Kavita Shamrao Gadekar and Others v. The State of Maharashtra & Ors
Case Details
2025:BHC-AUG:26718 WP-257-2024.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 257 OF 2024 Kavita Shamrao Gadekar and Others ...Petitioners Versus The State of Maharashtra & Ors ...Respondents *** • Mr. V. D. Sapkal, Senior Advocate a/w Mr. Amit Gadekar i/by Mr. S. R. Sapkal, Advocate for the Petitioners • Mr. V. M. Chate, AGP for the Respondents/State • Mr. P. R. Katneshwarkar, Senior Advocate i/by Mr. I. D. Maniyar, Advocate for the Respondent No. 6 *** CORAM : R. M. JOSHI, J DATE : SEPTEMBER 24, 2025 PER COURT : 1. This Petition takes exception to the communication dated 30.03.2012 by Desk Officer, Home Department, Mantralaya, Mumbai to Commissioner, State Excise, Mumbai transferring the liquor license bearing No. FL-II and CL/FL/TOD-3, order dated 11.04.2023 passed by the Excise Minister, Government of Maharashtra in Application No. FLR1221/R.A.16/Raushu-2 upholding the order passed by the Commissioner, order of State Excise Commissioner remanding the matter back to the Collector, Chhatrapati Sambhajinagar to verify the fact whether the premises of license hold valid Umesh PAGE 1 OF 11 WP-257-2024.odt occupancy certificate or completion certificate of the construction granted by the competent Authority and order dated 04.09.2023 passed by the District Collector (Excise) in FLR-112012/6227/ADHI/1930. An injunction is also sought restraining the Respondent No. 6 to run and operate liquor shop from premises situated at Gajanan Residency, Nandadeep Housing Society till hearing of the Petition. 2. Learned Senior Counsel appearing for the Petitioners, at the outset, makes grievance that citizens, like Petitioners, are required to run from pillar to post in order to ventilate their grievance against the illegalities committed. It is his submission that since year 2012, residents of premises wherein the liquor shop is situated are agitating the issue before Excise Authorities for the purpose of transfer/removal of the said shop from the premises in question. It is his submission that the Authorities till date have dodged the decision on the issue and has made Petitioners to approach various authorities, without any outcome. He drew attention of the Court to the documents on record, which according to him, Umesh PAGE 2 OF 11 WP-257-2024.odt indicate that a grievance was made in respect of obtainment of the transfer of liquor license by Respondent No. 6. It is his submission that on various ground such as, obtainment of liquor license on the basis of false documents, nuisance caused to the people of the area, etc were raised. It is his submission that order were came to be passed by the various Authorities
Legal Reasoning
making prima facie observations that the documents on the face show that the transfer of license has been sought are fabricated. However, in spite of the same, till date no order is passed. In the facts of the case, he seeks setting aside of the orders impugned and direction for removal of Respondent No. 6 from the premises in question. He has also placed reliance on the order dated 12.03.2024 passed by the Divisional Deputy Commissioner, State Excise, Chhatrapati Sambhajinagar directing the transfer of a beer shop from same society wherein the Respondent No. 6 is conducting business of sale of liquor. It is his submission by referring to the said document that there is a finding recorded herein that the license holder of the said shop has obtained the license on the basis of false and bogus map and that the said shops are created Umesh PAGE 3 OF 11 WP-257-2024.odt in spaces reserved for parking. 3. Learned Senior Counsel appearing for contesting Respondent raised objection to the maintainability of the Petition on the ground that the challenge to the order of transfer of liquor license of year 2012 is miserably time barred. Similarly, it is his contention that the Petitioners have no locus standi to challenge the order of shifting of liquor license in favour of Respondent No. 6. Without prejudice to these submissions, it is his contention that for want of locus standi, the issue sought to be agitated cannot be gone into nor it would be within the jurisdiction of the Authorities to conduct an inquiry as sought. He argued that for the purpose of transfer of the liquor license, no completion certificate is required and as such, there is no propriety