Allowed

Satish Damodhar Kasar. v. the State of Mah. and Others.

Bombay HC13 Feb 2012WP/2416/1994

Case brief

AI extract

What is this about?

The High Court quashed an order compelling the petitioner to shift his country liquor shop. The court held the order was arbitrary, based on non-existent material, and violated natural justice, as the authorities failed to produce evidence of complaints or resolutions cited as grounds.

What did the court decide?

The impugned order dated 22.7.1994 is quashed and set aside. The Rule is made absolute.

Satish Damodhar Kasar. Vs the State of Mah. and Others. — Service and Employment | Bombay HC (2012)

¶1

wp-2416.94

¶2

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

¶4

BENCH AT AURANGABAD.

¶5

WRIT PETITION NO. 2416 OF 1994

¶6

Satish s/o Damodhar Kasar,
age 38 years, occupation:
business, r/of Shivna,
Tq.Sillod,Dist.Aurangabad.

¶7

Petitioner

¶8

versus

¶9

1. The State of Maharashtra, through its Secretary, Home Department, Mantralaya, Bombay-32.

¶10

2. The Collector, Aurangabad.

¶11

3. Smt. Kusumbai Eknathrao Kale, age major, occup. agriculture and household, r/of Shivna, Tq.Sillod, Dist. Aurangabad. Respondents

¶12

Shri Monish Nilwant, Advocate, holding for
Shri S.B. Talekar, Advocate for Petitioner.
Shri K.G.Patil, A.G.P.for Resp. No. 1 & 2.

¶13

¶14

wp-2416.94

¶15

Coram : B. R. Gavai and
 Sunil P. Deshmukh, JJ.
Date : 13th February 2012

¶16

JUDGMENT (Per: Deshmukh, J.) .

¶17

01.The petitioner has approached this court
invoking its powers under Articles 226 and 227 of the
Constitution of India, against the order dated
22.7.1994, directing him to shift his country liquor
shop to other place, failing which, the same would be
closed pursuant to powers under Section 142(1) of the
Bombay Prohibition Act, 1949 ("The Prohibition Act" for
short).

¶18

02.The petitioner has contended that a licence
for retail sale of country liquor had been granted in
faovur of his father by order dated 17.10.1973 by
Respondent No. 2. Said licence had been subsequently
transferred in the name of Petitioner on the death of
his father, under order dated 31.3.1993. The shop, as

¶19

such, is being run for over 21 years and there had
been no complaints whatsoever in respect of smooth
running of the same. It is contended that a few women
and others residing in the recent past had been bent

¶20

3 wp-2416.94

¶21

upon to close down said licenced business of the
petitioner and had initiated a campaign for the same.
It had been politically motivated under the stratagem
of political rivals. Said persons had influenced and
instigated a few women and residents of village Shivna
to close down said licenced business and for said
purpose, had undertaken a signature drive.

¶22

03.A show cause notice dated 7.5.1994, came to
be issued by Respondent No. 2 to the Petitioner,
seeking explanation as to why the licence be not
cancelled with reference to Sections 54 and 56 of the
Prohibition Act, originating from alleged complaints
by Women Organizations against the country liquor shop
and a resolution passed by Gram Sabha, referring to
that, according to orders passed by the Government,
licence of the petitioner is liable to be cancelled.

¶23

04.Petitioner had tendered his explanatory reply
on 23.5.1994 to Respondent No.2. He had submitted that
alleged complaints of Women Organizations have been
brought about by his political rivals and are
politically motivated. Petitioner had denied that Gram
Sabha, as alleged, had ever been held for said

¶24

4 wp-2416.94

¶25

purpose. He had not received notice for Gram Sabha, nor

¶26

there had been any announcement by a beat of drums.
Signatures of women and others had been taken at the
behest of political leaders who had inimical terms with
petitioner. Petitioner had pointed out the position
that only 230 persons had given their signatures from
total population of 14,000 villagers. Under said
drive, the political leaders had been supporting
business of bootleggers and promoting sale of french
polish in the village and that about 20 persons,
inclusive of local leaders, had indulged into such
activities and that criminal cases have been registered
against them referring to their names in the petition.
Petitioner had also requested to let him have copies
of government resolutions/circulars being relied on, as

¶27

also had requested for copies of alleged
representations/complaints by women organizations and
the alleged resolution passed by Gram Sabha. It is
submitted that he had not been supplied with said
copies at all.

