1. The Maharashtra Wine Merchants Association and Hotel and Restaurant Association (Western India) along with their respective presidents have filed Writ Petition No. 1824 of 1991 in this Court impugning the validity of order dated 17th May 1991 issued by the Collector of Bombay (City), a copy of which is Exhibit B-1 to the petition. By the impugned order it is ordered that all the wine shops in Greater Bombay shall be kept closed between 18th May 1991 and 29th May 1991 in view of election to Lok Sabha scheduled to be held on 26th May 1991.

2. The Maharashtra Retail Liquor Dealers Association and Indian Hotel and Restaurant Association have filed Writ Petition No. 1826 of 1991 impugning the validity of the same very order.

3. Mr. Rajeev Adyanthaya, President of Greater Bombay Retail Country Liquor Licensees Association, and two others have also impugned the validity of same very order in Writ Petition No. 1827 of 1991. The petitioners have filed these three writ petitions under Art. 226 of Constitution of India.

4. It is necessary to refer to a few facts and some of the provisions of Bombay Prohibition Act, 1949 and the relevant rules in order to appreciate the nature of controversy arising in these writ petitions.

(a) Section 143 of the Bombay Prohibition Act, 1949 empowers the State Government to frame rules for the purpose of carrying out the provisions of the Bombay Prohibition Act, 1949 and in particular also with reference to the fixation of days on which the wine shops in the State shall be kept closed. In pursuance of the rule-making power conferred on the State Government under the said provision, the State Government has framed various rules specifying the day on which the licensed premises under the said Act shall be kept closed. The relevant rules are as under:

(i) Rule 26 of the Maharashtra Country Liquor Rules, 1973; and

(ii) Rule 9A of the Maharashtra Foreign Liquor (Sale on Cash, Register of Sales, etc.) Rules, 1969; and

(iii) Rule 55 of the Bombay Foreign Liquor Rules, 1953.

Rule 9A(2)(c) of the Maharashtra Foreign Liquor (Sale on Cash, Register of Sales, etc.) Rules provides that the licensed premises shall be kept closed on the day or days on which poll is held in relation to any general election to the House of the People or the Maharashtra Legislative Assembly or any local authority in the State in the constituency in which such premises are located and two days immediately before such day of poll. It has also been the practice in the State of Maharashtra that the wine shops and other licensed premises under the Bombay Prohibition Act are kept closed on the day of election and two days immediately before the day of poll. The statutory rules referred to hereinabove have force of law.

(b) On 6th May 1991, the Collector of Bombay (City) issued an order bearing No. FL.R/CLR/1191.C-3 declaring that all the licence holders under the provisions of Maharashtra Foreign Liquor Rules, Bombay Foreign Liquor Rules, Maharashtra Toddy Shops and Toddy Free (Cutting) Rules, 1968 and the holders of country liquor licence should keep their shops closed on the day of election and two days prior to elections. The said order was in conformity with the above referred rules. The elections in Bombay City are scheduled to be held on 26th May 1991. It was, therefore, directed that all the licence holders referred to in the said order must keep their shops closed on 24th, 25th May 1991 and 26th May 1991 in conformity with the provisions of the various statutory rules framed by the State Government under the Act. The relevant rules are identical in the other respects.

(c) On 17th May 1991, the Home Secretary of Government of Maharashtra issued a wireless message to all Collectors and all the Superintendents of State Excise. The said wireless message is of material significance. The said wireless message is reproduced as Exhibit A to Writ Petition No. 1827 of 1991 and its contents are not controverted on behalf of the respondents. I must, therefore, consider the said wireless message and the contents are an accepted document. By the said wireless message, the Home Secretary informed all the Collectors in the State of Maharashtra that the Home Secretary had received a message from the Secretary, Election Commission of India, in modification of his earlier instructions. In the said wireless message, the message received from Election Commission of India is reproduced. The said message reads as under:

“Election Commission of India hereby directs that the ban on the sale of liquor shall come into force with effect from 18th May 1991 and shall remain in force till repeat till the date of completion of election in the State or Union Territory. These instructions apply uniformly in respect of all States and Union Territories except Assam, Jammu and Kashmir irrespective of the date on which poll takes place. It is further clarified that in case the date of completion of election in any constituency is extended due to any reason the ban shall remain in effect in that constituency till the relaxations are obtained from the Election Commission. In respect of all other constituencies the ban will come to an end with the date on which the election is completed in that constituency. These instructions should be followed strictly and action taken in the matter to close down liquor sale for the period mentioned by the Election Committee.”

(The underlining is done to supply emphasis)

(d) By the above referred wireless message, the Home Secretary of the Government of Maharashtra informed the Collectors in the State that the Election Commission of India had imposed the ban on the sale of liquor with effect from 18th May, 1991 and the said ban shall be in force on uniform basis throughout the country. By the said wireless message, the Home Secretary informed all the Collectors in the State “that these instructions should be followed strictly and action taken in the matter to close down the sale for the period mentioned by the Commission” (the underlining is done by me for emphasis). On 17th May 1991, the Collector of Bombay (City) issued the impugned Order in purported exercise of powers u/S. 142(1) and (3) of the Bombay Prohibition Act, 1949 ordering that all the licensees of F.L 2, F.L 3, F.L 4, Form ‘E’ C.L 3, T.D 1, C.L.F, L.T.O.D 3 shall keep their business closed during the period from 18th May 1991 to 29th May 1991. It is stated at the top of the impugned Order that the said order was issued by the Collector after reading wireless message of the Secretary, Home Department dated 17th May 1991 to which a reference has already been made by me in the earlier sub-para of this para of the judgment.

(e) It may be stated in the passing that almost identical orders were issued by all the Collectors in the State of Maharashtra at the same time on the same day directing closure of wine shops etc. by the various categories of licence holders during the period 18th May 1991 till 29th May 1991. The petitioners in Writ Petition No. 1824 of 1991 have annexed a copy of the order passed by the Collector of Thane on the same day for the information of this Court. The same is annexed as Exhibit ‘C1’ to the petition. It is stated in the said order that after taking into consideration the order passed by the Election Commission, the Collector was passing an order to the effect that all the liquor and toddy shops should bekept closed as aforesaid (i.e for a period of 12 days) as the same were required to be so closed throughout India where the mid-term partliamentary elections were directed to be held.

5. Mr. Sahni, Collector, Bombay (City), has filed his affidavit dated 20th May 1991. In paragraph 4 of the said affidavit it is averred that the impugned order dated 17th May 1981 was passed by him on assessment of the situation relating to public peace in the City of Bombay during the poll period. It is candidly admitted by the deponent in his affidavit that the Collector of Bombay had received a wireless message dated 17th May 1991 from the Home Secretary, Government of Maharashtra, pursuant to the message conveyed to him by the Election Commission. It is, however, averred that the impugned order dated 17th May 1991 was passed by him on “independent application of mind” to the public peace situation in the City of Bombay. It is averred that the respondent No. 2 was independently of the opinion that it was in the interest of publuc peace to keep the liquor shops closed between 18th May and 29th May 1991 during which period the poll process was in operation. It has been averred that the said opinion was held by him bona fide and he had acted in exercise of statutory powers valid in 6 of the affidavit, the respondent No. 2 has denied the allegation that the respondent 2 had passed the said order without any material or solely on the basis of the directions of the Election Commission or that the respondent No. 2 had abdicated his functions as Collector.

