JUDGMENT :

A.S. CHANDURKAR, J.

1. RULE. Rule made returnable forthwith and heard the learned counsel for the parties.

2. The question that arises for consideration in this writ petition filed under Article 226 of the Constitution of India is whether an Authority conferred with the statutory power can exercise the same in a manner de-hors the scheme under which the same is required to be exercised. To put it otherwise, whether the Appellate Authority under Section 137 of the Maharashtra Prohibition Act, 1949 (for short ‘the Act of 1949’) could exercise such powers on representations received without the action complained of being challenged in the manner prescribed by the Bombay Prohibition (Appeal) Rules, 1953 (for short ‘the Rules of 1953’).

3. The facts relevant for consideration are that the petitioner was granted permission to operate FL/BR/II license by the Divisional Deputy Commissioner, State Excise, Amravati. On the basis of this permission, he was issued a license on 05.06.2023 pursuant to which the petitioner started operating the same. At the behest of the respondent no. 4, a housing Society, representation dated 08.06.2023 was addressed to the Superintendent, Central Excise raising an objection to the functioning of the said license in the premises of the society. It also made another representation on 13.06.2023 to the Hon’ble Deputy Chief Minister with copies to the Collector and other Authorities. In the light of these representations, the Collector issued a notice on 06.07.2023 calling upon the petitioner was to submit his say on the representations dated 08.06.2023 and 13.06.2023. The said hearing was scheduled on 11.07.2023. The petitioner submitted his response on the said date justifying the grant of said license to him. By the order dated 18.08.2023 the Collector proceeded to exercise powers under Section 56 and 137(1) of the Act of 1949 and cancelled the license dated 23.05.2023 issued to the petitioner. Being aggrieved the petitioner has challenged the aforesaid order.

4. Shri J.B. Kasat, learned counsel for the petitioner submitted that it was not permissible for the Collector to have exercised powers under Section 137(1) of the Act of 1949 ignoring the provisions of the Rules of 1953. Under the said Rules, an elaborate procedure was prescribed stipulating the manner in which an appeal under Section 137 of the Act of 1949 could be filed. The Society merely submitted two representations raising a grievance with regard to grant of license to the petitioner. It did not prefer any appeal under Section 137 of the Act of 1949 though it was aggrieved by the same. In absence of any appeal having been preferred it was therefore not permissible for the Collector to have invoked such powers and to have thereafter cancelled the license granted to the petitioner. Placing reliance on the decision in Chief Information Commissioner vs. State of Manipur, (2011) 15 SCC 1 it was submitted that the statutory power conferred by Section 137 of the Act of 1949 ought to have been exercised only in the manner prescribed. As regards availability of an alternate remedy of preferring an appeal for challenging the order passed by the Collector, it was submitted that notwithstanding the availability of such remedy, this Court was not precluded from exercising discretion in an appropriate case especially when the Collector had exercised jurisdiction patently in breach of the Rules of 1953. In that regard, he referred to the decision in Harbanslal Sahnia and Another vs. Indian Oil Corporation Ltd. and Others, (2003) 2 SCC 107. It was thus submitted that the order dated 18.08.2023 be set aside and the petitioner’s license be restored.

5. Ms N.P. Mehta, learned Additional Government Pleader for the respondent nos. 1 to 3 opposed the aforesaid submissions. According to her, after giving due opportunity and notice to the petitioner, the impugned order came to be passed. Since there was due compliance with the principles of natural justice, ther