Bombay High Court
Ramesh Baijnathlal Jaiswal vs The State Of Maha. Through ... on 10 January, 2018
Bench: B.P. Dharmadhikari
Judgment wp5938.17
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION Nos.5938, 5945, 4675, 5946, 5947, 5949,
5990, 5991, 5992, 5993, 5994, 5995, 5996,
5997, 5998, 6000, 6001, 6002 & 6297 OF 2017.
............
(1) WRIT PETITION No.5938/2017.
M/s. Dewaki Traders, through
its Partner Ashok s/o Shivlal
Jaiswal, Aged about 58 years,
Occupation - Business, resident
of Jawahar Ward, Umerkhed,
District Yavatmal. ....PETITIONER
VERSUS
1. State of Maharashtra,
through the Joint Secretary,
Home Department/Excise-3,
Mantralaya, Mumbai.
2. The Collector, Yavatmal City,
Yavatmal.
3. The Superintendent of State Excise,
having its office at the Collectorate
Yavatmal. ....RESPONDENTS
.
WITH
(2) WRIT PETITION No.5945/2017.
1. Maharashtra Rajya Daru Vikreta
Mahamandal, bearing Registration
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No. HO.IIID-9456, having its
Registered office at 7th & 8th
Ghaswala Building, Opp. Wadala
Udyog Bhavan, G.D. Ambekar Marg,
Dadar (E), Mumbai 400 014,
through its Secretary and authorized
Signatory Shri Sahil s/o Devendra Jaiswal,
Aged about 36 years,
Occupation - Business, r/o. 07, Aradhana
Nagar, New Dighori, Nagpur.
2. Arvind Jivan Dhavangale,
Aged about 55 years,
Occupation - Business, r/o. Takli,
Hingna Road, Nagpur.
3. Vishal Deepak Devsinghaniya,
Aged about 32 years,
Occupation - Business, r/o. Tea Point,
Wadi, Nagpur.
4. Gopal Tejram Kanhere,
Aged about 62 years,
Occupation - Business,
r/o. Mahadula, Nagpur. ....PETITIONERS
VERSUS
1. State of Maharashtra,
through the Joint Secretary,
Home Department/Excise-3,
Mantralaya, Mumbai.
2. The Commissioner of State Excise,
Old Custom House, Madam Cama Road,
Mumbai.
3. The Collector, Nagpur City,
Nagpur.
4. The Collector, Bhandara City,
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Bhandara.
5. The Collector, Yavatmal City,
Yavatmal.
6. The Collector, Washim City,
Washim.
7. The Collector, Akola City,
Akola.
8. The Collector, Gondia City,
Gondia.
9. The Collector, Amravati City,
Amravati.
10. The Superintendent of State Excise,
having its office at the Collectorate
Civil Lines, Nagpur. ....RESPONDENTS
.
-----------------------------------
Mr. S.P. Dharmadhikari, Senior Advocate with
Mr. D.V. Chauhan, Advocate for Petitioners.
Mr. M.G. Bhangde, Senior Advocate with Ms. N.P. Mehta,
Asstt. Govt. Pleader for Respondents.
------------------------------------
WITH
(3) WRIT PETITION No.4675/2017.
Rammanohar s/o Nandkishor
Jaiswal, Aged about 64 years,
Occupation - Business of Country
Liquor Shop, having licence
No. CL/III/203/16-17, Phalli Market,
Katol, Tahsil Katol, District Nagpur
(Maharashtra State) and r/o. Saraswathi
Nagar, Katol, Tahsil Katol,
District Nagpur. ....PETITIONER
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VERSUS
1. State of Maharashtra,
through the Secretary,
Department of State Excise,
Mantralaya, Mumbai 400001
(Maharashtra State).
2. The Commissioner of Excise,
State of Maharashtra,
Mumbai.
(Maharashtra State).
3. Collector, Nagpur.
(Maharashtra State).
4. The Superintendent of State Excise,
Nagpur,
(Maharashtra State).
5. Assistant Engineer Grade-I
Public Works Sub Division, Katol
Tahsil Katol, District Nagpur.
(Maharashtra State).
6. Chief Officer, Nagar Parishad, Katol,
Tahsil Katol, District Nagpur.
(Maharashtra State). ....RESPONDENTS
.
-----------------------------------
Mr. H.D. Dangre, Advocate for Petitioners.
Mr. M.G. Bhangde, Senior Advocate with Ms. N.P. Mehta,
Asstt. Govt. Pleader for Respondent Nos.1 to 5.
Mr. M.I. Dhatrak, Advocate for Respondent No.6.
------------------------------------
WITH
(4) WRIT PETITION No. 5946/2017.
M/s. K.K. Tranders,
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Through its Proprietor Satish s/o
s/o Bhagwanlal Jaiswal, Aged about 44 years,
Occupation - Business,
r/o. Shivaji Ward, Pusad,
District Yavatmal. ....PETITIONER
VERSUS
1. State of Maharashtra,
through the Joint Secretary,
Home Department/Excise-3,
Mantralaya, Mumbai.
2. Collector, Yavatmal City,
Yavatmal.
3. The Superintendent of State Excise,
Having its office at the Collectorate,
Yavatmal. ....RESPONDENTS
.
WITH
(5) WRIT PETITION No. 5947/2017.
Anil s/o Champalal Jaiswal,
Aged about 47 years,
Occupation - Business,
r/o. Shivaji Chowk, Pusad,
District Yavatmal. ....PETITIONER
VERSUS
1. State of Maharashtra,
through the Joint Secretary,
Home Department/Excise-3,
Mantralaya, Mumbai.
2. Collector, Yavatmal City,
Yavatmal.
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3. The Superintendent of State Excise,
Having its office at the Collectorate,
Yavatmal. ....RESPONDENTS
.
