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IN THE HIGH COURT OF BOMBAY
Rohit B. Deo, M.W. Chandwani, JJ.
S. K. Restaurant And Bar - Appellant
Versus
State of Maharashtra - Respondent
Writ Petition 5906 of 2022
Decided On : 07-07-2023
POWER - CLOSURE OF LICENSE - Maharashtra Prohibition Act, 1949 - Sec. 142, Sec. 54, Sec. 56 - The court interpreted Sec. 142 of the Maharashtra Prohibition Act, emphasizing that the Collector's power to close a licensed establishment is limited to a specified period and does not extend to permanent closure. The court highlighted that the legislative intent restricts the authority to order permanent closure, which is akin to cancellation governed by other sections of the Act. The court concluded that the order for permanent closure was jurisdictionally flawed and quashed it.
Fact of the Case:
The petitioner challenged the District Collector's order for the permanent closure of 'M/s. S.K. Restaurant and Bar' under Sec. 142 of the Maharashtra Prohibition Act, asserting that the order was made without jurisdiction and without an opportunity for a hearing. The petitioner claimed that the closure was influenced by local political pressure and that other establishments in the vicinity were not similarly targeted.
Finding of the Court:
The court found that the order for permanent closure was not supported by the provisions of Sec. 142, which only allows for temporary closure based on public peace considerations. The court noted that the Collector did not have the jurisdiction to order permanent closure or to compel the licensee to shift the license elsewhere.
Issues: Whether the District Collector had the jurisdiction under Sec. 142 of the Maharashtra Prohibition Act to order the permanent closure of the petitioner's establishment and whether the order was made in violation of the principles of natural justice.
Ratio Decidendi: The court held that Sec. 142(1) of the Maharashtra Prohibition Act does not empower the Collector to order permanent closure of a license, as such action is governed by other provisions of the Act (Sec. 54 and Sec. 56). The court emphasized the need for objective material to justify any closure and the requirement for a specified period for such closure.
Final Decision: The court quashed the order dated 10/3/2023, declaring it contrary to the provisions of Sec. 142(1) and without jurisdiction, allowing the petition.
JUDGMENT/ORDER
ROHIT B.DEO, J. - Petitioner is assailing the order dtd. 10/3/2023, passed by the 2nd respondent - District Collector, Nagpur in purported exercise of power under Sec. 142(1) of the Maharashtra Prohibition Act, 1949 ("Act") directing permanent closure of the establishment "M/s. S.K. Restaurant and Bar" till FL-III license shifted elsewhere.
2. Petitioner is the holder of FL-III license 1165/2022- 23, issued by the second respondent. Petitioner asserts that the license was obtained to operate the business in rented premises situated at Tirupati Apartment, shops 2 and 3, mouza-Zingabai Takli, Nagpur. The State Excise Inspector submitted report, endorsing the compliance of the procedural requirement and according non objection. Petitioner states that within one kilometer radius of the premises at Tirupati Apartment, Zingabai Takli, several license holders, illustratively Red Rose Bar and Restaurant, Nupur Wine Shop and Somras Country Liquor are operating the license.
3. Petitioner states that after the petitioner started operating the license, certain persons claiming to be local politicians came to the establishment and told the petitioner that their dictates shall have to be abided by. The petitioner did not oblige and as a consequence, on 22/7/2002, one representation was submitted to the second respondent seeking closure of the petitioner's restaurant and bar.
4. The petitioner asserts that the protest is stage managed at the behest of local politicians for reasons not far to seek. The petitioner asserts that while the ostensible reason articulated in the demand for closure of the bar and restaurant was the likelihood of law and order problem, the fact that the petitioner is singled out and the other license holders, who are operating the license in the vicinity are left untouched, is eloquent.
5. Petitioner states that the second respondent passed order dtd. 22/7/2022, without granting any opportunity of hearing, directing the closure of the license till 30/9/2022. It is this order which is initially assailed in the petition. During the pendency of the petition, the second respondent passed order dtd. 29/9/2022, extending the period of closure till 31/12/2022. The second respondent then passed order dtd. 30/12/2022, directing the closure of the license till 31/3/2023 and finally by order dtd. 10/3/2023, the second respondent directed permanent closure of the license till the license is shifted elsewhere.
6. The fulcrum of the challenge is that the order impugned is without jurisdiction. The petitioner submit that Sec. 142 of the Act does not empower the Collector to order permanent closure of the license nor is the Collector empowered to force the licensee to shift the license elsewhere under the threat of permanent closure.
7. Learned AGP Mr. N.S. Rao, who appears on behalf of the State Government would submit that the order impugned is revisable. The learned counsel for the petitioner Mr. D.V. Chauhan would disagree. Be that as it may, we assuming that there is any statutory remedy available, we are not inclined to relegate the petitioner to such remedy since we are inclined to hold that the order impugned is jurisdictionally bad.
8. Sec. 142 of the Act reads thus: 142. Power of Collector to close place where intoxicant of hemp is sold in certain cases:
(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 pe
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Point of law: petitioner succeeds in establishing that his Gehrukheda licence was not liable to be cancelled as he had not violated either section 34(1) (a) or (b) or (c) of the Act, the present proc....
The authority cannot mandate the shifting of an operational licensee's business based on objections raised after the statutory period, as such orders lack jurisdiction and must be supported with reas....
Licences cannot be cancelled on grounds beyond the violation of conditions of the licence, as stipulated in Rule 238 of the Rules.
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