State Excise Taluka Shrirampur, Office, The Tahsildar, Shevgaon, Taluka Shevgaon, Dist. Ahmednagar & Ors. v. The State of Maharashtra" & Anr.

The Department, Shrirampur, District Ahmednagar. State Excise Taluka Shrirampur, Office, The Tahsildar, Shevgaon, Taluka Shevgaon, Dist. Ahmednagar. Tahsil Inspector, The Senior Shevgaon Police Station, Shevgaon, Taluka Shevgaon, Dist. Ahmednagar. Police

#6. 2 wp6708.11

#7. The Gram Panchayat, Khanapur, Taluka District Shevgaon, Ahmednagar, Through its Village Development Officer/Sarpanch. RESPONDENTS ...... Shri Hemant Surve, advocate for the petitioners Shri R.P. Phatke, Addl. G.P. for respondent/State. ...... CORAM : S.V. GANGAPURWALA, J. DATE : 20th October, 2011. ORAL JUDGMENT :

#1. Rule. Rule made returnable forthwith. By consent of parties, the matter is decided finally.

#2. Heard Shri Hemant Surve, learned counsel for the petitioners and Shri R.P. Phatke, learned Addl. G.P. for respondent nos. 1 to 6.

#3. The petitioner impugns the order passed by the District Collector purportedly under section 142 of the Bombay Prohibition Act, 1949 dated 12.07.2011 thereby directing closure of the liquor shop of the petitioner.

#4. Shri Surve, learned counsel for petitioners submits that the 3 wp6708.11 order passed is per-se and ex-facie illegal and against the provisions of Statute. Under Section 142 of the Bombay Prohibition Act, 1949, the Collector has to be satisfied about the circumstances existing to close down the shop on the ground of public peace. In the present case, no independent satisfaction has been arrived by the Collector and such an order cannot be sustained. Learned counsel relies on the judgment of the learned Single Judge of this Court in the case of "Maharashtra Wine Merchants Association V/s State of Maharashtra and others" reported in "2007(1) Mh.L.J. 177" and another judgment of the learned Single Judge of this Court in the case of "Maharashtra Wine Merchants Association and others V/s The State of Maharashtra and another", reported in, "AIR 1992 Bombay 3".

#5. Shri Phatke, learned Addl. G.P. for the respondents submits that now subsequently the final order of closure has been passed by the District Collector on 07.10.2011 exercising its powers under the Bombay Prohibition (Closure of Licence on Resolution by Gram Sabha or representation by Voters in the Ward of Municipal Council/Corporation) Order, 2008. The petitioner can assail the said order before appropriate Forum and therefore the Writ Petition has become infructuous. Learned counsel further contends that even otherwise the Collector while passing the impugned order 4 wp6708.11 dated 12.07.2011 has taken into consideration the reports received from the Police Authorities and on the basis of the same, has passed the order. No illegality is committed by the Collector while passing the order impugned in the present Petition.

#6. The Collector has powers under Section 142 of the Bombay Prohibition Act to order closure of the liquor shop in the interest of public peace. If the Collector is of such opinion, the opinion is required to be formed by the Collector on his independent assessment of the exigency existing. Perusal of the order, it is manifest that the Collector only on the ground, that there is report of the Police, has passed the impugned order. No objective satisfaction has been arrived at by the District Collector while passing the impugned order. This Court in the case of Maharashtra Wine Merchants Association, referred supra, has observed that authority passing the order has to arrive at his personal satisfaction that the closure of the shop is in the interest of public peace. In the present case, no such satisfaction is arrived at. So also the order is required to state the period for which the said shop is required to be closed. In the impugned order it does not give the said period but only states that until further orders the shop is closed.

#7. In view of the above, impugned order cannot be sustained. 5 wp6708.11 The arguments of learned Additional G.P. that now the final order of closure of shop is already passed by the Collector on 7th October, 2011 and so the Petition becomes infructuous need not be considered as I am not dealing with the said order dated

07.10.2011. The petitioner is at liberty to assail the said order before the appropriate Forum. Present Petition challenges the legality of the order dated 12.07.2011 passed under Section 142 of the Bombay Prohibition Act.

#8. In the light of above, the impugned order dated 12.07.2011 passed under Section 142 of the Bombay Prohibition Act by the Collector, Ahmednagar is quashed and set aside and if the Collector Ahmednagar feels it appropriate to invoke jurisdiction under Section 142 of the Bombay Prohibition Act, the District Collector is at liberty to do so, however, by following the provisions of Section 142 of the Bombay Prohibition Act arriving at his personal satisfaction.

#9. Writ Petition is allowed and Rule made absolute accordingly in the above terms. However, there is no orders as to costs. ga s/wp 6708.11 -Sd/- [S.V. GANGAPURWALA] JUDGE