WITH
(6) WRIT PETITION No. 5949/2017.
Amrish s/o Prakash Jaiswal,
Aged about 35 years,
Occupation - Business,
r/o. Akot,
District Akola. ....PETITIONER
VERSUS
1. State of Maharashtra,
through the Joint Secretary,
Home Department/Excise-3,
Mantralaya, Mumbai.
2. Collector, Yavatmal City,
Yavatmal.
3. The Superintendent of State Excise,
Having its office at the Collectorate,
Yavatmal. ....RESPONDENTS
.
-----------------------------------
Mr. S.P. Dharmadhikari, Senior Advocate with
Mr. D.V. Chauhan, Advocate for Petitioners.
Mr. M.G. Bhangde, Senior Advocate with Ms. N.P. Mehta,
Asstt. Govt. Pleader for Respondents
------------------------------------
WITH
(7) WRIT PETITION No. 5990/2017.
Santosh Sriramlal Jaiswal,
Age 48 years, Occupation - Business,
r/o. Near Bus stand, Malegaon,
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Tal. Malegaon, District Washim. ....PETITIONER
VERSUS
1. State of Maharashtra,
through the Principal Secretary,
(State Excise)
Mantralaya, Mumbai 400 032.
2. The Commissioner of State Excise,
Maharashtra State, Old Custom House,
Mumbai 400 023.
3. The District Collector,
State Excise Department,
Washim.
4. Superintendent of State Excise,
Washim.
5. The State Excise Inspector,
Washim, District Washim. ....RESPONDENTS
.
WITH
(8) WRIT PETITION No. 5991/2017.
Ramesh Baijnathlal Jaiswal,
Age 57 years, Occupation - Business,
r/o. Lohar Line, Pusad,
Tal. Pusad, District Yavatmal. ....PETITIONER
VERSUS
1. State of Maharashtra,
through the Principal Secretary,
(State Excise)
Mantralaya, Mumbai 400 032.
2. The Commissioner of State Excise,
Maharashtra State, Old Custom House,
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Mumbai 400 023.
3. The District Collector,
State Excise Department,
Yavatmal.
4. Superintendent of State Excise,
Yavatmal.
5. The State Excise Inspector,
Pusad, District Yavatmal. ....RESPONDENTS
.
WITH
(9) WRIT PETITION No. 5992/2017.
Shardabai Jigalkishore Jaiswal,
Age 55 years, Occupation - Business,
r/o. Subhash Chowk, Pusad,
Tal. Pusad, District Yavatmal. ....PETITIONER
VERSUS
1. State of Maharashtra,
through the Principal Secretary,
(State Excise)
Mantralaya, Mumbai 400 032.
2. The Commissioner of State Excise,
Maharashtra State, Old Custom House,
Mumbai 400 023.
3. The District Collector,
State Excise Department,
Yavatmal.
4. Superintendent of State Excise,
Yavatmal.
5. The State Excise Inspector,
Pusad, District Yavatmal. ....RESPONDENTS
.
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WITH
(10) WRIT PETITION No. 5993/2017.
Sadhana Arun Jaiswal,
Age 55 years, Occupation - Business,
r/o. Infront of Amrai, Pusad,
Tal. Pusad, District Yavatmal. ....PETITIONER
VERSUS
1. State of Maharashtra,
through the Principal Secretary,
(State Excise)
Mantralaya, Mumbai 400 032.
2. The Commissioner of State Excise,
Maharashtra State, Old Custom House,
Mumbai 400 023.
3. The District Collector,
State Excise Department,
Yavatmal.
4. Superintendent of State Excise,
Yavatmal.
5. The State Excise Inspector,
Pusad, District Yavatmal. ....RESPONDENTS
.
WITH
(11) WRIT PETITION No. 5994/2017.
Gopal Sriram Jaiswal,
Age 49 years, Occupation - Business,
r/o. Old Risod Naka, Washim,
Tal. Washim, District Washim. ....PETITIONER
VERSUS
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1. State of Maharashtra,
through the Principal Secretary,
(State Excise)
Mantralaya, Mumbai 400 032.
2. The Commissioner of State Excise,
Maharashtra State, Old Custom House,
Mumbai 400 023.
3. The District Collector,
State Excise Department,
Washim.
4. Superintendent of State Excise,
Washim.
5. The State Excise Inspector,
Washim, District Washim. ....RESPONDENTS
.
WITH
(12) WRIT PETITION No. 5995/2017.
Rambhau Mahadji Jaiswal,
Age 63 years, Occupation - Business,
r/o. Gurwar Bazar, Risod,
Tal. Risod, District Washim. ....PETITIONER
VERSUS
1. State of Maharashtra,
through the Principal Secretary,
(State Excise)
Mantralaya, Mumbai 400 032.
2. The Commissioner of State Excise,
Maharashtra State, Old Custom House,
Mumbai 400 023.
3. The District Collector,
State Excise Department,
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Washim.
4. Superintendent of State Excise,
Washim.
5. The State Excise Inspector,
Washim, District Washim. ....RESPONDENTS
.
WITH
(13) WRIT PETITION No. 5996/2017.
Pushpabai Gurbaksha Ramvani,
Age 65 years, Occupation - Business,
r/o. Near Gorakshan Well, Washim,
District Washim. ....PETITIONER
VERSUS
1. State of Maharashtra,
through the Principal Secretary,
(State Excise)
Mantralaya, Mumbai 400 032.
2. The Commissioner of State Excise,
Maharashtra State, Old Custom House,
Mumbai 400 023.
3. The District Collector,
State Excise Department,
Washim.
4. Superintendent of State Excise,
Washim.
5. The State Excise Inspector,
Washim, District Washim. ....RESPONDENTS
.
