JUDGMENT : - By these two petitions, the petitioners viz. Maharashtra Wine Merchants Association and Indian Hotels and Restaurant Association challenge the circular dated 4th April, 2006 issued by the Commissioner, State Excise Department to all Collectors in the State requiring them to pass orders under section 142 of the Bombay Prohibition Act, 1949 (for short the Act) to close all licensed shops selling foreign and Indian liquor. The petitioner in petition no.1030 of 2006 also challenges the order dated 5th April, 2006 issued by the Collector, Mumbai City purportingly under section 142 of the Bombay Prohibition Act directing: all toddy, country liquor and foreign liquor shops shall remain closed on 6th April, 2006 on account of Ram Navmi."

2. The members of the petitioner in W.P. No.1029 of 2006, the Maharashtra Wine Merchants Association, hold vendors licences granted to them under section 34 of the Act. By the said licences, the licenced vendors are allowed to sell foreign liquor in sealed bottles, subject to the terms and conditions of the licence. The members of petitioner in W.P. No.1030 of 2006, the Indian Hotels and Restaurant Association, hold hotel licences which permit them to sell and serve for consumption on the licenced premises (permit rooms) foreign liquor to a holder of permit in accordance with and subject to the terms and conditions of the licence. The petitioners are accordingly lawfully carrying on the business of sale of liquor to the permit holders and no breach of condition of licence is alleged against the petitioners or any of their members.

3. On 4th April, 2006, the Commissioner of State Excise issued a circular addressed to all District Collectors directing them that they should in exercise their powers u/s.142(1) of the Act order that all shops selling toddy, country and foreign liquor should be kept closed on 6th April, 2006 on the occasion of Ram Navmi. In pursuance of the said circular, the District Collectors of all districts in the State of Maharashtra issued orders on 5th April, 2006 purportingly under section 142 of the Act directing that all shops selling toddy, country liquor and foreign liquor as well as all permit rooms should be kept closed on 6th April, 2006 on account of Ram Navmi. The circular dated 4th April, 2006 issued by the Commissioner as well as the order issued by the Collector, Mumbai in pursuance of the said circular are impugned in these petitions.

4. Since the order has been passed by the Collector, Mumbai in pursuance of the exercise of powers u/s.142(1) of the Act, it would be useful to reproduce the section 142 which reads as follows:

"142(1) If the Collector is of opinion that it is in the interest of public peace to close any place in which any intoxicant or hemp is sold, it shall be lawful for the Collector by an order in writing to the persons holding a licence for the sale of such intoxicant or hemp to require him to close such place at such time or for such period as may be specified in the order.

(2) If a riot or unlawful assembly is imminent, or takes place, it shall be lawful for any Executive Magistrate or Police Officer who is present to direct that such place shall be closed and kept closed for such period as he thinks fit, and in the absence of any Executive Magistrate or Police Officer the person referred to in subsection (1) shall himself close such place." 5. Sub - section (1) of section 142 empowers the Collector by an order in writing issued to the persons holding a licence for sale of intoxicant or hemp to close such place at such time or for such period as may be specified in the order, if the Collector is of the opinion that it is in the interest of public peace to close any place in which any intoxicant or hemp is sold.

The power granted under sub - section (1) of section 142 to order closure of a shop selling liquor or a permit room can be exercised not at the fancy of the Collector but only if the Collector is satisfied that it is necessary

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