1240 SUPREME COURT. REPORTS 1958} 1958 » NAGENDRA NATH BORA & ANOTHER - remuny* HE. COMMISSIONER OF HILLS ‘DIVISION _ AND APPEALS, ASSAM, AND OTHERS _ aes “(and ‘connected’ appeals)
» | (Bragwat, B.P. "Sinwa; JAFER Imam, J. I. Karon, mg A and GAJENDRAGADKAR JJ.) ,
High Couré, Powers of —W rit of certiorari, .if can be issued. to quash an error of fact apparent on the face of the record—J]udicial Supervision, Scope of —Appellate Authority tf and when acts in quasi-judicial capacity—Test—Plea of failure of natural justice, when-can be ‘entertained—Constitution of India, Arts. 226, 227— Eastern Bengal and ‘Assam Excise. Act, rgro (E. B. & Assam~ Act 1 of 1910) as amended by ‘Ae. 23 of 1955, s. 9, Rule 343.
The High Court has no power under Art. 226 of the Constitut tion 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 ee a ground for the exercise of its power under that Article. ;
‘Hari Vishnu Kamath v. Syed Ahmed I fhaqae ate others, [1955] 1 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) i KB. 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-juditial powers, do not exceed their statutory jurisdiction and correctly administer the law ldid 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] 5.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
~~ a sok. SUPREME COURT;REPORTS 124]
orders made by the Excise Appellate Authority under the 1958 Excise Act as being in excess of its jurisdiction on the ., —~ round that they were vitiated by errors of fact apparent on the Nagendra Nath
Gos of the record, such interference was without jurisdiction and 2074 © Another orders passed by the High Court must be set aside. ek ¥e the ie ad ; ; . Thea Commissioner Held further, that where an appellate Authority, as in the of Hills Division snstaitt €ase, is constituted the highest authority by the Statute 6 Appeals, Assam, for deciding as between the claims of rival parties, its powers and Others cannot be circumscribed nor can it beheld to have acted in excess of its powers or, without jurisdiction on considerations foreign to ar the statute or the rules. . _P
Raman and Raman Lid. v. The State of Madras, [1956] S.C.R. 256, referred to. feed 2 go
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 thg rules laid down by the statute itself, it would be wrong to say that-there has been a cer tain
‘failure of natural justice simply because the view it took of the matter might not be acceptable to another tribunal, -
New Prakash Transport Co, Lid. v. New Suwarna Transport Co. Léd., [£957] 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.
Cirvin APPELLATE - JURISDICTION: Civil Appeals Nos. 668, 669, 670 and 672 of 1957. 7
_ 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. = re lm
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 Lal, for the appellants in C.A. No. 670 of 1957 and respondent No. 2 in 0.A. No. 669 of 1957.
1958. February 7. Tho following Judgment of the Court was delivered by - %
-_
-‘Smora 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 (i. B. and Assam Act 1 of 1910) (hereinafter referred to ag 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. m8
(I) 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 a3 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 tenderers, 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
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-_ — eis oR. SUPREME COURT REPORTS 1243 question was ordre by the first respondent as the rroise Appellate Authority to be settled with the first appellant N agendra 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 cages 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 Assamv. A. N. Kidwai ('). It will be hecessary, in the course of this judgment, tu make several references to that decision which, for the sake of brevity, we shall call the ‘ruling of this Court’. Ti.e 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, 48 the orders of the first respondent stood quashed -as 4 result of the judgment of the High Court, the direction of the Excise Commissioner that the shop in question be re-settled, was carried out, and the settle- Ment was made with the third respondent aforesaid 48 an individual. . He continued in possession of the Shop until February 26, 1957, on which date, the first *ppellant was put in possession as a result of the ruling
, ©) [1957] S.C.R. 295.
Vv.
