Bombay High Court
Smt.Shantabai Baban Muluk vs Smt.Asha Janardhan Chaskar on 30 August, 2012
Author: S.C.Dharmadhikari
Bench: S.C.Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3130 OF 2012
1] Smt.Shantabai Baban Muluk
aged 52 years, Occupation
Agriculturist,
2] Smt.Sangita Anil Ghanwat,
Age 42 years occupation
Agriculturist resident of
At Post – Chas(kaman), Taluka
Khed, Dist. Pune .. Petitioners
Versus
1] Smt.Asha Janardhan Chaskar
Proprietor of Hotel Gajara,
Age 52 years, occupation
business, resident of at Post
Chas (kaman), Taluka Khed,
Dist. Pune.
2] Tahsildar Khed, Taluka Khed
Dist. Pune
3] Collector (State Excise Division)
Pune
4] Commissioner, State Excise,
Maharashtra State, Mumbai
5] The State of Maharashtra,
through Hon’ble Minister
for State Excise, mantralaya,
Mumbai
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6] Sarpanch, Grampanchayat,
Chas, Taluka Khed, Dist. Pune .. Respondents
Mr.U.B.Nighot with Mr.Abhijit Kadam for petitioners
Mr.D.B.Sawant for respondent No.1
Ms.P.S.Cardozo, AGP for respondent Nos. 2 to 5
Mr.R.A.Thorat i/b. P.J.Thorat for respondent No.6
CORAM : S.C.DHARMADHIKARI, J.
30th August 2012.
ORAL ORDER:-
1] Rule. Respondents waive service. By consent rule made returnable forthwith.
2] By this petition under Articles 226 and 227 of the Constitution of India, the petitioners who are residing in Village Chas (kaman) Taluka Khed, Dist. Pune, impugn the order passed by the State Government and particularly the Minister of the Department of Prohibition and Excise, dated 7th march 2012.
3] By the order under challenge, the Minister of Prohibition {3} wp3130-12.doc and Excise, Government of Maharashtra has allowed a Revision application which has been preferred by the first respondent before this Court. That revision application under section 138 of the Bombay Prohibition Act, 1949 (Act for short) challenges the order passed by the Commissioner of State Excise, respondent No.4, before me dated 3rd December 2009 and the order passed by the Collector, Pune dated 21st March 2009.
4] The facts which are necessary to appreciate the challenge to the impugned Revisional order are that the first respondent has been granted a licence to sell liquor, viz., F.L.III licence. That licence was granted after an application was made for the same to the competent authorities in terms of the powers conferred on them under the said Act. The further facts and which are not disputed are that the villagers were aggrieved and dis-satisfied with the grant of such licence. According to them, the shop/ establishment was on Khed – Wada Road. That a notification was issued by the State Government on 25 th March 2008 providing for {4} wp3130-12.doc closure of liquor vending shop in village or corporation area in accordance with the said notification is a further fact not in dispute.
5] It is stated that the women of the village in question on 5 th February 2009 convened a Special Gramsabha meeting and passed Resolution to ban liquor in the said village. It was claimed that 425 women unanimously voted in favour of the said resolution out of 964. That resolution was, thereafter, forwarded to the concerned authorities viz., the Collector and the Commissioner.
By his letter dated 12th February 2009, the Superintendent State Excise directed Block Development Officer of Panchayat Samiti, Khed to hold a Women Gram Sabha under his supervision on 22 nd February 2009. The BDO, then, accordingly held the special Gram Sabha in the village in the presence of Inspector, State Excise, Talegaon Dabhade, Member of Zilla Parishad, Pune and one Rajendra Gaikwad, representative of the liquor licence holder.
It is stated that out of 964 ladies in the village, 595 were present at {5} wp3130-12.doc the Gram Sabha meeting and participated in the same. It is claimed that only those women whose names were in the voting list were allowed to enter in the voting centre, after they duly signed against their names or by placing thumb impressions against their names, in three supplementary registers. This was done while entering the place of voting to speed up the process and to avoid inconvenience. It is further stated that there are three registers containing the signatures and thumb impressions of these women who voted on that day. The petitioners claim that 52 women who could not give their Voters’ Registration Number in the voters’ list were not included in the list of voters. Thus, there was complete verification and what has been, thereafter, done is that the record of this gram sabha came to be transmitted to the authorities. In all 587 women voted in favour of the resolution for cancellation of liquor licence. There was no vote against the resolution. In terms of this resolution and acting on the same, the liquor licence of the first respondent was suspended by an order dated 21st March 2009 and even other shops were also closed.
{6} wp3130-12.doc 6] Being aggrieved and dis-satisfied with this order, respondent No.1 filed an appeal before the Commissioner, State Excise. The appeal was dismissed on 3rd December 2009.
7] It is stated that there were no further proceedings impugning the order dated 3rd December 2009 but the first respondent preferred a revision application in December 2010 in which surprisingly the relief of revoting on the resolution of the Gram Sabha was claimed. That revision application was placed before the Minister of Prohibition and Excise Government of Maharashtra, who has by the impugned order allowed the same.
The petitioners became aware of the impugned order only after the authorities pasted and affixed a notice so as to inform all concerned that revoting has been ordered on 28 th August 2011.
The public notice and the communication in that behalf were challenged by the petitioners by filing a writ petition No.6912 of 2011 in this Court. This Court ordered ad-interim stay of the order {7} wp3130-12.doc dated 25th May 2012 of the Minister and then directed in the final order that the matter would stand remitted to respondent No.5 who shall hear all affected parties, including petitioners before this Court.
8] It is pursuant to these directions that the matter was re-heard and the order impugned in this petition has been passed.
