Bombay High Court
Sanjay Marutrao Ingawale vs The State Of Maharashtra Thr The ... on 12 April, 2024
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
Digitally
signed by
PRASHANT
PRASHANT VILAS RANE
VILAS Date:
RANE 2024.04.12 WPST 10918-24@[email protected]
21:35:26
+0530
pvr
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (st) NO. 10918 OF 2024
Harpritsingh Bhupindersingh Hora & Anr. ...Petitioners
Vs.
The State of Maharashtra & Anr. ...Respondents
AND
WRIT PETITION (st) NO. 10971 OF 2024
Sachin Suryakant Belagade ...Petitioner
Vs.
The State of Maharashtra & Anr. ...Respondents
AND
WRIT PETITION (st) NO. 10972 OF 2024
Sanjay Marutrao Ingawale ...Petitioner
Vs.
The State of Maharashtra & Anr. ...Respondents
_________
Mr. Vikram Undre for Petitioners.
Ms. Shruti Vyas, Addl. GP with Mr. Sachin Kankal, AGP for State.
__________
CORAM: G. S. KULKARNI &
FIRDOSH P. POONIWALLA, JJ.
(In Chamber).
DATE: 12 APRIL 2024.
P.C.
1. Not on board. Taken on board on a praecipe as moved on behalf of the petitioners.
Page 1 of 612 April, 2024 ::: Uploaded on - 12/04/2024 ::: Downloaded on - 27/04/2024 16:35:21 ::: WPST 10918-24@[email protected]
2. We have heard learned Counsel for the petitioners on these petitions.
The prayers in these petitions are similar. Illustratively, we refer to the prayers in the first petition which read thus:-
"A] By issuing writ of certiorari or any other writ in the like nature, this Hon'ble Court may kindly be pleased to quash and set aside the Order dated 08.04.2024 in Proceedings No. FLR/CLR 112019/Korda Divas passed by the district Collector, Pune.
B] Pending hearing and final disposal of this writ Petition, this Hon'ble high court may kindly be pleased to grant stay to the effect, implementation and execution of the Order dated 08.04.2024 in Proceedings No. FLR/CLR 112019/ Korda Divas passed by the district Collector, Pune.
C] Ad-interim relief in terms of prayer clause "B"."
D] Any other relief favour of the Petitioner in the interest of justice may also kindly be granted."
3. The primary contention of the petitioners is that the impugned order dated 8 April 2024 issued by the Collector, District Pune, interalia, in exercise of powers conferred under Section 142 the Maharashtra Prohibition Act, 1949, (for short 'the Act'), prohibiting retail trade of FL-2, FL-3, FLBR-2, FLW-2, CL-3, T, D-1, E-2, T.D.1, FL.1, CL-2 and other categories of liquor on 14th April 2024, which is the Birth Anniversary of Dr.Babasaheb Ambedkar, is bad in law and is required to be set aside. The Collector has passed the said order to avoid any untoward incident, to maintain law and order and for maintaining peace on that day.
4. Learned Counsel for the petitioners, in support of his contention has placed reliance on the decision of the Division Bench (Aurangabad Bench) of Page 2 of 6 12 April, 2024 ::: Uploaded on - 12/04/2024 ::: Downloaded on - 27/04/2024 16:35:21 ::: WPST 10918-24@[email protected] this Court in "Parbhani Jilla Daru Vikreta Sanghatana, Parbhani vs. The State of Maharashtra & Ors.1, the decision of the Division Bench (Nagpur Bench) of this Court in "Nitin s/o. Nagoraoji Mohod & anr. Vs. The State of Maharashtra & Ors"2 and the decision of a learned Single Judge of this Court in Maharashtra Wine Merchants Association vs. State of Maharashtra and Others 3
5. The powers conferred upon the Collector under Section 142 of the Act are required to be noted and Section 142 reads thus:
"142. Power of Collector to close place where intoxicant of hemp is sold in certain cases. -
(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 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.
(3) Any order given under this section shall be final."
6. The learned counsel for the petitioners relied upon paragraph 7 of the judgement of this Court in Parbhani Jilla Daru Vikreta Sanghatana, Parbhani, which reads as under :-
"07. Sec. 142 (1) of the said Act prescribes that if the Collector is of the opinion that it is in the interest of the public peace to close any place in which any intoxicant or hemp is sold it shall be lawful for the 1 Writ Petition No.11782 of 2017 dated 29 September 2017 2 Writ Petition No.2928 of 2019 dated 12 April 2019.