The Commissioner of Hills Division
& Appeals, dssam, aud Others rg58
Nagendra Nath Bora & Another , v. The Commissioner of Hills Division & Appeals, Assam, and Others
1244 - SUPREME COURT REPORTS [1958]
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, TORT, 2 bw at Bt eet yg | 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 sub-_ mitted 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 competiiors for
_ the settlement aforesaid, preferred appeals to the Ex- cise 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 @ result of the first respondent’s order. The third and the fourth respondents, as also other dissatisfied tenderer's 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 hisorder 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 re-considered in the light of the observations made by it. ‘Che main ground of decision in the
Nase,
5,c.R. SUPREME COURT REPORTS 1245 High Court, was that the Excise Appellate Authority had acted in excess ofits jurisdiction, and that its order was vitiated by errors apparent’ on the face of the record. The prayer for a certificate that the case
Nagendra Nath Bora& Another v was a fit one for appeal to this Court, having been Tiv Commissioner ‘refused by the High Court, the appellants obtained at oe Division
‘special leave to appeal. (II) 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 Bhanuram 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 pur- suance 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 urt under Arts. 226 and 227 of the Constitution, for & proper writ for quashing them. On June 17, 1957, ®writ petition was heard ex parte, andthe High Ourt issued a rule to show cause why a writ as prayed for, should not be issued. The rule was made Teturnable within three weeks. The High Court also made the further order in these terms :— . bai “Meanwhile, the status quo ante will be main- 4lned,?? - & This last order was mis-interpreted by the first responnt and his advisers as entitling them to be put in ppeals, Assam. and Others
— nt ee eee lk
~ ee ee ee eee
Nagendra Nath - Bora & Another v.
The Commissioner of Hilis Division & Appeals, Assam, and Others ee
1246. SUPREME COURT REPORTS [1958]
possession of the shop, and it is stated that the Riet 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 ‘ 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, - bo
,. (III) Civil Appeal No. 670 of 1957. . 4
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 goR. SUPREME COURT REPORTS — 1247 to Civil Appeal No. 669 of 1957. This appeal has been 1958 prought with a view to getting the legal position a clarified in view of the frequent appeals made to the Nsendre Nath appellant in the matter of settlement of excise shops.. ee i.
; ae . . A’ The Commissioner | (IV) Civil Appeal No. 672 of 1957. Lt of Hills Division
This appeal relates to the Tinsukia country spirit & Appeats, Assam, shop in the district of Lakhimpur. The appellants, 4 Mrs Rafiplla 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 iease 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 questioning 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 re-settlement. 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 aforesaid, 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 re-settlement, was carried out. The Deputy Commissioner, With the unanimous advice of the Advisory Committee settled the shop with the first appellant on July 29, 1956. The first respondent and some others preferred appeals before the Commissioner of Excise, against the order aforesaid of the Deputy Commissioner. As the
Sinka J.
eet ee eg BS ere me ere re wets |
Fee 6 pe a top einai erent Nagendra Nath Bora & Another Vv.
special leave appeals to this Court were pending a. that time, the Excise Commissioner, Belen a apprehension of the effect of this Court’s order refusing interim stay, set aside the Deputy Commissioner's
Ths Commissioner Order, and directed the settlement to be made wi i! dpe haga first respondent. As there was no Excise aeatea peals, Assam, Aythority functioning.at the time as @ result of the decision, aforesaid, of the High Court, declari constitution of such an Anahondir to be ae as . » the first appellant moved the High Court under Arts. 226 227 of the Constitution, on the ground that the i of the Excise Commissioner was Vitiated by an a = 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 th application but rejected the prayer for maint ° of status quo in the sense that the first a llant's possession be maintained. On the sta otiti on bein ; rejected by the High Court, the first Spanendant a possession of the shop from the first i Ma “ result of the Excise Commissioner’s order Ohi "fa voun The High Court ultimately dismissed th nit appli cation by its order dated Decemb S ese ath appeal fi ember 6, 1956. The © seine Zz bY. - appellant and his father, already Z foreaaid, _ nd ge heard and determined as . Nenielam oP Ge Race a A ; 1is Court reversed the the Excise Appellate res nd restored the status of ruling of this Court, the i ority, As a result of the by ita order dated tel es Appellate Authority, ar possession back to the as 5, 1957, directed delivery holding that the orde: a3 appellant and his father, settlement, itself, in pursu pees Fe al wiped out. Against the satel ee of Yin one moved the High Court u ‘d order, the first pee Constitution for atin ¢ Arts. 226 and 227 of the possession, on the ground the order for delivery of for ad interim sta Se of want of jurisdiction, and passed an order for ‘ident High Court issued a rule and The High Court made the. stay on February 26, 1957. dated March Oh nyce (28 Tule absolute by its ondet tion of this Court baal, Egg Ea ae ea ad not been drawn to the interim
Pape wr e gc.k. . SUPREME COURT REPORTS 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 1 and 2 though - the appellants also had jointly submitted a tender for the same. Lhe appellants and other parties preferred appeals against the said order of settlement made by the Deputy Commissioner. The Excise Commissioner get 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 1 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 1 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 guo ante be maintained.” This took place on June 10,1957. In v
The Commissioner of Hills Division
& Appeals, Assam,
——
Sisha J.
