Bombay High Court
Shri. Umesh Naresh Shete And Ors vs The State Of Maharashtra Through ... on 20 March, 2017
Bench: V.M. Kanade
WP.2501-2017
Dond/bdpps
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2501 OF 2017
Sandesh Shashikant Narvekar ..Petitioner.
Vs
The State of Maharashtra & Ors. ..Respondents.
WITH
WRIT PETITION NO.2805 OF 2017
Narsaiah Buchaiah Anupuram & Ors. ..Petitioners.
Vs
The State of Maharashtra & Ors. ..Respondents.
WITH
WRIT PETITION NO.2806 OF 2017
Abhay Prabhakar Nagwekar & Ors. ..Petitioners.
Vs
The State of Maharashtra & Ors. ..Respondents.
WITH
WRIT PETITION NO.2807 OF 2017
Sathaiah Veeraiah Adipalli & Ors. ..Petitioners.
Vs
The State of Maharashtra & Ors. ..Respondents.
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WITH
WRIT PETITION NO.2808 OF 2017
Mahendra Laxman Viyala & Ors. ..Petitioners.
Vs
The State of Maharashtra & Ors. ..Respondents.
WITH
WRIT PETITION NO.2809 OF 2017
Smt. Rajeshwari Rajanna Mothukuri & Ors, ..Petitioners
Vs
The State of Maharashtra & Ors. ..Respondents.
WITH
WRIT PETITION NO.2810 OF 2017
Narresh Vasant Patil & Ors. ..Petitioners.
Vs
The State of Maharashtra & Ors. ..Respondents.
WITH
WRIT PETITION NO.2822 OF 2017
Sanjay Sadanand Gudhekar & Ors. ..Petitioners.
Vs
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The State of Maharashtra & Ors. ..Respondents.
WITH
WRIT PETITION NO.2903 OF 2017
Radhika Tirupati Durgam & Ors. ..Petitioners.
Vs
The State of Maharashtra & Ors. ..Respondents.
WITH
WRIT PETITION NO.2904 OF 2017
Umesh Naresh Shete & Ors. ..Petitioners.
Vs
The State of Maharashtra & Ors. ..Respondents.
WITH
WRIT PETITION NO.12799 OF 2016
Maharashtra Rajya Toddy Maddy Utpadak
Van Parvana Dharak Seva Sanstha ..Petitioner.
Vs
The State of Maharashtra & Ors. ..Respondents.
WITH
WRIT PETITION NO.13371 OF 2016
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Sanjay Sham Mayekar & Ors. ..Petitioners.
Vs
The State of Maharashtra & Ors. ..Respondents.
WITH
WRIT PETITION ST. NO.7840 OF 2017
Srinivas Ramulu Gudula & Ors. ..Petitioners.
Vs
The Principal Secretary, State of Maharashtra & Ors. ..Respondents.
--------------
Mr. Vinod Joshi a/w Mrs. Lata Patne for Petitioner in Writ Petition
Nos.2501/2017, 2805/2017, 2806/2017, 2807/2017, 2808/2017, 2809/2017,
2810/2017, 2822/2017, 2903/2017, 2904/2017 and 13371/2016.
Mr. Vijay Thorat i/b M.V. Thorat for Petitioner in Writ Petition No.12799
of 2016.
Mr. Vishwajeet Kapse a/w Mr. A. Prabhakar Sharma i/b Rajesh Dharap for
Petitioner St.No.7840 of 2017.
Mr. A.B. Vagyani, Government Pleader a/w Mr. V.B. Thadani, AGP, Mr.
S.L. Babor, AGP, Ms. Tintina Hazarika for Respondent-State Government
in all Writ Petitions.
-------------
CORAM: V.M. KANADE AND
A.S. GADKARI, JJ.
DATE: 20 MARCH 2017.
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ORAL JUDGMENT (Per V.M. Kanade, J.)
1] Heard Mr. Vinod Joshi, Mr. Vijay Thorat and Mr. Vishwajeet
Kapse, the learned Counsel appearing for the petitioners in respective writ
petitions and Mr. A.B. Vagyani, the learned Government Pleader appearing
for the Respondent-State Government in all writ petitions.
