Bombay High Court
Nilawati Ganpat Kannalwar vs The State Of Maharashtra Through ... on 23 November, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No.3390 of 2015
with
Writ Petition No.3391 of 2015
with
Writ Petition No.3392 of 2015
with
Writ Petition No.3393 of 2015
1) Writ Petition No.3390 of 2015 :
Ramkisan s/o. Motilal Jaiswal,
Aged about 63 years, Occ.
Business, r/o. Parwa, Tq.
Ghatanji, Distt. Yavatmal. .... PETITIONER
//Versus//
1. The State of Maharashtra,
through its Secretary,
Department of Excise,
Mantralaya, Mumbai-32.
2. The Commissioner of State Excise,
Old Custom House,
Fort, Mumbai.
3. The Collector,
State Excise,
Yavatmal.
4. The Superintendent,
State Excise,
Yavatmal. .... RESPONDENTS
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_______________________________________________________________
Mr.Abhay Sambre, Advocate for the Petitioner.
Mrs.Bharti Dangre, G.P. with Ms S.Z.Haidar, AGP
for Respondent Nos. 1 to 4.
_______________________________________________________________
****
2) Writ Petition No.3391 of 2015 :
Smt. Vimlabai w/o. Krushnakumar Jaiswal,
Aged about 71 years, Occ.
Business, r/o. Parwa, Tq.
Ghatanji, Distt. Yavatmal. .... PETITIONER
//Versus//
1. The State of Maharashtra,
through its Secretary,
Department of Excise,
Mantralaya, Mumbai-32.
2. The Commissioner of State Excise,
Old Custom House,
Fort, Mumbai.
3. The Collector,
State Excise,
Yavatmal.
4. The Superintendent,
State Excise,
Yavatmal. .... RESPONDENTS
_______________________________________________________________
Mr.Abhay Sambre, Advocate for the Petitioner.
Mrs.Bharti Dangre, G.P. with Ms S.Z.Haidar, AGP
for Respondent Nos. 1 to 4.
_______________________________________________________________
******
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3) Writ Petition No.3392 of 2015 :
Nilawati Ghanpat Kannalwar,
Aged about 50 years, Occ.
Business, r/o. Parwa, Tq.
Ghatanji, Distt. Yavatmal. .... PETITIONER
//Versus//
1. The State of Maharashtra,
through its Secretary,
Department of Excise,
Mantralaya, Mumbai-32.
2. The Commissioner of State Excise,
Old Custom House,
Fort, Mumbai.
3. The Collector,
State Excise,
Yavatmal.
4. The Superintendent,
State Excise,
Yavatmal. .... RESPONDENTS
_______________________________________________________________
Mr.A.R.Sambre, Advocate for the Petitioner.
Mrs.Bharti Dangre, G.P. with Ms S.Z.Haidar, AGP
for Respondent Nos. 1 to 4.
_______________________________________________________________
******
4) Writ Petition No.3393 of 2015 :
Rashmi Satyandra Jaiswal,
Aged about 30 years, Occ.
Business, r/o. Plot No.50/2,
Mohada, Tq. Kelapur,
Distt. Yavatmal. .... PETITIONER
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//Versus//
1. The State of Maharashtra,
through its Secretary,
Department of Excise,
Mantralaya, Mumbai-32.
2. The Commissioner of State Excise,
Old Custom House,
Fort, Mumbai.
3. The Collector,
State Excise,
Yavatmal.
4. The Superintendent,
State Excise,
Yavatmal. .... RESPONDENTS
_______________________________________________________________
Mr.Abhay Sambre, Advocate for the Petitioner.
Mrs.Bharti Dangre, G.P. with Ms S.Z.Haidar, AGP
for Respondent Nos. 1 to 4.
_______________________________________________________________
CORAM : B.R. GAVAI &
V.M. DESHPANDE, JJ.
DATED : November 23, 2016.
ORAL JUDGMENT (Per B.R. Gavai, J)
1. Rule. Rule is made returnable forthwith. Heard by consent.
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2. The petitioners have approached this Court being aggrieved
by communication dt.31.3.2015 issued by respondent no.4 directing the
petitioners to furnish the resolution of Gram Sabha thereby resolving to
grant No Objection for renewal of petitioners' licences. The petitioners
have prayed for a declaration that the provisions under Rule 4 of the
Maharashtra Panchayat Extension to Scheduled Area (Prohibition and
Regulation of Licensing) Rules, 2015 (hereinafter referred to as "the
Rules of 2015") are not applicable for renewal of the licenses which are
in existence prior to the coming into force of the said Rules.
3. All the petitioners are holding country liquor CL-III/FL-II
licenses in Ghatanji taluka, District Yavatmal. Undisputedly, the
petitioners are running their business in the areas which falll under the
Scheduled Areas declared for the State of Maharashtra by the President
under Article 244 of the Constitution of India and are, therefore,
administered and controlled as per Schedule V appended to the
Constitution.
4. On 24.12.1996, the Parliament has enacted the Panchayats
(Extension of the Scheduled Areas) Act, 1996 (hereinafter referred to as
"the PESA Act") extending application of the provisions of Part IX of the
Constitution of India to the Scheduled areas. The State Legislature has
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also made certain provisions in the Maharashtra Village Panchayats Act,
1958 for Gram Sabha and for giving effect to the features enumerated in
Section 4 of the PESA Act. The said provision also includes matter
relating to prohibition and regulation of intoxicants in the village to be
dealt by the Gram Sabha of the Village.
