Case Note & Summary
The petitioner, Shreyash Kharule, was granted permission to operate an FL/BR/II license by the Divisional Deputy Commissioner, State Excise, Amravati, and was issued a license on 05.06.2023. The respondent no.4, a housing society, made representations dated 08.06.2023 and 13.06.2023 to various authorities objecting to the functioning of the license. The Collector, Amravati, issued a notice on 06.07.2023 calling upon the petitioner to submit his say, and after hearing, by order dated 18.08.2023, cancelled the license. The petitioner challenged this order by way of a writ petition under Article 226 of the Constitution of India. The main legal issue was whether the Collector, as the Appellate Authority under Section 137 of the Maharashtra Prohibition Act, 1949, could exercise powers on representations without a formal appeal being filed under the Bombay Prohibition (Appeal) Rules, 1953. The petitioner argued that the Collector acted without jurisdiction as no appeal was preferred. The respondents contended that the Collector had power to cancel the license. The court held that the power under Section 137 can only be exercised when an appeal is filed in the manner prescribed by the Rules of 1953, and not on representations. The impugned order was quashed and set aside, and the writ petition was allowed.
Headnote
A) Administrative Law - Exercise of Statutory Power - De-hors the Scheme - The Collector, acting as Appellate Authority under Section 137 of the Maharashtra Prohibition Act, 1949, cannot cancel a license on the basis of representations without a formal appeal filed under the Bombay Prohibition (Appeal) Rules, 1953 - Held that the power under Section 137 must be exercised only when an appeal is preferred in the manner prescribed, and not suo motu or on representations (Paras 2, 4-6). B) Excise Law - Cancellation of License - FL/BR/II License - The petitioner was granted a license on 05.06.2023; the respondent no.4 society made representations; the Collector issued notice and by order dated 18.08.2023 cancelled the license - Held that the Collector acted without jurisdiction as no appeal was filed under the Rules of 1953 (Paras 3-6). C) Constitutional Law - Writ Jurisdiction - Article 226 - The High Court can issue a writ of certiorari to quash an order passed without jurisdiction - Held that the impugned order dated 18.08.2023 is quashed and set aside (Paras 6-7).
Issue of Consideration
Whether an Authority conferred with statutory power can exercise the same de-hors the scheme under which it is required to be exercised; whether the Appellate Authority under Section 137 of the Maharashtra Prohibition Act, 1949 could exercise powers on representations received without the action complained of being challenged in the manner prescribed by the Bombay Prohibition (Appeal) Rules, 1953.
Final Decision
The writ petition is allowed. The impugned order dated 18.08.2023 passed by the Collector, Amravati, is quashed and set aside. Rule is made absolute in those terms. No order as to costs.
Law Points
- Statutory power must be exercised within the scheme of the Act
- Appellate Authority under Section 137 cannot act on representations without a formal appeal under Bombay Prohibition (Appeal) Rules
- 1953
- Writ of certiorari lies against orders passed without jurisdiction