WITH
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(14) WRIT PETITION No. 5997/2017.
Vinodkumar Kundanlal Jaiswal,
Age 50 years, Occupation - Business,
r/o. Nehru Ward, Pusad,
Tal. Pusad, District Yavatmal. ....PETITIONER
VERSUS
1. State of Maharashtra,
through the Principal Secretary,
(State Excise)
Mantralaya, Mumbai 400 032.
2. The Commissioner of State Excise,
Maharashtra State, Old Custom House,
Mumbai 400 023.
3. The District Collector,
State Excise Department,
Yavatmal.
4. Superintendent of State Excise,
Yavatmal.
5. The State Excise Inspector,
Pusad, District Yavatmal. ....RESPONDENTS
.
WITH
(15) WRIT PETITION No. 5998/2017.
Ravikumar Jugalkishor Jaiswal,
Age 36 years, Occupation - Business,
r/o. Yeravar Complex, Pusad,
Tal. Pusad, District Yavatmal. ....PETITIONER
VERSUS
1. State of Maharashtra,
through the Principal Secretary,
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(State Excise)
Mantralaya, Mumbai 400 032.
2. The Commissioner of State Excise,
Maharashtra State, Old Custom House,
Mumbai 400 023.
3. The District Collector,
State Excise Department,
Yavatmal.
4. Superintendent of State Excise,
Yavatmal.
5. The State Excise Inspector,
Pusad, District Yavatmal. ....RESPONDENTS
.
WITH
(16) WRIT PETITION No. 6000/2017.
Manoj Sriramlal Jaiswal and Jivnani Co,
through its Partner,
Kishor Fatandas Jivnani,
Age 58 years, Occupation - Business,
r/o. Raviwar Bazar, Washim,
Tal. Washim, District Washim. ....PETITIONER
VERSUS
1. State of Maharashtra,
through the Principal Secretary,
(State Excise)
Mantralaya, Mumbai 400 032.
2. The Commissioner of State Excise,
Maharashtra State, Old Custom House,
Mumbai 400 023.
3. The District Collector,
State Excise Department,
Washim.
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4. Superintendent of State Excise,
Washim.
5. The State Excise Inspector,
Washim, District Washim. ....RESPONDENTS
.
WITH
(17) WRIT PETITION No. 6001/2017.
Radhesham Sriram Jaiswal,
Age 52 years, Occupation - Business,
r/o. Luxury Bus Stand, Washim,
Tal. Washim, District Washim. ....PETITIONER
VERSUS
1. State of Maharashtra,
through the Principal Secretary,
(State Excise)
Mantralaya, Mumbai 400 032.
2. The Commissioner of State Excise,
Maharashtra State, Old Custom House,
Mumbai 400 023.
3. The District Collector,
State Excise Department,
Washim.
4. Superintendent of State Excise,
Washim.
5. The State Excise Inspector,
Washim, District Washim. ....RESPONDENTS
.
WITH
(18) WRIT PETITION No. 6002/2017.
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Arvind Kanha Naik,
Age 72 years, Occupation - Business,
r/o. Shivaji Chowk, Digras Road, Pusad,
Tal. Pusad, District Yavatmal. ....PETITIONER
VERSUS
1. State of Maharashtra,
through the Principal Secretary,
(State Excise)
Mantralaya, Mumbai 400 032.
2. The Commissioner of State Excise,
Maharashtra State, Old Custom House,
Mumbai 400 023.
3. The District Collector,
State Excise Department,
Yavatmal.
4. Superintendent of State Excise,
Yavatmal.
5. The State Excise Inspector,
Pusad, District Yavatmal. ....RESPONDENTS
.
-----------------------------------
Mr. V.S. Undre, Advocate for Petitioners.
Mr. M.G. Bhangde, Senior Advocate with Ms. N.P. Mehta,
Asstt. Govt. Pleader for Respondents
------------------------------------
WITH
(19) WRIT PETITION No. 6297/2017.
M/s. Shri Sai Enterprises
through its Partners Rajeev Pyarelal
Jaiswal, Aged about 45 years,
Occupation - Business,
Digdoh, Tah. Hingna,
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District Nagpur. ....PETITIONER
VERSUS
1. State of Maharashtra,
through the Joint Secretary,
Home Department/Excise-3
Mantralaya, Mumbai.
2. The Commissioner,
State Excise, Maharashtra State,
Old Custom House, Second Floor,
Sahid Bhagatsingh Marg, Fort,
Mumbai.
3. The Collector,
Nagpur..
4. The Superintendent of State Excise,
Nagpur.
5. Gram Vikas Officer, Gram Panchayat
Digdoha and Nildoh, Tah. Hingna,
District Nagpur. ....RESPONDENTS
.
-----------------------------------
Mr. S.P. Dharmadhikari, Senior Advocate with
Mr.D.V. Chauhan, Advocate for Petitioners.
Mr. M.G. Bhangde, Senior Advocate with Ms. N.P. Mehta,
Asstt. Govt. Pleader for Respondent nos. 1 to 4.
Mr. A.S. Bhendarkar, Advocate for Respondent No.5.
------------------------------------
CORAM : B. P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
Date of Reserving the Judgment : 18.12.2017.
Date of Pronouncement : 10.01.2018.
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JUDGMENT. (Per B.P. Dharmadhikari, J)
All these petitions question the notification dated 01.09.2017,
issued by the State Government amending Rule 24[4] of the Maharashtra
Country Liquor Rules, 1973 as unconstitutional and violative of Articles 14,
19[1][G] and 21 of the Constitution of India, as also contrary to Section
143 of the Maharashtra Prohibition Act, 1949. The Rules are hereinafter
referred to as "the 1973 Rules", while the Act is referred to as "the
Prohibition Act", for short. As these matters raise same challenge, in view
of the joint request made by the learned counsel appearing for the parties,
all have been heard together. Shri S.P. Dharmadhikari, learned Senior
Counsel with Shri D.V. Chauhan, learned Counsel argued Writ Petition
No.5938/2017 and Shri M.G. Bhangde, learned Senior Counsel with Ms.
