Calcutta High Court
Shri G. Mohandas vs Union Of India (Uoi) And Ors. on 24 June, 1996
Equivalent citations: (1997)1CALLT146(HC)
JUDGMENT Bhagabati Prasad Banerjee, J.
1. In this writ application the petitioner challenged the validity of the order contained in Memo. No. 336 dated 15th April, 1996 and Memo. No. 7-143 LS/95/1289 dated 15th April, 1996 and for other reliefs.
For a long time the petitioner was doing business of vending liquor on the basis of the licences granted by the Deputy Commissioner; Andaman District by importing Indian made foreign liquor. The auction for the year 1966-67, i.e. from 1.4.96 to 31.3.97 was held on the basis of public notification whereupon an auction took place and the petitioner became the successful bidder for the bid amount of Rs. 3,09,20,000/-and on 22.2.96 when the bid was held the petitioner deposited 50% of the bid amounting to Rs. 1,54,60,000/- and also deposited a sum of Rs. 2,00,000/- towards security deposit.
2. After the auction was held, writ petition was filed by some other persons, being C.O. No. 12(W) of 1996 in each challenge was made to the auction held on 22.2.96 in terms of the notice dated 7.2.96 and no interim order was passed in the said application excepting that an order was passed to the extent that auction that was held would abide by the result of the writ application. This Court was informed that the said writ application had been dismissed.
3. At about 10.00 A.M. on 15.3.96 the petitioner went to the office of the Deputy Commissioner, Andaman as his presence was required to sign the agreement for the year 1996-97 to vend liquor in Andaman and Nicobar Islands since he was the highest and successful bidder in the auction held on 22.2.9.6. After he has attained the office of the Deputy Commissioner, the petitioner was told by the Deputy Commissioner that some excise Inspector from Nagpur was waiting in his office to arrest the petitioner in connection with a crime case lodged at Nagpur. The petitioner was arrested there and brought before the Court of the learned Chief Judicial Magistrate, Port Blair and in terms of an order of warrant of arrest dated 11.3.96 passed by the learned Chief Judicial Magistrate, Nagpur, the petitioner was handed over to the Police Personnel of Andaman to take him to custody and to produce him before the learned Chief Judicial Magistrate, Nagpur. The petitioner was taken to Nagpur by Air via Calcutta and Bombay and he was granted bail at Nagpur on 18.3. 96 with the condition that he should not leave the City of Nagpur as his presence was required for the purpose of investigation in respect of the said case. Immediately after the petitioner was arrested and he was kept under police custody. A notice was issued at about 10.00 A.M. by Tapan Mandal, Deputy Commissioner directing the petitioner to submit sales and stock statements of date to the full knowledge that the petitioner was arrested from his office at about 10.00 A.M. and was kept under police custody. At 5.00 P.M. on 15.3.96 a thorough search was conducted in the office of the petitioner by the Sub-Divisional Magistrate and seized all the books of accounts and records from the said office. Thereafter, from 10.00 P.M. on 15.3.96 to 4.00 A.M. of 16.3.96 all the shops and godowns of the petitioner were raided papers and documents were seized and the shops and godown were sealed thereby preventing the petitioner from carrying on the business. At about 10.00 A.M. on 16.3.96 which was a Saturday, a notice was issued by the Deputy Commissioner, Andaman stating that unless all the sales and stock statements were submitted within 5.00 P.M. on 20.3.96 shops and godowns of the petitioner which was sealed in the mid-night of 15.3.96 should remain sealed. In the early hours of 18.3.96, a letter was written by an employee of the petitioner requesting the Deputy Commissioner to supply all the copies of the books of accounts, sales and stock register etc. which was seized by the Deputy Commissioner for the purpose of submission of sales and stock statements as called for by the Deputy Commissioner in his notice dated 16.3.96 and also requested that inventory of liquor at various shops and godowns of the petitioner might be made at the earliest. Such a letter was written by an employee of the petitioner in the absence of the petitioner. No step whatsoever was taken by the Deputy Commissioner to furnish the copies of the documents seized from the office of the petitioner's shops and godowns for preparing the sales and stock statements in respect of which request was also made on 18.3.96. On 21.3.96 the petitioner received a letter from the office of the Deputy Commissioner in which xerox copies of sales register, stock register and permit register numbering about 13 were annexed in the said letter. The petitioner was also directed to submit monthly sales statement from 1.4.94 showing that the import, sales and closing balance, particulars of brand name, batch number and quantity in case against each consignment as well as copies of import permits issued by the office export passes issued by the distillery against the import permits and advice notes containing details of the brand name etc. On the same date, 21.3.96 the petitioner's employee wrote another letter to the Deputy Commissioner that copies of certain other vital documents seized by them were required for the production of sales and stock statement. In reply to that letter dated 21.3.96 the petitioner's employee received a letter addressed to the petitioner on 21.3.96 at about 4 P.M. regarding furnishing of documents relating to liquor sales.