2] The issue involved in the aforestated petitions is common,
hence we propose to dispose of all these writ petitions by a common
judgment.
3] Rule. Rule is made returnable forthwith by consent of the
learned Counsel for the parties. The learned Government Pleader waives
service.
4] The petitioners are seeking to challenge the legality and
validity of the impugned Government Resolution dated 28th October 2016
issued by the Government of Maharashtra under the Maharashtra Toddy
Shops (Grant of Licences by Auction-cum-Tender) Order, 2001. The
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petitioners are also seeking to challenge the letter/order dated 31 st August
2016, whereby one month renewal has been granted instead of one year.
5] The petitioners are the domicile of State of Maharashtra and
are running toddy shops in Mumbai and are also residents of Mumbai. The
respondent No.2 is Commissioner State Excise, Maharashtra State and the
respondent No.3 is the Collector, Mumbai Suburban District.
All the petitioners and their ancestors were holding licences
under Section 139 of the Maharashtra Prohibition Act, 1949 and they have
been running toddy shops in view of the licences which have been issued
by the respondents from time to time.
6] Prior to 2001, these licences were auctioned from year to year
and they were allotted in favour of the highest bidders. On 22.11.2000, the
State Government constituted a Committee headed by Shri S.S. Tinaikar.
The said Committee has submitted its report on 4 th June 2001 and the same
was accepted by the Maharashtra Government in the year 2001 and a
Toddy Order in 2001 came to be issued. Thereafter, the State Government
constituted second Committee headed by Shri Ajit Kumar Jain. The
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Committee headed by Shri Jain submitted its report in July 2008. The said
Committee recommended that instead of auctioning licences for year to
year, in order to ensure economic stability of the bidder, once licence is
granted, it should be renewed from year to year and for maximum period of
four years. Thereafter the Order 2001 was amended by the State
Government by exercising powers vested in it under various clauses of
Section 139 of the Bombay Prohibition Act, 1949. Clause No.3 of the said
Order, 2001 reads as under:
"3. Procedure for Grant of Licence:- (1) The licence for shops
shall be granted by Auction-cum-Tender system on payment of bid
money, by the Collector as specified hereinafter.
(2) The licence shall be granted for a Toddy year and it may
be renewed every year, maximum upto four years.
(2A) The fees for renewal of licence for the toddy year 2010-2011
shall be equivalent to the fees of licence for the previous toddy
year 2009-2010 and the fees of licence for the previous toddy year
2009-2010 and the fees of renewal of licence for any subsequent
year shall be increased upto six percent of the fees of lincence for
the previous year as notified by the Government.
(2B) The renewal of licence shall be done before the 1 st September
of every year.
(3) The licence shall be granted in Form TD-1 as prescribed
under rule 4 of the Maharashtra Toddy Shops (Licensing) and
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Toddy Trees (Tapping) Rules, 1968."
7] The Jain Committee submitted its report in July 2008, suggesting
various recommendations and it was recommended that in every five years, once
auction-cum-tender procedure should be followed and thereafter there should be
renewal of licence for a period of four years. It appears that these
recommendations have not been accepted by the Government of Maharashtra and
no amendment has been made to the Clause-3 regarding grant of licence. Most of
the petitioners had applied for grant of licence and in the year 2014 they were
granted licences for one year and these licences were renewed thereafter for one
year. The Government of Maharashtra by the Notification dated 28th October
2016 has noted that by virtue of 2001 Order, the auction-cum-tender procedure
was adopted. However, this procedure was reconsidered in 2009-2010 by virtue
of recommendations of Shri Ajit Kumar Jain's Committee and from 2009-2010
the auction-cum-tender procedure was followed and for a period of four years
thereafter it was continued by increasing licence fees by six percent every year.
Since 2013-2014 was the last year for renewal, in the year 2014-2015 a new
procedure for auction-cum-tender was followed, in order to ensure that those who
were carrying on business on the basis of the licences should not suffer any loss.
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For the next year i.e. from 2015-2016 those who were successful bidders their
TD-1 licences were renewed.
