Bombay High Court
M/S. Balaji Sales Thr. Its Partner, Amit ... vs State Of Maha., Thr. Its Principal ... on 3 September, 2025
Author: Mukulika Shrikant Jawalkar
Bench: Mukulika Shrikant Jawalkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.77 OF 2024
[M/s. Balaji Sales, Through its Partner Amit Madanlal Agrawal .vs. State of Maharashtra and
others]
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Shri Sahil S. Dewani, Advocate for Petitioner.
Shri A.M. Joshi, AGP for Respondent Nos.1 to 3/Sate.
Shri S.G. Jagtap, Advocate for Respondent No.4.
...............
CORAM : SMT. M.S. JAWALKAR AND
PRAVIN S. PATIL, JJ.
DATED : SEPTEMBER 03, 2025.
1. Heard the learned counsel for the parties.
2. The petitioner, in the present petition, in view of
subsequent order passed by Respondent No.2-Collector,
Nagpur amended the clause and thereby challenged the
order dated 12.04.2024.
3. After this amendment carried out by the
petitioner, learned counsel appearing for respondent no.4
raised objection that present petition falls under Chapter
17, Rule 18 of the Bombay Appellate Side Rules and,
therefore, this matter pertains to Single Bench and not to
the Division Bench.
4. On the other hand, learned counsel for the
petitioner strongly opposed the objection stating that
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considering the nature of order passed by respondent no.2-
Collector, the order is of administrative nature and,
therefore, the petition is tenable before this Division Bench.
5. In the light of objection raised by the petitioner,
firstly we have perused the order dated 12.04.2024 passed
by respondent no.2-Collector. Admittedly, the order dated
12.04.2024 is for shifting of country liquor licence from one
place to another as per Rule 25 of the Maharashtra Country
Liquor Rules, 1973. According to this Rule, a licence shop
is permitted to shift from one place to another within a
Taluka only with the prior approval of the Collector. As
such, respondent no.2, by exercising his powers under Rule
25, passed the order dated 12.04.2024.
6. Now considering the submission of the petitioner
and respondents, the question falls for consideration is,
whether it is judicial, quasi-judicial or administrative order.
If it is a judicial or quasi-judicial order, the petition lies
before the Hon'ble Single Judge and if the same is the
administrative order, then same lies before this Court in
Division Bench. Therefore, to understand the nature of
order, it will be profitable to consider the legal position laid
down by the Hon'ble Supreme Court of India.
7. The Hon'ble Supreme Court of India in the case of
A.K. Kraipak v. Union of India, reported in (1969) 2 SCC
262, has held that for determining whether power is
administrative power or quasi-judicial power, one has to
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look to the nature of power conferred, the person or
persons on whom it is conformed, the framework of the law
conferring that power, the consequences ensuing from the
exercise of that power and the manner in which that power
is expected to be exercised. It was stated that dividing line
between an administrative power and a quasi-judicial
power is quite thin and is being gradually obliterated.
However, for determining whether a power is an
administrative power or a quasi-judicial power, regard must
be had to : (i) the nature of the power conferred; (ii) the
person or persons on whom it is conferred; (iii) the
framework of the law conferring that power; (iv) the
consequences ensuing from the exercise of that power; and
(v) the manner in which the power is expected to be
exercised.
8. It is further held in the judgment of Hon'ble
Supreme Court of India in the case of Province of
Bombay .vs. Kusaldas S. Advani, reported in 1950 SCC
OnLine SC 26, wherein after discussing at length the
distinction between the judicial and administrative acts,
laid down certain test for ascertaining whether the act is of
a statutory body or of a quasi-judicial or an administrative
act.
9. Accordingly the conditions required to define the
quasi-judicial act, it is held that : (1) The body of persons
must have legal authority; (2) The authority should be
given to determine questions affecting the rights of
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subjects; and (3) they should have a duty to act judicially.
As such, emphasis is on the word 'duty to act judicially'.
Accordingly, it is necessary that the statute must have
conferred powers as to in which manner the powers should
be exercised judicially.
