Patna High Court
Sheopujan Choudhury vs State Of Bihar And Ors. on 29 February, 1956
Equivalent citations: AIR1956PAT212, AIR 1956 PATNA 212
JUDGMENT Sinha, J.
1. This is an application under Articles 226 and 227 of the Constitution of India for quashing the order passed by Mr. U.K. Ghose, Deputy Commissioner, Santhal Parganas, Dumka, on 28-10-1953,
2. The petitioner is a licensee of Sakri Gall Country Spirit Shop in the Santhal Paraganaa since August, 1952. The licence, which has been cancelled, was granted to him on 1-4-1953, for a period of one year and was to expire on 31-3-1954, the number of his licence is 119. On 4-6-1953 the Inspector of Excise, Sri Ramdeo Prasad Shahi, visited his shop along with one Jagarnath Singh, who, according to the petitioner, was his salesman but had been dismissed from service long time before.
According to the petitioner, one Rameshwar Prasad was his salesman during the licence year as mentioned in the license itself whereas, according to the Inspector of Excise, Jagarnath Singh was the agent and salesman of the petitioner. The Inspector found three bottles of country liquor with short measure and one bottle of weak liquor. He sealed all the four bottles, and took a receipt from the said Jagarnath Singh. He tested the liquor and found the strength to be 62.3 U. P. and 70.9 U. P., and asked the petitioner to submit his explanation to the Superintendent of Excise on 20-6-1953, along With all these four bottles sealed by him.
On 20-7-1953 (wrongly mentioned as 20-6-1953 in the petition), the petitioner submitted his explanation to the Superintendent of Excise. The case started upon the report dated 4-6-1953, was numbered as case No. 63 of 1953-54. On 21-8-1953, the Inspector again visited the shop of the petitioner, and made a report on three counts, namely, (1) that the petitioner was charging excess prices; (2) that liquor was sold before pre-scribed hours; and '(3) that the accounts for 20-6-1953, had not been written up.
The case started on this report was numbered as case No. 72 of 1953-54. The petitioner, in his explanations to the Superintendent of Excise on 20-7-1953, disputed the allegations made in the reports. In his explanations, the petitioner submitted that he was suffering from malaria for some time past and the salesman was in charge of the gaddi during the period of his illness; that the Inspector had seized the bottles; from the possession of customers who had already consumed a part of the liquor in their respective bottles and that was why the liquor was found to be a little less than what it ought to have been, namely, 20 Oz.
He further said that, on 20-6-1953, the Inspector had found two persons, at some distance from his shop, drinking their own liquor purchased on the previous day, that there was no sale at 7 a.m. or before the prescribed hours, and that the price charged was not excessive inasmuch as the price charged was Re. 1-3-6 which included the price of the bottle and the price of the bottle was to be refunded to the customers on their returning the bottles to the petitioner.
The petitioner also filed a petition along with his explanation dated 4-6-1953, signed by three customers, supporting the explanation submitted by the petitioner regarding the complaints mentioned in the report dated 4-6-1953. It appears that, on 17-9-1953, the Superintendent of Excise in case No. 72 of 1953-54, asked the Inspector of Excise whether he had taken any statement of the customers, the consumers and the salesman.
In reply thereto on 29-9-1953, the Inspector reported that he had questioned two customers named Charo and Poosa of village Harischandra-pur in presence of the licensee's man, but they refused to give anything in writing or to put their left thumb impressions; the salesman also had refused to give anything in writing.
The strength of the spirit was tested by the Superintendent of Excise, and it was found to be 61.1 U. P. as against 62.3 U. P. reported by the Inspector. This was the result of test on 23-7-1953. When it was re-tested on 16-9-1953, he found the strength to be 60.6 U. P., the difference being of .6 only.
It is stated in para 13 of the petition that the Superintendent of Excise, without making any inquiry into the matter and without hearing the petitioner or without any notice to him, submitted the above two reports of the Inspector, along with the orders passed by him on various dates, to the Deputy Commissioner on 15-10-1953, with his recommendation that, as the petitioner's explanations were far from satisfactory, and also because there were considerable public complaints against the petitioner, his licence might be cancelled under Section 68, Bihar and Orissa Excise Act.
It was also stated in para 14 of the petition that no charge was framed against the petitioner in order to show what offence exactly he had committed or what provisions of the law he had contravened or what terms and conditions of the licence the petitioner had violated and how and in what respect Section 42 of the Act, which alone contained Provision for cancellation of license had been contravened.
3. The Deputy Commissioner, without any notice to the petitioner, without hearing him, without considering his explanations or the consumers' petition, without any information to the petitioner to represent his case and without making any inquiry whatsoever, ordered in his chambers on 28-10-1953, that "license cancelled as proposed."
4. The petitioner, thereupon, filed an appeal, against the order of cancellation, to the Commissioner of Excise. The appeal was heard on 2-1-1954, and orders were reserved. As no orders had been passed in the appeal until 9-2-1954, the peti-tioner moved the Board of Revenue to direct the Commissioner of Excise to pass the orders immediately. Upon the direction of the Board, the Commissioner of Excise passed the order dismissing the appeal on 10-2-1954.
In para 17 of the petition it is stated that the Commissioner of Excise "wrongly mentioned that the irregularities were not challenged". Thereafter, the petitioner moved the Board of Revenue, but the Board declined to interfere and dismissed the application. These are the facts on which this application is founded.
5. A counter-affidavit has been filed by the opposite party which is sworn by the said Ramdeo Prasad Shahi, Inspector of Excise, who had made the reports. It is said in the counter affidavit that it is not correct to say that Jagarnath Singh had been dismissed from the petitioner's service during the year 1953-54, and that no such point was raised in the petitioner's explanation. It is further said that there is no procedure for framing any charge in a case like this.
