Baburao Sidhu Jadhav (Patil) vs State Of Maharashtra, State ...
2003 Latest Caselaw 551 Bom

JUDGMENT

C.K. Thakker, C.J.

1. Rule. Mr. R.M. Patne, learned Assistant Government Pleader, appears and waives service of notice of Rule on behalf of the State of Maharashtra. Mr. Uday Warunjikar, learned Counsel, appears and waives service of notice of Rule on behalf of Respondent Nos. 6 to 10 in Writ Petition No. 7476 of 2002. Mr. H.G. Wakshe, learned Counsel, appears and waives service of notice of Rule on behalf of Applicants in the Civil Application No. 641 of 2003.

2. In the facts and circumstances, both the matters have been taken up for final hearing forthwith.

3. We have heard the learned counsel for the parties.

4. In these the petitions, two actions have been challenged by the petitioners; (i) Legality and validity of Circular dated 19th September, 2002 issued by the Home Department of the State of Maharashtra, and (ii) Individual orders passed against the petitioners.

5. So far as the circular is concerned, it lays down procedure for closure of country liquor (foreign liquor) licences in the area of village/Municipal Council/Wards of Corporation, etc.

6. In our opinion, the circular cannot be said to be illegal, unlawful or unconstitutional on several grounds.

7. Firstly, we may refer to the relevant provisions of the Constitution. Article 47 of the Constitution, which is in Part-IV of the Constitution (Directive Principles of State Policy), requires the State to raise the level of nutrition and the standard of living and to improve public health. It, inter alia, declares that the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injuries to health.

8. Moreover, Part-IX (The Panchayats) of the Constitution is equally important. Article 243-A provides for powers of Gram Sabha. It states; "A Gram Sabha may exercise such powers and perform such functions at the village level as the Legislature of a State may, by law provide".

9. Now, the Bombay Prohibition Act, 1949 (hereinafter referred to as "the Act") specifically provides certain contingencies under which an action for cancellation of licence can be taken. Our attention, in this connection, was invited by the learned counsel to Sections 54 and 56 in particular. Section 54 deals with cases in which power to cancel or suspend licences and permits can be exercised by the authority. Whereas Clauses (a) to (e) of Sub-section (1) deal with specific and individual cases, Sub-section (3) provides that 'notwithstanding anything contained' in the said section, the State Government may, for reasons to be recorded in writing, suspend or cancel any licence, permit, pass or authorisation. It is, therefore, clear that so far as Sub-section (3) is concerned, it is very widely worded and the power to suspend or cancel a licence can be exercised irrespective of circumstances enumerated in Clauses (a) to (e) of Sub-section (1). Such power can be exercised, of course, legally, reasonably and in consonance with well-established principles of law.

10. Section 56 provides cancellation for other reasons. It reads as under:

"56(1) Whenever the authority granting a licence, permit, pass or authorisation considers that it should be cancelled for any cause other than those specified in Section 54, he may cancel it either-

(a) On the expiration of not less than fifteen days notice in writing of his intention to do so; or

(b) forthwith without notice, recording his reasons in writing for doing so.

(2) Where a licence, permit, pass or authorization is cancelled under Sub-section (1), a part of the fee for the licence, permit, pass or authorization proportionate to the unexpired portion of the term thereof and the deposit made by the holder thereof in respect of such licence, permit, pass or authorization shall be refunded to him after deducting any amount due from him to the State Government."

11. By the Bombay Prohibition (Amendment) Act, 1997 (Act 46 of 1997), Section 11-A has been inserted which reads thus:

"11-A Power of Gram Sabha to enforce prohibition or to regulate or to restrict the sale and consumption of any intoxicant-Notwithstanding anything contained in Section 11 or any other provisions of this Act, in respect of any Scheduled Area falling within the jurisdiction of a Gram Sabha and a Panchayat or a Panchayat Samiti or a Zilla Parishad, as the case may be, it shall be competent for such Gram Sabha or a Panchayat or the Panchayat Samiti or the Zilla Parishad to enforce prohibition or to regulate or restrict the sale and consumption of intoxicant in Scheduled areas within its jurisdiction:

Provided that, the decision taken by majority of the Gram Sabha concerned by passing a resolution in the above matter shall be binding on the concerned Panchayat Samiti or the Zilla Parishad as the case may be.

