Gauhati HC Quashes Mizoram Govt's Three Month Long Liquor Prohibition [Read Judgment]
The Aizawl Bench of the Gauhati High Court on Tuesday quashed the order of the Mizoram government declaring dry days from January 15, 2019 to March 15, 2019.
The judgment was passed by Justice Michael Zothankhuma on petitions filed by bonded warehouses and retail liquor vendors.
The petitioners had challenged the Office Order dated January 14, 2019 issued under Section 11 of the Mizoram Liquor (Prohibition & Control) Act, 2014, whereby the State government had declared dry days for three months this year. According to the order, the prolonged prohibition was to ensure a peaceful atmosphere on Republic Day and the festival, Chapchar Kut, which is to be celebrated on February 28, 2019 and March 1, 2019.
Pointing out that similar orders were issued last year as well, the petitioners had now contended that continued declaration of such dry days deprives them and their employees from earning their livelihood. This, they said, violated their fundamental rights guaranteed under the Constitution of India.
The State, on the other hand, had relied on Section 11 of the Act, asserting that the Commissioner of Excise & Narcotics has discretionary power to declare dry days. It had further submitted that this was a policy decision and hence, cannot be challenged through a writ petition before the court.
The Court, however, noted that the decision had been taken by the State government merely on speculation and in the absence of any data on record to show that the atmosphere during the festival would not be peaceful in the absence of such a ban.
It explained, "The decision by the respondents that there might not be a peaceful atmosphere on the days of the Chapchar Kut festival have not been made on the basis of any data, study report or input from any source or agency. Nothing has been produced by the respondents counsel to show that there will not be a peaceful atmosphere during the Chapchar Kut festival if dry days are not declared. It is only speculation sans any basis. The contention of the petitioners counsels that a peaceful atmosphere prevailed on the Chapchar Kut festival days in the past 3 years, even without the imposition of dry days prior to the festival days, is also not controverted or denied by the respondents counsel."
The court further pointed out that the State had now claimed that the declaration of dry days was a part of its plan to curb all sale and consumption of liquor in the State. This, it said, meant that the State was trying to bring in a policy change without following due process of law. It observed,
"Thus, declaration of dry days on the pretext of having a peaceful atmosphere on certain dates is only a façade and an attempt to indirectly impose prohibition without following the due process of law. The respondents might be doing things with the best of intentions, but the same has to be done fairly, based on relevant grounds and within the four corners of the existing valid law and not on the basis of a proposed non-existent law, which is yet to see the light of day."
As for the State government's contention that it was merely acting on its election manifesto which promised to make it an alcohol free state, the court opined that the State should have then taken the proper route to implement their promise.
"The 2014 Act is a valid Act as on date and the Government having promulgated the Act, the respondents are bound by the 2014 Act and they cannot act in derogation or in violation of the 2014 Act. There are many manifestos made by political parties during Election time and unless those manifestos are actuated into reality by following the due process of law, the said manifestos cannot be allowed to be acted upon, in violation of an existing law," it asserted.
Besides, the court also ruled that the decision was arbitrary, as the Commissioner of Excise & Narcotics seemed to have merely "parroted" the decision taken by the Council of Ministers, without applying his own mind.
The impugned order was, therefore, set aside, with the court ordering, "The State respondents shall allow the petitioners to import liquor on the basis of existing/valid permits and sell liquor as per the validity of their licenses issued under the 2014 Act in the State of Mizoram."
The State government was, however, given the liberty to declare dry days on Sundays, Central government holidays, State government holidays, and Chapchar Kut.
Read the Judgment Here
Liquor Prohibition | Gauhati High Court | Justice Michael Zothankhuma | Section 11 of the Mizoram Liquor (Prohibition & Control) Act