10. It will be profitable to refer the judgment of
Hon'ble Supreme Court of India in the case of Radeshyam
Khare and another .vs. State of Madhya Pradesh and
others, 1958 SCC OnLine SC 43 , wherein after analyzing
various decisions, certain tests have been laid down in
paragraph 25 so as to interpret ' a duty to act judicially' viz.
(1) whether there is a lis inter parties; (2) whether there is
a claim (or proposition) and an opposition; (3) whether the
decision is to be founded on the taking of evidence or on
affidavits; (4) whether the decision is actuated in whole or
in part by questions of policy or expediency, and if so,
whether in arriving at the decision, the statutory body has
to consider proposals and objections and evidence; and (5)
whether in arriving at its decision, the statutory body has
only to consider policy and expediency and at no stage has
before it any form of lis.
11. Recently, Hon'ble Supreme Court of India in the
case of Airports Economic Regulatory Authority of
India .vs. Delhi International Airport Limited and others,
reported in 2024 SCC OnLine SC 2923, while considering
the test of quasi-judicial functions, it is held that it is a
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misnomer. The Hon'ble Supreme Court of India has held in
Para 43 as under :
43. The above discussion elucidates that the
exercise of power by Authorities and Tribunals
was described as "quasi-judicial" to ensure
that the principles of natural justice were
complied with. However, with the evolution
of the doctrine of fairness and reasonableness,
all administrative actions (even if there is
nothing 'judicial (or adjudicatory)' about
them) are required to comply with the
principles of natural justice. The evolution of
the fairness doctrine has transcended many
boundaries. Thus, the reason for which the
expression 'quasi-judicial' came into vogue is
no longer relevant. Neither are the tests to
identify them because the functions of an
authority no more need to have any
semblance to 'judicial functions' for it to act
judicially (that is, comply with the principles
of natural justice).
12. As such, considering the above said legal position,
it will be expedient to consider the view taken by this Court
in Writ Petition No.616/2025, decided on 05.05.2025.
13. The question was raised in the matter, whether
the order passed under Section 142 of the Maharashtra
Prohibition Act, 1949 (for short 'Act of 1949') exercised the
powers in administrative capacity or it is a quasi-judicial
act.
14. Though in the said matter this Court deal with
Section 142 of the Act of 1949, we are of the opinion that
the findings recorded by the Court while determining the
issue are relevant in the matter. This Court has held that
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the administrative order is related to the regulation or
supervision of the matters as distinguished from an order
which decides the rights of the parties. Therefore, when
the authority determine the public issue, then there is
neither lis nor duty to act judicially, no opportunity of
hearing is contemplated, in that case, such order is to be
considered as an administrative order. Accordingly, this
Court has relied upon the judgment of Radeshyam Khare
and another .vs. State of Madhya Pradesh and others,
reported in 1958 SCC OnLine SC 43, particularly para
nos.50 and 51 which read as under :
"50. The very fact that an order under Section 53-A is
in the nature of an emergency action to protect the
interests of the rate payer and has a limited duration
not exceeding 18 months also negatives the order
being founded on an objective determination as to the
incompetency of the committee. Such a construction
will defeat the very purpose of Section 53-A. Further
action under Section 57 is of a permanent nature and
has accordingly been expressly made subject to an
explanation by the municipal committee. The absence
of such a provision from Section 53-A clearly shows
that the legislature did not intend that there should be
an elaborate hearing but intended that the State
should under Section 53-A take a swift administrative
decision. The correct position, as indicated above, is
that the decision of the State Government as to
incompetency and the decision as to the action to be
taken were really one decision, one integrated whole
-- a subjective decision of the State Government that it
considered that by the appointment of an executive
officer a general improvement in the hitherto general
administration was likely to be secured. Merely
because the fact of incompetency is a preliminary step
to the exercise of an administrative function by the
State Government, under Section 53-A, it is not
necessary that the fact is to be determined judicially.