9] Mr.Nighot, learned Counsel appearing for petitioners submits that the order passed by the State Government in purported exercise of its revisional jurisdiction is bad in law. The revisional jurisdiction is not akin to a power of appeal and cannot be invoked as of right. The revisional jurisdiction under section 138 of the Act only enables the State Government to call for and examine the record of any proceedings which is referred to therein, for the purpose of satisfying itself as to the correctness, legality or propriety of any order passed and while satisfying itself as to the legality of such proceedings, the State Government may {8} wp3130-12.doc direct that the order be not given effect to. After examining the record, the State may either annul, reverse or modify or confirm such an order. The submission of Mr.Nighot is that the proceedings in relation to grant or refusal of permit or pass or authorisation under the Act are the proceedings referred to in Section 138. However, what has been the basis of the proceedings and impugned before the Minister are not any orders of the Commissioner State Excise, which refuse a licence, permit, pass or authorisation in terms of the powers conferred by the Act or of any of the conditions imposed or the powers exercised in that behalf. What the revision application essentially projected is that there are general powers of the State Government which are conferred vide Section 139 falling in Chapter XI of the Act.
Thereunder, the State by general or special order prohibit grant of any kind of licence, permit, pass or authorisation through out the State or in any area, regulate import, export, transport of liquor etc. as referred to in Section 139(1)(b) or any matters falling in the clauses of section 139(1) and particularly clause ( c) to (n). All {9} wp3130-12.doc that this provision requires is, that there should be Notification in the official gazette prohibiting or regulating the activities referred to in section 139(1) of the Act. However, the revision application impugns the resolution of Gram Sabha, which resolution has been passed in terms of an Order issued under sub-section (1) read with sub-section 2 of Section 139 of the Act and styled as Bombay Prohibition (Closure of licence on Resolution by Gram Sabha or representation by ig Voters in the Ward of Municipal Council/Corporation) Order, 2008. (For short 2008 Order).
10] That such an order has been complied with was the stand of the petitioner throughout whereas this order has not been complied with was the complaint of respondent No.1. According such complaint or matters cannot be dealt with by the revisional authority while exercising powers under section 138 of the said Act. This provision would not enable the authority to reopen any concluded matters such as a resolution passed by a Gramsabha and in terms of the 2008 order. Therefore, compliance with the order {10} wp3130-12.doc is a matter which is not within the purview of the revisional powers.
11] Assuming that it is so and that a complaint in that behalf could have been entertained in revisional jurisdiction, yet, what the order under challenge overlooks is that a unanimous resolution was passed by the women in the concerned village. These women have been demanding ban on sale of liquor in the village. Once the Gram Sabha has been convened at their instance and that the unanimous resolution by Gram Sabha for closing down any liquor shop is in terms of clause 3 of the Order of 2008, then, it was not open to the Revisional Authority and particularly the Minister to sit in judgement or appeal over such resolution. That such resolution was not validly passed is also an erroneous conclusion and perverse to say the least. The Minister has ignored the fact that the resolution was passed at a Gram Sabha which was duly convened by a Statutory Authority. The Block Development Officer and all concerned officials of the village were present.
{11} wp3130-12.doc Equally at the Sabha, representative of the Liquor Vendor was present. None of them protested either with regard to the manner in which list of voters was maintained, any writing or entry therein or any signatures obtained thereon. Once there was no such complaint and the meeting proceeded quitely, peacefully and without any complaint, then, there is due compliance with the 2008 order. If there is compliance with the order dated 25 th March 2008 which is in furtherance of the prior order issued on 30 th June 2003 both under section 139(1) of the Act and when the power of the authorities to close down the shop or suspend a liquor licence has not been questioned, then, the Minister could not have interfered with the impugned Gram Sabha resolution. By interfering with the same, the Minister has exceeded his powers and authority under section 138 of the Act. He has clearly ignored the object and purpose of the Act and its provisions and equally the statutory order dated 25th March 2008. The Minister ought to have been aware of the fact that right to sell or deal in intoxicants or liquor is not a fundamental right. Nobody can claim a {12} wp3130-12.doc fundamental right or a vested right in sale of liquor. Once sale or dealing in intoxicants is an activity which can be completely prohibited, then, there was no right conferred in the first respondent to complain about the Gram Sabha resolution or the procedure that has been adopted while passing the same. More so, when no such complaint was made by anybody else concerned or present at the meeting. After acting upon such resolution, the licence has been suspended, then, such suspension was well within the powers of the Collector and the Commissioner, Prohibition and Excise and the Minister surprisingly does not find fault with the exercise of that power. He does not also fault the exercise undertaken by the authorities in acting upon the resolution and the wishes of the women residing in the subject village. Once the sentiments of public are expressed in a democratic manner and by a process which is transparent and fair and in terms of a statutory order, then, all the more such interference therewith would make a mockery of the object and purpose of the Act and equally Article 47 of the Constitution of India. For all these reasons, it is {13} wp3130-12.doc submitted that the impugned order be set aside.
12] Mr.Sawant appearing for first respondent has supported the impugned order and has submitted that, all that the revisional authority has directed in this case is that, there should be a revoting. There are reasons assigned as to why there should be revoting. The Minister has found as a matter of record that 52 women have taken part in voting held on 22 nd February 2009.
Even if this number is excluded from the total number and the total number constitutes simple majority, yet, out of all women present and voting, 50% have placed their thumb impression.
Whether the thumb impression is of the same lady and whether the BDO Khed has verified the same is not clear from his report dated 12th September 2009 and, therefore, there being a discrepancy in the reports, this is a matter where re-voting or re-polling should be held is the conclusion of the Minister. Mr.Sawant, therefore, was at pains to point out that such finding rendered by the Minister does not call for any interference in writ jurisdiction. This is not a {14} wp3130-12.doc case where either the mandate of the Act or its object and purpose has been flouted or the order dated 25 th March 2008, enabling authorities to take note of public sentiments has been reduced to a nullity. The complaints by villagers and by making sweep allegations should not be entertained and should not be basis for interference in writ jurisdiction.
13] Learned AGP has also supported the order passed by the Minister, Prohibition and Excise, Government of Maharashtra.
14] With the assistance of the learned Counsel appearing for parties, I have perused the petition and the Annexures thereto, including the impugned order as also the affidavit of one Smt.Asha Chaskar, first respondent to this petition.
