Nagendra Nath Bora & ANR Vs. The
Commissioner of Hills Division and Appeals [1958] INSC 6 (7 February 1958)
SINHA, BHUVNESHWAR P.
BHAGWATI, NATWARLAL H.
IMAM, SYED JAFFER KAPUR, J.L.
GAJENDRAGADKAR, P.B.
CITATION: 1958 AIR 398 1958 SCR 1240
ACT:
High Court, Powers of-Writ of certiorari, if
can be issued to quash an error of fact apparent on the face of the
record-judicial Supervision, Scope of-Appellate Authority if and when acts in
quasi-judicial capacity-Test-Plea of failure of natural justice, when can be
entertained Constitution of India, Arts. 226, 227Eastern Bengal and Assam
Excise Act, 1910 (E. B. & Assam Act I of 1910) as amended by Ad. 23 Of
1955, s. 9, Rule 343.
HEADNOTE:
The High Court has no power under Art. 226 of
the Constitution to issue a writ of certiorari in order to quash an error of
fact, even though it may be apparent on the face of the record. It can do so
only where the error is one of law and that is apparent on the face of the
record. Any error of law or fact which it can correct as a court of appeal or
revision cannot be a ground for the exercise of its power under that Article.
Hari Vishnu Kamath v. Syed Ahmed Ishaque and
others, [1955] I S.C.R. 1104, relied on.
Queen v. James Bolton, (1841) (1) Queen's
Bench 66, King v. Nat Bell Liquors, Limited, [1922] 2 A.C. 128, Rex v. Northumberland
Compensation Appeal Tribunal, (1951) 1 K.B.
711 and Rex v. Northumberland Compensation
Appeal Tribunal, (1952) 1 K.B. 338, referred to.
The jurisdiction of the High Court under Art.
226 of the Constitution is limited to seeing that the judicial or
quasi-judicial tribunals or administrative bodies exercising quasi-judicial
powers, do not exceed their statutory jurisdiction and correctly administer the
law laid down by the statute under which they act. So long as the hierarchy of
officers and Appellate authorities created by a statute function within their
ambit, the manner in which they do so can be no ground for interference.
The powers of judicial supervision of the
High Court under Art. 227 Of the Constitution are not greater than those under
Art. 226 and must be limited to seeing that the tribunal functions within the
limits of its authority.
Waryam Singh and another v. Amarnath and
another, [1954] S.C.R. 565, referred to.
Consequently, where the High Court in
exercise of its powers under Arts. 226 and 227 Of the Constitution interfered
with 1241 certain orders made by the Excise Appellate Authority under the Assam
Excise Act as being in excess of its jurisdiction on the ground that they were
vitiated by errors of fact apparent on the face of the record, such
interference was without jurisdiction and the orders passed by the High Court
must be set aside.
Held further, that where an appellate Authority,
as in the instant case, is constituted the highest authority by the statute for
deciding as between the claims of rival parties, its powers cannot be
circumscribed nor can it be held to have acted in excess of its powers or
without jurisdiction on considerations foreign to the statute or the rules.
Raman and Raman Ltd. v. The State of Madyas,
[1956] S.C.R.
256, referred to.
In the absence of anything to show that the
appellate Authority had contravened any rules of natural justice, which must be
understood in the context of the' rules laid down by the statute itself, it
would be wrong to say that there has been a failure of natural justice simply
because the view it took of the matter might not be acceptable to another
tribunal.
New Prakask Transport Co. Ltd. v. New Suwarna
Transport Co. Ltd., [1957] S.C.R. 98, relied on.
The question whether an administrative
authority functions merely in an administrative or quasi-judicial capacity must
be determined on an examination of the statute and its rules under which it
acts, and there can be no doubt on such examination that the Authorities
mentioned in s. 9 of the Eastern Bengal and Assam Excise Act, 1910, as amended
by Assam Act 23 Of 1953, are no mere administrative bodies and their orders
are, therefore, amenable to the powers of control and supervision vested in the
High Court by Arts.
226 and 227 Of the Constitution.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 668, 669, 670 and 672 of 1957.
Appeal by special leave from the judgment and
order dated August 6, 1957, of the Assam High Court in Civil Rule No. 65 of
1957.
A. V. Viswanatha Sastri and Dipak Datta
Choudhury, for the appellants in C. As. Nos. 668 and 669 of 1957 and respondent
No. 2 in C.A. No. 670 of 1957.
S. M. Lahiri, Advocate-General for the State
of Assam and Naunit Lai, for the appellants in C.A. No. 670 of 1957 and
respondent No. 2 in C.A. No. 669 of 1957.
1958. February 7. The following Judgment of
the Court was delivered by 1342 SINHA J.-These appeals by special leave are
directed against the judgments and orders of the Assam High Court, exercising
its powers under Arts. 226 and 227 of the Constitution, in respect of orders
passed by the Revenue Authorities under the provisions of the Eastern Bengal
and Assam Excise Act, 1910 (E. B. and Assam Act I of 1910) (hereinafter
referred to as the Act). They raise certain common questions of constitutional
law, and have, therefore, been heard together, and will be disposed of by this
Judgment. Though there are certain common features in the pattern of the
proceedings relating to the settlement of certain country spirit shops, when
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.
(1) Civil Appeal No. 668 of 1957.
