Depty Signal Mahila Mandal vs State Of Maharashtra And Ors.
2003 Latest Caselaw 142 Bom

JUDGMENT

R.G. Deshpande, J.

1. Rule returnable forthwith. The matter is taken up for hearing with the consent of the parties.

2. Heard Shri Jagtap, Advocate for the petitioner, Mrs. Jog, A.G.P. for respondents No. 1 to 3, and Mr. Sambre, Advocate for respondent No. 4

3. The petitioner Mahila Mandal of a locality known as "Depty Signal Mahila Mandal" (hereinafter referred to as "Mandal" for the purpose of brevity) has approached this Court challenging the order dated January 22, 2002 passed by the respondent No. 2 -Commissioner, State Excise, in Appeal No. 34 of 2001, whereby the learned Commissioner set aside the order dated January 9, 2002 passed by the Collector, Nagpur, whereby the Collector for State Excise-respondent No. 3 has directed the respondent No. 4 to shift his shop to some other area by making necessary application for permission to shift, because of objections raised by the residents of the locality.

4. The petitioner Mandal through its President Smt. Chandrakalabai Thakur appeared to be alert and vigilant about social problem muchless which are created because of establishment or installation of Country Liquor Shops in the residential locality that too thickly populated. A passing reference at this stage, has to be made to a point that the area in which the shop of the respondent No. 4 is allowed to be started and is doing the business as on today is situated in the colony, which is inhabited by majority of economically unsound people and lower middle class people. The petitioner Mandal's contention is that in spite of objections, the shop of respondent No. 4 was allowed to be located in Ward No. 30, Lakadganj, Nagpur, which does jts business under the licence CLAUSE III,

5. It is clear that the residents of the locality and precisely those who have the social problems including that Mandal, who are also the members of the present petitioner Mandal filed a complaint before the Collector on November 24, 2001 requesting to close the said shop as since the starting of shop in question, many many problems are being created including that of safety of womenfolk. The document, which is at Annexure-II on Page No. 13 of the petition speaks volumes about it and the problems faced by the people in the locality. Unsocial elements were increased and how this unsocial elements harmed the society need no more clarification.

6. The respondent No. 3 appeared to have taken cognizance and rightly so of the complaint. The members of the petitioner were called for hearing by the Collector on December 1, 2001 whereafter the Collector passed the order bearing No. CLR. 1101/12592/11 dated 9th January, 2002, whereby the Collector after having referred to the complaint and the contents thereof reached to the conclusion that running and conducting of business of country liquor shop by the respondent No. 4 is likely create law and order situation in the locality. The Collector appeared to have also obtained necessary report from the Police Authority before passing order and then reached to the conclusion directing the respondent No. 4 to shift his shop somewhere else by making necessary application in that respect. This order passed by the Collector is in accordance with the provision of Section 142 of Bombay Prohibition Act, 1949.

7. Section 142(i) of the Act specifically referred to the opinion formed by the Collector and that the opinion has to be formed keeping in view the public interest as regards the public peace, and this section further empowers the Collector even to close down such a sale of intoxication for a particular period as would be directed by him. While passing this order, the Collector rightly sought support from Rule 27 of Maharashtra Country Liquor Rules, 1973. Exercising the powers under these two provisions of the Statute and the Rules thereunder, Collector exercised his discretion ordering respondent No. 4 to keep the shop close with immediate effect till March 31st, 2002 or till it is shifted to some other place.

8. The order of the Collector passed on January 9, 2002 was the subject matter of Appeal before the respondent No. 2 Commissioner of State Excise, Maharashtra State, Mumbai. This Appeal appeared to have been preferred in accordance with the provisions of Section 137 of the Bombay Prohibition Act, 1949. Section ,137 talks about the Appellate Authorities as per their hierarchy and the order passed by the Commissioner in Appeal, however is directed to be final order. This Appeal was registered on the file of the Commissioner as Appeal No. 34/2001 and the respondent No. 2-Commissioner, State Excise, who dealt with the Appeal by his order dated January 22, 2002, allowed the Appeal setting aside the order passed by the Collector and permitted the respondent No. 4 to run his country liquor shop at the place where it is.

