Allowed

Shyam S/O Kisanrao Mehetre v. the State of Maharashtra, Thr. the Principal Secretary (State Excise), Mumbai and Anr.

Bombay HC11 Jan 2023WP/304/2023

Case brief

AI extract

What is this about?

The High Court at Nagpur set aside a dry day order issued by the District Collector under Section 142 of the Maharashtra Prohibition Act, 1949. The order was quashed because it failed to demonstrate the Collector's independent application of mind, relying solely on police communication without forming a necessary opinion on public peace.

What did the court decide?

Impugned order dated 9/1/2023 prohibiting sale of liquor in Sindkhedraja is set aside. Rule made absolute.

Shyam S/O Kisanrao Mehetre Vs the State… — Constitutional and Fundamental Rights | Bombay HC (2023)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR

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WRIT PETITION NO.304 OF 2023

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Shyam s/o Kisanrao Mehetre,
aged about 42 years, occupation :
Business, r/o Ward No.15,
Laxmi Niwas, Manik Chouk,
Sindhkhedraja, Taluq Sindhkhedraja,
District Buldhana. ...Petitioner

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- Versus -
1)The State of Maharashtra, through
the Principal Secretary (State Excise),
Mantralaya, Mumbai-32.
2)The District Collector, State Excise
Department, Buldhana. ...Respondents

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Shri J.B. Kasat, Advocate for petitioner.

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Shri A.S. Fulzele, Additional Government Pleader for respondents.

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 CORAM: A.S. CHANDURKAR AND
 MRS.VRUSHALI V. JOSHI, JJ.
 DATED : JANUARY 11, 2023

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ORAL JUDGMENT (PER A.S. CHANDURKAR, J.):

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Rule. Rule is made returnable forthwith. Heard finally

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by the consent of the learned Counsel for the parties.

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2)The challenge raised in this writ petition is to the order
dated 9/1/2023 passed in exercise of power conferred by
Section 142 of the Maharashtra Prohibition Act, 1949. By the said
order, the Collector has been pleased to direct that on the said date,
there shall be no sale of country/foreign liquor in the city of
Sindkhedraja, Taluq Sindkhedraja, District Buldhana.

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3)Shri Kasat, learned Counsel for the petitioner, submits
that the impugned order has been passed in violation of the
provisions of Section 142 of the said Act for the reason that there is
no sufficient material that was considered by the Collector for
arriving at a conclusion that the sale of liquor ought to be prohibited
on the said date. It is submitted that reference in the impugned
order is made to the communication dated 20/12/2022 issued by the
Superintendent of Police, Buldhana and on that basis, the opinion
has been formed. He seeks to place reliance on the judgments of
this Court inWrit Petition No.2928/2019 (Nitin s/o Nagoraoji
Mohod and another vs. The State of Maharashtra and another–
rendered on 12/4/2019) and Writ Petition No.1567/2022 (Rahul s/o
Babanrao Deshmukh vs. The State of Maharashtra and another –

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rendered on 17/3/2022). It is thus submitted that the impugned
order is liable to be set aside.

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4)Shri Fulzele, learned Additional Government Pleader for
the respondents, has opposed the writ petition. He has referred to
the communication dated 20/12/2022 issued by the Superintendent
of Police, Buldhana to the Collector, Buldhana in which it has been
stated that considering the nature of activities that are likely to be
undertaken on 12/1/2023 on the occasion of birth anniversary of
Jijau-mata, sale of liquor should be prohibited as a preventive
measure. It is submitted that after considering the aforesaid opinion,
the order in question came to be issued. Similarly, the order was
restricted for Sindkhedraja City and hence, the same is not excessive.
It is thus submitted that no interference with the impugned order is
called for.

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5)We have heard the learned Counsel for the parties and
perused the documents on record. The scope of Section 142(1) of
the said Act has been considered by this Court in various decisions.
For convenience, reference to para (8) of the decision in the case of

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Rahul s/o Babanrao Deshmukh (supra) can be made, wherein it has

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been observed as under :

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“8.The division bench of this Court in the case of
Nitin s/o Nagoraoji Mohod had set aside the exercise of
power by the Collector, Amravati following the decision
in the case of Maharashtra Wine Merchants Association
vs. State of Maharashtra. By this decision it is held that
the power granted under sub-section (1) of Section 142
to order closure of a shop selling liquor or a permit room
cannot be exercised 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 must be reflected in
the order. We do not find any such independent
application of mind and that too for the entire district.”

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6)When the communication dated 20/12/2022 issued by
the Superintendent of Police is perused in the aforesaid context, it
can be seen that there is a mere apprehension expressed that
considering the earlier history, it would be advisable to have a dry
day on 12/1/2023. The impugned order merely refers to the said
communication and does not indicate any independent application
of mind by the Collector. It was necessary for the Collector to have

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formed his own opinion before issuing such order. In absence
thereof, we find that the learned Counsel for the petitioner is
justified in relying upon the decisions referred to hereinabove.

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7)Hence, for the aforesaid reason, the impugned order
dated 9/1/2023 is set aside. The Collector is, however, not
precluded from passing any fresh order in accordance with law
under Section 142(1) of the said Act with due application of mind,
after disclosing cogent reasons.

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8)Rule is made absolute in the above terms. The writ
petition is disposed of accordingly. No costs.

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9)An authenticated copy of this judgment be given to the
learned Additional Government Pleader.

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 JUDGE JUDGE

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khj

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Digitally Signed By:KAMAL HUNDRAJ JESWANI Signing Date:11.01.2023 19:43

Shyam S/O Kisanrao Mehetre v. the State of Maharashtra, Thr. the Principal Secretary (State Excise), Mumbai and Anr.

Case brief

What is this about?

What did the court decide?

Shyam S/O Kisanrao Mehetre v. the State of Maharashtra, Thr. the Principal Secretary (State Excise), Mumbai and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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