MANISH S. PARDASANI (M/S WINE KORNDER) ETC. ETC. versus INSPECTOR STATE EXCISE, P-1, DIVISION, MUMBAI (SUBURBS) & ORS. ETC. ETC. on 7 January 2019

[2019] 1 S.C.R.

AMANISH S. PARDASANI

(M/S WINE KORNDER) ETC. ETC.

v.

INSPECTOR STATE EXCISE, P-1, DIVISION,

B MUMBAI (SUBURBS) & ORS. ETC. ETC.

(Civil Appeal Nos. 126-156 of 2019)

JANUARY 07, 2019

[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]CAdministrative Law:

Bias – FIR against appellants (holders of licence for sellingliquor) – For commission of offences under MaharashtraProhibition Act, 1949 – Sealing of liquor shops of the licencees –Licencing authority by interim order directed de-sealing – TheDappellate authority (Commissioner State Excise) stayed the order ofde-sealing – Thereafter, Licencing authority, by final order directedthe licencees to pay Rs. 50,000/- as compounding fee – The appellateauthority ex-parte stayed the operation of final order – Writ petitionby licencees – High Court quashed the order of sealing and alsoEthe exparte stay order of the appellate authority and directed theappellate authority to decide the case on merit – High Court alsomade adverse remarks against the appellate authority – Appeal bythe licencees taking the plea that in view of the adverse remarksagainst the appellate authority High Court should have transferredthe case to another appellate authority – Appeal also filed byFappellate authority seeking expunction of adverse remarks – Held:Licencees have failed to make out any case of bias against theappellate authority – Therefore, there is no justification intransferring the case to another appellate authority – The appealsof licencees dismissed with cost of Rs. 50,000/- – Adverse remarksGand strictures against the appellate authority were unnecessary inthe facts of the present case, nor were they germane for decidingthe lis between parties – The remarks are expunged and stand deletedfrom records.

Bias – Allegation of – Against quasi-judicial authority –HPermissibility – Held: Plea of alleged bias is permissible in law to impugn the action/order of quasi-judicial authority – However, suchplea has to be founded on substantial material – If the lis can bedecided on other legal grounds, such plea should not be entertained– Every adverse order passed against a litigant is injurious to alosing party – However, that does not give a right to attack theadverse order by attributing bias against the authority.

Jurisdiction:

Jurisdiction of writ court – Held: Writ Court does not holdinquiry on disputed facts.

Adverse Remarks/Strictures:

Adverse remarks by higher judiciary – Against judicial/administrative officer while examining their action/order impugnedin the judicial proceedings – Held: Higher judiciary must avoid asfar as possible from making such remarks.

Judgment/Order:

Stay of order in anticipation – Propriety of – High Court whiledisposing of writ petition, directed appellate authority to decide theappeals on merit – Also directed that if the appellate authority passedthe order adverse to the writ petitioners, such orders were not totake effect for a particular period – Held: A Court can stay orquash only these orders which are impugned in the lis before it –Court cannot stay or quash the orders in anticipation – Such orderis interference with the judicial independence of an appellateauthority – It is only after the order is passed, the aggrieved haslegal right to take recourse to legal remedy.

Disposing of the appeals, the Court

HELD: 1.1 The High Court has rightly declined to transferthe pending appeals from the Commissioner State Excise to anyother Commissioner State Excise or any other competentappellate authority under the Act. [Para 36][322-B]

1.2 The reasoning assigned by the Courts to strike downor uphold the action/order impugned in the lis must always beconfined to legal grounds, and none else. There was, therefore,no need nor any occasion, much less necessity for the High Court A

B

C

D

E

F

G

H

Conclusion

Ato have travelled beyond their legal reasoning assigned and madeadverse remarks, and pass strictures against the appellateauthority i.e. the Commissioner State Excise and direct her toact and behave in a particular manner in discharge of her dutiesand dealing with the case. [Para 37][322-C-D]

B1.3 The Commissioner State Excise being an appellateauthority under the Maharashtra Prohibition Act, 1949 hadexercised the appellate powers and had passed an ex-parte interimstay order. The exercise of such appellate power was required tobe tested only in the light of relevant legal parameters and notbeyond it. [Para 38][322-E]C

