WRITPBTITIONNO. 3&9 0172003 / WRITPETITION U/H // 226/227 OF THE COMITITUTIONOFINDIA PETITIONER: Ashok Singh, S/o VEshnu Lok wSingh,’ aged about / Ixb. 5/350, mar 32 Pm years, Hmda R/o H Show Room, Kotra Road Raigeuh, Distt Rawh (0.6.) PERSUS RESPONDENTS: .-‘ .V" (I) Stae of @haaisgrh, mroug‘l _ Sam-aw Finance Planning Gnnmxerdal Tax (Excise) DePartmmt, DKS Hmwm, Ra5pur (CG) Collector, Jmjg'r—Champa, H’stt. Janjg'r—- Champa (C.G.) Dania Excise OfEoa‘, Janjgir— Champa, Distt. Jay'g'r—Chanpa ARR. EIGH CDURT OF JUDICATURE CHHATTISGARH AT BILASPUR Writ Petitions No.3859 2003 3891 2003 3946 2003 393 1 [2003 and 39 1512003 ?€iitioners by Shri Rajemi Shrivastava, Shri Awadh Tn'pathi, Shri Prashailt MiShra, Shri Abhish€k Sinha and Shri B.P.Sha1ma, Advocatas in raSpsctiW writ petitionS. Stat€ by Dr. N, K. Shukla, Additional Advocata G6nera1 with Shri Sanjay K. Agarwal, D§puty Advocate G€n€ral ill all me writ petition Before: Hori’bie Shri L.C. Bhadoo. J. ORDER (PaS56d on livlA-Decembei‘, 2003) 1. By flling Writ P€ti1ion No. 3859/ 2003 under Article 226/227 of the Constitutioa of India the petitioner Lallan Singh W110 is licencee 0f the liquor shop situated at Rataneur, District-Bilaspur has challenged the order dated 19112903 passed by Respondent No.2, Collector, Bilaspur, declaring 4m of December, 2003 as ‘Dry-day’ and for closer of the wine shops on account of counting of the votee of Assembly Elections. 2. By filing Writ Petition No. 3891f2003 under Article 226/ 227 of the Constitueion of India the petitioner Ashok Singh, who is licencee of the liquor shop situated at Navagarh, District. Janjgir Champa has challenged the order dated 21.11.2003 passed by Respondent No.2, Collector, Janjgir Champa, declan'ng 4th of December, 2003 as ‘Dry- day’ and for closer of the Wine shops on account of counting of the votes of Assembly Elections. By fihhg Wrii E’6tit1‘ox1 No. 3946/2003 undsr Article 226/ 227 0f th€ Constitu‘rion of India the p€titi011ers Ajay Shanna and Ashok Kumar Raut who are limnces‘: of the liquor shops situat€d at Lakhanpm‘, Bha‘tgavn and Seorajpm‘, District- Surguja and Baikuuthpur m Dismci-Korga hava chansnged th€ orders datsd 21.11.2003 passed by R€s13011de11t No.2, Coliector, Korea and Raspondant No.4 Coll6ctor, Surguja, declaring 4th of December, 2GG3 as ‘Dly—day’ and far closer 01" the wine sheps 03 account of counting of the votes of Assembly Electioae. . By filing Writ Petition No. 39311’2003 under Article 226}2"7 of the Constitution of India the petifioner Kamta Prasad Choubey who is licencee of the liquor shops situated at Kunkuri Group Districb Jashpur Nagar has challengeti the order dated 14. 1 1.2003 passed by Respoedent No.2, Collector, Jashpur Nagar, declaring 4th of December, 2003 as ‘Dly-elay’ and for closer of the wills: shops on account of counting of the votes ofAsseinbly Election‘s By filing Wn‘t Petition No. 3915/2OG3 under Ain'cle 2261227 of the , Constitution of India the petitioner Sanjay Singh who is licencee of the liquor shop situated at Mano, District-Burg has Challenged the order dated 13. 1 1.2003 passed by Respondent No.2, Collector, Burg, wine shops on account of counting of the votes of Assembly Elections. declan'ng 4th of December, 2003 as ‘Dry-day’ and for closer of the. fl l . The main grievance of the wn't petitioners is that the Collectors of the respective distn‘cts have issued the midnglled orders under section i 24(1) of the Chhattisgarh Excise Act, 1915 for closer of the Wine shops for piesewation of the public neace on let December, 2003 being a polling day for the State Legislative Assembly of Chhattisgarh and on 4th of December, 2003 being the 3. oi L)1 day for connfing of tbs vot€s of 1:116 a35€mbly segumnts. Thase ord€rs are: issusd pursuant t0 the directions given by the Election Commissian 6f India undcr the provisions of sub-section (1) of Section 135 C of the Representation of Peoples Act 1951. Dming the last Vidhansabha electiong which were taken place in the year 1998 on the date of counting of votes the shops were closed only of those area which were situated Within the boundaries of the municipalities/municipal corporations at the places Where counting of votes were held. Whereas the petitioners shops are not situated at the places where the counting of votes is going to take place on 4‘11 of December 2003. . Leained counsel for the petitioneis argued that since these orders have been issued by the respective Collectors of the districts pursuant to the directions given by the Election Commission under section 135 C of the Repiesentation of Peoples Act and as per the provisions of this Section, only on the date of polling the selling of hitoxicants and liquor could be prohibited and the closer of the s110ps can be ordered but there is no provision under sub-sectionU) of Section 135 C of the Act for closer of the shops on the date of counting df‘votes, therefore the orders passed by the respective Collectors are contraiji of the provisions of law, arbitrary, unreasonable as such the impugned orders should he quashed. . On the other hand learned Additional Advocate General Dr. N. K. Shukia argued that under section 24(1) of the ChhattiSgai‘li Excise Act, 1915 the district Collector] District Magistrate is empowered to issue directions for closer of the Wine shops in the districts on any day for preservation of the public peace. He further argued that even during earlier elections in the State of Madhya Pradesh in the year 1998 and in 1999 also such directions were issued’for Whole of the / £3 district‘s on the date of counting of the votos of Assembly and Parliamont Elections, therefore all the writ petitions be dismissed. 