Sudhir Rane 1 902-WP-10693-2017 (+2)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10693 OF 2017
Karmaveer Shankarrao Kale
Sahakari Sakhar Karkhana Ltd. ... Petitioner.
Versus
The Commissioner,
State Excise and another ... Respondents.
WITH
WRIT PETITION NO.10694 OF 2017
Karmaveer Shankarrao Kale
Sahakari Sakhar Karkhana Ltd. ... Petitioner.
Versus
The Commissioner,
State Excise and another ... Respondents.
WITH
WRIT PETITION NO.10695 OF 2017
Karmaveer Shankarrao Kale
Sahakari Sakhar Karkhana Ltd. ... Petitioner.
Versus
The Commissioner,
State Excise and another ... Respondents.
....
Mr. Y.S. Jahagirdar, Senior Advocate a/w Vaibhav V. Goglekar and
Mr. Rohan Sathaye i/b, Mr. S.S. Kanetkar for the Petitioner in all
Writ Petitions.
Mr. Sakhardande, Special Counsel a/w Pralhad Paranjape and Ms.
Shubhra Paranjape i/b. Ms. R.A. Salunke for Respondents.
....
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Sudhir Rane 2 902-WP-10693-2017 (+2)
CORAM : NARESH H. PATIL AND
Z.A. HAQ, JJ.
26th September, 2017.
JUDGMENT: (Per: Z.A. Haq, J.)
1. Rule. Rule made returnable forthwith.
2. These Writ Petitions are being disposed of by this Judgment order as the common order passed by the Respondent- Commissioner of State Excise in three matters is challenged in the three Petitions.
3. By the impugned order, the Respondent-Commissioner of State Excise has suspended the license in form CL-I and the license in form RS-II of the Petitioner, exercising powers / authority under section 54(1)(c) of the Maharashtra Prohibition Act, for a period of one month from the date of issuance of order. The Respondent-Commissioner of State Excise has directed the petitioner to rectify the breaches within the period of one month. It is recorded that, further appropriate necessary action may be taken if the breaches are not rectified within the given period.
4. Undisputedly the Petitioner is running a distillery division since last about four decades. Before the competent authority ::: Uploaded on - 26/09/2017 ::: Downloaded on - 27/09/2017 01:42:29 ::: Sudhir Rane 3 902-WP-10693-2017 (+2) granted permission to the Petitioner on 18th October, 2007 to construct the spirit storage tank with capacity of 4.0 lakh liters, the Petitioner was granted permission to have two spirit storage tanks with capacity of 31,000 liters each. On 18 th October, 2007, the competent authority granted permission to the Petitioner to construct spirit storage tank with capacity of 4.0 lakh liters. According to the Respondent-Commissioner of State Excise, the Petitioner installed / constructed a spirit storage tank (here-in- after referred as "tank No. RS-4") having storage capacity of 4.5 lakh liters and on noticing this, the impugned order is passed.
5. According to the Respondents, the Petitioner has installed / constructed the RS-4 tank in breach of the conditions of license granted to it and therefore the Respondent No.1-Commissioner of State Excise has rightly exercised her powers / authority and has suspended the license. Further, it is the case of the Respondents that the Petitioner is granted permission in 2015 to install / construct three bottling lines with three holding tanks in the extended bottling section of CL-I license premises, however, the Petitioner has constructed five bottling tanks i.e. two additional tanks in the license premises without obtaining permission from ::: Uploaded on - 26/09/2017 ::: Downloaded on - 27/09/2017 01:42:29 ::: Sudhir Rane 4 902-WP-10693-2017 (+2) the competent authority. According to the Respondents, again this is breach of conditions of license and therefore the impugned order is passed.
6. The grievance of the Petitioner is that, the Respondent- Commissioner of State Excise has only directed suspension of license of the Petitioner, however, the authorities have acted in high handed manner and on 17th September, 2017 i.e. the next day of the passing of the impugned order and though it was a Sunday, the premises of the unit of the Petitioner have been sealed. The learned Advocate representing the Petitioner in Writ Petition No.10695/2017 has submitted that, the tank in question i.e. RS-4 tank was constructed after the petitioner got permission for installing / constructing spirit storage tank with capacity of 4.0 lakh liters, however, there was slight error in the dimensions because of which the storage capacity of the tank turned out to be 4.5 lakh liters. It is submitted that the Petitioner had not suppressed from the concerned authorities that the storage capacity of Rs-4 tank is 4.5 lakh liters and to substantiate this, certain documents / communications sent by the Petitioner to the authorities are relied upon. It is submitted that, the concerned ::: Uploaded on - 26/09/2017 ::: Downloaded on - 27/09/2017 01:42:29 ::: Sudhir Rane 5 902-WP-10693-2017 (+2) authorities verified / inspected the premises after installation of the RS-4 tank in 2008. It is submitted that the concerned authorities had also undertaken the calibration of RS-4 tank. It is the case of the Petitioner that though RS-4 tank with storage capacity of 4.5 lakh liters is installed / constructed, except on one occasion the storage of spirit in the tank has not been above 4 lakh liters. It is submitted that even according to the Respondents there is no loss of revenue of the State Government and the Petitioner has not misused the additional storage capacity of RS-4 tank.