Where the exercise of the administrative functions of
an executive authority like the State Government are
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subject to a decision as to the existence of a fact, there
is no duty cast on the State Government to act
judicially. Both the decision as to the fact and as to the
action to be taken are really one and not two decisions,
the determination being for the purpose of taking an
appropriate administrative decision. As has been said
above it is one integrated whole and cannot be
separated into parts with different legal qualities. This
was the view of Kania, C.J., in the Province of Bombay
v. Kusaldas Advani [(1951) AC 66, 78] where it was
observed at p. 633:
"Because an executive authority has to
determine certain objective facts as a preliminary step
to the discharge of an executive function, it does not
follow that it must determine those facts judicially.
When the executive authority has to form an opinion
about an objective matter as a preliminary step to the
exercise of a power conferred on it, the determination
of the objective fact and the exercise of the executive
power based thereon are alike matters of an
administrative character".
51. Fazi Ali, J., in that case said at p. 642:
"For prompt action the executive authorities have
often to take quick decisions and it will be going too
far to say that in doing so they are discharging any
judicial or quasi-judicial functions. The word 'decision'
in common parlance is more or less a natural
expression and it can be used with reference to purely
executive as well as judicial orders. The mere fact that
an executive authority has to decide something does
not make the decision judicial. It is the manner in
which the decision has to be arrived at which makes
the difference, and the real test is : Is there any duty
to act judicially?"
15. In the background of above said legal position, we
have perused Rule 25 of the Maharashtra Country Liquor
Rules, 1973 under which the impugned order is passed by
the respondent no.2-Collector. The bare perusal of the
provision clearly established the fact that the Collector has
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been conferred the administrative powers to take decision
for shifting of a retail licensee to any other place within a
taluka more particularly (v) proviso (B) specifically states
that sub-clauses (i), (ii) and (iii) of Clause (d) shall not
apply in case where the licencee is running his licenced
shop at the place under the rental deed and the landlord or
owner of the place do not agree to extend the rental deed.
As such, considering the facts of the present petition, it s
clear that only because the landlord has refused to extend
the rental agreement, the petitioner has moved the
application for shifting of his rental licence. Therefore, the
administrative decision was required to be taken by the
Collector in the matter. Hence, it is prima facie clear that
the order passed by the respondent no.2 is an
administrative order and not exercised quasi-judicial
function while deciding this issue.
16. As per Chapter 17, Rule 18 of the Bombay
Appellate Side Rules, it is correct to say that the order
passed under the Bombay Prohibition Act, 1949, the
petition lies before the Hon'ble Single Judge. However,
there is an explanation to this Clause 18, wherein it is
stated that expression "order" appearing in clause (1) to
(46) means any order passed by any judicial or quasi-
judicial authority empowered to adjudicate under the
above-mentioned statutes. However, in our opinion, the
order under challenge in the present petition passed by
respondent no.2 is not an order passed by him by
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exercising judicial or quasi-judicial authority. Therefore,
according to us, Rule 18 of Chapter XVII of the Bombay
Appellate Side Rules is not applicable in the matter.
17. Learned counsel has relied upon the Rules of
Bombay Foreign Liquor Rules, 1953 to state that under Rule
24 therein, the procedure is prescribed for application for
licence and, therefore, while seeking shifting of such
licence, same needs to be considered as per the guidelines
laid down under Rule 24. However, we do not agree with
the submission of the respondent no.4 made in this regard.
We are of the confirmed opinion that the Maharashtra
Country Liquor Rules, 1973 are applicable in the matter as
petitioner is running the country liquor shop. The Rule 25
of the said Rules, 1973 is the Rule applicable in the matter.
18. Hence, considering the said Rule, we are of the
opinion that the order passed by the respondent no.2-
Collector is in the capacity of administrative power and
hence we hold that the petition lies before this Court as the
order impugned passed by the respondent no.2-Collector in
administrative capacity.
(PRAVIN S. PATIL, J.) (SMT. M.S. JAWALKAR, J.)
Gulande
Signed by: A.S. GULANDE
Designation: PS To Honourable Judge
Date: 04/09/2025 11:10:22
