Writ Petition Nos. 1360, 1366, 1367, 1419, 1518 and 2120 of 2015. Case: Rajendrakumar and Ors. Vs The State of Maharashtra and Ors.. High Court of Bombay (India)
| Case Number | Writ Petition Nos. 1360, 1366, 1367, 1419, 1518 and 2120 of 2015 |
| Counsel | For Appellant: Arif Bookwala, Senior Counsel, Akshay Naik and Devendra Chauhan, Advocates and For Respondents: S.G. Aney, Advocate General, Bharti Dangre, Government Pleader |
| Judges | B. P. Dharmadhikari and V. M. Deshpande, JJ. |
| Issue | Bombay Prohibition Act, 1949 - Sections 1, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 117, 11A, 139, 139(1)(a), 139(1), 139(1)(n), 139(c), 26(2)(i), 26(2)(iv), 52, 53, 54, 54(3), 54(1), 54(1)(b), 55, 56, 56(1), 56(1)(a); Constitution of India - Articles 14, 141, 19, 19(1)(g), 21, 246, 254, 300A, 301, 38, 47, 8; Food Safety and ... |
| Judgement Date | January 07, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
V. M. Deshpande, J.
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All Petitioners in these writ petitions are aggrieved by the declaration of Chandrapur as a dry district. The fact that they have licenses or permits issued by the Licensing Authority under the Maharashtra Prohibition Act, 1949 (Act XXV of 1949-- formerly Bombay Prohibition Act, 1949) which are put to an end because of this declaration and hence, their locus to file the challenge is not in dispute. Maharashtra Prohibition Act, 1949 is hereafter referred to as the Prohibition Act.
In Writ Petition No. 1360 of 2015 which has been argued as a lead matter, prayer is to quash and set aside the order dated 5.3.2015 issued by Respondent No. 1 declaring Chandrapur to be the dry district w.e.f. 1.4.2015 by enforcing prohibition in that district in general public interest. It is claimed to be violative of Articles 14 and 21 of the Constitution of India. From that day in exercise of its powers under Section 139(1) of the Maharashtra Prohibition Act, 1949 (Act XXV of 1949 -- formerly Bombay Prohibition Act, 1949), State prohibited issuing of the licenses of types as specified in Schedule. State also clarified for removal of doubt that from said date, licenses in force shall stand canceled on taking action under Section 56(1) of the Act. Other prayer in Petition is to quash and remove the words "in any area" occurring in Section 139(1)(a) as null and void as they permit the State to prohibit the grant of licenses only in such smaller area and violate Article 14 of the Constitution of India. Declaration that after enactment of the Industries (Development and Regulation) Act, 1951 under entry 52 of the VIIth Schedule to the Constitution, as alcohol is covered under entry 26 of 1st Schedule, the Maharashtra Prohibition Act, to the extent it controls the alcohol industries, is rendered ultra-vires in view of Article 246 read with Article 254 of the Constitution of India, is also sought. However, during arguments no such contention was raised and our attention was not drawn either to the Industries (Development and Regulation) Act, 1951 or to the Articles 246 and 254.
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Prayers in Writ Petition Nos. 1366, 1367 and 1419 of 2015 are only about the order dated 5.3.2015 and its validity. There is no prayer for declaring any statutory provisions bad. Prayer clause in Writ Petition 2120 of 2015 is on same lines. Prayer clause (a) in WP 1518 of 2015 is to issue writ of certiorari to quash order dated 5.3.2015 as it is arbitrary, unreasonable and based on misrepresentation of the facts. Mandamus to the Respondents not to violate Article 14, qua the residents of Chandrapur is also sought. Prayer clause (b) is not very clear but it seeks quashing of Section 139(1)(a) as ultra vires and also unconstitutional, on account of not mentioning the "prohibition in the interest of general public" being violative of Article 14 of the Constitution. Appointment of a Committee under the supervision of this Court to ascertain the true facts, desire of the general public to safeguard their constitutional rights. However, the Petitioners have not taken any pains to throw light on the exact meaning of or nature of relief under these prayer clauses.
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Part of Chandrapur district as such constitutes a special area in the light of Section 1 of the Prohibition Act read with its Appendix 1A. Two adjacent Districts in State of Maharashtra viz. Gadchiroli and Wardha are already dry districts, where the State Government has decided not to part with its absolute privilege and not to make any exceptions by issuing the licenses. Government claims that this exercise is seriously jeopardized because of the availability of liquor legally in Chandrapur which borders the both. Part of Chandrapur also is a tribal undeveloped or under-developed area. Sizable women folk therein have sought total prohibition. Several Gram Panchayats have also passed the resolutions and demanded ban on alcohol. The movement to impose total prohibition by withdrawing the exceptions or the concessions allowed and urging the State not to part with by reclaiming the privileges is going on since 2010 i.e., when the present political party was not in power. It and its associate political party have been elected to power in 2014.
