Madhya Pradesh High Court
M/S Pernod Ricard India (P) Ltd. Thr. vs The State Of Madhya Pradesh on 31 July, 2017
Author: Sanjay Yadav
Bench: Sanjay Yadav, S.K. Awasthi
1 R.P.No.413/2017
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
DIVISION BENCH
Hon'ble Shri Justice Sanjay Yadav
&
Hon'ble Shri Justice S.K. Awasthi
Review Petition No.413 of 2017
M/s Pernod Ricard India (P) Ltd
Versus
State of M.P. and others
Shri Deepak Khot, learned counsel for the petitioners.
Shri Praveen Newaskar, learned Government Advocate for the
respondents/State.
Whether approved for reporting:
________________________________________________________
Reserved on : 25/07/2017
Posted on :31/07/2017
ORDER
Per: Justice Sanjay Yadav This order shall dispose of bunch of review petitions bearing Review Petition Nos.413/2017, 414/2017, 415/2017, 416/2017, 417/2017, 418/2017, 419/2017, 420/2017, 421/2017, 422/2017, 423/2017, 424/2017, 425/2017, 426/2017, 427/2017, 2 R.P.No.413/2017 428/2017, 429/2017, 430/2017, 431/2017, 432/2017, 433/2017, 434/2017, 435/2017, 436/2017, 437/2017, 438/2017, 439/2017, 440/2017, 441/2017, 442/2017, 443/2017, 444/2017, 445/2017, 446/2017, 447/2017, 448/2017, 449/2017, 450/2017, 451/2017 and 452/2017 arising out of common order passed on 29/06/2017 whereby the writ appeals were allowed. The question of fact and law is common in all these review petitions.
2. The writ appeals were directed against the order passed in respective writ petitions whereby the learned Single Judge finding fault with power exercised by the Deputy Commissioner (Excise) under the Madhya Pradesh Foreign Liquor Rules, 1996 (For short, 'the Rules of 1996) had set aside the same on the finding that on the date of the order, it was not within the powers of the Deputy Commissioner to have imposed three times penalty under sub-rule (2) of Rule 19 of the Rules of 1996 which underwent amendment with effect from 29/03/2011 vide Notification No.F-B-1-49-2011-2V (07) dated 29/03/2011 published in the Madhya Pradesh Gazette (Extraordinary) dated 29/03/2011 at page 258.
3. The appeal was at the instance of the State of Madhya Pradesh and its functionaries on the ground that the notification, on the basis whereof, the exercise of power by the Deputy Commissioner (Excise) has been found fault with was made effective from a prospective date, whereas, the cause of action which was subject-matter of the writ petition had arisen in the year 2009 i.e., before coming into force of the notification dated 29/03/2011.
3 R.P.No.413/20174. On 29/06/2017 when W.A.No.425/2016 and the connected writ appeals were posted for hearing, the Bar Association, Gwalior vide resolution dated 28/06/2017 gave a call to abstain from the Court. The appellant was present. However, respondent remained absent, though there was no bar for the parties to appear and argue. The appellant was heard. As sufficient explanation was tendered for delay in filing the appeal(s), interlocutory application for condonation was allowed. After hearing, the order was dictated in open Court.
5. Present petition(s) are filed seeking review of the order on the ground that preliminary objection as to maintainability was raised as the order under challenge was passed by the writ Court exceeding the jurisdiction under Article 227 of the Constitution of India.
6. That, contentions are also made in paragraphs 8 and 9 of the Review Petition that in absence of the counsel, the parties should not be made to suffer. Reliance is placed on the decision in the case of Rafiq and another Vs. Munshilal and another [(1981) 2 SCC 788] and Secretary, Department of Horticulture, Chandigarh and another Vs. Raghu Raj [(2008) 13 SCC 395] to bolster the submissions. However, when learned counsel for the petitioner was apprised of the fact that it was not the casual absence of the counsel, but the counsel had abstained from appearing in Court supporting the call from the Bar Association to boycott the Court. When faced with said fact situation, learned counsel for the petitioner instantly withdrew the ground of counsel's absence and confined his submissions only to that, had the preliminary objection as to maintainability of the writ appeal was considered the same would have resulted in dismissal of appeals. Reliance is placed on the 4 R.P.No.413/2017 decision in Jaidev Siddha (Dr.) and others Vs. Jaiprakash Siddha and others [2007 (3) MPLJ 595], Manoj Kumar Vs. Board of Revenue and others [2008(1) MPLJ 152], Kamlesh Verma Vs. Mayawati and others [(2013) 8 SCC 320] and Jogendrasinhji Vijaysinghji Vs. State of Gujrat and others [(2015) 9 SCC 1].