N.P. Mehta, learned Assistant Government Pleader opposed the petitions on
behalf of the State Government. Respective other Counsel have also adopted
their arguments only. By their consent and considering the nature of
controversy, Petitions are heard finally by issuing Rule in all the petitions,
making the same returnable forthwith.
2. On 12.09.2017, when this Court issued notice in Writ Petitions,
following order came to be passed :
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" Heard for some time.
2. Submission in short is, those whose licences
were already renewed from 1.4.2017 to 31.3.2018 have
been permitted to function as per orders dated
31.8.2017 in Writ Petition No. 3250/2017.
3. Others whose licences normally should have
been renewed but for no fault on their part, were not
renewed have been subjected to amendment published
on 1.9.2017. Thus, there is discrimination between the
licensees.
4. It is pointed out that in any case amendment
to Rule 24 of the Maharashtra Country Liquor Rules,
1973 cannot apply retrospectively and language of
amendment does not imply so. It is submitted that thus
licences which are not renewed can also not be subjected
to this new norm.
5. The petitioners insist for grant of interim
order in terms of prayer clause - (iv).
6. Learned acting Government Pleader is seeking
time. He points out that he has received petitions
yesterday only.
7. Learned Senior Counsel for the petitioners
points out that as there was caveat filed, the
respondents should have been ready.
8. It is not in dispute that caveat has been filed
on 4.9.2017.
9. In this situation, in the backdrop of order
dated 31.8.2017 in Writ Petition No.3250/2017 and
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arguments noted (supra), we grant ad-interim relief in
terms of prayer clause (iv) until further orders.
Stand over to 26.09.2017.
Steno copy of the order is granted."
3. By Sub-rule [4] as amended, the petitioners who already have
licences to run country liquor shop (CL-III Licences), are expected to possess
minimum 25 square meters of area, and there are certain other conditions
added as eligibility conditions in this respect. The basic contention of
petitioners is, these modified contentions cannot be applied to their licences
and at the most can regulate the licences to be issued in future.
Requirement of satisfying the new conditions/amendment is, therefore, bad.
The State Government has submitted that the amended contentions are
prescribed in public interest and have been brought into force at once. They
also apply to the licences to be renewed and unless and until the petitioners
comply therewith, their licences cannot be renewed.
4. Shri Dharmadhikari, learned Senior Counsel in this background
has submitted that the petitioners have sought renewal for period from
01.04.2017 to 31.03.2018. Because of the issues which arose out of
judgment of Hon'ble Supreme Court in case of State of Tamil Nadu vs. K.
Balu & another --
2 SCC 281), prohibiting liquor shops on
Highways, their applications for renewal were kept pending and on
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01.09.2017, Rules have been amended. The amended Rules therefore,
cannot govern their applications which are moved before 01.04.2017. It is
further pointed out that as petitioners have got their shops in
structures/localities which are duly approved by respondents as per law, if
modified conditions are extended, petitioners will be required to find out
other accommodation and can be thrown out of the business, either
temporarily or permanently; thereby affecting their means of livelihood and
prospects of family. Such new conditions therefore, must apply only to
new licences and cannot be used to uproot existing businesses. Inviting
attention to the provisions of Section 143[3] of the Prohibition Act, he points
out that Rules can be amended only after satisfying the conditions of
previous publication as understood in Section 24 of the Bombay General
Clauses Act,1904. S. 143 no doubt permits State Government to dispense
with this condition of previous publication, but, then that decision must be
taken before hand and must be reflected in the notification notifying the
amendment. Here such conscious decision is not at all appearing anywhere
on record. A communication by the Desk Officer issued two weeks after
such modification cannot satisfy the mandatory requirements of Section
143[3]. To explain the scope of application of mind in this respect, he
places emphasis on word "considers" in proviso to Sub-section [3] and also
draws support from judgment of Hon'ble Supreme Court reported at (2008)
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4 SCC 14 (Bhikubhai Vithalbhai Patel and others .vrs. State of Gujarat
and another). He has taken us through the relevant pleadings of parties to
submit that the State Government does not any where plead that it applied
mind to material made available to it and consciously dispensed with the
requirement of previous publication.
5. Retrospective operation from 01.04.2017 in case of petitioners is
also not supported by any explanation. According to him, measures
introduced by amendment are not so urgent as to dispense with the
requirement of previous publication or then procedures to be followed
thereafter. In any case, according to him, such measures should have been
made applicable prospectively by sparing the licences which are already in
operation. Section 143[4] laying down the requirement of placing such
Rules before both the Houses of State Legislature is also pressed into service
for this purpose.
6. In an effort to demonstrate how the amended provisions cannot
apply to existing licences, he invites attention to provisions of Rule 23 of
1973 Rules, and further mechanism as prescribed in Rule 23A, Rule 23B and
Rule 24. Rule 24 distinguishes treatment to be given to initial licence and to
its renewal thereafter. He submits that licence already granted needs to be
renewed as a matter of course. Collector can refuse renewal only if there is
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breach of any of the terms and conditions of licence or then facts reveal that
retail licensee has not been working/operating the licence properly. As
these two contingencies are lacking, request for renewal cannot be refused.
