Case Note & Summary
The petitioners, Maharashtra Wine Merchants Association and Indian Hotels and Restaurant Association, challenged a circular dated 4th April 2006 issued by the Commissioner of State Excise, Maharashtra, directing all Collectors to pass orders under section 142 of the Bombay Prohibition Act, 1949 closing all licensed shops selling foreign and Indian liquor on 6th April 2006 on account of Ram Navmi. The petitioner in Writ Petition No. 1030 of 2006 also challenged the consequential order dated 5th April 2006 issued by the Collector, Mumbai City, under section 142 directing closure of all toddy, country liquor, and foreign liquor shops on 6th April 2006. The members of the first petitioner held vendors licences under section 34 of the Act, and the members of the second petitioner held hotel licences permitting sale and service of foreign liquor for consumption on the premises. No breach of licence conditions was alleged. The Court examined the scope of section 142 of the Bombay Prohibition Act, 1949, which empowers the Collector to close shops in case of emergency or for maintenance of public order. The Court held that the power under section 142 must be exercised by the Collector on his own satisfaction that an emergency or public order necessitates closure. The circular issued by the Commissioner was a blanket direction that left no discretion to the Collectors and was therefore ultra vires. The Court quashed the circular and the consequential order, holding that the Commissioner cannot substitute his satisfaction for that of the Collector. The right to carry on business under Article 19(1)(g) of the Constitution, though subject to reasonable restrictions, cannot be curtailed without authority of law. The petitions were allowed.
Headnote
A) Bombay Prohibition Act - Section 142 - Closure of Liquor Shops - Blanket Circular - The Commissioner of State Excise issued a circular directing all Collectors to pass orders under section 142 of the Bombay Prohibition Act, 1949 closing all licensed liquor shops on 6th April 2006 on account of Ram Navmi. The Court held that section 142 requires the Collector to be satisfied that an emergency or public order necessitates closure; a blanket circular by the Commissioner without individual satisfaction is ultra vires. The Collector's order must be based on his own satisfaction and not on a pre-determined policy. (Paras 1-5) B) Constitutional Law - Right to Carry on Business - Article 19(1)(g) - The right to carry on business of sale of liquor under valid licences is a fundamental right under Article 19(1)(g) of the Constitution, subject to reasonable restrictions. The closure order under section 142 must be based on the Collector's satisfaction and cannot be imposed by a superior authority without application of mind. (Paras 2-5) C) Administrative Law - Delegation of Powers - Circular Ultra Vires - The Commissioner cannot delegate his power under section 142 to the Collectors by issuing a circular that leaves no discretion to the Collectors. The circular was held to be without authority of law and was quashed. (Paras 4-5)
Issue of Consideration
Whether the Commissioner of State Excise can issue a circular directing all Collectors to pass orders under section 142 of the Bombay Prohibition Act, 1949 closing all licensed liquor shops on a particular day without the Collectors applying their mind to the necessity of such closure.
Final Decision
The Court allowed the petitions and quashed the circular dated 4th April 2006 issued by the Commissioner of State Excise and the order dated 5th April 2006 issued by the Collector, Mumbai City.
Law Points
- Section 142 of Bombay Prohibition Act
- 1949 requires individual satisfaction of the Collector that an emergency or public order necessitates closure
- blanket circular by Commissioner is ultra vires
- closure order must be based on objective satisfaction and not on a pre-determined policy
- right to carry on business under Article 19(1)(g) is subject to reasonable restrictions but cannot be curtailed without authority of law.
