1 W.P.3265/2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 3265/2011 1 M/s Adi & Co. through Adi Fardoonji Mistry, Age : 70 years, Occu. Business R/o Plot No.4, Parvej Villa, Demala Colony, Khajamiya Road, Jalgaon. ...Petitioner. Versus 1 The State of Maharashtra, Through Collector, State Excise, Mantralaya, Mumbai-400 032. 2 The Collector, Jalgaon, Dist. Jalgaon. ...Respondents. Mrs. Anjali Dube (Bajpai), Advocate for the appellant. Smt. R.K. Ladda, A.G.P. for respondent Nos. 1 and 2. Mr. Mahesh S. Patil, Advocate for intervenor. CORAM : A.V. NIRGUDE, J. DATED : 4th July, 2011. ORAL JUDGMENT: 1. This writ petition takes exception to the order dated 11th April, 2011 passed by the Collector, Jalgaon stopping the business of the petitioner in country liquor for a temporary period till 30/06/2011. This order was passed utilising powers under section 142 of the Bombay Prohibition Act, read with rule 27 of the Maharashtra Country Liquor Rules, 1973. The facts leading to this impugned order can be narrated in short as under. 2. Since 1994 the petitioner firm held CL-3 licence. They had country liquor retail shop at Polan Peth, Jalgaon. In year 2009, the constitution of the firm changed and the newly constituted firm thought it fit to shift the place of its business. Accordingly, on 22/06/2009 the petitioner applied for shifting of shop from Polan Peth 2 W.P.3265/2011 to a particular place in Ganesh colony, of Jalgaon. On 26/08/2010, (despite of initial refusal of permission from the Collector Jalgaon), due to an order of the Hon'ble Minister permission was granted for shifting of the shop at the above mentioned place at Ganesh Colony, Jalgaon. The petitioner’s shop started business in the new premises in August, 2010. Soon thereafter, on or about 20th September, 2010, a complaint was lodged to the Collector, seeking closing down of the petitioner’s business at this new shop. The complaint was lodged by certain women voters of the Ward, by taking out a procession at the Collector’s office. The learned Collector thought it fit to pass an order on 24th September, 2010 directing stoppage of the business at the shop for few months. This order too was passed utilising the powers under section 142 and Rule 27 of the above mentioned rules. Both the provisions are mentioned below. Section 142 (1) If the Collector is of opinion that it is in the interest of public peace to close any place in which any intoxicant or help is sold, it shall be lawful for the Collector by an order in writing to the persons holding a licence for the sale of such intoxicant or hemp to require him to close such place at such time or for such period as may be specified in the order. (2) If a riot or unlawful assembly is imminent or takes place, it shall be lawful for any Executive Magistrate or Police Officer who is present to direct that such place shall be closed and kept closed for such period as he thinks fit and in the absence of any Executive Magistrate or Police Officer the person referred to in sub-section (1) shall himself close such place. Rule 27 : Power of Collector to close down licensed shop etc. in public interest:- The Collector may by order require a retail licensee to close his shop in the public interest for any period specified in the order; and may in public interest, also curtail the hours of sale; and in either case the retail licensee shall not be entitled to any compensation. 3 W.P.3265/2011 3. The Collector heard both the petitioner as well as the complainants on 15th October,7th December, and 18th December, 2010. The Collector then thought it fit to pass similar order on 7/1/2011 and directed stoppage of the business till 31/03/2011. It was mentioned that on that day, the situation would be reconsidered and further order would be passed. The order dated 7/1/2011 was challenged before this Court in writ petition No. 1364/2011. This Court on 23/03/2011 set aside the order dated 7/1/2011 and directed the learned Collector to hear the petitioner, before passing further order. Accordingly, on 8/4/2011 hearing took place before the Collector in which, the petitioner was also heard along with the complainants. Before holding of this hearing, the Collector had already sought “objective views” of the police on the question as to whether it would be proper to continue the petitioner’s business at the new shop. The police sent their report in which it was mentioned that the community members of the locality had expressed serious objections to the continuation of the business of the petitioner and so there apprehension of law and order problem. 4. After hearing both the sides and after perusal of the police report, the learned Collector thought it fit to stop the business of the petitioner till 31/05/2011 and accordingly an order was passed on that date. 5. The petitioner again came to this Court by filing this writ petition on 25/04/2011. This Court in this writ petition directed the learned Collector to re-hear petitioner if further order was required to passed. 6. Accordingly, the learned Collector again heard the petitioner and the complainant's side on or about 31/5/2011 and repeated what 4 W.P.3265/2011 he did earlier. At the time of hearing, the petitioner brought to the notice of the Collector that pursuant to the complaint of the voters of the locality, the Superintendent of State Excise, Jalgaon on 23rd September, 2010 had already initiated action / inquiry through his subordinate. A copy of this order dated 23rd September, 2010 is produced before me today by the learned Government pleader. It appears and it is an admitted fact that this order of the Superintendent, was passed pursuant to the provisions of an Order by name Bombay Prohibition (Closer of licence on resolution by Gram Sabha or representation of voters in the Ward of Municipal Council / Corporation) Order, 2008. Henceforth be referred to as the Order.)The text of the Order is annexed to the petition at page 102 and learned A.G.P. admitted that the provisions of the Order referred to above are applicable to the facts of the case and pursuant to which the inquiry was initiated on 23rd September, 2010. The purport of the Order is to ensure that after following due process contemplated under the Order, a liquor shop can be closed down if a resolution to that effect is passed by village panchayat or if not less than 25% of women voters of the total voters of any Ward of Municipal Council, give representation in writing to the concerned Superintendent. 