Full Judgment Text
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PETITIONER:
BISHNU RAM BORAH & ANR.
Vs.
RESPONDENT:
PARAG SAIKIA & ORS.
DATE OF JUDGMENT16/11/1983
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
VARADARAJAN, A. (J)
ERADI, V. BALAKRISHNA (J)
CITATION:
1984 AIR 898 1984 SCR (1) 825
1984 SCC (2) 488 1983 SCALE (2)1231
ACT:
Constitution of India-Art. 226-Power of High Court-
Scope of
Constitution of India-Arts. 226 and 227-Judgment and
Orders of High Courts binding and must be obeyed by all
inferior Courts and tribunals subject to then supervisory
jurisdiction.
Assam Excise Rules, 1945- Rule 223-Phrase ’educated
unemployed youth appearing in note below rule 223-meaning
of.
Practice and Procedure-Two separate petitions filed in
the same case-High Court dealt with one and kept the other
pending-Procedure adopted not proper and against rule of
fairplay. While criticising lower authorities use of harsh
language must be avoided.
Words and phrases-Educated unemployed youth.
HEADNOTE:
The Board of Revenue on a consideration of the material
on record as to the suitability or otherwise of the rival
pairs of claimants upheld the grant of a liquor licence made
by the Deputy Commissioner in favour of the appellants. It
held that respondent No. 1 was a mere benamidar of a
prominent businessman and respondent No. 2 being still a
student studying for his B.Sc. degree could not be treated
as an ’educated unemployed youth’ within the meaning of the
note beneath r. 223 of the Assam Excise ’Rules, 1945. The
respondent Nos. 1 and 2 and the interveners separately moved
the High Court under Art. 226 of the Constitution. The High
Court instead of taking up both the petitions together:
took: the writ petition filed by respondents Nos. 1 and 2
and on a reappraisal of the evidence came to the conclusion
contrary to that reached by the Board. It accordingly
quashed the order of the Board of Revenue and remanded the
matter to the Board for a decision afresh, in the light of
the directions made by it. The Board took serious exception
to certain observations made by the High Court and held that
the directions issued were nothing but mere observations and
therefore it was not bound by it. After hearing the parties,
the Board maintained its earlier order confirming the
settlement of the liquor shop by the Deputy Commissioner
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with the appellants. Respondents Nos. 1 and 2 again moved
the High Court under Art. 226. The High Court passed
strictures on the Board of Revenue for not having complied
with its directions and on a consideration of the facts
appearing came to the same
826
conclusion as before and quashed the order of the Board but
instead of remanding the matter to the Board for complying
with its earlier orders issued a writ of mandamus directing
him to settle the country liquor shop with respondents Nos.
1 and 2 on condition that the grant would be subject to an
inquiry as to whether respondent No. 1 was a mere be subject
and also subject to the result of earlier writ petition
filed by the interveners which was still pending.
In appeal, the two questions which arose were :(1)
whether it was impermissible for the High Court to have
embarked upon an inquiry into facts and on a reappraisal of
the evidence come to a finding contrary to that reached by
the Board of Revenue and upon that basis issue a writ of
certiorari under Art. 226 quashing the order of Board. And
(2) Whether it was a proper exercise of jurisdiction by the
High Court under Art. 226 to have issued a writ of mandamus
ordaining the Deputy Commissioner to settle the country
liquor shop with respondents Nos. 1 and 2.
Answering the first question in the affirmative and the
second in the negative.
^
HELD : 1. The High Court clearly exceeded its
jurisdiction while issuing a writ of certiorari under Art.
226 of the Constitution in quashing the impugned order of
the Board of Revenue to have embarked upon an inquiry into
the facts and upon a reappraisal of the evidence come to the
conclusion contrary to that reached by the Board of Revenue
viz. whether or not respondent No. 1 was a mere benamidar.