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 Commissioner of Excise, Assam, are the first and the
second respondents in this case It is necessary to state at this stage that in
respect of the financial year 1956-57, the shop in 1243 question was ordered by
the first respondent as the Excise Appellate Authority to be settled with the
first appellant Nagendra Nath as an individual, setting aside the orders of the
Deputy Commissioner and the Excise Commissioner. The other competitors for the
settlement of the said shop being dissatisfied with the orders of the first
respondent, moved the Assam High, Court and challenged the validity of the
settlement made in the first appellant's favour. Similar writ cases challenging
orders of settlement by the first respondent as the Excise Appellate Authority,
had been instituted in the High Court. All those cases were heard together, and
the High Court, by its judgment dated May 22, 1956, quashed the orders passed
by the first respondent, chiefly on the ground that the Appellate Authority had
been illegally constituted. The matter was brought by way of special leave to
this Court, and was heard by the Constitution Bench which, by its judgment
dated January 31, 1957, decided that the constitution of the Commissioner of
Hills Division and Appeals as the ultimate appellate Authority under the Act,
was not unconstitutional. The judgment of this Court is reported in the case of
The State of Assam v. A. N. Kidwai (1). It will be necessary, in the course of
this judgment, to make several references to that decision which, for the sake
of brevity, we shall call the ruling of this Court'. The result of the ruling
of this Court, was that the determination by the Assam High Court that the
orders passed by the first respondent, were void, was set aside, and the
settlement made by that Authority, consequently, stood restored. But in the
meantime, as the orders of the first respondent stood quashed as a result of
the judgment of the High Court, the direction of the Excise Commissioner that
the shop in question be resettled, was carried out, and the settlement was made
with the third respondent aforesaid as an individual. He continued in
possession of the shop until February 26, 1957, on which date, the first
appellant was put in possession as a result of the ruling (1) [1957] S.C.R.
295.
158 1244 of this Court. Even so, the first
appellant could exercise his rights as a lessee of the shop only for a few
months during 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 vacated as a result of the first
respondent's order. The third and the fourth respondents, as also other
dissatisfied tenderers preferred appeals to the first respondent against the
order of the second respondent (the Excise Commissioner). The first respondent
dismissed those appeals and confirmed the order settling the shop with the
appellants, by his order dated June 10, 1957. The respondents 3 and 4, then,
moved the High Court under Arts. 226 and 227 of the Constitution, for an
appropriate writ for quashing the order passed by the first respondent. The
High Court, by its order dated August 6, 1957, quashed the aforesaid order of
settlement in favour of the appellants by the first respondent. The High Court
further directed that all the tenders be reconsidered in the light of the
observation made by it. The main ground of decision in the 1245 High Court, was
that the Excise Appellate Authority had acted in excess of its jurisdiction,
and that its order was vitiated by errors apparent on the face of the record.
The prayer for a certificate that the case was a fit one for appeal to this
Court, having been refused by the High Court, the appellants obtained special
leave to appeal.
(11) Civil Appeal No. 669 of 1957.
This appeal relates to the settlement of the
Murmuria country spirit shop in the district of Sibsagar, for the financial
year 1957-58. The appellant Lakhiram Kalita and the first respondent Bhanurani
Pegu, amongst others, had submitted their tenders for the settlement of the
shop. The Deputy Commissioner, after consulting the Advisory Committee, settled
the shop with the first respondent aforesaid. The appeals filed by the
appellant and other disappointed tenderers, were dismissed by the Excise
Commissioner by his order dated March 25, 1957. Against the said order, the
appellant and another party filed further appeals to the Commissioner of Hills
Division and Appeals, who, by his order dated May 30, 1957, set aside the settlement
in favour of the first respondent, and ordered settlement with the appellant.
In pursuance of that order, the appellant took possession of the shop with
effect from June 5, 1957. The first respondent's application for review of the
order aforesaid, stood dismissed on June 11, 1957.
Against the aforesaid orders of the
Commissioner of Hills Division and Appeals, the first respondent moved the High
Court under Arts. 226 and 227 of the Constitution, for a proper writ for
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 1246 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 him to possession in view of the observation of the High
Court, he asked the appellant to obtain further order from the High Court.
Thereafter, the appellant again moved the High Court on June 28, 1957, stating
all the facts leading to his wrongful dispossession, and seeking relief in the
High Court. No order was passed on that petition. Ultimatey, the High Court, by
its order dated July 31, 1957, set aside the order of the Commissioner of Hills
Division and Appeals. The appellant's prayer for a certificate that the case
was a fit one for appeal to this Court, having been refused by the High Court,
he moved this Court and obtained special leave to appeal.
(III) Civil Appeal No. 670 of 1957.
This appeal is on behalf of the Commissioner
of Hills Division and Appeals, Assam, against the judgment and order of the
High Court relating to the Murmuria shop which is the subject-matter of Civil
Appeal No. 669 referred to in the previous paragraph. The first respondent to
this appeal is Bhanuram Pegu who is also the first respondent in Civil Appeal
No. 669 of 1957. The second respondent is Lakhiram Kalita who is the appellant
in Civil Appeal No. 669 of 1957.
Both these respondents, as already indicated,
are the competing tenderers for the shop in question. The facts of this case
have already been stated in relation 1247 to Civil Appeal No. 669 of 1957. This
appeal has been brought with a view to getting the legal position clarified in
view of the frequent appeals made to the appellant in the matter of settlement
of excise shops.
(IV) Civil Appeal No. 672 of 1957.
