MANISH S. PARDASANI (M/S WINE KORNDER) ETC. ETC.versusINSPECTOR STATE EXCISE, P-1, DIVISION, MUMBAI (SUBURBS) & ORS. ETC. ETC.

312                      [2019]REPORTS
               SUPREME COURT    1 S.C.R. 312                [2019] 1 S.C.R.


A                          MANISH 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.]
C
            Administrative Law:
             Bias – FIR against appellants (holders of licence for selling
      liquor) – For commission of offences under Maharashtra
      Prohibition Act, 1949 – Sealing of liquor shops of the licencees –
      Licencing authority by interim order directed de-sealing – The
D     appellate authority (Commissioner State Excise) stayed the order of
      de-sealing – Thereafter, Licencing authority, by final order directed
      the licencees to pay Rs. 50,000/- as compounding fee – The appellate
      authority ex-parte stayed the operation of final order – Writ petition
      by licencees – High Court quashed the order of sealing and also
E     the exparte stay order of the appellate authority and directed the
      appellate authority to decide the case on merit – High Court also
      made adverse remarks against the appellate authority – Appeal by
      the licencees taking the plea that in view of the adverse remarks
      against the appellate authority High Court should have transferred
      the case to another appellate authority – Appeal also filed by
F     appellate authority seeking expunction of adverse remarks – Held:
      Licencees have failed to make out any case of bias against the
      appellate authority – Therefore, there is no justification in
      transferring the case to another appellate authority – The appeals
      of licencees dismissed with cost of Rs. 50,000/- – Adverse remarks
G     and strictures against the appellate authority were unnecessary in
      the facts of the present case, nor were they germane for deciding
      the lis between parties – The remarks are expunged and stand deleted
      from records.
           Bias – Allegation of – Against quasi-judicial authority –
H     Permissibility – Held: Plea of alleged bias is permissible in law to
                                       312
MANISH S. PARDASANI (M/S WINE KORNDER) ETC. ETC. v.                       313
              INSPECTOR STATE EXCISE

impugn the action/order of quasi-judicial authority – However, such       A
plea has to be founded on substantial material – If the lis can be
decided on other legal grounds, such plea should not be entertained
– Every adverse order passed against a litigant is injurious to a
losing party – However, that does not give a right to attack the
adverse order by attributing bias against the authority.
                                                                          B
      Jurisdiction:
      Jurisdiction of writ court – Held: Writ Court does not hold
inquiry on disputed facts.
      Adverse Remarks/Strictures:
                                                                          C
      Adverse remarks by higher judiciary – Against judicial/
administrative officer while examining their action/order impugned
in the judicial proceedings – Held: Higher judiciary must avoid as
far as possible from making such remarks.
      Judgment/Order:                                                     D
      Stay of order in anticipation – Propriety of – High Court while
disposing of writ petition, directed appellate authority to decide the
appeals on merit – Also directed that if the appellate authority passed
the order adverse to the writ petitioners, such orders were not to
take effect for a particular period – Held: A Court can stay or
                                                                          E
quash only these orders which are impugned in the lis before it –
Court cannot stay or quash the orders in anticipation – Such order
is interference with the judicial independence of an appellate
authority – It is only after the order is passed, the aggrieved has
legal right to take recourse to legal remedy.
                                                                          F
      Disposing of the appeals, the Court
      HELD: 1.1 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. [Para 36][322-B]
                                                                          G
      1.2 The reasoning assigned by the Courts to strike down
or uphold the 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

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314            SUPREME COURT REPORTS                      [2019] 1 S.C.R.