¶28

05.The petitioner has referred to that in Writ
Petitions No. 580 of 1994 and 859 of 1994, a co-
ordinate bench of this Court at Nagpur, has decided

¶29

5 wp-2416.94

¶30

similar matters and quashed and set aside orders,
issued by the Collectors of Chandrapur and Yawatmal
under which cancellations/shifting of the country
liquor shops were directed on complaints by women
organizations. Petitioner has produced a copy of a
writ issued pursuant to said orders. Petitioner has
contended that although the show-cause notice had made
reference to Sections 54 and 56 of the Prohibition Act,
yet the impugned order refers to Section 142(1) of the
Prohibition Act and as such, the impugned order is an
action in excess of the provisions referred to in the
show cause notice and is without jurisdiction.
Petitioner has contended that the show cause notice, as
well as the impugned order, are vague and without
material particulars of the basis on which the same
have been issued.

¶31

06.Affidavits-in-reply have been filed on behalf
of Respondents No. 2 and by Respondent No. 3. It is
submitted that the circulars and directions issued by
the Commissioner of State Excise and such other
authorities are not amenable to be made available being
confidential in nature. Respondent No.2, though has
made a reference to the representations made by the

¶32

¶33

wp-2416.94

¶34

women organizations, has not produced any of the same.
So is the case with Respondent No.3 who too has not
produced copies of representations against the country
liquor shop of the petitioner. Respondent No. 2 has
accepted that the show cause notice has been issued,
referring to Sections 54 and 56 of the Act.
Respondents purported to deny that Gram Sabha was not
convened, however, have failed to produce on record any
resolution as contended. It is contended by Respondent
No.2 that one more show cause notice dated 23.5.1994
had been issued by him to the petitioner, however, the
same had not been replied to nor complied with.
Interestingly, said show cause notice too, has not been
produced by Respondent No.2. Respondent No. 2 has
supported his action under the impugned order for it
apprehended danger and disturbance to public peace
based on complaints by women organizations from running
of country liquor shop of petitioner and tried to
justify his action under Section 142(1) of the
Prohibition Act.

¶35

07.From the affidavit-in-reply by Respondent No.
3 one thing certainly emerges is that there had been no
resolution by Gram Sabha for directly closing down the

¶36

7 wp-2416.94

¶37

country liquor licenced shop of the petitioner. Though
respondent No. 3 has vehemently contended that Gram
Sabha had been held and it had craved liberty to
produce the notice of Gram Sabha and its proceedings,
Respondent No. 3 has not been able to produce the
documents for almost last over 18 years. Respondents
have generally denied the contentions and allegations
in the petition. Except replies filed by the
respondents, no documents have been produced on record
by the answering respondents.

¶38

08.We have heard Shri Monish Nilawant, learned
Advocate holding for Shri S.B. Talekar, learned
Advocate for the petitioner and Shri K.G.Patil, learned
A.G.P. for the Respondent-State, at quite some length.

¶39

09.It is contended that the show cause notice
had been unsustainable, as it had been issued under
political pressure exerted by the persons referred to
in the writ petition with the aid of so called women
organizations. The show cause notice itself did not
have any foundation save and except the political
pressure. It has further been contended that though
show cause notice had been issued with reference to

¶40

8 wp-2416.94

¶41

Sections 54 and 56 of the Prohibition Act, the impugned
order has been passed under Section 142 of the said
Act. Such an exercise of powers cuts across the very
purpose underlying the noble principles of natural
justice. The impugned order is arbitrary, in breach of
principles of natural justice, capricious, encroaching
upon the licenced business being carried on by the
petitioner and has political overtones. It is not the
objective satisfaction of the authority concerned, but
the ill-intention of the politically motivated group
which has impelled the issuance of show cause notice as
well as the impugned order. It is submitted that
reference to Section 142(1) of the Prohibition Act is
absolutely uncalled for and the authority concerned
cannot exercise the powers under Section 142 of the
Act.