This appeal relates to the Tinsukia country
spirit shop in the district of Lakhimpur. The appellants, Rafiulla Khan and
Mahibuddin Ahmad, are partners, and as such, are interested in the settlement
of the shop for the financial year 1957-58. This shop had been jointly settled
with the first appellant and his father for a number of years. For the year
1956-57 also, the lease had been granted to them by the Deputy Commissioner,
after consultation with the Advisory Committee. A number of unsuccessful
tenderers filed appeals before the Commissioner of Excise questining the
settlement with the first appellant and his father in respect of the year
1956-57. The Excise Commissioner set aside the settlement, and ordered a
resettlement. The first appellant and his father filed an appeal before the
Excise Appellate Authority, against the order of the Commissioner of Excise.
The Appellate Authority 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 1248 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
order, and directed the settlement to be made with the first respondent. As
there was no Excise Appellate Authority functioning at the time as a result of
the decision, aforesaid, of the High Court, declaring the constitution of such
an Authority to be void, the first appellant moved the High Court under Arts.
226 and 227 of the Constitution, on the ground that the order of the Excise
Commissioner was vitiated by an error apparent on the face of the record in so
far as he had misunderstood the order of the Supreme Court passed on the stay
petition. The High Court admitted the application but rejected the prayer for
maintenance of status quo in the sense that the first appellant's possession be
maintained. On the stay petition being rejected by the High Court, the first
respondent took possession of the shop from the first appellant as a result of
the Excise Commissioner's order in his favour. The High Court ultimately
dismissed the writ application by its order dated December 6, 1.956. The appeal
filed by the appellant and his father, already pending in this Court, was heard
and determined as aforesaid, in January, 1957. This Court reversed the decision
of the High Court, and restored the status of the Excise Appellate Authority.
As a result of the ruling of this Court, the Excise Appellate Authority, by its
order dated February 25, 1957, directed delivery of possession back to the
first appellant and his father, holding that the order of resettlement and the
resettlement, itself, in pursuance of that order, were all wiped out.
Against the said order, the first respondent
moved the High Court under Arts. 226 and 227 of the Constitution for quashing
the order for delivery of possession, on the ground of want of jurisdiction,
and for ad interim stay. The High Court issued a rule and passed an order for
interim stay on February 26, 1957. The High Court made the rule absolute by its
order dated March 26, 1957, taking the view that the attention of this Court
had not been drawn to the interim 1249 settlement of the shop in the absence of
an order of stay.
It appears further that during the pendency
of the appeal in this Court, fresh settlement for the financial year 1957-58,
took place towards the end of 1956, and the beginning of 1957. The Tinsukia
shop -was settled with respondents I and 2 though the appellants also had
jointly submitted a tender for the same. The appellants 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 sophisticated and more easily understood language in
that part of the country, perhaps, the party in possession, would not have been
dispossessed of the shop settled with it. The appellants moved the High Court
against the Commissioner's order directing possession to be given to the
respondents 1 and 2. The High Court issued a rule but refused to grant stay of
the operation of the order directing possession to be given. During the final
hearing of the rule before the High Court, the appellants again moved a
petition on July 5, 1957, for vacating the 1250 order of possession which was
based on a misapprehension of the order of the High Court maintaining status
quo ante, but apparently, no order was passed because possession had already
been given to the respondents I and 2. During the hearing of the rule by the
High Court, an unfortunate incident occurred, for which the appellants cannot
altogether be absolved of some responsibility, as a result of which, one of the
learned judges constituting the Bench, namely, Deka J. expressed his
unwillingness to proceed with the hearing of the case. The hearing had,
therefore, to be adjourned on July 15, 1957, until a new Bench could be
constituted. The appellants renewed their application already made on July 5,
as aforesaid, for undoing the unintended effect of the order of the High Court,
that the status quo ante was to continue. But on July 30, the Chief Justice
directed that the matter be placed before a Division Bench. As there was no
third judge at the time, the disposal of the case, naturally had to stand over
until the third judge was available. The matter of delivery of possession was
again mentioned before the Division Bench of the Chief Justice and Deka J. The
High Court rejected the application on grounds which cannot bear a close
scrutiny.
The petitioners also approached the Excise
Appellate Authority, but it refused to reconsider the matter as the case was
then pending before the High Court. Again on August 14, 1957, a fresh
application was made to the High Court, along with a copy of the orders passed
by the Excise Appellate Authority and the Deputy Commissioner, Lakhimpur,
giving delivery of possession to respondents 1 and 2. But, this time, Deka J.
refused to hear the matter, and naturally, the Chief Justice directed the
matter to be placed before him, sitting singly. on August 19, 1957, the matter
was placed 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 1251 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 'nonprohibited 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 31. According to the
present practice contained in Executive lnstructions, intending candidates for
licences, have to submit tenders to the Deputy Commissioner for the Sadar
Division and to Sub-Divisional officers for Sub-Divisions, in accordance with
the terms of notices published for the purpose. Such tenders are treated as
strictly confidential. Settlement is made by the Deputy Commissioner or the
Sub-Divisional Officer concerned, as the case may be, in consultation with an
Advisory Committee consisting of 5 local members or less. The selection of a
particular tenderer is more or less a matter of administrative discretion with
the officer making the settlement. Under the Act, an appeal from an order of
settlement made by a Deputy Commissioner or Sub-Divisional officer, lies to the
Commissioner of Excise, and from an order of the Commissioner of Excise to the
Excise Appellate Authority whose decision becomes final. Section 9 of the Act,
dealing with appeal and revision, has undergone a series of amendments, and the
section as it has emerged out of the latest amendment by the Amending Act-The
Assam Act 23 of 1955-which received the assent of the Governor of Assam on
December 22, 1955, and was published in the Assam Gazette dated 159 1252
December 28, 1955, is in these terms:
"9. (1) Orders passed under this Act or
under any rule made hereunder shall be appealable as follows in the manner
prescribed by such rules as the State Government may make in this behalf(a) to
the Excise Commissioner, any order passed by the District Collector or a
Collector other than the District Collector, (b) to the Appellate Authority
appointed by the State Government for the purpose, any order passed by the
Excise Commissioner.
