Monday, 4 February 2019

Whether High court can stay an order before it is passed by subordinate court?

 In our considered view, the High Court ought
not to have issued directions of this nature. It was
legally not permissible to do so. Indeed, the High
Court by issuing such directions which are
essentially passed in anticipation of the order being
passed by an appellate authority, interfered with the
judicial independence of an appellate authority in
deciding the appeals in accordance with law.
73) It is the sole discretion of the appellate authority
under the Act to decide the appeal based on the facts
involved in the appeal, and legal provisions which

eventually result in passing a judicial order. No
higher court can pass such directions merely on
anticipation of an order being passed by an appellate
authority. It is only after the order is passed, that
the aggrieved person has a legal right to take
recourse to a legal remedy available in law against
such order by approaching to a higher forum and
pray for grant of appropriate relief against such
order.
74) This stage in this case is yet to arrive. The High
Court should not have, therefore, preempted
the
passing of any order of the appellate authority, while
deciding the Writ Petition. It is a settled law that the
Court can stay or quash only those orders, which are
impugned in the lis before it. A fortiori, the Court
cannot stay or/and quash the orders in anticipation,
before they are passed. We cannot, therefore, uphold
such writ/directions issued by the High Court.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.126-156
OF 2019

Manish S. Pardasani Vs  Inspector State Excise, P1,Division, Mumbai(Suburbs)