4. The text of the letter is as follows :-
"This is to bring to your kind notice that the relevant records and documents as asked for by this office vide letter No. 7-143/LS/95 dated 15.3.96 have not been furnished to this office so far. Further the reply furnished by this office to your letter dated 18.3.96 signed by Shri Yousuf on behalf of Shri Mohan Das not accepted either by Shri Yousuf or by Shri Sreekumar on the ground that they are not authorised to accept the communications on behalf of the licensee. The reply was subsequently accepted at 11.00 A.M. on 21.3.96 after inordinate delay".
5. Being aggrieved by and dissatisfied with the action of the Deputy Commissioner, the petitioner filed two writ applications in this Circuit Bench at Port Blair of the High Court at Calcutta, being C.O. No. 26(W) of 1996 in which the validity of the search and seizure and sealing of the shops and godowns and show-cause notice to cancel the licence for 1995-96 were challenged in the other writ application, being C.O. No. 27(W) of 1996. The notice dated 21.3.96 in so far as it seeks to cancel the auction for 1996-97 wherein the petitioner was the successful bidder and deposited 1 crore 54 lacs.
6. The said two writ applications were heard by U.C. Banerjee, J. of this Court at length and disposed of by the judgment dated March 26, 1996.
7. In the Judgment delivered in C.O. No. 26(W) of 1996 dated March 26, 1996 His Lordship was pleased to hold after considering the matter in detail that the sealing of the petitioner's shops and godowns which was virtually stopped the business of a valid licensee simply on the basis of filing of a case at Nagpur where no specific charge against the petitioner for fraud or otherwise were made and no proceeding was initiated against the petitioner and by reason of a proceeding at Nagpur the seal of the shop and godown was not in accordance with law in order to put to an end to the controversy. His Lordship issued the following direction :-
In that view of the matter and considering the urgency of the matter and having due regard to the submission made on behalf of the parties, it is ordered that the Deputy Commissioner, Andaman District would be at liberty to make an inventory of the goods lying at the godown and shop premises and such inventory be completed in course of this day or latest by 2 P.M. tomorrow and if any stock of IMFL is found on such inventory being made to be not in accordance with the licence granted to the writ petitioner the Deputy Commissioner would be at liberty to take steps in accordance with law upon notice to the writ petitioner. It is further ordered however that if such a stock being contrary to the licence is found, the same may be removed from the respective godowns and the shops and be kept under the control an custody of the Deputy Commissioner, but the petitioner would be allowed to carry on his business in the usual course though however in that event under the supervision of the Deputy Commissioner or some such person or persons as may be authorised by the Deputy Commissioner if the latter so deems it expedient and on such terms as may be imposed by the Deputy Commissioner. In the event however no such goods are found within the premises then and in that event the Deputy Commissioner is directed to permit the petitioner to carry on the business in the usual course and manner in terms of the licence granted in favour of the petitioner which is to expire on 31st March, 1996.
8. It is however convenient to record that there has been an emphatical denial by Mr. Ghosal in regard to the user of forged permits by the petitioner at any stage whatsoever.
9. For convenience sake and to expedite the matter Mr. Saroop is directed to inform the learned Advocate for the petitioner as to the time of such inventory an it is desired that at least two hours prior notice be given to the petitioner or his authorised representative at Port Blair prior to the commencement of such inventory.
10. On the next date the matter was mentioned before the learned Judge by the counsel and it was recorded that in terms of the order passed by the court on the previous day an inventory was made and no goods whatsoever was found to be existing which can be termed to be otherwise not in accordance with law or the provisions of the licence and as a matter of fact the Officers deputed by the Deputy Commissioner upon the completion of the inventory and after being satisfied that there was nothing wrong allowed the petitioner to run the business in the usual course in terms of the provisions of the licence. However, His Lordships made it clear that in the event the Deputy Commissioner is desirous of having some control over the sale of stocks, the Deputy Commissioner would be at liberty to do so. The Deputy Commissioner also would be at liberty to take such step or steps in accordance with law in the event there being any infringement of the terms of licence.