(2) In cases not provided for by clauses (a)
and (b) of sub-section (1), orders passed under this Act or under any rules
made hereunder shall be appealable to such authorities as the State Government
may prescribe.
(3) The Appellate Authority, the Excise
Commissioner or the District Collector may call for the proceedings held by any
officer or person subordinate to it or him or subject to its or his control and
pass such orders thereon as it or he may think fit." Rules 339, 340, 341
and 345 of the Assam Excise Manual, have, thus, become obsolete and have been
deleted as a result of the latest amendment aforesaid. 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, 1253
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 the Act, much could have been said in support' of this contention. As
observed by this Court in the case of Cooverjee B. Bharucha v. The Excise
Commissioner and the Chief Commissioner, Ajmer and others(1) there is no
inherent right in a citizen to sell liquor. It has further been observed by
this Court in the recent case of the State of Assam v. A. N. Kidwai, (supra),
at page 301 as follows:
" A perusal of the Act and rules will
make it clear that DO person has any absolute right to sell liquor and that the
purpose of the Act and the rules is to control and restrict the consumption of
intoxicating liquors, such control and restriction being obviously necessary
for the preservation of public health and morals, and to raise revenue." It
is true that no one has an inherent right to settlement of liquor shops, but
when the State, by public notice, invites candidates for settlement to make
their tenders, and in pursuance of such a notice, a number of persons make such
tenders each one makes a claim for himself in opposition to the claims of the
others, and the public authorities concerned with the settlement, have to
choose from amongst them. If the choice had rested in the hands of only one
authority like the District Collector on his subjective satisfaction as to the
fitness of a particular candidate without his orders being amenable to an
appeal or appeals or revision, the position may have been different. But s. 9
of the Act has laid down a regular hierarchy of authorities, one above the
other, with the right of hearing appeals or revisions. Though the Act and the
rules do not, in express terms, require reasoned orders to be recorded, yet, in
the context of the subject matter of the rules, it becomes necessary for the
(I) [1954] S. C. R. 873, 880.
1254 several authorities to pass what are
called I speaking orders'. Where there is a right vested in an authority
created by statute, be it administrative or quasijudicial, to hear appeals and
revisions, it becomes its duty to hear judicially, that is to say, in an
objective manner, impartially and after giving reasonable opportunity to the
parties concerned in the dispute, to place their respective cases before it. In
this connection, the observations of Lord Haldane at p. 132, and of Lord Moulton
at p. 150, in Local Government Board v. Arlidge (1), to the following 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, and whether they give much or
little opportunity for what I may call quasi-litigious procedure depends solely
on what Parliament has thought right. These rules are beyond the criticism of
the Courts, and it is not their business to add to or (1) [1915] A.C. 120.
1255 take away from them, or even to discuss
whether in the opinion of the individual members of the Court they are adequate
or not." The legal position has been very succinctly put in Halsbury's
Laws of England(1), as follows:"Moreover an administrative body, whose
decision is actuated in whole or in part by questions of policy, may be under a
duty to act judicially in the course of arriving at that decision. Thus, if in
order to arrive at the decision, the body concerned had to consider proposals
and objections and consider evidence, if at some stage of the proceedings
leading up to the decision there was something in the nature of a lis before
it, then in the course of such consideration and at that stage the body would
be under a duty to act judicially. If, on the other hand, an administrative
body in arriving at its decision has before it at no stage any form of lis and
throughout has to consider the question from the point of view of policy and
expediency, it cannot be said that it is under a duty at any time to act
judicially.
Even where the body is at some stage of the
proceedings leading up to the decision under a duty to act judicially, the
supervisory jurisdiction of the Court does not extend to considering the
sufficiency of the grounds for, or otherwise challenging, the decision
itself." The provisions of the Act are intended to safeguard the interest
of the State on the one band, by stopping, or at any rate, checking illicit
distillation, and on the other band, by raising the maximum revenue consistently
with the observance of the rules of temperance. The authorities under the Act,
with Sub-divisional Officers at the bottom and the Appellate Authority at the
apex of the 'hierarchy, are charged with those duties. The rules under the Act
and the executive instructions which have no statutory force but which are
meant for the guidance of the officers concerned, enjoin upon those officers,
the duty of seeing to it that shops are settled with persons of character and
experience in the line, subject to certain reservations in (1) Vol. II. 3rd
Edn., PP. 56-57.
1256 favour of tribal population. Except
those general considerations, 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, because r. 344 only lays down
that no appeal shall lie against the orders of composition, thus, leaving all
other kinds of orders open to appeal or revision. Rule 343 provides that every
memorandum of appeal shall be presented within one month from the date of the
order appealed against, subject to the requisite time for obtaining a certified
copy of the order being excluded. Rule 344 requires the memorandum of appeal to
be accompanied by a certified copy of the order appealed against. The
memorandum of appeal has to be stamped with a requisite court-fee stamp. Rule
343 was further amended by the Notification dated March 14, 1957, by adding the
following proviso and explanations to that rule:
" Provided further that the competent
Appellate Authority shall have the power to admit the appeal after the
prescribed period of limitation when the appellant satisfies the Appellate
Authority that he had sufficient cause for not preferring the appeal 1257
within such period.
