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2006 DIGILAW 546 (PAT)

Salson Liquor Pvt. Ltd. v. State of Bihar

2006-06-28

J.N.BHATT, SHIVA KIRTI SINGH

body2006
ORDER : A counter affidavit on behalf of the State and a rejoinder petition to the counter affidavit on behalf of the petitioner have been filed today, which have been taken on the record. 2. Since the matter came to be filed during the course of "Summer Vacation" the interlocutory ORDER :before admission came to be passed pending admission, whereby, in the meantime, the ORDER :passed by the Commissioner was directed to remain operational for the period upto 20th June, 2006 with a further direction to the Collector to implement the ORDER :passed by the Commissioner and that is why after the cut-off date the interlocutory ORDER :directing unsealing the manufacturing premises has ceased to be operated. By invocation of provision of Article 226 of the Constitution of India, the petitioning-Company has sought directions against the respondent no. 3 the Collector, Patna to unseal the manufacturing premises of the petitioner and to renew its licences for manufacture and sale of India Made Foreign Liquor (IMFL) for the year, 2006-07 pursuant to the ORDER :dated 12.5.2006 passed by the Excise Commissioner, Bihar, Patna in Excise Appeal No.31/2006 and consequential ORDER :passed in the matter directing the Collector, Patna, to permit the petitioner to conduct its manufacturing and sale of IMFL. 3. We have been addressed by the learned Counsel appearing for the petitioner and the learned Advocate General, Bihar, appearing for the respondents. We have, also, examined and evaluated the factual profile emerging from the record of the present case, as well as, the relevant provisions of law coupled with the content and colour of the impugned ORDER :of the learned Vacation Judge, which came to be recorded on 7.6.2006 in this petition. 4. Let there be at this juncture skeleton projection of factual profile for appreciating and evaluating the merits of the petition at the admission stage: The petitioning-Company is a Private Limited Company and is engaged in manufacturing of India Made Foreign Liquor (IMFL) under a licence and on 6.3.2006 the manufacturing premises of the petitioning-Company came to be inspected by the Officers of the Excise Department including the Excise Commissioner and certain illegalities and irregularities were found involving huge amount of revenue, as alleged by the respondents, and those irregularities and illegalities were articulated and highlighted in the impugned ORDER :in Excise Case No.1/2006, which we have examined. Upon consideration of the facts and circumstances and other aspects relatable to the merits of the matter, the respondent no. 3 the Collector, Patna, reached to the conclusion that the petitioning-Company was involved in grave illegalities and irregularities involving revenue of the State, which were found to be against the terms and conditions of the licence. There were, thus, several breaches of the terms and conditions. Therefore, the Collector, Patna passed the impugned ORDER :holding the petitioning - Company guilty for violating the terms and conditions of the agreement and guilty of theft of excise duty with a further direction to cancel the licence granted under different forms to the Company with an immediate effect. The petitioning-Company preferred the appeal being Appeal No. 31/2006, which came to be decided on 12.5.06 by one B.B. Srivastava, the Commissioner Excise, about whom the learned Advocate General has contended that he was posted there for a temporary period by way of stop gap arrangement. Apart from that it is contended that the ORDER :recorded by B.B. Srivastava, whereby, the operation of the ORDER :of the Collector was stayed, is not permissible and legal. Again, it is further contended that the matter was carried by the respondent-State before the Board of Revenue in a revision and the matter is pending for consideration on merits. 5. The learned Counsel for the petitioner submitted that since the interlocutory ORDER :sought in the revision before the Board of Revenue by the State was declined, it was necessary to enforce and implement the ORDER :of the appellant-authority. 6. It is in this context, the petitioner has conceived a notion of invocation of extraordinary equitable, plenary, prerogative and discretionary special jurisdiction of the High Court under Article 226 of the Constitution of India, which leaves no any manner of doubt insofar as the relief is concerned that during the pendency of the matter before the Board of Revenue without resorting to any other remedies available under the Act, the petitioning-Company rushed to this Court and that, too, during the "Summer Vacation" and applied for interlocutory relief before pending admission, whereby, the direction was sought to get the ORDER :of the Commissioner, who heard the appeal staying the ORDER :of the Collector, implemented, as if, the Writ Court is an executing court. We are surprise how such a petition could be entertained when statutory mechanism has been prescribed statutorily for the redressal of such grievances. 7. Apart from factual aspect, it is a settled proposition of law with regard to the ambit of the judicial review under Article 226 of the Constitution of India, which has to be exercised as a supervisory jurisdiction and not as if the High Court sits in an appeal over the impugned decision. The writ petition cannot be filed as if it is like an appeal, much less, a petition for implementation and execution of the interim ORDER :or otherwise ORDER :of a statutory functionary during the pendency of the adjudication of the matter on merits. The manner and mode in which the petition is brought is not only shocking our conscience but also it has operated as a heart stealing event. 8. It is nothing but misuse and abuse of the process of the Court. It is, therefore, necessary that the persons, who are indulging in seeking redressal short-circuiting the statutory mechanism or by-passing an alternative statutory efficacious forum for redressal, should not be encouraged. Since the petition could not have been dismissed on merits during the period of vacation and it was taken up by the Vacation Judge in a Single Bench, the interim relief was restricted, obviously, till the admission hearing and, now, in this petition the interim relief is restricted to 20th June, 2006, which has already expired. 9. It is in this context the grievance voiced and raised by the learned Advocate General appearing on behalf of the respondents is that such an ingenious effort culminating into an abuse or misuse of the process of the court deserves to be condemned. We find substance in this contention as observed hereinbefore. 10. Before parting with the ORDER :, we also think it expedient to place it on record that since the revision is awaiting judicial adjudication before the Board of Revenue, we have not gone into the merits of the matter and, therefore, the merits of the revision pending, obviously, shall have to be considered on its own merits without being influenced by the observation in this JUDGMENT :. 11. 11. However, let it be, also, recorded that in view of the ORDER :of sealing the premises on a finding by the Collector on account of indulgence of the petitioning-Company in illegal or irregular activities contrary to the terms and conditions of the licence and, also, involvement in theft of revenue and excise duty, a direction to unseal the premises, which has been raised in this petition and the interlocutory ORDER :at the admission stage on the same day came to be passed with a limited life till 20.6.06, which has, now, expired and, therefore, the ORDER :shall not survive. Since we are going to dismiss the petition on the aforesaid grounds, the respondent-State will be at liberty to appropriately take action for restoration in accordance with law. 12. On the aforesaid grounds, the writ petition shall stand dismissed at the admission stage after marathon hearing with cost. Notice is discharged.