However, by Notification dated 28th October 2016, the Government
decided to change the earlier procedure by imposing certain restrictions. One of
the restrictions was that the TD-1 lincence should be granted to person who had
1000 palm-trees. The petitioners are aggrieved by the said condition.
8] The learned Counsel appearing for the Petitioners submitted that, the
procedure for grant of licence under Clause-3 of the Order 2001 envisaged that
once the licence is granted, it may be renewed every year maximum upto four
years. It is submitted that the petitioners' licences being granted in the year 2013-
2014 and the same have to be renewed till 2014, the word "may" used in the said
sub-clause (2) of clause-3 of the Order 2001 should be interpreted as "shall" as is
recommended by the Jain Committee.
In our view, there is no substance in the said contention. It is apparent
from plain reading of sub-clause (2) of Clause-3 that the maximum period for
which the licence may be renewed is for four years. The word "may" therefore
cannot be interpreted as "shall" so as to be mandatory on the part of the licensing
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authority to renew it for a period of every four years. The Notification dated 28 th
October 2016 in terms mentions that in 2008 after recommendations of Jain
Committee were accepted, the said procedure was followed upto 1.3.2014 and
thereafter the Government decided to renew its policy and therefore that was
done by Notification dated 28th October 2016.
9] It has to be noted here that, there are three types of licences namely
(1) TD-1 licence, (2) TD-2 and (3) TD-3 licence for transportation. It has also to
be noted here that, toddy is extracted from Coconut trees and date palm trees. The
toddy is extracted in the morning and is not fermented for some time and this
liquid/extract is called as "Neera" and the same is free from alcohol. Thereafter
process of fermentation starts and the said "Neera" becomes "Toddy". However,
after lapse of particular hours, the said toddy get fermented and becomes
intoxicant. TD-1 licence is issued to the shop-keepers who can sell toddy in non-
intoxicant condition and it has to be destroyed after 24 hours. In the past, all shop-
keepers in Mumbai used to bring toddy from other districts. A survey was made
by the Government and it was noticed by the Government that the toddy was
mixed with some chemical i.e. Chloral Hydrate and it was sold. Out of 69 cases
such adulterations were found in 40 cases out of 1500 shops. The Government
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therefore took a decision that since there were no toddy Trees in Mumbai so far as
city of Mumbai is concerned, a condition was imposed that unless each shop-
keeper owns 1000 trees of palm, date, they should not be given licence. The
Government's stand is that there are no toddy producing trees in Mumbai. When
the Government issued a Notification in 1993 under which entry of trees in
7 x 12 extract was not necessary. The Government came to the conclusion
that since there were no agricultural lands in Mumbai, there were no entries of
toddy trees in the 7/12 extract. The Government's stand is that, all shops in
Mumbai import toddy from other places such as Palghar, Pune, Ahmed Nagar and
by the time it reaches Mumbai, it gets fermented and become intoxicant, which is
injurious to health.
10] This Notification is being challenged by the petitioners on various
grounds. The said grounds are as under:
(i) It is unconstitutional to impose unreasonable restrictions on the
requirement of having 1000 trees per shop-keeper.
(ii) The contention of the Government that there are no palm trees in
Mumbai, is incorrect. The restriction imposed on the basis of incorrect
assessment of trees in Mumbai is arbitrary.
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(iii) The said Notification is discriminatory since it discriminates
between toddy-shops which sell toddy in Mumbai and in other districts.
(iv) The licence has been issued to shop-keepers who owned 200-
300 palm trees.
(v) There are only two to three workers to tap toddy and it is
impossible for them to tap toddy from 1000 trees. Therefore the said condition is
unreasonable.
(vi) Once an assurance was given to licensee in year 2014 that the
licence would be renewed for four years, the State Government now cannot
curtail the said period of four years.
(vii) Lastly, on the basis of 40 samples which were found adulterated,
the conclusion cannot be drawn by the State Government in respect of all shop-
keepers who sell toddy.
Reliance is placed on the judgment of the Supreme Court in the case
of State of Kerala & Ors. Vs. Unni and Anr. [(2007) 2 SCC 365] and particularly
paragraphs 32, 33, 34, 36 and 37.
