Bombay High Court
Nagpur Zilla Chillar Deshi Daru ... vs State Of Maharashtra, Thr. ... on 27 January, 2023
Bench: Avinash G. Gharote
(1) 969wp496.23
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 496 OF 2023
Nagpur Zilla Chillar Deshi Daru Vikreta Sangh and ors__ Vs. ___State of Mah. & 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. S.P.Bodalkar, Advocate for petitioner
Ms. T. Khan, AGP for Respondent Nos. 1 & 2
CORAM : AVINASH G. GHAROTE, J.
DATE : 27/01/2023
1] The petition involves question as to whether
the provision of Section 135-C of the Representation of
the People Act 1951 (in short RP Act) which prevents the
selling of liquor and other substances within a polling
area during the period of 48 hours ending with the hours
fixed for conclusion of the poll for an election held in
that polling area, is mandatory in nature or whether they
give any leeway to the authorities in any manner
whatsoever.
2] It is contended that the said question has
been considered by a learned Single Judge of this Court
at the principal seat (Milind N. Jadhav, J ) in Writ
Petition Stamp No. 2457/2023 All India Wine Producers
Association vrs. The Deputy Secretary and others, in
which by an order dated 25.1.2023 and by way of an
interim order, it has been directed that the ban imposed
shall be restricted only to 30.1.2023. It is also contended
that based upon this order, the learned Division Bench of
this Court in Sanjiv Balbeer Singh Kamboj and ors vrs.
(2) 969wp496.23
Dist Collector, Bhandara, Writ Petition No. 503/2023
decided on 27.1.2023, relying on the interim order in All
India Wine Producers Association (supra) has modified
the order of the Collector, Bhandara and has held that
the prohibition would operate only on the polling day
which is 30.1.2023 and not on 28.1.2023 and
29.01.2023. It is therefore contended that the aforesaid
course of action need to be followed in the present
matter also.
3] Ms. Khan, learned AGP vehemently opposes
the same and submits that the language of Section 135-C
of the RP Act, 1951 is peremptory in nature and does not
grant any leeway to any of the authority, including the
respondents who are officers under the Maharashtra
Prohbition Act, to create any exemption regarding the
same and therefore since the order impugned has been
passed in pursuance to Section 135-C of the RP Act 1951,
the same cannot be interfered with or diluted.
4] The judgment of the learned Division Bench
of this Court has considered a similar order passed under
Section 135-C of the RP Act, which declares 28.01.2023
to 30.01.2023 as well as 02.02.2023 as dry day and
relying upon All India Wine Producers Assocation (supra)
has restricted the dry day only to 30th January 2023
which is the date of polling. The order in All India Wine
Producers Association does not indicate that the learned
Single Judge was considering the provision of Section
135-C of the RP Act while passing the order dated
(3) 969wp496.23
25.1.2023, considering which the petitioners are directed
to place on record the copy of the Writ Petition No.
503/2023 (Sanjiv Balbeer Singh Kamboj and anr vrs.
District Collector) by 30.01.2023, as that is a position
which will have to be considered as to whether the said
order was passed in respect of a challenge viz-a-viz
Section 135-C of the RP Act.
5] The matter needs consideration, as there are
contradictory notifications and orders being passed in
this regard from time to time, considering which the
Election Commission also appears to be a necessary and
proper party.
6] Leave is therefore granted to add the
Election Commission as a party respondent in WP No.
496/23.
7] The notice of the petition be served upon
Mr.Kasat, learned Standing counsel for the Election
Commission, returnable on 30.1.2023.
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
(4) 969wp496.23
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] List the matter on 30.01.2023.
JUDGE
Rvjalit
Digitally sign byRAJESH
VASANTRAO JALIT
Location:
Signing Date:27.01.2023 19:27
