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TMI Blog1958 (2) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... hen they passed through the hierarchy of the authorities under the Act, the facts of each case are different, and have to be stated separately in so far as it is necessary to state them. The two appellants Nagendra Nath Bora and Ridananda Dutt are partners, the partnership having been formed in view of the Government notification dated November 30, 1956, amending rule 232 of the Assam Excise Rules, to the effect that the settlement of the country spirit shops which may be declared by the Government to be 'big shops', shall be made with two or more partners who shall not belong to the same family nor should be related to one another (vide correction slip at p. 106 of the Assam Excise Manual, 1946). In accordance with the rules framed under the Act, tenders were invited by the Deputy Commissioner of Sibsagar, for the settlement of Jorhat country spirit shop for the financial year 1957-58, in December, 1956. The appellants as members of the partnership aforesaid, submitted a tender in the prescribed form. Respondents 3 and 4, Dharmeshwar Kalita and Someswar Neog, respectively, also were amongst the tenderors. The Commissioner of Hills Division and Appeals,, Assam, and the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the financial year ending March 31, 1957. For the financial year 1957-58, the Deputy Commissioner, in consultation with the local Advisory Committee, settled the shop in question with the third and the, fourth respondents aforesaid. The tender submitted by the appellants, was not considered by the licensing authority on the erroneous ground that the orders passed by the first respondent as the ultimate Revenue Authority in the matter of settlement of excise shops, had been rendered null and void as a result of the decision of the High Court, referred to above. The appellants, as also others who were competitors for the settlement aforesaid, preferred appeals to the Excise Commissioner who set aside the settlement made in favour of the respondents 3 and 4, and ordered settlement of the shop with the appellants. The Excise Commissioner took into consideration the fact that the order of the High Court, nullifying the proceedings before the first respondent, had been set aside by the ruling of this Court. The consequence of the order of this Court, was, as the Commissioner of Excise pointed out, that a supposed disqualification of the appellants as competent tenderers, stood vaca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or quashing them. On June 17, 1957, the writ petition was heard ex parte, and the High Court issued a rule to show cause why a writ as prayed for, should not be issued. The rule was made returnable within three weeks. The High Court also made the further order in these terms:- "Meanwhile, the status quo ante will be maintained." This last order was misinterpreted by the first respondent and his advisers as entitling them to be put in possession of the shop, and it is stated that the first respondent threatened the appellant to oust him from the shop on the basis of the order of the High Court quoted above. The appellant moved the High Court for a clarification of its order aforesaid. The High Court naturally observed that by I maintaining status quo ante', the High Court meant that whoever was in possession of the shop on June 17, 1957, will continue to be in possession during the pendency of the case in the High Court. But, curiously enough, the Deputy Commissioner, by an ex parte order, on June 21, 1957, directed that the first respondent be put in charge of the shop forthwith, and the order was carried out. When the Deputy Commissioner was approached by the appellant to restore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority allowed the appeal, and set aside the orders of the Commissioner and the Deputy Commissioner. One Rafiqul Hussain, one of the competitors for the shop, filed a writ petition before the High Court under Arts. 226 and 227 of the Constitution. This writ application, along with other similar applications, was heard and decided by the High Court, as afore. said, by its judgment dated May 23, 1956. Against the judgment of the High Court, the first appellant and his father appealed to this Court by special leave, with the result indicated above. During the pendency of the appeal in this Court in the absence of a stay order, the direction of the Commissioner for a resettlement, was carried out. The Deputy Commissioner, with the unanimous advice of the Advisory Committee settled the shop with the first appellant on July 25, 1956. The first respondent and some others preferred appeals before the Commissioner of Excise, against the order aforesaid of the Deputy Commissioner. As the special leave appeals to this Court were pending at that time, the Excise Commissioner, under a misapprehension of the effect of this Court's order refusing interim stay, set aside the Deputy Commissioner's o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants and other parties preferred appeals against the said order of settlement made by the Deputy Commissioner. The Excise Commissioner set aside the settlement by the Deputy Commissioner, and directed settlement in favour of the appellants by his order dated April 16, 1957. Against that order, respondents I and 2 and others preferred appeals before the Excise Appellate Authority who, by an order dated June 3, 1957, dismissed the appeals. Accordingly, the appellants were given possession of the shop on June 7, 1957. The respondents I and 2 again moved the High Court for quashing the order of the Excise Appellate Authority, affirming that of the Excise Commissioner, and also prayed for the status quo being maintained. The High Court admitted