Bombay High Court
Vithal Mallu Chintalwar And ... vs The State Of Maharashtra And ... on 8 March, 2017
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2697 OF 2017
1. Vithal Mallu Chintalwar, .. Petitioners
Age. Major, Occ. Business,
Proprietor of Hotel Jaibhavani,
at Village Shahpur, Tq. Degloor,
Dist. Nanded.
2. Kusumbai / Rajabai Gangaram Mundamwar,
Age. Major, Occ. Business,
R/o. Shahpur, Tq. Degloor,
Dist. Nanded.
Versus
1. The State of Maharashtra .. Respondents
Through Excise Department,
Mantralaya, Mumbai.
2. The Collector Nanded,
Dist. Nanded.
3. The Superintendent State Excise
Degloor, Dist. Nanded.
4. The Senior Superintendent of Police,
Police Station Degloor, Dist. Nanded.
Mr.Anil H. Kasliwal, Advocate for the petitioners.
Mr.S.R. Yadav (Lonikar), AGP for the respondents.
CORAM : S.B. SHUKRE,J.
DATED : 08.03.2017
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ORAL JUDGMENT :-
1. Heard Mr. Anil H. Kasliwal, learned Counsel for
the petitioners and Mr. S.R. Yadav (Lonikar), learned AGP
who appeared for the respondents on last date by waiving
notice.
2. Rule. Rule made returnable forthwith and heard
finally by consent.
3. The petitioners, who possess FL-3 license and
run them through their vends situated at village
Shahapur, in September, 2016, faced ire of women
villagers, who made a complaint to the Collector for
closing down of the liquor vends or the shops of the
petitioners on the ground that they are the root cause of
the sufferings of women and children of the village,
because of the menace of the irresponsible drunkards of
the village. As required under the Rules, an enquiry was
conducted, but it was found that the signatures and the
thumb impressions appearing on the representation of the
women agitators could not be verified in the enquiry and
ultimately the enquiry was required to be closed. This
action provoked further the women villagers and they
assembled at a prominent place in the village and started
making violent protest. Fearing creation of the law and
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order problem, the Sr. Police Inspector, Police Station,
Degloor by his order passed on 31.01.2017, closed the
liquor vends under section 142(2) of the Maharashtra
Prohibition Act, 1949 (for short "Act of 1949"). By this
order, the liquor shops were closed down until further
orders. This order was confirmed by the Collector,
Nanded - respondent No.2, by his order passed on
17.02.2017. Being aggrieved by these orders, the
petitioners are before this Court in the present writ
petition.
4. Respondent Nos. 2 and 3 have filed a detailed
reply. On its perusal, it becomes clear that although
initially enquiry was undertaken on representation
received from women agitators, in terms of Rules 3,4 and
5 of the Bombay Prevention (Closure of licence on
Resolution by Gram Sabha or representation by Voters in
the Ward of Municipal Council/Corporation) Order, 2008
(for short "Rules of 2008") enquiry could not be taken to
its logical end as verification process itself disclosed
that requisite number of women voters had not signed the
representation. However, the reply further shows that
there was extreme unrest among the women agitators and
situation was likely to turn for the worse, the
authorities considered it expedient to control the
situation by exercising powers under section 142(2) of
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the Act of 1949. This is how the impugned order has been
passed initially by respondent No.4 and later on
confirmed by respondent No.2. As the order has been
passed under section 142(2) of the Act of 1949, it would
be necessary to first consider the nature of powers
vested by this section in the Collector to close down the
liquor shop. This section reads as under :-
"142. Power of Collector to close places where
intoxicant or hemp is sold in certain cases
"(1) If the Collector is of opinion that it
is in the interest of public peace to close
any place in which any intoxicant or hemp
is sold, it shall be lawful for the
Collector by an order in writing to the
persons holding a licence for the sale of
such intoxicant or hemp to require him to
close such place at such time or for such
period as may be specified in the order.
(2) If a not or unlawful assembly is
imminent, or takes place; it shall be
lawful for any Executive Magistrate or
Police Officer who is present to direct
that such place shall be closed and kept
closed for such period as he thinks fit,
and in the absence of any Executive
Magistrate or Police Officer the person
referred to in Sub-section (1) shall
himself close such place.
(3) Any order given under this section
shall be final"
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5. It is obvious that the power vested in the
Collector is for the purpose of meeting some unforeseen
situation where there is likelihood of disturbance of
public peace. Section 142(2) lays down that where an
unlawful assembly is imminent or takes place, the
Collector or the Police Officer present at the spot may
direct closure of the liquor shop. This power so vested
in the authority only enables them to control the
situation of disturbance of public peace and therefore it
would have to be stated that the power by its very nature
has a defined life span which is of limited period and
confined to that period in which disturbance continues or
is expected to die down. Such situation cannot exist for
indefinite period of time. So the order passed in
exercise of this power would also have to mention as to
for what period of time, the order shall be in operation.
6. On going through the impugned order, one can see
that the order closes down the liquor shops for
indefinite period of time and no period is stipulated for
the effect of the order to come to an end. As stated
earlier, the authority must stipulate the period of time
during which the order of closure of liquor shops shall
be in operation. This requirement has direct nexus with
the purpose of power conferred upon the authorities.
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But, it is not stated here. Therefore, on this count
alone, I find that the impugned order is patently illegal
and liable to be quashed and set aside. However, in such
matters, it is also necessary for the Courts to take into
account the present circumstances so as to hand out a
practical justice. Learned AGP is not in a position to
assist the Court regarding present state of affairs at
the spot, but considering the fact that there are no
fresh reports of rioting or gathering of crowds forming
unlawful assembly, it can be presumed that the situation
is now well under control.
7. In the circumstances, I am inclined to allow the
present writ petition.
8. The writ petition is allowed. The impugned order
dated 31.01.2017 passed by respondent No.4 is quashed and
set aside. Further, the order dated 17.02.2017 passed by
respondent No.2 confirming the order dated 31.01.2017 is
also quashed and set aside. The shops be accordingly
de-sealed.
9. Liberty shall always be there with the
respondent - authorities to take appropriate action
afresh in terms of section 142 of the Act of 1949, if
occasion arises.
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10. Authenticated copy of this order be furnished to
both sides.
[S.B. SHUKRE,J.]
snk/2017/MAR17/wp2697.17