11] On the other hand, Mr. Vagyani, the learned Government Pleader
appearing on behalf of the State, submitted that the challenge to the Government
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Resolution was without any foundation. He submitted that the Government had
taken a decision vide Government Resolution dated 28th October 2016 to grant
licence only to those shop-keepers of Talukas where 1000 palm-trees have been
owned by each licence holder. He denied the contention of the petitioners that
toddy licence had to be renewed for a period of four years. It is submitted that by
virtue of the said condition, the Government has sought to ensure a pure and
unadulterated toddy sale in the shops.
It is submitted that the Government has, while issuing this
Notification, overlooked the revenue aspect and considered the interest of the
public health. It is submitted that the auction has already been taken place in
accordance with new guidelines in respective districts and auction-bidders have
been given licences and have started their business. It is further submitted that the
said Notification also takes care that the interest of local residents should be
safeguarded.
12] After having heard the learned counsel for the petitioners and the
learned Government Pleader, we are of the view that it is not possible to accept
the contention of the petitioners. We have also noted as to how the said rule
regarding granting licence is not mandatory since, the word "may" used in
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sub-clause (2) of Clause-3 is not mandatory but it is directory. The State
Government can either renew licence every year and for a maximum period of
four years or may not renew the licence and can also decide whether licences
should be given for four years. The recommendations of the Jain Committee were
not accepted by the Government while issuing 2001 Order.
13] It is not in dispute that the Government has sole right to frame rules
as laid down in Section 139 of the Bombay Prohibition Act, 1949 which gives
power to the State Government to frame rules. Section 139 of the Bombay
Prohibition Act, 1949 reads as under:
"139 [1] Notwithstanding anything contained in this Act or the rules
made thereunder, the [State] Government may, by general or special
order,-
(a) prohibit the grant of any kind of licences, permits, passes or
authorisations throughout the [State] or in any area;
(b) regulate the import, export, transport, possession, sale, purchase,
consumption or use of any intoxicant, hemp, mhowra flowers,
molasses or any article which is likely to be used for the manufacture
of an intoxicant with or without licence, permit, pass or
authorisation throughout the [State] or within the limits of any local
area subject to such conditions [as it may impose];
(c) exempt any person or institution or any class of persons or
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institutions from all or any of the provisions of this Act or from all or
any of the rules, regulations or orders made thereunder or from all
or any of the conditions of any licence, permit, pass or authorization
granted thereunder, subject to such conditions as it may impose;
(d) exempt any intoxicant or class of intoxicants, denatured
spirituous preparation, hemp, mhowra flowers or molasses from all
or any of the provisions of this Act or from all or any of the rules,
regulations or orders made thereunder subject so such conditions as
it may impose;
(d1) remit or refund wholly or partially any fee in respect of any
privilege, licence, permit, pass or authorization granted under this
Act or any duty on toddy producing trees or any excise or
countervailing duty or fee leviable under this Act or any intoxicant,
hemp, mhowra flowers or molasses from any person or institution or
from a class of persons or institutions from the payment of such duty
or fee subject to such conditions as it may impose;
(e) prescribe the maximum number of licences, passes or
authorizations of any kind which may be granted in any area or to
any class of persons;
(f) prescribe the number of places at which any intoxicant specified
in such order, [denatured spirituous preparation], hemp, mhowra
flowers or molasses, may be sold in any area, the location of such
places in any area, the days and hours during which such places may
or may not be kept open, the number of such places in respect of
which licences for sale may be granted and the number of such
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places which may be [managed by the State Government
departmentally];
(g) direct that no licence, permit, pass or authorization of the kind
specified in such order shall be granted without the previous
approval of the [State] Government or also direct any additions or
alterations to be made to or in the conditions subject to which under
any other provisions of this Act, such licence, permit, pass or
authorization can be granted;
(h) prescribe the maximum quantity of any intoxicant, [denatured
spirituous preparation], hemp, mhowra flowers or molasses which
may be sold in any area or at any place;
(i) prescribe in respect of any place or area, the maximum number of
toddy producing trees for tapping which or for drawing toddy from
which licence or licences may be granted;
(j) prescribe the procedure for the disposal of any shop or shops
authorised to sell any intoxicant, denatured spirituous preparation,
hemp, mhowra flowers or molasses under this Act and the procedure
to be followed before granting any licence or licences;
(k) direct that before granting licences, auctions may he held,
tenders called for or offers received and that licences shall be
granted [subject to such conditions as may be prescribed] to persons
whose bids, tenders or offers are accepted by the Collector;
(l) specify the persons or class of persons [to whom licences may or
may not be granted] and in cases in which auctions are held, the
persons or classes of persons who may or may not be permitted to
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offer bids at such auctions;
(m) direct that licences of the kind specified in such order shall be
granted to persons specified in such order; and
(n) issue such other instructions in any matter pertaining to the grant
or otherwise of licence, permits, passes or authorizations under this
Act, as the [State] Government may deem proper."
