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2011 DIGILAW 675 (BOM)

Pruthviraj s/o. Parmeshwarlal Jaiswal v. State of Maharashtra

2011-06-16

R.M.SAVANT

body2011
JUDGMENT :- Rule, made returnable forthwith. Heard fina1ly with consent of the learned Counsel for the parties. 2. The short question, which arises for consideration in the above writ petition is as to whether on remand the concerned Authority, i.e. Collector is entitled to consider the issue of suspension of licence or remand is restricted only to consideration of imposition of fine of Rs.25,000/- levied on the petitioner and also whether the Collector would be entitled to take into consideration the facts, which have transpired after the order was passed by the Hon'ble Minister. 3. The conspectus of the facts involved in the above writ petition can be stated thus: The petitioner is holding a CL-III licence, which has been issued to him for conducting the same at village Pinjar, Taluq Barshitakli, District Akola, on the allegation that he has sold country liquor bottle of 180 ml worth Rs.17.80 at Rs.18/-, thus selling at higher price of 0.20 paise, a show cause notice came to be issued to the petitioner. The show cause notice was replied to by the petitioner. The Collector by order dated 16/4/2007 suspended the said licence of the petitioner on the ground of the afore-stated breach as well as on the ground of earlier breaches. The petitioner thereafter filed Appeal No. 165/2007 before the Commissioner, State Excise, Mumbai. The Commissioner partly allowed the said appeal by his order dated 8/5/2007 and revoked the suspension of CL-III licence and instead of suspension, imposed fine of Rs.25,000/- with certain observations in respect of cancellation of licence. In terms of the order of the Commissioner, the petitioner started conducting the said CL-III shop from 2/7/2007. The petitioner thereafter filed revision under Section 138 of the Bombay Prohibition Act before the State Government, which was heard by the Hon'ble Minister for State Excise. By order dated 26/2/2008, the Hon'ble Minister set aside the order dated 8/5/2007 passed by the Comm issioner and restored the order dated 16/4/2007 passed by the Collector, thereby passing an order of suspension against the petitioner. This resulted in petitioner tiling Writ Petition No.1665/2008 in this Court. The said writ petition came to be disposed of by this Court by order dated 17/1/2009. This Court set aside the order passed by the Hon'ble Minister and remanded the matter back to the State Government for a de novo consideration. This resulted in petitioner tiling Writ Petition No.1665/2008 in this Court. The said writ petition came to be disposed of by this Court by order dated 17/1/2009. This Court set aside the order passed by the Hon'ble Minister and remanded the matter back to the State Government for a de novo consideration. On such remand, the revision application was again disposed of by the Hon'ble Minister by order dated 15/3/2010 remanding the matter back to the Collector. Insofar as the said remand is concerned, the Hon'ble Minister directed the Authority concerned to re-consider the matter regarding suspension of the licence of the petitioner by also taking into consideration the facts, which have transpired after the order came to be passed by the Commissioner, namely, the breaches that have been committed during the pendency of the proceedings. As indicated above, aggrieved by the said order dated 15/3/2010 insofar as it directs that on remand, the Authority to consider the matter as above, that the instant petition has been filed. 4. It is required to be noted that insofar as order of the Commissioner is concerned, the said order was not challenged by the Authorities or no suo motu steps were taken for revising the said order under Section 138 of the said Act. Hence, insofar as revocation of the suspension of the CL-III licence, which was set aside by the Commissioner by his order dated 8/5/2007, is concerned, the same had become final between the parties. It is the petitioner, who had carried the matter in the revision under Section 138 of the said Act to the Hon’ble Minister against imposition of fine of Rs.25,000/- and, therefore, the remand, if any, could have been in respect of that aspect only and it was not open for the Hon'ble Minister to remand the matter in terms of the directions that have been made in the impugned order, namely, that it would be open for the Collector to re-consider the matter as regards suspension of licence as also as regards imposition of fine as also permitting him to take into consideration the breaches, which have transpired during the pendency of the proceedings before the Authorities. In my view, the remand would have to be restricted to the consideration of imposition of fine of Rs.25,000/- on the petitioner and it would be for the Collector to pass appropriate order in that regard on remand. In my view, the remand would have to be restricted to the consideration of imposition of fine of Rs.25,000/- on the petitioner and it would be for the Collector to pass appropriate order in that regard on remand. 5. Insofar as subsequent breaches, if any committed by the petitioner, it would always be open to the Authorities to proceed against the petitioner in accordance with law. In that view of the matter, the impugned order of the Hon'ble Minister is modified to the extent of the directions insofar as the scope of remand is concerned, the remand would be restricted only to the consideration of the imposition of fine of Rs.25,000/- on the petitioner and no other issue would be gone into. 6. Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs. 7. The learned Additional Government Pleader to communicate the aforesaid development to the concerned Authorities. Ordered accordingly.