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TMI Blog2014 (1) TMI 1518X X X X Extracts X X X X X X X X Extracts X X X X ..... Bar Name of attached Restaurants/ Dining Hall. 1. 'OPEN HOUSE' Open House Restaurant 2. 'ORBIT BAR' Attached Dining Hall of Orbit, Mandarian and Gulnar Restt. 3. The case of the petitioner is that the said Orbit Bar was located on the ground floor in the centre of Hotel Janpath and on three sides around the Bar, there was space for restaurants and on the fourth side there was a passage. The entire area where the bar and the restaurants were situated were interconnected and there was no door fixed to separate them from each other. The petitioner at the time of application for grant of liquor licence had submitted a plan wherein the areas including the bar area were distinctly shown. On the basis of the said application, the licence in the category of L-5 was granted and the licence specifically mentioned "Orbit Bar" attached to dining hall of "Orbit, Mandarian and Gulnar Restaurants". 4. The case of the petitioner is that the petitioner and their staff have always run the liquor bar in question in accordance with the licence. The bar was inspected on several occasions by the officers of the respondents and entries with respect to the inspection were duly recorded in the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rected to be deleted. The order does not hold or observe that the "inadvertent error" of mentioning the two additional restaurants occurred on account of some fault of the petitioner. The petitioner was not ordered to pay any additional fee, as was proposed in the show-cause notice for restaurants. To this extent the show-cause notice was dropped. 8. The petitioner alleges that the order dated 01.04.1985 was duly complied with and names of the two restaurants were deleted from the L-5 licence and the sale of liquor in the said two restaurants was ceased forthwith. No complaint of any nature was received alleging violation of the said order. The order was duly complied. 9. On 05.01.1989 i.e. four years after passing of the order dated 01.04.1985, another show cause notice was issued to the petitioner to show-cause as to why a sum of Rs.3.5 lacs plus interest be not recovered from the petitioner as licence fee for the two restaurants included in the licence issued. 10. By order dated 18.10.1989, the Collector of Excise noticing that the petitioner had been inadvertently allowed service of liquor to three restaurants held that the licencee was required to deposit licence fee for tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had mentioned three restaurants attached with the Bar. The licence fee stipulated in the said licence had been duly paid by the petitioner. Terms of the licence were not violated and were duly complied. The petitioner cannot be faulted with for an inadvertent error or mistake on the part of the respondents by mentioning names of three restaurants attached to one bar. In case, an error had occurred on part of the respondents, the correct course was to rectify the error which, in fact, was done by the order dated 01.04.1985 when names of two restaurants out of the three were deleted from the said licence. 17. The petitioner cannot be saddled with the liability of paying the licence fee for two restaurants for the period when the petitioner had a licence mentioning the three restaurants attached to the bar. The respondents have not relied upon or referred to any statutory provision or rule, in support of their claim. Apparently, the issue in question was a matter of policy and there was ambiguity and ambivalence whether or not separate licence was required. The billing for liquor was issued from the bar. In case, the petitioner had been informed and asked to pay additional licence fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pta v. Hindu Kanya Mahavidyalaya [1987] 4 SCC 525, State of Orissa v. Commr. of Land Records and Settlement [1998] 7 SCC 162 and Sunita Jain v. Pawan Kumar Jain [2008] 2 SCC 705 this Court held that the power to review is not an inherent power. It must be conferred by law either expressly/specifically or by necessary implication and in the absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statute. Jurisdiction of review can be derived only from the statute and thus, any order of review in the absence of any statutory provision for the same is a nullity, being without jurisdiction. 14. Therefore, in view of the above, the law on the point can be summarised to the effect that in the absence of any statutory provision providing for review, entertaining an application for review or under the garb of clarification/modification/correction is not permissible." 21. The order passed by the Collector of Central Excise on the first show cause is not a mere administrative order but is a quasi judicial order. It determined the question of liability, fine etc. 22. The Supreme Court of India considering th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 371 it was held thus: "In this connection the term judicial does not necessarily mean acts of a Judge or legal tribunal sitting for the determination of matters of law, but for purpose of this question, a judicial act seems to be an act done by competent authority upon consideration of facts and circumstances and imposing liability or affecting the rights. And if there be a body empowered by law to enquire into facts, makes estimates to impose a rate on a district, it would seem to me that the acts of such a body involving such consequence would be judicial acts." 22. Atkin, L.J. as he then was, in R. v. Electricity Commrs. [1924] 1 KB 171 stated that when any body of persons has legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, such body of persons is a quasi-judicial body and decision given by them is a quasi-judicial decision. In the said decision, there was no contest or lis between the two contending parties before the Commissioner. The Commissioner, after making an enquiry and hearing the objections was required to pass order. In a nutshell, what was held in the af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise while adjudicating upon the first show-cause notice was clearly performing quasi judicial function. There is no power of review conferred upon the Collector of Central Excise to review the order dated 01.04.1985 of the nature passed on the first show-cause notice. The collector thus could not have issued a second show cause notice and that also after a gap of about 5 years. The first show-cause notice required the Petitioner to show-cause as to why additional license fee be not charged but the same was not charged and this amounted to dropping of the show-cause notice to that extent. The Order dated 01.04.1985 also records that the three restaurants were inadvertently attached to the bar. 24. In view of the above, we are of the considered opinion that the order dated 08.05.1992 and the consequent demand raised by the respondents vide memorandum dated 09.06.1992 are not sustainable and are hereby set aside. In case, the petitioner has paid or deposited any amount pursuant to the interim order of this Court dated 19.06.1992 for stay of the memorandum dated 09.06.1992, the petitioner shall be entitled to refund of the same with interest @ 12% per annum. 25. The petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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