Bombay High Court
Suresh Vishwanath Lade vs The State Of Maharashtra And ... on 14 September, 2016
Bench: T.V. Nalawade
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1714/2016
Suresh S/o Vishwanath Lade,
Age: 40 Years,Occu:Business,
R/o Nanand, Tq.Nilanga,
Dist.Latur. ...Petitioner..
Versus
1) ig The State of Maharashtra,
Through its Principal Secretary,
Excise Department,
Mantralaya, Mumbai 400 032.
2) The Commissioner of States Excise,
Maharashtra States, Fort, Mumbai.
3) The District Collector,
Excise Department, Latur,
Tq.& Dist.Latur.
4)
Shrikant S/o Nandkishor Ranjankar,
Age: Major ; Occu:Nil,
R/o: Latur,Tq. & Dist.Latur.
...Respondents...
.....
Shri V.B. Dhage, Advocate for petitioner.
Shri S.R. Yadav, AGP for respondent nos.1 to 3.
Shri U.R. Awate, Advocate h/f Shri S.B Talekar, Advocate
for respondent no.4.
.....
CORAM: T.V.NALAWADE, J.
DATE: 14.09.2016
ORAL JUDGMENT :
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1] The petition is filed to challenge the order
made by the Hon'ble Minister of Maharashtra State
Government (Excise Department) in Revision No.0915/RA-
177/EXE. By the order dated 9.12.2015, the Hon'ble
Minister has set aside the order made by the learned
Collector, by which he had allowed the shifting of the
business of sale of country liquor, which was being
carried out by the petitioner under CL-III licence. The
transfer was in the same District.
2] Both the sides are heard.
3] The application was made by the present
petitioner - the licence holder for granting permission
to shift his business from More Nagar locality, Latur, to
Kanheri locality of Latur. The ground was informed that
Machindra Shelke - owner of the premises where the shop
was run at More Nagar had asked the petitioner to vacate
the premises and so he wanted to shift the business to
other place belonging to Smt.Shakuntala Adhe. In support
of the case, the record in respect of permission granted
to Smt.Shakuntala Adhe to make the construction was
produced.
4] The application was given on 9.12.2014 and as
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per the procedure, reports of the Superintendent, Excise
Department and District Superintendent of Police, Latur
District, were called. By the report dated 18.3.2015,
the District Superintendent of Police informed that the
enquiry revealed that the persons of the locality where
the business was to be shifted, had strong objection as
the new place was situated in thickly populated area and
at the point where four roads were meeting and even
persons of various parties and organizations had
objection to start the shop at that place. It was also
reported that there was possibility of increase in the
incidents of accidents if the shop was allowed to be
started at the new place. Prior to that, report was
submitted by the District Superintendent of Excise, in
which he had also informed that various organizations had
taken objection for starting the shop at this place.
Atleast 14 organizations had taken the objection and
written complaints were collected. The Superintendent of
Excise Department had requested to take into
consideration the Police report also. In view of these
circumstances, the Collector had rejected the
application. This decision was challenged before the
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Commissioner of State Excise. The Commissioner remanded
the matter by making the order u/s 137(2) of the
Maharashtra Prohibition Act, 1949. After remand of the
matter, the Collector directly asked the petitioner to
deposit necessary fees for transfer and the fees was
paid. This order was then challenged directly before the
Hon'ble Minister. The Hon'ble Minister has considered
the circumstance like the Police report of aforesaid
nature and the objections of the residents of the
locality where the business is to be shifted and then
canceled the order made by the learned Collector.
5] The learned counsel for the petitioner submitted
that the order of the Hon'ble Minister shows that he
considered the criterion, which are required to be
considered if it is a case of transfer from one District
to other District. He took this Court to Rule 25 of the
Rules framed under the Prohibition Act. It is true that
in some portion of the order, such criterion are
mentioned, but the reasoning shows that the Police report
and objections formed the base for the order of the
Hon'ble Minister.
6] The learned counsel for the petitioner placed
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reliance on some observations made by this Court in Writ
Petition No.2758/2014 decided on 11.8.2014 by Nagpur
Bench of Bombay High Court as well as in Nebha and
Company v. State of Gujarat reported at 1986 (2) SCC 319.
In the first case, this Court has considered the
procedure, which is required to be ordinarily followed.
In view of the facts of that case, it was held that the
party ought to have approached the appellate authority
first and only after the decision of the Commissioner,
the party ought to have gone to Hon'ble Minister. The
facts of the present matter are altogether different.
Further, the provisions of Section 138 of the Maharashtra
Prohibition Act reads as under:-
"138. Revision :
The State Government may call for and
examine the record of any proceeding before
any Prohibition Officer including that
relating to the grant or refusal of a
licence, permit or authorization under this
Act for the purpose of satisfying itself as
to the correctness, legality or propriety of
any order passed in, and as to the
regularity of, any such proceeding and may
when calling for such record, direct that
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the order be not given effect to pending the
examination of the record. On examining the
record, it may either annul, reverse, modify
or confirm such order, or pass such other
order as it may deem fit."
7] The aforesaid provision shows that the Hon'ble
Minister has revisional power and by exercising that
power, the record of any proceeding decided by any
Prohibition Officer can be called and the error can be
corrected by Hon'ble Minister. For exercising that
power, it is not necessary that the matter needs to be
first referred to the Commissioner or person aggrieved
must first approach the Commissioner. The other cited
case of the Hon'ble Apex Court is totally on different
point and so the observations made by the Hon'ble Apex
Court need not be referred in the present matter.
8] The object behind the Prohibition Act is to see
that restrictions are put on the business of manufacture
and sale of liquor. The provisions of Section 56 of the
Act are self-explanatory and they show that even without
giving any reason, the licence can be canceled. On this
point, the learned counsel for the respondent no.4 placed
reliance on the decision given by this Court at Nagpur
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Bench in Writ Petition No.3440/2011 decided on 5.2.2012
and 27.6.2012. In this case, by referring the case of
the Supreme Court, this Court has made it clear that
trading liquor is neither the Constitutional right nor a
fundamental right. It is also made clear that the
revisional power u/s 138 of the Prohibition Act can be
exercised suo motu and the question of locus standi
cannot be raised in such a case. Thus, when decision is
taken by the Hon'ble Minister by exercising the power of
revision and that has the base of aforesaid reports,
which involve the grievances of the people, this Court is
not expected to interfere lightly in such decision. It
is clear that the Collector committed grave error and
probably, he felt that there was no alternative before
him than to allow the application as the appellate
authority had set aside his order. The order of the
Collector was not a reasoned order and the said order did
not show that he had considered the reports of the
Superintendent of Excise and the District Superintendent
of Police.
9] In the result, the petition is dismissed.
Liberty is granted to the petitioner to apply to the
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Collector for transfer at other place. If transfer
charges are already paid and the Collector finds that
such a permission needs to be granted, the amount already
deposited by the petitioner can be considered for new
transfer.
(T.V.NALAWADE,J)
ndk/c1491649.doc