15] Before any reference is made to the impugned order, it would be advantageous to note that this is not the first occasion that this Court is called upon to impress on the authorities, that the {15} wp3130-12.doc Bombay Prohibition Act, 1949 is an enactment which achieves twin objects. In L.P.A. No.270 of 2012 in Writ Petition No.3440 of 2011, M/s.Hotel Shobha, through its proprietor Atul Virendrakumar Jaiswal Vs. Hon’ble Minister, Department of State Excise and Ors., so also L.P.A. No.314 of 2012 in Writ Petition No.3440 of 2011 (Government of Maharashtra Vs. Sou. Shailaja Rajendra Badwaik and Ors), a Division Bench of this Court to which I was a party held as under:-
27 …………. The powers under the Bombay Prohibition Act, 1949 certainly enable the Government and the State to grant and regulate the issuance of licences to establishments carrying on business similar to that of the Appellant before us.
However, if the order of the Minister in this case is perused in its entirety and in totality, so also, in the backdrop of the facts and circ*mstances in this case, one finds that a holder of public office is expected to uphold public trust. He should have been more careful and responsible. He is the Minister of Prohibition and Excise Department of the State of Maharashtra. However, the State Government comprises of several departments and all such departments are expected to act in coordination so that their orders and actions reflect genuine concern for the public. As a part of welfare state, the Government has to take into account public sentiments. The complaints from public and public voice can be ignored by the welfare state at its own risk and peril. The State Government cannot evaluate {16} wp3130-12.doc the public interest by looking at it department-wise or by apportioning it departmentally. An activity which is beneficial and generates revenue for one Department may be directly in contravention to the functions and duties of another department and might equally run counter to the obligation of a welfare state. The learned Single Judge has, therefore, emphasized that liquor licences may generate revenue and give tremendous income to the State, however, the State cannot ignore that all discretion and power including to issue licences is coupled with a duty. That power and discretion cannot be exercised as per the whims and fancies of the State. If the orders of the nature passed in the present case show that the discretionary power which is in the nature of a trust, has not been exercised bearing in mind public interest and public good, then, while striking down the act and order, it is equally the duty of the Court to remind the State of doctrine of Good Governance.”………….
………… “Even we could not resist the above observations and comments because if the order or opinion of the learned Minister of Prohibition and State Excise is to be taken as a view of the State Government, then, there is likelihood of liquor licences being granted for the asking and even if there are large scale complaints from members of public. It is not expected that protests, which are peaceful and democratic, would be overlooked for some gains, by a elected Government in the Parliamentary System of Democracy. People in residential colonies are not expected to resort to remedies provided by the 2003 Order only. They can lodge complaints and give representations by approaching State functionaries. Even elected representatives at local level can convey public sentiments to the officials.”
“28 The learned Minister refers to some rule and regulation whereby the members of public can {17} wp3130-12.doc complain to the Collector or the Superintendent of Central Excise against issuance of liquor licences by giving representations and such establishments can be closed down. What his opinion and conclusion overlooks is that there is no prohibition in law for opposing the grant of licence issued to commence and establish a business of serving foreign liquor to customers in restaurant or commercial establishment. It is not as if the people can complain only when the licences are granted and such establishments are functional and operational. That would mean the members of public and their views will never be taken into account prior to commencement of business of the present nature. The suggestion is that let such licences be issued and you have no voice in issuance of same. After issuance of the licence if the activities are detrimental to public interest and cause nuisance to public, then, you can complain for stopping and prohibiting the same. The learned Minister’s view of the prohibition law can certainly not be taken and ought not be and possibly is not the view of the State. It would be completely contrary to public interest if the State were to act in terms of the opinion and conclusions of the Minister in this case. That would certainly give rise to conflicts and tension within the society. That means, nobody working or residing in cities and colonies can complain about permission, authorization and licences for setting up hotels, liquor shops, beer bars, etc..” …………
………. “The Minister has advised the members of public to take recourse to rules and regulations prescribed for complaining about such acts and they should resort to said procedure and then alone their grievances and complaints can be looked into and taken cognizance of. The learned Minister, therefore, overemphasizes the form and ignores the substance. He gives unnecessary weightage to the procedural rules. Therefore, the observation of the Minister violates basic tenets of an enactment like the Bombay {18} wp3130-12.doc Prohibition Act, 1949.”
29 ………..
30 The Bombay Prohibition Act, 1949 enables the State Government to grant licences and permits for consumption and sale of liquor. It is clear from the provisions of the Act and its sections which have to be read together and harmoniously that enactment seeks to create a mechanism for regulating and controlling the sale of liquor and intoxicant. Chapter- II of the Act deals with the Establishments. Chapter- III enacts prohibition. Sections 11 to 24A appearing therein would indicate that while permitting manufacture, etc. of intoxicant the State has not ignored but rather upheld public interest and has given due place for public sentiments and grievances (see Section 11A, which has been introduced by amendment to the Act in 1997). Section 12 provides for prohibition of manufacture of liquor and construction and working of distillery or brewery. Section 13 prohibits sale of liquor and enacts absolute provision, namely, no person can bottle any liquor for sale or consume or use liquor, or use, keep or have in his possession any materials, implements or apparatus whatsoever for the manufacture of any liquor. In prior provisions, there is absolute prohibition for manufacture of liquor, construction or working of any distillery or brewery; import, export, transport or possess liquor or sell or buy liquor. Section 14 prohibits trading in any intoxicating drugs and similar such drugs, drinks and beverages have been dealt with by Sections 15 to 21A. Then section 22 prohibits allowing any premises to be used as common drinking house. Section 22A enacts prohibition for issuing prescriptions for intoxicating liquor except by registered medical practitioners. There are further provisions prohibiting certain activities in intoxicants. Section 24A states that certain Articles are exempted from the provisions of {19} wp3130-12.doc Chapter-III.
31 Chapter-IV enacts the provisions for control, regulation and exemptions. This is a chapter which enables the State to grant licence of various types so as to permit dealing in liquor……..