It is to be noted that the statements contained in para 17 of the petition, already referred to above, to the effect (1) that the Commissioner of Excise heard the appeal on 2-1-1954 and reserved orders; (2) that the petitioner moved the Board on 9-2-1954, to direct the Commissioner to pass orders immediately; (3) that the Commissioner passed orders on 10-2-1954; and (4) that the Commissioner wrongly mentioned that the irregularities were not challenged, have not been denied in the counter affidavit.
6. It is urged on behalf of the petitioner that the order of the Deputy Commissioner, dated 28-10-1953, is null and void inasmuch as that order was passed without hearing the petitioner or giving him any opportunity to explain the allegations made against him.
On behalf of the opposite party, on the other hand, it is submitted that, as the petitioner had given explanations to the Superintendent of Excise and as the appeal was dismissed by the Commissioner of Excise, before whom the allegations against the petitioner, as mentioned in the reports, were not challenged, this Court ought not, to quash the order of the Deputy Commissioner aforesaid inasmuch as sufficient opportunities were given to the petitioner. It is further contended that, as the licence has already expired on 31-3-1954, this Court ought not to interfere as the order of this Court would be absolutely infructuous.
7. In answer to the- last contention of the opposite party, it is submitted on behalf of the petitioner that, under the rules, the settlement of a shop continues with the existing licensee if his conduct and management have been satisfactory; and, therefore, it Is suggested that, if the order of 28-10-1953, be quashed, the shop would continue to be settled with the petitioner. It is to be noted that, by reason of orders of stay obtained by the petitioner from time to time, the shop is being resettled with the petitioner, and the order of cancellation has not been given effect to.
8. Under the Bihar and Orissa Excise Act (2 of 1915), which will hereafter be referred to as the Act, the administration of the excise department within the district is under the charge of the Collector, unless the State Government appoints some other officer for the purpose (vide Section 77). It is not disputed before us that the Collector is not authority to cancel a licence granted by him, and that the licence is granted by the Collector.
In the Santhal Parganas, the Collector is known as the Deputy Commissioner. Section 8, Sub-section (2) of the Act lays down that orders passed under this Act or under any rule made hereunder shall be appealable in such cases, to such authorities and under such Procedure as may be prescribed by rule made under Section 89, Clause (c). It is, again, not disputed that the order of cancellation by the Deputy Commissioner was appealable to the Commissioner of Excise. Section 42 of the Act embodies the power to cancel or suspend any license, permit or pass on grounds mentioned in Sub-section (1) Clauses (a) to (g). The relevant portion of the section reads as follows;
"42(1) Subject to such restrictions as the State Government may prescribe, the authority who granted any licence, permit or pass under this Act may cancel or suspend it-
(c) in the event of any breach by the holder thereof, or by any of his servants, or by anyone acting on his behalf with his express or implied permission, of any of the terms or conditions thereof; or ....."
9. It is admitted that Section 42(1), (c), quoted above, was the appropriate provision under which the license of the petitioner could have been cancelled. Article 19(l)(g) of the Constitution gives right to all citizens to practise any profession or to carry on any occupation, trade or business, subject of course to reasonable restrictions on the exercise of such rights which may be imposed by any law, as provided for by Sub-section (6) of Article 19.
The petitioner, therefore, has a right to carry on his profession or his trade in selling of spirit, subject to the law enacted in the Bihar and Orissa Excise Act; in other words, he cannot sell without a license. The cancellation of his license, therefore, certainly affects his right adversely. The question is whether such a right as the petitioner had of selling spirit under license could be taken away by the authority without affording him sufficient opportunity of being heard.
It is not disputed that so far as the order in question of the Deputy Commissioner is concerned, that order was passed without affording opportunity to the petitioner of being heard and that was passed behind his back merely upon the recommendation made by the Superintendent of Excise. Under the law, as already mentioned, the cancelling authority is not the Superintendent of Excise but the Collector or the Deputy Commissioner.
It is stated in the petition that the Superintendent of Excise also did not make any inquiry but had only received the explanations of the petitioner. It is true that there are no rules or procedure mentioned in the Act as to how the Collector has to proceed, when there are allegations made against the licensee for cancelling his license, but as this power of cancellation of license affects the proprietary and professional rights of the licensee, whose license is going to be cancelled, in my judgment, though no procedure is laid down in the Act, the established rules of natural justice must be followed by the authority cancelling the license.
It is now well established that, under Article 226 of the Constitution, this Court can issue directions, orders or writs in the nature of certiorari or any other appropriate writ, and that a writ of certiorari can issue only against a person or authority if that person or authority is acting in his Judicial or 'quasi'-judicial capacity.
The writ of certiorari cannot issue against a person exercising merely an administrative authority. In this case, however, no contention was made on behalf of the opposite party that a writ of certiorari or any other appropriate writ cannot issue against the Collector or the Deputy Commissioner, who was acting merely in his administrative, as opposed to Judicial or quasi judicial capacity. I therefore, do not think it worthwhile to review the position In law as to whether a person in the position of Collector under the Act is not a quasi-judicial officer.
I proceed, therefore, to consider this case on the basis that the Deputy Commissioner, while exercising his power of cancelling the license under Section 42 of the Act, was acting as a quasi-judicial officer. I also hold that there is no procedure prescribed as to how the Collector is to exercise his power under that section. I find, however, that, under Section 8 of the Act, his orders are subject to appeal to the prescribed authority, and that the appeal from his orders lies to the Commissioner of Excise.