Explanation (1). The fact that the appellant
was misled by any order, practice or judgment of any Appellate Authority in
ascertaining or computing the prescribed period of limitation may be sufficient
cause within the meaning of this Rule.
Explanation (2). The fact that the Appellate
Authority was unable to function for any period by reason of any judicial
pronouncement shall be sufficient cause within the meaning of this Rule.
The amendment shall be deemed to have been
made on 23rd May, 1956, and shall have retrospective effect since that date.
" These rules, read along with the
recent amendments, set out above, approximate the procedure to be followed by
the Appellate Authorities, to the regular procedure observed by courts of
justice in entertaining appeals. As would appear from the ruling of this Court
at p. 304, where the provisions and effect of the Assam Revenue Tribunal
(Transfer of Powers) Act, 1948, (Assam IV of 1948) have been set out, the
ultimate jurisdiction to hear appeals and revisions, was divided between the
Assam High Court and the Authority referred to in s. 3(3) of that Act. Appeals
and revisions arising out of cases covered by the provisions of the enactments
specified in Schedule 'A' to that Act, were to lie in and to be heard by the
Assam High Court, and the jurisdiction to entertain appeals and revisions in
matters arising under 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 1258 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 there under,
indicate the grounds on which the first Appellate Authority, namely, the Excise
Commissioner, or the second Appellate Authority (the Excise Appellate
Authority), has to exercise his or its appellate or revisional powers. There is
no indication that they make any distinction between the grounds of
interference on appeal and in revision. That being so, the powers of the
Appellate Authorities in the matter of settlement, would be co-extensive with
the powers of the primary authority, namely, the District Collector or the SubDivisional
Officer. See in this connection, the observations of the Federal Court in Lachmeshwar
Prasad Shukul and others v. Keshwar Lal Chaudhuri and others (1), and of this
Court in Ebrahim Aboobakar and another v. Custodian -General of Evacuee
Property(2). In the latter case, this Court, dealing with the powers of the
Tribunal (Custodian-General of the Evacuee Property), under s. 24 of Ordinance
No. 27 of 1949, observed:
" Like all courts of appeal exercising
general jurisdiction in civil cases, the respondent has been constituted an
appellate court in words of the widest amplitude and the legislature has not
limited his jurisdiction by providing that such exercise will depend on the
existence of any particular state of facts.
Thus, on a review of the provisions of the
Act and the rules framed there under, it cannot be said that the authorities
mentioned in s. 9 of the Act, pass purely administrative orders which are
beyond the ambit of the High Court's power of supervision and control. Whether
or not an administrative body or (1) [1940] F.C.R. 84, 102.
(2) [1952] S.C.R. 696, 704.
1259 authority functions as a purely
administrative one or in a quasi-judicial capacity, must be determined in each
case, on an examination of the relevant statute and the rule,,;
framed there under. The first contention
raised on behalf of the appellant must, therefore, be overruled.
Now, turning to the merits of the High
Court's order, it was contended on behalf of the appellant that the High Court
had misdirected itself in holding that the Appellate Authority had exceeded its
jurisdiction in passing the order it did.
There is no doubt that if the Appellate
Authority whose duty it is to determine questions affecting the right to
settlement of a liquor shop, in a judicial or quasi-judicial manner, acts in
excess of its authority vested by law, that is to say, the Act and the rules
there under, its 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 our opinion, in so
circumscribing the powers of the Appellate Authority, the High Court has erred.
See in this connection, the decision of this Court in Raman 160 1260 and Raman
Ltd. v. The State of Madras(1). In that case, this Court dealt with the powers
of the State Government, which had been vested with the final authority in the
matter of grant of stage carriage permits. This Court held that as the State
Government had been constituted the final authority under the "Motor
Vehicles Act, to decide as between the rival claimants for permits, its
decision could not be interfered with under Art. 226 of the Constitution,
merely because the Government's view may have been erroneous. In the instant
cases, the Appellate Authority is contemplated by s. 9 of the Act, to be the
highest authority for deciding questions of settlement of liquor shops, as
between rival claimants. The appeal or revision being undefined and unlimited
in its scope, the highest authority under the Act, could not be deprived of the
plenitude of its powers by introducing considerations which are not within the
Act or the rules.
It is true that the Appellate Authority
should not lightly set aside the selection made by the primary Authority, that
is to say, a selection made by a Subdivisions Officer or by a District
Collector, should be given due weight in view of the fact that they have much greater
opportunity to know local conditions and local business people than the
Appellate Authority, even as the appeal courts are enjoined not to interfere
lightly with findings of fact recorded by the original courts which had the
opportunity of seeing witnesses depose in court, and their demean our while
deposing in court. But it is not correct to hold that because the Appellate
Authority, in the opinion of the High Court, has not observed that caution, the
choice made by it, is in excess of its power or without jurisdiction.
The next ground of attack against the order
of the High Court, under appeal, was that the High Court had erred in coming to
the conclusion that there had been a failure of natural justice. In this
connection, the High Court has made reference to the several affidavits filed
on either side, and the order in which they (1) [1956] S.C.R. 256.