32 There are permits which are issued for use and consumption of foreign liquor and those provisions are enacted by Sections 40 to 48 and then comes Section 49 which was inserted by Mah.70 of 1981 and reads thus:-
“49. Exclusive privilege of Government to import, etc., intoxicants, etc., and fees levied include rent or consideration for grant of such privilege to person concerned.
Notwithstanding anything contained in this Act, the State Government shall have the exclusive right or privilege of importing, exporting, transporting, manufacturing, bottling, selling, buying, possessing or using any intoxicant, hemp or toddy, and whenever under this Act or any licence, permit, pass, thereunder any fees are levied and collected for any licence, permit, pass, authorisation or other permission given to any person for any such purpose, such fees shall be deemed to include the rent or consideration for the grant of such right or privilege to that person by or on behalf of the State Government.”
33 Thereafter there appear several provisions specifying the officers and authorities who will grant the licences and permits. Then comes Section 53 which reads as under:-
“53. General conditions regarding licences, etc.:-
All licences, permits, passes, or authorisations granted under this Act shall be in such form and shall, in addition to or in variation or substitution of any of the conditions provided by this Act, be subject {20} wp3130-12.doc to such conditions as may be prescribed and shall be granted on payment of the prescribed fee:
Provided that every licence, permit, pass or authorisation shall be granted only on the condition that the person applying undertakes, and in the opinion of the officer authorised to grant the licence, permit, pass or authorisation is likely to abide by all the conditions of the licence, permit, pass or authorisation and the provisions of this Act.”
34 Section 54 gives power to cancel or suspend licences and permits and there are provisions enabling attachment of licences and supervision over the activities.
35 Chapter IV-A has been inserted by Bombay 26 of 1952 for control and regulation of articles mentioned in Section 24A to prevent their use as intoxicating liquor. The same is the mandate of Chapter IV-B. Chapter V deals with Mhowra flowers. Chapter VI deals with control and regulation of molasses. Chapter VII deals with the offences and penalties for illegal activities.
36 The scheme of Sections and Orders in which they appear in the statute makes it clear that the underlying policy of the State by enacting the Act is to fulfill and perform, so also, act in furtherance of the directive principles referred to in Article 47 of the Constitution of India. Therefore, the learned Single Judge was in no error and we do not agree with Mr.Samarth and the learned AGP that the learned Single Judge was not required to emphasize or has laid undue emphasis on the directive principles of State Policy and particularly dealing with prohibition. In a recent judgment of the Honourable Supreme Court, reported in AIR 2006 SC 1987 (State of Maharashtra v/s Nagpur Distillers), it has been held thus:-
{21} wp3130-12.doc “9. ……………. This factual distinction apart, we have to keep in mind that the right to trade in liquor is only a privilege farmed out by the State. Article 47 of the Constitution of India clearly casts a duty on the State at least to reduce the consumption of liquor in the State gradually leading to prohibition itself. It appears to be right to point out that the time has come for the States and the Union Government to seriously think of taking steps to achieve the goal set by Article 47 of the Constitution of India. It is a notorious fact, of which we can take judicial notice, that more and more of the younger generation in this country is getting addicted to liquor. It has not only become a fashion to consume it but it has also become an obsession with very many. Surely, we do not need an indolent nation. Why the State in the face of Article 47 of the Constitution of India should encourage, that too practically unrestrictedly, the trade in liquor is something that it is difficult to appreciate. The only excuse for the State for not following the mandate of Article 47 of the Constitution is that huge revenue is generated by this trade and such revenue is being used for meeting the financial needs of the State. What is more relevant here is to notice that the monopoly in the trade is with the State and it is only a privilege that a licensee has in the matter of manufacturing and vending liquor.”
37 In a judgment reported in AIR 1951 SC 318 (The State of Bombay and another v/s F.N.Balsara), the Supreme Court held thus:-
“17. There is in my opinion another method of approaching the question which also deserves consideration. Remembering that the object of the Prohibition Act was not merely to levy excise duties but also to prohibit use, consumption, possession and sale of intoxicating liquor, the legislature had the {22} wp3130-12.doc power to legislate upon the subjects included in the Act not only under entry 31 of List II, but also under entry 14, which refers ‘inter-alia’ to public health. Art.47 of the Constitution, which contains one of the directive principles of State policy, provides that:
“the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties & in particular, the State shall endeavour to bring about prohibition of the consumption, except for medicinal purposes, of intoxicating drinks & of drugs which are injurious to health”.
This Article has no direct bearing on the Act which was passed in 1949, but a reference to it supports to some extent the conclusion that the idea of prohibition is connected with public health, & to enforce prohibition effectively the wider definition of the word “liquor” would have to be adopted so as to include all alcoholic liquids which may be used as substitutes for intoxicating drinks, to the detriment of health. On the whole, I am unable to agree with the High Court’s finding, & hold that the definition of “liquor” in the Bombay Prohibition Act is not ‘ultra vires’.
18. The learned Attorney-General also relied upon entry 1 of List II which relates among other items to “public order”, & though at first sight it may appear to be far-fetched to bring the subject of intoxicating liquor under “public order”, yet it should be noted that there has been a tendency in Europe and America to regard alcoholism as a menace to public order. In ‘Russel v. The Queen’ 1882-7 A C 829, Sir Montague Smith held that the Canada Temperance Act, 1878, the object and scope of which was to promote temperance by means of a uniform law throughout the Dominion, was a law relating to the “peace, order, and good government” of Canada, and, in so deciding, said as follows:-
“Laws of this nature designed for the
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promotion of public order, safety, or morals and
which subject those who contravene them to criminal procedure and punishment, belong to the subject of public wrongs rather than to that of civil rights. They are of a nature which falls within the general authority of Parliament to make laws for the order and good government of Canada.” (P.839) Again, referring to liquor laws and liquor control, a learned British author (‘The Encyclopaedia Britanica’, Edn. 14, Vol.14, p.191) says as follows:-
“The dominant motive everywhere, however, has been a social one, to combat a menace to public order and the increasing evils of alcoholism in the interests of health and social welfare. The evils vary greatly from one country to another according to differences in climate, diet, economic conditions and even within the same country according to differences in habits, social customs and standards of public morality. A new factor of growing importance since the middle of the 19 th century has been the rapid urbanisation, industrialization and mechanization of our modern every day life in the leading nations of the world, and the consequent wider recognition of the advantages of sobriety in safeguarding public order and physical efficiency.”
