High Court
Legal Reasoning
1 904-WP.3002-2024, oral jud.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.3002 OF 2024Smt. Geeta Narayan Kshirsagar,Age:-44 years, Occu:-Business,R/o Patoda, Tq. Patoda, Dist Beed,Through Power of Attorney HolderNamely Apparao S/o Bhonba Salgar,Age:-78 years, Occu:-Private service,R/o Patoda, Tq. Patoda, Dist. Beed … Petitioner. Versus1.The State of Maharashtra Through the Secretary of State ExciseDuty Department, Mantralaya,Mumbai-32.2.The Commissioner of State Excise,Maharashtra State, Fort, Mumbai-23.3.The Collector, (State Excise Duty)Department, Beed, Palwan Chowk,Dhanora Road, Beed.4.Smt. Satyabhama Rangnath @ Baburao Shinde,Since deceased through Her L.Rs.4A.Ankush S/o Rangnath Shinde,Age:-64 years, Occu:- Nil,R/o Manur, Tq. Shirur (Kasar), Dist. Beed.4B.Vimal W/o Gangadhar Kshirsagar,Age:-60 years, Occu:- Household,R/o Bale Peer Beed, Tq. And Dist. Beed.4C.Sangita W/o Sandip Rajmane,Age:-45 years, Occu:- Majalgaon, Tq. Majalgaon. Dist. Beed.4D.Appasaheb S/o Rangnath Shinde,Age:-40 years, Occu:- Nil,R/o Manur, Tq. Shirur (Kasar),Dist. Beed… Respondents. 2 904-WP.3002-2024, oral jud.odt...Advocate for Petitioner : Mr. Tungar H. V.AGP for Respondents-State : Mr. P. D. Patil.Advocate for Respondent Nos.4A to 4D : Mr. C. V. Dharurkar....CORAM : S. G. MEHARE, J.DATE :22.03.2024ORAL JUDGMENT :- 1.Rule. Rule made returnable forthwith and heard finallyby consent of the parties.2.The petitioner has impugned the order of the Hon'bleMinister, State Excise, Maharashtra, passed in case No.CL-0622/Pra.Kra.146/RA-18/SED-3, dated 14.10.2023.3.The brief facts of the case were that the presentrespondents/legal heirs of original respondent No.4 are thesons and daughters of Rangnath Laxman Shinde. He had apartnership with one Nanda Narayan Kshirsagar, the mother ofthe present petitioner. They had an unregistered writtenpartnership deed dated 27.07.1990. Accordingly, respondentNo.3 had issued a country liquor licence in their joint names aspartners. However, on 29.11.1996, there was a newpartnership, and the petitioner replaced her mother, NandaNarayan Kshirsagar. The partnership firm started the business. 3 904-WP.3002-2024, oral jud.odtThereafter, on 18.12.1996, the original partner, Rangnath,relinquished his rights of the partnership business of thecountry liquor in favour of the petitioner. He has also sworn inan affidavit to that effect. Rangnath and Geeta's statementswere also recorded before the Sub Inspector (Excise).Thereafter, the Sub Inspector submitted a proposal to deletethe name of deceased Rangnath from the license. Pursuant tothe proposal, the Collector Excise, by order dated 24.12.1996,informed deceased Rangnath that his request to delete hisname from the license had been accepted. After that, thepetitioner continued the business in her sole name. Rangnathdied in 2006. Narayan (the father of the petitioner) died in2018. 4.It was the case of original respondent No.4 that, till thedeath of Narayan, he was regularly paying the share ofRangnath. However, after Narayan's death, the payment of theshare was stopped. Hence, deceased respondent No.4 inquiredwith the office of the Excise and learnt that fraud was playedwith Rangnath. Rangnath never disclosed that he hadrelinquished the partnership in favour of the petitioner.Therefore, they moved an application before the ExciseCollector on 12.03.2018 and 11.10.2018. The Excise Collector 4 904-WP.3002-2024, oral jud.odtentertained the said application and passed the orders on06.12.2019 in case No.CLR-112018/554/Supdt./1365. Heobserved that on 17.12.1996, the name of the petitioner wasinserted as a partner in the license. However, she did notcomply with the age criteria. He also recorded the findings thatthe deceased respondent No.4 raised the objection to the orderof the Collector dated 17.12.1996 after 22 years. She had toprefer the appeal under Section 137(2) of the MaharashtraProhibition Act (‘the Act’ for short) to the Commissioner(Excise), State of Maharashtra. Finally, he ordered theexamination of the signatures of Rangnath, from thehandwriting expert, on the application dated 29.11.1996, hissignature on the statement dated 01.12.1996, his signature