7. To further the line of his argument, he also relies upon Section
24[4] and points out that new stipulations therein were not extended to
existing shops holding valid licence in Form CL-III immediately before
coming into force of the Maharashtra Country Liquor (Amendment) Rules,
1981. Similar treatment and similar interpretation therefore can be adopted
here. To buttress his submissions that there can be no retrospective effect to
such provisions, he draws support from judgments reported at (2006) 3
SCC 620 (Mahabir Vegetable Oils (P) Ltd. And another .vrs. State of
Haryana and others) and (2013) 15 SCC 1 (State of Rajasthan and
others .vrs. Basant Agrotech (India) Limited).
8. According to the Petitioners, clauses added as (a-i) to (a-iii)
added are beyond Rule making powers. Section 143 empowers the State
Government to make Rules for the purposes of Bombay Prohibition Act or
then any other law, if it is relating to excise revenue. Thus, provisions of
other laws having no bearing on excise revenue cannot be looked into for
the purpose of Section 143[1]. Amended provisions which envisage
adequate parking facility or then non-agricultural permission or completion
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certificate, therefore attempt to incorporate the provisions of Bombay Police
Act, or Maharashtra Land Revenue Code or Maharashtra Regional and Town
Planning Act or other Municipal laws. Compliance with none of these laws
can be turned into rules to be framed in exercise of powers under Section
143[1].
9. Lastly, he adds that such compliances have not been added for
other licences like FL-II Licence or then Permit Rooms. He therefore, prays
for allowing the petitions by quashing and setting aside the notification
dated 01.09.2017.
10. Shri M.G. Bhangde, learned Senior Counsel appearing for
respondent State Government submits that amendment to Rules applies to
fresh grants as also to renewals. He has drawn our attention to paragraph
no.3 of the notification dated 01.09.2017, to show that expressly measures
added have been excluded from concession or exemption given to old
licensees by Rule 24[4] (proviso). Hence, retrospective operation or
compliance is felt necessary by the rule making authority such an intention
of the legislature can not be avoided.
11. He points out that the requirement of having 25 square meters
area for shop is made applicable on uniform basis and as licence granted is
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only for a period of one year, at the time of renewal, the new provisions has
been made applicable. Inviting attention to Form of licence, particular
Clauses 15 to 17 therein, he submits that renewal is not an extension and
renewal is at the discretion of the Collector. He has relied upon judgments
reported at 2011 (5) Mh.L.J. 412 (Jitendra Manindranath Bose .vrs. State
of Maharashtra and another) and (1981) 2 SCC 205 (State of Tamil
Nadu .vrs. M/s. Hind Stone and others), to submit that there is no vested
right in any of the petitioners to do business in country liquor and, further
that the 1973 Rules need to be construed as part of Act. Rules therefore,
apply even to existing licences. Judgment reported at (2010) 5 SCC 186
(State of Kerala and another .vrs. B. Six Holiday Resorts Private Limited
and others), is pressed into service by him to submit that Rules prevailing
on the date of application for licence do not apply when its renewal is
sought. Rules as modified, and in operation at the time when its renewal is
sought, apply. He also invites attention to difference in concept of "renewal"
and "extension". Relying upon judgment reported at (2016) 9 SCC 240
(State of Gujarat and others .vrs. Nirmalaben S. Mehta and others), he
urges that renewal is not different than fresh grant of licence.
12. According to him, notification issued on 01.09.2017, specifically
brings on record desire of State Government to bring into force the
amendment at once without previous publication and hence, the use of its
Judgment wp5938.17
power by the State Government cannot be said to be arbitrary. In any case
burden to show that there was no such satisfaction recorded while
dispensing with the previous publication is on petitioners. This Court has to
draw presumption that all condition precedents have been fulfilled here.
13. As Rules form part of the Act, he submits that it is use of its
legislative power by the State Government and it can not be assailed except
in very narrow field. Judgment of Hon'ble Supreme Court reported at
(1976) 4 SCC 709 (Mayongbam Radhamohan Singh .vrs. The Chief
Commissioner (Administrator), Manipur and others), is relied upon to
urge that reasons disclosed by the State Government on affidavit must be
accepted. Judgment reported at (2011) 9 SCC 1 (K.T. Plantation Private
Limited and another .vrs. State of Karnataka), particularly paragraph no.
85 is pressed into service to demonstrate limited scope open even while
challenging delegated legislation and he submits that the State Government
is therefore, not bound to give any reasons. However, he draws support
from letter dated 19.09.2017 sent by Shri S.S. Yadav, Desk Officer to
Commissioner, State Excise to demonstrate satisfaction reached by the State
Government for dispensing with previous publication. He states that there is
no challenge to the contents of this letter and again invites attention to
paragraph no.19 of the judgment in case of Mayondgbam Radhamohan
Singh .vrs. The Chief Commissioner (Administrator), Manipur (supra).
Judgment wp5938.17
14. Without prejudice to above arguments and in the alternate, he
reads out Section 139 to submit that the powers given therein to State
Government are general, very wide in nature and also over-riding,
therefore, the impugned exercise of State Government can also be sustained
under said provision. Judgment reported at (2016) 8 SCC 743 (Gujarat
Urja Vikas Nigam Ltd. vrs. Tarini Infrastructure Ltd.), particularly its
paragraph no.17 is read out to show how the word "regulate" has been
understood in wide manner. In absence of any allegations of malafides, such
an amending measure, therefore, must be treated as legal and valid.
15. As law prevailing on the date of consideration of application for
renewal is being applied, there is no retrospective application. He further
submits that licencees under Prohibition Act are not allowed to violate other
provisions of Municipal Laws and only to regulate licensed business, the
State Government has mandated compliance with N.A. permission, sanction
etc. These conditions cannot be seen as outside the scope of Section
143[2][b], which allows State Government to regulate sale. Premises to be
used for such sale are to be approved by the State Government and hence,
above stipulations relating to such premises need to be adhered to.