A     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. [Para 37][322-C-D]
B           1.3 The Commissioner State Excise being an appellate
      authority under the Maharashtra Prohibition Act, 1949 had
      exercised the appellate powers and had passed an ex-parte 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. [Para 38][322-E]
C
             1.4 Merely because the writ petitioners made allegations
      of personal bias to impugn the orders, apart from raising legal
      grounds, the High Court ought to have seen as to whether in the
      facts of the case, it was really necessary to examine the plea of
      “bias” for striking down the impugned orders, and, if so, whether
D     there is adequate material to sustain such a plea. 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 ex-parte interim stay orders in the appeals
E
      against the appellants in relation to the subject-matter. [Paras
      39-40][322-F-G]
             1.5 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
F     relevant and some are vexatious. It is for the Court to decide as
      to which ground is legally tenable, and it be made the basis to
      decide the lis between the parties one way or the other. [Para
      41][322-H; 323-A]
             1.6 Every adverse order passed against a litigant is injurious
G     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
      set-aside on legal grounds. However, when there is also an
      allegation of bias, it has to be supported by adequate substantial
      material. [Para 45][325-D-E]
H
MANISH S. PARDASANI (M/S WINE KORNDER) ETC. ETC. v.                      315
              INSPECTOR STATE EXCISE

       1.7 The plea of alleged “bias” against the appellate authority    A
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 quasi-judicial capacity. If the lis
can be decided on other legal grounds, such plea should not be
entertained, much less upheld. [Paras 43, 44][325-C-D]
                                                                         B
       1.8 The writ court does not hold an inquiry on disputed
facts. Such issues, 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. The
High Court should have refrained from recording any finding,
much less make adverse remarks against the Commissioner State            C
Excise and her subordinates. [Paras 52, 53][324-C]
      1.9 Since the two impugned interim orders passed by the
Inspector Excise and the Commissioner State Excise were
otherwise held legally unsustainable, and set-aside by the High
Court on other grounds, there was no need to go into the question        D
of “bias” and “oral instructions”. [Para 54][324-D]
       1.10 An appellate authority/Court is empowered in law to
grant or refuse ex-parte 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         E
appellate authority/Court for setting aside the ex-parte 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 either vacate the interim stay or continue
or modify as the case may require. It depends upon the nature of         F
reliefs claimed, injury pleaded, urgency shown, damage likely to
suffer 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 against
the Commissioner State Excise, except placing reliance on the            G
manner in which she passed the ex-parte interim orders and oral
instructions against the appellants. [Para 57][324-H; 325-A]
    1.12 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
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316            SUPREME COURT REPORTS                      [2019] 1 S.C.R.


A     post, can hardly be a ground to sustain a plea of bias qua the
      appellants. The case relied on was entirely a different case and is
      still pending in appeal before this Court. [Para 60][325-D]
            1.13 The appellants (writ petitioners) have failed to make
      out any case of bias against the Commissioner State Excise qua
B     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. Their appeals thus fail
      and are dismissed with cost of Rs. 50,000/- payable to the State
      of Maharashtra. [Paras 61, 62][325-E-F]
C            2. 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. The disparaging remarks/
      strictures coupled with the directions of how one should behave
      and pass orders was unnecessary in the facts of the present case,
D     and nor they were germane for deciding the lis between the
      parties. Such remarks/strictures, therefore, should not have been
      made. All the adverse and disparaging remarks made, and
      strictures passed by the High Court against the Commissioner
      State Excise are expunged. [Paras 65, 68][326-B; 327-B]
E           Awani Kumar Upadhyay v. High Court of Judicature of
            Allahabad & Ors. (2013) 12 SCC 392 : [2013] 3
            SCR 416 – relied on.
            3.1 The High Court while disposing of the Writ Petitions
      and directing Commissioner State Excise to decide the appeals
F     on merit also directed that in the event she passed any orders
      adverse to the writ petitions then such orders shall not take effect
      for a period of four weeks from the date they were communicated
      to the writ petitioners. The High Court ought not to have issued
      directions of this nature. [Paras 71, 72][327-D, 328-A-B]
G           3.2 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. It is the sole discretion of the appellate authority under the
      Act to decide the appeal based on the facts involved in the appeal,
H
MANISH S. PARDASANI (M/S WINE KORNDER) ETC. ETC. v.                       317
              INSPECTOR STATE EXCISE