¶42

10.The learned Counsel for the petitioner has
placed reliance on a decision rendered in Writ Petition
Nos. 1029 and 1030 of 2006 on 18.7.2006 in the matter
ofMaharashtra Wine Merchants' Association vs. State
of Maharashtra and ors. reported in 2007 (3) Bom. C.R.
343,wherein it has been held that usage of words "to
maintain law and order" by the authority was mechanical

¶43

9 wp-2416.94

¶44

and without application of mind and on the opinion of
someone else and hence, unsustainable. Learned Counsel
for petitioner objects to purported exercise of powers
under Section 142 as referred to in the impugned order,
alleging it to be outside the powers and authority.

¶45

11. It would be pertinent to note that for an
erroneous reference to the particular provision under

¶46

the impugned order would not render the exercise
without power or authority, if such power and authority
is otherwise available under the provisions of the
Prohibition Act. The impugned order is not liable to

¶47

be faulted with on this count, as contended by the
counsel for the petitioner.

¶48

12.Show cause notice had been issued referring

¶49

to Sections 54 and 56 of the Prohibition Act. The
textual contents of the said provisions are as under:

¶50

"54.Power to cancel or suspend licenses and
permits.

¶51

(1) The authority granting any licence, permit,
pass or authorization under this Act may for reasons
to be recorded in writing cancel or suspend it,

¶52

(a)if any fee or duty payable by the holder
thereof is not duly paid;

¶53

¶54

wp-2416.94

¶55

(b)if the purpose for which the licence,
permit, pass or authorization was granted
ceases to exist;

¶56

(c)in the event of any breach by the holder
of such licence, permit, pass or authorization
or by his servant or by any one acting with
his express or implied permission on his
behalf of any of the terms or conditions of
such licence, permit, pass or authorization or
of any licence, permit, pass or authorization
previously held by the holder.

¶57

(d)if the holder thereof or any person in
the employ of such holder or any person acting
with his express or implied permission on his
behalf is convicted of any offence under this
Act or if the holder of the licence, permit,
pass or authorization is convicted of any
cognizable and non-bailable offence or [of
any offence under the Dangerous Drugs Act,
1930 or under the Drugs Act, 1940 or under the
Bombay Drugs (Control) Act, 1952] or under the
Indian Merchandise Marks Act, 1889, or of any
offence punishable under section 482 to 489
(both inclusive) of the Indian Penal Code, or
of any offence punishable under Article 8 of
the Schedule to section 167 of the Sea Customs
Act, 1878.

¶58

(e)if the licence, permit, pass or
authorization has been obtained through wilful
misrepresentation or fraud.

¶59

(2)Where a licence,permit, pass or authaorization
held by any person is cancelled, under sub-section
(7), the authority aforesaid may cancel any other

¶60

11 wp-2416.94

¶61

licence, permit, or pass or authorization granted or
deemed to have been granted to such person under
this Act.

¶62

(3)Notwithstanding anything contained in this
section, the State Government may, for reasons to be
recorded in writing, suspend or cancel any licence,
permit pass or authorization.

¶63

56. Cancellation for other reasons .

¶64

(1)Whenever the authority granting a licence,
permit, pass or authorization, considers that it
should be cancelled for any cause other than those
specified in section 54, he may cancel it either-

¶65

(a)on the expiration of not less than
fifteen days' notice in writing of his
intention to do so; or

¶66

(b)forthwith without notice, recording his
reasons in writing for doing so.

¶67

(2)Wherealicence,permit,passor
authaorization is cancelled under sub-section (1), a
part of the fee for the licence, permit, pass or
authaorization proportionate to the unexpired
portion of the term thereof and the deposit made by
the holder thereof in respect of such licence,
permit, pass or authorization shall be refunded to
him after deducting any amount due from him to the
State Government."