Abhay Manohar Sapre, J.
Dated:January 7, 2019

1) Leave granted.
2) These appeals are filed against the final
judgment and order dated 05.10.2018 passed by the
High Court of Judicature at Bombay in Writ Petition
(Loding) Nos.3255, 3166, 3169, 3170, 3171, 3179,
3205, 32273233,
32353237,
3254, 32563258,
3263/2018, Writ Petition Nos.1064910657/
2018.
3) In order to appreciate the factual and legal
controversy involved in these appeals which lie in a
narrow compass, it is necessary to set out the
relevant facts hereinbelow.
4) The appellants [Writ Petitioners (15)] claim to be
the holders of licences issued by the Licensing
Authority under the provisions of the Maharashtra
2
Prohibition Act, 1949 (hereinafter referred to as “the
M.P. Act”) in their respective names. The appellants’
claim that they are engaged in the business of selling
liquor from their retail shops, which are situated in
Mumbai suburb.
5) On 10.08.2018, an FIR (Criminal Case No.408
of 2018) was registered by the State Excise
Department against the appellants inter alia for
undertaking home delivery of liquor on telephonic
orders being placed, and for commission of other
offences punishable under Sections 23, 24, 65(a) (e),
73, 74, 81, 83 and 90 of the M.P. Act.
6) This led to the sealing of the appellants’ liquor
shops on 11.08.2018 by the State Excise officials.
7) The Collector (Excise) issued show cause notices
on 27.8.2018 to the appellants setting out therein the
breaches of the licence conditions and violation of
certain provisions of the M.P. Act. The appellants
3
were directed to show cause as to why their licences
be not suspended/cancelled under Section 54 of the
M.P. Act.
8) The appellants filed their respective replies to
the show cause notices.
9) On 05.09.2018, the Collector (Excise) (licensing
authority) after hearing the appellants, passed an
interim order and directed desealing
of the
appellants’ shops on conditions contained therein.
10) The Superintendent of State Excise, Mumbai felt
aggrieved by the order dated 05.09.2018 of the
Collector (Excise), and filed appeal before the
Commissioner State Excise, Maharashtra State for
Mumbai being Appeal No.212/2018 under the M.P.
Act and questioned its legality and correctness.
11) The Commissioner State Excise in exercise of
her appellate powers on 05.09.2018 stayed the
4
operation of the interim order dated 05.09.2018
passed by the Collector (Excise).
12) The appeal is pending for final adjudication
before the Commissioner State Excise.
13) On 10.09.2018, the Collector (Excise) passed
the final order, whereby he directed the licencees to
pay Rs.50,000/as
compounding fees for the
breaches committed by the appellants.
14) Aggrieved by the order dated 10.09.2018, the
Superintendent State Excise filed an appeal before
the Commissioner State Excise being Appeal No.
221/2018 challenging the validity and correctness of
the order dated 10.09.2018 passed by the Collector
(Excise).
15) The Commissioner State Excise vide exparte
order 17.09.2018 stayed the operation of the order
dated 10.09.2018.
5
16) This appeal is also pending for its final disposal
before the Commissioner State Excise.
17) In this background of facts, and at this stage of
the proceedings, the appellants felt aggrieved by the
order dated 17.09.2018, and filed Writ Petitions
before the Bombay High Court.
18) In the two Writ Petitions, i.e., W.P.
No.3255/2018 and W.P. No.10650/2018, the
challenge was mainly to the sealing orders dated
11.08.2018, passed on oral directions of the 4th
respondent to the 2nd respondents (see prayer clause
(b) of W.P. No. 10650/2018 at page 169); and the
second Order dated 17.09.2018 passed by the
Commissioner State Excise. The other reliefs claimed
in the Writ Petitions were essentially consequential to
the main reliefs.
19) The appellants challenged the aforementioned
orders on legal grounds, including violation of the
6
statutory rules, which require a hearing being
granted to the licence holders. The writ petitioners
also contended that the conduct of the Commissioner
State Excise gave rise to apprehensions of bias. In
these circumstances, a prayer was made for the
appeals to be heard by another officer of equal rank.
20) The respondents (State and the Excise
Authorities) contested the Writ Petitions, and
defended the proceedings initiated against the
appellants, including the passing of interim exparte
orders in the prevalent circumstances. The plea of
bias was denied as being baseless and unwarranted.
21) By the impugned order, the High Court quashed
the order dated 11.08.2018, which directed sealing of
the liquor shops. The High Court also quashed the
exparte
interim order dated 17.09.2018 passed by
the Commissioner. The Commissioner State Excise
7
was directed to decide the appeals on merits in
accordance with law.
22) The High Court, however, while disposing of the
Writ Petitions has made serious observations and
passed adverse remarks in the manner in which the
Commissioner State Excise had dealt with the
appellants’ case, particularly the manner in which
exparte
interim orders were passed, and oral
directions issued to the subordinate officers. The
High Court went to the extent of issuing directions to
the Commissioner State Excise to act properly, and
in accordance with law in future, and refrain from
acting with high handedness, and exercise restraint
in the exercise of her judicial and administrative
powers/authority.
23) The High Court further issued a direction in
anticipation that if the Commissioner State Excise
eventually passes adverse orders against the
8
appellants with respect to the subject matter of the
appeal, then such order should not be given effect to
by the State Authorities for a period of four weeks
from the date of its communication to the appellants.
24) The Writ Petitioners being aggrieved by the
operative part of the impugned order which directed
the same Commissioner to hear their appeals, have
filed S.L.P. (C) Nos. 2798028010/
2018 before this
Court. Their main grievance is that the High Court
after having passed the adverse remarks and
strictures against the Commissioner State Excise on
her manner of functioning and passing exparte
interim orders, should have directed transfer of the
pending appeals (212/2018 and 221/2018) to
another appellate authority or the Commissioner
competent to hear such appeals rather than to allow
the same Commissioner to decide the appeals. The
appellants submitted that they have an apprehension
9
that they would not get a fair trial if the same
Commissioner State Excise hears the appeals.
25) The Commissioner State Excise was aggrieved
by the observations and adverse remarks made in the
impugned order against her personally, and has filed
S.L.P. (C) No. 29169/2018 in this Court. The
Commissioner State Excise has prayed for
expungement of the adverse remarks and strictures
passed by the High Court against her.
26) It was inter alia submitted that the exparte
interim orders were required to be passed in the
emergent situation, which had arisen by sale of
liquor by home delivery on telephonic instructions,
and purchase of liquor orders being placed through
the Internet. This according to the State was found in
flagrant violation of the statutory rules and the
conditions of the licence which inter alia stipulated
10
that the licencee shall carry on business of selling
liquor only at the licensed premises.
27) It was further submitted that Rule 6 of the
Bombay Prohibition (Appeal) Rules, 1953 only enjoins
upon the appellate authority to grant a reasonable
opportunity of hearing before the order is passed by
the appellate authority in the appeal which according
to Commissioner State Excise is yet to be passed for
