Smt. Pramilabai Wd/O Prabhakar ... vs State Of Maharashtra And Ors.
2007 Latest Caselaw 2 Bom

JUDGMENT

B.P. Dharmadhikari, J.

Page 0233

1. Considering the nature of controversy raised and at the request of parties, petition was heard finally at the stage of admission itself, by issuing Rule, making it returnable forthwith by the consent of parties.

2. Challenge in the Writ Petition is to the order dated 22.2.2006 passed by the Hon'ble Minister for State Excise, rejecting the revision application filed by the petitioner on 15.07.2001 observing that the sanction of FL-II Licence was withdrawn because of adverse police report and there is provision under the Rules/Guidelines for Reallocation of FL-II Licence, review cannot be entertained.

3. The petitioner is widow of alleged original licencee. It appears that on 31.1.1973 Prabhakar husband of petitioner applied for grant of Foreign Liquor Licence and on 19.2.1974 Government sanctioned the same to him. The police station officer of the concerned police station submitted adverse police report on 23.5.1974 and 29.5.1974 and also pointed out that 4 cases were pending against said Prabhakar. On 5.10.1974 the respondent No. 6 Collector informed that FL-II licence could not granted to Prabhakar because of adverse police report. In 1975 Prabhakar again made effort but licence was not granted due to adverse police report. On 1.9.1976 Judicial Magistrate First Class, Nagpur dropped the proceedings against Prabhakar and Prabhakar expired on 4.5.1983. On 6.7.1989 the Home Department of State Government announced policy to revalidate CL-III or FL-II licence and also observed that in case of death of licence heirs of deceased can apply for grant of such licence, earlier sanctioned. It is mentioned that 17.2.1989 was the cut off date specified for this purpose. On 2.2.1989 the petitioner in her capacity as widow of it. Prabhakar moved application under Certificate of Posting and requested for revalidating the licence earlier sanctioned to her husband. There was no response from the State Government and also no action and hence on 10.4.1994, the petitioner submitted reminder for consideration of her application dt. 2.2.1989. On 30.5.1998 petitioner was informed that said request was rejected on account of expiry of huge time. On 5.7.2001 she preferred revision under Section 138 of the Bombay Prohibition Act, before the respondent No. 3 and the said revision was closed for orders on 27.12.2002. Petitioners stated that on 9.10.2004 Hon'ble Minister, allowed that revision. It is mentioned that the State Minister had initially closed the matter for orders on 27.12.2002 Page 0234 but there were certain queries and hence it was again heard on 6.3.2006. It is mentioned that there was a communication issued on 9.10.2004 which mentioned that Hon'ble Minister had passed an order but no such orders reached respondent No. 6 Collector.

4. The petitioner states that on 12.1.2005 the respondent No. 3 Desk Officer wrote letter to petitioner for the first time after 27.12.2002 and informed her that her revision was scheduled for hearing on 24.1.2005. On 22.2.2006 her revision was dismissed by the successor Hon'ble Minister on the ground of adverse police report and also because application was not moved before 17.2.1989. Petitioners stated that under Right to Information Act, she applied and she came to know about the said order passed on 9.10.2004 by which her revision application was allowed. The petitioner contends that this order was suppressed by the respondents and once revision was allowed on 9.10.2004, the order dt. 22.2.2006 constitutes its review and therefore, unsustaianble. It is contended that there is no such powers of revision conferred upon respondent by the provisions of Bombay Prohibition Act.

5. I have heard Advocate P.C. Madkholkar, for petitioner and Learned AGP Shri Kothari, for respondents.

6. After narrating the facts as mentioned above, Advocate Madkholkar, has contended that the order dt. 22.2.2006 clearly constitutes review and as there is no power of review, said order is unsustaianble and deserves to be quashed and set aside. In support of his contention he has placed reliance upon the judgment of Hon'ble Apex Court reported at (Patel Narshi Thakershi and Ors. v. Pradyumansinghji Arjunsinghji) & 2005 (5) SCC 618 (SBP and Co. v. Patel Engineering Ltd. and Anr.). In response to the reply and stand of respondents before this Court, that the petitioners have not approached this court with clean hands, strong objection is taken to the interpretation of business rules framed by the State of Maharashtra, and it is contended that Subordinate Officers have erroneously usurped powers to superceed orders passed by the Hon'ble Minister on 9.10.2004 in quasi judicial capacity. It is contended that the orders could come to light only because of the provisions of Right to Information Act. It is contended that the respondents are officers of state Government and cannot decide whether to communicate orders passed by the Hon'ble Minister in judicial capacity on applications before the Hon'ble Minister. It is contended that exception has been made in case of present petitioners.