In the absence of any prescribed procedure, the Collector has to follow the principles of natural justice, namely, that no order should be passed to the detriment of any person affecting his property or his right of profession or trade, unless he has had an opportunity of being heard in his own defence of the charges levelled against him.
In the case of 'Ramnath Prasad v. Collector of Darbhanga', 1955 Pat 345 (AIR V 42) (A), a Division Bench of this Court, which also had to deal with a similar case of cancellation of license under the Bihar and Orissa Excise Act it was held:
"Section 42 (Bihar and Orissa Excise Act) therefore grants power to the Collector or to the prescribed authority to cancel or suspend a license. But the statute does not prescribe what is the procedure that the Collector has to adopt before passing final order. In a case of this description when the statute is silent what procedure will the law imply? Even if the statute is silent there is an obvious implication that some form of an enquiry must be made for the section requires the Collector to satisfy himself that there has been a breach of the conditions of the license by the holder or any of his servants.
The Collector is bound as a matter of principle to give a fair opportunity to the licensee of presenting his case. The Collector is under a duty to hear the matter in a judicial spirit for the question at issue is a matter of proprietary or professional right of an individual. The Collector should for instance give a fair opportunity to the licensee to make a relevant statement or to controvert any relevant statement made to his prejudice.
Apart from this, the Collector is not required to decide the question at issue as if he were sitting as a Court of law. He is not bound to follow all the procedural requirements of a for-mal trial It is sufficient if the Collector gives a fair opportunity to the licensee to present his case and to state his view point."
Ramaswami, J., in support of his view, referred to several cases which it is not profitable for me to refer again except tp a passage from -- 'Local Government Board v. Arlidge', 1915 AC 120 (B).
"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."
It is true that in this case this Court refused to issue any writ on the ground that adequate opportunity had been given to the petitioner before the order cancelling his license was made. In the case of the -- 'King v. Huntingdon Confirming Authority', (1929) 1 KB 698 (C), It was held that the effect of not following the principles of natural justice would be that the order which was passed was in effect a nullity. Romer, J,, one of the Judges in that case, made the following observation:
"At that meeting, the appellants were entitled to be present, and they were given no opportunity of being there. It is said that it would not have made any difference if they had been there. Whether that is so or not I do not know; future events will show. But in any case, it appears to me to be irrelevant consideration."
In the case of -- 'T. C. Basappa v. T. Nagappa', 1954 SC 440 (AIR V 41) (D), at p. 444, Mukherjea, J. (as he then was) observed as follows:
"Certiorari may lie and is generally granted when a Court has acted without or in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceeding or from the absence of some preliminary proceeding or the Court itself may not be legally constituted or suffer from certain disability by reason of extraneous circumstances (vide Halsbury, 2nd edition, Vol. IX, page 880) "A Tribunal may be competent to enter upon an enquiry but in making the enquiry it may act in flagrant disregard of the rules of procedure or where no particular procedure is prescribed, it may violate the principles of natural justice. A writ of certiorari may be available in such cases."
This case re-iterated the view previously expressed by the Supreme Court in the case of -- 'Veerappa Pilial v. Raman and Raman Ltd.', 1952 SO 192 (AIR V 39) (E), at pp. 195-196.
"Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the pcinciples of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice."
In the case of -- 'Bibi Nazma Khatoon v. R.P. Sinha', 1954 Pat 43 (AIR V 41) (F), it was laid down as follows:
"It is a fundamental principle of justice that the party against whom a judgment or order is to operate should have an opportunity of being heard. The principle is embodied in the maxim 'audi alteram partem'. That is the general rule, and a breach of this rule affects the jurisdiction of the Court or Tribunal which passes final order."
The Deputy Commissioner not only did not give opportunity to the petitioner of being heard in the matter of cancellation of his license, but it appears that his attention was not properly drawn to the provisions which enabled him to cancel the license. As I have already stated, in Section 42 of the Act, a number of grounds are mentioned, and anyone of them may be a good ground for cancellation of the license.
I have also mentioned that, so far as Section 42 (1) (c) is concerned, the cancelling authority has to be satisfied, firstly, that there was a breach of any of the terms or conditions of the license either by the holder thereof or by his servants. If it was by his servants, he must further "be satisfied that the breach by the servants was with the licensee's express or implied permission. The Deputy Commissioner did not attempt to find out as to what was the breach, whether it was by the licensee himself or whether it was by his servants or agent; and if by his servants, or agent, whether it was with his permission, express or implied.
In the order of the Superintendent of Excise, recommending cancellation of the license, Section 68 instead of Section 42, of the Act has been mentioned.
I am prepared to accept that it may be a slip or a clerical error on the part of the Superintendent of Excise; but that order, recommending cancellation, appears to be based broadly on two grounds one is the report of the inspector, and the other is "considerable public complaint against the vendor".
Now, the petitioner was not given any opportunity even by the Superintendent of Excise to explain as to what were the considerable public complaints against him, or was any inquiry made into those complaints. When the Deputy Commissioner passed his order cancelling the license, it does not appear as to whether he was guided in his decision, at which he arrived, by both the grounds or only one of them. It is suggested by the opposite party that the explanations given by the petitioner to the Superintendent of Excise should be held to be enough.
I have indicated that the cancelling authority is the Collector or the Deputy Commissioner in the present case, and it is he who has got to be satisfied whether the provisions of Section 42 enabling him to cancel the license have been satisfied or not. It was, therefore, he and he alone who had to consider the matter; and, therefore, the explanations to the Superintendent of Excise, or even an inquiry by him although no inquiry was made in the present case cannot possibly take the place of an opportunity being given to the licensee of being heard by the cancelling authority.