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 misapprebension 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 dispossess- ed 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 Tule before the High Court, the appellants again Moved a petition on July 5, 1957, for vacating the
2 tll I a _ - ‘ tn Ti tt A AL tes na en a NY pall COE Ae are Mg ———
ON A pS Oy iy knee sins oe!
1958 order of possession which was based on @ misapprehen. — sion of the order of the High Court maintaining status paresis Nh quo ante, but apparently, no order was passed because - possession had, already been given to the respondents The Commissioner ] and 2.,--During the hearing of the rule by the High of Hills Divison Court, an unfortunate incident occurred, for which the & Appeals, Assam, a yyollants cannot altogether be absolved. of some and Ollers vesponsibility, as @ result ofwhich, one of the learned Sinka J. judges constituting the Bench, namely, Deka J. ex-
, pressed 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 appli- cation already made on July 5, as aforesaid, for un- doing: the unintended effect of the order of the High
Court, that the sfatus 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 re-consider 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 ag 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 re-open on g.C.R.
vember 3, 1957. The vacancy of the third judge wer been filled till then, and as the xppellants falt that they had been wrongfully deprived of their right to hold their shop, as @ result of an erroneous interpratation of the order of the High Court, passed on Tune 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 a is evident from the statement of facts in connection with each one of the appeals, set out above, these eases have followed a common pattern. They come from the ‘non-prohibited areas’ in the State of Assam where sale of ‘ country spirit’ is regulated by licences issued by the authorities under the provisions of the Act. Settlement of shops for the sale of such liquor is made for one year April 1 to March 31. According to the present practice contained in Executive Instructions, 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 /Ommissioner of Excise to the Excise Appellate Authotity whose decision becomes final. Section 9 of the Act, dealing with appeal and revision, has undergone ® 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, 55, and was published in the Assam Gazette dated 159 ms ms. .
SUPREME COURT REPORTS 1251 v. The Commissioner of Hills Division & Appeals, Assam, and Others a
7958 December 28, 1955, isinthese terms: — Fs a 9, (1) Orders passed under this Act or under ee any rule made hereunder shall be appealable as ae follows in the manner prescribed by such rules as the The Commissioner State Government may make in this behalf—_ | of Hills Divison - - (a) to the Excise Commissioner, any order passed le ea by the District Collector or a Collector other than the and Others 4 . : oe District Collector, .%. *. = .
Sinha J. (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 Excis
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,
FB oes
' f scR. SUPREME COURT REPORTS — 1253 therefore, their ‘orders ‘whether passed in the first 1958 instance or On appeal, should not be amenable to the ie rm nue writ jurisdiction or supervisory jurisdiction of the 5.06 another
- High Court under Arts. 226 and 227 of the Constitu- v.
tion. If the matter had rested only with the provi- The Commissioner sions of the Act, apart from the rules made under of Hills Division g, 36 of the Act, much could have been said in support © 4fPeals, Assam, of this contention. As observed by this Court in the 7" """S case of Cooverjee B. Bharucha v. The Excise Com- — sinka J. missioner and the Chief Commissioner, Ajmer and others (*) 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 no 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 settle- Ment, have to choose from amongst them. If the ohoice had rested in the hands of only one authority like the District Collector on his subjective satisfaction 48 to the fitness of a particular candidate without his orders being amenable to an appeal or appeals or Tevision, the position may have been different. But
8. 9 of the Act has laid down a regular hierarchy of authorities, one above the other, with the right of earing 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
(2) [1954] S. C. R. 873, 830.