5. In pursuance of the provisions under the PESA Act and the
amendment to the Maharashtra Village Panchayats Act, 1958, the State
Government has notified the said Rules. As per the provisions of the
Maharashtra Prohibition Act, 1949 and the Rules framed thereunder, the
licences granted to the petitioners are renewable on year to year basis.
Accordingly, the petitioners have applied for renewing their licences for
the period from 1.4.2015 to 31.3.2016. When the cases of the
petitioners were being considered for renewal, the impugned
communications came to be addressed. Being aggrieved thereby, the
present petitions.
6. Mr.Abhay Sambre, learned Counsel for the petitioners
submits that perusal of the Rules itself would reveal that the said Rules
are not applicable to the licences which are already in existence. The
learned Counsel submits that No Objection of the Gram Sabha as
contemplated under sub-rule 4 will be applicable only if the license is
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granted after commencement of the said Rules.
7. Mrs. Bharti Dangre, learned Government Pleader vehemently
contended that the interpretation placed by the learned Counsel for the
petitioners is totally incorrect. She submits that the Rules are framed in
order to give effect to the provisions under the PESA Act empowering
the Gram Sabhas to decide as to whether manufacturing or selling of
liquor should be permitted in their areas or not. The learned
Government Pleader submits that applying the rule of Pragmatic
interpretation, the Rules should also be applicable to all such licences
which provide for manufacturing or selling of liquor if they fall within
the Scheduled areas.
8. For appreciating the rival contentions, it will be appropriate
to refer to Rules 3 and 4 of the Rules of 2015, which read thus :
"4.Before the expiry of the license so granted, the Gram
Sabha resolution shall be required for its renewal. The
proposal for renewal of the license shall required to be
presented by the licensing authority, if the license
holder so applies, to the Gram Sabha, thirty days prior
to the date of expiry of the license. The Gram Sabha
shall convey its opinion in the form of a resolution on
the said application prior to the date of expiry of the
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licence."
"5.The Gram Sabha shall determine the quantity of
local traditional intoxicant that may be distilled or
brewed by the Scheduled Tribes residing in a village of
the Scheduled Areas for their consumption but not for
sale as mentioned in the Government Order, Home
Department No.BPA.0876/836(II)-PRO-3, dated the
28th April, 1981. "
9.
The first principle of interpretation is the principle of plain
and literal interpretation. Only when applying the first principle, the
Court is not in a position to interpret the Rules correctly, recourse can be
taken to the other principle of interpretation. As such, before considering
the submission of the learned Government Pleader that the principles of
pragmatic interpretation should be employed in the present case, we
have to find out as to whether the language used in the Rules is of such
a nature which is not in a position to give clear intention of the
Legislature.
10. Perusal of Rule 3 of the Rules of 2015 would reveal that
whenever the application for grant of licence regarding establishment of
unit for manufacturing of any intoxicant or for grant of licence regarding
trading of any intoxicant is received by the licencing Authority, it is the
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duty of such licencing Authority to give intimation to the Panchayat of
the concerned village. On such intimation being received, the Panchayat
is required to convene the Gram Sabha and convey its opinion in the
form of a resolution on the said application within a period of four
weeks from the date of receipt thereof. Sub-rule 3 of Rule 3 provides
that the resolution of the Gram Sabha shall be binding and final. Sub-
rule 4 thereof requires that, before expiry of licence so granted, the
Gram Sabha resolution shall be required for its renewal. It further
requires that the proposal for renewal of license is to be presented by the
licensing Authority to Gram Sabha thirty days prior to expiry of licence.
It further requires that the Gram Sabha shall convey its opinion in the
form of a resolution on the said application prior to the date of expiry of
licence. It could thus be seen that the words used in sub-rule 4 is "license
so granted". It could thus clearly be seen that the provisions of Rule 4
would be applicable to the licenses which are granted as per the
provisions of Rule 3. We, therefore, find that the interpretation as sought
to be made by the learned Government Pleader is not tenable.
11. The harmonious construction of Rules 3 and 4 would clearly
lead to the position that sub-rule 4 is applicable to the licenses granted
under sub-rule 3. Insofar as the contention of the learned Government
Pleader regarding right of Gram Sabha to decide as to whether selling of
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liquor in their areas should be permitted or not, the State Government
has already notified the Bombay Prohibition (Closure of License on
Resolution by Gram Sabha or representation by Voters in the Ward of
Municipal Council/Corporation), Order 2008 (hereinafter referred to as
"the Order of 2008"). If villagers of the Gram Sabha are opposed to
giving of licenses in their areas, such of the Gram Sabhas are very much
empowered to pass a resolution for closure of such licenses. However, in
our considered view, the said cannot be done under the Rules of 2015
and the same will have to be done under the Order of 2008.
12. In that view of the matter, the petitions succeed. The
impugned communications are quashed and set aside.
13. The respondents are directed to consider the application of
the petitioners for renewal of their licenses without insisting upon the
resolution of Gram Sabha giving 'No Objection' as required under Rule 4
of the Rules of 2015.
JUDGE JUDGE
jaiswal