[837 F-G]
2. It was also not a proper exercise of jurisdiction
under Art. 226 for the High Court to have issued a writ of
mandamus directing the Deputy Commissioner to grant the
liquor licence to respondents Nos. 1 and 2 in preference to
the appellants. Although a writ of mandamus may be a
necessary adjunct to a writ of certiorari, if the High Court
was satisfied that a writ of certiorari had to be issued to
quash the impugned order of the Board of Revenue on the
ground that its order was vitiated by an error apparent on
the face of the record, the proper course for the High Court
to adopt was to issue a writ of mandamus to the Board to
hear and redetermine the appeal according to law. [835 E-F]
HWR Wade’s Administrative Law, 5th edn., p. 638,
referred to.
3. The construction placed by the High Court on the
meaning of the expression ’educated unemployed youth’
appearing in the note beneath r. 223 of the Rules is
apparently erroneous. When a person is still pursuing his
course of studies in a university, one fails to see any
basis for creating him as an ’educated unemployed youth. The
expression ’educated unemployed youth, in the note beneath
r. 223 has a definite legal connotation. It denotes a class
of citizens, who after completing their education, are faced
with the growing problem of unemployment. [837 B-D]
827
4. The direction made by the High Court while issuing a
writ of mandamus to the Deputy Commissioner ordaining him to
grant the liquor licence to respondents Nos. 1 and 2 that
the grant would be subject to the result of an inquiry as to
whether respondent No. 1 was a mere benamidar and also
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subject to the result of the writ petition which was filed
by the interveners and still pending, appears to be
unwarranted. If that were to be so, it would affect the
validity of the grant itself. It was also irregular for the
High Court to have taken an undertaking from respondent No.
2 who was a student still undergoing his studies for B.Sc.
degree in a university that he would give up his studies in
case he was given the liquor licence.
5. The procedure adopted by the High Court in
separately hearing the writ petition filed by respondents
Nos. 1 and 2, while the writ petition filed by the
interveners was still pending, and in not taking up both the
writ petitions together, and directing the Deputy
Commissioner to issue a liquor licence to respondents Nos. 1
and 2, was not in consonance with the procedure established
by law and clearly in denial of rules of fairplay and
justice.
6. The Board of Revenue was bound to comply with the
directions made by the High Court and it was not open to it
to say that they were mere observations and not directions
issued. The refusal of the Board to comply with the
directions of the High Court issued under Art. 226 was in
effect a denial of justice and also destructive of one of
the basic principles in the administration of justice based
as it is in this country on a hierarchy of Courts.
Bhopal Sugar Industries Limited v. Income-tax Officer,
Bhopal. [1961] 1 S C.R. 474 relied on.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5742 of
1983
Appeal by Special leave from the judgment and order
dated the 7th May, 1983 of the Assam High Court in Civil
Rule No. 1292 of 1982.
K.K. Venugopal, Ms. Laxmi Venugopal, A.K Bordelay, C.S.
Vaidyanathan and Praveen Choudhary for the Appellants.
S.S. Ray, A.S. Pundir, Vijay Hansaria, Sunil Kumar
Jain, Mukesh Advani and Ms. Mridula Ray for Respondent Nos.
1 & 2.
S.K.Nandy for the Respondents 3 & 5.
N.R. Choudhary for the Intervener.
The Judgment of the Court was delivered by
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SEN, J. This appeal by special leave is directed
against the judgment and order of the Assam High Court dated
November 4, 1982 concerns the propriety of the grant of a
liquor licence. By the judgment the High Court quashed an
order of the Board of Revenue dated February 11,.1982
affirming the grant of licence in respect of Jorhat Country
Spirit Shop No. 1 made by the Deputy Commissioner Sibsagar,
Jorhat, by his order dated August 28, 1981, and instead of
remitting the matter to the Board of Revenue for a decision
afresh, the High Court had directed the Deputy Commissioner
to settle the liquor shop with respondents Nos. 1 and 2 for
the remaining period of the grant upto March 31, 1984.
The short question that arises in the appeal is whether
it was proper exercise of jurisdiction by the High Court
under Art. 226 of the Constitution to have issued a writ of
mandamus ordaining the Deputy Commissioner to grant the
licence. Further, a question arises whether it was
impermissible for the High Court to have embarked upon an
inquiry into the facts and on a reappraisal of the evidence
come to a finding contrary to that reached by the Board of
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Revenue based on appreciation of evidence that one set of
rival claimants i.e. Parag Saikia and Prafulla Barua,
respondents Nos. 1 and 2 were entitled to grant of such
privilege in preference to the appellant under the note
beneath r. 223(2) of the Assam Excise Rules, 1945 (for short
’Rules’).