Vv.
me several authorities to pass what are called ‘speaking orders’. Where there is a.right vested in an autho. rity 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 (+), to the following effect are very apposite: : ing By
Lord Haldane: “My Lords, when the duty of deciding an 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. 420.
ree oad
50k. . SUPREME COURT REPORTS 125% take away from them, or even to discuss whether in 1958 the opinion of the individual members of the Court yasendra Nath they #rée adequate or not. , Bora & Another The legal position has been very succinctly put in ve Halsbury’s Laws of England (‘), as follows :— ; a foe Dien “Moreover an administrative body, whose deci-& Appeals, Assam. sion is actuated in whole or in part by questions of 4” Others policy, may be under a duty to act judicially in the vn I course of arriving at that decision. Thus, if in order oo ‘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 wags 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. Hf,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 itis under a duty at any time to act judicially. ven where the body is at some stage of the proceedings leading up to the decision under a duty to act judicially, :he supervisory jurisdiction of the Court does not exten! to considering the sufficiency of the grounds for, or otherwise challenging, the decision itself.” a The provisions of the Act are intended to safeguarT the interest of the State on the one hand, by stopping, or at any rate, checking illicit distillation, and on the other hand, by raising the maximum revenue consist- . Sntly 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 exberience in the line, subject to certain reservations in
(1) Vol, II, 3rd Edn., pp. 56-57.
1256 | SUPREME COURT REPORTS [1958]
1958 favour of tribal population. Except those general conss siderations, there are no specific rules governing the
Nagendra Nath grant of leases or licences in respect of liquor shops, .
ail inal and in a certain contingency, even drawing of lots, is The Commissioner provided for, vide Executive Instructions 110 at p. 174 of Hills Division of the Manual..° The words of sub-s. (3) of s. 9 as & Appeals, Assam 5 mended, set out above, vest complete discretion in and Oilers the Appellate Authority, the Excise Commissioner or the District Collector, to ‘pass such orders thereon ag 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 inappeal 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
~ -¥ gr: (mS pees els eee * mS Ar ;
gc.R. SUPREME COURT REPORTS 1257 within such period. . 1958 Explanation (1). The fact that the appellant was wegendva Nath misled by any order, practice or judgment of any Bora & Another
Appellate Authority Jin ascertaining or computing the == ™ prescribed period of limitation may be sufficient cause 7 Commissioner within the meaning of this Rule. : : f Fteeaprees Explanation (2).. The fact that the Appellate . and Others —
Authority was unable to function for any period by none
' peason of any judicial pronouncement shall.be Sia J- 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 ulti- mate 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 pro- visions of the enactments specified in Schedule ‘ A’ to that Act, were to lie in and to be heard by the A<sam
High Court, and the jurisdiction to entertain appeals and revisions in matters arising under the provisiou;
of the enactments specified in Schedule ‘B’ to that
Act, was vested in the Authority to be set up under
8, 3(3), that is to say, for the purposes of the present appeals before us, the Excise Appellate Authority.
Thus, the Excise Appellate Authority, forthe 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 Appel- late Authority was a Tribunal of co-ordinate jurisdic- tion with the High Court, or that that Authority was
Not amenable to the supervisory jurisdiction of the
Nagendra Nath Bora &, Another v.-
High Court under Arts. 226 and 227 of the Constitu-: tion. But the juxtaposition of the two parallel highest Tribunals, onein respect of pre-dominantly civil cases, and the other, in respect of pre-dominantly revenue cases (without attempting any clear cut line of demar- cation), would show that the Excise Appellate Autho- rity was not altogether an administrative body which had no judicial or quasi-judicial functions, ,
_ Neither the Act nor the rules made thereunder, indicate the grounds on which the first Appellate
Authority, namely, the Fxcise Commissioner, or the second Appellate Authoritv (the Excise Appellate
Authority), has to exercise hi or its appellate or revi- sional powers. There is no ind. vtion 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 mutter of settlement, would be co-extensive with the » wers of the primary authority, namely, the District | Wector or the Sub-Divisional Officer. See in this co..- ection, the observations of the Federal Court in Lachm: -hwar Prasad Shukul and others v. Keshwar Lal Chaudi. iri and others ('), and of this Court in Hbrahim Aboobak«: and another v. Custodian-General of Evacuee Property(*). In the latter case, this Court, dealing with the powers of the Tribunal (Custodian-General of the ivacuee 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 thereunder, it cannot be said that the authorities mentioned in s, 9 of the Act, pass puroly 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.