In the present case, as indicated above, so fax as the considerable public complaints were concerned, absolutely no opportunity was given even by the Superintendent of Excise to the petitioner for explanation regarding 'considerable public complaints'. It was contended by the other side that the petitioner was heard in full by the Commissioner of Excise in support of his appeal against the order of the Deputy Commissioner. In my judgment, that is of no consequence in finding out whether the Deputy Commissioner exercised his jurisdiction in accordance with the principles of natural justice. It was not the Commissioner of Excise who cancelled the license; it was the Deputy Commissioner who did it, and, before cancellation of the license, the party affected thereby must have been heard by the Deputy Commissioner; and it is no good saying that, after the order of cancellation was passed, the petitioner was heard in appeal against that order.
It was also contended that, from the order of the Commissioner of Excise, it appears that the allegations made by the inspector in his reports were not challenged by the petitioner in appeal. The appeal was heard on 2-1-1954, and the orders were passed by the learned Commissioner of Excise only on 10-2-1954 more than 3 month after, and that too after he was reminded by the Board of Revenue.
I have also indicated that in para. 17 of the petition statement has been made that the learned Commissioner of Excise had wrongly mentioned that the irregularities had not been challenged, and this statement is uncontroverted by the opposite party. It is likely that, as the order came to be passed after some time, the learned Commissioner of Excise may not be quite precise in mentioning in his order that the allegations were not challenged.
It is likely that alternative argument may have been placed before him to the effect that the allegations in the Inspector's reports were wrong, and that, in any view of the matter, it should have been held that Jagarnath Singh, a dismissed servant of the petitioner, according to the petitioner's allegations, had planted the defective bottles and got him entrapped.
I am not sitting in judgment as a Court or Appeal but I am only pointing out that the Deputy Commissioner did not follow the elementary rules of natural justice in cancelling the license of the petitioner, I am alive to the position in law that where an alternative remedy is provided by law, as a general rule, a writ of certiorari or prohibition will not lie; but, as pointed out by the aforesaid judgment in 1954 Pat 43 (AIR V 41) (F), "But there is an exception in a case where the want of jurisdiction complained of is based upon the violation of some fundamental principle of justice. In such an exceptional case, the existence of a remedy by way of appeal or revision is no answer to an application asking for a writ of certiorari or prohibition."
10. On the consideration aforementioned, in my judgment, the Deputy Commissioner had no jurisdiction to cancel the license of the petitioner without following the principles of natural justice; and, therefore, his order of 28-10-1953, cancelling the license, is null and void and without jurisdiction and the fact that appeal against such an order has been dismissed does not make the order an order with jurisdiction or valid in law.
11. The other question that remains to be considered is whether the order of the Deputy Commissioner should be quashed. It is well established that, if the result of the quashing of the order be not in any manner advantageous to the petitioner, this Court will not exercise the discretion vested in it to issue writ contemplated by Article 226 of the Constitution inasmuch as such writs would be of no effect and value.
The learned Government Pleader, on behalf of the opposite party, has submitted that the license in question was cancelled in October, 1953, and it had to run only up to 31-3-1954, and as the last date of the license has long expired, it would be of no avail to the petitioner if the impugned order of the Deputy Commissioner is set aside by this Court. On behalf of the petitioner, on the other hand, it is contended that, if this order is quashed the license of the shop in question will be renewed in favour of the petitioner. Section 45 of the Act runs as follows:
"No person to whom any license has been granted under this Act shall have any claim to the renewal of such license or, save as provided in Section 43, any claim to compensation on the determination thereof."
This section does say in clear terms that the licensee has no claim to the renewal of such a license; but this section has to be read along with Rule 101, Sub-clause (3), of Bihar and Orissa Excise Manual, Volume III (1st reprint, 1955) at page 37, which reads as follows:
"The settlement of a shop should continue with the existing licensee if his conduct and management during the year have been satisfactory and if he puts in by the 10th January an application for renewal of the license ....."
Reading these two provisions together, it is quite clear that, although the licensee has no claim to the renewal of his license, the department should generally continue to renew the license with the existing licensee. I do not think it is a case where the quashing order of this Court will be of no effect, and it is likely that if that order remains, the license may not be renewed in favour of the petitioner.
In my judgment, therefore, on the grounds set forth above, I would hold that the petitioner has made out a case for quashing of the order of the Deputy Commissioner dated 28-10-1954, and I would hereby set aside the said order. In the circumstances of this case each party Will bear its own costs. RAI J.:
12. I have had the advantage of going through the judgment of my learned brother. With all respect to the view taken by him, I am sorry I am not in a position to agree with him that it is a fit case in which a writ of certiorari should be issued.
It is admitted that license in such case is granted only for a year, and the particular license of the petitioner was also to remain in force from 1-4-1953 to 31-3-1954, but the same was cancelled by the order dated 28-10-1953, passed by the Deputy Commissioner which was upheld in appeal by the Excise Commissioner. Section 42, Bihar and Orissa Act, 1915, provides for the cancellation or suspension of a license or permit, the relevant portion of which runs as follows:
"(1) Subject to such restrictions as the State Government may prescribe, the authority who granted any license, permit or pass under this Act may cancel or suspend it -
x x x x
(c) in the event of any breach by the holder thereof, or by any of his servants, or by any one acting on his behalf with his express or implied permission, of any of the terms or conditions thereof."