its disposal.
28) In this backdrop, it was submitted that the
observations made by the High Court in the facts of
this case were not called for and, therefore, they be
expunged from the impugned order.
29) The aforesaid appeals were clubbed together for
their disposal.
30) The questions which arise for consideration in
these two appeals are:
11
31) First, whether the High Court was justified in
not directing transfer of the two appeals from the
Commissioner State Excise to some other
Commissioner State Excise or any other competent
appellate authority under the M.P. Act for their
disposal on merits ?
32) Second, whether the High Court was justified on
the facts arising in the case in making adverse
remarks and passing strictures against the
Commissioner State Excise ?
33) Third, whether the High Court was justified in
issuing directions in anticipation, ordering stay of the
operation of an adverse order against the Writ
Petitioners, even prior to it being passed by the
Commissioner State Excise in the pending appeals ?
34) We have heard learned Senior Counsel for all
the parties.
12
35) Having heard the learned counsel for the parties
and on perusal of the record of the case and written
submissions, we are inclined to dismiss the appeals
filed by the writ petitioners i.e. SLP Nos.2798028010/
2018 and allow the appeal, i.e., SLP
No.29169/2018 filed by Commissioner State Excise
(Dr. Smt. Ashwini Joshi).
36) In our considered opinion, the High Court has
rightly declined to transfer the pending appeals from
the Commissioner State Excise to any other
Commissioner State Excise or any other competent
appellate authority under the Act.
37) The High Court, however, having found that the
orders impugned in the writ petitions were not legally
sustainable, it should have only assigned the legal
reasoning in support of their conclusion and quashed
the impugned orders. In our view, the reasoning
assigned by the Courts to strike down or uphold the
13
action/order impugned in the lis must always be
confined to legal grounds, and none else. There was,
therefore, no need nor any occasion, much less
necessity for the High Court to have travelled beyond
their legal reasoning assigned and made adverse
remarks, and pass strictures against the appellate
authority i.e. the Commissioner State Excise and
direct her to act and behave in a particular manner
in discharge of her duties and dealing with the case.
38) The Commissioner State Excise being an
appellate authority under the M.P. Act had exercised
the appellate powers and had passed an exparte
interim stay order. The exercise of such appellate
power was required to be tested only in the light of
relevant legal parameters and not beyond it.
39) Merely because the writ petitioners made
allegations of personal bias to impugn the orders,
apart from raising legal grounds, the High Court
14
ought to have seen as to whether in the facts of this
case, it was really necessary to examine the plea of
“bias” for striking down the impugned orders, and, if
so, whether there is adequate material to sustain
such a plea.
40) The plea of bias, as is clear from the pleadings,
was founded essentially on an inference, which the
Writ Petitioners were trying to draw by pointing out
the manner in which the Commissioner State Excise
is alleged to have issued some oral directions to her
subordinates and had passed two exparte
interim
stay orders in the appeals against the appellants in
relation to the subjectmatter.
41) A litigant in order to seek relief in a court of law
is entitled to raise several grounds. These grounds
are usually based on facts and law governing the
subject, out of which, some are relevant and some
are vexatious. It is for the Court to decide as to which
15
ground is legally tenable, and it be made the basis to
decide the lis between the parties one way or the
other.
42) The grounds founded on law are always
preferred for deciding the lis arising between the
parties. Any discussion or/and the reasoning
assigned in support of the conclusion other than the
legal reasoning is otiose.
43) The plea of alleged “bias” against the appellate
authority is a plea permissible in law to impugn the
action/order. However, such a plea has to be founded
on substantial material qua the officer concerned
who acts in a quasijudicial
capacity.
44) Such a plea, if raised, must therefore be based
on adequate substantial material against such an
authority. If the lis can be decided on other legal
16
grounds, such plea should not be entertained, much
less upheld.
45) Every adverse order passed against a litigant is
injurious to a losing party. However, that does not
give him a right to attack the adverse order by
attributing bias against authority/Court qua him.
An adverse order, if it is found bad in law, is liable to
be setaside
on legal grounds. However, when there is
also an allegation of bias, it has to be supported by
adequate substantial material.
46) Coming now to the facts of the case at hand, we
find that the appellants (Writ Petitioners) in support
of their plea of bias against the Commissioner State
Excise had mainly placed reliance on three
circumstances: 47)
First, the Commissioner State Excise dealt with
the appellants’ case by issuing oral orders to the
17
subordinate authorities, which according to them
was not permissible.
48) Second, the Commissioner passed two interim
exparte
stay orders against the appellants in the
pending appeals, which it is alleged was indicative of
her adversity and bias against the appellants.
49) Third, the High Court had made some adverse
remarks in the past in some other writ petition
against the Commissioner State Excise when she was
in charge of a different post.
50) Insofar as the first circumstance relating to
giving of alleged oral directions by the Commissioner
State Excise to the subordinates is concerned,
though it was vehemently pressed by the Writ
Petitioners, the same does not warrant any
interference.
18
51) It is not possible to record a finding on such
factual issues on the basis of mere allegations made
in the pleadings.
52) The writ court does not hold an inquiry on
disputed facts. Such issues, in our opinion, could be
decided properly and in accordance with law by a fact
finding body where the parties would have got an
opportunity to lead evidence and explain the reasons.
53) It is for these reasons, we are of the view that
the High Court should have refrained from recording
any finding, much less make adverse remarks
against the Commissioner State Excise and her
subordinates.
54) Be that as it may, since the two impugned
interim orders passed by the Inspector Excise and
the Commissioner State Excise were otherwise held
legally unsustainable, and setaside
by the High
Court on other grounds, there was no need to go into
19
the question of “bias” and “oral instructions”. It had,
in our view, become academic.
55) So far as the second circumstance is concerned,
in our view, it has also no substance. One cannot
dispute that the Commissioner State Excise had
exercised her appellate powers under the Act for
passing an exparte
interim order to stay the
operation of the order of the Collector (Excise)
impugned in the appeal.
56) An appellate authority/Court is empowered in
law to grant or refuse exparte
stay, or/and set aside
or/and affirm the order impugned in the appeal. In
such an eventuality, an aggrieved person, in the first
instance, has a remedy to apply to the same appellate
authority/Court for setting aside the exparte
grant of
interim stay passed against him, or approach to the
higher judicial fora to challenge its legality. The
appellate authority or higher forum is empowered to
