Ghaio Mall & Sons Vs. The State of
Delhi & Ors  INSC 85 (30 September 1958)
DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H.
SINHA, BHUVNESHWAR P.
CITATION: 1959 AIR 65 1959 SCR 1424
CITATOR INFO :
RF 1961 SC1762 (25) R 1964 SC1823 (4,32) RF
1967 SC1145 (16)
Certiorari, Writ of-Rule issued on
application-Duty of inferior Courts and Tribunals-If must produce entire
The appellant firm, an unsuccessful applicant
for a license for vending foreign liquor in New Delhi for the year 9541955,
moved the High Court under art. 226 of the Constitution for a writ of
certiorari quashing the order granting the license to a rival applicant and
impleaded the Chief Minister, the Excise Commissioner, the Secretary and the
Under Secretary, Finance, of the State of Delhi, as it then was, as parties to
the application. Its case in substance was that the applications made for the
grant of the licence were never placed before the Chief Commissioner who alone
was the competent authority to grant it under Ch. 5, r. i of the Delhi Liquor
License Rules, 1935, framed under S. 59 Of the Punjab Excise Act (Punj. 1 of
1914), as extended to Delhi, and no order granting the license was ever made by
him. The said opposite parties respondents, although repeatedly called upon by
the High Court to do so, did not produce the entire records and filed evasive
affidavits and eventually produced a letter written by the Under Secretary,
Finance, to the Excise Commissioner intimating that the Chief Commissioner had
made the order for granting the license to the rival applicant and maintained
that the order had in fact been made by the Chief Commissioner. The High Court,
under a misapprehension of fact and of the true nature and effect of that
letter written by the Under Secretary, Finance, to the Excise Commissioner,
held that the order had in fact been passed by the Chief Commissioner. The
production of the entire records in the 1425 Supreme Court made it clear, and
the respondents also conceded, that the applications were never placed before
the Chief Commissioner, nor any order granting the said license was ever made
by him. What had happened was that upon an order made by the Chief Minister on
the file in accordance with a note put up by the Under Secretary, Finance, the
latter wrote a letter to the Excise Commissioner in reply to a previous one of
his, that the license might be granted to the said rival applicant. That
letter, on which the High Court had relied, was in the following terms,With
reference to your letter No. 295/C/54 dated the 31st August, 1954, on the above
subject, I am directed to say that the Chief Commissioner is pleased to approve
5. 1. of Delhi Excise Manual Vol. 11 the grant
of L-2 license to Messrs. Gainda Mall Hem Raj, New Delhi, in place of the L-2
License surrendered by Messrs. Army & Navy Stores, New Delhi. Necessary
license may kindly be issued to the party concerned under intimation to this
There was nothing on the record to show that
the Chief Commissioner had ever concurred in the order made by the Chief
Minister on the file.
Held, that the attempt of the official
respondents to bypass the Court must be strongly deprecated, and the order of
the High Court must be reversed.
When a superior Court issues a rule on an
application for a writ of certiorari, it is incumbent upon the inferior Court
or the quasi-judicial body, to whom the rule is addressed, to produce the
entire records along with the return so that the superior Court may satisfy
itself that the inferior Court or the quasijudicial body has not exceeded its
lawful jurisdiction. Non-production of such records, as in the instant case,
must defeat the purpose which the writ has in view.
Held, further, that in view of the undisputed
practice that such a license, once granted by the Chief Commissioner, was
almost automatically renewed by the Collector year to year, it could not be
said that the writ application and the appeal had become infructuous on the
expiry of the period of the license in dispute and it was only proper that the
appeal should be heard on merits.
In the facts and circumstances of the case it
was impossible to hold that the letter of the Under Secretary embodied the
order of the Chief Commissioner or that the Court could not be asked to go
behind it. The letter was clearly a communication of the sanction and could not
be equated with the sanction itself.
Although an Under Secretary was competent to
authenticate an order made by the Chief Commissioner, the letter in question
did not purport to be made in the name of the Chief Commissioner and therefore
the letter could not be treated as a properly 1426 authenticated order to which
the presumption raised by Art.
166 of the Constitution could properly
Dattatreya Moreshwar Pangarkar v. The State
of Bombay,  S.C.R. 6I2, held inapplicable.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 481 of 1957.