9. Dissatisfied with the decision of the Appellate Authority, the petitioner Mandal has approached this Court for redressal of their grievance under Articles 226 and 227 of Constitution of India. Shri Jagtap, the learned counsel appearing for the petitioner-mandal scathingly assailed the order initially on substantial law point contending that the respondent No. 2 Commissioner erred in law in entertaining the very appeal itself, as no Appeal was provided against the order passed by the Collector exercising his powers under Section 142 of the Bombay Prohibition Act, 1949 read with Rule 27 of the Maharashtra Country Liquor Rules, 1973. Shri Jagtap, the learned counsel for petitioner invited my attention to the provision of Section 142, precisely Sub-section (3) thereof. Sub-section (3) of Section 142 of the Act, is as under:--

"Sub-section (3)" - "Any order given under this section shall be final"

10. Relying heavily on the particular provision of the Act, Shri Jagtap, Advocate, contended that the order passed by the Collector under Section 142(1) or (2) is an order which has been given finality by the Act itself and hence such an order is immuned from challenge under Section 137 of the Act, which provides for Appeal. I see considerable force in this argument of Shri Jagtap, advocate and naturally the challenge raised by Shri Jagtap, Advocate that the order passed by the respondent No. 2 Commissioner is without jurisdiction, is definitely worth considering.

11. Mrs. Jog, the learned A.G.P. appearing for respondents No. 1 to 3 rather found it difficult to support the order of the respondent No. 2 and a feeble attempt made by her to anyhow defend the order definitely appeared to be frustrated. Shri Sambre, the learned counsel appearing for respondent No. 4, no doubt opposed the matter tooth and nail and contended that Section 137 of the Act which talks about the Appellate Authority and its powers, makes it clear that as per echelon, Commissioner is the Appellate Authority for any orders passed by the Collector under the Act. Shri Sambre, advocate, therefore, further contended that even an order passed under Section 142 of the Act could be said to be an appealable order under Section 137 of the Act. Shri Sambre Advocate wanted to contend that Section 137 includes any order passed by the Collector. This argument of Shri Sambre, Advocate is very hard to digest. If at all the Legislature wanted to make the order under Section 142 an appealable then the Legislature would not have introduced Sub-section (3) in Section 142 of the Act. Sub-section (3) is a specific provision giving finality to the order passed by the Collector under Section 142 of the Act. Even otherwise if at all any order passed by the Collector is allowed to be treated an appealable one under Section 137 then this provision of Section 142 in ordinary course would have been introduced in the Act somewhere but definitely before 137 of the Act. Section 142 appears much after Section 137 which therefore, makes it clear that the Legislature intended to carve out separate powers under Section 142 and that too not appealable; taking into consideration that those were emergency powers, as is clear from the wordings of Section 142(1) and (2). I have no slightest doubt that the Legislature wanted to give finality to this order as is given by Sub-section (3) of Section 142 of the Act. The principle of interpretation of statute clearly embodies that till there is no other scope than to understand a particular provision in any other manner, then that provision of law has to be strictly read and interpreted in that fashion only. If a provision is differently carved out from the remaining provisions of the Act, then that has to be interpreted strictly keeping in view the very purpose of introduction of the Act in the statute.

12. It has to be always remembered by the authorities interpreting statutory provisions that when the words of the statute are clear, plain or unambiguous reasonably susceptible to only one meaning, the Court are bound to give effect to that meaning, irrespective of the consequences. I am fortified in this view by the observations of Tindal C. J. in one of his judgment, which are as under :--

"If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the law giver."

Keeping in view these observations, I, without slightest vacillation of mind, hold that the order passed by the Commissioner-respondent No. 2 in Appeal No. 34 of 2001 is without jurisdiction.