¶68

13.However, while the impugned order came to be
passed, reference has been made to Section 142 (1) of
the Prohibition Act, which reads as under:

¶69

¶70

wp-2416.94

¶71

"142. Power of Collector to close place where intoxicant or hemp is sold in certain cases.

¶72

(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."

¶73

14.Section 142 of the Prohibition Act refers to
powers of Respondent No.2 for closing of a place for a
specified period and sub-section (2) of the same also
speaks of the powers of Executive Magistrate or Police
Officer to close the place also for a specified period
in the order.

¶74

15.In the present case, the petitioner's father
and after his death the petitioner had been running the
licenced business for over a period of 20 years
smoothly and without any complaints. It appears that
apprehension has been expressed and entertained by the
authorities concerned on the so called complaints of
women organizations and the alleged resolution by Gram
Sabha about which no record has been available and as
such, the impugned order had been issued without any
basis therefor.

¶75

13 wp-2416.94

¶76

16.The exercise of powers under Sections 54 and
56, or for that matter, Section 142 of the Prohibition
Act, is regulated by the provisions thereunder. It
would be apparent that none of the circumstances
referred to under clauses (i) (a) to (e) of Section 54
had been subsisting while show cause notice had been
issued, nor the reasons referred to under the show
cause notice appear to be based on any material. The
show cause notice has been vague and appears to have
been issued on presumption of there being resolution by
Gram Sabha and complaints by Women organizations.

¶77

17. Thus, it appears that there had been no
attributable cause for intended cancellation of the
licence issued to petitioner as could be considered
under Section 56 of the Prohibition Act. While show
cause notice called for explanation against
cancellation of licence, the impugned order dated
22.7.1994 refers to a different demand of shifting of
shop to some other place.

¶78

18.There is no coherence in the show cause
notice and the impugned order. The impugned order

¶79

appears to have been passed on subjective satisfaction

¶80

wp-2416.94

¶81

¶82

on non subsisting material and for a different reason
about which the petitioner did not get opportunity to
tender explanation.

¶83

19.The impugned order, however, speaks about
cancellation of the licence which is not according to
Section 142 of the Prohibition Act and as such, the
impugned order cannot be sustained even on that ground.
The purported exercise of powers exceeds periphery of
the circumstances referred to under Sections 54, 56
and 142 of the Prohibition Act, and would not be
compatible with the regulatory provisions.

¶84

20.Over all situation points out that the show
cause notice and the impugned order did not have the
pre-requisites for the issuance which is apparent since
neither the representations of the women organizations
nor the resolution of Gram Panchayat or Gram Sabha has
ever been produced, inasmuch as absolutely no record
has been placed before this court justifying the
issuance of the show cause notice, as well as the
impugned order. The show cause notice and the impugned
order as such are arbitrary and capricious and deserve
to be set aside. The grounds on which show cause notice

¶85

15 wp-2416.94

¶86

and the impugned order are being justified, do not
appear to have any factual basis. The impugned order
cannot be sustained and is liable to be quashed and set
aside.

¶87

21.Accordingly, the impugned order dated

¶88

22.7.1994 is quashed and set aside. We make it clear
that this order would not come in the way of the
authorities and it would be open for them to take an
action according to law, if occasion so arises.

¶89

22.Petition is thus allowed. Rule made absolute

¶90

in aforesaid terms. No order as to costs.

¶91

(Sunil P. Deshmukh, J.)(B.R. Gavai, J.)

¶92

pnd/wp-2416.94

Satish Damodhar Kasar. v. the State of Mah. and Others.

Case brief

What is this about?

What did the court decide?

Satish Damodhar Kasar. v. the State of Mah. and Others.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Shivraj Gangaram Jamdade Vs the State of Mah and Ors.

Tushar Anandrao Jagtap and Ors. Vs the State of Mah and Anr.

Rashtriya Shikshan Samiti Nanded Vs Karbhari Amruta Pawar and Ors.

Shahadeo Lmahadeo Mohod Vs the State of Maharashtra and Ors.

Pandurang Ramrao Tangadpalle. Vs the State of Maharashtra and Others.

Anita Anil Vaidya. Vs Union of India and Others.