Bombay High Court
Bhaga Baburao Lalge And Others vs The State Of Maharashtra And ... on 18 April, 2016
Bench: S.P. Deshmukh
1 WP-1012.16.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 1012 OF 2016
WITH
CIVIL APPLICATION NO. 3727 OF 2016
1. Shri Bhaga Baburao Lalge,
age: major, occup. Business,
CL-III Licence Holder, r/of
village Nighoj, Tq. Parner,
Dist. Ahmednagar
2. Shri Ramchandra Patilba Warad,
Age major, occup. Business,
Proprietor of Hotel Mulika,
FL-III License Holder at Nighoj,
R/of as above
3. Shri Vijay Popatrao Warad,
Age: major, occup. Business,
Proprietor of Hotel Vijay Palace,
FL-III License Holder at Nighoj,
R/of as above
4. Shri Raju Ramu Lalge,
Age: major, occup. Business,
Proprietor of Hotel Manthan,
FL-III License Holder at Nighoj,
R/of as above
5. Shri Sandeep Dnyandeo Lanke,
Age: major, occup. Business,
Proprietor of Hotel Sandeep,
FL-III License Holder at Nighoj,
R/of as above
6. Shri M/S S. G. Lalge,
through V. S. Lalge,
Age: major, occup. Business,
FL-III License Holder at Nighoj,
R/of as above
7 Shri Parshu Ram Agayya Bandiwa,
Age: major, occup. Business,
TD-I License Holder at Nighoj,
R/of as above .. Petitioners
::: Uploaded on - 12/05/2016 ::: Downloaded on - 29/07/2016 22:51:02 :::
2 WP-1012.16.doc
versus
1. The State of Maharashtra,
[Through Excise Department,
Mantralaya, Mumbai - 32]
2. The Collector, Ahmednagar,
Dist. Ahmednagar
3. The Superintendent, State Excise,
Parner,Tq. Parner, Dist. Ahmednagar
4. Nighoj Group Panchayat,
Through its Sarpanch at Nighoj,
Tq. Parner, Dist. Ahmednagar
5.
Tahsildar Parner, Tq. Parner,
Tq. Parner, Dist. Ahmednagar .. Respondents
-----
Mr. Anil H. Kasliwal, Advocate for petitioners
Mr. S.K.Tambe, Asstt. Govt.Pleader for respondents no.1 to 3 and 5
Mr. S. T. Shelke, Advocate for respondent no. 5
WITH
CIVIL APPLICATION NO. 3726 OF 2016
Kanta Navnath lanke and others .. Applicants
versus
The State of Maharashtra and others .. Respondents
---
Mr. P. R. Katneshwarkar, Advocate i/b Mr. A. G. Ambetkar, Advocate
for applicants
Mr. S.K. Tambe, Asstt.Govt. Pleader for respondent no.1 to 3 & 5
Mr. S. T. Shelke, Advocate for respondent no. 4
Mr. A. H. Kasliwal, Advocate for respondent no.6-orig. Petitioner
WITH
CIVIL APPLICATION NO. 4574 OF 2016
Priyanka Prashant Varal and others .. Petitioners
versus
The State of Maharashtra and others .. Respondents
::: Uploaded on - 12/05/2016 ::: Downloaded on - 29/07/2016 22:51:02 :::
3 WP-1012.16.doc
Mr. P. R. Katneshwarkar, Advocate i/b Mr. N.B. Patekar, Advocate for
applicants
Mr. S.K.Tambe, Asstt.Govt. Pleader for respondent no. 1 to 3 & 5
Mr. S. T. Shelke, Advocate for respondent no.4
Mr. A. H. Kasliwal, Advocate for respondent no.6-orig. petitioner
CORAM : SUNIL P. DESHMUKH, J.
DATE : 18TH APRIL, 2016
ORAL JUDGMENT:
1. Rule.
Rule made returnable forthwith. Heard learned
counsel for parties finally, by consent.
2. Learned counsel for the parties have addressed
themselves at quite some length.
3. The effort of the learned counsel for petitioner Mr. Kasliwal
is that any further action closing down liquor shop of petitioners
at village Nighoj with reference to the resolutions which are
appended to writ petition at Exhibit - B-1 collectively, should be
quashed and set aside and the communication dated
20-01-2016 issued by respondent no. 5 - Tahsildar holding
election for said purpose be also quashed and set aside.
4. Learned counsel for petitioner submits that reference to
the extracts of relevant clauses, to be precise, clauses 3 and
3A of the Bombay Prohibition (Closure of licence on Resolution
4 WP-1012.16.doc
by Gram Sabha or representation by Voters in the Ward of
Municipal Council/Corporation) Order, 2008 with amendments,
thereto of 2009 issued by Home Department annexed as Exhibit-
A to writ petition at paperbook page 25 would be pertinent.
Clause 3 of order dated 25-03-2008 and clause 3A added to the
same by order dated 12-02-2009 respectively read as under:
'' 3. Resolution by Gram Sabha for closing down liquor shop:-
1) The Collector shall close down such liquor shop if not
less than fifty per cent of the total voters or women voters
present in the Gram Sabha, pass the resolution by a
simple majority for closing down the liquor shop. Any
such resolution shall be passed in accordance with the
Bombay Village Panchahayats Act, 1958 (Bom. III of
1959) and rules made thereunder. The voters shall
produce their photo identity before the Gram Sabha for
verification as the voter is resident of the same village. If
photo identity is not produced, under such circumstances
the Secretary of Panchayat shall certify regarding the
bonafide of voters. The voters, those produce such proofs,
shall be allowed to participate in Gram Sabha.