1261 had been filed, and the use made of
those affidavits or counter-affidavits. As already indicated, the rules make no
provisions for the reception of evidence oral 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. (1). 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 preconceived 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 remains to consider the last contention
raised on behalf of the appellants in these cases, namely, whether there has
been any error apparent on the face of the record, in the order of the
Appellate Authority, which would attract the supervisory jurisdiction of the
High Court. In this connection, the following observations of the High Court
are relevant:
" But the most glaring error on face of
the order of the Appellate Authority is that it does not even refer to the
report of the Deputy Commissioner on which the Excise Commissioner had so
strongly relied. In my opinion, it was under the Rules obligatory on the
Appellate Authority to consider that report before disposing of the appeal, and
in failing to do so, the officer (1) [1957] S.C.R. 98.
1262 acted arbitrarily and in excess of his
powers as an Appellate Authority." It may be that durinly the prolonged
hearing of these cases before the High Court where, counsel for the different
parties placed their respective view-points after making copious references to
the documents, the ',-High Court was greatly impressed that the order of settlement
in one case (Murmuria shop), made by the Deputy Commissioner, as confirmed by
the Excise Commissioner, was the right one and that the choice made by the
Appellate Authority did not commend itself to the High Court. It may further be
that the conclusions of fact of the High Court were more in consonance with the
entire record of the proceedings, and that the choice made by the ultimate
Revenue Authority, was wrong. But, under the law as it stands, the High Court
exceeded its powers in pronouncing upon the merits of a controversy which the
Legislature has left to the discretion of the Appellate Authority. But is that
a mistake apparent on the face of the record, as understood in the context of
Art. 226 of the Constitution ? That leads us to a consideration of the nature
of the error which can be said to be an error apparent on the face of the
record which would be one of the grounds to attract the supervisory
jurisdiction of the High Court under Art. 226 of the Constitution. The ancient
writ of certiorari which now in England is known as the order of certiorari,
could be issued on very limited grounds. These grounds have been discussed by
this Court in the cases of:
Parry & Co. v. Commercial Employee's
Association, Madras (1), Veerappa Pillai v. Raman and Raman Ltd., and others
(2), Ibrahim Aboobaker v. Custodian General of Evacuee Property (3), T. C.
Basappa v. T. Nagappa All these cases have been considered by this Court in (1)
[1952] S.C.R. 519. (2) [1952] S.C.R. 583.
(3) [1952] S.C.R. 696. (4) [1955] 1 S.C.R.
250.
1263 the case of Hari Vishnu Kamath v. Syed
Ahmad Ishaque and others (1). 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,
has observed as follows:
" It may therefore be taken as settled
that a writ of certiorari could be issued to correct an error of law. But it is
essential that it should be something more than a mere error: it must be one
which must be manifest on the face of the record." The High Court appears
to have been under the impression that the expression "error apparent on
the face of the record" may also be in respect of findings of fact. For
example, in Civil Appeal No. 668 of 1957, relating to Jorhat shop, the High
Court has observed as follows:
" The Appellate Authority further
reinforced its suspicion by mentioning that Dharmeswar, his father and brother
are summoned in connection with some complaint, but that was a matter purely
extraneous, ,to speak the least-and it could have found that the complaint was
filed after the settlement. The complaint had no reference to any offence of
smuggling or the like as has been conceded. These were errors ap. parent on the
face of the record." Later, in the course of the same judgment, it has
been observed as follows:
" This is another instance where I find
that the Excise Appellate Authority has misconceived its (1) [1955] 1 S.C.R. 1104,
1121.
1264 powers as such and purported to decide
the appeal either on errors of record, speculations or on irrelevant
considerations, irrespective of all that happened in the earlier stages of the
matter. It starts with an apparent error of record when it says that in the
judgment of the Excise Commissioner it finds 'a clear admission that Shri
Garela Kalita, father of Shri Dharmeswar Kalita, is a suspected smuggler.' In
fact, there was no such admission.
It was held by the Commissioner on the contrary
that 'the learned Deputy Commissioner and members of the Advisory Committee
thought that the major son who bears an excellent character should not be
punished for the alleged sin of his father'." These excerpts from the
judgment of the High Court are not exhaustive, but only illustrative of the
observation that the High Court appears to have treated an error of fact on the
same footing as an error of law apparent on the face of the record. The
question, naturally, arises whether an error of fact can be invoked in aid of
the power of the High Court to quash an order of a subordinate court or
Tribunal.
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, 1265 because, in each case, the High Court has
been invited to exercise its powers under Art. 226, to issue a writ of
certiorari on the specific ground that the orders impugned before it, had been
vitiated by errors apparent on the face of the record-errors not of law but of
fact.
The ancient case of the Queen v. James
Bolton(1), is treated as a landmark on the question of the power to issue a
writ or order of certiorari. That was a case in which an order of justices for
delivering up a house to parish officers, under a statute, was called up on
certiorari. Lord Denman C. J. while discharging the rule, made the following
observations in the course of his judgment, which have been treated as
authoritative and good law even now:
" The first of these is a point of much
importance, because of very general application ; but the principle upon which
it turns is very simple: the difficulty is always found in applying it. The
case to be supposed is one like the present, in which the Legislature has
trusted the original, it may be (as here) the final, jurisdiction on the merits
to the magistrates below; in which this Court has no jurisdiction as to the
merits either originally or on appeal. All that we can then do, when their
decision is complained of, is to see that the case was one within their
jurisdiction, and that their proceedings on the face of them are regular and
according to law. Even if their decision should upon the merits be unwise or
unjust, on these grounds we cannot reverse it." While dealing with the
argument at the Bar, complaining of the unsoundness of the conclusions reached
by the magistrates and the hardships to be caused by their erroneous order, the
Court made the following observations which are very apposite to the facts and
circumstances disclosed in the instant appeals, and which all courts entrusted
with the duty of administering law, should bear in mind, so that they may not
be deflected from the straight path of enforcing the law, by considerations
based on hardship or on vague (1) [1841] (I) Queen's Bench p. 66, 72, 76; 113
English Reports I054,1057,1058.