6. A bare narration of sequence of events is enough to hold at this prima facie stage that both the Government of Maharashtra and the Collectors in the State have felt themselves bound by the directives of the Election Commission of India and an attempt is now being made to salvage the situation by contending that the respondent No. 2 has acted on his own assessment. If I have to attach due weightage to the terminology used in the wireless message dated 17th May 1991 a copy whereof is at Exhibit ‘A’ to Writ Petition No. 1827 of 1991, I must interpret the said wireless message to mean that the Election Commission of India appears to be under the honest erroneous belief that it can impose ban on the sale of the liquor throughout the country notwithstanding the contents of Acts and the rules which may be in force in a particular State. I have no doubt that the Election Commission of India must have acted in good faith and the State Government must have also directed the Collectors to implement the directions of Election Commission in good faith. The question arises as to whether the Election Commission has any authority of law to impose any ban on sale of liquor. The question which further arises is as to whether the directives of Election Commission of India as reflected in wireless message are in conformity with the law of the land. Art. 324 of the Constitution of India confers widest possible power on the Election Commission of India in relation to superintendence and conduct of the elections. It was held by the Supreme Court in the case of Kanhiya Lal Omar v. R.K Trivedi, (1985) 4 SCC 628 : AIR 1986 SC 111, as under (Para 16, at p. 118 of AIR):—

“Even if for any reason, it is held that any of the provisions contained in the Symbols Order are not traceable to the Act or the Rules, the power of the Commission under Art. 324(1) of the Constitution which is plenary in character can encompass all such provisions. Art. 324 of the Constitution operates in areas left unoccupied by legislation and the words ‘superintendence’, ‘direction’, ‘control’ as well as ‘conduct’ of all elections are the broadest terms which would include the power to make all such provisions.”

In other words, Art. 324 of the Constitution does not enable the Election Commission to override any of the legislations or statutory rules having force of legislation in any of the states. The Election Commission can at the most recommend particular line of action to be adopted by the authorities on the subjects on which it does not possess authority or jurisdiction. The Election Commission cannot impose a ban on sale of liquor. Ban on sale of liquor, if any, is to be imposed by the State Legislature or by the statutory authority empowered to act under the legislation. The learned Government Pleader wants me to construe the wireless message Exhibit ‘A’ to mean that the Election Commission had merely recommended the imposition of ban on sale of liquor and wants me to hold that the statutory functionaries have exercised their powers independently of the recommendation of the Election Commission. It is not possible for me to interpret the wireless message except in accordance with the plain language of the wireless message. It is not possible for me to interpret the order passed by the Collector of Bombay except on the footing that the said order was passed in compliance with the mandate of the State Government which mandate was issued in pursuance of mandate of Election Commission of India. The learned Government Pleader has offered to show me the official files and has submitted with some force that there was some other material before the Collector on the basis of which he acted in the interest of public peace. I have not seen the files. Sequence of events and terminology of wireless message do not support the stand of learned Government Pleader. The impugned order Exhibit ‘B’ was passed by the Collector in pursuance of mandate of Home Secretary and the Election Commission as reflected in wireless message. The stand taken by the Collector in his affidavit regarding independent assessment of situation does not inspire any confidence.

7. It has been submitted by the learned Counsel for the various petitioners that section 142 of the Act is not at all attracted. It has been submitted that the general order of the kind passed in this case could not have been passed by invoking S. 142 of the Act. It has been submitted that situation regarding closure of wine shops during the election period has been taken care of by the rule making authority and the executive power cannot be exercised so as to amend the relevant rules. There is no force in this contention. When the rule making authorities made provision for declaration of certain days as close days for wine shops, fixation of such days for closure on specified occasions is not necessarily linked with assessment of law and order situation on a particular day. It is, therefore, permissible for the Collector to notify additional days for closure of the wine shops if on his own independent assessment, it is absolutely necessary to pass an order to the effect that the wine shops must be kept closed for a particular period for preserving public peace. It is a little too odd that all the Collectors in the State formed the same opinion regarding public peace of locality on the same day. I am not deciding this petition finally. What I have stated above is enough for the purpose of disposal of the matters arising today.