Appeal by special leave from the judgment and
order dated December 12, 1955, of the Punjab High Court (Circuit Bench) Delhi,
in Civil Writ Application No. 11-D of 1955.
Gurbachan Singh and R. S. Narula, for the
C.K. Daphtary, Solicitor-General of India, H.
J. Umrigar and T. M. Sen, for respondents Nos. 1 to 4.
Dr. J. N. Banerjee and P. C. Agarwala, for
respondent No. 5.
1958. September 30. The Judgment of the Court
was delivered by DAS C. J.-The facts material for the purpose of disposing of
this appeal by special leave are shortly as follows: The appellants, before us
claim to have been dealers in foreign liquor since 1922 and to have, before the
partition of the country, held licenses in forms L-1, L-2, L-10 and L-11 at
Amritsar, Sialkot and Multan. The appellants allege that in 1945 they had also
secured a license in Form L-2 in respect of some premises in Chawri Bazar,
Delhi, but that the operation of the said license had to be suspended on
account of the unsuitability of the Chawri Bazar premises. Then came the
communal riots in the wake of the partition of the country and that license
could not be renewed. ln 1951 the appellants applied to the Chief Commissioner,
Delhi, (Ex. 1) for licenses both in Forms L-1 and L-2 in respect of Karolbagh
or at any place in Delhi. On May 17, 1951, the Home Secretary to the Chief
Commissioner by letter (Ex. 2) conveyed to the appellants the sanction of the
Chief Commissioner to the grant to them of license in Form L-2 in respect of
Karolbagh, Delhi. This license has ever since then been renewed from year to
1427 year. In 1954 a vacancy arose in respect of a license in Form L-2 on
account of the closure of the business of Messrs. Army and Navy Stores of Regal
Buildings, New Delhi, which held such a license. Accordingly on January 21,
1954, the appellants submitted an application (Ex. 4) to the Deputy
Commissioner for the grant of a foreign liquor license in Form L-2 in the
aforesaid vacancy. In that application the appellants stated, inter alia, that
they were " prepared to operate it in such a part of Delhi as may be determined
by the authorities ". Not having received any reply for nearly 3 months
and apprehending that interested persons were endeavouring to cause hindrance
in the matter of the granting of the license to them on the plea that the
appellants had no premises in Connaught Place, the appellants, on March 11,
1954, wrote a letter (Ex. 5) to the Chief Commissioner in which, after pointing
out that Karolbagh where they had their L-1 license was in New Delhi, the
appellants stated: " In any case, we have already made it clear in our
application which we made to the Deputy Commissioner, Delhi on the 21st
January, 1954, that we are prepared to operate this license in any locality
which the authorities might deem proper ". This letter was acknowledged by
the Personal Assistant to the Chief Commissioner who, on March 15, 1954, stated
(Ex. 6) that the " application No. Nil dated 18-3-1954 on the subject of
grant of foreign liquor license in Form L-2 " had been forwarded to the
Home Secretary, Delhi State, for disposal.
Exhibit 7 to the petition is an important
document. It is a letter dated May 21, 1954, addressed by the appellants to the
Excise and Taxation Commissioner stating that " with a view to avoiding
any possible objection as to locality etc., we have secured suitable premises
also in the Connaught Place area, New Delhi, in which area has occurred a
vacancy on account of the surrender of this license by Messrs. Army and Navy
Stores ". The letter concluded with the request that early orders be
passed oil their application. On July 30, 1954, the appellants wrote a long
letter (Ex. 8) to the Chief Commissioner claiming justice in the matter of
their 1428 application for the L-2 license. In the second paragraph of that
letter it was stated: ,It is now being acclaimed by the party concerned and
their friends that they have succeeded in removing the only obstacle that stood
in the way of their getting the said L-2 license by so arranging matters that
our application has been kept back by the Excise Commissioner and that only
five or six other applications of firms without much merit in them have been
forwarded to you in order that they might have a smooth sailing as against
those applicants ". The appellants prayed that the Excise Commissioner
might be directed to forward all records concerning the case to the Chief
Commissioner so that the latter might be able to arrive at a just conclusion
and they asked for a hearing to explain their claim fully. A copy of this
letter appears to have been endorsed to the Excise Commissioner on August 13,
1954, by the Under Secretary, Finance. The Excise Commissioner then wrote a
295/C/54 dated August 31, 1954, to the Under
Secretary, Finance, a copy of which was produced by the learned Solicitor
General at the hearing before us. In this letter the Excise Commissioner
explained why the application of the appellants was not considered by him to be
a good and proper one and stated that reasons why, according to him, the
applications of two , other applicants, including Messrs Gainda Mall Hem Raj
(respondent No. 5), should be given the preference. In the penultimate
paragraph of this letter of explanation it was stated: " In the end it may
also be added that the applicant has no premises in New Delhi and as such he
had no claim. The license in Form L-2 is granted in respect of certain
premises." The conclusion was that "under the circumstances there is
no force in the application of Messrs. Ghaio Mall and Sons." It is
apparent that the Excise Commissioner did not remember that the appellants had,
by their letter (Ex. 7) of May 21, 1954, addressed to him, stated that they had
secured suitable premises also in the Connaught Place area, New Delhi. Be that
as it may, on September 11, 1954, the appellants wrote another letter (Ex.