and legal provisions which eventually result in passing a judicial        A
order. 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.
The Court can stay or quash only those orders, which are
                                                                          B
impugned 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, cannot
be upheld. [Paras 72, 73 and 74][328-A-E]
                        Case Law Reference
                                                                          C
      [2013] 3 SCR 416          relied on                Para 66
      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 126-
156 of 2019.
       From the Judgment and Order dated 05.10.2018 of the High Court
of Judicature at Bombay in Writ Petition (Lodging) Nos. 3255, 3166,       D
3169, 3170, 3171, 3179, 3205, 3227, 3228, 3229, 3230, 3231, 3232, 3233,
3235, 3236, 3237, 3254, 3256, 3257, 3258 and 3263 of 2018 and Writ
Petition Nos. 10649, 10650, 10651, 10652, 10653, 10654, 10655, 10656
and 10657 of 2018.
                                WITH                                      E
      Civil Appeal No. 157 of 2019.
      A. N. S. Nadkarni, ASG, Ranjit Kumar, Jayant Bhushan, Mukul
Rohtagi, Sr. Advs., Nikhil Sakhardande, Vinay Navare, Mehul M. Gupta,
Ms. Gwen Kartika, Ms. Abha R. Sharma, Ms. Shubra Swami, Prasenjit
                                                                          F
Keswani, 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                          G

      ABHAY MANOHAR SAPRE, J. 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
                                                                          H
318             SUPREME COURT REPORTS                           [2019] 1 S.C.R.


A     Writ Petition (Loding) Nos.3255, 3166, 3169, 3170, 3171, 3179, 3205,
      3227-3233, 3235-3237, 3254, 3256-3258, 3263/2018, Writ Petition
      Nos.10649-10657/2018.
             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
B     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 Prohibition Act, 1949 (hereinafter referred to as “the M.P.
      Act”) in their respective names. The appellants’ claim that they are
C     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
D     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
E     to the appellants setting out therein the breaches of the licence conditions
      and violation of certain provisions of the M.P. Act. The appellants 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
F     notices.
             9. On 05.09.2018, the Collector (Excise) (licensing authority) after
      hearing the appellants, passed an interim order and directed de-sealing
      of the appellants’ shops on conditions contained therein.
             10. The Superintendent of State Excise, Mumbai felt aggrieved
G     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.

H
MANISH S. PARDASANI (M/S WINE KORNDER) ETC. ETC. v.                             319
INSPECTOR STATE EXCISE [ABHAY MANOHAR SAPRE, J.]

      11. The Commissioner State Excise in exercise of her appellate            A
powers on 05.09.2018 stayed the 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,        B
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             C
order dated 10.09.2018 passed by the Collector (Excise).
       15. The Commissioner State Excise vide ex-parte order
17.09.2018 stayed the operation of the order dated 10.09.2018.
    16. This appeal is also pending for its final disposal before the           D
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.          E
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
                                                                                F
essentially consequential to the main reliefs.
      19. The appellants challenged the afore-mentioned orders on legal
grounds, including violation of the 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            G
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 ex-parte orders in the prevalent
                                                                                H
320             SUPREME COURT REPORTS                           [2019] 1 S.C.R.


A     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 ex-parte interim order dated 17.09.2018 passed
B     by the Commissioner. The Commissioner State Excise 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’
C     case, particularly the manner in which ex-parte 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.
D
             23. The High Court further issued a direction in anticipation that if
      the Commissioner State Excise eventually passes adverse orders against
      the 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.
E
             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. 27980-28010/2018 before this Court.
      Their main grievance is that the High Court after having passed the
      adverse remarks and strictures against the Commissioner State Excise
F     on her manner of functioning and passing ex-parte 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 that
G     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.
H
MANISH S. PARDASANI (M/S WINE KORNDER) ETC. ETC. v.                            321
INSPECTOR STATE EXCISE [ABHAY MANOHAR SAPRE, J.]

The Commissioner State Excise has prayed for expungement of the                A
adverse remarks and strictures passed by the High Court against her.
       26. It was inter alia submitted that the ex-parte 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      B
State was found in flagrant violation of the statutory rules and the
conditions of the licence which inter alia stipulated 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      C
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,           D
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:
                                                                               E
       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
                                                                               F
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 ?                                          G

      34. We have heard learned Senior Counsel for all the parties.
       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
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322             SUPREME COURT REPORTS                            [2019] 1 S.C.R.