1.4 Merely because the writ petitioners made allegationsof personal bias to impugn the orders, apart from raising legalgrounds, the High Court ought to have seen as to whether in thefacts of the case, it was really necessary to examine the plea of“bias” for striking down the impugned orders, and, if so, whetherDthere is adequate material to sustain such a plea. The plea ofbias, as is clear from the pleadings, was founded essentially on aninference, which the Writ Petitioners were trying to draw bypointing out the manner in which the Commissioner State Exciseis alleged to have issued some oral directions to her subordinatesand had passed two ex-parte interim stay orders in the appealsEagainst the appellants in relation to the subject-matter. [Paras39-40][322-F-G]

1.5 A litigant in order to seek relief in a court of law isentitled to raise several grounds. These grounds are usually basedon facts and law governing the subject, out of which, some areFrelevant and some are vexatious. It is for the Court to decide asto which ground is legally tenable, and it be made the basis todecide the lis between the parties one way or the other. [Para41][322-H; 323-A]

1.6 Every adverse order passed against a litigant is injurious Gto a losing party. However, that does not give him a right to attackthe adverse order by attributing bias against authority/Court quahim. An adverse order, if it is found bad in law, is liable to beset-aside on legal grounds. However, when there is also anallegation of bias, it has to be supported by adequate substantialmaterial. [Para 45][325-D-E]H

1.7 The plea of alleged “bias” against the appellate authorityis a plea permissible in law to impugn the action/order. However,such a plea has to be founded on substantial material qua theofficer concerned who acts in a quasi-judicial capacity. If the liscan be decided on other legal grounds, such plea should not beentertained, much less upheld. [Paras 43, 44][325-C-D]

1.8 The writ court does not hold an inquiry on disputedfacts. Such issues, could be decided properly and in accordancewith law by a fact finding body where the parties would have gotan opportunity to lead evidence and explain the reasons. TheHigh Court should have refrained from recording any finding,much less make adverse remarks against the Commissioner StateExcise and her subordinates. [Paras 52, 53][324-C]

1.9 Since the two impugned interim orders passed by theInspector Excise and the Commissioner State Excise wereotherwise held legally unsustainable, and set-aside by the HighCourt on other grounds, there was no need to go into the questionof “bias” and “oral instructions”. [Para 54][324-D]

1.10 An appellate authority/Court is empowered in law togrant or refuse ex-parte stay, or/and set aside or/and affirm theorder impugned in the appeal. In such an eventuality, an aggrievedperson, in the first instance, has a remedy to apply to the sameappellate authority/Court for setting aside the ex-parte grant ofinterim stay passed against him, or approach to the higher judicialfora to challenge its legality. The appellate authority or higherforum is empowered to either vacate the interim stay or continueor modify as the case may require. It depends upon the nature ofreliefs claimed, injury pleaded, urgency shown, damage likely tosuffer if the ex-parte interim stay is not granted etc. It would,therefore, vary from facts of each case. [Para 56][324-F-G]

1.11 There is no material to infer the existence of bias againstthe Commissioner State Excise, except placing reliance on themanner in which she passed the ex-parte interim orders and oralinstructions against the appellants. [Para 57][324-H; 325-A]

1.12 Merely because some observations were made by theHigh Court in the past in some other case against theCommissioner State Excise, when she was holding a different A

B

C

D

E

F

G

H

Apost, can hardly be a ground to sustain a plea of bias qua theappellants. The case relied on was entirely a different case and isstill pending in appeal before this Court. [Para 60][325-D]

1.13 The appellants (writ petitioners) have failed to makeout any case of bias against the Commissioner State Excise quaBthem. In this situation there is no justification in transferring ofthe pending appeals from the Board of the Commissioner StateExcise to any other appellate authority. Their appeals thus failand are dismissed with cost of Rs. 50,000/- payable to the Stateof Maharashtra. [Paras 61, 62][325-E-F]

C2. The higher judiciary must avoid as far as possible frommaking any disparaging harsh remarks and strictures against anyjudicial/administrative officer while examining their action/orderimpugned in the judicial proceedings. The disparaging remarks/strictures coupled with the directions of how one should behaveand pass orders was unnecessary in the facts of the present case,Dand nor they were germane for deciding the lis between theparties. Such remarks/strictures, therefore, should not have beenmade. All the adverse and disparaging remarks made, andstrictures passed by the High Court against the CommissionerState Excise are expunged. [Paras 65, 68][326-B; 327-B]EAwani Kumar Upadhyay v. High Court of Judicature ofAllahabad & Ors. (2013) 12 SCC 392 : [2013] 3SCR 416 – relied on.