11:1 this connection the relevant provision of sub-section(1) of Section OL 24 of the Chhattisgarh Excise Act, 1915 is reproduced herein below which envisage that :- “24, Closing of shops for the sake of public peace—(l) The District Magistiate, by notice in writing to the licensee, may require, that any shops in which any intoxicant is sold shall be closed at such times or for such period as he may think necessaiy for the preservation of the public peace.” If we look into the above provisions it is the satisfaction of the concerned Collector} District Magistrate that if he is satisfied looking to the facts and circumstances prevailing on a given date and time that in order to preserve the public peace it is necessary to issue orders for closer of the shops of any intoxicant then he is entitled to issue such directions. lt is not disputed that on 4th of December the counting of votes of the State Legislative Assembly segments of Chhattisgarh at all the district headquarters is to take place, therefore in the above matteis the Collectors being satisfied with the situation; in order to preserve the public peace thought it necessary to close of the liquor shops] intoxicant shops of the respective areas. 10. Now coming to the question as argued by the learned counsel for the petitioners that the petitioners shops are not situated at the places where the counting of the Votes will take place on 4th of December, 2003, therefore as per the past practice the respective Collectors ought not to have ordered for closer of all the Wine shops situated in the respective districts which were not situated Within the municipal/municipal corporations limits of'the places Where the counting of the votes will take place. I don’t find any substances in. this argunmnt of learnsd csunsel for thg petitianers for the mason that with 1.116 Changs of time and with the past Experience if ihe Distn'ct MagiStiamS/Collactors reached to the conclusion that in onia" t6 preserve the public peace it is necessary to close the wine ehope of the Whole district fhen they can pass such orders aiso and it is no ground for challenge of the order of the District Magistrate/ Collector. It is of common knowledge that on the day of f counting of votes the supporters of the Winning candidates take out processioris and even i11 order to celebrate the victory of their candidate some of them consume wine in large quantity and even the processions are taken in the streets and residential colonies and if the persons after consuming liquor take procession that will definitely going to create problem for law and order and preservation of public peace. More over if the Wine shops are kept open of the nearby areas of the counting place that may also lead to disturbance of the public peace because the persons can go to that area and can purchase Wine from those shops which ultimately defeats the very purpose of closer of the wine shops on the day of counting of votes. Therefore, on this count also the impugned orders are not unreasonable, arbitrary or in violation of the provisions of sub- section (1) of Section 24 of the Act, 19 15. 11. As far as the arguments advanced by learned counsel for the petitioners that in the past only on the polling day the Wine shops were closed and not on the date of counting. There is no force in this argument because during the Assembly Elections of 1998 on 27.11. 19§8 the Govt. of Madliya Pradesh issued the orders regarding closer of the wine shops on the date of counting of votes and also similar orders were passed on 24th September, 1999 on the date of ,‘\\\i\ / counting of votes of the Parliament Elections in the whole districtq r / swan- Because on flu date of polling the Wine is consumsd by the suppm’iem of the varicus candidaias and alSo wine is supp1i€d to me general public, similarly closcr 9f wine shope is also necessaly 011 the date of counting of votes for the reason that on that day also the people coneumeii liquor in large quantity in order to celebrate the victoiy of their candidates and for this reason problem for presewatious of public peace may arise in the area Therefore on this count also the orders of the Collectors are not unreasonable, violative of the provisions of sub—section (1) of Section 24 of the Act, 1915. 12. Now coming to the question that the Collectois of the respective Districts have issued the impugned orders pursuant to the directions given by the Election Commission of India under sub-section (1) of Section 185 C of the Representation of Peoples Act 1951 and the provisions of this section does not empowers the Election Commission of India to issue directions for closer of wine shops on the day of counting of votes. The provision empowers the Election Commission of India only for closer of wine shops on the date of polling day. It is tine that sub-section (1) of Section 135 C of the Act 1951 does not give powers to the Election Commission to issue directions for prohibition of sale of liquor} intoxicants on the date of counting of votes, but if We look in to the provisions of sub—section(1) of Section 135 C of the Act 1951 it simply says that “no spirituous, fermented or intoxicating liquors or other substances of a like nature shall be sold, given or distrihuted at a hotel, eating house, tavern shop or any other place, public or private, Within a polling area during the period of forty-eight hours ending with the hours hxed for the conclusion of poll for any election of that polling area”. This is a general section which prolnlaits the sale, distribution or supply of the intoxicant substances like liquor and other things. In this section it f ég has not ba611 msntionad that The Election Cammission is empowsrsd to issue dimcfiens under this sectien. 