This Over Enthusiasm And Over Zealousness May Cost Her Career Itself: Bombay HC Sets Aside State Excise Commissioner’s Order Overruling Mumbai Collector [Read Judgment]

In a sharp rebuke to Maharashtra State Excise Commissioner Dr Ashwini Joshi, the Bombay High Court has made several strong observations against her and cautioned her saying that she was not above the law.

A division bench of Justices SC Dharamadhikari and BP Colabawalla passed a 30-page judgment earlier last month in a batch of petitions filed by licensed wine and liquor shop owners whose premises were ordered to be sealed by the State Commissioner for Excise for home delivery of liquor.

Case Background

According to the Excise department, the said shop owners were in violation of terms and conditions under which the license was issued as well as the Maharashtra Prohibition Act, 1949.

Thus, on oral orders of the State Excise Commissioner, a flying squad sealed the premises of 33 liquor shops in Mumbai city, suburbs, Thane and Palghar districts on August 11, 2018.  A show-cause notice was issued to the concerned shop owners on August 27, 2018.

Aggrieved by the Commissioner’s order, 15 of the 33 shop owners approached the Collector (suburban) seeking interim relief. The Collector, after hearing the petitioners, firstly, passed an interim order and thereafter a   final order accepting the petitioners' stand and dropping the show cause notice.

However, the Commissioner, on oral directions issued to her subordinate, Superintendent of Excise, called upon him to file appeal before herself and stayed the interim order of the Collector, that too, without hearing the petitioners and this resulted in the seal not being removed and the premises being under lock and key of the authorities. Thus, the premises or the establishments could not be re­opened.

Submissions

Senior Counsel AV Anturkar appeared on behalf of the petitioner shop owners and submitted that the petitioners may not possess a fundamental right to sell or deal in liquor, but under the privilege granted by the State, if the licences have been issued and they are in operation, then, so long as they are not cancelled or terminated in accordance with law, there is no power to direct sealing of the premises.

Further, the mandate of Article 14 of the Constitution of India has been grossly violated by such high-handed action. The Collector having passed an order in favour of the petitioners, that authority cannot then be humiliated or embarrassed by calling upon the subordinate to such appellate authority, namely, the Superintendent of State Excise, to challenge his orders before the Commissioner. This means that the Commissioner has ensured that the injustice to the petitioners is perpetuated and that because her oral directions have not been abided by the concerned statutory functionary, out of sheer vengeance, she has heard the appeal and interlocutory applications on that very date and stayed the order impugned before her.  This is a mockery of the rule of law, Anturkar said.

Senior Advocate Ravi Kadam appeared on behalf of Dr Joshi and other respondents from the State Excise department. He argued that the Commissioner had been given the power to control liquor license under Section 9 of the Maharashtra Prohibition Act.

Referring to the appeal filed before the Commissioner by her subordinate, the Superintendent, Kadam said it was not reasonable to presume that just because the Commissioner passed a few oral directions against the petitioners earlier that she would not give them a fair hearing in their appeal. He also argued that no order should be passed against the Commissioner’s order that was challenged by the petitioners as it would lead to the appeal being infructuous.

Judgment

After examining the facts at hand, the court expressed its displeasure on the conduct of the Commissioner and set aside the impugned order:

“This scene should have been avoided by the Commissioner. This is not the first occasion that we are reminding the respondent Commissioner that she is not above the law. She may have all good intentions, but this is not the way to implement the law.  She should be aware that justice should not only be done, but seen to be done.  The Appellate powers are conferred by the Statute and Appeal is not an empty formality. Therefore, when she has stayed the final order of the Collector on the very date it was passed and that too without hearing the petitioners, we cannot sustain and continue that order.  That order is passed in gross violation of the principles of natural justice and fair play.  We set aside the order passed by the Commissioner on 17th September 2018.  That order is quashed and set aside.”

Although Dr Joshi’s advocate Ravi Kadam assured the court that the Commissioner would not repeat such an act and should be given another chance, the court further observed:

“This over­enthusiasm and over-zealousness may cost her career itself. In such circumstances, when we do not   uphold the objections of the petitioners and transfer the proceedings to some other equally ranked and competent official, we remind the fourth respondent that she is expected to perform her duty strictly in accordance with law, uninfluenced by any oral or written order, interim or final, issued by her in the past at the instance of the Superintendent.”

Finally, the court ordered the seal to be removed from liquor shops with a valid license, whereas holders of licenses that were cancelled or suspended were reminded that they had the appropriate appellate remedies before them.