2) The verification of voters shall be done by the Block
Development Officer along with the Inspector of State
Excise of the area. The Gram Sabha shall be held in the
presence of these two officers and representative of the
liquor licence holder. There shall be video shooting of
such Gram Sabha and said shooting shall be used as an
evidence.
5 WP-1012.16.doc
3) The Collector shall not take into consideration the
resolution passed by the Gram Sabha for reopening of
shop at least one year from the date of passing resolution
for closure of shop. If the Gram Sabha fails to pass the
resolution for closure of liquor shop then at least one year,
Gram Sabha shall not pass any such resolution for closure
of shop.
(3A) If, not less than Twenty-five per cent of the women voters or
total voters in any village give a representation in writing to the
concerned Superintendent of State Excise and demand to close
down the liquor shop in a village, such application shall be verified
by the Superintendent of State Excise. After verification of
authenticity of signature on the representation and its genuinity, the
Collector shall direct the concerned Tahsildar, to take secret poll
fearlessly by utilizing a specimen ballot paper appended herewith.
Thereafter, the concerned Tahsildar shall declare place, date and
time of election at least seven days in advance. The latest list of
voters shall be used for such election. The election process of
voters of that concerned village shall be completed by secret ballot
under the supervision of the concerned Tahsildar or an Officer not
below the rank of Naib Tahsildar, authorized by him. The
representative of Superintendent not below the rank of Inspector of
State Execise and the liquor licensee shall be allowed to remain
present during the poll. If, in such election more than fifty per cent
of the women voters or total voters of the concerned village vote for
closing down the liquor shop, the Collector shall pass an order for
closing down such liquor shop. "
6 WP-1012.16.doc
5. He submits, having regard to clause 3(3), since the
resolutions are untenable they shall be deemed to have failed
and accordingly no further resolution for about one year could be
possible.
6. On the other hand, learned counsel appearing for
respondents, particularly learned Assistant Government Pleader
Mr. Tambe exerts himself to state that clause 3 in the present
matter is of little consequence.
7. He submits that factually, the elections are relevant for the
matter. Referring to clause 3A, it is submitted that requirement
thereunder for passing resolution to close down liquor shop is
that more than fifty per cent of the women voters or total voters
should vote in favour of closure of such shop.
8. He submits that the contentions being advanced with
reference to clause 3 are not tenable and tend to obfuscate the
factual position. No regard should be given to any contention
with respect to clause 3. As a matter of fact, proceedings are
being prosecuted pursuant to clause 3A and that the election
pursuant to the same were tried to be held.
9. The learned Assistant Government Pleader fairly points out
that the prescribed procedure pursuant to aforestated clause
7 WP-1012.16.doc
(3A) of government order dated 25-03-2008 and 12-02-2009
has not been followed and there is some lacunae in the election
held on 27-01-2016.
10. He submits that the elections concerned could not be held
in accordance with rules and there had been lot of deficiency,
lacunae and irregularities in conduct of the same and the
proceedings could not adhere to procedure as per clause 3A.
11.
The learned Assistant Government Pleader submits that
having regard to the prayers in writ petition, it can be said that
writ petition has been rendered infructuous. He, therefore,
requests to dismiss writ petition and requests for liberty to follow
required procedure for election pursuant to clause 3A of
aforesaid Orders of 2008 and 2009. Mr. Kasliwal, learned
counsel for the petitioners, however, opposes such a request.
12. In the present case, apart from deficiencies, lacunae and
irregularities as are emerging from the report submitted on
18-01-2016 by the Superintendent, State Excise Department,
Ahmednagar to the Collector [page 193 of compilation of
documents separately submitted], there appears to be non
compliance of relevant criteria as is apparent from concluding
part of said report.
8 WP-1012.16.doc
13. The learned Assistant Government Pleader during the
course of his arguments has referred to decision of division
bench delivered at Nagpur in Writ Petition No. 1360 of 2015
[Rajendrakumar s/o Shailendrakumar Dixit and others vs.The State of
Maharashtra and others] and companion writ petitions, and
particularly emphasizes paragraph no. 37 of the same which
states that if the occasion arises, it would be open for the
authorities to follow the required procedure.
14. It has further been submitted that keeping in view the
purport underlying the order dated 12-02-2009, respondents
are of the view that fresh elections be hend consistent with the
procedure prescribed in the orders dated 25-03-2008 and
12-02-2009 and that no such specific order could possibly be
passed due to pendency of writ petition.
15. In view of aforesaid, the position emerges that the
substantial purpose underlying the petition gets worked out and
as such, writ petition would not require any further prosecution.
16. It is for the respondents to decide upon the course of
action to be followed, in accordance with and keeping in view the
object and intent underlying the relevant clauses and to follow
the procedure required therefor. In such a case, it would be
9 WP-1012.16.doc
open for the petitioners to defend the same in accordance with
facts and law.
17. With aforesaid, writ petition stands disposed of. Rule
stands discharged.
18. In view of aforesaid, intervention applications have also
been rendered unnecessary and accordingly stand disposed of.
SUNIL P. DESHMUKH,
JUDGE
pnd