8. I cannot close the discussion without referring to one or two additional aspects. It was held by the Hon'ble Supreme Court in its judgment in Commr. of Police, Bombay v. Gordhandas Bhanji, : AIR 1952 SC 16, that a statutory functionary must exercise his power coupled with duty by himself and even the State Government cannot interfere with the exercise of statutory power by a statutory functionary named under the Act. In that case the Commissioner of Police had exercised certain powers at the instance of the State Government and the relevant observations made in that behalf in the above referred judgment are to the effect that the Commissioner of Police had no jurisdiction to exercise power of cancellation of licence at the behest of the State Government. In this case the Collector has exercised the statutory power at the behest of State Government and Election Commission.

9. During the course of the discussion my attention was also invited to S. 139 of the Bombay Prohibition Act. S. 139 of the Act, 1949, confers wide powers on the State Government to pass general or special orders. S. 139(1)(f) of the said Act empowers the State Government to prescribe the days and the hours during which the wine shops shall remain open or shall remain closed by passing a general or special order. Ss. 139 and 142 of the Act operate in different fields. S. 142 of the Act provides that if the Collector is of the opinion that it is in the interest of public peace to close any particular place in certain situations, the Collector may pass an order under the said provisions. S. 142(2) provides that if there is a not or unlawful assembly, it is lawful for the Executive Magistrate or Police Officer to pass the preventive orders. It is settled law that sub-section of a particular section can be taken into consideration for interpretation of another sub-section of the same section. Prima facie, S. 142 of the Act appears to have no application to this case.

10. The learned Government Pleader has submitted that right to carry on business of sale of liquor is not a fundamental right. She is undoubtedly right. No one says it is a fundamental right. It is, however, well settled by the various Supreme Court judgments that wherever sale of liquor is permitted under a licence or a permit granted under a statute, the action of the State must conform to the Act, and the rules. Whenever any action of a State is challenged on the ground that the impugned action is not in conformity with the provisions of the parent Act or that the statutory functionary has exercised the power at the instance of an our side authority, however high it may be, it is open to the party aggrieved to move the High Court under Art. 226 of Constitution of India. Art. 14 of the Constitution is undoubtedly applicable.

11. The learned Government Pleader has submitted with some force that it is not for the Court to assess the situation and if the authorities in charge are bona fide of the view that public order required closure of the wine shops for 12 days, it is not for this Court to sit in judgment over the opinion framed by the competent authority. The learned Government Pleader has cited several authorities on this aspect. The proposition of law formulated by the learned Government Pleader is correct. I am not sitting in appeal over the assessment of the situation. However, in my opinion, the impugned order is passed by the Collector not on the basis of assessment of situation by him but on the basis of directive issued by the Government of Maharashtra, who, in its turn, thought that the Election Commission had imposed an absolute ban on sale of liquor for 12 days and it was bound to issue a mandate to the Collectors in the State to enforce such ban. The impugned order is prima facie ultra vires and without authority of law. The wireless message in question contains mandate of election Commission and State Govt. without authority of law. Accordingly the impugned order based thereon is prima facie without authority of law.

12. In view of the above discussion, I pass the following order:

Writ Petition No. 1824 of 1991

I direct issue of rule returnable on 11th June 1991. Respondents waive service. I grant interim injunction in terms of prayer (c). This order shall be operative from 9.00 a.m on 23rd May 1991. The order dated 6th May 1991 shall also be followed as the said order is in conformity with the rules.

I have granted stay in terms of prayer (c) of the order as I have prima facie formed the opinion that the impugned order is ultra vires. It shall, however, be open to the State Government and the Collector of the City to pass fresh orders in accordance with law on their own responsibility as to assessment of situation without being influenced in any manner by the directives of the Election Commission of India or any other mandate.

Writ Petition No. 1826 of 1991

Same order except that stay will be in terms of prayer (b).

Writ Petition No. 1827 of 1991.

Same order. Stay will be in terms of prayer (c).

Rule returnable on 11th June 1991. Certified copy expedited.

Order accordingly.