3.1 The High Court while disposing of the Writ Petitionsand directing Commissioner State Excise to decide the appealsFon merit also directed that in the event she passed any ordersadverse to the writ petitions then such orders shall not take effectfor a period of four weeks from the date they were communicatedto the writ petitioners. The High Court ought not to have issueddirections of this nature. [Paras 71, 72][327-D, 328-A-B]

G3.2 The High Court by issuing such directions which areessentially passed in anticipation of the order being passed by anappellate authority, interfered with the judicial independence ofan appellate authority in deciding the appeals in accordance withlaw. It is the sole discretion of the appellate authority under theAct to decide the appeal based on the facts involved in the appeal,H

and legal provisions which eventually result in passing a judicialorder. It is only after the order is passed, that the aggrievedperson has a legal right to take recourse to a legal remedyavailable in law against such order by approaching to a higherforum and pray for grant of appropriate relief against such order.The Court can stay or quash only those orders, which areimpugned in the lis before it. A fortiori, the Court cannot stay or/and quash the orders in anticipation, before they are passed.Therefore, such writ/directions issued by the High Court, cannotbe upheld. [Paras 72, 73 and 74][328-A-E]

Case Law Reference

[2013] 3 SCR 416

relied onPara 66

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 126-156 of 2019.

From the Judgment and Order dated 05.10.2018 of the High Courtof Judicature at Bombay in Writ Petition (Lodging) Nos. 3255, 3166,3169, 3170, 3171, 3179, 3205, 3227, 3228, 3229, 3230, 3231, 3232, 3233,3235, 3236, 3237, 3254, 3256, 3257, 3258 and 3263 of 2018 and WritPetition Nos. 10649, 10650, 10651, 10652, 10653, 10654, 10655, 10656and 10657 of 2018.

WITH

Civil Appeal No. 157 of 2019.

A. N. S. Nadkarni, ASG, Ranjit Kumar, Jayant Bhushan, MukulRohtagi, Sr. Advs., Nikhil Sakhardande, Vinay Navare, Mehul M. Gupta,Ms. Gwen Kartika, Ms. Abha R. Sharma, Ms. Shubra Swami, PrasenjitKeswani, Ms. Veena B. Thadani, Vishal B. Thadani, Satyajit Saha,Raghvendra Pratap Singh, Ms. Devika Khanna, Mrs. V. D. Khanna,Ketan Paul, Ms. R. Varghese, Tushar Bhushan, Nishant R.Katneshwarkar, Ms. Deepa Kulkarni, Ms. Suvrna Ganu, Anoop Kandari,Advs. for the appearing parties.

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. These appeals are filed against the final judgment and orderdated 05.10.2018 passed by the High Court of Judicature at Bombay in A

B

C

D

E

F

G

H

AWrit Petition (Loding) Nos.3255, 3166, 3169, 3170, 3171, 3179, 3205,3227-3233, 3235-3237, 3254, 3256-3258, 3263/2018, Writ PetitionNos.10649-10657/2018.

3. In order to appreciate the factual and legal controversy involvedin these appeals which lie in a narrow compass, it is necessary to set outBthe relevant facts hereinbelow.

4. The appellants [Writ Petitioners (15)] claim to be the holders oflicences issued by the Licensing Authority under the provisions of theMaharashtra Prohibition Act, 1949 (hereinafter referred to as “the M.P.Act”) in their respective names. The appellants’ claim that they areCengaged in the business of selling liquor from their retail shops, whichare situated in Mumbai suburb.

5. On 10.08.2018, an FIR (Criminal Case No.408 of 2018) wasregistered by the State Excise Department against the appellants interalia for undertaking home delivery of liquor on telephonic orders beingDplaced, and for commission of other offences punishable under Sections23, 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 on11.08.2018 by the State Excise officials.

7. The Collector (Excise) issued show cause notices on 27.8.2018Eto the appellants setting out therein the breaches of the licence conditionsand violation of certain provisions of the M.P. Act. The appellants weredirected 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 causeFnotices.

9. On 05.09.2018, the Collector (Excise) (licensing authority) afterhearing the appellants, passed an interim order and directed de-sealingof the appellants’ shops on conditions contained therein.