7. Learned AGP in reply has stated that policy of State Government is consistent and petitioner is not being victimised at all. It is stated that the alleged another person namely Smt. Anubai Bisen obtained copy of the order dated 13.09.2004 passed by the Hon'ble Minister from the office and produced the same before the Superintendent of State Excise and who in turn without getting it confirmed from the Government as to whether any orders are passed by the Government, recovered licence fee illegally from Smt. Bisen. He has stated that her licence has not been revalidated and explanation of Superintendent of State Excise has been called in this respect. Page 0235 Learned AGP has contended that the order dated 9.10.2004 is not in existence at all because it has not been communicated to petitioner as required by the provisions of law. It is stated that the procedure to be followed in this respect is prescribed in Business Rules and the petitioner cannot make any grievance as the order dt. 9.10.2004 has not been communicated to her at all by the said procedure. Learned AGP has also invited attention to the policy of State Government in this respect and demonstrated that the order impugned in this Writ Petition i.e. dt. 22.2.2006 is in accordance with the said policy and therefore legal. It is contended that case of present petitioner is not covered by the policy decision of State Government and hence she has no right to file the present petition. Learned AGP also relied upon number of judgments to which reference will be made in the course of this judgment.

8. Perusal of order dated 9.10.2004 which petitioners claims to have obtained under Right to Information Act, reveals that the Hon'ble Minister then in office, found that after death of Prabhakar on 4.5.1983, though there was adverse police report against him, he was not found guilty by any competent criminal court. It is further held by the Hon'ble Minister that as petitioner applied on 2.2.1989, prior to 17.2.1989, her application was within time and as such the Hon'ble Minister accepted her revision under powers given to him under Section 138 of the Prohibition Act, and has directed the respondent No. 6 Collector, Nagpur to restore her licence. Hon'bleMinister also noticed that Government has on 30.5.1998 has rejected similar request by the petitioner on the ground that it had become time barred, but no opportunity of hearing was given to the petitioner at that time. Hence Hon'ble Minister found that petitioner was denied justice and said order was in breach of the principles of natural justice. The Hon'ble Minister therefore, felt it proper to revise the order dated 30.5.1998 and to issue order on 9.10.2004.

9. Thus from above, it is apparent that the order claimed to be in her favour by the petitioner, itself is in review of earlier Government order dated 30.5.1998. If the arguments of petitioner about absence of powers to entertain review under the Bombay Prohibition Act, is to be accepted, the said argument also has effect of removing this order dated 9.10.2004. Similarly, it is to be noted that the policy decision dated 6.7.1989 permits revalidation or restoration of old licenses. As per Clause No. 2 of this policy decision, the said restoration or revalidation can be of the licence earlier granted, but not released, except on account of adverse police report or of the licence which were not renewed for one reason or the other. Perusal of Clause 2 above, clearly shows that Government has not permitted revalidation or restoration of licence, where licence was not released on account of adverse police report. The revalidation is permitted when licence was not released on any other count, except adverse police report. The policy of State Government dated 6.7.1989 is therefore, not applicable in the case of Prabhakar and hence in case of petitioners.