1266 ideas of what is sometimes described as
justice of the cause:
" Beyond this we cannot go. The
affidavits, being before us, were used OD the argument; and much was said of
the unreasonableness of the conclusion drawn by the magistrates, and of the
hardship on the defendant if we would not review it, there being no appeal to
the sessions. We forbear to express 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 (1). 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. In the course of their
judgment, their Lord. ships further observed that the law laid down in Reg v.
Bolton (supra) has never been seriously questioned in England, and that the
same rules were Applicable to other parts of the Commonwealth, except in so far
as they may have been modified by statute. They also observed that the decision
in Reg v. Bolton (supra) undoubtedly is a landmark in the history of
certiorari, for it summarises in an impeccable form the principles of its
application........
But latterly, the rule (1) [1922] 2 A.C. 128.
1267 laid down in Bolton's case, appears to
have been slurred over in some decided cases, in England, which purported to
lay down that a writ or order of certiorari could be obtained only if the order
impugned disclosed an error of jurisdiction, that is to say, complete lack of
jurisdiction or excess of jurisdiction or the refusal to exercise jurisdiction,
and not to correct an error of law, even though apparent on the face of the
record. The question was brought to a head in the case of Rex v. Northumberland
Compensation Appeal Tribunal (1). It arose out of an application for an order
of certiorari for quashing a decision reached by the respondent Northumberland
Compensation Appeal Tribunal. Lord Goddard C. J. began his judgment by
observing that the point involved in the case was " of the very greatest
importance " which had " necessitated the examination of a large
number of cases and consideration of the principles which apply to the doctrine
of certiorari ". He further observed that certiorari is a remedy of a very
special character. He, then, discussed the object and scope of the writ of
certiorari and the history of the jurisdiction as exercised in the English
courts. He then dealt with the contention directly raised for the determination
of the court that an order of certiorari, can issue only to remove a defect of
jurisdiction and that it does not extend to removing an order out of the way of
the parties on account of a mistake of law apparent on the face of the record.
The court then considered the relevant authorities, and came to the conclusion
that it was wrong to hold that the ground of interference on certiorari, was
only an error or excess of jurisdiction, and that it did not extend to
correction of an error of law apparent on the face of the record. The Lord
Chief Justice then pointed out that the examination of the authorities 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:(1) [1951] 1 K.B. 71 161 1268
" 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(1). 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 of law, has
always been recognized as one of the grounds for the issue of an order of
certiorari. Denning L. J. also, in the course of his judgment, examined the
question whether the High Court could intervene to correct the decision of a
statutory tribunal which is erroneous in point of law. On an examination of the
authorities from ancient times, the Lord Justice made the following
observations:" Of recent years the scope of certiorari seems to have been
somewhat forgotten. It has been supposed to be confined to the correction of
excess of jurisdiction, and not to extend to the correction of errors of law ;
and several judges have said as much. But the Lord Chief Justice has, in the
present case, restored certiorari to its rightful position and shown that it
can be used to correct errors of law which appear on the face of the record
even though they do not go to jurisdiction. I have looked into the history of
the matter, and find that the old cases fully support all that the Lord Chief
Justice said. Until about 100 years ago, certiorari was regularly used to
correct errors of law on the face of the record. It is only within the last
century that it has fallen into disuse, and that is only because there has,
until recently, been little occasion for its exercise.
(I) [1952] 1 K.B. 338.
1269 Now, with the advent of many new
tribunals, and the plain need for supervision over them, recourse must once
again be had to this well-tried means of control." The other Lord Justice
who took part in the hearing of the appeal, Morris L. J. also examined that
question and concluded as follows:" It is plain that certiorari will not
issue as the, cloak of an appeal in disguise. It does not lie in order to bring
up an order or decision for rehearing of the issue raised in the proceedings.
It exists to correct error of law where revealed on the face of an order or
decision, or irregularity, or absence of, or excess of, jurisdiction where
shown." I It is clear from an examination of the authorities of this Court
as also of the courts in England, that one of the grounds on which the
jurisdiction of the High Court on certiorari may be invoked, is an error of law
apparent on the face of the record and not every error either of law or fact,
which can be corrected by a superior court, in exercise of its statutory powers
as a court of appeal or revision.
So far as we know, it has never been
contended be. fore 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 1270 the
authorities of this Court and of those in England, referred to above, as also
those considered in the several judgments of this Court, that the Common Law
writ, now called order of certiorari, which was also adopted by our
Constitution, is not meant to take the place of an appeal where the statute
does not confer a right of appeal. Its purpose is only to determine, on an
examination of the record, whether the inferior tribunal has exceeded its
jurisdiction or has not proceeded in accordance with the essential requirements
of the law which it was meant to administer. ,Mere formal or technical errors,
even though of law, will not be sufficient to attract this extraordinary
jurisdiction.