9) to the Chief 1429 Commissioner pressing
their claim. In this letter reference was made to their letter to the Excise
Commissioner of May 21, 1954, (Ex. 7) in which it had been stated that the
appellants had secured suitable premises in the Connaught Place area in New
Delhi. A copy of this letter was sent to the same Under Secretary, Finance, to
whom the Excise Commissioner had written his letter of August 31, 1954,
alleging that the appellants had no premises in New Delhi.
Exhibit 9A is the postal acknowledgment by
the Under Secretary, Finance, of the letter containing the copy of the
appellants' letter but it does not appear from the record that the Under
Secretary, Finance, thought it necessary to remind the Excise Commissioner that
the appellants were maintaining that they had secured suitable premises in New
Delhi. This was followed by a letter (Ex. 10) from the appellants to the Excise
Commissioner intimating that an application had been made to the Collector on
September 11, 1954, for a change of their premises for L-1 license from
Karolbagh, New Delhi to H. 32 Connaught Circus, New Delhi.
Although this letter had been written in
connection with the change of L-1 license,, it certainly did specify that the
appellants had secured the premises H-32 Connaught Circus.
The personal Assistant to the Excise
Commissioner replied (Ex. 11) that the matter was under consideration. There
was a reminder (Ex. 12) sent to the Excise Commissioner on December 8, 1954,
about the change of L-1 license from Karolbagh to Connaught Circus. It appears
from papers, for the first time produced before us at the hearing of this
appeal, that on September 3, 1954, a note was put up by the Under Secretary,
Finance, before the Finance Secretary, Shri S. K. Mazumdar. At the forefront of
this note we find the following statement: " The applicants (Messrs. Ghaio
Mall and Sons) have no premises in Connaught Circus. For these reasons, if for
no other, their claim has to be rejected." The note concluded with the
recommendation that, in case it was decided that the vacancy should be filled,
the recommendation of the Excise Commissioner should be accepted, that is to
say, the L-2 license should go to 1430 Messrs. Gainda Mall Hem Raj (Respondent
No. 5). On September 8, 1954, the Finance Secretary simply endorsed the file to
the Chief Minister who, on September 14, 1954, recorded the following order on
the file: " Commissioner's recommendation may be accepted ". There is
nothing on the record produced before us to indicate that the matter was sent up
to the Chief Commissioner or that his concurrence was obtained under s. 36 of
the Government of Part C States Act (No. 49 of 1951). On December 14, 1954, the
Under Secretary, Finance, wrote to the Excise Commissioner a letter which was
for the first time produced at the hearing before the High Court and to which
detailed reference will be made hereafter. On January 15, 1955, the appellants
were informed that the change applied for by them in respect of their L-1
license had been allowed. The appellants were not told anything about the
rejection of their application for L-2 license, but evidently they came to know
that the L-2 license, for which a vacancy had arisen on account of the closure
of Messrs. Army and Navy Stores, had been granted to Messrs. Gainda Mall Hem
Raj (respondent No. 5). On December 24, 1954, the appellants wrote severally to
the Home Secretary (Ex. 14) Finance Secretary (Ex. 15) and the Under Secretary,
Finance (Ex. 16) asking for a copy of the order or orders granting license to
Messrs. Gainda Mall Hem Raj and/or rejecting their own application for L-2
foreign liquor license. Three postal acknowledgments (Exs. 16A, 16B, 16C)
relating to those three letters are on the record.
