1 mgj IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Writ Petition No. 2005 of 2009 Indian Hotel and Restaurant Association ..Petitioners vs. 1 The State of Maharashtra and others ..Respondents Mr.N.V.Sawant with Mr.Jayesh Talekar and Mr.Parag Sawant for petitioners Ms.Geeta Shashtri with Ms.Uma Palsuledesai, A.G.P. for respondent nos.1 and 2 Mr.Pradeep Rajgopal for respondent no.3 CORAM: S.J.KATHAWALLA J. 9 th October, 2009 P.C. 1 This writ petition is filed by the petitioners Indian Hotel and Restaurant Association which is a registered body representing the wholesale and retail vending establishments selling liquor in the State of Maharashtra. By this writ petition the petitioners are seeking to set aside the 2 order dated 14 th September, 2009 issued by the Collector, District Mumbai and Suburban District, Mumbai (respondent no.2 herein) to the extent of ordering the concerned licence holders to keep their transactions closed from 5.00 p.m. onwards on 11.10.2009, though the elections to the Legislative Assembly in Maharashtra are scheduled to be held only on 13 th October, 2009. It is the case of the petitioners that the licence holders cannot be asked to keep their transactions closed, two days before the elections and that they should be asked to keep their transactions closed only from 12.10.09 i.e. one day before the said elections. 2 Admittedly, the Election Commission, respondent no.4 herein announced the schedule for the general elections to the Maharashtra Legislative Assembly by its Press Note dated 31 st August, 2009. As per the said schedule the polling in the State of Maharashtra is 3 fixed on 13 th October,2009 and the counting of votes is scheduled on 22 nd October, 2009. 3 Section 142 of the Bombay Prohibition Act, 1949 reads as under: 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 hemp is sold, it shall be lawful for the Collector by an order in writing to the person 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. (3) Any order given under this section shall be final. 4 4 Rule 9A(2)(C) and Rule 10 of the Maharashtra Foreign Liquor (Sale on Cash, Register of sales, etc.) Rules 1969 (the said Rules) reads as under: 9A: Vendor s Licence : (1) Every licensed premises, in respect of which a vendor s licence has been granted for the sale of foreign liquor under the Foreign Liquor Rules shall, subject to the provisions of sub rules (2) and (3) of this rule, shall be kept open every day during the hours (from 10.00 a.m. to 8.30 p.m.) for the sale of foreign liquor. (2) No licensed premises in respect of which any such licence has been granted shall be kept open for the sale of foreign liquor on: (a)The day on which the licensed premises is required to be closed under the Bombay Shops and Establishment Act, 1948 (Bom LXXIX of 1948) and the Licence premises is situated in the area where in the said Act is not in operation the holder of licence shall give one day paid weekly off to the employees. (b) ........ (c) The day or days on which polling relation to any general election or by- election to the House of People or 5 Maharashtra Legislative Assembly or any Local Authority in the state is taken in the constituency in which such premises are located and two days immediately before such day, or poll, the day after the poll, the day before the counting day a days, on the counting day or days, and the day immediately after the counting and (d) ...... (3) deleted (4) ...... (5)......... 10. Hotel licenses.-(1) Every licensed premises in respect of which a hotel licence has been granted for the sale of foreign liquor under the Foreign Liquor Rules shall, subject to the provisions of sub-rule (2) of this Rule be kept open every day during the hours from 11.30 a.m. To 3.00 p.,m. And from 6.30 p.m. to 11.00 p.m. for the sale of foreign liquor. (2) The provisions of (sub-rule(2), (4) and (5) of Rule 9A of these rules relating to the closure of licence premises in respect of which a vendor s licence has been granted under the Foreign Liquor Rules shall mutatis mutandis apply to the closure of licensed premises in respect of which a hotel licence 6 has been granted for the sale of foreign liquor. It is, therefore, clear that as per Rules 9A(C) and 10 of the said Rules, Establishments holding vendor s licence/Hotel Licence are not allowed sale of foreign liquor, inter alia, two days prior to the date fixed for the Maharashtra Legislative Assembly elections. Though Rule 9A(2)(C) of the said Rules has stood amended by the Maharashtra Foreign Liquor (Sale on Cash, Register of Sales etc.(Amendment) Rules, 1999, even under the said amended rule the establishments holding vendors licence/Hotel licence are required to keep the establishments closed for two days prior to the date of the legislative assembly elections. In the present case the Collector by his order dated 14 th September, 2009 as per the said rules ordered the establishments to remain closed on 11 th and 12 th October 2009 7 i.e. two days prior to the date of elections/polling of the Maharashtra Legislative Assembly. The order of the Collector is, therefore, not in violation of any Acts/Rules. Admittedly the said Rules 9A(2)(C) and 10 are in force since the last 14 years and admittedly the said rules are not impugned in the writ petition. The only argument advanced on behalf of the petitioner is that the Collector has passed the order dated 14 th September, 2009 as per the order of the Election Commission dated 31 st August, 2009. The Collector cdannot take any orders from the Election Commission whilst exercising the powers vested in him under section 142 of the Bombay Prohibition Act. This submission made on behalf of the petitioners is wholly incorrect because the Collector has not taken or acted on any orders of the Election Commission. The Collector after receiving the Press Note 8 dated 31 st August, 2009 from the Election Commission, with a view to pass of the election process peacefully and impartially passed the said order dated 14 th September, 2009 as per the provisions of law. The order of the Collector dated 14 th September, 2009, therefore, cannot be faulted on the aforestated ground. 5 The learned Advocate appearing for the petitioner has drawn my attention to the order passed by the Hon ble Division Bench of this Court dated 7 th September, 1999 whereunder some Circular dated 10 th September, 1999 was impugned and the respondents were directed to implement the circular only on 10 th September, 1999 and not on 11 th September, 1999. The learned Advocate for the petitioner is unable to produce a copy of the circular, which was impugned or to even inform the Court whether the circular pertained to the elections to the House of 9 People, the Legislative Assembly or any local authority. The learned Advocate for the petitioner is also unable to inform this Court as to what is the outcome of the said writ petition filed in 1999. In view thereof, I have not taken cognizance of the said order dated 6 th September, 1999 passed by the Hon ble Division Bench of this Court passed at the stage of admission of the 4 writ petitions set out therein. 6 In the above circumstances, in my view the order passed by the Collector needs no interference under Article 226 of the Constitution of India. Writ petition is accordingly dismissed. However, there will be no order as to costs. (S.J.KATHAWALLA J.) 10