30k. SUPREME COURT REPORTS 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 rules framed thereunder. The first contention v raised on behalf of the appellant must, therefore, be Tie Commissioner 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 thereunder, 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 ths 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 é of Hills Diviston Appeals, Assam,
Se gg I A ey ee
1958 and Raman Lid. v. The State of Madras(). In that ‘ease, 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 per- The Commissioner mits. This Court held that as the State Government of Hills Division had been constituted the final authority under the & Appeals, Assam, Wrotor Vehicles Act, to decide as between the rival and Oilers laimants for permits, its decision could not be intersinha J. fered 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. . ; = , : =F
It is true that the .Appellate Authority should not lightly set aside the seloction made by the primary
Authority, that is to say, a selection made by a Sub-
Divisional 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 Autho- rity, 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 demeanour while deposing in court. But it isnot 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 juris- diction. « we Wee 3 a !
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 affi- davits filed on either side, and the order in which they (1) [1956] S.C.R. 256,
Nagendra Nath Bora & Another Vv.
s
3.c.R. SUPREME COURT REPORTS ‘1261 had been filed, and the use made of those affidavits or 1938 counter-affidavits. As already indicated, the rules Nagendra Nath make no provisions for the reception of evidence oral goreé Another or documentary, or the hearing of oral arguments, or —~ v. | even for the issue of notice of the hearing to the par- The Commissioner ties concerned, ....The entire proceedings are marked % Mills Division by a complete lack of formality. Tho several autho- = liga tities’ have been left to their own resources to make tase the best selection., In this connection, reference may Sinka J. be made to the observations of this Court in the,case ‘ °° of New Prakash Transport Co., Lid. v. New Suwarna Transport Co., Lid. (').. In that case, this Court has laid down that the rales of natural justice vary-. with the varying constitutions of statutory bodies and the rules prescribed by the Act under which they function ; and the question whether or not any rules of natural justice had been contravened, should be decided not under any pre-conceived notions, but in the light of the statutory rules and provisions. In the instant case, no such rules have been brought to our notice, which could be said to have been contravened by the Appellate Authority. Simply because it viewed -a case in a particular light which may not be acceptable to another independent tribunal, is no ground for interference either under Art. 226 or Art. 227 of the Constitution. wo wot * oe 5 un 2”
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 ofthe Appellate Authority is that it does not even tefer 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 dis- Posing of the appeal, and in failing to do so, the officer
{t) [1957] S.C_R. 98. , gw gg es
1962 SUPREME COURT REPORTS [195g]
1958 acted arbitrarily and in excess of his powers as an
— Appellate Authority.” ; Po : Nagendra Nath 1+ may be that during the prolonged hearing of these Bora & Another | og “before the High Court where counsel for the
“The Commissioner different parties placed their respective view-points of Hills Division after making copious references to the documents, the '& Appeals, Assam, High Court: was greatly impressed that the order of and Others sot tlement in one case (Murmuria shop), made by the Sinka j, Deputy Commissioner, ‘as confirmed by the Excise ’ Gommissioner, 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 anerror 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:
Madre (s Co. v. Commercial Employee's Association,
Veerappa Pillai v. Raman and Raman Ltd., and others (*),
Ibrahim Aboobaker v. Custodian General of Evacuee Property (°),
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.
go.R. SUPREME COURT REPORTS 1263 the case of Hart Vishnu Kamath v. Syed Ahmad = 1958 Ishaque and others (*). Venkatarama Ayyar J., speaking for the full Court, laid down four propositions Nssendra Nath pearing on the character and scope of the writ of °”*° 4" certiorari as established upon the authorities. The rie Commissioner third proposition out of those four, may be stated in of Hills Division the words of that learned Judge, as follows: & Appeals, Assam,. : The Court issuing a writ of certiorariactsinexer- °%%% "5 cise of a supervisory and not appellate jurisdiction. sinka 7 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:
_ “Tt may therefore be taken as settled that a writ of cerfiorart could be issued to correct an error of law. But it is essential that it should be something more than a mere error: if must be one which must be manifest on the face ofthe 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: a
““The Appellate Authority further re-inforced 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 ag has been conceded. These were errors ape 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] .S.C.R, rroq, 1822.