20
either vacate the interim stay or continue or modify
as the case may require. It depends upon the nature
of reliefs claimed, injury pleaded, urgency shown,
damage likely to suffer if the exparte
interim stay is
not granted etc. It would, therefore, vary from facts of
each case.
57) We are, therefore, unable to find any material
relied on by the appellants to infer the existence of
bias against the Commissioner State Excise, except
placing reliance on the manner in which she passed
the exparte
interim orders and oral instructions
against the appellants.
58) In our view, the passing of an exparte
order
would not constitute a plea of bias attributable
against the Commissioner State Excise qua the
appellants. It is a trite law that merely because an
order is adverse to a litigant, it would not by itself
21
constitute a plea of bias against the authority/Court
qua the aggrieved.
59) In the light of the foregoing discussion, we do
not find any merit in the two circumstances relied
upon by the appellants to sustain the plea of bias
against the Commissioner State Excise qua them.
60) Insofar as the third circumstance relied on by
the appellants is concerned, suffice it to say, it has
absolutely no substance. First, merely because some
observations were made by the High Court in the
past in some other case against the Commissioner
State Excise, when she was holding a different post,
can hardly be a ground to sustain a plea of bias qua
the appellants. Second, as rightly argued by the
learned Senior Counsel appearing for the
Commissioner State Excise, the case relied on was
22
entirely a different case and is still pending in appeal
before this Court.
61) In the light of the foregoing discussion, we are of
the considered opinion that the appellants (writ
petitioners) have failed to make out any case of bias
against the Commissioner State Excise qua them. In
this situation there is no justification in transferring
of the pending appeals from the Board of the
Commissioner State Excise to any other appellate
authority.
62) In view of the foregoing discussion, we find no
merit in the appeals filed by the Writ Petitioners.
Their appeals thus fail and are hereby dismissed with
cost of Rs.50,000/payable
to the State of
Maharashtra.
63) This takes us to decide the appeal arising out of
S.L.P.(C) 29169/2018 filed by Dr. Mrs. Ashwini
Joshi, Commissioner State Excise, seeking
23
expungement of the adverse remarks and strictures
passed against her in the impugned order.
64) At the outset, we consider it apposite to take
note of the law laid down by this Court on the issue
which is the subject matter of this appeal.
65) The question as to what should be the role of
the higher judiciary in making adverse remarks and
passing strictures against the judicial/administrative
authorities, whose order/action is under challenge
has been the subject matter of several decisions of
this Court. This Court in these decisions has held
that the higher judiciary must avoid as far as
possible from making any disparaging harsh remarks
and strictures against any judicial/administrative
officer while examining their action/order impugned
in the judicial proceedings.
66) It is apposite to refer to a passage from the
decision of this Court in Awani Kumar Upadhyay vs.
24
High Court of Judicature of Allahabad & Ors.,
(2013) 12 SCC 392, wherein this Court has laid down
a rule of caution in following words:
“11. It is made clear that we are not
undermining the ultimate decision of the
High Court on merits. However, we are
constrained to observe that the higher courts
every day come across orders of the lower
courts which are not justified either in law or
in fact and modify them or set them aside.
Our legal system acknowledges the fallibility
of the Judges, hence it provides appeals and
revisions. Inasmuch as the lower judicial
officers mostly work under a charged
atmosphere and are constantly under
psychological pressure and they do not have
the facilities which are available in the higher
courts, we are of the view that the
remarks/observations and strictures are to be
avoided particularly if the officer has no
occasion to put forth his reasonings. Further,
if the passage complained of is wholly
irrelevant and unjustifiable and its retention
on the records will cause serious harm to the
persons to whom it refers and its expunction
will not affect the reasons for the judgment
or order, request for expunging those
remarks are to be allowed. We, once again,
reiterate that harsh or disparaging remarks
are not to be made against judicial officers
and authorities whose conduct comes into
consideration before the courts of law unless
it is really for the decision of the case as an
integral part thereof.”
25
67) Keeping in view the aforementioned law laid
down by this Court in the case of Awani Kumar
Upadhyay (supra), and further in the light of our
detailed discussion made above, which has resulted
in dismissal of the appeals filed by the writ
petitioners, we are inclined to expunge all the adverse
and disparaging remarks made, and strictures
passed by the High Court against Dr. Ashwini Joshi
(appellant in Civil Appeal @ SLP (C) No. 29169/2018)
in the impugned order.
68) In our view, these disparaging
remarks/strictures coupled with the directions of
how one should behave and pass orders was
unnecessary in the facts of this case, and nor they
were germane for deciding the lis between the parties.
Such remarks/strictures, therefore, should not have
26
been made. They are accordingly expunged and stand
deleted from the impugned order.
69) In view of the foregoing discussion, the appeal
filed by Dr. Mrs. Ashwini Joshi is allowed. The
impugned order is modified accordingly as indicated
above.
70) This takes us to examine one more question,
which arises in this case, but was not argued by any
of the parties in these proceedings.
71) We find that the High Court while disposing of
the Writ Petitions also passed the following
writ/directions in Para 20 which reads as under:
“Since an apprehension is expressed and a
serious one by the petitioners, we direct that
in the event the fourth respondent passes
any orders adverse to the petitioners, then
such orders shall not take effect for a period
of four weeks from the date they are
communicated to the petitioners. Since we
have set aside the fourth respondent’s
interim order and for the present not
expressed any opinion on the contentions
raised before us, interest of justice demands
that the sealing of the premises by the
27
authorities should be set aside. Therefore,
the Superintendent or other functionary is
directed to remove the seal, lock and key
placed on the premises forthwith. This order
will ensure to the benefit of such of the
petitioners whose licenses are subsisting and
are not cancelled. The other licences, which
are no longer in operation on account of their
termination, the holders thereof cannot avail
the benefit of this order. However, we do not
express any opinion on the remedies that are
available to them and they can avail them as
observed and held in the above paragraphs.”
(Emphasis Supplied)
72) In our considered view, the High Court ought
not to have issued directions of this nature. It was
legally not permissible to do so. Indeed, the High
Court by issuing such directions which are
essentially passed in anticipation of the order being
passed by an appellate authority, interfered with the
judicial independence of an appellate authority in
deciding the appeals in accordance with law.
73) It is the sole discretion of the appellate authority
under the Act to decide the appeal based on the facts
involved in the appeal, and legal provisions which