3 2007(3) Bom.CR 343 Page 3 of 6 12 April, 2024 ::: Uploaded on - 12/04/2024 ::: Downloaded on - 27/04/2024 16:35:21 ::: WPST 10918-24@[email protected] 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. According to respondents the order has been passed taking into consideration the apprehension about law and order situation on the said dates. This apprehension is stated to be based on the experience in the past. Such situation is not contemplated under Sec. 142 (1) of the said Act. It has been not been demonstrated that there was concrete information with respondent No. 5 about the riots on those festival days. Mere speculation on the basis of some experience in the past cannot prompt such action. Further, if consider the wordings in the above provision, we can see that the opinion of the Collector requiring for the closer of the shops where intoxicant or hemp is sold cannot extend to entire district. Word "any place" used in the section cannot be interpreted to include entire district. Therefore, we are of the opinion that the reason for passing the impugned order was not in the interest of the public peace, without any concrete evidence before him. It has been observed in the above said decision that, "The power granted under sub-sec. (1) of Sec. 142 to order closure of a shop selling liquor or a permit room can be exercised not at the fancy of the Collector, but only if the Collector is satisfied that it is necessary to do so in the interest of public peace. The opinion that it is necessary so to do in the interest of public peace must be formed by the Collector himself and not by somebody else". Here it appears that respondent No. 5 was of the said opinion and therefore, he had made that request. However, without verifying the contents, it appears that respondent No. 3 has passed the impugned order. The order appears to have been passed mechanically passed, hence, cannot be allowed to be sustained."
7. Relying upon paragraph 7, it is the primary contention of the learned counsel for the petitioner that Section 142 would apply to only a particular place where the sale of liquor is being undertaken and it would not enable the Collector to pass an order in respect of all the retail outlets in the district. It is the case of the petitioners that the Collector therefore, could not prohibit the sale of liquor in the entire district of Pune, as has been done by him by the impugned order dated 8th April 2024.
8. Ms. Vyas, Additional Government Pleader, with Mr. Kankal, learned Assistant Government Pleader, appearing on behalf of the State, has opposed the said contention. She submits that Section 142 certainly confers powers on the Collector to order closure of retail shops all over the district and it cannot be a power confined only to one place, as contended by the petitioners.
Page 4 of 612 April, 2024 ::: Uploaded on - 12/04/2024 ::: Downloaded on - 27/04/2024 16:35:21 ::: WPST 10918-24@[email protected]
9. Having heard learned Counsel for the parties, and having perused the provisions of Section 142 of the Act, prima facie we respectfully find ourselves not in agreement with the interpretation as placed on Secton 142 by the Division Bench in Parbhani Jilla Daru Vikreta Sanghatana, Parbhani (supra), when, in paragraph 7 of the said judgment, the Division Bench has restricted the application of Section 142 only to a particular place or for that matter one shop or one licence. We are of the opinion that sub-section (1) and sub-section (2) of Section 142 are mutually exclusive. The powers and circumstances as contemplated under sub-section (2) stand independent of sub-section (1). Sub-section (1) appears to be an independent power conferred on the Collector to be exercised in the interest of public peace. In our opinion, such power also appears to be a wide power and hence required to be interpreted broadly and it ought not to confine the powers of the Collector to close only one place, one shop or one licence, more particularly when the power is to be exercised by the Collector in the interest of public peace, which is a phrase indicating larger import and not limited in its application.
10. We would also like to note that the Collector has passed the impugned order for reasons recorded in writing, namely, to avoid any untoward incident, to maintain law and order and to maintain peace on 14 th April 2024.
11. Further, we may also observe that sale of liquor is an activity permitted under a licence which has been issued to a retailer to deal in intoxicants, which has specific conditions which the licence holder is bound to comply with. In the present case, the powers conferred under Section 142 have not been challenged. The petitioners have merely prayed for the reliefs de hors the licence conditions. It may also be observed that it is a settled principle of law that there is no fundamental right to carry on business in liquor since, as a matter of constitutional doctrine, Article 19(1)(g) does not extend to trade in liquor which is consistently regarded as res extra commercium. This has been held by the Supreme Court in Khoday Distilleries Ltd. and Others vs. State of Page 5 of 6 12 April, 2024 ::: Uploaded on - 12/04/2024 ::: Downloaded on - 27/04/2024 16:35:21 ::: WPST 10918-24@[email protected] Karnataka and Others4, Ugar Sugar Works Ltd. vs. Delhi Administration and Others5, State of Tamil Nadu represented by Secretary and others vs. K. Balu and Another6 and in a catena of other decisions. Considering this aspect also, the restriction imposed by the impugned order for one day cannot be said to be an unreasonable restriction.
12. In this view of the matter, we are not inclined to grant any interim relief to the petitioners. However, in regard to the interpretation of Section 142 of the Act, we are of the opinion that the following question would require determination by a Larger Bench of this Court:
"Whether the power of the Collector, under Section 142 (1) of the Maharashtra Prohibition Act, 1949, to close any place where any intoxicant or hemp is sold, would be confined to only one place, i.e. one shop or it would include the power to pass an order of closure of all places where intoxicant or hemp is sold in the entire district or parts of the district ?"
13. Office to place the proceedings before the Hon'ble the Chief Justice for constitution of an appropriate Bench to answer the question as framed by us.
(FIRDOSH P. POONIWALLA, J.) (G. S. KULKARNI , J.) 4 (1995) 1 Supreme Court Cases 574 5 (2001) 3 Supreme Court Cases 635 6 (2017) 6 Supreme Court Cases 715 Page 6 of 6 12 April, 2024 ::: Uploaded on - 12/04/2024 ::: Downloaded on - 27/04/2024 16:35:21 :::