onthe partnership deed dated 29.11.1996 and on the applicationdated 18.12.1996. He granted liberty to deceased respondentNo.4 to prefer an appeal against the order of the DistrictCollector (Excise) dated 17.12.1996 to the Commissioner, StateExcise Department, State of Maharashtra, with an applicationto condone the delay.5. Dissatisfied with the said order, the deceased respondentNo.4 preferred the appeal under Section 137(2) of the Actbefore the Commissioner of State Excise, Maharashtra State, 5 904-WP.3002-2024, oral jud.odtMumbai. The Commissioner again recorded some observationson the age of petitioner Geeta. He has specifically observedthat unless and until the Competent Court decides whetherfraud has been committed, the criminal action is a subsequentprocedure. The complainant, who feels that she and her latehusband have been cheated, may take up the matter beforeappropriate forum. He has specifically observed that theevidence on record does not prove that there is any mischief.6. Against the order of the Commissioner dated 11.04.2022,deceased respondent No.4 again preferred a revision before theHon'ble Minister (State Excise), who has passed the impugnedorder. The Hon'ble Minister, recording the facts and mentioningthe orders of the High Court, finally allowed the revisionapplication without quashing and setting aside the orders ofthe Collector and the Commissioner. He directed the Collectorto add the legal heirs of the original licence holder, and theCollector should proceed. 7.Learned counsel for the petitioner raised the firstquestion that the Hon'ble Minister exceeded his jurisdiction.The original order of the Collector deleting the name ofdeceased Rangnath dated 17.12.1996 is still in existence andwas never impugned. He would submit that the Hon'ble 6 904-WP.3002-2024, oral jud.odtMinister, exceeding its jurisdiction, has directed the CollectorExcise to enter the names of the legal heirs of Rangnath. Therespondent had no case before the Authorities that Geeta is afictitious woman. Geeta is the alias name of Shubhangi. Therespondent cannot force her to appear in person. She has aright to appear through the Power of Attorney. The criminalcase about playing fraud with Rangnath and the State is sub-judiced before the Court. The order of the Hon'ble Minister waslike a review. There is no provision for review in the Act.Unless the powers are conferred by law, the Authority cannotreview. The remedy, if any, respondent No.4 wanted to exercisewas the appeal under Section 137 of the Act. The gist of hisargument is that unless the competent Authority examines theoriginal order deleting the name dated 17.12.1996, the orderspassed by the Collector, Commissioner and the Hon'bleMinister are meaningless. It was a futile attempt. The Hon'bleMinister has merely referred to the Government Resolutiondated 19.08.1989. He submits that he searched for the saidG.R. on the website but did not find it. Perhaps it may be aG.R. dated 6th July 1989. During the arguments, the learnedadvocate Vikram Undre, sitting in the Court Hall, rendered theassistance to the Court by supplying the subsequentGovernment Resolution dated 20.08.1996. The Court must
Legal Reasoning
7 904-WP.3002-2024, oral jud.odtappreciate his assistance, which helped the Court to arrive atthe correct judgment. By the said, G.R. G.R. dated 06.07.1989was superseded. The G. R. will be discussed at the relevantpart of the order. He submits that since the order is withoutjurisdiction and against the law, it be quashed and set aside. 8.Per contra, the arguments of learned counsel Mr.Dharurkar for the legal heirs of original respondent No.4revolves around the fictitious existence of a lady, namely Geeta.He has vehemently argued that the petitioner played a fraudnot only with his family but also with the Government. Under afictitious name, the original partner is running the business.The original partner, Nanda, knew that two liquor licenses withthe same name were not allowed. She had another licence.Therefore, she has projected a fictitious woman, Geeta. Geeta,in fact, is not in existence. From time to time, she was directedto appear in person, but she avoided appearing in personbefore