Bombay High Court
Rajesh Matadinlalji Jaiswal vs State Of Maharashtra Through Its Deputy ... on 1 March, 2016
Author: Prasanna.B.Varale
Bench: Prasanna.B.Varale
1 wp5460.15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 5460 OF 2015
Rajesh Matadinlalji Jaiswal,
aged 57 years, Occupation
Business, R/o Mouza Wadi,
Tahsil and District Nagpur. ... PETITIONER
VERSUS
1. State of Maharashtra,
through its Deputy Secretary,
Department of Home, Mantralaya,
Bombay - 32.
2. State of Maharashtra,
through its Secretary,
Department of State Excise,
Mantralaya, Mumbai - 32.
3. The Commissioner,
State Excise, Old Customs House,
Fort, Mumbai (MS).
4. The Collector, Nagpur (Authority
Constituted under the Bombay
Prohibition Act).
5. The Superintendent of State Excise,
Nagpur. ... RESPONDENTS
....
Shri A.C. Dharmadhikari, Advocate for the petitioner.
Shri A.D. Sonak, Assistant Government Pleader for the respondents.
....
CORAM : PRASANNA.B.VARALE, J.
DATED : 01ST MARCH, 2016.
ORAL JUDGMENT :
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2 wp5460.15 Rule. Rule is made returnable forthwith. Heard finally with the consent of the learned Counsel appearing on behalf of the respective parties. Shri A.D. Sonak, learned Assistant Government Pleader waives notice on behalf of the respondents.
2. By way of present petition, the petitioner challenges the order dated 24th September, 2015. The signatory to the said order is the Joint Secretary, Home Department. By the said order, it is communicated to the petitioner and other twenty CL-III/FL-II licensees that the government by exercising powers under Section 138 of the Maharashtra Prohibition Act granted an interim stay for shifting all these licensees so as to verify whether there is compliance of the conditions as per the Rules.
3. Shri Dharmadhikari, the learned Counsel for the petitioner submitted a backdrop to the order impugned in the instant petition. He submits that initially the petitioner was running his shop under the CL-III license at plot No. 18, Wadi in the city of Nagpur and then sought shifting of his license in another block of the same area in Khasra No.27 Plot No.21 of Wadi in the city of Nagpur. The learned Counsel further submits that the said shifting was permitted and an order was also passed by the Collector. The said order was challenged before the Commissioner, State Excise. By allowing the revision application, the Commissioner set aside ::: Uploaded on - 02/03/2016 ::: Downloaded on - 31/07/2016 07:22:53 ::: 3 wp5460.15 the order passed by the Collector. Being aggrieved by the said order of the Commissioner, State Excise, the petitioner approached this Court by preferring Writ Petition No. 3903 of 2015. This Court while issuing notice by order dated 10th July, 2015, directed the parties to maintain status quo as on that date. The said petition is pending before this Court and the interim order is continued and is in effect. During the pendency of the petition, the order impugned in the present petition is passed.
4. Shri Dharmadhikari, the learned Counsel for the petitioner vehemently submits that the order passed by the State Government is not only an arbitrary order but also shows that it passed in most casual manner. He also submits that by the said order, a blanket interim stay is granted to nearly 21 CL-III/FL-II license holders. The petitioner and the other CL-III/FL-II license holders are directed to close down their business by way of interim stay. It is submitted by the learned Counsel for the petitioner that if it was the ground for the government to verify whether the conditions of the license are followed or there is breach of the conditions, the government could have passed the order stating those details against a particular license holder, but by a blanket order referring to the list of 21 CL-III/FL-II license holders a general direction is issued granting stay and directing those license holders to stop their business.
Shri Dharmadhikari, the learned Counsel further submits that the license holders are running their business after the shifting was permitted some ::: Uploaded on - 02/03/2016 ::: Downloaded on - 31/07/2016 07:22:53 ::: 4 wp5460.15 time in the years 2013-14 or 2014-15. He then submits that even not admitting but assuming that the government wants to verify the compliance of the conditions, the government could certainly take that exercise by visiting to particular license holder or the shop and for such an exercise directing the license holder to close down the business or granting stay to the shifting as an extreme and irrational step.
5. Shri Dharmadhikari, the learned Counsel for the petitioner submits that in similar circumstances, this Court had an occasion to consider the very order passed by the government in Writ Petition No. 3315 of 2015 and this Court in a detailed order, on the backdrop of the particular provisions namely Sections 138, 139, 2(35) of the Maharashtra Prohibition Act, found that the order passed by the government is clearly unsustainable. In the said writ petition, a prayer was made seeking direction to the respondent/State to accept the privilege fees and permit the petitioners to operate license, this Court by order dated 29th October, 2015 in Writ Petition No. 3315 of 2015, quashed and set aside the order dated 24.09.2015 and directed the respondent/authority to accept the privilege fees from the petitioners within a stipulated period and permitted the petitioner to operate the license. The submission of the learned Counsel for the petitioner that on the backdrop of the order of this Court, the order passed by the State Government impugned in the instant petition is clearly unsustainable.
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6. Shri Sonak, the learned AGP in support to the order under challenge submits that Rule 25 permits shifting with certain conditions and the Collector is the competent authority for grant of shifting within taluka. It is submitted by the learned AGP with the support of the affidavit filed in the petition that the order is passed of granting interim stay to examine whether the prescribed conditions and the procedure have been followed or not.
7. Though an attempt was made by the learned AGP to support the order impugned in the petition, in view of the order passed by this Court in Writ Petition No. 3315 of 2015, in my opinion, the order impugned in the petition is clearly unsustainable. This Court dealt with the aspects in details relating to the powers exercised by the State under Section 138 of the Act and the ground in the impugned order of verifying the compliance of the conditions or otherwise. In Writ Petition No. 3315 of 2015, it seems that an another ground was tried to be raised by the State stating that as there is a possibility of law and order situation, the interim stay is granted.
This Court found that the ground of apprehension of law and order is raised only to support the order; whereas this was not at all ground in the earlier reply filed by the State Government. There is considerable merit in the submission of the learned Counsel for the petitioner that if the government really wanted to verify the compliance or breach of the ::: Uploaded on - 02/03/2016 ::: Downloaded on - 31/07/2016 07:22:53 ::: 6 wp5460.15 conditions, the government could have undertaken that exercise by specifying the particular license holder and pass order to that effect. By just preparing a list of 21 license holders and granting stay and an order directing these license holders to close down their business even does not stand to the reasons. There is also merit in the submission of the learned Counsel for the petitioner that the order is passed by the Joint Secretary of the Home Department. If it was nobody's case that there is something in relation to maintenance of law and order was involved, one fails to understand what prompted the Joint Secretary of Home Department to pass the order directing this CL-III/FL-II license holders granting interim stay and closing down their business. Considering all these aspects, in my opinion, the order impugned in the petition is clearly unsustainable.
8. In the result, the petition is allowed. The order dated 24.09.2015 is quashed and set aside. Rule is made absolute accordingly.
JUDGE *rrg.
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