_ Nagendra Nath Bora & Another é %
The Commission er of Hills Division & Appeals, Assam, and Others a eT
1264 SUPREMECOURT REPORTS — [1958]
$ | 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’.”’ _ "e™ bee & 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 O. 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. Itis 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. 1 of 0.47. But is the power of a High Court under Art. 226 of the Constitution, to interfere on certiorart, 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 Courtin any one of the previous decisions bearing on the scope and character of the writ of certiorari. Ibis, therefore, necessary to examine this question directly raised in this batch of appeals, gcR. SUPREME COURT REPORTS — 1265 pecause, in each case, the High Court has been invited 1958 to exercise its powers under Art. 226, to issue a writ - —_ ‘a of certiorart on the specific ground that the orders(, ens var impugned before it, had been vitiated by errors ap- vy. arent on the face of the record—errors not of law ‘he Commissioner put of fact. 1 «Df Hills Division " [he ancient case of the Queen v. James Bolton ('),~ pL Sali js treated as a landmark on the question of the power ods to issue a writ or order of certiorari. That wasacase Sinha J. 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: » S at - “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 con| 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 tolaw. Even if their decision should upon the merits be unwise or unjust, on these » grounds we cannot reverse it.” a te * While dealing with the argument atthe 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 (t) [1841] {1) Queen's Bench p. 66, 72,76; t13 English Reports 1054, 1057, 1058,
1958 ideas of what is sometimes described as justice of the Nagendra Nath Pasa B d this we cannot go. The affidavits, bein Bora & Another,’ eyon . . § v. { before us, were used on the argument; and much wag The Commissioner gaid of the unreasonableness of the conclusion drawn of Hills Division, hy the magistrates, and of the hardship on the defen- & Ae AOE at if we would not review it, there being no appeal os to the sessions. We forbear to express any opinion on Sinka.J. - that which is not before us, the propriety of the con. ‘ clusion 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 Bell Liquors, Limited (+). In that case their Lordships of the Judicial Committee held that a conviction by a magistrate fora non-indictable offence, ¢ cannot be quashed on certiorari on the ground that \the record showed that there was no evidence to sup- ; port the conviction, or that the magistrate had mis- } directed himself in considering the evidence. It was ‘ further laid down that the absence of evidence did not alfect 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 certzorart, for it summarises in an impeccable form the principles of its application......” But latterly, the rule (z) [1922] 2 A.C. 128, |
\ gGR. SUPREME COURT REPORTS 1267 jaid down in Bolton’s case, appears to have been slurr- 1958 ed over in some decided cases, in England, which see urported to lay down that a writ or order of certiorari Nasendra Nath could be obtained only if the order impugned disclosed 7” es an error of jurisdiction, that is to say, complete lack. rie Commissioner of jurisdiction or excess of jurisdiction or the refusal of Hills Division to' exercise jurisdiction, and not to correct an error of & Appeals, Assam; Jaw, even though apparent on the face of the record,. 2" O##er’ The question was brought to a head in the case of Rex eS y. Northumberland Compensation Appeal Tribunal (1). It arose out of an application for an order of certiorari for quashing 2 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 certiorart”’.. He’ further observed that certiorari is a remedy of avery 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 al etror 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 thé record and to see whether or not there was an error of law apparent on the face of the record.
he Lord Chief Justice concluded -his observations With these remarks :— ' 3 se [1951] r KB. 711, t
Sinha J: -
1268 SUPREMECOURT REPORTS [1958]
1958 “... be tribunal have told us what they have taken mii into account, what they have disregarded, and the Nagendra Noth Contentions which they accepted. They have told us nae © Ano! ’ their view of the law, and we are of opinion that the The Commissioner construction which they placed on this very compliof elgg ana cated set of regulations was wrong.” , - ome This decision was challenged, and on appeal, the _— Court of Appeal dealt with this point in Rex vy. Sinha J. Northumberland Compensation Appeal Tribunal ('). 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 ag — a statutory tribunal, quashed on the ground of an error of law apparent on the face of the record. Singleton L. J. inthe 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,
(1) [1952] 1 KB. 338,
> aeteteas n SO
PN ae nee pane!