The facts of this case present a rather disturbing
feature. Jorhat Country Spirit Shop No. 1 is a big excise
shop within the meaning of r. 232 of the Rules. Under cl.(a)
thereof, the settlement of such a country liquor shop has to
be made with a pair of tenderers constituting two or more,
partners. Five joint tenders were received in response to
the notification issued by the Deputy Commissioner,
Sibsagar, Jorhat calling for tenders of the country liquor
shop for the financial year 1983-84. The Deputy
Commissioner, Sibsagar, Jorhat in consultation with the
Advisory Committee constituted for that purpose as required
under r. 208 by his order dated August 28, 1981 settled the
shop with the two appellants Bishnu Ram Borah and Bipin
Chandra Borah. One set of the unsuccessful tenderers were
respondents Nos. 1 and 2 Parag Saikia and Prafulla Barua. Of
them, Parag Saikia respondent No. 1 herein was held by the
Deputy Commissioner to be a mere benamidar of a prominent
businessman of Dibrugarh while respondent No. 2 Prafulla
Barua was a student studying for his B.Sc. degree and stying
in a hostel at Golaghat, which is a place some 30 miles away
from Jorhat. The Board of
829
Revenue, Assam by its order dated February 11, 1982 upheld
the settlement of the country liquor shop with the
appellants. Being aggrieved by the decision of the Board,
two sets of unsuccessful tenderers viz, respondents Nos. 1
and 2 and the interveners Daya Ram Borah and Prabin Kumar
Borah filed petitions under Art. 226 of the Constitution
before the Assam High Court being Civil Rule Nos. 215 of
1982 and 1163 of 1982. The High Court instead of taking up
both the writ petitions together, heard and decided the writ
petition filed by respondents Nos. 1 and 2 and by its
judgment dated November 4, 1982 quashed the order of the
Board of Revenue and remitted the appeal to the Board for a
decision afresh in the light of the observations made by it.
The Board however by its order dated December 3, 1982
maintained the settlement of the country liquor shop with
the appellants. Thereupon, respondents Nos. 1 and 2 again
moved the High Court under Art. 226 for appropriate writ,
direction or order in the matter of grant of the liquor
licence. The High Court by its judgment dated May 7, 1983
quashed the order of the Board of Revenue and instead of
remitting the matter to the Board for a decision afresh,
issued a writ of mandamus by which it directed the Deputy
Commissioner to settle the liquor shop with respondents Nos.
1 and 2 for the remaining period of the grant upto March 31,
1984. While making the direction the High Court observed
that ’in case it was found that respondents Nos. 1 and 2
were benamidars of anybody, it would be open to the settling
authority i.e. the Deputy Commissioner to cancel the liquor
licence’. Further, it observed that ’the grant’ would be
subject to the result of the decision in the writ petition
filled by the interveners i.e. Civil Rule No. 1163 of 1982’.
Before proceeding further, it is necessary to refer to
certain provisions of the Assam Excise Act, 1910 (for short
’Act’) and the Assam Excise Rules, 1945 (for short ’Rules’)
as amended from time to time. Section 18(1) of the Act
provides:
"18 (1). Prohibition of sale without licence, and
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the exceptions to such prohibitions-No intoxicant shall
be sold except under the authority and in accordance
with the terms and conditions of a licence granted by
the Authority prescribed in the rules framed under this
Act."
Rule 208 provides as follows:
"Advisory Committee-The Collectors should make
settlements in consultation with an advisory
committee."
830
Rule 223(2) provides:
"In making settlement to any person preference
shall always be given to the educated unemployed youths
or to co-operatives and co-opt firms formed by such
educated unemployed youth. Preference shall also be
given to the persons belonging to the more backward
classes."
Note: The term ’educated unemployed youth’ as
mentioned in sub-rule (2) of Rule 223 means a person
not exceeding 35 years of age who has passed the
H.S.L.C. or its equivalent examination and is without
any employment."