The appellants got no reply from any of them.
Not having received any reply the appellants
on December 21, 1954, moved the Punjab High Court (Circuit Bench) under Art.
226 for appropriate writs or orders, but as
it was not then quite clear whether the order granting the license to Messrs.
Gainda Mall Hem Raj had actually been made, the Circuit Bench summarily
dismissed that writ application as premature. There were proceedings taken by
the appellants to obtain leave to appeal first from this Court under Art.
136 which was adjourned sine die and then
from the High Court under Art. 133, but it is not necessary 1431 to go into
further details of those proceedings. After the appellants had definitely
ascertained that the L-2 license had been granted to Messrs. Gainda Mall Hem
Rai, the appellants, instead of proceeding with their application for leave to
appeal to this Court, filed a fresh writ petition in the High Court (Circuit
Bench) out of which the present appeal has arisen.
In the present writ petition the appellants
have impleaded 7 respondents, namely, (1) The State of Delhi, (2) The Chief
Minister, Delhi, (3) -The Excise and Taxation Commissioner, Delhi, (3 A)
Secretary, Delhi State, (3 B) Under Secretary, Finance, (4) The Chief
Commissioner, Delhi and (5) Messrs.
Gainda Mall Hem Raj. The principal ground-,
urged by the appellants in support of this petition are that the applications
of the appellants and of the other applicants had never been placed before the
Chief Commissioner who, under r. I of Ch. 5 of the Delhi Liquor License Rules,
1935, framed under s. 59 of the Punjab Excise Act (Punjab I of 1914), as
extended to Delhi, was the only competent authority empowered to grant L-2
license for wholesale and retail vend of foreign liquor to the public and that
the Chief Commissioner had never applied his mind to the applications and did
not in fact make any order and that respondents Nos. 2 and 3 had purported to
exercise jurisdiction and power which were not vested in them by law and that
their decision, if any, had not received the concurrence of the Chief Commissioner,
as requiried by the proviso to s. 36 of the Government of Part C States Act.
The appellants pray for the issue of
appropriate writs, orders or directions (a) quashing and setting aside the
order of granting L-2 license to respondent No. 5, (b) directing the respondent
No. 4 (the Chief Commissioner) to hold proper enquiry regarding suitability of
premises etc., to hear both the parties and to decide the application of the
petitioner before taking tip the application of the 5th respondent. There is a
prayer in the nature of a prayer for further and other reliefs and there is the
usual prayer for costs.
182 1432 A Written statement verified by the
affidavit of Shri. S. K. Majumdar, the Finance Secretary, has been filed on
behalf of respondents I to 4. In paragraph 5 of that written statement it has
been averred that all the applications including the appellants' application
were in fact considered; but it is significant that it has not been stated by
whom the applications had been considered.
Messrs. Gainda Mall Hem Raj have filed an
affidavit only stating that they had been informed that the Chief Commissioner
had sanctioned the grant of the license to them. The appellants, with the leave
of the High Court, filed a consolidated affidavit setting out facts including
the fact that although they had written to the Home Secretary, the Finance
Secretary and the Under Secretary, Finance, asking for a copy of the order
granting the license to Messrs. Gainda Mall Hem Raj, no copy of the order or
even a reply to the letters had been received. In reply to the consolidated
fresh affidavit an affidavit affirmed by the Finance Secretary (Shri S. K.
Majumdar) has been filed.
In paragraph 13 of this affidavit it has been
stated that, since no appeal lies against the order of the Chief Commissioner,
the question of supplying a copy of the order to the appellants does not arise.
Statements of this kind cannot but leave an impression in the mind of the Court
that the respondents were not squarely dealing with the case made by the
appellants, but were evading the production of the order of the Chief
Commissioner which it was obviously insinuated not to have been made at all. In
order to compel the respondents to produce the original order, if any, the
appellants made an application to the High Court supported by an affidavit.
