1 W.P.No.2302.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. WRIT PETITION NO.2302 OF 2010 Mrs.Shamkunwar Rameshlal Jaiswal Age 51 years,Occupation Trade, R/o Pimpri Khurd, Ta and District Aurangabad. ... PETITIONER V E R S U S 1. The State of Maharashtra Through Principal Secretary State Excise & Prohibition Department,Mantralya, Mumbai -400 032. 2. The commissioner, State Excise Maharashtra State Old Customs House, Fort, Mumbai- 400 023. 3. The Collector,Aurangabad District Aurangabad. 4. The Superintendent, State Excise Near Employment Exchange, S.T.Stand Road, Aurangabad, District Aurangabad. ... RESPONDENTS ... Mr. P.R.Patil, Advocate for Petitioner Mr. V.B.Ghatge, A.G.P.for respondents Nos 1 to 4. ... CORAM : V.R.KINGAONKAR, J. DATE : 4TH MAY, 2010. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the 2 W.P.No.2302.10 consent of the learned counsel for the parties the present petition is heard and finally disposed of at the stage of admission. 2. By this petition, the petitioner challenges the order rendered by the respondent No.3 Collector, Aurangabad directing holding afresh meeting of Gram-Sabha under section 54 of the Bombay Prohibition Act, 1949, in order to decide whether liquor vending licence of the petitioner may be continued or the shop may be closed down. 3. It is not necessary to elaborately set out the rival pleadings. Suffice it to say that petitioner-Smt. Shamkunwar was running licensed country liquor shop at village Pimpri (Khurd). The country liquor shop was closed down as a result of resolution which was allegedly passed in Gram-Sabha meeting dated 19.12.2008. The petitioner challenged the legality of such decision on the ground that minimum requirement of 50% of votes of women members in the village was not complied with. The petitioner alleged that there were 1253 women voters in the village, out of which eight had died earlier to the meeting and that there was less number of votes casted 3 W.P.No.2302.10 infavour of the resolution for closing down of the shop. The collector did not accept her contention and, therefore, her representation was rejected. The petitioner preferred an appeal. The learned Additional Commissioner partly allowed the appeal by order dated 11th August, 2009. The learned Commissioner observed that the verification of voters was not properly done as requires under rule 3(2) of the Government Notification dated 25th March, 2008. The learned Commissioner, therefore, remanded the matter to Collector, Aurangabad for afresh enquiry and de-novo consideration. The Collector instead of making inquiry on the basis of available material and giving de- novo findings, directed holding of afresh Gram-Sabha. 4. Heard learned counsel and learned A.G.P. 5. The impugned judgment rendered by the Collector shows that he ordered holding of afresh Gram Sabha in order to ascertain the opinion of the villagers regarding feasibility of liquor vending shop's, business in the village. The public opinion was sought again. 6. The licence or permit granted by the Authority can be revoked by adopting due procedure. Section 139 (1) of 4 W.P.No.2302.10 the Bombay prohibition Act empowers the State Government to regulate the business of liquor vending. The State Government is empowered to adopt prescribed procedure for revocation of licence granted infavour of liquor vendor. In the exercise of such powers conferred under section 139(1) read with sub-section (2) of the Bombay Prohibition Act, 1949, the Government has framed rules styled as “ the Bombay Prohibition (Closure of licence on Resolution by Gram-Sabha or representation by voters in the Ward of Municipal Council (Corporation ) order 2008.” The Rule 3 of the said Rules reads as follows : 3] Resolution by Gram Sabha for closing down liquor shop:- (1) The Collector shall closed down such liquor shop if not less than fifty percent of the total voters or women voters present in the Gram Sabha pass the resolution by a simple majority for closing down the liquor shop. Any such resolution shall be passed in accordance with the Bombay Village Panchayats Act, 1958 (Bom. III of 1959) and rules made thereunder. The voters shall produce their photo identity before the Gram Sabha for verification as the voter is resident of the same village. If photo identify is not produced, under such circumstances the 5 W.P.No.2302.10 Secretary of Panchayat shall certify regardig the bonafide of voters. The Voters, those produce such proofs, shall be allowed to participate in Gram Sahba. (2) The verification of voters shall be done by the Block development Officer alongwith the inspector of State Excise of the area. The Gram Sabha shall be held in the presence of those two officers and representative of the liquor licence holder. There shall be video shooting of such (Gram Sabha and said shooting shall be used as an evidence. (3) The Collector shall not take into consideration the resolution passed by the Gram Sahba for reopening of shop at least one year from the date of passing resolution for closure of shop. If the Gram Sabha fails to pass the resolution for closure of liquor shop then at least one year Gram Sabha shall not pass any such resolution for closure of shop. Perusal of the relevant rules would show that, if Gram-Sabha decided by simple majority infavour of closure of the liquor shop, then the Collector is under legal obligation to close the business of the liquor vending shop. Needless to say, it is for the Gram-Sabha to take such resolution on its own. The collector is not initiator of 6 W.P.No.2302.10 such process. The learned Commissioner did not direct the Collector to organize holding of any afresh Gram- Sabha as such. The order of the learned Commissioner specifically indicated consideration of the material and de- nonov decision by the Collector. The impugned order rendered by the Collector, therefore, shows that the direction to hold afresh Gram-Sahba was issued without there being such provision under the rules. The Collector seems to have exceeded limits within which the de-novo decision was directed to be taken by the learned Commissioner vide his order dated 11th August, 2009. The direction to hold afresh enquiry does not mean direction to initiate process of afresh Gram-Sabha meeting. Under these circumstances, the impugned order rendered by the collector dated 01.02.2010 is unsustainable. 7. Taking overall view of the matter, the impugned order rendered by the Collector, Aurangabad will have to be set-aside. The petition is therefore allowed. The impugned order dated 01.02.2010 rendered by the Collector Aurangabad is set-aside. He is directed to render de-novo decision on the available material within parameters of the order rendered by the learned 7 W.P.No.2302.10 Commissioner, as expeditiously as possible and in any case within a period of four months hereinafter. Rule made absolute in above terms. The petition is disposed of accordingly. Sd/- ( V.R.KINGAONKAR ) JUDGE MTK