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Ramkisan and Others Vs. The State of Maharashtra, through its Secretary, Department of Excise and Others - Court Judgment

LegalCrystal Citation
CourtMumbai Nagpur High Court
Decided On
Case NumberWrit Petition Nos. 3390 of 2015, 3391 of 2015, 3392 of 2015 & 3393 of 2015
Judge
AppellantRamkisan and Others
RespondentThe State of Maharashtra, through its Secretary, Department of Excise and Others
Excerpt:
.....dt.31.3.2015 issued by respondent no.4 directing the petitioners to furnish the resolution of gram sabha thereby resolving to grant no objection for renewal of petitioners' licences. the petitioners have prayed for a declaration that the provisions under rule 4 of the maharashtra panchayat extension to scheduled area (prohibition and regulation of licensing) rules, 2015 (hereinafter referred to as "the rules of 2015") are not applicable for renewal of the licenses which are in existence prior to the coming into force of the said rules. 3. all the petitioners are holding country liquor cl-iii/fl-ii licenses in ghatanji taluka, district yavatmal. undisputedly, the petitioners are running their business in the areas which fall under the scheduled areas declared for the state of.....
Judgment:

Oral Judgment: (B.R. Gavai, J.)

1. Rule. Rule is made returnable forthwith. Heard by consent.

2. The petitioners have approached this Court being aggrieved by communication dt.31.3.2015 issued by respondent no.4 directing the petitioners to furnish the resolution of Gram Sabha thereby resolving to grant No Objection for renewal of petitioners' licences. The petitioners have prayed for a declaration that the provisions under Rule 4 of the Maharashtra Panchayat Extension to Scheduled Area (Prohibition and Regulation of Licensing) Rules, 2015 (hereinafter referred to as "the Rules of 2015") are not applicable for renewal of the licenses which are in existence prior to the coming into force of the said Rules.

3. All the petitioners are holding country liquor CL-III/FL-II licenses in Ghatanji taluka, District Yavatmal. Undisputedly, the petitioners are running their business in the areas which fall under the Scheduled Areas declared for the State of Maharashtra by the President under Article 244 of the Constitution of India and are, therefore, administered and controlled as per Schedule V appended to the Constitution.

4. On 24.12.1996, the Parliament has enacted the Panchayats (Extension of the Scheduled Areas) Act, 1996 (hereinafter referred to as "the PESA Act") extending application of the provisions of Part IX of the Constitution of India to the Scheduled areas. The State Legislature has also made certain provisions in the Maharashtra Village Panchayats Act, 1958 for Gram Sabha and for giving effect to the features enumerated in Section 4 of the PESA Act. The said provision also includes matter relating to prohibition and regulation of intoxicants in the village to be dealt by the Gram Sabha of the Village.

5. In pursuance of the provisions under the PESA Act and the amendment to the Maharashtra Village Panchayats Act, 1958, the State Government has notified the said Rules. As per the provisions of the Maharashtra Prohibition Act, 1949 and the Rules framed thereunder, the licences granted to the petitioners are renewable on year to year basis. Accordingly, the petitioners have applied for renewing their licences for the period from 1.4.2015 to 31.3.2016. When the cases of the petitioners were being considered for renewal, the impugned communications came to be addressed. Being aggrieved thereby, the present petitions.

6. Mr.Abhay Sambre, learned Counsel for the petitioners submits that perusal of the Rules itself would reveal that the said Rules are not applicable to the licences which are already in existence. The learned Counsel submits that No Objection of the Gram Sabha as contemplated under sub-rule 4 will be applicable only if the license is granted after commencement of the said Rules.

7. Mrs. Bharti Dangre, learned Government Pleader vehemently contended that the interpretation placed by the learned Counsel for the petitioners is totally incorrect. She submits that the Rules are framed in order to give effect to the provisions under the PESA Act empowering the Gram Sabhas to decide as to whether manufacturing or selling of liquor should be permitted in their areas or not. The learned Government Pleader submits that applying the rule of Pragmatic interpretation, the Rules should also be applicable to all such licences which provide for manufacturing or selling of liquor if they fall within the Scheduled areas.

8. For appreciating the rival contentions, it will be appropriate to refer to Rules 3 and 4 of the Rules of 2015, which read thus:

"4. Before the expiry of the license so granted, the Gram Sabha resolution shall be required for its renewal. The proposal for renewal of the license shall required to be presented by the licensing authority, if the license holder so applies, to the Gram Sabha, thirty days prior to the date of expiry of the license. The Gram Sabha shall convey its opinion in the form of a resolution on the said application prior to the date of expiry of the licence."

"5. The Gram Sabha shall determine the quantity of local traditional intoxicant that may be distilled or brewed by the Scheduled Tribes residing in a village of the Scheduled Areas for their consumption but not for sale as mentioned in the Government Order, Home Department No.BPA.0876/836(II)PRO3, dated the 28th April, 1981."

9. The first principle of interpretation is the principle of plain and literal interpretation. Only when applying the first principle, the Court is not in a position to interpret the Rules correctly, recourse can be taken to the other principle of interpretation. As such, before considering the submission of the learned Government Pleader that the principles of pragmatic interpretation should be employed in the present case, we have to find out as to whether the language used in the Rules is of such a nature which is not in a position to give clear intention of the Legislature.

10. Perusal of Rule 3 of the Rules of 2015 would reveal that whenever the application for grant of licence regarding establishment of unit for manufacturing of any intoxicant or for grant of licence regarding trading of any intoxicant is received by the licencing Authority, it is the duty of such licencing Authority to give intimation to the Panchayat of the concerned village. On such intimation being received, the Panchayat is required to convene the Gram Sabha and convey its opinion in the form of a resolution on the said application within a period of four weeks from the date of receipt thereof. Sub-rule 3 of Rule 3 provides that the resolution of the Gram Sabha shall be binding and final. Sub-rule 4 thereof requires that, before expiry of licence so granted, the Gram Sabha resolution shall be required for its renewal. It further requires that the proposal for renewal of license is to be presented by the licensing Authority to Gram Sabha thirty days prior to expiry of licence. It further requires that the Gram Sabha shall convey its opinion in the form of a resolution on the said application prior to the date of expiry of licence. It could thus be seen that the words used in sub-rule 4 is "license so granted". It could thus clearly be seen that the provisions of Rule 4 would be applicable to the licenses which are granted as per the provisions of Rule 3. We, therefore, find that the interpretation as sought to be made by the learned Government Pleader is not tenable.

11. The harmonious construction of Rules 3 and 4 would clearly lead to the position that sub-rule 4 is applicable to the licenses granted under sub-rule 3. Insofar as the contention of the learned Government Pleader regarding right of Gram Sabha to decide as to whether selling of liquor in their areas should be permitted or not, the State Government has already notified the Bombay Prohibition (Closure of License on Resolution by Gram Sabha or representation by Voters in the Ward of Municipal Council/Corporation), Order 2008 (hereinafter referred to as "the Order of 2008"). If villagers of the Gram Sabha are opposed to giving of licenses in their areas, such of the Gram Sabhas are very much empowered to pass a resolution for closure of such licenses. However, in our considered view, the said cannot be done under the Rules of 2015 and the same will have to be done under the Order of 2008.

12. In that view of the matter, the petitions succeed. The impugned communications are quashed and set aside.

13. The respondents are directed to consider the application of the petitioners for renewal of their licenses without insisting upon the resolution of Gram Sabha giving 'No Objection' as required under Rule 4 of the Rules of 2015.


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