7. Heard learned counsel for the petitioner at length.
8. At the cost of repetition, we remind the petitioner that it was the self imposed condition by its counsel in not appearing in the Court, though he was not prevented by any prohibitory order. Even the petitioner who was respondent in the appeal was not prevented from appearing because the appellants were also not represented through counsel but they appeared in person and there was no hindrance caused from appearing. In paragraph 7 of the review petition, it is contended that a representative of the company was not allowed to enter the Court room by the Bar members and because of the chaos at the entry gate. However, no complaint to that effect is shown to have been lodged with the Principal Registrar nor with any authority of the Bar Council, the affidavit filed by said representative is totally silent in that context. The contentions that the representative was prevented, in the wake of fact that the appellant was appearing in person, is far from real. Be that as it may.
9. Since, no one appeared for the respondent to press the application against maintainability, the same cannot be treated as a ground, in the fact situation of the present case for review of the judgment dated 29/06/2017.
5 R.P.No.413/201710. Even if, the application was pressed in service, it would have been of no consequence.
11. In writ petition, the challenge was to an order passed by the Board of Revenue. The petitioner, besides, seeking quashment of the order passed by the Board of Revenue, also sought quashment of order passed by the Deputy Commissioner, Excise, Gwalior imposing penalty. The petitioner also sought quashment of order dated 02/05/2013 passed by the Excise Commissioner. The relief against the order passed by the Commissioner, Excise and Deputy Commissioner, Excise was on the ground that the petitioner is not liable to pay any transit loss or penalty because the loss which has been occurred was due to unavoidable circumstances. It was also the case of the petitioner that since no loss has occurred to the State exchequer due to transit loss and that there was no condition in the licence as would empower the State/Excise Department to recover any penalty or fee in the name of transit loss. It was the contention that the duty has been paid on the liquor and no actual loss was caused to the State due to said transit loss. Thus, it was not only the order passed by the Board of Revenue which was questioned, but the action of the State in levying penalty on the transit loss was also questioned. Therefore, the petition was captioned as under Article 226 of the Constitution of India and not under Article 227.
12. The writ Court also construed the petition to be under Article 226 of the Constitution of India. This will be evident from the nature of the relief granted. It held:
"9. In view of aforesaid enunciation of law, it is evident that the Deputy Commissioner, Excise, had no authority to levy the penalty at 6 R.P.No.413/2017 three times the duty. From perusal of the reply to the show-cause notice as well as the orders passed by the Deputy Commissioner, Excise, Commissioner, Excise and the Board of Revenue, it is evident that neither the Deputy Commissioner nor the Excise Commissioner have adverted to the grounds raised by the petitioner in the reply to the notice issued to it by the Deputy Commissioner, Excise. The impugned orders are cryptic in nature and suffers from the vice of non-application of mind. The impugned orders therefore cannot be sustained in the eye of law. Accordingly, they are quashed.
10. The Deputy Commissioner, Excise, is directed to decide the matter afresh by taking into account the objection raised by the petitioner in its reply to the notice dated 22.11.2011. The Deputy Commissioner, Excise, shall decide the question of levy of penalty by taking into account Rule 19 of the Rules, 1996, which was substituted on 29.3.2011. Needless to state that the Deputy Commissioner, Excise, shall pass a speaking order in accordance with law. The aforesaid exercise shall be completed within a period of two months from the date of receipt of certified copy of the order passed today."
13. The question as to whether an intra-court appeal would lie against an order passed under Article 226 and/or 227 of the Constitution of India came for consideration before Full Bench of this High Court in Jaidev Siddha (Dr.) (supra) wherein, the expression "in exercise of original jurisdiction" appearing in Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam 2005 came up for interpretation in conflicting view of the Division Bench judgment in Smt. Shiva Dubey (Jhira) Vs. Sumit Ranjan Dubey Jhira), W.A.No.310/2006, Lakhanlal Sonkar V. Gun Carriage Factory [2007(1) MPHT 335] and State of Madhya Pradesh 7 R.P.No.413/2017 and others Vs. M.S. Wakankar and another [2007 (1) MPLJ 99] and the other in Rama and Co. V. State of M.P. and another 2007(3) MPLJ 154 (WA.342/2006).
14. Pertinent it is to note that Rama & Co. (supra) was a Writ Appeal directed against the order passed by learned Single Judge in Writ Petition directed against the order passed by the Board of Revenue.