10. The facts of the present case demonstrate that on 9.2.1974 Government sanctioned Foreign Liquor Licence in favour of petitioner's husband, but the then Police Commissioner, Nagpur informed that there Page 0236 were two offences against the said Prabhakar in relation to his Raj Beer Bar. On 29.5.1974 it was informed that since 1967 to 1974, 17 offences under Bombay prohibition Act, were registered against Prabhakar and in relation to some offence trial was going on. Police also communicated that there was involvement in stealthy sale of psychotropic substances. The Superintendent, State Excise also informed the State Government not to sanction FL-II licence to him. Thereafter, Prabhakar on 2.1.1975 moved Hon'ble Minister and at that time Superintendent, State Excise had again communicated his opinion on 7.6.1975 and it was informed that unless and until there is favourable order, Prabhakar was not eligible for FLII licence. It was also informed that 4 offences under Section 66(1)(b) and 65[e] of Bombay Prohibition Act were registered against Prabhakar and licence in respect of his Raj Beer Bar was also cancelled. He was also detained under the Internal Security Act on 31.5.1975. The facts above clearly show that Government had not taken any decision finalising to release of FL-II licence in favour of deceased Prabhakar. Receipt of favourable police report was essential for releasing such FLII licence and no such favourable report came to be submitted till the death of Prabhakar. Orders dt. 30.05.1998 mentioned above concluded the issue of revalidation finally against petitioner.

11. It appears that after the orders were passed on 9.10.2004 the department prepared a note pointing out in detail the above facts and pointed out that licence was not at all in existence in favour of Shri Prabhakar. It was further mentioned that there was no application made by petitioner on 2.2.1989, and no such copy was available in records of Nagpur Office or with Government. It is lastly mentioned that orders passed on 9.10.2004 are therefore not in accordance with law and the department therefore suggested its review. The note also states that orders dt. 9.10.2004 therefore cannot be issued to parties and rehearing of matter is necessary. It is mentioned by office, that the Hon'ble Minister should re-hear the matter and reject it. It appears that thereafter, the matter was heard by the successor Hon'ble Minister and impugned orders have been passed on 22.2.2006.

12. The petitioner has tried to plead his case on orders dt. 9.10.2004. Learned AGP has stated that these orders were never issued to the parties and are therefore not in existence. In this respect, attention has been invited to the Maharashtra Government Rules of Business. In Rule No. 12 it has been mentioned that all orders or instruments made or executed on behalf of Government of the State shall be expressed to be made by or by order of or executed in the name of Governor. It is further mentioned in Rule No. 13 that every order or instrument of the Government of the State shall be signed either by a Secretary, an Additional Secretary, or such other officer as may be especially empowered in that behalf, and such signature has to be deemed to be proper authentication of such order or instrument. Rule 14 casts responsibility upon the Secretary of Department concerned for careful observance of Business Rules and it is also mentioned that when he considers that, there has been any material departure from the Rules, he shall personally bring the matter to the notice of the Minister in charge and Chief Secretary. Page 0237 Rule 15 permits Hon'ble Governor to issue instructions on the advise of the Chief Minister to supplement the Rules. The stand of respondents needs to be considered in the background of these Rules. In para No. 16 of the Affidavit dated 13.12.2006, filed by the Divisional Deputy Commissioner of State Excise, Nagpur Division, Nagpur it has been mentioned that though the then Hon'bleMinister for State Excise had passed on 13.09.2004 in favour of Smt. Anubai Bisen, and matter was resubmitted with remark that Smt. Bisen has unauthorisedly obtained copy of the order dt. 13.09.2004. Similarly, in relation to the order dated 9.10.2004, with which we are concerned, it is mentioned that the orders passed by the Hon'ble Minister are not communicated to the parties directly, but are sent by the Hon'ble Minister to Home Department, where the matter is examined and if the order is in accordance with the provisions of the Policy, then only the orders of Minister are communicated to the parties. The learned Counsel for petitioner has taken strong objection to this affidavit and practice. He has contended that the Officers of Home Department or any Officer subordinate to the Hon'ble Minister cannot say that the orders passed by the Hon'ble Minister in his quasi judicial capacity are contrary to the Government Policy or are unsustainable, and therefore, should not be communicated to the parties. It is contended that such a course of action should not be countenanced.

13. Perusal of judgment of Hon'ble Apex Court in the case of Gulabrao Keshavrao Patil and Ors. v. State of Gujarat and Ors. , is helpful to consider this issue. Infact the judgment of Hon'bleApex Court in case of Bachhittar Singh v. State of Punjab and Anr. on which learned AGP has placed reliance is considered and relied upon by the Hon'bleApex Court in this judgment.