10. The Superintendent of State Excise, Mumbai felt aggrievedGby the order dated 05.09.2018 of the Collector (Excise), and filed appealbefore the Commissioner State Excise, Maharashtra State for Mumbaibeing Appeal No.212/2018 under the M.P. Act and questioned its legalityand correctness.

11. The Commissioner State Excise in exercise of her appellatepowers on 05.09.2018 stayed the operation of the interim order dated05.09.2018 passed by the Collector (Excise).

12. The appeal is pending for final adjudication before theCommissioner 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 compoundingfees for the breaches committed by the appellants.

14. Aggrieved by the order dated 10.09.2018, the SuperintendentState Excise filed an appeal before the Commissioner State Excise beingAppeal No. 221/2018 challenging the validity and correctness of theorder dated 10.09.2018 passed by the Collector (Excise).

15. The Commissioner State Excise vide ex-parte order17.09.2018 stayed the operation of the order dated 10.09.2018.

16. This appeal is also pending for its final disposal before theCommissioner 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 filedWrit 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 dated11.08.2018, passed on oral directions of the 4th respondent to the 2ndrespondents (see prayer clause (b) of W.P. No. 10650/2018 at page169); and the second Order dated 17.09.2018 passed by the CommissionerState Excise. The other reliefs claimed in the Writ Petitions wereessentially consequential to the main reliefs.

19. The appellants challenged the afore-mentioned orders on legalgrounds, including violation of the statutory rules, which require a hearingbeing granted to the licence holders. The writ petitioners also contendedthat the conduct of the Commissioner State Excise gave rise toapprehensions of bias. In these circumstances, a prayer was made forthe appeals to be heard by another officer of equal rank.

20. The respondents (State and the Excise Authorities) contestedthe Writ Petitions, and defended the proceedings initiated against theappellants, including the passing of interim ex-parte orders in the prevalent A

B

C

D

E

F

G

H

Acircumstances. The plea of bias was denied as being baseless andunwarranted.

21. By the impugned order, the High Court quashed the orderdated 11.08.2018, which directed sealing of the liquor shops. The HighCourt also quashed the ex-parte interim order dated 17.09.2018 passedBby the Commissioner. The Commissioner State Excise was directed todecide the appeals on merits in accordance with law.

22. The High Court, however, while disposing of the Writ Petitionshas made serious observations and passed adverse remarks in the mannerin which the Commissioner State Excise had dealt with the appellants’Ccase, particularly the manner in which ex-parte interim orders werepassed, and oral directions issued to the subordinate officers. The HighCourt went to the extent of issuing directions to the Commissioner StateExcise to act properly, and in accordance with law in future, and refrainfrom acting with high handedness, and exercise restraint in the exerciseof her judicial and administrative powers/authority.D

23. The High Court further issued a direction in anticipation that ifthe Commissioner State Excise eventually passes adverse orders againstthe appellants with respect to the subject matter of the appeal, then suchorder should not be given effect to by the State Authorities for a periodof four weeks from the date of its communication to the appellants.

E

24. The Writ Petitioners being aggrieved by the operative part ofthe impugned order which directed the same Commissioner to hear theirappeals, have filed S.L.P. (C) Nos. 27980-28010/2018 before this Court.Their main grievance is that the High Court after having passed theadverse remarks and strictures against the Commissioner State ExciseFon her manner of functioning and passing ex-parte interim orders, shouldhave directed transfer of the pending appeals (212/2018 and 221/2018)to another appellate authority or the Commissioner competent to hearsuch appeals rather than to allow the same Commissioner to decide theappeals. The appellants submitted that they have an apprehension thatGthey would not get a fair trial if the same Commissioner State Excisehears the appeals.

25. The Commissioner State Excise was aggrieved by theobservations and adverse remarks made in the impugned order againsther personally, and has filed S.L.P. (C) No. 29169/2018 in this Court.

H

The Commissioner State Excise has prayed for expungement of theadverse remarks and strictures passed by the High Court against her.

26. It was inter alia submitted that the ex-parte interim orderswere required to be passed in the emergent situation, which had arisenby sale of liquor by home delivery on telephonic instructions, and purchaseof liquor orders being placed through the Internet. This according to theState was found in flagrant violation of the statutory rules and theconditions of the licence which inter alia stipulated that the licenceeshall 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 areasonable opportunity of hearing before the order is passed by theappellate authority in the appeal which according to Commissioner StateExcise is yet to be passed for its disposal.