A few facts have to be stated. Before the Board of
Revenue passed its earlier order dated February 11, 1982
upholding the grant of licence by the Deputy Commissioner by
his order dated August 28, 1981, the Board had called a
report from the Deputy Commissioner, Sibsagar, Jorhat and
had also before it a parawise comment of the Deputy
Commissioner. On an evaluation of the comparative merits and
demerits and after eliminating the other sets of
competitors’ the Board upheld the grant of licence made by
the Deputy Commissioner in favour of the appellants. On a
careful consideration of the material on record and in the
light of the confidential report made by the Deputy
Commissioner, the Board held that respondent Nos. 1 and 2
were not suitable for the grant of licence for the country
liquor shop. As regards respondent No.1 Parag Saikia, the
Board relying upon the report of the Deputy Commissioner
held that he was a mere benamidar of a prominent businessman
of Dibrugarh who was trying to corner big liquor shops at
Jorhat and that it was evident from the report that he
mostly resides at Gauhati enjoying the pay and perquisites
provided by this businessman and that he was apparently not
an unemployed person as he was resorting to highly expensive
litigation for getting a liquor shop licence. Further, the
Board observed that he had the means not only to prefer
appeals before the State Government and the Board of Revenue
but that he had also repeatedly moved the High Court for the
grant of appropriate writ, direction or order in the matter
of settlement of a country liquor shop which showed that he
had some strong financier behind him. As regards respondent
No.2 Prafulla Barua who was still a student studying for his
B.Sc. degree and staying in a hostel at Golaghat, the Board
held that he could not be treated as an ’educated unemployed
youth’ within the meaning of the note beneath r.223 of the
Rules.
831
In reaching the conclusion that it did, the Board of Revenue
observed:
"In an excise settlement apart from the finance,
there is also the question of general suitability of
the tenders for a particular shop. It came out during
the hearing that this is one of the Sibsagar District.
As such substantial revenue of the State is involved in
this shop and the suitability of the lessee has
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therefore to be examined very closely. Under Rule 232
of the Excise Rules, no distinction can be drawn
between the legal liabilities of the two partners who
will be jointly and severally responsible for the
management of the shop. It is implicit in this Rule
that the partners have to be more or less equal
partners. It is also implicit that the settling
authority should be satisfied about their respective
role, responsibilities, investments and involvements.
On a total consideration of the tender, the memo of
appeal and the various affidavits and other documents
filed on behalf of the appellant Parag Saikia, it
appears doubtless that he is the dominant partner and
his associate appears more as a show-boy than even as a
sleeping partner."
The Board then went on to say:
"Reverting to the partnership of the appellants it
is observed that their respective financial investment
and physical involvement as well as the sharing of the
profit or loss is not known. Indeed for the two persons
living in two different Sub-divisional Head-quarter
towns and having a substantial difference in age and
present status, it is difficult to be definite that
they have the needed concord and compatibility or unity
and understanding for operating a major shop like this.
Again, in a double lessee shop what is needed is not
just a second helping hand to a lessee but it requires
persons of a minimum calibre from the point of
intelligence, experience and businessman. Parag Saikia
by his own admission found that the firm set up by him
or joined by him had failed or were non-starters. These
considerations might have weighed with the Advisory
Committee and the District Collector in not setting
with Parag Saikia even any of the smaller shops for
which he is known to have tendered
832
and Prafulla Barua being still an undergraduate student
might have been considered unsuitable on that ground as
well among others."
The Board of Revenue accordingly held that respondent No. 1
Parag Saikia was a mere benamidar and therefore ineligible
for the grant of licence while respondent No. 2 Prafulla
Barua being still a student studying for his B.Sc. degree
was not suitable for grant of such privilege, and at any
rate, he could not be encouraged when educated unemployed
youths and other suitable tenderers were available. It-found
considerable force in the submission that the Board should
adopt it as a policy to discourage students from entering
into liquor business.
Regrettably, the High Court while allowing the writ
petition preferred by respondent Nos. 1 and 2 passed certain
strictures which, in our opinion, should have been avoided.
It found fault with the Board of having acted on the report
of the Deputy Commissioner observing that ’the Board could
not act on the ipse dixit of the Deputy Commissioner’.