In para No. 14, the Hon'ble Apex Court has held that the decision of Hon'ble Minister under Business Rules is not final or conclusive until the requirements in terms of Clause [1] and [2] of Article 166 are complied with. Before the action or decision is expressed in the name of the Governor, in the manner prescribed under Business Rules and communicated to the party concerned, it would always be open by necessary implication to the Chief Minister to send for the file and have it examined by himself and to take a decision, though the subject was allotted a particular Minister for convenient transaction of the business or the Government. The subject though exclusively allotted to the Minister, by reason of the responsibility of the Chief Minister to the Governor and accountability to the people, he has implied power to call for the file relating to the decision taken by a Minister. In para No. 15, after noticing the Constitutional Bench judgment in the case of Bachhittar Singh (supra), it has been observed that the order is to be expressed in the name of Governor, as required by Clause [1] of Article 166 and then only it has to be communicated. Until such an order is drawn up by the State Government in accordance with Article 166[1], the State Government cannot be regarded as bound by what was stated in the file. The business of State is a complicated one and has necessarily to be Page 0238 conducted through large number of officers and authorities. The Hon'ble Apex Court has observed that action must be taken by the Authority concerned in the name of Governor and Minister is no more than an Advisor. In paragraph No. 16, reference has been made to the judgment of Hon'ble Three Judges, in the case of Kedarnath Bhal v. State of Punjab to note that the expression of order in the name of Governor as required by Article 166 of the Constitution and communication thereof to a party affected thereby are conditions precedent for the order to bind the Government. In that case the order though initially was made by the Minister, the order of confirmation was cancelled by the Chief Minister before it was communicated and Hon'ble Apex Court has upheld the order of cancellation. In paragraph No. 17 the Hon'ble Apex Court says that till the order is drawn in the name of Governor and communicated to the affected person, action of Government is not final.

14. Thus considering the controversy in this background it is apparent that the order dated 9.10.2004 has not been drawn as required by the provisions of Business Rules and admittedly has not been served upon the present petitioner. She got it only under Right to Information Act. It is apparent that the order therefore is not binding upon the State Government. Perusal of the judgment i.e. Patel Narshi Thakersi and SBP and Company (supra), show that power of review is not an inherent power. However, in the facts of the present case, it cannot be said that by passing and communicating the order dated 22.2.2006 the respondents have reviewed the orders dated 9.10.2004. As already held above, the order dt. 9.10.2004 itself reviewed the earlier order dated 30.05.1998 passed against the petitioner by the State Government. I therefore, find that this argument on the issue of power of review is not helpful to the petitioner in any way.

15. In order to explain the function of Government and distinction between Legislative and Judicial functions, learned AGP has relied upon judgments of Hon'ble Apex Court in case of Jayantilal Amratlal Shodhan v. F.N. Rana and Ors. . Advocate Madkholkar, has relied upon the judgment in the case of SBP and Company v. Patel Engineering Ltd. and Anr. (supra). However, in view of the discussion, above I find that detail reference to these judgment is not necessary in the facts of the present case.

16. Learned AGP has sited judgments reported at (Saral Manufacturing Co v. State of Maharashtra); (Bachhittar Singh v. State of Punjab and Anr.); (Tagin Latin v. State of Arunachal Pradesh and Ors.); (State of M.P. and Ors. v. Nandlal Jaiswal and Ors.); (Bishamber Dayal Chanda v. State of U.P.); Page 0239 (A.S. Krishna and Ors. v. State of Madras); (Ugar Sugar Works ltd. v. Delhi Administration and Ors..); AIR 1979 SC 1149 (Atlas Cycle Industries Ltd. and Ors. v. State of Haryana); (Secretary, Jaipur Development Authority v. Daulatmal Jain and Ors..); (Aniyoth Kunhamina Umma v. Ministry of Rehabilitation and Ors..); (Harbhajan Singh v. Karan Singh and Ors..) and AIR 2004 SC 658 (Prohibition & Excise Suptd. and Ors. v. Toddy Tappers Cop-op.Soc. and Ors.) to point out the nature of jurisdiction available under the Bombay Prohibition Act, the Scope of review and effect of non-communication of the order etc. In view of the discussion above, I find that it is not necessary to refer to these judgments.

17. I therefore, find that no legal right available to petitioner has been violated in the matter. No case is made out for interference in Writ Petition. Writ Petition is accordingly dismissed. However, in the circumstances of the case, there shall be no order as to costs.