Case Note & Summary
The dispute concerned closure of a CL-III liquor shop in village Naigaon (Dh.), Tq. Dharmabad, District Nanded. The petitioner held licence No.95 issued under the Maharashtra Prohibition Act. The Collector, State Excise Department, Nanded passed an order under Section 142(1) of the Act directing closure of the petitioner's liquor shop, upholding a resolution passed by the Grampanchayat. The resolution was stated to have been passed in terms of the State Government's order under Section 139 dated 25.03.2008 as amended on 12.02.2009. The petitioner challenged the Collector's order by writ petition, contending that the decision was solicited under Clause 3(3A) of the order under Section 139, but the elaborate procedure prescribed under that clause was not followed. According to the petitioner, Clause 3(3A) required a representation in writing by 25% of women voters or total voters to the Superintendent of State Excise, verification of the representation, a Collector's direction to Tahsildar to take a secret poll, seven days' advance declaration of election, supervision by Tahsildar or Naib Tahsildar, presence of Excise Inspector, and closure only after 50% of women voters or total voters voted for closure. The petitioner argued that none of these prerequisites were followed, rendering the order illegal, perverse and arbitrary. Alternatively, relying on Vithal Mallu Chintalwar v. State of Maharashtra, the petitioner submitted that the Collector failed to prescribe the period for closure as mandated under Section 142. The respondents contended that the Collector had rightly invoked Clause 3(1) and not Clause 3(3A). They explained that under Clause 3(1), a resolution must be passed by not less than 50% women voters present in Gram Sabha by simple majority in accordance with the Maharashtra Village Panchayat Act, 1958 and rules; voters must produce photo identity; in absence of photo identity, Secretary of Panchayat certifies bona fides; and Clause 3(2) requires verification of voters by Block Development Officer along with Inspector of State Excise, presence of these two officers and licence holder at Gram Sabha, and video recording. The respondents asserted that all such procedure was duly followed. The Court reproduced Clauses 3(1), (2), (3) and (3A) verbatim. It framed the decisive point as whether the Collector had acted under Clause 3(1) and (2) or under Clause 3(3A). The Court observed that if the order was under Clause 3(1) and (2), the petitioner had no case because no argument was made that that procedure was not followed. Conversely, if the order was under Clause 3(3A), there was enough undisputed material to show that its prerequisites were not satisfied: no 25% representation, no verification, no Collector direction for secret poll, no seven days notice, no secret ballot, and a Talathi instead of Tahsildar or Naib Tahsildar was present. The Court noted that the impugned order itself proceeded on the premise that powers were invoked under Clause 3(1) and (2). However, the affidavit-in-reply of respondent No.3, Superintendent of State Excise, in paragraph 10 specifically stated that the impugned order was passed under Clause 3(3A). When the learned AGP sought to explain this as a typographical error, the Court called it a decisive fact and clinching admission which could not be withdrawn or explained away, also noting paragraph 5 of the same affidavit contradicted paragraph 10. The petitioner objected to filing of an additional affidavit to correct the error. In the final portion available, the Court considered the petitioner's argument that representations by Women Self Help Groups indicated an intention to proceed under Clause 3(3A). The Court was not persuaded that such representations were a sufficient basis to infer intention under Clause 3(3A) when the procedure under Clause 3(1) and (2) was duly followed and objectively examined by the Collector. The available judgment text ended mid-analysis without recording the final operative order or discussion of the alternative argument regarding prescription of period.