16. He submits that there is no discrimination qua FL-II licencees, as
Judgment wp5938.17
FL-II licencees are also required to comply with these provisions and
requirements of possessing 25 square meters minimum, is applicable in their
case since long. He relies upon reply filed on record for this purpose.
Communication dated 09.11.2016, sent by the Deputy Commissioner to
Superintendent of State Excise is also read out to show that how the traffic
department of police is required to consider various aspects including
provision for parking. The opposition of women residing in the area is also
communicated by that Officer to the State Excise Department. Shri
Bhangde, learned Senior Counsel submits that in this situation, the State has
acted in larger public interest and no other inference can be drawn against
it. Trade in liquor is not a fundamental right and steps taken to regulate it,
therefore, must be honoured by the Petitioners.
17. In his brief reply, Shri S.P. Dharmadhikari, learned Senior
Counsel has insisted upon need of previous publication and process to be
followed thereafter. According to him, had petitioners been given
opportunity to object, the irrelevance of conditions sought to be imposed
would have surfaced and considered by the State Government. Section
139[1] is not a substitute for rule making powers and it cannot be used to
supplement Section 143. Efforts made to save offending circular by pointing
out Section 139, therefore, has to fall. He has relied upon judgment of Privy
Council reported at AIR 1946 PC 156 (Kind Emperor .vrs. Sibnath Banerji
Judgment wp5938.17
and others), for said purpose. He further submits that clause 8 in CL-III
licence given to petitioners does not permit consumption outside the
licensed premises& hence, said excuse for forcing larger shop area is not
available. The provision in Clause 17 conferring discretion upon
Collector is subject to Rule 24[3] and hence, new conditions as sought to be
added cannot be resorted to deny renewal. Only in contingencies stipulated
under Rule 24[2][A] and [3], the renewal can be refused and not
otherwise. He therefore, prays for allowing the Writ Petitions.
18. Both the learned Senior Counsel have taken us through relevant
part of their pleadings. Other learned counsel have also taken us through
pleadings in their matters, but, then basic contentions of both the sides are
same.
19. Because of orders passed by this court on 12.09.2017 [supra], the
licences of petitioners are already in force. In our order dated 12.09.2017,
we have taken note of the fact that there are other licensees who have
secured renewal for a period from 01.04.2017 to 31.03.2018 and their
business is going on, as it is not affected by the amendment effected on
01.09.2017. The persons whose licences were already renewed have been
permitted to continue as per orders dated 31.08.2017 in Writ Petition
No.3250/2017.
Judgment wp5938.17
20. We therefore, have one set of licensees whose licences have been
renewed before 01.09.2017 and therefore not affected by the amendment,
and permit them to do their business as before, till 31.03.2018. Precisely
this reason prompted us on 12.09.2017 to permit present petitioners also to
continue their business. Thus, during pendency of the petitions, we have
restrained respondents from subjecting the renewal applications of
petitioners to amended provisions and to consider renewal in terms of
Rules prevailing as on 01.04.2017. Respondents have not pointed out that
as per Rules in force on 01.04.2017, Petitioners did not apply within time for
such renewal or then that the licence of petitioners could not have been
renewed. On the contrary, after interim directions of this Court, their
licenses have been renewed thereby implying that renewal could not have
been otherwise refused to them.
21. Rule 24[2A] of 1973 Rules contemplate an application for renewal
30 days before 31.03.2017. Petitioners accordingly have moved that
application. Sub-rule [3] of Rule 24 empowers the Collector to refuse
renewal, if petitioner has violated any term or condition of licence or has
improperly used his licence. There is no such report by the respondents.
We therefore, cannot make any discrimination amongst licensees whose
licences have been renewed before 01.09.2017 and present petitioners
Judgment wp5938.17
whose licence could not be so renewed.
22. The provision conferring the Rule making power is contained in
Section 143. Sub-rule [3] also empowers to make rules by waiving or
condoning previous publication. Proviso thereto permits making of Rules
without such publication if the State Government considers that it should be
brought into force at once. Sub-section [4] thereof requires such Rules to be
laid for not less than 30 days before each House of Legislature. No
arguments are advanced before us on Section 143[4]. It is apparent that the
proviso to Sub-section [3] obliges the State Government to take necessary
decision on waiving publication before Rules are actually published and
brought into force at once. Decision therefore, in present matter ought to
have been before 01.09.2017. Impugned notification dated 01.09.2017
makes mention of need of bringing into force Rules at once, and therefore,
to make the same without previous publication. Petitioners have questioned
this exercise by pointing out that the facet of urgency envisaged in sub-
section [3] & relevant aspects do not find any consideration. In paragraph
no.15 of their Writ Petition, it is submitted that previous publication cannot
be avoided and power cannot be exercised by the State Government in
routine manner. Amendment of such a nature to Rules could not have been
effected suddenly. They also point out in paragraph no.18 that exception is
Judgment wp5938.17
made in case of FL-III licence. Reply filed by respondents draws support
from a communication dated 19.09.2017 to point out compliance with
Section 143[3]. This communication dated 19.09.2017 is by the Desk officer
Shri Yadav, and it is sent to Commissioner of State Excise. It is specifically
in reference to present Writ petition. Writ Petition No. 5938/2017 finds
mention
as caption of subject in it.
23. In this letter there is reference to various complaints received by
the State Government about CL-III shops, and peculiar problems arising
because of class of consumers. In this letter the Desk Officer mentions that
as size of shop is only 16 square meters, the consumers drink on public road
which affects general public, women-children and also creates other legal
issues. It also mentions that for sale of Foreign Liquor, minimum area
stipulated is 25 sq. mtrs. and hence, same area is being mandated even for
CL-III shops. The letter also mentions that CL-III licenses are old and mostly
in center of the cities, where legal/authorized construction (structure) is not
available and NA permission therefor are also not obtained. Consumers and
customers park their vehicles in congested narrow space and therefore,
various amendment to Rule 24[4] were proposed. The compliance with the
same is envisaged at the time of renewal. Because of this reason, previous
Judgment wp5938.17
publication has not been felt necessary. Again in paragraph of this letter,
thereafter, number of Writ Petition 5938 of 2017appears.