These passages may lend some support to the contention of the learned Attorney-General that the Act comes also within the subject of “public order”, but I prefer to leave out of account this entry, which has a remote bearing, if any, on the object and scope of the present Act.”
The above observations of the Hon’ble Supreme Court have been made while construing the Act of the Maharashtra State, namely, the Bombay Prohibition Act, 1949, but they seem to have no impact and the State is still not abiding by the same. Judicial Notice has been taken of Alcoholism and its menace to the {24} wp3130-12.doc society especially women, youth and children.
38 In a judgment reported in AIR 1978 SC 1457 (P.N.Kaushal etc. v/s Union of India and others), the Supreme Court held thus:-
“6. Why drastically regulate the drink trade? – the Social rationale – on Brandies brief. – Anywhere on our human planet the sober imperative of moderating the consumption of inebriating methane substances and manacling liquor business towards that end, will meet with axiomatic acceptance. Medical, criminological and sociological testimony on a cosmic scale bears out the tragic miscellany of traumatic consequences of, shattered health and broken homes, of crime escalation with alcohol as the hidden villain or aggressively promotional anti-hero, of psychic breakdowns, insane cravings and efficiency impairment, of pathetic descent to doom sans sense, sans shame, sans everything, and host of other disasters individuals, familial, genetic and societal.
7. We need not have dilated further on the deleterious impost of unchecked alcohol intake on consumers and communities but Shri Mahajan advocated regulation as valid with the cute rider that even water intake, if immoderate, may affect health and so regulation of liquor trade may not be valid, if more drastic than for other edibles. The sequitur he argued for was that the two-day ban on liquor licensees was unreasonable under Art. 19(g) read with Art.19(6). He also branded the power to restrict the days and hours of sale of liquor without specification of guidelines as arbitrary and scouted the submission of the Addl. Solicitor General that the noxious nature of alcohol and the notorious fall- out from gentle bibbing at the beginning on to deadly addiction at the end was inherent guideline to salvage the provision from constitutional casualty. Innocently the equate alcohol with aqua is an {25} wp3130-12.doc exercise in intoxication and straining judicial credibility to absurdity. We proceed to explain why alcohol business is dangerous and its very injurious character and mischief potential legitimate active policing of the trade by any welfare State even absent Art.47.
18. Jack Hobbs, the great cricketer, held:
“The greatest enemy to success on the cricket field is the drinking habit.”
19. And Don Bradman, than whom few batsmen better wielded the willow, encored and said:
“Leave drink alone. Abstinence is the thing that is what made me.”
20. Sir Andrew Clark, in Lachrymal language spun the lesson from hospital beds:
“As I looked at the hospital wards today and saw that seven out of ten owed their diseases to alcohol, I could but lament that the teaching about this question was not more direct, more decisive, more home-thrusting than ever it had been.”
21. George Bernard Shaw, a provocative teetotaller, used tart words of trite wisdom:
“If a natural choice between drunkenness and sobriety were possible, I would leave the people free to choose. But then I see an enormous capitalistic organisation pushing drink under people’s noses of every corner and pocketing the price while leaving me and others to pay the colossal damages, then I am prepared to smash that organisation and make it as easy for a poor man to stay sober, if he wants to as it is for his dog.
Alcohol robs you of that last inch of efficiency that makes the difference between first-rate and second- rate.
I don’t drink beer-first, because I don’t like it; and second, because my profession is one that obliges me {26} wp3130-12.doc to keep in critical training, and beer is fatal both to training and to criticism.
Only teetotallers can produce the best and sanest of which they are capable.
Drinking is the chloroform that enables the poor to endure the painful operation of living. It is in the last degree disgraceful that a man cannot provide his own genuine courage and high spirits without drink.
I should be utterly ashamed if my soul had shrivelled up to such an extent that I had to go out and drink a whisky.”
22. The constitutional test of reasonableness, built into Art. 19 and of arbitrariness implicit in Art.14, has a relativist touch. We have to view the impact of alcohol and temperance on a given society; and for us, the degree of constitutional restriction and the strategy of meaningful enforcement will naturally depend on the Third World setting, the ethos of our people, the economic compulsions of today and of human tomorrow. Societal realities shape social justice. While the universal evil in alcohol has been indicated the particularly pernicious consequence of the drink evil in India may be useful to remember while scanning the rationale of an Indian temperance measure. Nearly four decades ago, Gandhiji, articulating the inarticulate millions’ well being, wrote:
“The most that tea and coffee can do is to cause a little extra expense, but one of the most greatly felt evils of the British Rule is the importation of alcohol……… that enemy of mankind, that curse of civilisation – in some form or another. The measure of the evil wrought by this borrowed habit will be properly gauged by the reader when he is told that the enemy has spread throughout the length and breadth of India, in spite of the religious prohibition for even the touch of a bottle containing alcohol pollutes the Mohammedan, according to his religion, {27} wp3130-12.doc and the religion of the Hindu strictly prohibits the use of alcohol in any form whatever, and yet alas, the Government, it seems, instead of stopping, is aiding and abetting the spread of alcohol. The poor there, as everywhere, are the greatest sufferers. It is they who spend what little they earn in buying alcohol instead of buying good food and other necessaries. It is that wretched poor man who has to starve his family, who has to break the sacred trust of looking after his children, if any, in order to drink himself into misery and premature death. Here be it said to the credit of Mr.Caine, the ex-Member for Barrow, that, he undaunted, is still carrying on his admirable crusade against the spread of the evil, but what can the energy of one man, however, powerful, do against the inaction of an apathetic and dormant Government.”
