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TMI Blog1983 (11) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 for the remaining period of the grant upto March 31, 1984. The short question that arises in the appeal is whether it was proper exercise of jurisdiction by the High Court under Art. 226 of the Constitution to have issued a writ of mandamus ordaining the Deputy Commissioner to grant the licence. Further, a question arises whether it was impermissible for the High Court to have embarked upon an inquiry into the facts and on a reappraisal of the evidence come to a finding contrary to that reached by the Board of Revenue based on appreciation of evidence that one set of rival claimants i.e. Parag Saikia and Prafulla Barua, respondents Nos. 1 and 2 were entitled to grant of such privilege in preference to the appellant under the note beneath r. 223(2) of the Assam Excise Rules, 1945 (for short 'Rules'). The facts of this case present a rather disturbing feature. Jorhat Country Spirit Shop No. 1 is a big excise shop within the meaning of r. 232 of the Rules. Under cl.(a) thereof, the settlement of such a country liquor shop has to be made with a pair of tenderers constituting two or more, partners. Five joint tenders were received in response to the notification issued by the Deputy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncel the liquor licence'. Further, it observed that 'the grant' would be subject to the result of the decision in the writ petition filled by the interveners i.e. Civil Rule No. 1163 of 1982'. Before proceeding further, it is necessary to refer to certain provisions of the Assam Excise Act, 1910 (for short 'Act') and the Assam Excise Rules, 1945 (for short 'Rules') as amended from time to time. Section 18(1) of the Act provides: "18 (1). Prohibition of sale without licence, and the exceptions to such prohibitions-No intoxicant shall be sold except under the authority and in accordance with the terms and conditions of a licence granted by the Authority prescribed in the rules framed under this Act." Rule 208 provides as follows: "Advisory Committee-The Collectors should make settlements in consultation with an advisory committee." Rule 223(2) provides: "In making settlement to any person preference shall always be given to the educated unemployed youths or to co-operatives a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp; "In an excise settlement apart from the finance, there is also the question of general suitability of the tenders for a particular shop. It came out during the hearing that this is one of the Sibsagar District. As such substantial revenue of the State is involved in this shop and the suitability of the lessee has therefore to be examined very closely. Under Rule 232 of the Excise Rules, no distinction can be drawn between the legal liabilities of the two partners who will be jointly and severally responsible for the management of the shop. It is implicit in this Rule that the partners have to be more or less equal partners. It is also implicit that the settling authority should be satisfied about their respective role, responsibilities, investments and involvements. On a total consideration of the tender, the memo of appeal and the various affidavits and other documents filed on behalf of the appellant Parag Saikia, it appears doubtless that he is the dominant partner and his associate appears more as a show-boy than even as a sleeping partner." The Board then went on to say: "Reverti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for him to carry on a partnership business at Jorhat where his cousin lives and further that he answers the description of 'educated unemployed youth' envisaged in the note beneath r.223 of the Rules. It recorded that respondent No. 2 Prafulla Barua had given an undertaking that he would give up his studies if the settlement of the liquor shop was made in his favour. There was no warrant for any of these observations made by the High Court and the High Court was not entitled to enter into a question of fact as to whether or not respondent No. 1 Parag Saikia was a mere benamidar. It is somewhat strange that the High Court should have taken an undertaking from respondent No. 2 Prafulla Barua that he would give up his studies if the settlement was made in his favour and observed that there was nothing in law to discourage students still undergoing their studies from entering into the liquor business and that he falls within he category of 'educated unemployed youth' within the note beneath r.223 of the Rules On remand, the Board of Revenue by its order dated December 2, 1982 reacted sharply to the observations and went on to say that the observations were uncalled for. That apart, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court nonetheless observed that 'it could definitely set aside the order of an inferior tribunal like the Board of Revenue founded even on some factual conclusions if they were based on irrelevant or extraneous materials or be such which no reasonable person could have reached or if they were grounded on a total misconception of law'. It held that a finding reached by the Board by disregarding the directions given to it by the High Court was in excess of jurisdiction. It is regrettable that the Board of Revenue failed to realize that like any other subordinate tribunal, it was subject to the writ jurisdiction of the High Court under Art.226 of the Constitution. Just as the judgments and orders of the Supreme Court have to be faithfully obeyed and carried out throughout the territory of India under Art.142 of the Constitution, so should be the judgments and orders of the High Court by all inferior courts and tribunals subject to their supervisory jurisdiction within the State under Art.226 and 227 of the Constitution. We cannot but deprecate the action of the Board of Revenue in refusing to carry out the directions of the High Court. In Bhopal Sugar Industries Limited v. Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the High Court to have issued a writ of mandamus ordaining the Deputy Commissioner to grant the liquor licence to respondents Nos.1 and 2 in preference to the appellants. Although a writ of mandamus may be a necessary adjunct to a writ of certiorari, in the High Court was satisfied that a writ of certiorari had to be issued to quash the impugned order of the Board of Revenue on the ground that its order was vitiated by an error apparent on the face of the record, the proper course for the High Court to adopt was to have issued a writ of mandamus to hear and redetermine the appeal according to law: H.W.R. Wade's Administrative Law, 5th edn., p.638. The High Court was also in error in holding that the earlier order passed by the High Court remanding the case to the Board of Revenue contained a direction requiring the Board not to act upon the report of the Deputy Commissioner. The fact that the Board had in the past in some other case viz. for the grant of liquor licence for Melan Country Spirit Shop not acted upon the report of the Deputy Commissioner against respondent No.1 Parag Saikia was not a ground sufficient for ignoring the adverse report of the Deputy Commissioner agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court that respondent No.2 Prafulla Barua who is a student of B.Sc. class still undergoing his studies falls within the description of 'educated unemployed youth' appearing in the note beneath r.223 of the Rules. In our judgment, the expression 'educated employed youth has definite legal connotation. It denotes a class of citizens who after completing their education are faced with unemployment R.223(2) read with the note embodies a rule of preference. The question of grant of preference under the note beneath r.223(2) can only arise when other conditions as regards suitability of the rival tenderers is equal Besides, the construction placed by the High Court on the expression 'educated unemployed youth' is manifestly erroneous. By no stretch of imagination can a student still undergoing his studies in the university be regarded as having completed his education or being 'unemployed' youth. When a person is still pursuing his course of studies in a university, we fail to see any basis for treating him as an 'educated unemployed youth'. The judgment of the High Court directing the issue of a licence to respondents Nos.1 and 2 being based on the rule of preference contained i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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