Bombay High Court
Gondia District Liquor Sellers ... vs The State Of Maharashtra, Thr. ... on 27 January, 2023
Bench: Avinash G. Gharote
(1) 1wp673.23
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 673 OF 2023
Gondia District Liquor Sellers Association__ Vs. ___State of Maharashtra and ors
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. R.S.Kurekar, Advocate for petitioner
Ms. T. Khan, AGP for Respondent Nos. 1 to 3
CORAM : AVINASH G. GHAROTE, J.
DATE : 27/01/2023
1] The petition challenges the order dated
10.1.2023 (pg.19) by which, in view of the statutory
mandate as contained in Section 135-C of the
Representation of Peoples Act, 1951 (in short RP Act),
the Respondent No. 3/Collector, Gondia has directed the
sale and distribution of the liquor throughout the District
to be prohibited from 4 p.m of 28.1.2023 to 30.1.2023
and also on 2.2.2023.
2] Ms. Khan, learned AGP upon instructions
states that the prohibition on 2.2.2023 continues.
3] The language of Section 135-C is necessarily
required to be considered.
135-C. Liquor not to be sold, given or distributed on
polling day.--(1) No spirituous, fermented or
intoxicating liquors or other substances of a like nature
shall be sold, given or distributed at a hotel, eating
house, tavern, shop or any other place, public or private,
within a polling area during the period of forty-eight
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hours ending with the hour fixed for the conclusion of
the poll for any election in that polling area.
(2) Any person who contravenes the provisions of
sub-section (1), shall be punishable with imprisonment
for a term which may extend to six months, or with fine,
which may extend to two thousand rupees, or with both.
(3) Where a person is convicted of an offence under this
section, the sprituous, fermented or intoxicating liquors
or other substances of a like nature found in his
possession shall be liable to confiscation and the same
shall be disposed of in such manner as may be
prescribed.
4] A perusal of the above language would
indicate that the prohibition is a statutory mandate, for
which there is no requirement of consideration of any
parameters for its applicability by the respondents. Sub
Section (2) of Section 135-C of the RP Act makes the
violation of the prohibition as contained in Section 135-
C(1) to be punishable with imprisonment for a term
which may extend to six months or with fine which may
extend to Rs.2000 or both. Section 135-C of the RP Act
does not indicate the requirement of any order being
passed by the respondents for the imposition of the
prohibition as contained in Section 135-C(1) of the RP
Act, as that is a statutory mandate, which is obligatory
upon one and all. The order dated 10.1.2023 is merely
communicating the statutory prohibition as contained in
Section 135-C of the RP Act. Till such time the statutory
mandate of Section 135-C stands on the statute book,
everybody is bound by it, specifically in light of the
position that the said mandate does not empower any
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authority to grant any concession therein or leeway in
any manner whatsoever.
5] Though reliance is placed upon the interim
order dated 25.1.2023, passed by the learned Single
Judge of this Court at the principal seat (Mr. Milind N
Jadhav, J,) in All India Wine Producers Association vrs.
Deputy Secretary and ors in Writ Petition Stamp No.
2457/2023, the order does not indicate that it was
passed after consideration of the provisions of Section
135-C of the RP Act and the statutory mandate as
contained therein. The reliance upon the judgment of the
learned Division Bench in Sanjiv Balbeer Singh Kamboj &
anr vrs. District Collector and anr, Writ Petition
No.503/2023, appears to be misplaced, as the judgment
merely relies upon the interim order in All India Wine
Producers Association (supra), for holding that the
prohibition imposed on 28.1.2023 and 29.1.2023 shall
not be treated as dry day, as the polling is scheduled only
on 30.1.2023.
6] It is not disputed by Mr. Kurekar, learned
counsel for the petitioner that the order in All India Wine
Producers Association (supra), was an interim order and
so also the fact that it does not indicate that Sect 135-C
of the RP Act, was under consideration therein.
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7] The nature of challenge therefore, as raised
in All India Wine Producers Association (supra) would be
required to be considered and therefore, it would be
appropriate that a copy of the Writ Petition be placed on
record.
8] At this stage, learned AGP has stated that
she has received an urgent communication just now from
the office of the Chief Election Officer, Maharashtra State
indicating that the prohibition as mentioned in the
impugned order dated 20.1.2023 has been restricted only
to 30.01.2023, the date of polling. The communication is
taken on record and marked as "X" for the purpose of
identification, considering which in view of what is stated
in the communication dated 27.01.2023,the impugned
order shall have to be construed as having stood
modified by the communication dated 27.01.2023,
meaning thereby that the prohibition would now be
restricted only to 30.10.2023.
9] Issue notice for final disposal returnable on
30.1.2023
10] Learned AGP waives notice for respondent
11] Mr. Kurekar, learned counsel for the
petitioner shall serve the notice for Respondent No.2
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upon Mr. Kasat, the standing counsel for the Election
Commission.
12] It is made clear that the petition may be
finally decided on 30.1.2023, considering the nature of
the challenge.
JUDGE
Rvjalit
Digitally sign byRAJESH
VASANTRAO JALIT
Location:
Signing Date:27.01.2023 19:27