It is admitted that the license of the petitioner was cancelled in accordance with the above mentioned provision. Chapter VI of the Bihar and Orissa Excise Act, 1915, deals with the granting of licenses, permits and passes. Sections 34 and 35 of the Act provide for granting of such licenses. These two sections run as follows:
"34. (1) After the date prescribed for the receipt of objections and opinions submitted under Section 33, the Collector shall consider the same, and shall, if necessary, revive the said list, and shall decide for what places licenses for the retail sale of spirit shall be granted, and may in his discretion, grant licenses accordingly.
(2) The Collector shall then forthwith submit the said list, as so revised, and the said objections and opinions, and his opinion to the Excise Commissioner.
35. The Excise Commissioner shall consider the list, objections and opinions so sent to him, and may modify or annul any order passed or license granted by the Collector; and, notwithstanding anything contained in Section 8, his orders shall be final."
From the above two sections it is clear that the order of the Collector (in the present case that of the Deputy Commissioner) is subject to the approval of the Excise Commissioner whose order in respect of the grant of license is final. From the order of the Deputy Commissioner recorded on the file of the case of the present petitioner, it does not appear that he heard the petitioner before cancelling the license.
The petitioner, filed an appeal to the Excise Commissioner through the Deputy Commissioner, Santhal Parganas, in accordance with the rules mentioned at page 93 of the Bihar and Orissa Excise Manual, 1919, Volume II. The appeal of the petitioner was duly heard before the Excise Commissioner & was ultimately dismissed. The petitioner thereafter went in revision before the Board of Revenue but there also he was unsuccessful.
13. Learned counsel for the petitioner urged before us that as no opportunity had been given to his client before the order was passed by the Deputy Commissioner, the said order should be quashed. He contended that the procedure followed by the Deputy Commissioner was against natural Justice.
14. In my view, the circumstances of this case do not justify a writ of certiorari to be issued for the purpose of quashing the order of the Deputy Commissioner which had merged in the order of the Excise Commissioner. The order of the Deputy Commissioner has no separate existence after it had merged in the order of the Excise Commissioner. When the petition was heard before the Excise Commissioner, he appears to have made no grievance that the order by the Deputy Commissioner was passed without giving him any opportunity to refute the allegations made against him.
It appears that he was satisfied with the procedure followed in the case started against him. No such grievance appears to have been made even before the Board of Revenue. In my view, the petitioner had in fact nothing more to say beyond what he had said in the explanation submitted by him in the case. I have carefully gone through the decision in 1955 Pat 345 (AIR V 42) (A).
In that case no writ was issued and no such point was raised as to whether this Court would be entitled to quash the order of the Collector or the Deputy Commissioner which had merged in the order of the Excise Commissioner where the person aggrieved had full opportunity to be heard. In my view, the petitioner had every right to challenge in appeal not only the propriety of the order under appeal but also the irregular procedure, if any, followed before such an order was passed.
The petitioner having raised no objection either before the Excise Commissioner or before the Board of Revenue that he had not been given an opportunity to be heard before the Deputy Commissioner will be deemed to have harboured no such grievance, and even if he had any, he will be deemed to have waived it. In my view, the petitioner is not entitled for issue of a writ in the nature of certiorari for quashing the order of the Deputy Commissioner on the ground that he was not given an opportunity to be heard before the order cancelling his license was passed.
15. There is another reason why, in my opinion, no writ should be issued in this case. The license in question even if not cancelled would have expired on 31-3-1954. According to Section 45 of the Act, no person to whom any license has been granted under the Act shall have any claim to the renewal of such a license. Thus there was no certainty that the petitioner was bound to be granted a license for the succeeding years also.
In spite of Rule 101(3) mentioned at page 37 of the Bihar and Orissa Excise Manual, Vol. III, to the effect that "the settlement of a shop should continue with the existing licensee if his conduct and management during the year have been satisfactory, the excise authorities cannot be bound to grant license to the petitioner for successive years. Prom the orders of the Excise Commissioner and the Board of Revenue it is clear that the license of the petitioner had been cancelled on account of his having violated the terms of the license.
So, even if this Court quashes the order of the Deputy Commissioner dated 28-10-1953, the excise authorities cannot be compelled to grant license to the petitioner again. To me it appears that the writ issued by this Court will be rather meaningless in the circumstances of the present case. It was represented to us at the time of argument that in case the order of the Deputy Commissioner is quashed by this Court, there is every chance of the petitioner being granted license in future years also as was done In the years 1954 and 1955.
The licenses granted in those years have not been placed before us, but it was admitted that they were temporary licenses most probably granted due to the pendency of the revision before the Board of Revenue and the Miscellaneous Judicial Case before this Court. It appears that during the pendency of these proceedings the excise authorities did not consider it advisable to enforce the order passed against the petitioner.
In the case of -- 'K.N. Guruswamy v. State of Mysore', 1954 SC 592 (AIR V 41) (G), their Lordships of the Supreme Court refused to issue an ineffective and meaningless writ where the term of license was to expire within a few days. In the present case the license in question spent its force on 31-3-1954. In my view, there is no justification for issue of a writ under Article 226 of the Constitution.
16. The result is that the application fails and is dismissed but, in the circumstances of this case, there will be no order for costs.
Ramaswaml, J,
17. In this case the petitioner Sheopujan Choudhury has obtained a rule from the High Court calling upon the respondents to show cause why a writ in the nature of certiorari should not be issued to call up and quash the order of the Deputy Commissioner of Santal Parganas dated 28-10-1953, cancelling the licence of the petitioner with regard to a country liquor shop. Cause has been shown by the Government Pleader on behalf of the State of Bihar and the other respondents to whom notice of the rule was ordered to be given.