It is further submitted that the two additional holding tanks which are installed / constructed are not in use as the conveyer belts are not installed / constructed and therefore only because two additional tanks are constructed it cannot be said that the Petitioner has committed breach of license.
7. The learned Advocate appearing for the Petitioner in Writ Petition No.10693/2017 and Writ Petition No.10694/2017 has adopted the submissions made by the learned Senior Advocate appearing in Writ Petition No.10695/2017. In these two Petitions the only difference is that the RS-5 and RS-6 tanks are installed by the Petitioner with storage capacity more than what is permitted ::: Uploaded on - 26/09/2017 ::: Downloaded on - 27/09/2017 01:42:29 ::: Sudhir Rane 6 902-WP-10693-2017 (+2) by the authority while granting license.
8. The learned Special Counsel appearing on behalf of the Respondents took a preliminary objection that the Petitioner has alternate statutory remedy available under section 137 of the Maharashtra Prohibition Act. Though the petitioner can avail the remedy of appeal, considering the fact that the Respondent- Commissioner of State Excise has directed suspension of the license for the period of only one month and out of which almost ten days have passed, in our view relegating the Petitioner to the remedy of appeal will not be appropriate as it will not be an efficacious remedy in the facts of the case. Moreover consequent to the impugned order, the authorities have sealed the unit of the Petitioner because of which the running factory / industry of the Petitioner is closed down. Therefore, we are not inclined to relegate the Petitioner to the alternate remedy.
9. The Petitioner has admitted that the capacity of RS-4, RS-5 and RS-6 tanks is more than what is permitted by the competent authority while granting license. Therefore, it cannot be said that the Respondent-Commissioner of State Excise is not entitled to take action against the Petitioner. However, in the present case, ::: Uploaded on - 26/09/2017 ::: Downloaded on - 27/09/2017 01:42:29 ::: Sudhir Rane 7 902-WP-10693-2017 (+2) the question is whether the order passed by the Respondent- Commissioner of State Excise suspending the license of the Petitioner for one month is proper and justified.
Admittedly, the Petitioner constructed the RS-4 tank in 2008, it is calibrated by the concerned authorities and is inspected by the competent authority. The storage of spirit in the RS-4 tank is regularly monitored on daily basis by the manufactory officer. It is the case of the Respondent-Commissioner that the Petitioner has carried on any addition or alteration in the room or the compartment or the permanent fixtures of the manufactory. The RS-4 tank with the capacity of 4.5 lakh liters is installed / constructed in 2008 and is being used by the Petitioner since then. There is no allegation of loss of revenue by the Petitioner.
Similarly, the additional two holding tanks which are constructed by the Petitioner without there being permission for their construction, are admittedly not being used by the Petitioner. The Petitioner has not installed the conveyer belt and without the conveyer belt the two additional tanks are of no use.
Similarly, the Petitioner has installed / constructed RS-5 and RS-6 tanks with storage capacity more than what is permitted, ::: Uploaded on - 26/09/2017 ::: Downloaded on - 27/09/2017 01:42:29 ::: Sudhir Rane 8 902-WP-10693-2017 (+2) however, again the Respondents have not been able to point out that the Petitioner has misused those tanks.
The Petitioner has submitted that the distillery is running successfully and there are about 1,500 employees / labourers with about 6000-7000 family members of such employees / labourers dependent for their livelihood from the employment in the unit and about 20,000 agriculturists, agriculture labourers, small traders and suppliers of raw material are also dependent on the unit of the Petitioner. These facts are not controverted by the Respondents.
10. Considering the facts of the case, we are of the view that the impugned order passed by the Respondent-Commissioner of State Excise is harsh and unjustified. The Advocates appearing for the Petitioner in these three Petitions have made a categorical submission that the two additional holding tanks which are not used will not be put to use unless appropriate permission is granted by the competent authority. The learned Advocates have further submitted that the RS-4, RS-5 and RS-6 tanks will not be used for storage of spirit beyond the limit as permitted by the authority. Accepting the submission made on behalf of the ::: Uploaded on - 26/09/2017 ::: Downloaded on - 27/09/2017 01:42:29 ::: Sudhir Rane 9 902-WP-10693-2017 (+2) Petitioner, the following order is passed.
ORDER (A) The impugned order passed by the Commissioner of State Excise on 16th September, 2017 is set aside.
(B) The Respondents are directed to remove the seal / seals put on the unit of the Petitioner pursuant to the impugned order, forthwith.
11. Rule made absolute in the above terms. In the circumstances, the parties to bear their own costs.
12. At this stage, the learned Special Advocate appearing for the Respondents prayed for keeping this judgment in abeyance for one week to enable the Respondents to take appropriate steps to challenge the judgment. The request made by the learned Special Advocate appearing for the Respondent is opposed by the learned Advocates appearing for the Petitioner. Considering the reasons recorded by us and the facts of the case, the request made on behalf of the Respondents is rejected.
13. The parties to act upon the authenticated copy of this order.
(Z.A. HAQ, J) (NARESH H. PATIL, J)
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