13, In th€ light of the arguments advances by the learned counsel for the petitieners if we look into the orders iseued by the Election Commission of India 011 10th November, 2063 to all the Chief Secretaries and Chief Electoral Officers of the State in which Assembly Elections are takiug place, While referring in this order Section 135 C (1) of the Representation of the People Act, 1951 it has been directed that the polling day should be declared as ‘Dly Day’ and the dates of polls are also mentioned at page No.2. However, clause-3 of the directions is separate from the clause-1. Clause~3 of the directions says that the Commission further directs that the day .e, 2. 12.2003 and 4. 12.2G03 as the case may be, on which counting of votes iii respect of Mizolam, Bihan Uttar Pradesh and in respect of Chhattisgarh, Madhya Pradesh, Rajasthan, N.C.’I‘. of Delhi, Gujarat and Kerala respectively is to be taken up, shall be declared ‘dly day’ under the relevant laws in the State in order to assist the election authorities in the peaceful and smooth conduct of nee and fair poll Therefore, these are general directions issued by the Election Commission» of India in order to ensure free, fair and smooth elec dons of the Assembly. In this clause-3 it has not been mentioned that these dilections are being issued under section 135 C (1) of the Act, 1951, The Election Commission of India is authorized and entitled to issue directions and orders under Article 324 of the Constitution of lndia in order to ensure smooth, free and fair elections. Therefore, the direcn'ons issued by the Election Commission of lndia’are not in any way unreasonable and arbitrary. These directions are general advice to all the respective States to ensure free, fair and smooth elections and in order to preserve thy / \ / i / / / £9” public p€ace durmg tha el€cti011 procass. It has been mentioned that Collectors should issue direefions for closer of wine shops under the relevant Laws. Therefore, I don’t lind any force in the arguments of learned counsel for the petitionels on this count also. 14. Apart from this, if we look into the general and special conditions of the licence issued to the petitioners for liquor shops which the petitioners have accepted at the time of taking of the licence from the State Govt; these general and special conditions ale binding on each and eveiy licencee of the liquor shops. Ifwe 100k into the condition No.11 of the licence which envisage that the liquor shops premises will remain Close on 15th August, 2nd October, 26th January, 30th Janua, Holi, Mohorrum and three additional days on ry which the licences will be asked to close the liquor shop premises. The licencing authoty is also empowered to issue directions ri regarding closer of the wine shops under the relevant clause in order to presewe the public peace during the process of the general elections. Therefore under this clause also which is binding on the licencee the Licencing Authority/District Magistrate/'Collector is entitled to issue directions during the process of General Elections for closer o the Wine shops. f 15. 4m of December, 2003 bein a day for counting of the votes of g the. State Legislative Assembly segments, therefe in order to or maintain the law and order situation and to preserve the public peace and tranquility the District Magistrates/ Collectors of the respective districts have issued the orders for closer of the Wine shops under the provisions of sub-section (1) of Section 24 of the Chhattisgarh Excise Act, 1915. 16. It may also be mentioned here that it is the subjective satisfaction of the respective Collector that looking to the / . circumStances at the giV€11 tim€ during any pm‘iod including th€ procass of €1€ction i6. polling day and counting day if he reach t0 the conclusion that in ordcr to preserve the public pcace the closer of the Wine shop is necessary then such an order passed by the District Magistrate] Collector cannot be subject to the judicial review under Article 226/ 227 of the Constitution of India unless that order is malafide or based on irrelevant and non existent grounds or contraiy to law. If we look into the facts of the present case, they do not meet the requirement of the above tests as 4‘11 of December, 2003 being day for counting of Votes of the State Legislative Assembly. lt is the common knowledge that on the date of counting of votes supporters of the winning candidates in order to celebrate victonr of their candidate are taking procession to the streets, roads and in the residential colonies and if during that period they remain in state of intoxicant condition after consuming Wine that may lead to the breach of the public peace and tranquility. 17. For the foregoing reasons, I am of the opinion that the impugned orders in the above Writ petitions does not sutfer from the vice of arbitrariness and malahde and orders are not passed on the irrelevant and non-existent grounds, therefore all the above writ, petitions are liable to be dismissed and the same are dismissed, Sd/- L.C.BHADOO 1,,» Judge Thakur