation takes away or curtails that right any more than is permissible under clause (6) of that article.”

18. Now if a citizen has a right to trade in intoxicants subject only to such reasonable restrictions as can be imposed by the State, we might have felt some difficulty in discovering the source from which the State claims a monopoly in the trade of liquor. It is undoubtedly true that a monopoly in a particular trade can be taken by an appropriate legislation, but that monopoly can be created only by appropriate legislation and if it takes away the fundamental right of a citizen to do a particular trade, compensation may have to be provided, as in the Motor Vehicle cases, for persons who are displaced from the business. No such legislation has been passed by the State Legislature. It is, however, no longer left in our domain, after the pronouncement of the Supreme Court case in Nashirwa's case and Har Shanker's case to express any opinion the point, as we feel ourselves bound by these decisions on the question in issue.

19. We are of the view that in view of the pronouncement of the Supreme Court Nashirwar's case and Har Shanker's case, the law in question has to be upheld as valid, as also the auction system adopted by the State to sell the right to vend foreign liquor in retail or wholesale by auction.

20. We, accordingly, dismiss both the petitions and discharge the stay orders. In the circumstances, there shall be no order as to costs.

21. Yashoda Nandan, J.:— I agree and have nothing to add to the conclusion that the writ petition be dismissed.

22. R.M Sahai, J.:—I agree with the judgment and reasoning of brother C.S.P Singh, J. that the writ petition should be dismissed. I would, however, like to add a few words of my own.

23. Controversy which arose in this petition appeared to be simple when it came up for admission before a Division Bench of which I was one of the member. It centered round certain distinction which were sought to be drawn in the provisions of M.P Excise Act and the U.P Excise Act and thereby attempt was made to steer clear of the two Supreme Court decisions reported in Nashirwar etc. v. State of Madhya Pradesh and Har Shanker v. Dy. E. and T. Commr. By the time the petition came up for hearing before the Full Bench, U.P Act No. V of 1976 was passed by the U.P Legislature enacting provisions more or less similar in line to the provisions contained in the M.P Excise Act and Kerala Abkari Act which were subject-matter of scrutiny in the two Supreme Court decisions. The amendment derived inspiration from observations made in these two judgments. The amended Act contains a provision in Sec. 24-B creating privilege in favour of the State in business of liquor by way of removal of doubts. It necessarily postulates that certain privileges existed in the State and it was only to remove any doubt that it was put in a shape of a section contained in an enactment. The word ‘privilege’ had been defined in Websters—A right or immunity granted as a peculiar benefit, advantage, or favour special enjoyment of a good or exemption from an evil or burden-prerogative such right or immunity attaching specially to a position of an office specially immunity from arrest in a civil case. Encyclopedia Britannica Vol. VIII 1973 Edition it is stated ‘privilege in Anglo American Law has atleast two meanings. The first is that of an exceptional power immunity or advantage enjoyed by a person or class; the second, in the United States in analogous to a constitutional right.”

24. The concept of privilege differed in different countries with its social and political evolution. In a monarchial system of Government every privilege vested in the King. With the development of society and the advent of Parliamentary system of Government, the privilege vested in the people in whom the sovereignity resides. The Parliamentary sovereignity is supreme but subject to the will of the people. The ultimate sovereign in the Indian Constitution is ‘the people’ as is clear by the preamble. They decided that they should be ruled by a written Constitution which in detail carves out the legislative field and made the Parliament or the State Legislature supreme in its sphere. To say that the Parliament the State Legislature or for that matter anybody has any privilege which is not contained in the Constitution would be negation of the principles enshrined in the Constitution. The privileges had been granted in the Constitution itself for instance to the President, Governor, Member of the Parliament while taking part in debates etc. But this cannot be understood to mean that there exists any undefined privilege in any body.

“The sovereignity of a State does not reside in the persons who fill the different Departments of the Government emanates, and who may change it at their discretion.” It was said by Pt. Jawaharlal Nehru while moving the Objective Resolution in the Constituent Assembly on December 13, 1946:—

“All power of authority of the sovereign independent India, its constituent part and organs of Government are derived from the people.”

25. None of the organs in the Indian Constitution that is the Parliament, the executive or the judiciary had any right, privilege or prerogative vested in them apart from what is enumerated in the Constitution. The concept of privilege was predominent in England and was developed in America in the form of doctrine of Franchise. But the doctrine has no application to our country. The argument advanced by Mr. Advocate General that the doctrine of Franchise applies in limited form so far of noxious trade in liquor etc. are concerned is not palatable. As pointed out by me above the privilege if any vests in the citizen and it is his right to carry on any trade or business but in the interest of public order, morality, social welfare that it has permitted the Parliament to make laws which may regulate, control and even prohibit. Merely because the nature of the trade is such that a citizen cannot be permitted to carry on at his will does, not mean that the privilege which vests in him stands transferred to the State.

26. Privilege or doctrine of Franchise have been rejected as non-existent in our System of Governance as early as 1954 by the Supreme Court in a decision reported in Saghir Ahmad v. State of U.P. It is not permissible to import the same.

27. Mr. Kakkar has strenuously urged that there is a clear conflict in the case of K.K Narula v. State of Jammu and Kashmir, Saghir Ahmad v. State of U.P with the principles laid down in the case of Nashirwa etc. v. State of M.P and Har Shanker v. Dy. E. and T. Commer.. He has implored us to follow the principle of pick and choose and has relief for this on a passage from Salmonds Jurisprudence which has been quoted in extenso in the judgment of my brother C.S.P Singh, J. He has urged that the Bench deciding the case of Nashirwa or Har Shanker's case should have referred the matter to a larger Bench in view of the decision in Narula's case. I agree with my brother C.S.P Singh that there is a conflict between the decisions as pointed out by Mr. Kakkar. But as has been argued by Mr. Advocate General the case of Narula was considered and thereafter the Supreme Court has laid down certain principles which are binding on us. The scope of judicial review in the High Court does not override the constitutional mandate contained in Article 141. Times out of number it has been pointed out by the Supreme Court that a Bench should not take upon itself to differ with another Bench of coordinate jurisdiction. The principle of precedents is the same for all judicial courts and applies with greater force in view of the binding effect of the judgment pronounced by the highest court of the country. The argument of Mr. Kakkar if accepted will set in motion judicial chaos. If would be contrary to the spirit contained in Article 141. It is not the threat of ‘frown’ but judicial propriety that impels me not to adopt the course which was adopted by Lord Denning or to accept the suggestion of Mr. Kakkar of ‘pick’ and choose’ as I am oath bound to decide in accordance with the Constitution. In the circumstances although I feel that there is a conflict in the various judgments given by the Supreme Court yet I have decided to agree with the judgment given by brother C.S.P Singh, J.

28. By the Court—We accordingly dismiss both the petitions and discharge the stay orders. In the circumstances there shall be no order as to costs.

29. Petitions dismissed.