in calling upon any Authority to conduct an inquiry about the same. It is his submission that in exercise of powers under Articles 226 and 227 of the Constitution of India, it may not be open for this Court to issue direction to the Collector to comply with the order of the Minister and order to that effect could only be Umesh PAGE 4 OF 11 WP-257-2024.odt obtained from the Minister. It is his submission that in any case the issue with regard to the transfer of license cannot be determined at this stage of the proceedings. It is his submission that even if this Court finds it to be a fit case to set aside the order passed by the Collector, there is no question of the order of transfer of liquor license have been set aside/disturbed in any manner whatsoever. He submits that the order dated 12.03.2024 is passed not in respect of Respondent No. 6 and that he is not aware as to whether this order is challenge/set aside etc. It is his submission that in any case the said order has no bearing on the present case. 4. Learned AGP appearing for Respondents/State sought to support the order passed by the Collector by stating that the Minister has directed the Municipal Corporation to decide the issue with regard to the veracity of the documents and, therefore, the order passed is correct. 5. At the outset, it needs to be recorded that this Court finds substance in the contention of learned Senior Counsel for the Petitioners that the Umesh PAGE 5 OF 11 WP-257-2024.odt grievance/complaints of the Petitioners are not dealt with appropriately by the Authorities and none of the Authorities is taking a final decision in the matter. At this stage, it would be relevant to take note of the order passed by the Commissioner, State Excise allowing the Appeal partially and remanding the matter back to the Collector. In the said order, the Collector is directed to reverify the fact that whether the premises of license hold a valid occupancy certificate or completion certificate of the construction granted by the competent Authority. It is further directed that in case there is no valid occupancy certificate, the Collector is directed to correspond with the competent Authority to take suitable decision. The said order was challenged before the Hon’ble Minister, State Excise under Section 138 of the Maharashtra Prohibition Act. The Hon’ble Minister, by passing order dated 11.04.2023, has observed that in the present case prima facie it appears that the license holder has submitted bogus documents. It is further held that in case it is found that these documents are bogus, which are used for the transfer of the license, appropriate action is necessary in this regard. Since the Commissioner, State Umesh PAGE 6 OF 11 Excise has directed the verification of the said fact, the Hon’ble Minister passed following order: WP-257-2024.odt ¼1½ ¼2½ ¼3½ vkns’k iqufj{k.k vtZnkj ;kaph fouarh vekU; dj.;kr ;sr vkgs- vk;qDr] jkT; mRiknu ‘kqYd] egkjk”Vª jkT;] eqacbZ ;kaps fnukad 17-02-2021 jksthps vkns’k dk;e dj.;kr ;sr vkgsr- iMrkG.kh ftYgkf/kdkjh] N=irh laHkkthuxj ;kauh lnj vuqKIrhP;k Lfkykarj.klkBh vuqKIrh/kkjdkus lknj dsysY;k dkxni=kaph lacf/kr izkf/kdj.kkdMs d:u ;k iMrkG.khvarh ;s.kÚ;k fu”d”kZkP;k vk/kkjs rlsp] izpfyr fu;ekrhy rjrwnh fopkjkr ?ksÅu] loZ lacaf/krkauk lquko.kh nssÅu] lnj izdj.kh nksu efgU;kr ;ksX; rks fu.kZ; ?;kok- lnjgw lquko.khosGh iqufj{k.k vtZnkjkl R;kaps Eg.k.ks ekaM.;kph la/kh ns.;kr ;koh- 6. The above order clearly indicates that the Collector, Chhatrapati Sambhajinagar was directed to verify the documents from/with the concerned Authorities i.e., Municipal Corporation and after hearing the concerned Authorities, a decision was directed to be taken. Perusal of the order passed by the Collector, however, indicates that he completely ignored the directions issued to him by the Hon’ble Minister and he proceeded to pass following order: 1½ egkuxjikfydk vkSjaxkckn gs bekjr cka/kdkekph oS/krk Bjfo.ksckcr l{ke izkf/kdj.k vkgs- R;keqGs rdzkjnkj Jh- fgaEerjko f’kans o brj ;kauh xtkuu dkWEysDl] glqZy] Umesh PAGE 7 OF 11 WP-257-2024.odt vkSjaxkckn ;k bekjrhps HkksxoVk izek.ki= cukoV vlY;kckcrph rdzkj l{ke izkf?kdj.kkdMs djkoh- 2½ es-lkbZ okbZu ‘kkWi] ,Q,y&2 dz- 29 o lh,y,QvhvksMh&3 dz- 29] ‘kkWi ua- 3] IykWV ua- 01] l- ua- 179@1] xtkuu dkWEIysDl] glqZy] vkSjaxkckn ;k vuqKIrhP;k vuq”kaxkus rdzkjnkj Jh- fgaEerjko f’kans ;kauh dsysY;k rdzkjhps vuq”kaxkus fn- 30@03@2016 jksthps