Writ Petition No.2454 of 2007

29th August, 2007

Petitioner Counsel: Mr. R. S. PARSODKAR
Respondent Counsel: Mr. V. A. THAKRE,Mr. V. V. BHANGDE

Cases Cited:
State of U.P. Vs. Mohammad Nooh, AIR 1958 SC 86 [Para 4]

JUDGMENT

JUDGMENT:- Rule. Rule returnable forthwith. Heard finally by consent of parties.

2. By the present petition, the petitioner has challenged an order made by respondent no.3 on 13-6-2007 issuing ad interim injunction on the application for grant of stay in pending Appeal No.213 of 2007.

3. FACTS:

F.L. Licence as well C.L. Licence originally in the name of one Buddulal is the bone of contention between the rival parties to the present petition. The petitioner filed an application on 21-3-2006 before the Collector, Nagpur, against respondent no.4 contending that his signatures were forged on various documents by respondent no.4 and under that the said joint licence C.L. and F.L. III was transferred in the name of respondent no.4 fraudulently. The Collector, Nagpur, held enquiry and finally made an order on 23.5.2007 directing the parties to approach the competent Civil Court for getting the issue about fraud etc. adjudicated and till then kept the said licence under suspension. After passing of this order, the petitioner lodged a caveat with the appellate authority, i.e. respondent no.3 on 25-5-2007. On 13-6-2007 at about 1.00 p.m. the petitioner received a letter from Advocate Mrs. Veena Thadhani, which was a letter dated 11-6-2007, intimating that the petitioner's appeal under Section 137 of the Bombay Prohibition Act (for short the Act) as well as stay application would be circulated before the appellate authority for necessary interim order on 13-7-2007 at 10.00 a.m. The petitioner issued a FAX message to the said advocate that since the notice itself was received on 13-7-2007 at 1.00 p.m. it was not possible to attend the hearing at Mumbai. In the FAX message it was also mentioned that the petitioner's son Nitin has spoken to the said Advocate on mobile phone about his inability to attend the hearing at Mumbai. The appellate authority, however, made the impugned order and issued ad interim injunction. Hence the present writ petition.

4. ARGUMENTS:

Mr. R. S. Parsodkar, learned counsel for the petitioner, made the following submissions:

(i) The impugned order made by the Commissioner is in the nature of injunction and the appellate authority under Section 137 of the Act does not possess such power of issuing injunction.

(ii) The appellate authority ought to have ensured proper service on the petitioner before issuing the said ex parte order, particularly when the petitioner had lodged a caveat well in advance and the counsel for respondent no.4 was also aware about the same. Even though there is no provision for lodging caveat before the appellate authority under section 137 of the Act, interest of justice and fair play demands that as and when such caveat is lodged, the party lodging the caveat should be heard before passing any ex parte interim order.

(iii) By way of practice, caveats are being accepted, entertained in almost all quasi judicial and even administrative proceedings and as a matter of fact, as transparency in the proceedings, the parties lodging caveat are heard before ad interim order is passed.

(iv) In the instant case, counsel for respondent no.4 issued a letter dated 11-6-2007 which was received by the petitioner on 13-7-2007 at 1.00 p.m. at Saoner and hearing on the said application was to take place on the same day, as informed by the counsel. This was an act of impossibility and, therefore, there being breach of principles of natural justice, and the order being so patent, relying on the decision in State of U.P. Vs. Mohammad Nooh reported in AIR 1958 SC 86, the writ petition can be entertained by this Court.

(v) The Collector had merely put the licence under suspension directing the parties to get the issue adjudicated from the competent civil court and therefore the impugned order granting ad interim injunction is without jurisdiction. An order without jurisdiction can always be put to challenge in these proceedings.

5. The learned counsel for the petitioner also argued on the merits of the matter though prima facie, so also the counsel for respondent no.4, but I do not feel it necessary to reproduce their arguments on that aspect.