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The Deotale Committee which undertook the survey was not formed by the present government (political body in power) but, by its opponents then in power. That Committee conducted an open survey and hearings after due public advertisement. It called for views from the all concerned and also heard them. The political party then in power also kept the composition of the Committee politically neutral. All license holders opposed the demand, submitted their stand in writing and were also called for hearing. Their opposition is also taken note of by the Deotale Committee in its report. Submission of Petitioners is that as majority of the Gram Panchayats did oppose the imposition of ban or wanted the prevailing policy to continue, the impugned action must be quashed. Perusal of DCR i.e. Deotale Committee Report reveals that it invited everybody for hearing. It did receive the copies of the resolutions passed by the Gram Panchayats which supported the ban. It shows that majority of the Gram Panchayats passed a resolution in favour of ban i.e. supporting the move to declare Chandrapur as a dry district. Petitioners have not pointed out that any Gram Panchayat appeared before the Committee to oppose the proposed ban or then to point out that it does not want prohibition to be enforced. Such Gram Panchayats are also not before this Court to submit that their resolutions supplied to the Committee were forged.
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Petitioners urge that out of 847 Gram Panchayats only 140 supported the move to impose ban by passing an affirmative resolution while others did not pass any such resolution. They rely upon the information received under Right to Information Act. Respondents submit that the query made under RTI Act restricted the period in relation to which the information was sought and thereby, the resolutions of such Gram Panchayats in favour of declaration of Chandrapur as a dry district passed after that period, did not enter the RTI answer. Petitioners dispute this. According to them, ban is wholly due to DCR which does not consider any Chandrapur specific material. Respondents deny this and urge that the Cabinet has looked into every relevant aspect, Chandrapur specific data and DCR was only one part of it. This much of the background is sufficient to proceed further to appreciate the controversy. We have to highlight this angle again while considering the challenge to DCR and the Cabinet Decision, in order to comprehend the scope open to us for intervention.
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Senior Advocate Shri Bookwala opened the arguments on behalf of Petitioners and Senior Advocate Shri S.P. Dharmadhikari addressed the court on legal aspects. Advocate General Shri Aney and the Government Pleader Smt. B.H. Dangre argued for the State.
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Shri Bookwala, from the report of the Deotale Committee, pointed out that in 2010 during winter session of State Assembly at Nagpur, a NGO by name Shramik Elgar took out a MORCHA (procession) of about 5000 women and met the then Chief Minister Shri Pruthwiraj Chavan and Home Minister (since deceased) Shri R.R. Patil. A private bill introduced by MLA Shri Sudhir Mungantiwar about making Chandrapur district alcohol free was discussed and an assurance was then given by the then Minister for State Excise on the floor of the House. A committee by name Deotale Committee was constituted to study the situation in Chandrapur and to make suitable suggestions within three months. Meetings were then conducted in the rest house at Chandrapur on 11 dates between 4.3.2011 to 17.2.2012. Committee also recommended that till receipt of its report, the State should not issue new licenses. It visited respective Collectors and Police Superintendents at Wardha and Gadchiroli to understand the difficulties faced in keeping those districts dry as per the declarations. Report takes note of total number of municipal councils as 7,847 Gram Panchayats, 479 licenses, total revenue earned of Rs. 124.73 crores, illegal sales of Rs. 3.30 Crores. According to learned Counsel the report then considers material which is not specifically for Chandrapur district, both in favour and against the proposed ban. Petitioners state that said data is too general and applies to all open districts. Committee then recommends ban phase wise and in three years. It envisages initiation of an awareness drive and education, organizations like alcoholic anonymous at taluka level with its branches and toll free number and help centres, 100 bed hospital at District level to treat alcoholic persons. It also made suggestions on ways and means for making the funds available through the local mines, industries, power stations and out of professional tax collection. Shri Bookwala points out that the State could have implemented the report in its entirety and not part of it. By only acting upon the prohibition part, that too suddenly and doing away with the phase wise manner or other awareness program, vital for the success of ban, the State has violated Articles 14 and 21. As the adjacent areas still continue to be without ban, the desire to make Chandrapur alcohol free is bound to fail.
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By inviting attention to replies to RTI query, he points out that DCR contains false assertion that 588 out of total 847 Gram Panchayats resolved in favour of ban. Only 140 gram panchayats did resolve accordingly. 473 gram panchayats passed a resolution opposing the proposed ban while 260 did not resolve either way. The representation allegedly signed by over a lakh of women has not been verified for its genuineness. This assertion on affidavit in petition is not denied by the Respondents. He also invites attention to additional affidavit and news item carrying the statement of the Chief Minister that...
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