ftYgkf/kdjh] vkSjaxkckn ;kaps vkns’k dk;e dj.;kr ;sr vkgsr- 3½ rdzkjnkj o rsFkhy jfgok’kh ;kauk es- lkbZ okbZu ‘kkWi] ,Q,y- 2 o lh,y,QvhvksMh&3 dz- 29] ‘kkWi ua- 3] IykWV ua- 01] l-ua- 179@1] xtkuu dkWEIysDl] glqZy] vkSjaxkckn ;k nqdkukPkk =kl gksr vlsy rj rdzkjnkj o ifjljkrhy jfgok’kh ;kauh ‘kklu vkns’k fn- 25@03@2008 o ‘kklu vf/klwpuk fn- 12@02@2009 e/khy rjrwnhuqlkj dk;Zokgh vuqljkoh- izdj.kh rdzkjnkjkP;k vtZ fudkyh dk<.;kr ;sr vkgs- 7. It is necessary to take note of the fact that the Collector was not directed by Excise Commissioner or Hon’ble Minister to decide anything else but to verify the documents submitted for transfer of liquor license. The Collector decides everything else but the issue asked to be decided. He proceeds to observe the alleged irregularities of the complainant and confirms the order of transfer of license. 8. It is sought to be argued on behalf of the Respondent No. 6 as well as learned AGP that it is not Umesh PAGE 8 OF 11 WP-257-2024.odt within the jurisdiction of the Collector to ascertain the validity of the documents pertaining to the Corporation. In this regard, it is pertinent to note that the order passed by the Hon’ble Minister upholding the order passed by the Commissioner, State Excise has not been challenged by Respondent No. 6 so also on behalf of the State and hence, they are bound by these orders. It would not be permitted now to be argued even on behalf of the State that the Collector was not required to ascertain the said fact when it was directed specifically so by the Hon’ble Minister. 9. It is also sought to be contended on their behalf that the Municipal Corporation was directed to ascertain the veracity of the documents. These submissions have no merit in view of the fact that the order passed by the Commissioner, State Excise as well as Hon’ble Minister indicate that a direction was there to the Collector to decide the issue after verifying the said documents from the Municipal Corporation. 10. In the facts of the case, this Court is constrained to observe that the Collector has avoided to decide the said issue and has determined the Umesh PAGE 9 OF 11 WP-257-2024.odt different issues, which were never referred to him for decision. Pertinently, the Collector was not called upon to decide or confirm the transfer of the license, he does so without any Authority for reason best known to him. This Court, therefore, finds substance in the grievance made by the Petitioners against the Collector that the order is not bona fide. 11. It was sought to be argued that this Court would not issue any direction to the Collector for compliance of order of Hon’ble Minister and such direction, if any, will have to be issued from Hon’ble Minister. As observed herein above, herein this case the Petitioners, who are citizens of this country, are required to run from pillar to post to ventilate their grievance and having regard to the history of litigation and time lapsed now, this Court finds no reason or justification to relegate the Petitioners back to the Hon’ble Minister for seeking any direction. Suffice it to say that order passed by the Hon’ble Minister is not taken exception to by the Respondent and hence, there would not be any difficulty to issue directions to the Collector, Chhatrapati Sambhajinagar Umesh PAGE 10 OF 11 WP-257-2024.odt to conduct an inquiry as per the directions issued by the Hon’ble Minister. 12. Accordingly, Collector, Chhatrapati Sambhajinagar is directed to conduct the said inquiry within a period of two months from today. This Court is confident that the Collector would appreciate the orders passed by the Commissioner, State Excise and Hon’ble Minister and would decide the exact issue referred and will not exceed the jurisdiction and defy directions issued by him to decide the issue. 13. In view of above directions and as the issue with regard to fabrication of record is required to be decided by the Competent Authorities and not by the writ Court for the first time, this Court finds no reason to pass any other order sought by the Petitioners. Petition, therefore, stands disposed of with following directions. a. b. Collector, Chhatrapati Sambhajinagar is directed to conduct the said inquiry within a period of two months from today. The report/findings be forwarded to the appropriate authority to take decision on grievance made by the Petitioners. Umesh PAGE 11 OF 11 (R. M. JOSHI, J.)