23. Parenthetically speaking, many of these thoughts may well be regarded by Gandhians as an indictment of governmental policy even today.
24. The thrust of drink control has to be studied in a Third World country, developing its; human resources and the haven if offers to the poor, especially their dependents. Gandhiji again:
“For me the drink question is one of dealing with a growing social evil against which the State is bound to provide whilst it has got the opportunity. The aim is patent. We want to wean the labouring population and the Harijans from the curse. It is a gigantic problem, and the best resources of all social workers, especially women, will be taxed to the utmost before the drink habit goes. The prohibition I have adumbrated is but the beginning (undoubtedly indispensable) of the reform. We cannot reach the drinker so long as he has the drink shop near his door to tempt him.”
29. In Madras, prohibition was inaugurated on 2nd {28} wp3130-12.doc October 1948, by the Premier, the Hon’ble Mr. O. P. Ramaswami Reddiar who pronounced it a red letter day.
30. In 1949, West Punjab took steps for the establishment of prohibition. In 1949, nearly half the area of the Central Provinces and Berar got dry, and it was proposed to enforce prohibition throughout the State.
31. In Bombay the Prohibition Bill was passed and became Act in 1949, and Bombay got dry by April 1950.
32. The number of offences;
ig under the Abkari Act is notoriously high. It shows the craving of some persons for liquor in spite of all good efforts of legal prohibition. The remedy lies in making prohibition successful through education (even at the school stage), suggestion, re-education.
35. Of course, the struggle for Swaraj went beyond political liberation and demanded social transformation. Redemption from drink evil was woven into this militant movement and Gandhiji was the expression of this mission.
“I hold drink to be more damnable than thieving and perhaps even prostitution. Is it not often the parent to both? I ask you to join the country in sweeping out of existence the drink revenue and abolishing the liquor shops.
Let me, therefore, re-declare my faith in undiluted prohibition before I land myself in deeper water. If I was appointed dictator for one hour for all India, the first thing I would do would be to close without compensation all the liquor shops destroy all the toddy palms such as I know them in Gujarat, compel factory owners to produce humane conditions for the workmen and open refreshment and {29} wp3130-12.doc recreation rooms where these workmen would get innocent drinks and equally innocent amusem*nts. I would close down the factories if the owners pleaded for want of funds.”
38. The Panorama of views, insights and analyses we have tediously projected serves the sociological essay on adjudicating the reasonableness and arbitrariness of the impugned shut down order on Tuesdays and Fridays. Whatever our personal views and reservations on the philosophy, the politics, the economics and the pragmatics of prohibition, we are called upon to pass on the vires of the amended order. “We, the people of India’, have enacted Article 47 and ‘we, the Justices of India’ cannot ‘lure it back to cancel half a life’ or ‘wash out a word of it’, especially when progressive implementation of the policy of prohibition is, by Articles 38 and 47 made fundamental to the country’s governance. The Constitution is the property of the people and the courts know-how is to apply the constitution, not to assess it. In the process of interpretation, Part IV of the Constitution must enter the soul of Part III and the laws, as held by the Court in State of Kerala v.
N. M.Thomas, (1976) 1 SCR 906 (AIR 1976 SC
490) and earlier. The dynamics of statutory construction, in a country like ours, where the pre- Independence Legislative package has to be adapted to the vital spirit of the Constitution, may demand that new wine be poured into old bottles, language permitting. ……”
39 Therefore, it is not unreasonable to expect that the State does not depart from its avowed policy of prohibiting indiscriminate sale and consumption of liquor. The Act prohibits sale. The State is not expected to encourage sale and consumption of liquor without any control and regulation. While not completely prohibiting such activities what the law {30} wp3130-12.doc enacts is a measure towards achieving total prohibition, which is the ultimate goal of the welfare state as held by the Honourable Supreme Court. Therefore, it may be that the learned Single Judge fell in some error in making one purpose or object of the Act as inferior and other as superior. However, if the provisions of the Act are seen in above perspective and in their entirety, it would be once clear that the Bombay Prohibition Act, 1949 seeks to achieve twin objects of amending and consolidating the law relating to the promotion and enforcement of and carrying into effect the policy of prohibition and also the Abkari law in the State, which is nothing but an measure seeking to achieve promotion and enforcement of and carrying into effect the policy of prohibition. Therefore, there is nothing like inferiority and superiority of the objects and purposes. The objects and purposes have to be understood as a whole and there is no intent to depart from or to defeat the promotion and enforcement of the policy of prohibition. The Act seeks to further and carry into effect such policy. The provisions of the Act have to be understood and construed in this manner so that absolute privilege which has been given and conferred in the State is seen not in isolation but as a part of larger welfare measure. Section 49, therefore, gives exclusive privilege and exclusive right to the Government of importing, exporting, transporting, manufacturing, bottling, selling, buying, possessing or using any intoxicant, hemp or toddy and whenever under this Act, any licence, permit, etc. are to be issued, the fees are to be levied and collected for the same, that to be seen in exercise of the privilege by the State. If the statement of object and reasons by which Section 49 was inserted is referred to, it would be apparent that there was a doubt with regard to the power of the State to levy and collect fees on licences, permits etc. and with a view to clarify that the State can levy them, that the Legislature had to step in. In these {31} wp3130-12.doc circ*mstances, it is not for us to elaborate and consider any further and particularly as to whether the Act seeks to effect the policy of prohibition alone or is an Act to permit sale and other related activities in relation to intoxicants including liquor. If the Act is read and understood as above, it does not permit free trade in liquor as commonly understood or to allow the activities of the nature sought to be regulated, controlled and prohibited, to go on unchecked.”
16] If the object and purpose in enacting Bombay Prohibition Act is to further the directive principles of State Policy enshrined in Article 47, then, the exercise carried in issuing order dated 25 th March 2008 and the prior order, is in tune therewith.
17] In fact Section 139 which enumerates general powers of the State Government in respect of licence enables the State Government, by general or special order, to prohibit grant of any kind of licence, permit, pass or authorisation throughout the State or in any area.