24. After this reply, petitioners have filed their rejoinder and reiterated
that need of dispensing with previous publication has not been explained.
They have also contended that there was no material with the State
Government for taking such a decision before 1.9.2017. In paragraph no.15
of rejoinder they have pointed out that in Brihan Mumbai, for FL-III licence,
the area requirement has been dispensed with. Respondents have filed their
sur-rejoinder and in it in paragraph no.4 they have pointed out quasi
legislative nature of rule making power and therefore, limited power
available to Courts of law in judicial review. The State Government has in
sur-rejoinder highlighted their reply filed before this Court, particularly
paragraph no.4. The said highlighted portion in paragraph no.4 reads as
under :
" Further the amended provisions will be
applicable to all CL-III licensees throughout the
State as and when they approach for renewal.
Some licences are due for renewal now, some will be
due in March/2018 and some in March/2019 and
so on. Thus, there is no discrimination as all the
licensees are required to comply with the amended
Judgment wp5938.17
provisions. Just because some are required to
comply with before others cannot be, in the humble
submission of respondents, ground to allege
discrimination."
After this sur-rejoinder, petitioners have filed sur-sur-rejoinder. Respondents
thereafter have filed one more reply on affidavit.
25. Respective counsel have raised various contentions before us about
subjective satisfaction and mode and manner in which it should be recorded
while dispensing with the condition of previous publication. None had
however disputed that same can be dispensed with in an emergent situation.
Portion of paragraph no.4 of the reply submitted by the respondents
reproduced supra reveals that all CL-III licences operating in State of
Maharashtra are/were not due for renewal on 01.04.2017. Some such
licences will become due for renewal in March, 2018, while others become
fall due for renewal in March, 2019. Language employed in this paragraph
shows that some CL-III licences are due for renewal even after March, 2019
obviously in March, 2020 or thereafter. Thus, these licences which are
not due for renewal have been permitted to continue till they seek renewal
again. If last of such licence has been permitted to complete the period of
renewal, and therefore, operate till 31.03.2020, we find that a reasonable
time could have been given even to present petitioners to comply with the
Judgment wp5938.17
modified terms and conditions.
26. The provisions of Section 143[3] of Prohibition Act speak of
exercise of rule making power subject to condition of previous publication
i.e. to provisions of Section 24 of Bombay General Clauses Act,1904. Thus,
it allows aggrieved party to raise objection and therefore, cast an obligation
upon the rule making authority to consider said objection. Admittedly, this
procedure has not been followed in the present matter. Importance of this
procedure is seen in recent Division Bench judgment reported at 2015(5)
Mh.L.J. 830 ( Dr. Avinash Ramkrishna Kashiwar & ors. Vs. State
of Maharashtra & ors).
27. The need, if any, to dispense with previous publication ought to
have emerged in present facts before 01.09.2017. On the basis of alleged
material like complaints received or data collected, there may be a
conscious decision to dispense with such publication and that decision
would be of a day prior to 01.09.2017. Resulting exigencies should have
been on record with reference to some events and reflected in Government
files. Mind application warranting prompt action or steps forthwith could
have constituted relevant material for reaching the requisite subjective
satisfaction. Power to bring into force Rules at once by dispensing with
Judgment wp5938.17
previous publication is an exceptional mode and definitely, such exceptional
situation needed to be placed on record by the State Government. No such
case has been pleaded & no where on record any such application of mind
is proved by the respondents. State has nothing more but, the letter dated
19.09.2017, prepared later on to show in defence. It is not mentioned even
in communication dated 19.09.2017 sent by the Desk Officer Shri Yadav.
The communication dated 19.09.2017, is precisely on Writ Petition No.
5938/2019, and challenge arising out of absence of previous publication.
Had there been such a conscious decision reached before 01.09.2017, it
would have definitely found mention in the said communication issued by
Shri Yadav. Had it existed, it would have also come before this Court.
28. Though both the learned senior counsel have commented on the
pleadings by rival side in this respect and pressed into service various
precedents showing how mind needs to be applied or then, how
presumption needs to be drawn in favour of the State Government, in these
facts we do not find it necessary to comment on their contentions. The
communication dated 19.09.2017 by Shri Yadav, conspicuously brings on
record absence of the satisfaction by the State Government to make rules
without complying with the condition of previous publication. Shri Yadav,
has at the end of his letter referred to its earlier paragraphs, to state that
because of those paragraphs, previous publication was not felt necessary.
Judgment wp5938.17
However, date on which such decision was reached and material or facts
then looked into, are not pointed out by him. Subsequent contention or
stipulation that because of alleged material pointed out to this court,
compliance with such procedural requirement was waived, cannot substitute
the need to demonstrate application of mind before hand i.e. before taking
step to bring the amendment to 1973 Rules into force at once.
29. Though the Rules have been brought into force at once and there
is an attempt to make distinction between 'renewal' and 'extension', again
the fact that licences already renewed and therefore, permitted to
continue/operate at least till March, 2020 or even thereafter are not being
affected thereby, is not in dispute.