A     dismiss 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 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
B     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
C     the impugned orders. In our view, the reasoning assigned by the Courts
      to strike down or uphold the 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
D     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 ex-parte interim stay order. The exercise of such appellate power
E     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 ought to have seen as to whether in the facts of this case, it
F     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
G     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 ex-parte interim stay orders in the appeals against the
      appellants in relation to the subject-matter.
             41. A litigant in order to seek relief in a court of law is entitled to
H     raise several grounds. These grounds are usually based on facts and
MANISH S. PARDASANI (M/S WINE KORNDER) ETC. ETC. v.                             323
INSPECTOR STATE EXCISE [ABHAY MANOHAR SAPRE, J.]

law governing the subject, out of which, some are relevant and some are         A
vexatious. It is for the Court to decide as to which 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        B
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             C
who acts in a quasi-judicial 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 grounds, such plea should not be entertained, much less
upheld.                                                                         D
       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 set-aside on legal grounds.
However, when there is also an allegation of bias, it has to be supported       E
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: -                                                                F
       47. First, the Commissioner State Excise dealt with the appellants’
case by issuing oral orders to the subordinate authorities, which according
to them was not permissible.
       48. Second, the Commissioner passed two interim ex-parte stay
orders against the appellants in the pending appeals, which it is alleged       G
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.
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324             SUPREME COURT REPORTS                            [2019] 1 S.C.R.


A            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.
            51. It is not possible to record a finding on such factual issues on
B     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.
C           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
D     otherwise held legally unsustainable, and set-aside by the High Court on
      other 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 Commissioner
E     State Excise had exercised her appellate powers under the Act for passing
      an 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 or
      refuse ex-parte stay, or/and set aside or/and affirm the order impugned
F     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 ex-parte 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 either vacate the
      interim stay or continue or modify as the case may require. It depends
G
      upon the nature of reliefs claimed, injury pleaded, urgency shown, damage
      likely 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 the
      appellants to infer the existence of bias against the Commissioner State
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MANISH S. PARDASANI (M/S WINE KORNDER) ETC. ETC. v.                             325
INSPECTOR STATE EXCISE [ABHAY MANOHAR SAPRE, J.]

Excise, except placing reliance on the manner in which she passed the           A
ex-parte interim orders and oral instructions against the appellants.
       58. In our view, the passing of an ex-parte 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 constitute a plea of bias      B
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     C
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             D
Counsel appearing for the Commissioner State Excise, the case relied
on was 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      E
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          F
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,
                                                                                G
seeking 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.
                                                                                H
326            SUPREME COURT REPORTS                          [2019] 1 S.C.R.


A            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
B
      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. High Court of Judicature of
      Allahabad & Ors., (2013) 12 SCC 392, wherein this Court has laid
C     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
D           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
E           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
F           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
G           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.”
             67. Keeping in view the aforementioned law laid down by this
      Court in the case of Awani Kumar Upadhyay (supra), and further in
H     the light of our detailed discussion made above, which has resulted in
MANISH S. PARDASANI (M/S WINE KORNDER) ETC. ETC. v.                            327
INSPECTOR STATE EXCISE [ABHAY MANOHAR SAPRE, J.]

dismissal of the appeals filed by the writ petitioners, we are inclined to     A
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        B
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
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.         C
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   D
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              E
      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 authorities              F
      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,              G
      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)       H
328             SUPREME COURT REPORTS                            [2019] 1 S.C.R.


A            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.
B
             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
C     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, pre-empted the passing of any order of the appellate
D     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.
E           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
F     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 subject-matter of
G     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
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MANISH S. PARDASANI (M/S WINE KORNDER) ETC. ETC. v.                            329
INSPECTOR STATE EXCISE [ABHAY MANOHAR SAPRE, J.]

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


Kalpana K. Tripathy                                     Appeals disposed of.
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