Paragraph 2 of the petition which was quite precise reads thus:
" 2. That with reference to paragraphs 7
& 8 of the written statement and paragraphs 10 and 11 of the affidavit of
the Finance Secretary it is submitted that the respondents have not filed any
proper return to the rule issued by the Court inasmuch as the original order
sought to be quashed with nothings etc., which led to those orders have been
withheld by the 1433 respondents. The respondents have not even stated that the
Chief Commissioner, Delhi, who is admittedly the only competent authority for
the grant of an L-2 license passed any orders himself. The replies are evasive.
It is not stated who considered the application of the petitioner i.e.
whether it was a clerk who was doing the
noting or whether the Collector or the Finance Secretary or the Chief Minister
who did it. " On this application the High Court on April 11, 1955, made
the following order:
Let the order rejecting the petitioners'
application be brought to court by an officer or official of the department
concerned." The Finance Secretary filed a reply paragraph 3 of which was
in the term-, following:
" 3. That I have carefully gone through
the relevant papers.
The case of the petitioner was considered
along with that of other applicants and it was finally decided to issue the
license in favour of Messrs. Gainda Mall Hem Raj. It was not considered
necessary to send an intimation of rejection to all those who had not been
granted the license in question. There is therefore no specific order rejecting
the petitioner's application as ordered to be produced by the Hon'ble
Court." Although it was obvious what order of the Chief Commissioner the
appellants were insisting on being produced, the respondents were prompt in
taking advantage of the wording of the High Court's order directing the
production of the order rejecting the appellants' application and stated that
there was no specific order rejecting the appellants' application. This is
nothing short of what may be called swearing by the card. The deponent
overlooks the fact that the order granting the license to Messrs. Gainda Mall
Hem Raj was in effect tantamount to a rejection of the appellants' application.
The appellants moved the High Court again on August 8, 1955. After stating how
the respondents were evading the real issue, the appellants in paragraph 5 of
the petition categorically 1434 stated that their case was that the Chief
Commissioner, Delhi, the competent authority, had not passed any order
sanctioning the license in favour of Messrs. Gainda Mall Hem Raj and prayed
that the respondents be directed to file the original record of the case
including the actual sanction for the grant of the license to Messrs. Gainda
Mall Hem Raj. On August 19, 1955, the Court ordered the relevant records to be
called for. The only thing the respondents could, at long last, produce before
the High Court was the letter of the Under Secretary, Finance, to the Excise
Commissioner dated December 14, 1954, to which reference has already been made.
Learned Solicitor-General appearing for
respondents 1 to 4 pointed out that the order which is sought to be quashed was
the grant of L-2 license for the year 1954/1955 which has long expired and
suggested that the writ petition and consequently the appeal had become
infructuous. It appears that the usual practice in such matters is that once a
license in Form L-2 is granted by the Chief Commissioner, it is almost
automatically renewed by the Collector from year to year, unless, of course,
the licensee is found guilty of breach of any excise rule and that in such
cases of renewal there arises no question of vacancy entitling any outside
competitor to apply for a license in Form L-2. That being the position-and this
is not in dispute-it is vitally important for the appellants that we should
consider the validity of the grant of the L-2 licence for 1954/1955 to Messrs.
Gainda Mall Hem Raj, for in case of our holding that the order granting the same
was a nullity on account of its not having been made by the competent
authority, the vacancy caused by the closure of business by Messrs. Army and
Navy Stores will still remain to be filled up and the appellants will yet have
a chance of having their application considered by the competent authority. We
accordingly proceeded to hear the appeal on merits.
The principal question urged before us, as
before the High Court, is whether the Chief Commissioner of Delhi made any
order under r. 1 of Ch. 5 of the Delhi 1435 Liquor License Rules, 1935. It is
significant that although the Chief Minister, the Excise Commissioner, the
Secretary of Delhi State, the Under Secretary, Finance, and the Chief
Commissioner have been impleaded in the present proceedings as respondents Nos.
