Mahadeorao Govindrao Raut vs State Of Maharashtra And Ors.
2004 Latest Caselaw 1199 Bom

JUDGMENT

Dharmadhikari B.P., J.

1. By this petition under Articles 226 and 227 of Constitution of India the petitioner, CL-III licence holder, challenges order dated 8th May, 1992 passed by respondent No. 1 State Government in revision under Section 138 of Bombay prohibition Act and order dated 21-5-1992 passed by Collector, Akola asking him to discontinue the business in his shop for its shifting elsewhere. The necessary facts in brief can be summarised as under:

2. The petitioner is an ex-employee of Indian Air Force and in 1973 in that capacity got CL-III licence. Earlier shop was at Rautwadi area and because of insistence of the then minister it was required to be shifted to Jatharpeth area of Akola town in 1978 and since then the shop is functioning in the said area till this date.

3. On 13-9-1990 respondent No. 2 Collector issued show cause notice as to why the petitioner CL-III licence should not be cancelled. The said show cause notice was challenged before this Court in Writ Petition No. 2538 of 1990. The said petition was withdrawn and the petitioner approached the Commissioner of Prohibition and State Excise by filing appeal having No. 166 of 1990. That appeal was instituted on 14-11-1990 and it was disposed of on 18-3-1991 by passing order in favour of the petitioner. Again on 27-8-1991 the respondent No. 2 Collector issued order stating that State Government has decided to revise the order of Commissioner dated 18-3-1991 and therefore, suspended petitioner's licence until further orders. The petitioner again approached this Court in Writ Petition No. 2201 of 1991 and this Court stayed the said action of respondent No. 2 Collector and admitted the petition for final hearing. The petition was consider finally on 16-10-1991 and the petitioner was permitted to withdraw it to approach the respondent No. 1 State Government for vacating exparte order passed by it in the revision. The petitioner till then had no communication about any such order passed in the revision and therefore, High Court continued the stay granted to the petitioner in above petitioner on 16-10-1991 for further period of four weeks. It thus, appears that the petitioner continued to run his CL III shop in that area only. In the meanwhile, the petitioner had moved application for permission to inspect records of revision and he also moved application on 11-11-1991 for vacation of exparte order of stay. The revision was heard by respondent No. 1 on 10-01-1992 and no orders were passed and as such the petitioner again filed Writ Petition No. 724 of 1992 seeking direction to that respondent to pass appropriate orders in the revision. The petition was filed on 30th March, 1992 and on 10th April, 1992 the High Court directed respondent No. 1 State Government to pass appropriate order in the said revision within a period of two weeks. The respondent No. 1 then filed one civil application seeking extension of time to decide revision and the High Court was pleased to grant further period of two weeks which expired on 8-5-1992. The petitioner has thereafter pointed out that till 11-5-1992 no orders were passed and the shop of petitioner was continuing and even on 12-5-1992 the petitioner could not see any copy of the order. He states that thereafter on 21-5-1992 respondent No. 2 Collector again issued order whereby the said respondent directed shifting of his shop from Jatharpeth to elsewhere and to discontinue functioning till then. It is in this background the present writ petition came to be filed.

4. I have heard learned Advocate Jagtap for the petitioner and learned A.G.P. Mr. Kandale for the respondents. Advocate Jagtap points out that though order of State Government is dated 8th May, 1992 it is actually passed some time after 12th May, 1992 and it is back dated so as to show that it is passed within the time limit granted by this Court in the earlier writ petition. He further states that as per this order the matter was remanded back to the respondent No. 2 Collector in his capacity as Licencing Authority under the provisions of Bombay Prohibition Act to consider whether the complaints of residents in the are can cause any adverse effect on law and order in the are, fresh enquiry was to be undertaken by the respondent No. 2 Collector and he was to decide whether to retain the shop at its place or to shift it elsewhere. He points out that no such fresh enquiry has been done and on 21-5-1992 the Collector passed order in obedience to the wireless message dated 13-5-1992 and also because of insistence of the then M.L.A. of that area. He points out that in this petition on 3rd June, 1992 while issuing notice before admission the said order dated 21-5-1992 was stayed. Thereafter the said interim order continued to operate though petition was admitted for final hearing on 09-11-1992. Thus, he points out that even today his shop is functioning in Jatharpeth area and there are absolutely no grievance of respondents and there are no complaints against this shop.