Therefore the Government is authorised to regulate import, export,
sale, purchase, exemption which includes sell of Toddy.
Section 11 of the Bombay Prohibition Act, 1949 regulates
manufacturing of intoxicants. Section 11 reads as under:
"11. Notwithstanding anything contained in the following provisions
of this Chapter, it shall be lawful to import, export, transport,
manufacture [bottle], sell, buy, possess, use or consume any intoxicant
or hemp [or to cultivate or collect hemp] or to tap any toddy
producing tree or permit such tree to be tapped or to draw toddy from
such tree or permit toddy to be drawn therefrom in the manner and to
the extent provided by the provisions of this Act [or] any rules,
regulations or orders made or in accordance with the terms and
conditions of a licence, permit, pass or authorization granted
thereunder."
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14] It is obvious that the power to issue Notification has been
delegated to the State Government in view of Section 11 of the Bombay
Prohibition Act. Under Section 139 power is vested in the State Government to
issue Notification. The present Notification has been issued by exercising the said
power vested in it under Section 139. The Government has amended its policy
from time to time. First time, it was done in the year 2001, thereafter in the year
2008 and on 29th October 2016. In our view, the said Notification dated 28th
October 2016 has been issued keeping in mind public interest i.e. health of the
people at large drinking toddy and therefore it cannot be said to be arbitrary. The
State Government has a power to impose conditions, keeping in mind the object
which is sought to be achieved, namely public interest by providing pure and
unadulterated toddy to the people at large.
15] The sale of the toddy is not a fundamental right and it is subject to
reasonable restrictions as laid down in Article 19(g) of the Constitution of India.
The Apex Court in the matter of Kerala Bar Hotels Association Vs. State of
Kerala [(2015) 16 SCC 421 has accepted the decision in the matter of Khoday
Distilleries Ltd Vs. State of Karanataka [(1995) 1 SCC 574]. The Apex Court in
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the said Judgment has observed in paragraphs 30, 32 and 33 as under:-
"30. The next ground for challenge has been under Article 19.
Learned Senior Counsel for the Appellants, Mr. Aryaman
Sundaram, has sought to argue that a right under Article
19(1)(g) exists in the business of liquor. In his detailed
elucidation of the decision in Khoday, he has contended that the
State is given three options. The first is prohibition, the second
is a State monopoly in manufacture or trade or both in potable
liquor, and the third, which is similar to the case at hand, is that
the State allows private individuals into this business, in which
event everyone would have a right to partake in it. Reliance was
placed on the following paragraphs of Khoday:
"55. The contention that if a citizen has no fundamental
right to carry on trade or business in potable liquor, the
State is also injuncted from carrying on such trade,
particularly in view of the provisions of Article 47, though
apparently attractive, is fallacious. The State's power to
regulate and to restrict the business in potable liquor
impliedly includes the power to carry on such trade to the
exclusion of others. Prohibition is not the only way to
restrict and regulate the consumption of intoxicating liquor.
The abuse of drinking intoxicants can be prevented also by
limiting and controlling its production, supply and
consumption. The State can do so also by creating in itself
the monopoly of the production and supply of the liquor.
When the State does so, it does not carry on business in
illegal products. It carries on business in products which
are not declared illegal by completely prohibiting their
production but in products the manufacture, possession and
supply of which is regulated in the interests of the health,
morals and welfare of the people. It does so also in the
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interests of the general public under Article19(6) of the
Constitution.