Further, the High Court held that there was no basis for the
Board to adopt a policy to discourage students from entering
into liquor business when there was no such legal bar. Still
further, it observed that merely because respondent No. 2
Prafulla Barua was a student of B.Sc. class and was staying
at a hostel at Golaghat which was about 30 miles away, it
would not be difficult for him to carry on a partnership
business at Jorhat where his cousin lives and further that
he answers the description of ’educated unemployed youth’
envisaged in the note beneath r.223 of the Rules. It
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recorded that respondent No. 2 Prafulla Barua had given an
undertaking that he would give up his studies if the
settlement of the liquor shop was made in his favour. There
was no warrant for any of these observations made by the
High Court and the High Court was not entitled to enter into
a question of fact as to whether or not respondent No. 1
Parag Saikia was a mere benamidar. It is somewhat strange
that the High Court should have taken an undertaking from
respondent No. 2 Prafulla Barua that he would give up his
studies if the settlement was made in his favour and
observed that there was nothing in law to discourage
students still undergoing their studies from entering into
the liquor business and that he falls within he category of
’educated unemployed youth’ within the note beneath r.223 of
the Rules
833
On remand, the Board of Revenue by its order dated
December 2, 1982 reacted sharply to the observations and
went on to say that the observations were uncalled for. That
apart, the Board observed that since the observations were
on questions of fact, they could not be taken as binding on
the Board. It reaffirmed its earlier order upholding the
grant of the licence to the appellants by the Deputy
Commissioner. As regards respondents Nos. 1 and 2, the Board
relying on the report of the Deputy Commissioner held them
to be unsuitable for the grant of licence. It held that
respondent No. 1 Parag Saikia was a mere benamidar of a
mahaldar of Dibrugarh district who had cast his net far and
wide in the Jorhat sub-division and that respondent No. 2
Prafulla Barua who was still undergoing his studies for the
B.Sc. degree could not be regarded as falling within the
category of educated unemployed youth appearing in the note
beneath r.223 of the Rules. Thereupon, respondents Nos. 1
and 2 again moved the High Court under Art.226 of the
Constitution for appropriate writ, direction or order in the
matter of grant of the liquor licence.
As was expected, the High Court strongly deprecated the
action of the Board of Revenue defying the directions made
by the High Court in exercise of its jurisdiction under Art.
226 of the Constitution and held that the Board had no other
alternative but to decide the matter afresh in the light of
the directions given by the High Court and expressed its
regret that it had not done so at all observing:
"Such an effort of subordinate tribunal is fraught
with grave danger to the administration of justice
known to the people of this country and had to be duly
taken note of with great concern by all."
The High Court then went on to observe that the Board
had thrown all judicial decorum and discipline to the winds
by disregarding its judgment. It further observed:
"A perusal of the impugned judgment shows that
though the petitioners are entitled to preference under
r.223(2) of the Assam Excise Rules, 1945, hereinafter
the Rules, whereas the respondents land 2 are not, they
have not been found suitable for settlement for these
reasons; (i) Parag, one of the petitioners, is a
benamidar;
834
(ii) the partnership in question is sham; and (iii) the
petitioners are not financially sound to run the shop."
After adverting to the well-settled principles relating
to the power of the High Courts under Art.226 of the
Constitution to issue a writ of certiorari and observing
that it was conscious of its own limitations in the matter,
the High Court nonetheless observed that ’it could
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definitely set aside the order of an inferior tribunal like
the Board of Revenue founded even on some factual
conclusions if they were based on irrelevant or extraneous
materials or be such which no reasonable person could have
reached or if they were grounded on a total misconception of
law’. It held that a finding reached by the Board by
disregarding the directions given to it by the High Court
was in excess of jurisdiction.