30. When CL-III licences are permitted to operate even in area of 16
sq. mtrs., after 01.09.2017 for period of about three years or more, and
when other conditions added by notification dated 01.09.2017 are also not
made applicable to them, till then, we find the insistence on bringing into
force the amendment at once by deviating from the normal procedure,
unwarranted and arbitrary. "Previous publication" is a measure prescribed
in public interest so that all concerned can then place their grievances, either
in favour of or against, for evaluation before the State Government. Here
when the licences are to operate for period of about 2 or more years (from
Judgment wp5938.17
now), the State Government could have very well taken a conscious
decision after inviting objections as envisaged in Section 24 of the Bombay
General Clauses Act,1904. In any case, if situation is so grave, it could have
withdrawn the privileges extended to all without any exception instead of
permitting few to continue for long periods in future.
31. Prohibition Act itself allows the State Government to part with its
absolute privilege subject to strict riders. Its Section 143 only contemplates
Rules to be made subject to previous publication. Hence, nature of such
license or right of licensee thereto or pernicious nature of trade is not
determinative here. If the State Government felt that situation is so urgent
that Rules must be brought into force at once, then it could not have made
any distinction between CL-III licences, contingent upon the period for
which renewal is granted to them. It could have subjected all CL-III licences
from a particular date to those terms and conditions. Trade in liquor is not
a fundamental right and licence is a privilege parted by the State
Government in his favour and it can be therefore subjected to suitable
stringent controls. Under Bombay Prohibition Act, there are various
provisions including Police power like under Section 142, where in grave
cases, the Collector can order suspension and even close down the place of
business.
Judgment wp5938.17
32. As we find the condition of previous publication breached in
present matter, we are not commenting upon the contention of petitioners
that compliance with other Statutes or Municipal laws cannot be enforced
through such amendment. If an objection on these lines is raised by the
Petitioners before the State Government while opposing the proposed Rules,
the State Government can appropriately evaluate it at that juncture.
33. Only other consideration which needs to be dealt with in present
matter is about the scope of power available to the State Government under
Section 139 of the Prohibition Act. Section 143 of the Prohibition Act is the
power of the State Government to make rules and it is for the purpose of
carrying out provisions of such Act or any other law for time being in force
relating to excise revenue. Sub-section [2] then gives various heads under
which the Rules can be framed by the State Government. As held by the
Privy Council in case of Kind Emperor .vrs. Sibnath Banerji and others
(supra), such provisions in sub-rule [2] is accordingly an illustrative one.
Power under sub-rule [2] is, therefore, not restricted to general power
conferred upon the State Government by sub-section [1] of Section 143.
Section 139 is a general power of State Government in respect of licences
etc. This provision in its sub-section [1] opens with a non-obstante clause.
It overrides the provisions of Prohibition Act itself or even Rules made
thereunder. It therefore, contains an over riding power and gives it to State
Judgment wp5938.17
Government which has parted with its privilege in the shape of licence in
favour of petitioners. Clause (N) therein contains a residuary power and
enables the State Government to issue instructions in any matter pertaining
to grant or otherwise of licence, permits etc. Its clause (A) prohibits grant of
licence, while Clause (B) therein may not have any bearing on the present
controversy. Word "regulate" as explained by the Hon'ble Supreme Court in
case of Gujarat Urja Vikas Nigam Ltd. vrs. Tarini Infrastructure Ltd.
(supra), shows that it implies vide powers in State, including Prohibition.
Relevant discussion is contained in paragraph no.17.1 and 17.2 of this
judgment. Here the question before us is, whether after giving licence to
operate and sale, independent of terms and conditions of such licence,
recourse to Section 139[1] is available and directions contrary to Rules
framed statutorily in rule 143 can be issued only to few licensees excluding
others? The impugned action dated 01.09.2017 amends 1973 Rules and
does not rely upon Section 139 as source of power anywhere. Material on
record also does not satisfy even such action against petitioners alone.
Hence, we leave the question whether such an action is possible under
Section 139[1] of the Prohibition Act, open for consideration in more
appropriate facts. The State Government has various powers under Section
142, Section 139 and other provisions of the Prohibition Act where, if the
situation be so grave, even forthwith closure or suspension of the shop may
Judgment wp5938.17
have been ordered. Here other CL-III licensees are permitted to operate
and function without any hindrance for a period at least upto March, 2020
or thereafter. Respondents have not pointed out any material to enable us
to hold that the petitioners are not similarly situated or could not have been
given reasonable time to comply.
34. The measures sought to be accomplished by respondents do not
appear to be of urgent nature and it allows them period of next 2/3 years
to completely enforce it. If the situation is so urgent that CL-III shops
cannot be permitted in existing structures, appropriate powers can be
exercised by the State Government to put an end to the business being done
therein. If others can continue their business for next 2/3 years, petitioners
could have also been given reasonable time to make alterations or procure
suitable alternate shop. In any case, State here does not present a situation
so emergent as to sustain even a subjective satisfaction to dispense with
normal rule of previous publication. As a matter of fact, no such decision
reached before 01.09.2017 is shown or substantiated before us by the State
Government.
35. Applications for renewals were moved by the Petitioners well
before 31.03.2017. Some of them have also paid to the State the fees for
renewed license. Had their application been allowed before 01.09.2017,
Judgment wp5938.17
these Petitioners also could have continued at least till 31.03.2018 at their
existing place of business. Admittedly few licenses are already renewed for
period from 01.04.2017 to 31.03.2018. The facts or events and in any case
the mind-application if any, justifying such action therefore must be after
grant of renewal to others but before the consideration of the renewal
requests moved by these Petitioners. It has to be prior to 01.09.2017 in any
case. Neither such event or incident is pleaded nor exercise of power proved
before us by the State Government.
36. In view of this finding, it is not necessary for us to delve more into
the controversy. Accordingly we quash and set aside the notification dated
01.09.2017, issued by the respondents.
37. Writ Petitions are thus, allowed. Rule is made absolute in the
aforesaid terms with no order as to cost. All pending civil applications also
stand disposed of accordingly.
JUDGE JUDGE
Rgd.