6. Per contra, Mr. Bhangde, learned senior counsel, appearing for respondent no.4, made the following submissions:

(i) The averment in the writ petition about lodging of caveat by the petitioner with respondent no.3 and the entire story narrated therein is palpably false inasmuch as a letter dated 21-7-2007 issued by respondent no.3 shows that the petitioner never sent copy of the alleged caveat to respondent no.4 nor enclosed any proof about despatch of caveat, i.e. postal receipt or postal acknowledgment along with the caveat application. Therefore, the petitioner has misled this Court in order to obtain ex parte order from this Court. Hence, this Court should dismiss the writ petition with exemplary costs.

(ii) The impugned order is an ex parte order and the proper course for the petitioner was to approach the same appellate authority with an application for vacation of the ex parte stay in the pending appeal. Instead of doing that, the petitioner has misused the extra ordinary jurisdiction of this Court which is not available and the appeal itself is pending before the appellate authority. The appellate authority wanted to mean stay of order of the Collector while issuing the impugned order, but instead wrong terminology, i.e. ad interim injunction has been used and therefore the petitioner cannot be allowed to make capital out of it.

(iii) Remedy of revision under Section 138 of the Act is available.

(iv) Petitioner has made several false statement before the Collector so also in the present writ petition and, at any rate, since the licence was being run without disturbance for over a period of 12 years, the respondent no.3 was justified in directing continuance thereof by passing the impugned order.

(v) There is no provision under the Act or Rules for lodging a caveat and therefore the petitioner has absolutely no right to claim any hearing before any ad interim order is made. He therefore prayed for dismissal of the writ petition.

7. CONSIDERATION:

Having heard the learned counsel for rival parties, I find that the counsel for both the parties have sufficiently disputed the stand taken by the petitioner and respondent no.4 in relation to the lodging of caveat. Further, whether a caveat could be legitimately lodged before the appellate authority in the absence of any provision, is a question which, in my opinion, need not be decided in the facts of the present case. I, therefore, do not decide whether the petitioner or respondent no.4 are guilty of making false statements either before this Court or before the appellate forum and without entering into that controversy, I propose to decide the present matter in the following manner.

8. Admittedly the order of Collector was made on 23-5-2007 and since then it appears that the licence in question was put under suspension. The appellate authority passed the impugned order which, if read, shows that it is an ad interim injunction. The appellate authority has also filed an affidavit in reply in this Court dated 21-7-2007. This affidavit does not show anywhere whether the caveat lodged before the appellate authority was without proof of despatch of copy of caveat to respondent no.4 or whether there being a caveat on record of appellate authority, any direction was issued to the counsel for respondent no.4 to ensure the service of intimation regarding hearing on the application for stay. Further, the affidavit does not at all refer to the said letter dated 21-7-2007 issued by the office of respondent no.3 regarding caveat. However, in paragraphs 2 and 3 few statements have been made -

"It is submitted that the answering respondent had not decided the appeal finally and only granted ad interim injunction ...... Inspite of receipt of caveat, the answering respondent granted ad interim injunction."

In the wake of this affidavit it is difficult to accept the argument made by Mr. Bhangde, learned Senior Counsel, that there was no proper caveat before the appellate authority or that the impugned order has to be read as an order of stay and not an interim injunction. Power to issue injunction has to be specifically conferred by the Legislature and at any rate power to grant stay cannot be made equivalent with the power to grant injunction. An injunction is a specific order or command of the Court preventing a party from doing that which he is under a legal obligation not to do directing the performance of a particular act or thing. Appellate authority is not a court of law. Its orders are not judicial orders, nor it can exercise its power ex debito justitiae. I do not think that the impugned order of ad interim injunction can be supported in the absence of any repository of power in the appellate authority. The net result of above discussion is that the impugned order is without authority of law.

9. For all these reasons, therefore, the impugned order granting injunction by the appellate authority-respondent no.3 is quashed and set aside. Petition is partly allowed. Respondent no.3 shall now decide the appeal itself finally on merits within one month from the date of receipt of Writ of this Court. The petitioner shall obtain the Hamdast of this order and reach the same to the appellate authority in any case within one week from today. The appellate authority shall then hear both the parties, and decide the appeal on merit within four weeks therefrom. Parties to appear before the appellate authority on 10-9-2007. Rule accordingly. No order as to costs.

Order accordingly.