Supreme Court has held that wherever the Legislature intended an enquiry to be held before taking any action by necessary implication or in express manner, provision is made to allow an aggrieved person to be heard. Generally speaking, excepting where an order is to be reversed qua a particular person, there is no provision for a hearing. The nature and extent of regulatory power of the State Government and the mode of their exercise are matters of policy. 

 

 

THROUGH the judgement in the two writ petitions – Anand Chandrakumar Jaiswal v.The State of Maharashtra through the Principal Secretary, Home Department, Mumbai & others, and Mayur Madan Jaiswal against the same respondents, Justice Nitin W Sambre and Justice Mrs Vrushali V. Joshi, at the Nagpur Bench of the Bombay High Court, have held on May 5, 2025, that the remedy of appeal or other remedies expressly provided under the statute are not available under the statute (Maharashtra Prohibition Act, 1949), as the order under section 142(1) or 142(2) attains finality qua the Statute.

 

In such an eventuality, according to the High Court, the only remedy available to the person aggrieved is to take recourse to the constitutional remedies, namely, writ under Article 226/227 of the Constitution of India. In view of this legal position, The HC’s decision is that the preliminary objection raised by the Government Pleader, D V Chauhan with AGP Nitin Rao regarding the maintainability of the writ petition is rejected and that the petition challenging the order passed under section 142(1) of the Act of 1949 is maintainable before the division bench only. In both the petitions, the order impugned is passed in exercise of powers under section 142(2) of the Maharashtra Prohibition Act, 1949 whereby the Police Officer has exercised powers so as to close down the liquor shops. At the outset, it was required to determine the issue of about the maintainability of the petition before the division bench in view of the objection raised by Government Pleader appearing with the Assisstant Government Pleader.

 

The same was needed to be determined in the wake of the decision by the Single Judge in the WP No. 2707 of 2024 (Buldhana District Licenced Liquor Association v. the State of Maharashtra) decided on April 23, 2024, wherein it was held that in case of the order under Section 142 of the Act of 1949 is questioned, the challenge is maintained before the Single Judge. For deciding the objection raised by the State Government about the maintainability, it was a condition pre-requisite to find out whether the impugned order was a judicial, quasi-judicial or an administrative order. The Supreme Court decision in the case –Province of Bombay v. Kusaldas S Advani (1950 SCC OnLine SC 26), there is discussion at length about the distinction between the judicial and administrative Acts and has further laid down certain tests for ascertaining whether the act of a statutory body is a quasi-judicial or an administrative act. The following conditions have to be complied with for an act to fit into the definition of quasi-judicial act: (1) The body of persons must have legal authority; (2) the authority should be given to determine the questions affecting the rights of subjects; and (3) they should have a duty to act judicially.

 

From this definition it is imperative to interpret the word ‘a duty to act judicially’ through certain tests namely, (1) whether there is lis inter partes; (whether there is a claim (or proposition and an Opposition; (3) whether the decision is to be founded on the taking of evidence or on affidavits; (4) whether the decision is actuated in whole or in part by questions of policy or expediency and if so, whether in arriving at the decision, the statutory body has to consider proposals and objections and evidence; and (5) whether in arriving at its decision, the statutory body has only to consider policy and expediency and at no stage has before it any form of lis. It is a settled position of law that the licence to run a business of liquor is a privilege and not a right (Rajendrakumar Shailendrakumar Dixit v. State of Maharashtra-(2016) 6 Mh.L.J.290). Plain reading of section 142 of the Act of 1949 does not mandate compliance with the principles of natural justice. The powers vested in the Collector under section 142(1) are temporary powers. The Collector has to form an opinion based on the material placed before it so as to maintain public peace. The premises is operated pursuant to the licence granted under the Act of 1949 for such period or time as is specified in the order. Section 142(2) of the Act of 1949 conferd powers in Executive Magistrate or Police Officer to close and keep closed for such a period as he/they think fit a place from where the sale of intoxicant or hemp is carried out in case if a riot or unlawful assembly is imminent or takes place.

 

Such power also appears to be contingent and the consequences are non-permanent or in alternate or temporary. At this point, it is of essence to consider the observations of the Concerned Judges in the decision –Radheshyam Khare and another v. State of Madhya Pradesh – 1958 SCC OnLine SC 43 (para 41), wherein the Supreme Court has held that wherever the Legislature intended an enquiry to be held before taking any action by necessary implication or in express manner, provision is made to allow an aggrieved person to be heard. Generally speaking, excepting where an order is to be reversed qua a particular person, there is no provision for a hearing. The nature and extent of regulatory power of the State Government and the mode of their exercise are matters of policy and expediency and indicate the taking of an administrative action by the State Government and not the exercise of any judicial power. An order under Section 142 is in the nature of emergency action which envisages closing of any place for specified time or period, in which any intoxicant or hemp is sold so as to protect public peace. Section 142(2) also contemplates a prompt action by the Police Officer or Executive Magistrate in the cases of riots or unlawful assembly.

 

There is no duty to act judicially because in arriving at its decision, the Collector Police Officer or the Executive Magistrate has to consider only the policy and expediency and at no stage has before it any form of lis. The HC division bench did not agree with the conclusion arrived at by the Single Judge in the case of Buldhana District Licensed Liquor Association, that the order under section 142 is a quasi-judicial order. As this Single Judge order runs counter to the authoritative pronouncement made in the decision by the Supreme Court in The Radheshyam Khare’s case, which was not brought to the notice of the Single Judge, his view is rendered per incuriam.