28. In this backdrop, it was submitted that the observations madeby 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 twoappeals are:

31. First, whether the High Court was justified in not directingtransfer of the two appeals from the Commissioner State Excise to someother Commissioner State Excise or any other competent appellateauthority under the M.P. Act for their disposal on merits ?

32. Second, whether the High Court was justified on the factsarising in the case in making adverse remarks and passing stricturesagainst the Commissioner State Excise ?

33. Third, whether the High Court was justified in issuing directionsin anticipation, ordering stay of the operation of an adverse order againstthe Writ Petitioners, even prior to it being passed by the CommissionerState Excise in the pending appeals ?

34. We have heard learned Senior Counsel for all the parties.

35. Having heard the learned counsel for the parties and on perusalof the record of the case and written submissions, we are inclined to A

B

C

D

E

F

G

H

Adismiss the appeals filed by the writ petitioners i.e. SLP Nos.27980-28010/2018 and allow the appeal, i.e., SLP No.29169/2018 filed byCommissioner State Excise (Dr. Smt. Ashwini Joshi).

36. In our considered opinion, the High Court has rightly declinedto transfer the pending appeals from the Commissioner State Excise toBany other Commissioner State Excise or any other competent appellateauthority under the Act.

37. The High Court, however, having found that the ordersimpugned in the writ petitions were not legally sustainable, it should haveonly assigned the legal reasoning in support of their conclusion and quashedCthe impugned orders. In our view, the reasoning assigned by the Courtsto strike down or uphold the action/order impugned in the lis must alwaysbe confined to legal grounds, and none else. There was, therefore, noneed nor any occasion, much less necessity for the High Court to havetravelled beyond their legal reasoning assigned and made adverseremarks, and pass strictures against the appellate authority i.e. theDCommissioner State Excise and direct her to act and behave in a particularmanner in discharge of her duties and dealing with the case.

38. The Commissioner State Excise being an appellate authorityunder the M.P. Act had exercised the appellate powers and had passedan ex-parte interim stay order. The exercise of such appellate powerEwas required to be tested only in the light of relevant legal parametersand not beyond it.

39. Merely because the writ petitioners made allegations ofpersonal bias to impugn the orders, apart from raising legal grounds, theHigh Court ought to have seen as to whether in the facts of this case, itFwas really necessary to examine the plea of “bias” for striking down theimpugned orders, and, if so, whether there is adequate material to sustainsuch a plea.

40. The plea of bias, as is clear from the pleadings, was foundedessentially on an inference, which the Writ Petitioners were trying toGdraw by pointing out the manner in which the Commissioner State Exciseis alleged to have issued some oral directions to her subordinates andhad passed two ex-parte interim stay orders in the appeals against theappellants in relation to the subject-matter.

41. A litigant in order to seek relief in a court of law is entitled toHraise several grounds. These grounds are usually based on facts and law governing the subject, out of which, some are relevant and some arevexatious. It is for the Court to decide as to which ground is legallytenable, and it be made the basis to decide the lis between the partiesone way or the other.

42. The grounds founded on law are always preferred for decidingthe lis arising between the parties. Any discussion or/and the reasoningassigned in support of the conclusion other than the legal reasoning isotiose.

43. The plea of alleged “bias” against the appellate authority is aplea permissible in law to impugn the action/order. However, such a pleahas to be founded on substantial material qua the officer concernedwho acts in a quasi-judicial capacity.

44. Such a plea, if raised, must therefore be based on adequatesubstantial material against such an authority. If the lis can be decidedon other legal grounds, such plea should not be entertained, much lessupheld.

45. Every adverse order passed against a litigant is injurious to alosing party. However, that does not give him a right to attack the adverseorder by attributing bias against authority/Court qua him. An adverseorder, if it is found bad in law, is liable to be set-aside on legal grounds.However, when there is also an allegation of bias, it has to be supportedby adequate substantial material.

46. Coming now to the facts of the case at hand, we find that theappellants (Writ Petitioners) in support of their plea of bias against theCommissioner State Excise had mainly placed reliance on threecircumstances: -

47. First, the Commissioner State Excise dealt with the appellants’case by issuing oral orders to the subordinate authorities, which accordingto them was not permissible.

48. Second, the Commissioner passed two interim ex-parte stayorders against the appellants in the pending appeals, which it is allegedwas indicative of her adversity and bias against the appellants.

49. Third, the High Court had made some adverse remarks in thepast in some other writ petition against the Commissioner State Excisewhen she was in charge of a different post.