56. The contention further that till prohibition is
introduced, a citizen has a fundamental right to carry on
trade or business in potable liquor has also no merit. All
that the citizen can claim in such a situation is an equal
right to carry on trade or business in potable liquor as
against the other citizens. He cannot claim equal right to
carry on the business against the State when the State
reserves to itself the exclusive right to carry on such trade
or business. When the State neither prohibits nor
monopolises the said business, the citizens cannot be
discriminated against while granting licenses to carry on
such business. But the said equal right cannot be elevated
to the status of a fundamental right".
32. We disagree with the submissions of the Respondents that
there is no right to trade in liquor because it is res extra
commercium. The interpretation of Khoday put forward by Mr.
Sundaram is, in our opinion, more acceptable. A right under
Article 19(1)(g) to trade in liquor does exist provided the State
permits any person to undertake this business. It is further
qualified by Article 19(6) and Article 47. The question, then, is
whether the restrictions imposed on the Appellants are
reasonable.
33. We have had the privilege and indeed the pleasure hearing
the extremely erudite arguments of a galaxy of senior counsel on
both propositions on the interpretation of our constitution and
the laws pertaining to the right to carry on trade or business in
potable liquor by this Court. In Krishan Kumar Narula, the
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Constitution Bench was of the opinion that dealing in liquor is a
legitimate business, although the State can impose reasonable
restrictions. A few years later, however, in Khoday, the concept of
res extra commercium came to be accepted and applied to the
business of manufacture and trade in potable liquor. This Court,
however, did not place any embargo or constraints on the State
to transact this business. History has painstakingly made it
abundantly clear that prohibition has not succeeded. Therefore
strict state regulation is imperative. The State of Kerala had in
the past forayed into prohibition, but found it to be
unimplementable. Thereafter, keeping in mind the heavy
consumption of alcohol within the territory, it has experimented
with other measures to user temperance if not abstemiousness.
So far as this trade is concerned, Article 47 of the Constitution
places a responsibility on every State Government to at least
contain if not curtail consumption of alcohol. The impugned
Policy, therefore, is to be encouraged and is certainly not to be
struck down or discouraged by the Courts. How this policy is to
be implemented, modified, adapted or restructured is the
province of the State Government and not of the Judiciary. The
consumption of tobacco as well as liquor is now undeniably
deleterious to the health of humankind. Advertising either of
these intoxicants has been banned in most parts of the world, the
avowed purpose being to insulate persons who may not have
partaken of this habit from being seduced to start. Banning pubic
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consumption of either of these inebriants cannot be constrained
as not being connected in any manner with the effort to control
consumption of tobacco, or as we are presently concerned, with
alcohol. Vulnerable persons, either because of age or proclivity
towards intoxication or as a feature of peer pressure, more often
than not, succumb to this temptation. Banning public
consumption of alcohol, therefore, in our considered opinion,
cannot but be seen as a positive step towards bringing down the
consumption of alcohol, or as preparatory to prohibition".
The contention of the petitioners that they have right to carry on
business under Article 19(1)(g) therefore cannot be accepted.
16] In our view, the Judgment in the matter of State of Kerala & Ors.
Vs. Unni and Anr(supra) also is of no assistance to the petitioners, as the issue
raised in the said petition was different and therefore ratio of the said judgment is
not applicable to the facts of the present case. In the said case, one of the issues
was, where two interpretations are possible having regard to the workability or
unworkability of the statute; one which leads to workability of the statute must
be preferred to the other. There cannot be any two opinions regarding the
proposition laid down by the Apex Court in the aforesaid case. However, in our
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view, the said proposition is not of any assistance to the petitioners in the facts of
the present case.
17] Mr. Thorat, the learned Counsel for the petitioners submitted that the
rules cannot be altered by the Government Resolution. In our view, there is no
substance in the said submission since under Section 11 read with Section 139 of
the Bombay Prohibition Act, powers are delegated to State Government to frame
rules.
18] For the aforesaid reasons, it is not possible to accept the contentions
of the petitioners. The aforesaid Writ Petitions are dismissed.
(A. S. GADKARI, J.) (V. M. KANADE, J.)