18. The petitioner was a licensee of Sakri Gali Country Liquor Shop in the district of Santal Parganas. The licence was for sale of country spirit from 1-4-1953 to 31-3-1954. On 4-6-1953, the Inspector of Excise paid a surprise visit to the liquor shop of the petitioner and on checking the stock found that three bottles of liquor were in short measure and seven bottles contained diluted liquor.
The Excise Inspector made a note of the irregularities and asked the licensee to submit his explanation direct to the Superintendent of Excise. On 21-6-1953, the Excise Inspector again visited the shop of the petitioner and found that some customers had purchased liquor before the prescribed time and that they had paid excess price for the liquor they had purchased. The Excise Inspector also found that the accounts of the country liquor shop were not written up to date. The Excise Inspector ascertained from the customers that they had paid Re. 1/- as the price for each bottle of liquor against the prescribed rate of thirteen annas.
The Excise Inspector made a report of the irregularities to the Superintendent of Excise, who issued formal notices to the licensee to show cause. These notices were issued on 20-6-1953 and on 23-6-1953. The petitioner submitted explanation on 20-7-1953. The petitioner explained that the Excise Inspector had seized the bottles on 4-6-1953 not from the shop but from customers who had already consumed part of the liquor. The petitioner further said that on 21-6-1953, the customers were consuming liquor which they had purchased on the previous day.
The petitioner also denied that he had charged excessive price. The Superintendent of Excise found the explanations unsatisfactory and reported to the Deputy Commissioner of Santal Parganas that the licence of the petitioner should be cancelled. On 28-10-1953, the Deputy Commissioner of Santal Parganas accepted the report of the Superintendent of Excise and ordered that the licence of the petitioner should be cancelled. The petitioner preferred an appeal to the Commissioner of Excise against the order of cancellation of the licence.
The appeal was heard on 2-1-1954 and dismissed. The petitioner took the matter in revision to the Board of Revenue and on 29-3-1954, the Board of Revenue dismissed the revision application holding that the explanation of the licensee was false and that the irregularities alleged by the Excise Authorities had been established against the petitioner.
19. The case of the petitioner is that the Deputy Commissioner of Santal Parganas did not issue a fresh notice upon the petitioner and did not give an oral hearing before cancelling the licence of the country liquor shop. It was argued that the order of the Deputy Commissioner was, therefore, a nullity in the eye of law and that the appellate order of the Commissioner of Excise could not cure the defect.
It was, therefore, prayed that a writ in the nature of certiorari should be issued to quash the order of the Deputy Commissioner of Santal Parganas and also to quash the order of the Commissioner of Excise passed in appeal and the order of the Board of Revenue made in exercise of its re-visional jurisdiction. This case was argued in the first instance before a Bench consisting of Rai and Sinha, JJ., who did not agree as to how the question at issue should be decided.
It was held by Sinha, J. that there was a violation of the principle of natural justice and that the Deputy Commissioner had no jurisdiction to cancel the licence of the petitioner without giving him an opportunity to show cause. The learned Judge, therefore, considered that a writ in the nature of certiorari should be issued to quash the order of the Deputy Commissioner dated 28-10- 1953.
Rai, J. however expressed a contrary view The learned judge observed that the petitioner did not raise any objection before the Excise Commissioner or before the Board of Revenue that he was given no opportunity to be heard before the Deputy Commissioner and it should, therefore, be taken that the petitioner "must be deemed to have waived the objection".
The learned Judge further considered that the order of the Deputy Commissioner had merged in the order of the Excise Commissioner after the petitioner had preferred an appeal and no writ of certiorari could be issued because the order of the Deputy Commissioner had no separate existence after it had merged in the order of the Excise Commissioner. For these reasons, Rai J. considered that there was no justification for the issue of a writ of certiorari.
20. In view of the difference of opinion, this case has been placed before me for decision under clause 28 of the Letters Patent. The learned Judges have formulated the following question of law upon which they have differed;
"Whether under the circumstances of this case a writ in the nature of certiorari should be issued."
21. On behalf of the petitioner Mr. Baldeva Sahai put forward the argument that the Deputy Commissioner of Santal Parganas was bound as a matter of law to give ft notice to the licensee to show cause and also to give the licensee an oral hearing before cancelling the licence for the. country liquor shop. It was conceded by learned Counsel that Section 42 of the Bihar and Orissa Excise Act which authorised the Collector or the prescribed authority to cancel or suspend a licence did not enjoin what was the procedure to be adopted by the Collector before passing final order. Section 42 (1) (c) states:
"Subject to such restrictions as the State Government may prescribe, the authority who granted any license, permit or pass under this Act may cancel or suspend it in the event of any breach by the holder thereof, or by any of his servants, or by any one acting on his behalf with his express or implied permission, of any of the terms or conditions thereof."
It is manifest that Section 42 (1) (c) does not expressly state what is the procedure to be adopted by the Collector or other prescribed authority. But Mr. Baldeva Sahai referred to a decision of a Division Bench of this Court in 1955 Patna 345 (AIR V 42) (A) and argued on the authority of that decision that even though the statute was silent the Collector was bound as a matter of principle to give a fair opportunity to the licensee of presenting his case and that the Collector was also under a duty to hear the matter in a judicial spirit.
I think that the argument of learned counsel is right. Though Section 42 (1) (c) of the Bihar and Orissa Excise Act does not prescribe what is the procedure to be followed by the Collector for cancellation of a licence, there is an implication as a matter of law that some form of enquiry must be made and the Collector is bound to give a fair opportunity to the licensee of stating his view point. The main question at issue is, therefore, whether there has been a violation of the principle of audi alteram partem in this case.