the Authorities. It is sufficient to believe that fraud hasbeen played. He further argued that Geeta was deliberatelyappearing through the POA. Another inference that may bedrawn from the conduct of Geeta was that Shubhangi thedaughter of Nanda was minor at the relevant time, and sheknew well that a minor under 21 is not entitled to claim the 8 904-WP.3002-2024, oral jud.odtliquor licence. Hence, a fictitious woman, namely Geeta, wasborn on 01.06.1980. This has been done conveniently, keepingthe Government in the dark. A cognizance should be taken ofsuch serious misdeeds. Soon after knowing about the fraudplayed with the family of respondent No.4, they immediatelyrushed to the Collector. Therefore, there was no delay in takingan action. The alleged shop, run under the disputed liquorlicence, has been closed down for the last three years. He alsoadded that detailed submissions were made before theCollector about the fraud played. He also strenuously arguedthat fraud vitiates everything. The facts and circumstances ofthe case are prima facie sufficient to accept the submissions ofdeceased respondent No.4 and her family. Therefore, theHon'ble Minister, in his solitary jurisdiction, correctly passedthe impugned order directing the Collector to proceed withadding the legal heirs of Rangnath to a liquor licence.9.Learned counsel for the petitioner, in reply, argued thatthe Collector, Commissioner and Hon'ble Minister cannotrecord the findings unless those are tested under the provisionsof law. Objecting to the competence of the Hon'ble Minister, herelied on the case of Patel Narshi Thakershi Vs.Pradyumansinghji Arjunsinghji ; LEX (SC) 1970 3 67. He 9 904-WP.3002-2024, oral jud.odtfurther relied on the case of Ms. Pamela P. Braganza Vs. Mr.Finlay Braganza ; 2006 (3) All MR 696, and argued thatpartnership is an agreement between the parties to carry onthe business. No party can impose a partner on another partyto run a business. He would argue that the partnership wasdissolved long ago, during Rangnath's lifetime. During hislifetime, he never raised objections. After 1996, the licence wasexclusively in the name of Geeta. He never approached theAuthority to renew the licence in his name. Therefore, thestory put forth by respondent No.4 that after the death ofNarayan, the receiving share was stopped, and they made theinquiry and rushed to the appropriate Authority is imaginary. 10 After a Marathon argument by both learned counsels, thefirst question is how the alleged fraud could be determined. Toprove fraud, respondent No.4 has already lodged a criminalcase against the petitioner, her mother and two others. A crimehas been registered with Police Station Shivaji Nagar, Beed. 11.The documents placed on record are old documents.Admittedly, the partnership was unregistered. However, theacts done by the Officer in the discharge of his duty arepresumed to be correct and genuine. Such an act cannot bedoubted at once. It does not mean that the acts of the public 10 904-WP.3002-2024, oral jud.odtservant done in discharge of the duties are always genuine,true and correct. But, it requires thorough investigation. TheCollector Excise, in his power, directed the examination of thesignature of Rangnath on the alleged documents, through thehandwriting expert. He passed the order that the order of theCollector dated 17.12.1996 is appealable. Be that as it may, thefact remains that the order dated 24.12.1996 is still in forceand existence. The learned counsel for respondent No.4 iscorrect in stating that the jurisdiction of the Civil Court underthe Act has been barred. However, the provisions of the Actreveals that there is an appeal and revision against the order ofthe Collector or the Commissioner. Every order of the Collectoris appealable under Section 137(2) of the said Act before theCommissioner, and the order of the Commissioner is revisablebefore the State/Hon'ble Minister. Unless the quasi-judicialorder is quashed, no authority, including the Hon'ble Minister,has the power to pass the order like an impugned order. Thelaw binds every Authority in a democratic State of India. EveryOfficer empowered by law should exercise their powers withinthe four corners of the law. No one is bigger than the law.Therefore, the impugned order appears arbitrary. The law hasalready been taken care of by providing the remedy of appealand revision. Though the Collector has specifically observed 11 904-WP.3002-2024, oral jud.odtthe availability of the remedy, respondent No.4 challenged theorder until the Hon'ble Minister. In the facts and circumstancesof the case, there appears substance in the argument of thelearned counsel for the petitioner that the impugned order is inthe form of review. 