Bombay High Court
Somnath Pandurang Kate vs The State Of Mahrashtra And Others on 18 January, 2021
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
55 WRIT PETITION NO.12204 OF 2019
Somnath Pandurang Kate
Age 47 years, Occ. Business
R/o. Pimple Saudagar,
Tq. Haveli, District Pune ...Petitioner
versus
1. The State of Maharashtra
Through the Secretary,
State Excise department
Mantralaya, Mumbai 32.
2. The Collector,
State Excise Department,
Ahmednagar, Dist. Ahmednagar
3. The Commissioner,
State Excise, Old Octroi House
I2nd floor, Shahid Bhagatsingh Marg
Mumbai 23.
4. The Superintendent of State Excise
Ahmednagar Range, Ahmednagar
District Ahmednagar ...Respondents
.....
Advocate for Petitioners : Mr. R.R. Mantri h/f Mr. R.R. Sancheti
AGP for Respondents: Mr. S.N. Morampalle
.....
CORAM : V. K. JADHAV, J.
DATED : 18 th JANUARY, 2021
ORAL JUDGMENT:-
1. Rule. Rule returnable forthwith. By consent of the parties,
heard finally at admission stage.
2. At the request of learned counsel for the petitioner, leave to
correct the prayer clause "B". Correction be carried out forthwith.
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3. Learned counsel for the petitioner submits that initially one
Vitthalrao Nagwade was granted FL-II licence by respondent No.1
State. However, the said licence was not renewed by Shri Vitthalrao
Nagwade. Thereafter, respondent No.1 State took a policy decision
to re-validate and re-instate those licences, which were not brought
into operation. In consequence thereof, said Vitthalrao Nagwade has
filed an application and by order dated 7.7.1999 respondent No.3-
Commissioner has directed its validation. Though there was some
controversy as to which authority has to pass the order of renewal of
the licence, however, finally by order dated 19.1.2016 the concerned
Minister has allowed the revision and quashed and set aside the
order passed by the Collector, Ahmednagar in the year 2015 and
further directed renewal of the licence from 1973 to 1999 by
accepting the licence fees from 1973 and also further directed to
transfer of the said licence from Ahmednagar district to Pune district.
Thereafter, in compliance with the said direction, the FL-II licence
was renewed by accepting the licence fees till the date and ultimately
the said FL-II licence was transferred in the name of the present
petitioner. The same is also not disputed. However, after the
change of Government, the concerned Minister took suo moto
proceedings and by order dated 20.9.2019 has not only cancelled the
earlier order passed by the earlier Minister dated 19.1.2016 but also
cancelled the FL-II licence issued in favour of the petitioner or his
predecessor, permanently.
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4. Learned counsel for the petitioner submits that the earlier order
passed by the Minister on 19.1.2016 was by taking recourse to the
provisions of Section 138 of the Maharashtra Prohibition Act and the
State Government is entitled to revise any order of a Prohibition
Officer relating to the grant or refusal of a licence or permit, pass or
authorization under the Act. The learned counsel submits that it is
clear from the combined reading of the provisions of Sections 138,
139 and 2(35) of the Prohibition Act that the State government is
entitled to examine the record of any proceedings before the
Prohibition Officer only and would not be entitled to revise its own
order.
5. Learned counsel for the petitioner in order to substantiate his
submissions placed reliance on the following cases:-
i) The judgment and order dated 29.10.2015 passed by the
Division Bench of this Court (Coram: Smt. Vasanti A. Naik and
A.I.S. Cheema, JJ.) in writ petition No. 3315 of 2015 (Abhijit
Ramrao Bachewar vs. State of Maharashtra and others)
ii) The judgment and order dated 01.03.2016 passed by this
Court (Coram: Prasanna B. Varale, J.) in writ petition No. 5460
of 2015 (Rajesh Matadinlalji Jaiswal vs. The State of
Maharashtra and others);
iii) The order dated 16.4.2008 passed by the Division Bench of
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this Court (Coram: S.B. Mhase and S.S. Shinde, JJ.) in writ
petition No. 8776 of 2007 (Mrs. Kamladevi Satyanaran Gupta
vs. The State of Maharashtra and others);
6. I have also heard the learned A.G.P. at length. The learned
A.G.P. has not pointed out any other view expressed by this Court or
the Supreme Court in this regard.