It should be noticed in the first place that the petitioner was aware of the irregularities detected by the Excise Inspector on 4-6-1953 and 21-6-1953 and the petitioner submitted his explanations to the Superintendent of Excise on 20-7-1953. The petitioner explained that the Inspector seized the bottles from the possession of customers who had already consumed part of the liquor. The petitioner also denied that he charged excessive price for the liquor sold to the customers.
The petitioner also alleged that the customers were consuming liquor which they had purchased on the previous day and that there was no sale of liquor beyond the prescribed hours. These explanations were submitted by the Superintendent of Excise along with his report dated 5-10-1953 to the Deputy Commissioner of Santal Parganas. The Superintendent of Excise reported that the explanations were unsatisfactory and that the licence of the petitioner should be cancelled.
On 28-10-1953, the Deputy Commissioner noted in the order-sheet that the licence was cancelled as proposed. It is true that the Deputy Commissioner did not issue a fresh notice to the licensee and did not give an oral hearing, but the Deputy Commissioner had before him not only the report of the Superintendent of Excise but also the explanations of the licensee refuting the allegations. I am, therefore of the opinion that the petitioner was given a fair opportunity in this case and that the Deputy Commissioner made the order of cancellation of the licence after considering the view point of the petitioner.
It is true that there was no oral hearing given to the petitioner before the licence was cancelled. But it is not a correct proposition to say that the principle of audi alteram partem includes necessarily the right to oral hearing in every case, The principle only means that the party affected should be given sufficient opportunity to meet the case against him and not that he is necessarily entited is an oral hearing. That was the view expressed by the House of Lords in -- 'Local Government Board v. Arlidge', 1915 AC 120 (H).
It was argued on behalf of the respondent in that case that there was no oral hearing granted by the Local Government Board before dismissing the appeal and, therefore, the order of the Local Government Board violated the principle of natural justice and should be quashed by a writ in the nature of certiorari. The argument was rejected by the House of Lords and it was held that the order of the Local Government Board dismissing the appeal was not legally invalid and that the respondent was not entitled as of right, as a condition precedent to the dismissal of his appeal, either (a) to be heard orally before the deciding officer, or (b) to see the report of the Board's Inspector upon the public local inquiry.
The authority of this case supports the view I have already expressed that the right to oral hearing is not necessarily included in the principle of audi alteram partem. In the circumstances of the present case, I hold that the petitioner had no right to be orally heard before the Deputy Commissioner of Santal Parganas before the cancellation of the licence of the country liquor shop.
As I have said, the petitioner had already filed written explanations on 20-7-1953, before the Superintendent of Excise controverting the allegations made against him and these explanations were submitted by the Superintendent of Excise along with his report to the Deputy Commissioner of Santal Parganas before the latter made the order of cancellation on 28-10-1953.
I, therefore, hold that the petitioner was afforded a fair opportunity of presenting his view point and there has been no violation of the principle of natural justice and the order of the Deputy Commissioner dated 28-10-1953, cancelling the licence is not legally invalid.
22. There is another important aspect of the case to be taken into account. After the Deputy Commissioner made the order of cancellation under Section 42 (1) (c) of the Bihar and Orissa Excise Act, the petitioner had a statutory right of appeal. Section 8 (2) of the Bihar and Orissa Excise Act provides that "orders passed under this Act or under any rule made hereunder shall be appealable in such cases, to such authorities and under such procedure as may be prescribed by rule made under Section 89, Clause (c),"
Section 8 (3) is also important. Section 8 (3) provides that "the Board may revise any order passed by a Collector, the Excise Commissioner, or the Commissioner of a Division". In the present case, the petitioner took advantage of the statutory right and preferred an appeal before the Commissioner of Excise on 2-1-1954. The petitioner was represented by counsel and the case of the petitioner was argued before the Commissioner of Excise.
On 10-2-1954, the Commissioner of Excise dismissed the appeal holding that the petitioner was guilty of the alleged irregularities and that the licence had been rightly cancelled under Section 42 (1) (c) for breach of the conditions. The petitioner had a right in arguing his appeal to agitate questions of fact and to show that the order of the Deputy Commissioner was erroneous not only on questions of fact.
It is the admitted position that the Commissioner of Excise could, as an appellate authority, explore questions of fact in addition to question of law and if the Commissioner of Excise came to the conclusion that the Deputy Commissioner of Santal Parganas had taken a wrong view of facts, he had power to set aside the Deputy Commissioner's order cancelling the license of the. Petitioner. It is admitted that the petitioner was given an oral hearing by the Commissioner of Excise before the appeal was decided.
It also appears that the petitioner took the matter in revision before the Board of Revenue. The petitioner was represented by Counsel before the Board of Revenue also and there was an oral hearing. On 29-3-1954, the Board of Revenue affirmed the findings of the Excise Commissioner that the petitioner was guilty of mal-practices and irregularities and consequently dismissed the revision application.
It is conceded by Mr. Baldeva Sahai appearing on behalf of the petitioner that the petitioner was given an oral hearing both before the Commissioner of Excise and before the Board of Revenue. But the point taken by learned Counsel was that the order of Deputy Commissioner of Santal Parganas was a nullity because the petitioner was not given an oral hearing at that stage. But as a matter of law it is not correct to state that the party adversely affected should be heard at each and every stage of the administrative process.
There is no such general requirement in the principle of audi alteram partem. On the contrary, the principle is satisfied if the party adversely affected is given sufficient opportunity to know the case he has to meet and to answer that case at some stage and not at all the stages of the administrative proceeding.