12.The Hon'ble Supreme Court, in the case of Patel (supra),has observed that it is well-settled that the power to review isnot inherent. It must be conferred by law either specifically orby necessary implication. The opening line of the judgmentwas significant. The Hon'ble Supreme Court opened paragraphNo.1 with the observation that this case illustrates theconsequence of entrusting judicial work to those who had nojudicial training and background. In this case, also neither thelaw has been correctly applied nor the facts and circumstancesof the case have been properly examined. Just the petitionercame before the Hon'ble Minister, and he passed the impugnedorder. The law applicable to the facts and circumstances of thecase is not tested. 13.As far as the G.R. dated 06.07.1989 is concerned, it wassuperseded by G. R. dated 20.08.1996. The said G.R. conferredthe exclusive powers on the Collector Excise to deal with theissue of a partnership between two independent persons and 12 904-WP.3002-2024, oral jud.odtinterse the family members in bringing the legal heirs of thelicense holder. It has been specifically directed to the Collectorthat he should scrupulously observe the directions issued in thesaid G.R. and take the decision at his level. He should not sendsuch matters to the Commissioner, State Excise Department orGovernment for orders. The facts of this case are a little bitdifferent. On the basis of the documentation, the name of thedeceased Rangnath was deleted from the licence, and theCollector had passed the order and addressed the letter to thedeceased Rangnath that his request to delete his name hasbeen accepted. Whether this order is fake is a question of factthat the competent Authority may decide. Learned counsel forthe petitioner is correct that partnership is an agreementbetween the parties, and no party can impose a partner onanother party to run the business. It is a contract, and thepartnership is governed under the Partnership Act. 14.Learned counsel for respondent No.4 submits thatpursuant to the impugned order, the amount of Rs.14,00,000/-(Rupees Fourteen Lacs) was deposited with the Collector StateExcise, Beed. The Court is tilting towards setting aside andquashing the impugned orders. Therefore, the position of theright to withdraw is made clear in the order. 13 904-WP.3002-2024, oral jud.odt15.The above discussion led this Court to conclude that theHon'ble Minister's impugned order is illegal, perverse andarbitrary. Hence, the following order :O R D E R(i)Writ Petition is allowed.(ii)The impugned order of the Hon'ble Minister (StateExcise) passed in Case No.CL-0622/Pra.Kra.146/RA-18/SED-3, dated 14.10.2023, stands quashedand set aside.(iii)It is made clear that the observations in this caseare limited for the purpose of this writ petition. (iv)Any observation regarding the fraud as alleged byrespondent No.4/her legal heirs, if put forconsideration before any Authority, such Authorityshould not be influenced by this order. TheAuthority should make an independent decisionthereon.(v)So far as the right to appeal is concerned, theDistrict Collector has already intimated respondent 14 904-WP.3002-2024, oral jud.odtNo.4/her legal heirs about the right to prefer theappeal. (vi)Respondent No.4/legal heirs are not precludedfrom exhausting the legal remedy available underthe provisions of law.(vii)Pursuant to the impugned judgment and order, theamount has been deposited, if any, with theCollector, State Excise, Beed, and the Collector mayrefund it to the appropriate person/s if the lawpermits.(viii)The rule is made absolute in the above terms.(ix)No order as to costs. (S. G. MEHARE, J.)...vmk/-