2009(5) ALL MR 663
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

S.R. DONGAONKAR, J.

Govind S/O. Rameshwar Agrawal Vs. State Of Maharashtra & Ors.

Writ Petition No.1429 of 1997

30th July, 2009

Petitioner Counsel: Shri. ADWAIT MANOHAR
Respondent Counsel: Shri. KOTHARI,Shri. SHREYASH KHADSE

Bombay Prohibition Act (1949), S.139 - General powers of State Government in respect of licences, etc. - Powers under S.139 are to be exercised by State Government while deciding some policy matters - Held, those powers cannot be exercised for considering individual cases. 2005(5) ALL MR (S.C.) 632 - Ref. to. (Para 17)

Cases Cited:
Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashi Ahmed, AIR 1976 SC 578 : (1976)1 SCC 671 [Para 8,9]
Sai Chalchitra Vs. Commissioner, Meerut Mandal, 2005(5) ALL MR 632 (S.C.)=2005(3) SCC 683 [Para 9]
M. S. Jayaraj Vs. Commissioner of Excise, Kerala, 2000(7) SCC 552 [Para 10]
Patel Narshi Thakershi Vs. Pradyumansinghji Arjunsinghji, AIR 1970 SC 1273 [Para 15]


JUDGMENT

JUDGMENT :- Heard Shri. Adwait Manohar, Advocate, for the petitioner, Shri. Kothari, AGP for Respondent Nos.1 & 3 and Shri. Khadse, Advocate, for Respondent No.2. None present for intervenor.

2. The petitioner is challenging the order of the State Government dated 23rd April, 1997, by which the MF-II license for sale of Mhowra Flowers of the respondent no.2 was renewed.

The facts leading to this petition can be briefly stated thus-

3. The petitioner is the resident of Mehkar in Buldhana District. The respondent no.2 was holding MF-II license for sale of Mhowra Flowers at Khamgaon. The same was cancelled in 1985. Thereafter respondent no.2 preferred an application before the Collector, Buldhana, for renewal of his license on 26.9.1995. The Collector Buldhana i.e. Respondent no.3 rejected the said application by his order dated 16.1.1996. The fact was informed to the respondent no.2. It seems that thereafter respondent No.2 approached to the State Government and the State Government by the impugned order renewed the MF-II license for sale of Mhowra Flowers of respondent no.2, which was cancelled long back and not renewed by the Collector. The relevant order was made on the basis that the respondent No.2 had made out a special case for renewal of his MF-II license for sale of Mhowra Flowers, which was cancelled earlier. Not only that, the respondent No.2's MF-II license for sale of Mhowra Flowers was transferred from Khamgaon to Mehkar. This order is challenged by the petitioner.

4. Learned counsel for the petitioner has submitted that the Government while passing the impugned order has not given any reasons whatsoever for allowing the application of respondent no.2. According to him, under the provisions of Bombay Prohibition Act, 1949, there is no provision to re-grant a license, which is cancelled. According to him, the orders of the Collector can be challenged only before the Commissioner and the State Government has no powers as such to entertain the challenge to the orders of the Collector. It is also his submission that there are no powers of review with the State Government, nor under any power of revision, such orders can be passed. It is further his submission that, as there were no reasons to allow the application of the respondent no.2, the impugned order is bad at law. As regards the locus to file such petition, it is submitted that the petitioner, as he is resident of Mehkar, could challenge the impugned order. By way of reply, it was alleged that the petitioner was also doing Mhowra flowers business at Mehkar. Taking clue from this, the petitioner has submitted that as he had business in Mhowra flowers at Mehkar, he could challenge the impugned order. He has relied on certain authorities, which I would discuss in the latter part of the judgment.

5. Learned AGP has submitted that the Government of Maharashtra has ample powers under Sections 138 and 139 of the Bombay Prohibition Act, 1949, to review or revise the orders passed by the Collector. The State Government has powers to renew the licence as respondent no.2 had made out a special case for getting renewal of his license, which was earlier cancelled. Learned AGP has relied on the affidavit submitted by the Home Secretary, Maharashtra State, Mumbai, to point out the reasons for which the impugned order was passed. Therefore, according to him, the impugned order was not sans reasons and therefore, it could not be suspended. It is also his case that the petitioner has not pointed out the locus to challenge the impugned order.

6. Learned counsel for respondent no.2 has submitted that the parameters of Articles 226 & 227 of the Constitution of India does not lay ground to the petitioner to challenge the impugned order. He has also relied on the judgment of the Apex Court to contend that the petitioner cannot have any locus to challenge the impugned order inasmuch as he was mere resident of Mehkar. His rights were not any way hurt, nor he was party to the litigation between the parties. It is also his submission that there was history of litigation between the parties and therefore, petitioner had filed the petition just to harass the respondent no.2.