2, 3, 3A, 3B and 4 respectively and although they or at least some of them
could have deposed to the material facts of their own personal knowledge, none
of them ventured to file an affidavit dealing with the categorical statement of
the appellants that no order had at any time been made by the Chief
Commissioner for granting the L-2 license to Messrs. Gainda Mall Hem Raj or
rejecting the appellants' application. Instead of adopting the simple and
straight forward way these respondents have taken recourse to putting up the
Finance Secretary to give obviously evasive replies which are wholly
unconvincing. It is needless to say that the adoption of such dubious devices
is not calculated to produce a favourable impression on the mind of the court as
to the good faith of the authorities concerned in the matter. We must also
point out that when a superior court issues a rule on an application for
certiorari it is incumbent OD the inferior court or the quasi-judicial body, to
whom the rule is addressed, to produce the entire records before the court
along with its return. The whole object of a writ of certiorari is to bring up
the records of the inferior court or other quasijudicial body for examination
by the superior court so that the latter may be satisfied that the inferior
court or the quasi-judicial body has not gone beyond its jurisdiction and has
exercised its jurisdiction within the limits fixed by the law. Non-production
of the records completely defeats the purpose for which such writs are issued,
as it did in the present case before the High Court. We strongly deprecate this
attempt on the part of the official respondents to bye-pass the court. We are
bound to observe that the facts appearing on the records before us disclose a
state of affairs which does not reflect any credit on the administration of the
erstwhile State of Delhi. We must, however, say, in fairness to the learned
Solicitor-General, that he promptly produced 1436 the entire records before us
during the hearing of this appeal.
As already stated the principal question, on
which arguments have been addressed to us, is whether the Chief Commissioner
had made any order for granting the L-2 license to Messrs.
Gainda Mall Hem Raj. The High Court answered
the question in the affirmative on two grounds, namely, (1) that the Finance
Secretary had made an affidavit stating that the decision regarding the grant
of the license to Messrs.
Gainda Mall Hem Raj had been taken by the
Chief Commissioner, and (2) that the learned Solicitor General stated in
specific terms that the matter had in fact been decided by the Chief
Commissioner. On the facts as they now emerge it appears to us that the High
Court was under some misapprehension on both these points. We have already
summarised all the statements and affidavits affirmed by the Finance Secretary
and it is quite clear that the only thing that he did not say was that the
Chief Commissioner had considered the applications or made any order. The
learned Solicitor General, with his usual fairness, also informed us that
except relying on the letter of December 14, 1954, lie did not say that the
Chief Commissioner had taken any decision in the matter. This being the
position we are free to go into the matter and come to our own decision
The records, including the documents now
produced before us, do not show that the applications had ever been placed
before the Chief Commissioner. There is nothing in the files showing any order
or note on the subject made or signed or initialled by the Chief Commissioner.
What transpires is that the Excise Commissioner (respondent No. 3) had by his
letter dated August 31, 1954, recorded the reasons why the appellants'
applications could not be entertained, one of the reasons being that they had
no premises in the Connaught Place area in New Delhi, that a note was then put
up by the Under Secretary, Finance, on September 3, 1954, suggesting that the
appellants' application should be rejected, if for nothing else, for their not
having any premises in New Delhi (which 1437 according to the appellants was
not a correct statement in view of their letters referred to above) and that
the L-2 license should be granted to Messrs. Gainda Mall Hem Raj, that the
Chief Minister on September 14, 1954, made an order on the file accordingly and
finally that the Under Secretary, Finance, wrote the letter 'dated December 14,
1954, to the Excise Commissioner intimating that the Chief Commissioner had
been pleased to approve the grant of the license to Messrs. Gainda Mall Hem Raj.
There is nothing on the record to show that the concurrence with the order of
the Chief Minister was obtained from the Chief Commissioner.
The inexorable force of the aforesaid facts,
now appearing on the record, inevitably led the learned Solicitor General to
concede that, on the records as they are, it is not possible for him to say
that the Chief Commissioner had actually made the order, but he contends that,
in view -of the letter of the Under Secretary, Finance, dated December 14,
1954, the fact that the Chief Commissioner had made the order could not be
questioned in any court. In other words the learned Solicitor General submits
that that letter embodies the order of the Chief Commissioner and the court
cannot be asked to go behind it and enquire whether the Chief Commissioner had
in fact made the order.
In order to succeed in this contention the
learned Solicitor General has to satisfy us that this letter is the embodiment
of the Chief Commissioner's order and that it has been duly authenticated. On
the second point he is clearly right, for under a rule 'Made on March 17, 1952,
by the then Chief Commissioner, in exercise of powers conferred on him by s.