Explanation:- For the purpose of this section.-

(i) the expression "Gram Sabha" "Panchayat" and "Scheduled Areas" shall have the meanings, respectively assigned to them in the Bombay Village Panchayats Act, 1958 Bom. III of 1959;

(ii) the expression "Panchayat Samitis" and "Zilla Parishads" shall have the meanings respectively, assigned to them in the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (Mah. V of 1962)."

12. The learned counsel for the respondents also referred to Section 139 of the Act which reserves certain powers in the state Government in respect of licences. It starts with a non-obstante clause. Sub-section (1) of Section 139 declares that notwithstanding anything contained in the Act or the Rules made thereunder, the State Government may prohibit the grant of any kind of licences, permits, passes, authorisations throughout the State or in any area. Clause (n) enables the State to issue other instructions in any matter pertaining to the grant or otherwise of licences, permits, passes or authorisations under the Act, as the State Government may deem proper.

13. By keeping in view the provisions of law, guidelines and principles have been laid down by the State in issuing a Circular dated September 19, 2002. It has been provided as to in which cases an action for cancellation and/or non-grant of liquor/beer bar licence can be taken. In our opinion, such circular cannot be held or declared illegal or contrary to law.

14. Constitutional validity of Section 139(1)(a) has been challenged and the challenge has been turned down by this Court (vide S.M. Mallewar and Ors. v. State of Maharashtra and Ors., 1993 MhLJ 685). Regarding exercise of power under Section 56(1)(b) of the Act, the point is concluded by a decision of the Division Bench of this Court in State of Maharashtra and Ors. v. Doburg Lager Breweries Pvt. Ltd., 1996 (2) MhLJ 449 wherein it was held that such powers can be exercised without observing principles of natural justice in certain circumstances.

15. Since the provisions cannot be said to be ultra vires as also administrative guidelines must be held to be in consonance with the above principles, the Circular cannot be held unlawful, arbitrary or otherwise unreasonable.

16. The second question relates to individual action taken by the authorities against the petitioners. Now, so far as Writ Petition No. 7476 of 2002 is concerned, it is clear from the record that on 30th December, 2002, an order was passed, which is impugned in the present petition. The said order states that on 25th December, 2002, a meeting of the women voters of the village was convened and in consonance with Clause 4 of the Circular dated 19th September, 2002, a decision was taken to close liquor shop. The said clause provides that if 25 per cent of the women voters demand for closure of a liquor shop, then the Collector shall direct the respective Tahsildars to take secret voting in order to insure voting by free will and take appropriate action.

17. In the instant case, it is clear from the order, Exh.C; dated December 30, 2002 that total women voters were 1860. 1397 women voters remained present. 1269 votes had been cast demanding closure of liquor shop and only 75 votes were against such closure. In view of the above fact, in our opinion, it cannot be said that the action taken by the authorities can be held illegal or contrary to law. On the contrary, it is in consonance with Clause 4. Hence, Writ Petition No. 7476 of 2002 deserves to the dismissed and is accordingly dismissed. Rule is discharged. No costs. Ad-interim relief is vacated.

18. Insofar as Writ Petition No. 1137 of 2003 is concerned, the Commissioner, respondent No. 2, did not finally decide the point one way or the other observing therein that since an order was passed by this Court in Writ Petition No. 7476 of 2002, in absence of any other order by the High Court, it would not be appropriate to make any order. The appellant was asked to approach this Court. The appeal was accordingly disposed of. Now, the petitioner-appellant of that appeal is here.

19. In view of the fact that there is no final decision of the Commissioner as to how the decision was taken, in our opinion, it would be appropriate, if we direct the Commissioner-Respondent No. 2 to take an appropriate decision after considering the facts of the case. Let such decision be taken within four weeks from today. The petitioner is directed to remain present on 5th May, 2003. Let Sarpanch of village Junoni or any authorised representative also present on that day so as to enable Respondent No. 2 to take appropriate decision within the stipulated period. It is also open to Smt. Sajabai Balu to remain present on that day. The second respondent will take appropriate decision after hearing all the parties.

20. Rule is partly made absolute in Writ Petition No. 1137 of 2003 to the extent indicated above. No order on the Civil Application No. 641 of 2003 and the same is accordingly disposed of. Interim relief is vacated. No order as to costs.

Parties be given copies of this order duly authenticated by the Sheristedar/Private Secretary.