ae A
~ soR. SUPREME COURT REPORTS _ 1269
Now, with the advent of many new tribunals, and the 1958 lain need for supervision over them, recourse must — once again be had to this well-tried means of control.” "#8" rie The other Lord Justice who took part in the hearing ™ of the appeal, Morris L. J. also examined that rhe Commissioner question and concluded as follows :— of Hills Division ‘Tt is plain that certiorari will not issue as the & 4?peals. Assam, cloak of an appeal in disguise. It does not lie in order So Oihers 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.” - 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 certiorars may be invoked, is an error of law apparent on the face of the record and not every puny 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- \
Sinha J. | 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 ff 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.
_ Bat 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 suporvisory 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
® mere error of law; that it must be one which is inanifest 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 ‘SUPREME COURT’REPORTS — [1958]
1958 the authorities of this Court and of those in England, as referred to above, as also those considered in the Nagendra Nath several judgments of this Court, that the Common Law Bore & Anoilky rit, now called order of certiorari, which was also The Commissionc adopted by our Constitution, is not meant to take the of Hills Digi place of an appeal where the statute does not confer a G Appeals, Assam, richt of appeal. Its purpose is only to determine, on and Others \on-examination of the' record, whether the inferior Sinka J. ‘tribunal has exceeded its jurisdiction or has not li 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. ~ ara: 7 ‘. 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 jurisdiction in respect of errors which cannot be said to be ‘errors of law apparent on the face ofthe 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 Authotity 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 jurisdic- \ tion 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 lita powers, the Appellate Authority disregarded any “mandatory provisions of the law. The utmost that has been auggested, is that it has not carried out certain Executive lustructions. For example, it has been said that the Appellate Authority did not observe the natn ce
- sak. SUPREME COURT REPORTS 1271 instructions that tribal people have to be given certain 1958 preferences, or, that persons on the debarred list, like . smugglers, should be kept out (see p. 175 of the Feiler Manual). But all these are only Executive Instructions _— which have no statutory force. Hence, even ASSUMING, The Commissioner though it is by no means clear, that those instructions of Hulls Division - have been’ disregarded, the non-observance of those 4?peals. Assam, instructions cannot affect the power of the Appellate 7” °"*” Authority to make its own selection, or affect the — sinka /. validity of the order passed by it. _ i
The High Court, in its several judgments and orders, as 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 =I 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 quasi- | judicial 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 casos, the High Court appears 7 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 ontent to utilize their powers of judicial superintendence under ‘Art, 227 of the Constitution vide its judgment dated J uly 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 &8ide 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 ’.
i ee ee v.
The Commissioner of Hilis Division & Appeals, Assam, and Others or
1272 - SUPREME COURT REPORTS [1958]
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 and another (1). This Court, in the course of its judgment, made the following observations at p. 571: ye ™e *
. “This power of superintendence conferred by article 227 is, as pointed out by Harries C. J.in Dalmia . Jain Airways Ltd. v. Sukumar Mukherjee(*), 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.” . ee 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. (1951) Cal. 193.
siteeeee di... aes g0.R. SUPREME COURT REPORTS 1273 had been put in possession of the shop on June 7, 1958
. 1957. The High Court, while issuing the rule, passed — an order on the stay application, which, as already Bae, ras indicated, had been misunderstood by the District i Exoise authorities, and the appellants were dispossess- The Commissioner ed and the respondents 1 and 2 put back in posses. of Hills Division gion, without any authority of law. This was a 4bpeals. Assam, flagrant interference with tho appellants’ rights "4%? arising out of the settlement made in their favour by — sinia. es 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 nn- fortunate state of affairs. It has to be remembered that the appellants, asa result of fortuitous circum- stances, 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 Autho- rity, 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 thereunder. 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 SUPREME COURT.REPORTS — [11958}
1958 or a defect of jurisdiction in the Authorities whose Nagendra Nath OTders have been impugned in the High Court. -We Bora & Another would, however, like to make it clear that we are v. interfering with the interlocutory order passed by the The Commissioner High Court in this case because of its unusual and of Hills Division exceptional features. It isclear that our decision on
& Appeals, Assam and Others the main points urged in the other appeals necessarily ae leads to the inference that, even if all the allegations Sinha J. 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 an 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.