7. As stated above, the intervenor did not appear.

8. First, to deal with the question of locus of the petitioner to challenge the impugned order, it is necessary to refer to the judgment of the Apex Court cited by the learned counsel for Respondent No.2, reported in AIR 1976 SC 578 - Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashi Ahmed and others. It has been held therein that, in order to have locus standi to invoke certiorari jurisdiction, the petitioner should be an "aggrieved person". The expression "aggrieved person" denotes an elastic, and, to an extent, an elusive concept. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him. It is precise contention of respondent no.2 that the petitioner is not affected any way by the order that is impugned.

9. As against this, learned counsel for the petitioner relying on (1976)1 SCC 671 - Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashi Ahmed and others, and 2005(3) SCC 683 : [2005(5) ALL MR 632 (S.C.)] - Sai Chalchitra Vs. Commissioner, Meerut Mandal and others, has submitted that the petitioner has locus to challenge the impugned order inasmuch as he is resident of Mehkar where the respondent no.2's license was transferred. According to him, as the licence of respondent no.2 was to be operated in the area wherein the petitioner was living, he has locus to challenge the impugned order.

10. Learned counsel for the petitioner has further relied on the judgment of the Apex Court reported in 2000(7) SCC 552 - M. S. Jayaraj Vs. Commissioner of Excise, Kerala and others, to contend that the petitioner has locus to challenge the impugned order in view of the extended concept of locus standi.

11. There is no need to dilate on the point, suffice it to say that the petitioner is the resident of Mehkar, the area of the operation of the license of respondent no.2, license was in the place where he was residing and as per contention of respondent no.2, the petitioner was also dealing with Mhowra flowers. All these circumstances if taken into consideration, it would definitely lead to the conclusion that the petitioner has locus to challenge the impugned order.

12. The question is regarding merits of the impugned order. Before discussing the issue, it is necessary to note that the operation of the impugned order was stayed by this Court when the notice before admission was issued on 23.5.1997. It does not appear that at any time thereafter the stay was vacated or the respondent no.2 had asked for vacating of stay. Thus it appears that for petty long time the impugned order was not acted upon. The license which is to be granted in form MF-II is only for one year under Bombay Mhowra Flowers Rules, vide Rule (7). Each year thereafter the license has to be renewed.

13. In the present case, it appears that though the term of the license was not mentioned in the communication sent to respondent no.2, in view of Rule (7), the said license must have been only for one year. Therefore, in my opinion, the challenge of the petitioner to that order at this stage in 2009 cannot sustain. However, the question is regarding the validity of that order, which needs to be decided, in this petition.

14. Here is the case, where the State Government has passed an order for renewal of MF-II license of respondent no.2 saying that there is a special case for renewal. On perusal of the impugned order, it would be seen that there are no specific reasons for holding so recorded in the said order. Therefore, it is the contention of the learned counsel for the petitioner that the said order is bad at law. The respondent has tried to supplement the reasons by filing the affidavit of Home Secretary, Mantralaya, Mumbai, which is filed on 16.7.1998. The reasons which are submitted by the affidavit are that; the license of respondent no.2 was cancelled as there was no transaction of sale, purchase or import of mhowra flowers in respect of the said licence. The respondent no.2 had preferred an application before the Minister, State Excise, by letter dated 13.8.96 and represented that his original license may be revived since his financial position was not satisfactory and there was no other means of income and for these reasons, his licence should be revived. It is also the case of the respondents that the State Government has powers under Sections 138 and 139 of the Bombay Prohibition Act, to revise such orders.

15. At this stage, it is necessary to note that in AIR 1970 SC 1273 - Patel Narshi Thakershi and others Vs. Pradyumansinghji Arjunsinghji, it has been laid down that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The contention of the learned counsel for the petitioner is that no such power is conferred.

16. At this stage, it is necessary to note the provisions of Sections 138 and 139 of the Bombay Prohibition Act, 1946, which reads thus-

"138. Revision

The State Government may call for and examine the record of any proceedings before any Prohibition Officer including that relating to the grant or refusal of a license, 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. One 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) prohibit the grant of any kind of licences, permits, passes or authorizations through the State or in any area;

(b) regulate the import, export, transport, possession, sale, purchase, consumption or use of any intoxicant, hemp, mhowra flowers, molasses or any article which is likely to be used for the manufacture of an intoxicant with or without license, permit, pass or authorization throughout the State or within the limits of any local area subject to such conditions, as it may impose;

(c) exempt any person or institution or any class of persons or institutions from all or any of the provisions of this Act or from all or any of the rules, regulations or orders made thereunder or from all or any of the conditions of any license, permit, pass or authorization granted thereunder, subject to such conditions as it may impose;