5. As against this learned A.G.P. points out that the wireless communication dated 13-5-1992 mentioned in his order by the Collector is an intimation to the Collector about order of remand dated 8th May, 1992. He states that thus, after remand respondent No. 2 has undertaken fresh enquiry in his capacity as Licencing Authority and has passed order on 13-5-1992. He states that order of remand dated 8-5-1992 has not been challenged by the petitioner and only because of the subsequent order of Collector has gone against the petitioner, on 21-5-1992 he has chosen to challenge the order dated 8th May, 1992. He states that there were very serious complaints against the shop of the petitioner and there was law and order situation. He therefore, submits that order passed by the Collector dated 21-5-1992 is just and proper.

6. Mere perusal of the order dated 21-5-1992 is not sufficient to connect it to the order of remand dated 8th May, 1992. Advocate Jagtap therefore, argues that the Collector has passed this order not in his independent capacity is Licencing Authority but he has acted as Subordinate Officer and under the dictates of respondent No. 1 State Government and because of insistence of the then M.L.A. he has mechanically ordered closure of the shop and shifting of the shop to other area. He relies upon the judgment Commissioner of Police, Bombay v. Gordhandas Bhanji, and Purtabpur Company Ltd. v. Cane Commissioner of Bihar and Ors., in support of his contention that the authority invested with such powers and jurisdiction could not abdicate function in favour of others and cannot act or cannot discharge those powers under the dictates of some superior. He says that the respondent No. 2 Collector was duty bound to apply his mind impartially and reach conclusion of his own. He also pointed out unreported judgment dated 30th June, 2004 delivered by this Court in (Writ Petition No. 2120 of 1991). Paragraph 8 of this Judgment has considered above mentioned law laid down by the Hon'ble Apex Court. The relevant paragraph reads as under :

"Secondly, the respondent in its return has admitted that the impugned order has been passed by the Collector under the directions of the State Government. It is well settled principle of law that when a power of a duty is enjoined upon on authority then that power or duty should be exercised by such authority alone and not under the dictates of its superiors. In this respect a reference can be made to the judgments of the Apex Court in the case of Commissioner of Police, Bombay v. Gordhandas Bhanji, and in the case of Purtabpur Company Ltd. v. Cane Commissioner of Bihar and others, ".

It is thus, apparent that if order dated 21-5-1992 is treated as independent order passed by respondent No. 2 Collector not the order passed by him after remand the said order could not have stood scrutiny of law. However A.G.P. Mr. Kankale, from the affidavit in reply filed while opposing admission of the petition, points out that, infact, the communication dated 13th May, 1992 is communication of order of remand passed on 8th May, 1992 and because the Collector received that communication, the Collector has viewed prevailing situation and thereafter has recorded findings that it is necessary to shift the shop to some other area and therefore, directed closure of business. He points out that insistence of M.L.A. and his grievance or demand is only additional factor.

7. The matter was remanded back to Collector in his capacity as Licencing Authority to consider the prevailing situation in the light of complaints of the residents to record finds whether the complaints could have created any law and order problem. The matter was remanded to hold fresh enquiry de novo. In such circumstances, the order dated 21-5-1992 does not reveal that any such fresh enquiry has been held by respondent No. 2 Collector. The petitioner was not given any opportunity of hearing and order appears to have been passed behind his back. The nature of complaints, effect of those complaints on law and order situation has not been at all considered in this order. It therefore, appears from perusal of this order that because of wireless message received from the State Government and the demand made by M.L.A. the Collector immediately passed a small order and directed closure of business and shifting of the shop. The order nowhere reflects that proper notice was issued to the petitioner before hand and any enquiry as required by law held by the Collector before passing that order. Thus, the order is unsustainable and deserves to be quashed and set aside. The said order dated 21-5-1992 does not meet expectations of the remand order dated 8-5-1992. Hence, the impugned order dated 21-5-1992 is quashed and set aside.

8. In so far as challenge to the order of remand dated 8th May, 1992 is concerned, the learned Counsel for the petitioner states that as there was no enquiry held in pursuance of the said order and the order dated 21-5-1992 came to be passed mechanically and as the documents did not make it clear whether the order dated 21-5-1992 is passed after fresh enquiry i.e. after remand or is an independent order which came to be challenged in this petition.

In that view of the matter, the validity of the said order dated 8th May, 1992 does not fall for consideration of this Court at this stage. The impugned order dated 21-5-1992 is pointed out to be consequential order passed after remand and the said order is quashed and set aside in this petition. If respondent No. 2 is inclined to hold any enquiry afresh in the matter he shall do so after giving due opportunity and due notice in accordance with law to the parties. Needless to mention that if there is any change of situation prevailing in 1992 and today, such change in situation shall also be considered by the respondent No. 2 while undertaking this enquiry.

Rule is accordingly made absolute in above terms with no order as to costs.