7. In view of this development which took place in September, 2010 what is expected of the Superintendent is that he should report to the Collector as to what had happened in the inquiry which he had initiated, about the representation of the voters. The learned Collector at the time of hearing before passing of the impugned order, was made aware that the Superintendent had initiated inquiry under the above mentioned Order. However, the Collector simply mentioned the submission in his order without giving 5 W.P.3265/2011 his opinion as to why he would ignore the progress or outcome of such inquiry. He simply says that since there is possibility of law and order problem, he would temporarily close down the petitioner’s business. 8. Indeed the learned Collector in view of the above quoted provisions of the Act and Rules, has ample powers to close down any place in which intoxicant like country liquor is sold. If he forms an opinion that such closer is necessary in the interest of public peace. Such power is also given to him under Rule 27 of the Maharashtra Country Liquor Rules, 1973. But such order and if such order is repeated passed indeed is a very drastic one. This Court at least on two occasions, in this very case, had directed the Collector to hear the parties before passing such an order. 9. Coming back to the facts of the case, it is seen that in August, 2008 this new shop has started his business in Ganesh Colony, Jalgaon. Within one month, a procession of the Women voters of this Ward was taken to the Collector with a complaint on 20th September, 2010. There is thus indication that some women voters of this area are opposing to the new shop, which started selling country liquor in their locality. It appears that probably this procession was led by a political leader of the area. However, it is also a fact that during the time the shop was did its business, no untoward incident had occurred in and around the shop. On perusal of the order of the learned Hon’ble Minister dated 4/6/2010, it is seen that the Hon’ble Minister accorded his permission to open the shop to this place despite of the fact that the police sent an adverse report. The Hon’ble Minister also mentioned that he would ignore the police report 6 W.P.3265/2011 because there was already a liquor shop in the locality. The Hon’ble Minister also rejected the report of the police expressing apprehension that the opening of the shop would give rise to a law and order situation as the voters of the locality had expressed opposition to opening of such country liquor shop. The Hon’ble Minister held that the report was vague and also because there existed a liquor shop in the locality. The situation now is almost similar to the situation which prevailed at the time of the order of the Hon’ble Minister. Even at that time, there was an adverse police report and that the police expressed their fear that due to the opposition of voters, there was likelihood of breach of peace. The only difference between the situation prevailing then and at present is that on 20th September, 2010 women voters of this Ward took out a procession protesting against the opening of the new shop. Thereafter, another adverse police report had come to the Collector. It seems, the Collector had taken these two incidents serious enough to pass the impugned order ignoring the requirement of the following of the procedure of the Order which is referred to above. 10. I am also of the opinion that by passing the first order in this series i.e. 24th September, 2010, the learned Collector almost mocked at the order of the Hon’ble Minister. It is apparent that the situation was not as drastic as is contemplated under the provisions of section 142. As said above, no untoward incident had occurred, no offence was registered, no riot took place due to the opening of the country liquor shop. The period of only 1 ½ month had lapsed and immediately thereafter, the first of the order dated 24th September, 2010 was passed. I am of the firm opinion that the said order of 24th 7 W.P.3265/2011 September, 2010 was completely unjustifiable. 11. After 24th September, 2010 the learned Collector has been passing similar order every month. I do not understand why every month such order is required to be passed. The Collector has said that he would review the situation and pass further order on next occasion, but on the next occasion, the review does not take place. He only repeats his earlier order, because the submissions made before him are also similar. I think the Collector has committed a grave error in passing of these orders. He should have directed inquiry contemplated under the Order and then pass a final order of shifting the shop from this place. The provisions of the Order contemplate a detail procedure. After completing such procedure an order could be passed. At least due to the facts and circumstances narrated in the this judgment the learned Collector ought to have recorder reason as why instead of waiting for the result/outcome of inquiry under the Order he would pass such a drastic order. Until steps under the Order were taken -at least in this case- I do not see any reason as to why the Collector should utilise his drastic power under section 142 and rule 27. I am holding that the learned Collector has been committing error in passing the order under these provision without resorting to the provisions of the Order. 12. The learned Collector erred in appreciating even the seriousness of the consequences of the Hon’ble Minister’s order permitting shifting. The shop got shifted in August, 2010. The residents of the locality started protest within one month. The voters lead by the local leader of the Ward lodged their protest with the learned Collector. The learned Collector ought to have clarified to the 8 W.P.3265/2011 protesters that very recently the shifting was allowed, not by him, but by the Hon’ble Minister. He could have advised them either to go to the Hon’ble Minister for seeking review of the order or to challenge the order of the Hon’ble minister elsewhere. But this was not done and I am aware that even if such suggestion is given at that time, the protesters and their leader would not be in a mood to listen to such reason. The learned advocate appearing for the intervenor rather belatedly suggested that his client should be given opportunity to seek review or to challenge the order passed by the Hon’ble Minister. Although I am not here to advice to him or his client, it is obvious that such option was and is always available to the intervenor. ORDER a) The writ petition stands allowed. b) The impugned order stands set aside. c) The Collector as well as the Superintendent, State Excise shall follow the procedure contemplated under Bombay Prohibition (Closer of licence on resolution by Gram Sabha or representation of voters in the Ward of Municipal Council / Corporation) Order, 2008 before passing final order. d) Civil (intervenor) application No. 7283/2011 is allowed. [A.V. NIRGUDE,J.] ts k/2011/July4/wp3265.11/ok 9 W.P.3265/2011