Ajit Prasad Dwarkaprasad Jaiswal vs Senior Police Inspector Police ...
2017 Latest Caselaw 8040 Bom

                                       1                                 WP 12414-2017


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                      WRIT PETITION NO. 12414 OF 2017


                Ajitprasad Dwarkaprasad Jaiswal,
                Age : 66 years, Business,
                R/o. 222, 'B' Sector, N-1,
                CIDCO, Aurangabad.                                  .. Petitioner

                VS.

        1.      Senior Police Inspector,
                Police Station, Begumpura,
                Aurangabad.

        2.      The State of Maharashtra,
                Through its Secretary,
                Home Department,
                Mantralaya, Mumbai.                                 .. Respondents

                                        ----

Mr. V. J. Dixit, Senior Advocate holding for Mr. S.V. Dixit, Advocate for the petitioner.

Mr. A. B. Girase, Assistant Government Pleader and Mr. S. P. Sonpawale, Assistant Government Pleader for respondents.

----

CORAM : R. M. BORDE & SMT. VIBHA KANKANWADI. JJ.

DATE : 11-10-2017

ORAL JUDGMENT : ( Per Smt. Vibha Kankanwadi. J.)

1. Rule. Rule made returnable forthwith and heard learned

advocates appearing for the parties finally, by consent.

2 WP 12414-2017

2. By invoking the writ jurisdiction under Article 226 of the

Constitution of India, the petitioner has prayed for issuance of writ of

certiorari calling for the record and proceedings of order dated

28/09/2017 passed by respondent No.1 and after examining the

legality, validity and propriety thereof, the said order be quashed and

set aside.

3. The factual matrix giving rise to the petition is that, the

petitioner has been running CL-III-12 Permit Country Liquor Shop at

Begumpura, Aurangabad since last more than 43 years. The

respondent No.1 is a Senior Police Inspector working at Begumpura

Police Station. He has passed the impugned order.

4. It is contended that, the petitioner has renewed his license

from time to time and it is renewed till 31/03/2018. He also

possessed the license under Maharashtra Shops and Establishments

Act and the said license is also renewed till the year 2020. Nobody has

made any complaint regarding law and order situation in respect of

the shop of the petitioner. For the first time petitioner received notice

dated 11/06/2017 issued by Police Station, Begumpura, wherein it

was stated that, two persons after consuming liquor, purchased from

3 WP 12414-2017

the shop of the petitioner had abused each other, which had caused

disturbance to the passersby. The said incident was communicated by a

lady to the police. It was told to the petitioner that, he should check

about the behaviour of the persons who purchase liquor from his shop

and take all such precautions. Thereafter, every attempt is made and

precaution has been taken by the petitioner. However, on 28/09/2017

the petitioner received an order, purported to be issued under Section

142 (2) of Maharashtra prohibition Act, 1949 (hereinafter referred to

as 'Prohibition Act').

5. It was stated in the said order by respondent No.1 that,

people after consuming liquor from the petitioner's shop sit on dividers

of Maqbara Road, and it causes disturbance to the nearby residents.

He apprehended untoward incident affecting law and order. There are

religious places and historical place of 'Bibika Maqbara' near the shop

of the petitioner and many tourists visit such place. He also

mentioned that, the Navratra Festival and Moharram is going on, and

therefore, it may cause law and order situation, and in order to

prevent the nuisance, he directed the petitioner to close his shop for

30 days immediately.

6. It has been stated that, the said order is per se illegal and

4 WP 12414-2017

without any jurisdiction. It has also been passed in violation of

principles of natural justice, and therefore, the petitioner has prayed

for setting it aside.

7. Heard Mr. V. J. Dixit, Senior Advocate holding for Mr. S. V.

Dixit, Advocate for petitioner and learned Assistant Government

Pleader Mr. S. P. Sonpawale for respondents.

8. The learned Senior Counsel appearing for the petitioner

submitted that, the petitioner has obtained license from time to time

from the appropriate authority. There was no complaint against him.