the petition and ordered " meanwhile, status quo ante be maintained." This took place on June 10, 1957. In pursuance of the aforesaid order of the High Court, the appellants were dispossessed of the shop even though they had been put in possession only three days earlier. This was done on a complete misapprehension of the true effect of the order of the High Court maintaining status quo ante. If the High Court had passed its order in a less s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Chief Justice sitting singly, and he directed a rule to issue on the opposite party cited before that Court, to show cause. Apparently, the learned Chief Justice treated the matter as a new case and not as an off-shoot of the case already pending before the High Court. The High Court closed for the long vacation on September 2, and was to reopen on November 3, 1957. The vacancy of the third judge had not been filled till then, and as the appellants felt that they had been wrongfully deprived of their right to hold their shop, as a result of an erroneous interpretation of the order of the High Court, passed on June 10, as aforesaid, and as there was no prospect of the case being disposed of quickly, the appellants moved this Court and obtained special leave to appeal. As is evident from the statement of facts in connection with each one of the appeals, set out above, these cases have followed a common pattern. They come from the 'non- prohibited areas in the State of Assam where sale of 'country spirit' is regulated by licences issued by the authorities under the provisions of the Act. Settlement of shops for the sale of such liquor is made for one year April I to March ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said. The power of hearing appeals and revisions under the Act, has been vested successively in the Board, the Assam Revenue Tribunal, the Commissioner for Hills Division and Appeals; and ultimately, under the amended section, in the Appellate Authority. The history of the legislation relating to the highest Revenue Authority under the Act, has been traced in the judgment of this Court in the State of Assam v. A.N. Kidwai (supra), and need not be repeated here. It is convenient, first, to deal with the general questions of public importance raised on behalf of the appellant in Civil Appeal No. 670 of 1957. At the forefront of the arguments advanced on behalf of the Appellate Authority, was the plea that the several authorities already indicated, concerned with the settlement of excise shops like those in question in these appeals, are merely administrative bodies, and, therefore, their orders whether passed in the first instance or on appeal, should not be amenable to the writ jurisdiction or supervisory jurisdiction of the High Court under Arts. 226 and 227 of the Constitution. If the matter had rested only with the provisions of the Act, apart from the rules made under s. 36 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing effect are very apposite appeal is imposed, those whose duty it is to decide it must act judicially. They must deal with the question referred to them without bias, and they must give to each of the parties the opportunity of adequately presenting the case made. The decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice. But it does not follow that the procedure of every such tribunal must be the same." Lord Moulton: " In the present case, however, the Legislature has provided an appeal, but it is an appeal to an administrative department of State and not to a judicial body. It is said, truthfully, that on such an appeal the Local Government Board must act judicially, but this, in my opinion, only means that it must preserve a judicial temper and perform its duties conscientiously, with a proper feeling of responsibility, in view of the fact that its acts affect the property and rights of individuals. Parliament has wisely laid down certain rules to be observed in the performance of its functions in these matters, and those rules must be observed because they are imposed by statute, and for no other reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tribal population. Except those general con- siderations, there are no specific rules governing the grant of leases or licences in respect of liquor shops, and in a certain contingency, even drawing of lots, is provided for, vide Executive Instructions 110 at p. 174 of the Manual. The words of sub-s. (3) of s. 9 as amended, set out above, vest complete discretion in the Appellate Authority, the Excise Commissioner or the District Collector, to 'pass such orders thereon as it or he may think fit.' The sections of the Act do not make any reference to the recording of evidence or hearing of parties or even recording reasons for orders passed by the authorities aforesaid. But we have been informed at the bar that as a matter of practice, the authorities under the Act, hear counsel for the parties, and give reasoned judgments, so as to enable the higher authorities to know why a particular choice has been made. That is also apparent from the several orders passed by them in course of these few cases that are before us. But when we come to the rules relating to appeals and revisions, we find that the widest scope for going up in appeal or revision, has been given to persons interested, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the provisions of the enactments specified in Schedule 'B' to that Act, was vested in the Authority to be set up under s. 3(3), that is to say, for the purposes of the present appeals before us, the Excise Appellate Authority. Thus, the Excise Appellate Authority, for the purposes of cases arising under the Act, was vested with the power of the highest appellate Tribunal, even as the High Court was, in respect of the other group of