18] Equally, while issuing licence what one finds from the rules is that there is a definite place for public to object and their views {32} wp3130-12.doc being taken into consideration. This in addition to imposing conditions on the licencee, such as the distance which is required to be maintained from establishments like schools, temples, religious structures etc. what one finds is that the Government in exercise of its powers under section 139(1) and (2) has issued the order of 2008. That order is to take care precisely of the complaints, grievances, sentiments and views of the public and particularly women. Clause 3 of the order reads as under:-
“3. Resolution by Gram Sabha for closing down liquor shop – (1) the Collector shall close 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 {33} wp3130-12.doc identity before the Gram Sabha for verification as the voter is resident of the same village. If photo identity is not produced, under such circ*mstances, the Secretary of Panchayat shall certify regarding the bonafide of voters. The Voters, those produced such proofs, shall be allowed to participate in Gram Sabha.”
19] A bare perusal of the same would indicate that the resolution by Gram Sabha for closing down liquor shop binds the Collector.
The Collector shall close down such liquor shop is indicative, therefore, of the intent. Equally, what is laid down by clause 3A and clause 4 is the manner in which the complaint or grievance is to be made. It is not just that any villager or villagers can call upon the authorities to shut down a liquor shop. What this order envisages is that not less than 25% of the women voters or total voters in any village giving representation in writing to the Superintendent of State Excise and demand to close down the liquor shop in the village, such application shall be verified by the {34} wp3130-12.doc Superintendent of the State Excise. After verification of the authenticity of the signature on the representation and genuineness, the Collector can direct the concerned Tahsildar to hold a secret ballot by utilising specimen ballot paper. After completing the formalities of declaring place, date and time of election atleast 7 days in advance, the election process be completed under the supervision of the concerned Tahsildar. The representative of the Superintendent not below the rank of Inspector of State Excise and liquor licensee shall be allowed to remain present during the poll. If at such election more than 50% of the women voters or total voters of the concerned village vote for closing down the liquor shop the Collector shall pass an order for closing down such liquor shop.
20] Clause 4 states that if not less than 25% of the women voters of Municipal Council give such a representation, then, like procedure has to be followed in dealing with the said representation. The time for completion of action or resolution is {35} wp3130-12.doc envisaged by clause 5, which reads as under:-
“5. Time for completion of action on resolution under clause (3) or representation under clause (4) received – After receiving the resolution by Gram Sabha under clause (3) or representation from Ward of Municipal Council or Corporation under clause (4) above for closing down the liquor shop, the Collector shall complete the necessary final action within three months from the date of receipt of such resolution or representation, if for any reason action is not completed within a period of three months, the Collector shall obtain prior permission from the Commissioner of Prohibition and Excise as appointed under the Bombay Prohibition Act, 1949 for extending the period.”
21] Procedural provisions enable the selection of place of voting, declaration of place, date and time of poll and counting of {36} wp3130-12.doc votes and that is how the decision to close down the shop will be made, if representations of the nature stated in the order are received.
22] What one finds in the instant case is that the revisional authority does not dispute that a representation of the nature envisaged has been received and has been dealt with. In fact, in the memo of the revision application what the first respondent has stated is that some of the village people always try to extract money by threatening that if they the licence holder not submit to their demand, they will pressurise the ladies from the village to pass a resolution. Strangely and surprisingly, in para 4 of the revision application it is stated that the resolution was moved by Gram Sabha on 22nd February 2009 and out of 964 voters 587 voted in favour and accordingly the resolution was passed. Thus it is not the complaint of the first respondent that there is no resolution or that there was no meeting or that majority of the women who were present at such meeting did not vote in favour of {37} wp3130-12.doc the resolution. The complaint is that the purpose of notification dated 25th March 2008 is to introduce total prohibition in the village. However, in the present case, the entire purpose was to instigate ladies to pass a resolution and that is with ulterior motive a so as to carry on liquor business illegally by evading the excise revenue and by illegal sale. What has been referred in para 8 of the memo of the Revision Application is that from April 2009 to August 2010, seven cases were registered by Khed police station in which different sections of Bombay Prohibition Act, 1949 have been applied. These are cases which are pending before the authorities or Courts and the accused are persons who are selling liquor illegally. These persons involved in the illegal sale of liquor are related to local officials from Gram Panchayat and, therefore, there is local nexus, is the allegation in para 9. The purpose of the notification, according to applicant – first respondent before me, is not to boost illicit sale of liquor but to prohibit the grant of licence and stop drinking liquor. Thus, the Government notification has been misused, appears to be the {38} wp3130-12.doc thurst of the complaint. Pertinently, there is no allegation that the voting was bogus or that there was any pressure or force applied so that the women voters had to vote in favour of the resolution.
That the polling was free, fair and transparent is, therefore, apparent even to the respondent No.1.
23] When such is the complaint before the Minister in revisional jurisdiction and in the entire memo there are no allegations of the nature that have been culled out or referred by the Minister in his order, then, one fails to understand and appreciate as to how a conclusion is arrived at that the notification issued by the State Government under section 139(1) dated 25th March 2008 and the procedure thereunder has not been complied with or that the compliance is not proper as the signatures and other aspects have not been verified by statutory authorities. There was thus no occasion for the State Government to step in and exercise its revisional jurisdiction when such is the nature of the grievance of the first respondent liquor vendor.
{39} wp3130-12.doc 24] It appears that the Minister on his own undertook an exercise which was wholly unwarranted and unnecessary. In his initial order, what the Minister has concluded is that although there is a special Gram Sabha of women of Chas (kaman) village, which has demanded stopping and prohibition of liquor sale in the village, yet, there are large scale complaints of illegal sale of liquor. Therefore, the Government notification dated 25 th March 2008 which permits the said Gram Sabha meeting to be convened and the resolution to be passed therein should be complied with properly. He concludes that 52 women have taken part in the voting dated 22nd February 2009 but their name does not appear in the Voters’ list, therefore, he ordered re-voting.