15. The Full Bench in Jaidev Siddha (Dr.) & Others (supra) held that the jurisdictional prospective in the constitutional context are to be examined and that Section 2 of the Adhiniyam 2005 cannot be given restricted and constricted meaning because an order passed in the writ petition tantamount to an order under Article 226 or 227 of the Constitution of India. It depends upon the real nature of the order passed by learned Single Judge. It was held:
"17. From the aforesaid enunciation of law it is quite vivid and luminiscent that the pleadings in the writ petition, nature of the order passed by the learned Single Judge, character and the contour of the order, directions issued, nomenclature given, the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper technical manner that an order passed in a writ petition, if there is assail to the order emerging from the Inferior Tribunal or Subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. Phraseology used in exercise of original jurisdiction under Article 226 of the Constitution in Section 2 of 8 R.P.No.413/2017 the Act cannot be given a restricted and constricted meaning because an order passed in a writ petition can tantamount to an order under Article 226 or 227 of the Constitution of India and it would depend upon the real nature of the order passed by the learned Single Judge. To elaborate; whether the learned Single Judge has exercised his jurisdiction under Article 226 or under Article 227 or both would depend upon various aspects and many a facet as has been emphasized in the aforequoted decisions of the Apex Court. The pleadings, as has been indicated hereinabove, also assume immense significance. As has been held in the case of Surya Dev Rai Vs. Ram Chander Rai and others, AIR 2003 SC 3044, a writ of certiorari can be issued under Article 226 of the Constitution against an order of a Tribunal or an order passed by the Subordinate Court. In quintessentiality, it cannot be put in a straitjacket formula that any order of the learned Single Judge that deals with an order arising from an Inferior Tribunal or the Subordinate Court is an order under Article 227 of the Constitution of India and not an order under Article 226 of the Constitution. It would not be an overemphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co- exit, overlap or imbricate. In this context it is apt to note that there may be cases where the learned Single Judge may feel disposed or inclined to issue a writ to do full and complete 9 R.P.No.413/2017 justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of the case."
16. The Full Bench overruled the judgment in Rama & Co. (supra).
17. Thereafter, the correctness of the Full Bench in Jaidev Siddha (Dr.) and others (supra) was doubted because of the order passed by the Supreme Court in the Special Leave Petition affirming the order passed in Rama & Co. (supra). The matter was referred to Larger Bench in Manoj Kumar Vs. Board of Revenue and others [2008(1) MPLJ 152] wherein it was held:
"67. In view of our aforesaid analysis we proceed to record our conclusions in seriatim:
(i) A power to issue the writ is original and the jurisdiction exercised is original jurisdiction.
(ii) Proceedings under Article 226 of the Constitution are in exercise of original jurisdiction of the High Court whereas the proceedings initiated under Article 227 of the Constitution are supervisory in nature.
(iii) When a writ is issued under Article 226 of the Constitution it is issued in exercise of original jurisdiction whether against a Tribunal or an Inferior Court or Administrative Authorities.
(iv) The power exercised under Article 226 of the Constitution is in exercise of original jurisdiction and not supervisor}' jurisdiction.
(v) Exercise of supervisory power and power of superintendence is not to be equated with the original or supervisory jurisdiction.
10 R.P.No.413/2017(vi) The order passed in SLP (Civil) No. 9186/2007 is a declaration of law under Article 141 of the Constitution but the High Court is bound to follow the earlier decisions in the field regard being had to the concept of precedents as per law laid down by the Apex Court and the five-Judge Bench decision in Jabalpur Motor Association (supra).
(vii) The decision rendered in Rama and Company (supra), is binding upon the parties inter se.
(viii) The decisions rendered by the Apex Court in the context of appeal under Letters Patent as regards maintainability of an appeal would govern the field pertaining to maintainability of appeal preferred under Section 2 of the 2005 Adhiniyam.
(ix) The view taken by the Full Bench in Dr. Jaidev Siddha and Ors. (supra), cannot be treated to have been impliedly overruled due to dismissal of the Special Leave Petition preferred against the order rendered in the case of Rama and Company (supra).
(x) The law laid down in the case of Dr. Jaidev Siddha (supra) holds the filed and the principles laid down therein will have full applicability."
18. Thus, law having been settled that an order passed by the learned Single Judge against the order of Board of Revenue is amenable to challenge in intra-court appeal under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam 2005, the contention raised on behalf of the petitioner that the objection as to maintainability of Writ Appeal would have succeeded is a mirage.
19. In view of the principle of law laid down in Manoj Kumar (supra), the petitioners do not succeed in establishing that the writ appeals against an order passed in writ petitions directed against the order passed by the Board of Revenue are not tenable.
11 R.P.No.413/201720. It has been held in Kamlesh Verma Vs. Mayawati and others [(2013) 8 SCC 320]:
"14. Review of the earlier order cannot be done unless the court is satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice................"
"16. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. The power of review can be exercised for correction of a mistake but not to substitute a view. The mere possibility of two views on the subject is not a ground for review..........."
21. In view whereof as the Review Petitions do not merit consideration, they fail and are dismissed. However, there shall be no costs.
(Sanjay Yadav) (S.K. Awasthi)
Judge Judge
b/-