cases. That does not necessarily mean that the Excise Appellate Authority was a Tribunal of co-ordinate jurisdiction with the High Court, or that that Authority was not amenable to the supervisory jurisdiction of the High Court under Arts. 226 and 227 of the Constitution. But the juxtaposition of the two parallel highest Tribunals, one in respect of predominantly civil cases, and the other, in respect of predominantly revenue cases (without attempting any clear cut line of demarcation), would show that the Excise Appellate Authority was not altogether an administrative body which had no judicial or quasi-judicial functions. Neither the Act nor the rules made thereunder, indicate the grounds on which the first Appellate Authority, namely, the Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s order is subject to the controlling authority of the High Court. The question, therefore, is whether the High Court was right in holding that the Appellate Authority had exceeded its legal power. In this connection, it is best to reproduce, in the words of the High Court itself, what it conceived to be the limits of the appellate jurisdiction: "In other words, it is not for the Appellate Authority to make the choice, since the choice has already been made by the officers below; and it is not only where the choice is perverse or illegal and not in accordance with the Rules that the Appellate Authority can interfere with the order and make its own selected (sic.) out of the persons offering tenders. If the Appellate bodies chose to act differently and consider themselves free to make their own choice of the person to be offered settlement irrespective of the recommendations of the Deputy Commissioner or the Officer conducting the settlement, the Appellate bodies will be obviously exceeding the jurisdiction, which they possess under the law or going beyond the scope of their authority as contemplated by the Rules. " In o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral or documentary, or the hearing of oral arguments, or even for the issue of notice of the hearing to the parties concerned. The entire proceedings are marked by a complete lack of formality. The several authorities have been left to their own resources to make the best selection. In this connection, reference may be made to the observations of this Court in the case of New Prakash Transport Co., Ltd. v. New Suwarna Transport Co., Ltd. ([1957] S.C.R. 98). In that case, this Court has laid down that the rules of natural justice vary with the varying constitutions of statutory bodies and the rules prescribed by the Act under which they function ; and the question whether or not any rules of natural justice had been contravened, should be decided not under any pre- conceived notions, but in the light of the statutory rules and provisions. In the instant case, no such rules have been brought to our notice, which could be said to have been contravened by the Appellate Authority. Simply because it viewed a case in a particular light which may not be acceptable to another independent tribunal, is no ground for interference either under Art. 226 or Art. 227 of the Constitution. It remai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9), Veerappa Pillai v. Raman and Raman Ltd., and others ([1952] S.C.R. 583), Ibrahim Aboobaker v. Custodian General of Evacuee Property ([1952] S.C.R. 696), T. C. Basappa v. T. Nagappa [1955] 1 S.C.R. 250 All these cases have been considered by this Court in the case of Hari Vishnu Kamath v. Syed Ahmad Ishaque and others([1955] 1 S.C.R. 1104). Venkatarama Ayyar J., speaking for the full Court, laid down four propositions bearing on the character and scope of the writ of certiorari as established upon the authorities. The third proposition out of those four, may be stated in the words of that learned Judge, as follows: " The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous." While considering the fourth proposition whether the writ can be issued in the case of a decision which was erroneous in law, after considering the recent Authorities, the same learned Judge, in the course of his judgment, at p. 1123 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The High Court would appear to have approximated it to an 'error apparent on the face of the record' as used in r. 1 of 0. 47 of the Civil Procedure Code, as one of the grounds for review of a judgment or order; but that is clearly not the correct position. Ordinarily, a mistake of law in a judgment or an order of a court, would not be a ground for review. It is a mistake or an error of fact apparent on the face of the record, which may attract the power of review as contemplated by r. I of 0. 47. But is the power of a High Court under Art. 226 of the Constitution, to interfere on certiorari, attracted by such a mistake, and not the reverse of it, in the sense that it is only an error of law apparent on the face of the record, which can attract the supervisory jurisdiction of a High Court ? This question, so far as we know, has not been raised in this form in this Court in any one of the previous decisions bearing on the scope and character of the writ of certiorari. It is, therefore, necessary to examine this question directly raised in this batch of appeals, because, in each case, the High Court has been invited to exercise its powers under Art. 226, to issue a writ of certiora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... press any opinion on that which is not before us, the -propriety of the conclusion drawn from the evidence by the magistrates: they and they alone were the competent authority to draw it; and we must not constitute ourselves into a Court of Appeal where the statute does not make us such, because it has constituted no other. It is of much more importance to hold the rule of law straight than, from a feeling of the supposed hardship of any particular decision, to. interpose relief at the expense -of introducing a precedent full of inconvenience and uncertainty in the decision of future cases" The case of Reg v. Bolton (supra) was approved and followed by the Privy Council in the case of the King v. Nat B 11 Liqutors, Limited ([1922] 2 A.C. 128). In that case their Lordships of the Judicial Committee held that a conviction by a magistrate for a non-indictable offence, cannot be quashed on certiorari on the ground that the record showed that there was no evidence to support the conviction, or that the magistrate had misdirected himself in considering the evidence. It was further laid down that the absence of evidence did not affect the jurisdiction of the magistrate to try the charge. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities bearing on the exercise of the power of certiorari, yielded the result that it was open to the High Court to examine the record and to see whether or not there was an error of law apparent on the face of the record. The Lord Chief Justice concluded his observations with these remarks:- " The tribunal have told us what they have taken into account, what they have disregarded, and the contentions which they accepted. They have told us their view of the law, and we are of opinion that the construction which they placed on this very complicated set of regulations was wrong. " This decision was challenged, and on appeal, the Court of Appeal dealt with this point in Rex v. Northumberland, Compensation Appeal Tribunal ([1952] 1 K.B. 338). The Court of Appeal affirmed the proposition laid down by the High Court that an order for certiorari, can be granted and the decision of an inferior court such as a statutory tribunal, quashed on the ground of an error of law apparent on the face of the record. Singleton L. J. in the course of his judgment, observed that an error on the face of the proceedings, which in that case was an error ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . So far as we know, it has never been contended before this Court that an error of fact, even though apparent on the face of the record, could be a ground for interference by the court exercising its writ jurisdiction. No ruling was brought to our notice in support ,of the proposition that the court exercising its powers under Art. 226 of the Constitution, could quash an order of an inferior tribunal, on the ground of a mistake of fact apparent on the face of the record. But the question still remains as to what is the legal import of the expression 'error of law apparent on the face of the record.' Is it every error of law that can attract the supervisory jurisdiction of the High Court, to quash the order impugned ? This court, as observed above, has settled the law in this respect by laying down that in order to attract such jurisdiction, it is essential that the error should be something more than a mere error of law; that it must be one which is manifest on the face of the record. In this respect, the law in India and the law in England, are, therefore, the same. It is also clear, on an examination of all the authorities of this Court and of those in England, referred to abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even assuming, though it is by no means clear, that those instructions have been disregarded, the non-observance of those instructions cannot affect the power of the Appellate Authority to make its own selection, or affect the validity of the order passed by it. The High Court, in its several judgments and orders, has scrutinized, in great detail, the orders passed by the Excise Authorities under the Act. We have not thought it fit to examine the record or the orders below in any detail, because, in our opinion, it is not the function of the High Court or of this Court to do so. The jurisdiction under Art. 226 of the Constitution is limited to seeing that the judicial or quasi-judicial tribunals or administrative bodies exercising quasijudicial powers, do not exercise their powers in excess of their statutory jurisdiction, but correctly administer the law within the ambit of the statute creating them or entrusting those functions to them. The Act has created its own hierarchy of officers and Appellate authorities, as indicated above, to administer the law. So long as those Authorities function within the letter and spirit of the law, the High Court has no concern with the manner in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , was still pending, and that this Court does not ordinarily, entertain an appeal against an interlocutory order. It is true that this Court does not interfere in cases which have not been decided by the High Court, but this case has some extraordinary features which attracted the notice of this Court when special leave to appeal was granted. As already stated, the shop in question was settled with the appellants by the Excise Commissioner, and his order was upheld by the Appellate Authority. Accordingly, the appellants, had been put in possession of the shop on June 7, 1957. The High Court, while issuing the rule, passed an order on the stay application, which, as already indicated, had been misunderstood by the District Excise authorities, and the appellants were dispossessed and the respondents I and 2 put back in possession, without any authority of law. This was a flagrant interference with the appellants' rights arising out of the settlement made in their favour by the highest revenue authorities. The High Court had not and could not have authorized the dispossession of the persons rightfully in possession of the shop. The appellants brought this flagrant abuse of power to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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