The principle underlying the jurisdiction to
issue a writ or order of certiorari, is no more in doubt, but the real
difficulty arises, as it often does, in applying the principle to the
particular facts of a given case. In the judgments and orders impugned in these
appeals, the High Court has exercised its supervisory jurisdic note in respect
of errors which cannot be said to be errors of law apparent on the face of the
record. If at all they are errors, they are errors in appreciation of
documentary evidence or affidavits, errors in drawing -inferences or omission
to draw inferences. In other words, those are errors which a court sitting as a
court of appeal only, could have examined and, if necessary, corrected. As
already indicated, the Appellate Authority had unlimited jurisdiction to
examine and appreciate the evidence in the exercise of its appellate or
revisional jurisdiction. Section 9(3) of the Act, gives it the power to pass
such orders as it thought fit. These are words of very great amplitude. The
jurisdiction of the Appellate Authority, to entertain the appeals, has never
been in doubt or dispute. Only the manner of the exercise of its appellate
jurisdiction was in controversy, It has not been shown that in exercising its
powers, the Appellate Authority disregarded any mandatory provisions of the
law.
The utmost that has been suggested, is that
it has not carried out certain Executive Instructions. For example, it has been
said that the Appellate Authority did not observe the 1271 instructions that
tribal people have to be given certain preferences, or, that persons on the
debarred list, like ,smugglers, should be kept out (see p. 175 of the Manual).
But all these are only Executive Instructions
which have no statutory force. Hence, 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 which those powers have been exercised.
In the instant cases, the High Court appears to have gone beyond the limits of
its powers under Arts. 226 and 227 of the Constitution.
In one of the cases, the High Court has
observed that though it could have interfered by issuing a writ under Art. 226
of the Constitution, they would be content to utilize their powers of judicial
superintendence under Art. 227 of the Constitution vide its judgment dated July
31, 1957, in appeals relating to Murmuria shop (Civil Appeals Nos. 669 and 670
of 1957). In exercise of that power, the High Court set aside the order of the
Appellate Authority, and directed it to re-hear the appeal 'according to law in
the light of the principles indicated in this judgment'.
1272 A Constitution Bench of this Court
examined the scope of Art. 227 of the Constitution in the case of Waryam Singh
and another v. Amarnath a-rid another (1). This Court, in the course of its
judgment, made the following observations at p. 571 :
" This power of superintendence
conferred by article 227 is, as pointed out by Harries C. J. in Dalmia Jain
Airways Ltd. v. Sukumar Mukherjee (2), to be exercised most sparingly and only
in appropriate cases in order to keep the Subordinate Courts within the bounds
of their authority and not for correcting mere errors." It is, thus, clear
that the powers of judicial interference under Art. 227 of the Constitution
with orders of judicial or quasi-judicial nature, are not greater than the
powers under Art. 226 of the Constitution. Under Art. 226, the power of
interference may extend to quashing an impugned order on the ground of a
mistake apparent on the face of the record. But under Art. 227 of the
Constitution, the power of interference is limited to seeing that the tribunal
functions within the limits of its authority. Hence, interference by the High
Court, in these cases, either under Art. 226 or 227 of the Constitution, was
not justified.
After having dealt with the common arguments
more or less applicable to all the cases, it remains to consider the special
points raised on behalf of the respondents in Civil Appeal No. 672 of 1957,
relating to the Tinsukia country spirit shop. It was strenuously argued that
the appeal was incompetent in view of the fact that the rule issued by the High
Court, 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, (1) [1954]
S.C.R. 565. (2) A.I. R. (195i) Cal. 193.
1273 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
the notice of the High Court several times, but the High Court felt unduly
constrained to permit the wrong to continue. We heard the learned counsel for
the respondents at great length as to whether he could justify the continuance
of this undesirable and unfortunate state of affairs. It has to be remembered
that the appellants, as a result of fortuitous circumstances, had been deprived
of the possession of the shop during the best part of the financial year
1956-57 The appellants had been deprived of the fruits of their hard-won
victory in the revenue courts, without any authority of law, and the High Court
failed to right the wrong in time, though moved several times. In these
circumstances, we found it necessary to hear both the parties on the merits of
the orders passed by the Commissioner of Excise and the Appellate Authority, in
favour of the appellants, against which, the respondents had obtained a rule.
After having heard both sides, we have come to the conclusion that no grounds
have been made out for interference by the High Court, under its powers under
arts. 226 and 227 of the Constitution. This case shares the common fate of the
other cases before us, of having run through the entire gamut of the hierarchy
created under the Act, read along with the amending Act and the rules there under.
We do not find any grounds in the orders of the Excise Authorities which could
attract the supervisory jurisdiction of the High Court, there being no error of
law apparent on the face of the record, 1274 or a defect of jurisdiction in the
Authorities whose orders have been impugned in the High Court. We would,
however, like to make it clear that we are interfering with the interlocutory
order passed by the High Court in this case because of its unusual and
exceptional features. It is clear that our decision on the main points urged in
the other appeals necessarily leads to the inference that, even if all the
allegations made by the respondents in their petition before the Assam High
Court are accepted as true, there would be no case whatever for issuing a rule.
Indeed, the respondent found it difficult to resist the appellant's argument
that, if the other appeals were allowed on the general contentions raised by
the appellants, the dismissal of his petition before the Assam High Court would
be a foregone conclusion. It is because of these special circumstances that we
have decided to interfere with the interlocutory order in this case in the
interests of justice.
As a result of these considerations, the
appeals must be allowed and the orders passed by the High Court in the several
cases, set aside. On the question of costs, we direct that the appellants in
each case, should get their costs here and in the High Court, except the
appellant in Civil Appeal No. 670, who has failed on the main point raised on
his behalf, and who, therefore, must bear his own costs.
Appeals allowed.
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