Research › Search › Judgment

Madhya Pradesh High Court · body

2020 DIGILAW 1182 (MP)

Anand Singh Baghel v. State of M. P.

2020-11-03

SANJAY DWIVEDI

body2020
ORDER 1. Considering the issue involved in the case and the fact that return and rejoinder have already been filed by the parties as also the matter is being listed time and again, therefore, with the consent of learned counsel for the parties, it is heard finally. 2. Although the instant petition is filed under Article 227 of the Constitution of India but as per the subject matter in the order impugned, it is being treated under Article 226 of the Constitution of India. 3. By the instant petition, the petitioner is challenging the order dated 21.5.2020 (Annexure-P/1) passed by respondent No.3/Collector, District Seoni whereby the petitioner has been directed to shift his foreign liquor shop to some other place within a period of three days. The impugned order has been assailed by the petitioner basically on the ground that the same is illegal, arbitrary and issued with mala fide intention just to oblige the local Member of Legislative Assembly (MLA) who has raised objection regarding existing place for running the said liquor shop whereas the same is as per the parameters engrafted in the Excise Policy, 2015 issued by the Commercial Tax Department on 6.2.2015. It is also contended by the petitioner in the petition that on earlier occasion also he was directed to shift his foreign liquor shop to some other place and pursuant thereto, the petitioner shifted his liquor shop and now again the impugned order has been issued without affording any opportunity of hearing to him and as such, it is claimed that the impugned order passed by the Collector, District Seoni being illegal and arbitrary, deserves to be quashed. 4. A reply to the petition has also been filed by the respondents relying upon an amended Policy issued vide notification dated 31.3.2018 by the Commercial Tax Department making certain amendments in the Excise Policy, 2015. In the reply, it is also contended by the respondents that the petitioner’s shop is situated within the periphery of 50 meters of Barapathar Church, therefore, as per the amended Policy of 2018, the Collector is competent to issue the order impugned and as such, there is no illegality committed in directing the petitioner to shift his foreign liquor shop at a distance of more than 50 meters from the Church. 5. 5. In order to appreciate the controversy involved in this case, it is necessary to setout the relevant facts which are mentioned hereinbelow :- The petitioner is a registered partnership firm and awarded a contract of selling the foreign liquor on retail basis in village Barapathar, District Seoni for the financial year 2019-20 and lateron, the said contract was extended by enhancing 25% of the contract amount and the licence in this regard in the nature of ‘FL-1’ was also issued on 1.4.2020 and the same was effective till 31.3.2021. The petitioner’s firm started its business by selling retail liquor but on 3.2.2020, at the behest of local MLA, a letter was issued by the Authority directing the petitioner to shift his liquor shop to some other place. Since it was the end of the contract period of the said liquor shop and renewal of the same was due, therefore, the petitioner requested respondent No.3 that he may be permitted to run his liquor shop in the area where he is currently running his shop and during new period of contract, he will shift his shop to another area. Respondent No.3/Collector, District Seoni, in turn, has acceded to the request of the petitioner. Due to lock-down imposed w.e.f. 1.4.2020, the petitioner could not run his shop and on 6.5.2020, when the petitioner was permitted to run his shop, he opened his liquor shop at a new place that too with the approval of respondent No.3/Collector, District Seoni but all of a sudden, the impugned order dated 21.5.2020 (Annexure-P/1) has been issued by respondent No.3/Collector, District Seoni asking the petitioner to shift his liquor shop to some other place that too beyond the distance of 50 meters from the Church, which is situated in vicinity. 6. The petitioner has assailed the impugned order mainly on the ground that the same is contrary to the provisions of the Policy issued by the respondent/Department whereunder there is a restriction to run the shop within 50 meters of any religious places including the Temple, Mosque, Church or any public religious worship places which are managed by any religious community. As per the petitioner, the said liquor shop is more than 80 meters away from the said Church for which the petitioner’s shop is being directed to be shifted. As per the petitioner, the said liquor shop is more than 80 meters away from the said Church for which the petitioner’s shop is being directed to be shifted. As per the petitioner, the impugned order is issued with mala fide intention because the same is being issued at the instance of pressure created by the local MLA, therefore, the same deserves to be set aside. 