eventually result in passing a judicial order. No
higher court can pass such directions merely on
anticipation of an order being passed by an appellate
authority. It is only after the order is passed, that
the aggrieved person has a legal right to take
recourse to a legal remedy available in law against
such order by approaching to a higher forum and
pray for grant of appropriate relief against such
order.
74) This stage in this case is yet to arrive. The High
Court should not have, therefore, preempted
the
passing of any order of the appellate authority, while
deciding the Writ Petition. It is a settled law that the
Court can stay or quash only those orders, which are
impugned in the lis before it. A fortiori, the Court
cannot stay or/and quash the orders in anticipation,
before they are passed. We cannot, therefore, uphold
such writ/directions issued by the High Court.

75) In view of the foregoing discussion, the
writ/direction issued by the High Court in Para 20
quoted above is set aside.
76) Before parting, we hasten to observe that we
have not made any observation on the merits of the
controversy, which is the subject matter of two
appeals (212/2018 and 221/2018) pending before
the Commissioner, State Excise.
77) Indeed, we had made it clear to the learned
senior advocates, who argued the case with fairness
that we would confine our discussion and reasoning
only to the issues urged in support of the two appeals
and would not touched the merits of the case which
are subjectmatter
of pending appeals.
78) The effect of the impugned order and this
Court’s order is that two pending appeals (212/2018
and 221/2018) will now be heard and decided by the
Commissioner State Excise on merits, in accordance

with law and without being influenced by any
observations made by this Court and the High Court
in the impugned order. The appeals will finally be
adjudicated preferably within three months from the
receipt of the order passed by this Court.
………………………………..J.
(ABHAY MANOHAR SAPRE)
..………………………………J.
(INDU MALHOTRA)
New Delhi,
January 7, 2019

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