ORDER
1. Rule returnable forthwith. Heard learned Counsel for the parties.
1A. In this writ petition, the petitioner challenges the order passed by the Collector, Amravati, whereby the Collector has cancelled his licence under Form CL. III under the Bombay Prohibition Act (for retail sale of country liquor). The Collector mentioned in the said order that because of the existence of this shop, the social health of the village is being jeopardised and the families of the villagers are perishing. He has further mentioned that because of these reasons, the Gram-Sabha has passed a unanimous resolution and a note to that effect has been taken on the Proceeding Book of the Gram Panchayat. The Collector seems to have acted under section 56 of the Bombay Prohibition Act.
2. The only challenge that the petitioner made in this petition is that he was not heard prior to the passing of the order, which has affected him prejudicially and, therefore, the order is in contravention of the established canons of law of natural justice. Shri Gavai, learned Counsel appearing on behalf of the petitioner, therefore, submits that the order itself is bad in law. According to him, even if the Collector has passed the order under Section 56 of the Bombay Prohibition Act, there has to be an interpretation of that section which would support a prior hearing of the person whose licence is cancelled. Section 56 runs as under :-
“56 (1). Whenever the authority granting a licence, permit, pass or authorization considers that it should be cancelled for any cause other than those specified in Section 54, he may cancel it either –
(a) on the expiration of not less than fifteen days’ notice in writing of his intention to do so; or
(b) forthwith without notice, recording his reasons in writing for doing so.
(2) …………………………………………….”
The language of the section itself shows that there is an inbuilt guarantee or safe-guard against the arbitrariness. By Section 56(1)(a), a notice is provided which would enable the concerned person to voice his grievances against the proposed order. However, it is only when the Collector acts without giving notice that he (Collector) is duty bound to record his reasons for his action. Undoubtedly, the intention of the Legislature is that such reasons, which the Collector has recorded, could be examined. Now, the Collector has not only given these reasons but has also made a reference to the circular dated 27-1-1994. By this circular and by the earlier circular, it is provided by the State Government that where the authorities concerned receive complaints from the Ladies’ Institutions, Mahila Mandals or Ladies Organisations and where in pursuance of this, the Gram Sabhas or Gram Panchayat passes a resolution, there concerned authorities, could proceed under Section 56 or Section 54, whichever provision becomes applicable to cancel the licence. However, the only rider is that such a resolution should be unanimous. The circular further goes on to state that if there is such resolution which is of unanimous nature and if the Gram Panchayat takes a contrary stance thereafter, such contrary instance should be ignored.
3. It is to be seen here that the only objection, which is taken, is that the petitioner, who was going to suffer the order of cancellation, was not heard. There is no allegation of mala fides. Now, as a matter of fact, any order passed under section 56 of the Bombay Prohibition Act is appealable under the provisions of Section 137 of the said Act. The petitioner could have filed an appeal and pointed out to the authority concerned that there was absolutely no reason why the notices should not have been issued to him under section 56(1)(a). He could have pointed out to the appellate authority that this was not a case of emergency and that the reasons recorded by the Collector are extraneous or have no nexus with the object. He could have also pointed out to the concerned authority that in fact there is no such resolution passed, or that if it is passed, it has not been passed unanimously. All these are questions of facts which this Court would be slow to go into its writ jurisdiction under Articles 226 and 227 of the Constitution. There was an alternative remedy to the petitioner. Yet without exhausting that alternative remedy, if the petitioner rushes to this Court, merely on the ground of non-hearing, this Court would be slow to act under its Constitutional jurisdiction.
4. Shri Gavai, learned Counsel for the petitioner, relied on the reported decisions in C. B. Gautam v. Union of India, and State of Haryana v. Ram Kishan, . The Supreme Court has observed in these cases that if there is no provision of hearing, the further action being prejudicial against the person concerned would be hit by the law of natural justice. Those cases are decided on entirely different back-ground. Those were not the cases where the Supreme Court was considering the action for cancellation of the liquor shops. The Supreme Court was also not considering in those cases the effect of the social menace on account of the running of liquor shop. Those cases, therefore, would be easily distinguishable.
5. Shri Gavai further submits that mere availability of alternative remedy would be no bar to the exercise of the Constitutional jurisdiction under Article 226 of the Constitution, and in support of this proposition, he relied upon the reported decisions of the Supreme Court in Ram and Shyam Company v. State of Haryana, and AIR 1986 SC 627 (sic). Indeed, there can be no dispute that a mere existence of the alternative remedy could be no bar. However, in the peculiar circumstances of this case and the peculiar facts arising out therein and also in view of the fact that this Court, if interferes, will be required to go into the distinct questions of facts, it is held that the alternative remedy available in this case, if not used, amounts to a fatal defect.
6. In view of what has been stated above, this writ petition is dismissed. However, in the circumstances of this case, there shall be no order as to the costs.
7. Petition dismissed.