7. Respondents have filed their reply stating therein that there is an amendment in the Excise Policy, 2015 and that amendment was notified on 31.3.2018 by which the State Government in exercise of the powers conferred in clauses (e) (g) and (h) of sub-section (2) of section 62 read with proviso to sub-section (3) of section 63 of the Madhya Pradesh Excise Act, 1915 made amendment thereby inserting a clause saying that there has to be a distance of at least 50 meters from the religious institutions/places. As per the respondents, there were certain complaints made to the Authorities that the petitioner’s shop is not more than 50 meters away from the said Church situated in the vicinity. To strengthen their stand, the respondents have filed certain photographs alongwith the reply to clear the position of petitioner’s liquor shop and also of the Church. 8. In rebuttal to the reply, the petitioner has also filed a rejoinder denying the stand taken by the respondents in their reply and very categorically submitted that the Policy and the provisions under which the respondent/Authority has issued the impugned order directing the petitioner to shift his liquor shop, are not applicable upon him. As per the petitioner, his licence was for retailing the liquor but no licence is granted in respect of consuming the liquor in the shop, therefore, such Policy is not applicable upon the petitioner. In support of his stand, the petitioner has also relied upon a report submitted by the Excise Sub-Inspector mentioning therein that his shop is beyond the distance of 50 meters from any of the religious places, educational institutions or hospitals. According to the petitioner, the said report has not been confuted by the respondents which symbolizes that the impugned order is illegal, issued on the wrong premise, therefore, the same deserves to be set aside. 9. According to the petitioner, the said report has not been confuted by the respondents which symbolizes that the impugned order is illegal, issued on the wrong premise, therefore, the same deserves to be set aside. 9. Considering the arguments advanced by learned counsel for the parties and on a perusal of the record, I am of the opinion that a report dated 19.5.2020 (Annexure-P/9) has been submitted by the Excise Sub-Inspector before the District Excise Officer that too on a complaint made against the petitioner’s liquor shop saying that it is within the periphery of 50 meters of a religious place and to ascertain the said fact, an enquiry was also conducted and in the same, it reveals that the petitioner’s said liquor shop is not situated within the periphery of 50 meters of any religious or education institutions. Insofar as the report (Annexure-R/3) in which the respondents have placed reliance is concerned, it also does not reflect that the petitioner’s liquor shop is situated within the distance of 50 meters from the said Church. Although, the said report apprehends about happening of accidents as the petitioner’s liquor shop is situated on Jabalpur-Seoni Road and due to heavy traffic over the said road, there is every possibility of an unwarranted accident. 10. The core question as involved in the instant case is as to under what authority, the respondents can direct the petitioner to shift his foreign liquor shop? Merely because an objection has been raised that too at the instance of a political person, by taking aid of the respective clause which gives power to the Authority to direct the licensee not to open his liquor shop within the periphery of 50 meters on any religious or educational places, is not permissible inasmuch as the said clause is not applicable upon the petitioner as admittedly, the distance of the petitioner’s shop from the religious place is more than 50 meters. Accordingly, in my opinion, the impugned order dated 21.5.2020 (Annexure-P/1) passed by respondent No.3/Collector, District Seoni is illegal as has been issued at the instance of some political person, therefore, the same is not sustainable in the eyes of law. Accordingly, in my opinion, the impugned order dated 21.5.2020 (Annexure-P/1) passed by respondent No.3/Collector, District Seoni is illegal as has been issued at the instance of some political person, therefore, the same is not sustainable in the eyes of law. Merely because the liquor shop is situated over the main road as also when there is no such restriction available under the provisions of the Excise Policy itself to open the liquor shop on the main road; it cannot be made basis for directing the licensee to shift his liquor shop to some other place. 11. In view of the aforesaid observations, the impugned order dated 21.5.2020 (Annexure-P/1) passed by respondent No.3/Collector, District Seoni deserves to be and is hereby set aside. 12. In the result, the petition filed by the petitioner stands allowed. Girish Shrivastava for petitioner; Vivek Sharma, Deputy Advocate General for respondent/State.