It is regrettable that the Board of Revenue failed to
realize that like any other subordinate tribunal, it was
subject to the writ jurisdiction of the High Court under
Art.226 of the Constitution. Just as the judgments and
orders of the Supreme Court have to be faithfully obeyed and
carried out throughout the territory of India under Art.142
of the Constitution, so should be the judgments and orders
of the High Court by all inferior courts and tribunals
subject to their supervisory jurisdiction within the State
under Art.226 and 227 of the Constitution. We cannot but
deprecate the action of the Board of Revenue in refusing to
carry out the directions of the High Court. In Bhopal Sugar
Industries Limited v. Income-tax Officer Bhopal, the Income-
tax Officer had virtually refused to carry out the clear and
unambiguous directions which a superior tribunal like the
Income-tax Appellate Tribunal had given to him by its final
order in exercise of its appellate powers in respect of an
order of assessment made by him. The Court held that such
refusal was in effect a denial of justice and is furthermore
destructive of one of the basic principles in the
administration of justice based as it is in this country on
the hierarchy of courts. The facts of the present case are
more or less similar and we would have allowed the matter to
rest at that but unfortunately the judgment of the High
Court directing the issue of a writ of mandamus for the
grant of a liquor licence to respondents Nos. 1 and 2 cannot
be sustained.
The High Court dealt with the finding of the Board as
to whether or not the alleged partnership between
respondents Nos.1
835
and 2 was genuine. As regards the suitability in their ages
which, according to the Board, would stand in the way of
needed. concord and compatibility, it felt that it was for
respondent No.2 Prafulla Barua to decide whether respondent
No.1 Parag Saikia was a suitable person with whom he should
enter into a partnership. Secondly, the High Court observed
that it would not be difficult for respondent No.2 Prafulla
Barua although he was a student studying for his B.Sc.
degree and staying in a hostel at Golaghat which was some 30
miles away from Jorhat to carry on the liquor business in
partnership. Thirdly, the High Court went into the question
whether they had the requisite financial capacity to fulfil
the requirements of r.346. From all this, it is quite
evident that the High Court was oblivious of the limitations
of its own powers under Art.226 of the Constitution in the
matter of grant of a writ of certiorari.
It was impermissible for the High Court to have
embarked upon an inquiry into the facts to adjudge the
suitability or otherwise of the rival pairs of claimants and
upon a reappraisal of the evidence come to a finding
contrary to that reached by the Board of Revenue. There was
nothing on record to show that the Board had acted in excess
of jurisdiction or there was an error apparent on the face
of the record which resuited in manifest injustice. That
apart, it was not a proper exercise of jurisdiction under
Art.226 of the Constitution for the High Court to have
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issued a writ of mandamus ordaining the Deputy Commissioner
to grant the liquor licence to respondents Nos.1 and 2 in
preference to the appellants. Although a writ of mandamus
may be a necessary adjunct to a writ of certiorari, in the
High Court was satisfied that a writ of certiorari had to be
issued to quash the impugned order of the Board of Revenue
on the ground that its order was vitiated by an error
apparent on the face of the record, the proper course for
the High Court to adopt was to have issued a writ of
mandamus to hear and redetermine the appeal according to
law: H.W.R. Wade’s Administrative Law, 5th edn., p.638.
The High Court was also in error in holding that the
earlier order passed by the High Court remanding the case to
the Board of Revenue contained a direction requiring the
Board not to act upon the report of the Deputy Commissioner.
The fact that the Board had in the past in some other case
viz. for the grant of liquor licence for Melan Country
Spirit Shop not acted upon the report of the Deputy
Commissioner against respondent No.1 Parag Saikia was not
836
a ground sufficient for ignoring the adverse report of the
Deputy Commissioner against him in the present case. It
would be apposite to quote the report which reads as
follows:
"Jorhat town country spirit shop No.1 (with which
shop we are concerned) is meant for joint lessee. Just
after the submission of the tender on 21.8.81 secret
information was received to the effect that Shri Parag
Saikia (one of the petitioners in the case) is in the
private employment of a prominent businessman of
Dibrugarh district who is also said to be benamidar of
important C.S. shops and Shri Saikia resides in Gauhati
for the greater part of the year enjoying all the
perquisites of the employer, The secret information
further indicates that the said benamidar of Dibrugarh
district was trying to grab important shops of Jorhat
Sub-Division through Parag Saikia. The matter was
discussed in the Advisory Board which rejected the
tender of the joint appellant."