13. So far as regards merits of the matter are concerned, Shri Sambre, Advocate contended that the petitioner has approached this Court with unclean hands. Shri Sambre, Advocate further contended that in the very same locality and within the very close vicinity of present shop, there is yet another shop run by Smt. Laxmibai Kailas Gupta. Shri Sambre, Advocate further contended that petitioner has not raised any objection for that shop. According to Shri Sambre, Advocate, the said Smt. Laxmibai Kailas Gupta, who is trying to put the gun on the shoulder of the present petitioner Mandal so as to eliminate the competition in her business. But for this bare and bald statement during the course of argument, I do not see any material on record to draw that inference, which Shri Sambre, Advocate, wants this Court to draw. In reply to this argument of Shri Sambre, Advocate, for respondent No. 4, Shri Jagtap, Advocate appearing for the petitioner invited my attention to the order of this Court passed earlier on October 10th, 2002, whereby this Court has already directed the Authority concerned under the Act, to look into the matter and consider the case and pass appropriate orders in respect of that shop also. In view of this specific direction given by this Court to the Collector-respondent No. 3, this Court put a question to the learned A.G.P. as to what are her instructions in the matter and what the respondent No. 3 has done up-till-now in that matter. Mrs. Jog, the learned A.G.P. expressed here inability to answer this question immediately as she was not having ready instructions with her in that matter. This Court would not dilate on that point except expecting the respondent No. 3 to take immediate appropriate steps in accordance with law in the matter preferably within 45 days of the communication of this order to the Collector, as the Collector has already consumed 14 months from the date of passing of that order dated October 10, 2002.

14. Shri Sambre, Advocate, further tried to contend that the present petitioner Mandal is not registered body and appeared to be an Association formed by the people of the locality, who are adversely interested to the respondent No. 4. Shri Sambre, Advocate, wanted to contend that it is an adversary litigation and this Court should restrain itself from entertaining the same or exercising the powers under Articles 226 and 227 of Constitution of India. Shri Sambre, Advocate, tried to contend that it should not be said to be a Public Interest Litigation as members of the Mandal are adversely interested. I am not ready to accept this argument for the very simple reason that whether the petitioner Mandal is adversely interested or not, is not clearly demonstrated by the respondent No. 4 in any way. Even otherwise this Court is of the clear opinion that once the matter is brought to the notice of the Court and if the Court is of the opinion that it really has something to do with the public interest irrespective of the parties involved therein, then in such a case this Court cannot turn Nelson eye to such matter. This Court has to take cognizance of the matter looking into the same independently, keeping in view the interest of both sides and then has to come to the conclusion as to whether the petition of the present type should be entertained or not. This Court is not shy of making it clear in this petition wherein decision of the Court definitely demanded in public interest. I have, therefore, no hesitation whatsoever in entertaining this petition and deciding the same on merits as I have already observed above.

15. I have earlier observed that it had become difficult for Mrs. Jog, A.G.P. to support the order or defend the order passed by the respondent No. 2. Mrs. Jog, the learned A.G.P. during the course of her argument stated that in one earlier unreported decision passed by the Aurangabad Bench of High Court of Judicature at Bombay, in Writ Petition No, 4807 of 2001, in the matter of Balaji Anandrao Durpade v. The State of Maharashtra and Anr., the Court had directed the Commissioner of State Excise, who had exercised powers under Section 137(2) of the Act, while dealing with the Appeal against order passed under Section 142 of Act, remanded the matter for fresh enquiry as according to Bench at Aurangabad the powers were not exercised strictly in accordance with the provision of Section 142, by affording an appropriate opportunity to the petitioner in that petition. With all curiosity, I have gone through that Judgment. However, it is clear from the said Judgment that point as regards the very jurisdiction of the respondent No. 2-Commissioner either was not agitated before the Bench or was not under consideration in any manner in that petition. I, therefore, see no substance in the contention of the learned A.G.P. that, that was the Judgment on the basis of which the present Appeal might have been entertained or decided by the respondent No. 2. In my opinion, the point involved in the present petition is absolutely different and which was not raised before the Aurangabad Bench.

16. In the circumstances, the order passed by the Commissioner has to be quashed and set aside and it is accordingly quashed and set aside. Order passed by the Collector is restored and has to be given effect too accordingly.

17. Rule is made absolute in the aforesaid terms. Cost of the petition shall be borne by the respondent No. 4.