As I have said, the question as to whether a fair opportunity has been given to the party adversely affected depends very much on the particular facts of each case. I think that the concept of "natural justice" cannot be imprisoned within the straight jacket of any fixed formula. It is not a mechanical instrument applicable to all situations. As observed by Frankfurter, J. in -- 'Joint Anti-Fascist Refugee Committee v. J. Howard McGrath', (1951) 341 US 123 p. (164) (I):
"Whether the ex parte procedure to which the petitioners were subjected only observed 'the rudiments of fair play', -- 'Chicago, M. & St. P. Rly. Co. v. J. F. Polt', (1914) 232 US 165 (J), cannot, therefore, be tested by mere generalities or sentiments abstractly appealing. The precise nature of the interest that has been adversely affected, the manner in which this was done, the reasons for doing it, the available alternatives to the procedure that was followed, the protection implicit in the office of the functionary whose conduct is challenged, the balance of hurt complained of and good accomplished these are some of the considerations that must enter into the judicial judgment."
It is therefore, clear that on the question whether a fair opportunity has been given no general test can be formulated which would be applicable to all conditions. There is, however, authority for the view that the principle would be satisfied if the statute provides for an appeal to higher authority as appeal to the Commissioner of Excise in the present case (see the Judgment of Lord Coleridge C. T. in -- 'Vestry of St. James and St. John Clerkenwell v. Feary', (1890) 24 QBD 703 (K), or for making any formal representation to the authority before the order becomes finally operative (see -- 'Attorney General v. Hooper', (1893) 3 Ch D 483 (L).
A similar view has been taken in American Administrative Law where the conception of procedural due process takes the place of conception of "natural Justice. For example, in -- 'Opp Cotton Mills v. Administrator of the Wage and Hour Division of the Department of Labor', (1941) 312 US 126 (M), it was held by Stone, J. that "the demands of due process do not require a hearing at the initial stage or at any particular point or at more than one point in an administrative proceeding so long as the requisite hearing is held before the final order becomes effective." Similarly, in -- 'Bourjois v. Clyde B. Chapman', (1937) 301 US 183 (N), it was held by Brandeis, J. that the process was not denied by the statute which authorised the Health Department to refuse the issuance of certificate of registration for cosmetic preparations, which in its judgment contain injurious or poisonous substances, and which! did not provide for a hearing of the application for certificate of registration by the said Department but which provided for an appeal to the Court from the refusal of the Department to issue the certificate.
23. In the course of his judgment, Sinha, J. has referred to the case of 1929-1 KB 698 (C), in support of the proposition that the order of the Deputy Commissioner of Santal Parganas was a nullity because the principle of natural justice was not followed.
In that case the Court of Appeal quashed the order of the Confirming Authority on the ground that no notice was given to the parties and the parties had no opportunity of attending the meeting of the Confirming Authority and arguing whether the conditions imposed for the grant of the required licence were acceptable or not.
The authority of this decision is not applicable to the present case because there was no ap-peal provided by the statute from the order of the Confirming Authority. It also appears that the Confirming Authority held two meetings, the first meeting being held on 25-4-1928 and the second meeting being held on 16-5-1928.
At the first meeting, the Confirming Authority confirmed the licence subject to two conditions: (a) No bar to be permitted, (b) Intoxicating liquors only to be supplied to persons residing- in the hotel and their guests and to persons partaking of meals. The licensing justices declined to agree to the second condition and so informed the Confirming Authority.
A further meeting of the Confirming Authority was held on 16-5-1928 at which it was decided to confirm the grant of the licence subject only to the first condition. No notice was given to the parties of the second meeting and they had no opportunity of being heard on question of varying the conditions.
It was held by the Court of Appeal that the order of the Confirming Authority was a nullity not only because there was no notice of the hearing" given to the parties interested but also because the second meeting of the Confirming Authority was not constituted of the same members as those who were present at the first meeting and that there were new members present at the second meeting who had not heard the evidence given. I do not think that the principle of this case has any application to the present case where the material facts are different and where the person affected has a statutory right of appeal both on facts and on law to the Commissioner of Excise.
24. A point was also taken by Mr. Baldeva Sahai on behalf of the petitioner that in his report dated 5-10-1953 the Superintendent of Excise had referred not only to the irregularities detected on 4-6-1953 and on 21-6-1953, but also of certain "public complaint against this vendor". It was contended by learned Counsel that the petitioner was not told by the Excise Authorities as to what was the nature of the Public complaint made against him and he was given no opportunity to controvert any such allegation.
From the order of the Commissioner of Excise dated 10-2-1954, however, it does not appear that the licence was cancelled because of the bad reputation of the licensee or of public complaints made against him. In paragraph 6 of his order the Commissioner of Excise has noted the irregularities found by the Excise Inspector on 4-6-1953 and on 21-6-1953.
The Commissioner of Excise found, after hearing the arguments of the petitioner, that these irregularities had been established, and on this finding held that the penalty of cancellation of licence was not at all severe and so dismissed the appeal. It is, therefore, manifest that the order of the Commissioner of Excise is based not upon the bad reputation of the licensee or upon public complaints made against him but upon the irregularities found by the Inspector of Excise on his two visits made on 4-6-1953, and on 21-6-1953. I do not think there is any substance in the argument of Mr. Baldeva Sahai on this point.
25. For the reasons expressed, I hold that there has been no violation of the principle of audi alteram partem and in the circumstances of this case a writ in the nature of certiorari should not be issued. I would accordingly answer the question of law formulated by the Division Bencn. I agree in substance with the conclusion reached by Rai, J. though on a different line of reasoning. I regret that I have reached a conclusion different from that of Sinha J.