RAM KUMAR TUMRAM Vs. STATE OF M P

JUDGEMENT

(1.) THE petitioner Nos. 1 and 2 are Panch and Sarpanch of the Gram Panchayat, Ghoda Dongri, in district of Betul respectively and the petitioner No. 3 is the Sarpanch of Gram Panchayat Bhoura, Block Shahpur. Both the Panchayats are in the scheduled areas of the State as per the notification issued by the President of India in exercise of powers vested under Article 244 read with 5th Schedule of the Constitution of India. It is putforth in the petition that the functions of the Excise Department are regulated and governed by the provisions of M. P. Excise Act, 1915 (hereinafter referred to as 1th Act' ). Section 61-E of the Act empowers the Gram Sabha to regulate and prohibit manufacture, sale, possession, transport and consumption of the intoxicants within its territorial jurisdiction. Sub-Section (2) of the same provides that no new manufactory for manufacture of any intoxicant shall be established and no new outlets for sale of intoxicants in any area comprised within the territorial jurisdiction of the Gram Sabha shall be opened by the State Government without the consent or permission of the Gram Sabha. Sub-section (3) provides that if a Gram Sabha prohibits manufacture, possession, sale and consumption of any intoxicant in its area, no new manufactury of the intoxicants shall be established within the jurisdiction of the Gram Sabha; no new outlets for sale of any intoxicants shall be opened and the existing outlets, if any, shall be closed with effect from the first day of the next financial year immediately following the issue of order of prohibition and no person shall manufacture, possession, transport, sell or consume any intoxicant within the Gram Sabha. It is setforth in the petition that the Gram Panchayats of Ghoda Dongri and Bhoura have passed resolutions for not auctioning the government liquor shops. They have further resolved that the government liquor shops as existing would be run by the government and be not auctioned. The resolutions have been passed with a view that if these government liquor shops are auctioned on contract basis it would be prejudicial to the interest of the inhabitants of the area and they would be harrassed and humiliated by the contractor, excise officials and police officials as they belong to Scheduled Tribes who manufacture liquor for their own consumption at their homes. The resolutions passed by both the Gram Sabhas have been brought on record as Annexure P. 2 and Annexure P. 3. The aforesaid resolutions have been communicated to the Collector, Betul and District Excise Officer, Betul as per Annexure P. 2a and Annexure P. 3a. According to the writ petitioners the State Government has framed a new policy relating to the auction of intoxicants which has been notified in the M. P. Gazette (Extra Ordinary) published on 8-3-2001 as per Annexure P. 4. As per the said policy the State Government has decided to auction the depots of intoxicants in Betul District. It is urged in the petition that the decision taken by the State Government to put the shops in auction contravenes the resolution of the Gram Sabha and thereby violates the mandate enshrined under Section 61-E of the Act. It is also urged that such an action of the State Government affects the sovereignty of the Gram Sabhas as provided under the Panchayats (Extension of Scheduled Areas) Act, 1996. It has been pleaded that in the year 1994 the State Government under the Adivasi Up Yojna Kshetron Ke Antargat Abkari Vibhag Dwara Sanchalit Deshi Madira Dukan Sarnbandhi Nirdesh (in short the '1994 Instructions') specially provided that in the 18 districts of Adivasi Up Yojna Areas the Country Liquor Shops would be run by the department and the decision had been taken keeping in view the Tribes living in the Scheduled Areas manufacture, use and. consume the liquor made by themselves. It is averred in the petition that the notification issued vide Annexure P. 4 has totally ignored the law in vogue and the sentiments of the Scheduled Tribes and the harrassment that is likely to be caused to them. With the aforesaid averments prayer has been made for quashment of the notification contained in Annexure P. 4 as far as it relates to the auctioning of excise contracts and opening of liquor shops through contractors in the Scheduled Areas of the State, particularly in Tahsil Betul within the territorial jurisdiction of Gram Sabha of Ghoda Dongri and Bhoura and to issue a mandamus restraining the respondents from auctioning the excise contracts in the aforesaid places.

(2.) A return has been filed by the answering respondents contending, inter alia, that the petitioners have completely misconstrued the scope and nature of powers conferred on Gram Sabha under Section 61-E of the Act and hence, the resolutions passed by them vide Annexures P. 2 and P. 3 demanding the continuance of system of running of liquor shops through department instead of private contractors is untenable. It is putforth that the State Government has exclusive jurisdiction to ensure revenue generation and the Gram Sabha has no authority to dictate any rider or condition in that regard in the garb of exercise of powers conferred on it under Section 61-E of the Act. It has been asserted that Section 61-E does not empower the Gram Sabha to decide the mode through which an existing liquor shop is to be run and managed. It is pleaded that the State Government has unfettered right and authority to opt or select any of the recognised or accepted modes. It has been putforth that the 1994 Instructions have been superseded by subsequent instructions issued on 8-3-2001. The new instructions have been brought on record as Annexure R. 1. Quite apart from the above it has been setforth that the resolutions brought on record are illegal as they have been passed in gross violation of mandatory provisions contained in M. P. Anusuchit Kshetra Kee Gram Sabha Gathan, Sammelan Kee Prakriya Tatha Karya Sanchalan, Niyam, 1998 and Rules 10 and 14 of the aforesaid rules have not been followed. It has also been setforth that the consent of the Gram Sabha was not necessary as no new outlet was being opened.

(3.) I have heard Mr. R. K. Gupta, learned counsel for the petitioners and Mr. R. S. Jha, learned Dy. Advocate General for the respondents.