A

B

C

D

E

F

G

H

A

50. Insofar as the first circumstance relating to giving of allegedoral directions by the Commissioner State Excise to the subordinates isconcerned, though it was vehemently pressed by the Writ Petitioners,the same does not warrant any interference.

51. It is not possible to record a finding on such factual issues onBthe 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 accordancewith law by a fact finding body where the parties would have got anopportunity to lead evidence and explain the reasons.C

53. It is for these reasons, we are of the view that the High Courtshould have refrained from recording any finding, much less make adverseremarks against the Commissioner State Excise and her subordinates.

54. Be that as it may, since the two impugned interim orders passedby the Inspector Excise and the Commissioner State Excise wereDotherwise held legally unsustainable, and set-aside by the High Court onother grounds, there was no need to go into 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 CommissionerEState Excise had exercised her appellate powers under the Act for passingan ex-parte 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 orrefuse ex-parte stay, or/and set aside or/and affirm the order impugnedFin the appeal. In such an eventuality, an aggrieved person, in the firstinstance, has a remedy to apply to the same appellate authority/Courtfor setting aside the ex-parte grant of interim stay passed against him,or approach to the higher judicial fora to challenge its legality. Theappellate authority or higher forum is empowered to either vacate theinterim stay or continue or modify as the case may require. It dependsGupon the nature of reliefs claimed, injury pleaded, urgency shown, damagelikely to suffer if the ex-parte 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 theappellants to infer the existence of bias against the Commissioner StateH

Excise, except placing reliance on the manner in which she passed theex-parte interim orders and oral instructions against the appellants.

58. In our view, the passing of an ex-parte order would notconstitute a plea of bias attributable against the Commissioner StateExcise qua the appellants. It is a trite law that merely because an orderis adverse to a litigant, it would not by itself constitute a plea of biasagainst the authority/Court qua the aggrieved.

59. In the light of the foregoing discussion, we do not find anymerit in the two circumstances relied upon by the appellants to sustainthe plea of bias against the Commissioner State Excise qua them.

60. Insofar as the third circumstance relied on by the appellants isconcerned, suffice it to say, it has absolutely no substance. First, merelybecause some observations were made by the High Court in the past insome other case against the Commissioner State Excise, when she washolding a different post, can hardly be a ground to sustain a plea of biasqua the appellants. Second, as rightly argued by the learned SeniorCounsel appearing for the Commissioner State Excise, the case reliedon was entirely a different case and is still pending in appeal before thisCourt.

61. In the light of the foregoing discussion, we are of the consideredopinion that the appellants (writ petitioners) have failed to make out anycase of bias against the Commissioner State Excise qua them. In thissituation there is no justification in transferring of the pending appealsfrom the Board of the Commissioner State Excise to any other appellateauthority.

62. In view of the foregoing discussion, we find no merit in theappeals filed by the Writ Petitioners. Their appeals thus fail and arehereby dismissed with cost of Rs.50,000/- payable to the State ofMaharashtra.

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 expungement of the adverse remarks and strictures passedagainst her in the impugned order.

64. At the outset, we consider it apposite to take note of the lawlaid down by this Court on the issue which is the subject matter of thisappeal.

A

B

C

D

E

F

G

H

A

A65. The question as to what should be the role of the higherjudiciary in making adverse remarks and passing strictures against thejudicial/administrative authorities, whose order/action is under challengehas been the subject matter of several decisions of this Court. This Courtin these decisions has held that the higher judiciary must avoid as far aspossible from making any disparaging harsh remarks and strictures againstBany judicial/administrative officer while examining their action/orderimpugned in the judicial proceedings.

66. It is apposite to refer to a passage from the decision of thisCourt in Awani Kumar Upadhyay vs. High Court of Judicature ofAllahabad & Ors., (2013) 12 SCC 392, wherein this Court has laidCdown a rule of caution in following words:

“11. It is made clear that we are not undermining theultimate decision of the High Court on merits. However,we are constrained to observe that the higher courts everyday come across orders of the lower courts which are notDjustified either in law or in fact and modify them or set themaside. Our legal system acknowledges the fallibility of theJudges, hence it provides appeals and revisions. Inasmuchas the lower judicial officers mostly work under a chargedatmosphere and are constantly under psychologicalEpressure and they do not have the facilities which areavailable in the higher courts, we are of the view that theremarks/observations and strictures are to be avoidedparticularly if the officer has no occasion to put forth hisreasonings. Further, if the passage complained of is whollyirrelevant and unjustifiable and its retention on the recordsFwill cause serious harm to the persons to whom it refersand its expunction will not affect the reasons for thejudgment or order, request for expunging those remarksare to be allowed. We, once again, reiterate that harsh ordisparaging remarks are not to be made against judicialGofficers and authorities whose conduct comes intoconsideration before the courts of law unless it is really forthe decision of the case as an integral part thereof.”