(d) except any intoxicant or class of intoxicants, denatured spirituous preparation, hemp, mhowra flowers or molasses from all or any of the provisions of this Act or from all or any of the rules, regulations or orders made thereunder subject to such conditions as it may impose;

(d-1) remit or refund wholly or partially any fee in respect of any privilege, licence, permit, pass or authorization granted under this Act or any duty on toddy producing trees or any excise or countervailing duty or fee leviable under this Act or any intoxicant, hemp, mhowra flowers or molasses from any person or institution or from a class of persons or institution except any person or institution be granted and the number of such places which may be or class of persons or institutions from the payment of such duty or fee subject to such conditions as it may impose;

(e) prescribe the maximum number of licences, permits, passes, or authorizations of any kind which may be granted in any area or to any class of persons;

(f) prescribe the number of places at which any intoxicant specified in such order (denatured spirituous preparation), hemp, mhowra flowers or molasses, may be sold in any area, the location of such places in any area, the days and hours during which such places may or may not be kept open, the number of such places in respect of which licenses for the sale may [managed by the State Government departmentally];

(g) direct that no licence, permit, pass or authorization of the kind specified in such order shall be granted without the previous approval of the State Government or also direct any additions or alterations to be made to or in the conditions subject to which under any other provisions of this Act, such licence, permit, pass or authorization can be granted;

(h) prescribe the maximum quantity of any intoxicant [denatured spirituous preparation], hemp, mhowra flowers or molasses which may be sold in any area or at any place;

(i) prescribe in respect of any place or area, the maximum number of toddy producing trees for tapping which or for drawing toddy from which license or licenses may be granted;

(j) prescribe the procedure for the disposal of any shop of shops authorized to sell any intoxicant, denatured spirituous preparation, hemp, mhowra flowers or molasses under this Act and the procedure to be followed before granting any licence or licences;

(k) direct that before granting licences, auctions may be held, tenders called for or offers received and that licences shall be granted [subject to such conditions as may be prescribed] to persons whose bids, tenders or offers are accepted by the Collector;

(l) specify the persons or class of persons [to whom licences may or may not be granted] and in cases in which auctions are held, the person or classes of persons who may or may not be permitted to offer bids at such auctions;

(m) direct that licences of the kind specified in such order shall be granted to persons specified in such order; and

(n) issue such other instructions in any matter pertaining to the grant or otherwise of licences, permits, passes or authorizations under this Act, as the [State] Government may deem proper.

17. On perusal of the provisions of Section 139 of the Bombay Prohibition Act, which are extracted above, it would be seen that those provisions are of general nature and are to be exercised by the State Government while deciding some policy matters. In my opinion, those powers cannot be exercised for considering an individual cases. Therefore, the contention of the respondents that the impugned order can be considered as valid order as passed under Section 139 of the Bombay Prohibition Act cannot be accepted.

18. Adverting to the question as to whether the said order can be said to be an order passed by the State Government under the provisions of Revision under Section 138 of Bombay Prohibition Act.

19. At this stage, it needs to be made clear that Respondent has contended that powers u/s.138 of Bombay Prohibition Act of Revision are exercised while passing impugned orders. There is contention that powers of review were exercise. Therefore, the authority cited by the learned counsel for the petitioner is not applicable to the facts of the case.

20. On close perusal of the impugned order, it would be seen that the said order does not show that the order of the Collector was sought to be revised. There is no mention of the order "sought to be revised". It is also not made apparent by the respondent that any revision application was preferred by respondent no.2 to seek challenge to the order of the Collector. What is appearing is that a mere letter was sent by respondent no.2 to the Minister, State Excise and the impugned order was passed on that letter. In fact, the very title of the impugned order states, "Reference : Your letter No.MFL-1195/41152/11, dated 21.6.96" Perusal of the order does not show that the matter was considered by the Minister i.e. State Government so as to consider whether the order of Collector should be revised or not ? In this view of the matter, therefore, it cannot be said that the powers of the State Government under Section 138 of the Bombay Prohibition Act were exercised by the State Government. The reasons appended by the affidavit and supplied for justification of the order clearly seem to be afterthought. Such supplementing of reasons after passing of relevant order can not be approved.

21. As already observed above, the circumstances are not such that the State Government could have exercised the powers under Section 138 of the Bombay Prohibition Act and even for that matter, under Section 139 of the Bombay Prohibition Act. Thus, it appears that the impugned order was passed by the Respondent State Government without any authority, backed by provisions in law. The same is, therefore, liable to be quashed and set aside. Ordered accordingly. Petition is allowed. No order as to costs.

Petition allowed.