7. The provisions of Sections 138 and 139 of the Maharashtra
Prohibition Act, 1949 are reproduced as under:-
"138: Revision - The State Government may call for and
examine the record of any proceeding before any Prohibition
Officer including that relating to the grant or refusal of a licence,
permit or authorization under this Act for the purpose of
satisfying itself as to the correctness, legality or propriety of any
order passed in, and as to the regularity of, any such proceeding
and may when calling for such record, direct that the order be
not given effect to pending the examination of the record. On
examining the record, it may either annul, reverse, modify or
confirm such order, or pass such other order as it may deem fit."
139: General powers of (State) Government in respect of
licences, etc. (1) Notwithstanding anything contained in this Act
or the rules made thereunder, the (State) Government may, by
general or special order,-
(a) to (m) ...............
(n) Issue such other instructions in any matter pertaining to
the grant or otherwise of licenses, permits, passes or
authorizations under this Act, as the (State) Government may
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deem proper.
(2) .........."
8. It is thus clear that in terms of the provisions of Sections 138
and 139 of the Maharashtra Prohibition Act, the State Government
can revise the orders and examine the record of any proceeding
before any Prohibition Officer including that relating to the grant or
refusal of a licence, permit, pass or authorization for the purpose of
satisfying itself as to the correctness, legality or propriety of any order
passed in, and as to the regularity of any such proceeding. However,
in any case, the State Government would not be entitled to revise its
own order.
9. In the cases cited above, particularly the judgment and order
passed by the Division Bench of this Court in writ petition No. 3315 of
2015, the facts of the same are similar to the facts of the present
matter. The Division Bench of this Court (Nagpur Bench) in para
No.6 of the said judgment has made the following observations:-
"6. In our considered view, the State Government could not have
passed the impugned order, dated 24.9.2015, under the provisions
of Section 138 or Section 139(1) (n) of the Act.
It is apparent from a reading of Section 138 of the Act that the
State Government is entitled to revise any order of a Prohibition
Officer relating to the grant or refusal of a licence or permit, pass or
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authorization under the Act. The Prohibition Officer is defined under
Section 2 (35) of the Act.
It is clear from a combined reading of the provisions of
Sections 138, 139 and 2(35) of the Act that the State Government is
entitled to examine the record of any proceedings before the
Prohibition Officer only and would not be entitled to revise its own
order. The order passed by the State Government, permitting the
petitioner to transfer the FL-II license from Mumbai to Nagpur dated
31.03.2015 cannot be revised by the State Government under
Section 138 of the Act. Though the order mentions that the same
has been passed by taking recourse to the provisions of Section 138
of the Act, a lame attempt is made by the respondent no.1 to support
the order, as being passed under Section 139(1)(n) of the Act. Under
Section 139 (1) (n), the State Government is empowered to issue
such other instructions in any matter pertaining to the grant or
otherwise of license, permit, pass or authorization, under the Act,
that are not contemplated by the other clauses of Section 139(1).
Under the said provision, the State Government cannot stay the
effect and operation of an order permitting the transfer of license
from one District to another. We do not find that the State
Government could have issued the impugned order, under section
139(1)(n) of the Act."
10. In view of the above, I am inclined to allow this writ petition as
no other view is possible. Hence, I proceed to pass the following
order:-
ORDER
I. Writ petition is allowed as per prayer clause "B" and disposed
of in terms of the following directions:-
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a) Restore the FL-II licence No. FL-II/52/2016-17, and
b) The respondents to comply with the order dated
19.01.2016 passed by the Minister of State for State
Excise Department, Mantralaya, Mumbai in Revision No.
FLR-1215/RA-34/SE-2.
II. Rule made absolute in the above terms.
( V. K. JADHAV, J.)
rlj/