38(3) of the Government of Part C States Act
(49 of 1951), an Under Secretary is also a person competent to authenticate an
order or instrument of the Government of Delhi.
The only question that remains for us to
consider is whether the letter in question is the order of the Chief
Commissioner. The letter on which the entire defence of the respondents rests
is expressed in the following words:
1438 "DELHI STATE SECRETARIAT, DELHI
STATE No. F. 10(139)/54-G A & R Dated the 14th December, 54.
From Shri M. L. Batra, M. A., P. C. S., Under
Secretary Finance (Expenditure) to Government, Delhi State.
To Shri Dalip Singh, M. A., 1. R. S.,
Commissioner of Excise, Delhi State, Delhi.
Subject:-Grant of L-2 License.
Sir, With reference to your letter No.
295/C/54 dated the 31st August, 1954, on the above subject, I am directed to
say that the Chief Commissioner is pleased to approve under Rule
5. 1. of Delhi Excise Manual Vol. 11 the
grant of L-2 ' license to Messrs. Gainda Mall Hem Raj, New Delhi, in place of
the L-2 License surrendered by Messrs. Army & Navy Stores, New Delhi.
Necessary License may kindly be issued to the party concerned under intimation
to this Secretariate.
Yours faithfully, (Sd.). M. L. Batra, Under
Secretary, Finance (Exp.) to Government, Delhi State." In the first place
it is an inter-departmental communication. In the second place it is written
with reference to an earlier communication made by the Excise Commissioner,
that is to say, ex facie, it purports to be a reply to the latter's letter of
August 31, 1954. In the third place the writer quite candidly states that he had
been " directed to say " something by whom, it is not stated. This
makes it quite clear that this document is not the order of the Chief
Commissioner but only purports to be a communication at the direction of some
unknown person-of the order which 1439 the Chief Commissioner had made. Indeed
in paragraph 7 of the respondents' statement filed in the High Court on
February 2,1955, this letter has been stated to have " conveyed the
sanction of the Chief Commissioner of the grant of license to the 5th respondent
". A document which conveys the sanction can hardly be equated with the
sanction itself Finally the document does not purport to have been authenticated
in the form in which authentication is usually made.
There is no statement at the end of the letter
that it has been written " by order of the Chief Commissioner ". For
all these reasons it is impossible to read this document as the order of the
Learned counsel for Messrs. Gainda Mall Hem
Raj relied on our decision in Dattatreya Moreshwar Pangarkar v. The State of
Bombay (1). In that case there was ample evidence on the record to prove that a
decision had in fact been taken by the appropriate authority and the infirmity
in the form of the authentication did not vitiate the order but only meant that
the presumption could not be availed of by the State.
That decision did not proceed on the
correctness of the form of authentication but on the fact of an order having in
fact been made by the appropriate authority and has thus no application to the
present case where it is conceded that the Chief Commissioner had not in fact
made or concurred in the making of an order granting the license to Messrs.
Gainda Mall Hem Raj.
In the view we have taken it is not necessary
for us to consider whether the action taken under the Excise Act and the rules
thereunder was a judicial or an executive action, for even if it were of the
latter category the letter of December 14, 1954, cannot be treated as an order
properly authenticated to which the presumption raised by Art. 166 of the
Constitution will attach. For reasons stated above we hold that there was no
valid order granting the L-2 license to Messrs. Gainda Mall Hem Raj and that in
the eye of the law the vacancy arising on the closure of the (1) (1952) S.C.R.
183 1440 business by Messrs. Army and Navy
Stores still remains unfilled. The applications of the appellants and other
applicants were for a grant of L-2 license for 1954/ 1955.
That year has gone past and accordingly in
the changed circumstances we direct the Chief Commissioner to fill up the
vacancy caused by the closure of the business by Messrs.
Army and Navy Stores by inviting applications
from intending licensees including the appellants and Messrs. Gainda Mall Hem
Raj and granting the same to the most suitable party.
We, therefore, accept this appeal, reverse
the order of the High Court and issue a mandamus to the effect aforesaid and
also direct the respondents Nos. 1 to 4 to pay the appellants' costs of this
appeal and of the proceedings in the High Court out of which this appeal has
Gainda Mall Hem Raj are to bear their own