Further, the High Court had observed that the Board
could not have relied upon the report of the Deputy
Commissioner unless respondents Nos.1 and 2 were confronted
with the same and respondent No.1 was allowed to have his
say in the matter. The responding of the High Court can
hardly be supported. In the first place, the Deputy
Commissioner is the head of the administration of the
district and is conversant with the local situation and has
secret sources of information. Normally the Board is
entitled to rely upon the word of the Deputy Commissioner.
It is expected that the Deputy Commissioner would always act
with a sense of responsibility. Secondly, the report of the
Deputy Commissioner was confidential in nature. There was no
question of the Board disclosing the contents of the report
to respondents Nos. 1 and 2. Further, respondents Nos.1 and
2 never made a demand for a copy of the report, and even if
such a request was made the Board would have been fully
justified in not furnishing the same. Such a refusal would
not amount to denial of natural justice for the obvious
reason that the rules of natural justice must necessarily
vary with the nature of the right and the attendant
circumstances. The grant of a liquor licence was not a
matter of right but merely in the nature of privilege,
Furthermore, the Board was entitled to call for a report of
the Deputy Commissioner in an appeal of this nature.
837
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We cannot also subscribe to the view expressed by the
High Court that respondent No.2 Prafulla Barua who is a
student of B.Sc. class still undergoing his studies falls
within the description of ’educated unemployed youth’
appearing in the note beneath r.223 of the Rules. In our
judgment, the expression ’educated employed youth has
definite legal connotation. It denotes a class of citizens
who after completing their education are faced with
unemployment R.223(2) read with the note embodies a rule of
preference. The question of grant of preference under the
note beneath r.223(2) can only arise when other conditions
as regards suitability of the rival tenderers is equal
Besides, the construction placed by the High Court on the
expression ’educated unemployed youth’ is manifestly
erroneous. By no stretch of imagination can a student still
under going his studies in the university be regarded as
having completed his education or being ’unemployed’ youth.
When a person is still pursuing his course of studies in a
university, we fail to see any basis for treating him as an
’educated unemployed youth’. The judgment of the High Court
directing the issue of a licence to respondents Nos.1 and 2
being based on the rule of preference contained in the note
beneath r.223 of the Rules cannot therefore be supported.
The judgment of the High Court also suffers from a
serious infirmity. As already stated, instead of remitting
the matter to the Board of Revenue, the High Court issued a
mandamus directing the Deputy Commissioner to make a grant
of the licence to respondents Nos.1 and 2. While doing so,
the High Court made a direction that the grant of licence
would be subject to the result of the inquiry as to whether
respondent No.1 Parag Saikia was a benamidar and therefore
not entitled to such grant. Moreover, the High Court made
the grant subject to the result of the writ petition filed
by the interveners Daya Ram Borah and Prabin Kumer Borah
which was still pending before it against the earlier order,
of the Board dated February 11, 1982. We fail to appreciate
the making of a grant in favour of respondents No. 1 and 2
subject to the result of the inquiry as to whether
respondent No.1 Parag Saikia was a mere benamidar. If that
were to be so, it would affect the validity of the grant
itself. Further, the procedure adopted by the High Court in
separately dealing with the writ petition filed by
respondents Nos.1 and 2 making a grant of the licence to
them for the country spirit shop in question while the
earlier writ petition filed by the interveners was still
pending was not in consonance with law and rules of fairplay
and justice.
838
Before parting with the case we must express our deep
sense of anguish that there should have been this unseemly
tussle between the High Court and the Board of Revenue,
particularly the lack of restraint in the language used by
the Board in its order dated December 3, 1982. We also feel
that the High Court was not right in criticizing the Board
of Revenue in such strong language. The use of harsh
language does not redound to the credit of anyone. There
must be restraint at all levels as otherwise there can be no
rule of law and our entire system of administration of
justice will fail.
For these reasons, we set aside the judgment and order
of the High Court, as a consequence whereof the order of the
Board of Revenue dated December 3, 1982 will stand restored.
We hope and trust that the High Court will be able to
dispose of the writ petition as expeditiously as possible.
The writ petition filed by the interveners shall also be
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heard and disposed of by the High Court along with this writ
petition according to law.
There shall be no order as to costs.
H.S.K. Appeal remanded.
839