Headnote
A) Maharashtra Prohibition Act - Liquor Shop Closure - Clause 3(1) and (2) of Order under Section 139 - Gram Sabha Resolution - Collector can direct closure under Section 142(1) if not less than fifty per cent of total voters or women voters present in Gram Sabha pass a resolution by simple majority. The resolution must be passed in accordance with Bombay Village Panchayats Act, 1958 and rules made thereunder. Voters must produce photo identity before Gram Sabha for verification as residents of the same village; if photo identity is not produced, Secretary of Panchayat shall certify bona fides. Verification of voters shall be done by Block Development Officer along with Inspector of State Excise. Gram Sabha shall be held in presence of these two officers and representative of liquor licence holder, and there shall be video shooting of such Gram Sabha used as evidence. Held that if the Collector passed the order under Clause 3(1) and (2), the petitioner had no case because no argument was made that this procedure was not followed. (Paras 8-9) B) Maharashtra Prohibition Act - Liquor Shop Closure - Clause 3(3A) of Order under Section 139 - Secret Ballot Procedure - Under Clause 3(3A), if not less than twenty-five per cent of women voters or total voters in any village give a representation in writing to the concerned Superintendent of State Excise demanding closure of a liquor shop, such application shall be verified by the Superintendent. After verification of authenticity of signature and its genuinity, the Collector shall direct the concerned Tahsildar to take secret poll fearlessly by utilizing a specimen ballot paper. The Tahsildar shall declare place, date and time of election at least seven days in advance. The latest list of voters shall be used. The election shall be completed by secret ballot under supervision of concerned Tahsildar or an officer not below the rank of Naib Tahsildar authorised by him. The representative of Superintendent not below the rank of Inspector of State Excise and the liquor licence holder shall be allowed to remain present during the poll. If more than fifty per cent of women voters or total voters vote for closing down, the Collector shall pass an order for closing. Held that there was no material to show compliance with these prerequisites: no representation by 25% voters, no verification by Superintendent, no Collector direction for secret poll, no seven days notice, no secret ballot, and a Talathi was present as representative of Tahsildar instead of Tahsildar or Naib Tahsildar. If the order was under Clause 3(3A), it would fall to the ground. (Paras 3, 10) C) Evidence Law - Admissions in Affidavits - Maharashtra Prohibition Act - Affidavit-in-reply filed by respondent No.3, Superintendent of State Excise, specifically mentioned in paragraph No.10 that the impugned order was passed as per provisions under Clause 3(3A) of the Order under Section 139, while paragraph No.5 of the same affidavit stated the order was passed under Clause 3(1) and (2). The learned AGP tried to explain that mention of Clause 3(3A) was a typographic mistake and sought correction. Held that it was a decisive fact and a clinching admission which could not be withdrawn or explained away. (Para 12) D) Interpretation of Government Orders - Intention to Invoke Clause 3(3A) vs Clause 3(1)/(2) - Maharashtra Prohibition Act - The petitioner contended that various Women Self Help Groups made representations from time to time and a Special Gram Sabha was held pursuant thereto, which is a condition for proceeding under Clause 3(3A) and not under Clause 3(1)/(2). Held that filing of representations alone could not be a sufficient basis to infer that the villagers intended to resort to Clause 3(3A) and not Clause 3(1)/(2), especially when the procedure for Clause 3(1)/(2) was duly followed and objectively examined by the Collector. (Para 13) E) Maharashtra Prohibition Act - Closure Order - Requirement to Prescribe Period - Section 142 - The petitioner alternatively relied on Vithal Mallu Chintalwar v. State of Maharashtra and Ors., 2017 (3) Mah. L.J. 661, arguing that if the Collector exercises power under Section 142, it is imperative to prescribe the period for closure of the shop as mandated. The judgment excerpt did not record a final finding on this alternative argument in the provided text. (Para 5)
Issue of Consideration
Whether the Collector's order under Section 142(1) of Maharashtra Prohibition Act was passed pursuant to Clause 3(1) and (2) or Clause 3(3A) of the Order under Section 139; and whether mandatory procedural requirements under the applicable clause were complied with.
Final Decision
Not mentioned in provided text
Law Points
- Collector's power under Section 142(1) of Maharashtra Prohibition Act can be exercised either under Clause 3(1) and (2) or Clause 3(3A) of Order under Section 139
- each clause has distinct mandatory procedural requirements. Under Clause 3(1)
- a Gram Sabha resolution by simple majority of 50% women voters or total voters
- verification of voters by Block Development Officer and Excise Inspector
- presence of licence holder
- video recording. Under Clause 3(3A)
- representation by 25% women voters or total voters to Superintendent of State Excise
- verification
- Collector's direction for secret ballot
- seven days notice
- supervision by Tahsildar or Naib Tahsildar
- presence of Excise Inspector
- resolution by 50% votes. Failure to follow prerequisites under Clause 3(3A) renders closure order invalid. Affidavit admission by State authority is a decisive fact and cannot be brushed aside as typographical error. Mere representations by women self-help groups do not establish intention to proceed under Clause 3(3A) when Collector's order and procedure followed align with Clause 3(1)/(2).