His shop was never involved in any criminal activity. By a notice

which was issued by Police Constable on 11/06/2017, he was directed

to take precautions in respect of the customers who were creating

nuisance after drinking liquor at his shop. But thereafter petitioner

was never called upon to explain anything and directly impugned

notice was issued. The said notice cannot be said to be a notice

invoking powers under Section 142 (2) of Maharashtra Prohibition

Act, 1949 and the respondent No.1 being the Senior Police Inspector

cannot be said to be a "Police Officer" contemplated for the said

Section as per the notification.

5 WP 12414-2017

9. Per contra, it has been argued on behalf of the respondents

that, being the police officer, he was empowered to take all the

necessary measure to maintain the law and order situation within his

jurisdiction. Complaints were received in respect of the behaviour of

the customers who used to be under influence of liquor after

consuming the liquor from the shop of the petitioner.

10. The respondent No.1 has taken action under Section 142

(2) of the Maharashtra Prohibition Act. The said relevant section is

reproduced here for the sake of convenience ;

"Section 142 (2) : - If a riot 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."

Thus it is to be noted that, the powers are given under the

above section to the Executive Magistrate or police officer to close

down the shop for such period. But it is only in the event that if a riot

or unlawful assembly is imminent or takes place.

11. Here in this case, the record was called from the

6 WP 12414-2017

respondent No.1 on the basis of which he had issued the impugned

order. It is to be noted that, only non-cognizable offences have been

registered against some other persons and the spot appears to be in

front of the shop of the petitioner, and it is said that those persons who

were involved in the offence were under influence of liquor after

consuming it from the shop of the petitioner.

12. Thus even the respondent No.1 who was present in the

Court failed to point out that, any riot or unlawful assembly had ever

taken place or the situation which was brought to his notice was of

such a nature that riot or unlawful assembly was imminent. Further

he has no explanation as to why he had directed the petitioner to close

the shop for a period of 30 days. He cannot act abruptly. Whatever

the alleged reasons have been given by him while passing the

impugned order are arbitrary. The record would show that, some

incident had taken place on 11/06/2017, 20/09/2017 and

26/09/2017. The petitioner was never called upon by the respondent

No.1 to put forth his say. Further when the notice was given on

11/06/2017, till 20/09/2017 there was no incident which was

reported to the police station involving the shop of the petitioner. The

wordings those have been used in the impugned order, by no stretch of

7 WP 12414-2017

imagination would indicate that there was imminent possibility of riot

or unlawful assembly. Under such circumstance respondent No.1

could not have invoked alleged powers under Section 142 (2) of the

Prohibition Act. On this count, the impugned order deserves to be

quashed and set aside.

13. Further it is to be noted that, as per the schedule to the Act

and Government Resolution, Senior Inspector is not "Police Officer"

who is entitle to take an action as contemplated. The respondent No.1

though purported to invoke the provisions of the Maharashtra

Prohibition Act, failed to consider the circulars and Government

Resolutions defining that who is police office, who is entitled to take

action regarding closure of any shop under the Act. Respondent No.1

has assumed that jurisdiction, which in fact, he was not having such

jurisdiction. Therefore it appears that, the action taken by the

respondent No.1 is with ulterior motive and with malafied intention,

and also appears to be arbitrary, and therefore, before parting with the

order we propose to issue directions to the superior of the respondent

No.1 to take a necessary action against him for his such high handed

act, assumption of power, and for the aforesaid illegality in the action.

With these observations following order is passed.

                                            8                                 WP 12414-2017


                                         ORDER

                (a)      The writ petition is hereby allowed.


                (b)      The   impugned   order   dated   28/09/2017   passed   by 

respondent No.1 is hereby quashed and set aside.

(c) Copy of this order be sent to the superior of respondent No.1 for taking necessary action against him, for the observations made in the Judgment.

(d) Rule made absolute in the above terms. There shall be no order as to costs.

         [SMT. VIBHA KANKANWADI]                                      [R. M. BORDE]
                   JUDGE                                                     JUDGE


vjg/-.