67. Keeping in view the aforementioned law laid down by thisCourt in the case of Awani Kumar Upadhyay (supra), and further inHthe light of our detailed discussion made above, which has resulted in

dismissal of the appeals filed by the writ petitioners, we are inclined toexpunge all the adverse and disparaging remarks made, and stricturespassed by the High Court against Dr. Ashwini Joshi (appellant in CivilAppeal @ SLP (C) No. 29169/2018) in the impugned order.

68. In our view, these disparaging remarks/strictures coupled withthe directions of how one should behave and pass orders was unnecessaryin the facts of this case, and nor they were germane for deciding the lisbetween the parties. Such remarks/strictures, therefore, should not havebeen made. They are accordingly expunged and stand deleted from theimpugned order.

69. In view of the foregoing discussion, the appeal filed by Dr.Mrs. Ashwini Joshi is allowed. The impugned order is modifiedaccordingly as indicated above.

70. This takes us to examine one more question, which arises inthis 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 Petitionsalso passed the following writ/directions in Para 20 which reads as under:

“Since an apprehension is expressed and a serious one bythe petitioners, we direct that in the event the fourthrespondent passes any orders adverse to the petitioners,then such orders shall not take effect for a period of fourweeks from the date they are communicated to thepetitioners. Since we have set aside the fourth respondent’sinterim order and for the present not expressed any opinionon the contentions raised before us, interest of justicedemands that the sealing of the premises by the authoritiesshould be set aside. Therefore, the Superintendent or otherfunctionary is directed to remove the seal, lock and keyplaced on the premises forthwith. This order will ensureto the benefit of such of the petitioners whose licenses aresubsisting and are not cancelled. The other licences, whichare 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 remediesthat are available to them and they can avail them asobserved and held in the above paragraphs.”

(Emphasis Supplied)

A

B

C

D

E

F

G

H

A

72. In our considered view, the High Court ought not to haveissued directions of this nature. It was legally not permissible to do so.Indeed, the High Court by issuing such directions which are essentiallypassed in anticipation of the order being passed by an appellate authority,interfered with the judicial independence of an appellate authority indeciding the appeals in accordance with law.

B

73. It is the sole discretion of the appellate authority under the Actto decide the appeal based on the facts involved in the appeal, and legalprovisions which eventually result in passing a judicial order. No highercourt can pass such directions merely on anticipation of an order beingpassed by an appellate authority. It is only after the order is passed, thatCthe aggrieved person has a legal right to take recourse to a legal remedyavailable in law against such order by approaching to a higher forum andpray for grant of appropriate relief against such order.

74. This stage in this case is yet to arrive. The High Court shouldnot have, therefore, pre-empted the passing of any order of the appellateDauthority, while deciding the Writ Petition. It is a settled law that theCourt can stay or quash only those orders, which are impugned in the lisbefore it. A fortiori, the Court cannot stay or/and quash the orders inanticipation, before they are passed. We cannot, therefore, uphold suchwrit/directions issued by the High Court.

E

75. In view of the foregoing discussion, the writ/direction issuedby the High Court in Para 20 quoted above is set aside.

76. Before parting, we hasten to observe that we have not madeany observation on the merits of the controversy, which is the subjectmatter of two appeals (212/2018 and 221/2018) pending before theFCommissioner, 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 discussionand reasoning only to the issues urged in support of the two appeals andwould not touched the merits of the case which are subject-matter ofGpending appeals.

78. The effect of the impugned order and this Court’s order isthat two pending appeals (212/2018 and 221/2018) will now be heardand decided by the Commissioner State Excise on merits, in accordancewith law and without being influenced by any observations made by this H

Court and the High Court in the impugned order. The appeals will finallybe adjudicated preferably within three months from the receipt of theorder passed by this Court.

Kalpana K. Tripathy

Appeals disposed of.

A

B

C

D

E

F

G

H