25] This order made on 25th May 2011 was set aside by this Court on 19th October 2011. The order passed in this behalf by the Court is very clear inasmuch as the matter stood remitted to take a decision afresh. It was not expected of the Minister to reiterate his {40} wp3130-12.doc earlier findings and conclusions contained in the earlier order which was set aside. He ought to accord separate and cogent as also satisfactory reasons in arriving at a fresh but same conclusion.
However, a bare reading of the order dated 7 th March 2012, copy of which is at Annexure M to the petition, would indicate that the very same conclusion which was arrived at earlier, has been reiterated by the Minister.
26] In arriving at that conclusion what the Minister/ Revisional Authority lost sight of is fact that the women of village on 5 th February 2009 on their own had called a Gram Sabha and passed a unanimous resolution. At that time 425 women unanimously voted in favour of the resolution demanding stoppage of the sale of liquor, whether legal or illegal, in the village. They had also complained with regard to the shop of the first respondent and which is admittedly within the limits of the village. They demanded ban on liquor in the village and the representation, which was duly forwarded after such meeting, was received on {41} wp3130-12.doc 12th February 2009 by the Superintendent State Excise.
Thereafter, he directed BDO Khed to hold women Gram Sabha under his supervision on 22nd February 2009. None of the statements made in the present petition about the presence of the officers and equally the representative of liquor licence holder are denied. Nor is it denied that out of 964 ladies 595 were present at the meeting and participated in Gram Sabha. In para 49-B of the petition specific statements have been made, which are from the Government Record and which remain uncontroverted through out. Equally, the proceedings of the Gram Sabha/Meeting, copies of which are annexed as Annexure D collectively, would denote that the statements in para 4(c) of the petition are supported by records. In these circ*mstances, the minutes of the proceedings of the special Gram Sabha alone have been perused and what the Minister has failed to take into account is that the supplementary registers and all documents referred to in the minutes are not challenged nor any of their contents. In these circ*mstances, by taking into account the fact that 52 women have allegedly voted {42} wp3130-12.doc but their names are not in the voters’ list but without indicating as to how that would have any impact on the final resolution or the decision of gram sabha, the revisional authority has proceeded to quash the resolution itself. Thus, it is clear that when the first respondent does not question any of the above acts nor the procedure adopted by the authorities, then, it was not incumbent upon the Minister to have held any inquiry or to call for the records of the Gram Sabha.
27] The least that is expected of the Minister in such cases is that he abides by the decision contained in the Government Notification dated 25th March 2008. This is not a matter where revenue and income generated by grant of licence to sell and vend liquor or intoxicants must take precedence over public health and public interest. Once the object of the Act has been noted by this Court, and in terms of the Supreme Court decisions in the field, which have been followed by this Court, it was expected that the State which projects itself as a Pioneer in enacting a provision of {43} wp3130-12.doc the nature stipulated in the Government notification dated 25 th March 2008, respects public sentiments and the views of the women expressed in a democratic manner. A Welfare State cannot function by ignoring the views and sentiments of public and especially women who have to bear the brunt of chronic alcholosm prevalent in the society. They are given an opportunity to come together and voice their protest as they are the real sufferers. Abject poverty, illeteracy and unemployment which at times drives menfolk to liquor results in the family including women and children being deprived of food, shelter, education and medicines. That has been emphasised by the Division Bench in the aforenoted decision and with some definite purpose. If the State has provided that it will ban sale of liquor or prevent any licence holder from selling liquor despite licence being issued on a demand from the residents and villagers, then, not to abide by the same would mean that there is much substance in the complaint of Mr.Nighot that measures of the nature initiated by the State are nullified completely. Illegal sale of liquor is {44} wp3130-12.doc something which must be stopped and dealt with sternly and strictly. One cannot conclude as a general rule that by providing a voice for the public and to respect their views and sentiments would mean encouraging sale of liquor by illegal means. By issuance of such orders as are issued in the year 2008 and prior thereto in the year 2003, State does not think that illegal sale of liquor is encouraged or takes place straight away. Once it is making a provision of the nature made by issuance of notification dated 25th March 2008, then, such measures which are in the interest of public and for upholding good morals and public health ought to be taken to their logical end. Failure to stop illegal sale of liquor is no ground to tinker with public views and sentiments expressed through peaceful protests and in exercise of democratic rights. That would mean that whenever there are non-violent protests lodged or complaints made through proper channel, they will be ignored or overlooked forcing the members of public to resort to other measures. The public is expected to speak in a democratic tone as enshrined in the Government notification.
{45} wp3130-12.doc Therefore, any complaint of illegal sale of liquor should not be the ground for undue and uncalled for interference with a Gram Sabha resolution passed unanimously or by the majority in terms of the notification dated 25th March 2008. Having found that the attempt in this case was only to assist and enable the first respondent to carry on the business of sale of liquor, pursuant to a liquor licence and equally finding that by exercising the revisional jurisdiction, the department of State Excise has nullified the Government order dated 25th March 2008, there is no alternative but to quash and set aside the impugned order.
28] As a result of the above discussion, the petition succeeds and the order dated 7th March 2012 passed by the Minister of Excise, State of Maharashtra is quashed and set aside. Needless, therefore, to state that the resolution passed by the special gram sabha of women on 22nd February 2009 stands confirmed and there is no requirement of any revoting or interference therewith.
All authorities shall be duty bound to implement this resolution {46} wp3130-12.doc and equally their orders cancelling the liquor licence of the first respondent.
29] This is a fit case in which to prevent such a course in future and not to encourage filing of frivolous revision application entailing loss of precious judicial time, that costs are required to be imposed on the first respondent. The exercise undertaken at the instance of the first respondent has compelled the petitioners, who are villagers to approach this Court in writ jurisdiction. For this reason the respondent No.1 should pay costs to the petitioners quantified at Rs.25,000/- within four weeks from the date of receipt of this order or else the same will be recovered in accordance with law.
(S.C.DHARMADHIKARI, J)