11. After the disposal of the said writ applications by U.C. Banerjee, J., the petitioner was allowed to open the shop on March 27, 1996, after an inventory was made by the respondents concerned in the shops and godowns and no incriminating material was found and accordingly in terms of the order of U.C. Banerjee, J., the petitioner was allowed to run the business.
12. On March 28, 1996, U.C. Banerjee, J., disposed of the second writ application, being C.O. No. 27(W) of 1996, in which challenge was made to the attempted cancellation of the auction for 1996-97. In the said judgment. His Lordship issued directions for giving inspections of seized records and documents and directed that action could only be taken after giving the petitioner an opportunity of being heard and thereafter to take a final decision in the matter.
13. On March 31, 1996, at about 3 P.M., the Deputy Commissioner asked the employee of the petitioner to come to his office and at about 3 p.m., served a letter enclosing copies of 21 documents stating that those documents would be sufficient for the purpose of giving reply in respect of the matter.
14. One thing is clear that there was no showcause notice alleging facts on the basts of which the auction was proposed to be cancelled.
15. It is the case of the petitioner that there was no power under the law for search and seizure of the documents and in any event, indiscriminate seizure of documents, on the face of it is arbitrary and malafide, and the petitioner's right of defence could not be withheld simply by saying that the documents, according to their choice, would be sufficient for the purpose of defending the case.
16. All these things happened at a point of time when the writ petitioner was admittedly not in the Island, but had to stay at Nagpur, under the order of the court under which he could not go out of Nagpur. In this connection, the order that was passed by U.C. Banerjee, J. on March 28, 1996, was to the extent that the time to furnish reply to the show-cause notice was extended till March 30, 1996. The said order is as follows :
"In the premises it is ordered that time to furnish the reply to the show cause notice be extended till 30th March, 1996. In the event however there being any requirement of any further document or particulars to be obtained by the petitioner from the office of the Deputy Commissioner, the same be intimated by way of a letter by 11 AM. tomorrow and the Deputy Commissioner is directed to furnish the same if otherwise available with him by 3 p.m. tomorrow and the matter be dealt with by the Deputy Commissioner with utmost expedition upon affording an opportunity of hearing. Be it noted that this court in the other application has already given leave to the Deputy Commissioner to take such steps as he deems expedient in regard to the continuation of business activities and if necessary an Officer may be deputed at the shop itself for the purpose of proper supervision in effecting sale of IMFL to the public at large. Similar order is also passed herein.
After this order has been dictated Mr. S.C. Bose learned Advocate submitted that today being a holiday and Saturday and Sunday intervening in the meantime, it would be impossible to have a reply to the show cause notice within the time schedule as framed by this court. Mr. Saroop however submitted that his client would be able to give copy within the time as has been mentioned in the order itself.
Considering the submissions, it is ordered that in the event the petitioner feels any difficulty, petitioner would be at liberty to apply before the Deputy Commissioner for suitable extension of time who is to do complete justice between the parties. The Deputy Commissioner is directed to deal with the matter in accordance with law.
The writ petition is disposed of accordingly."
17. After this, by the letter dated March 28, 1996, the Sale Register for the period from 1.1.95 to till date, including Monthly Stock Statement from 1.1.95 to till date, and Stock Register from 1.1.95 to till date, were asked for. Thereafter the respondents concerned visited the shop and verified the records and documents and in course of that detected certain discrepancies with regard to some stock of Indian made foreign liquor and it was specifically alleged that some stock bearing the date 17.01.1996 and/or January, 1996, was found in the petitioner's shop though the last stock arrived from the main Island at a prior date; or in other words, it was sought to be suggested that some stock bearing the batch dated January, 1996, arrived at a date prior to that date which shows that the goods had arrived in the island in a clandestine manner. On that ground that slock was taken out and kept in the custody of somebody else. That was the discrepancy that was found out.
18. In this connection, a notice was issued by the Deputy Commissioner on March 29, 1996, which was as follows :
"WHEREAS the undersigned was directed by the Hon'ble High Court at Calcutta sitting in Circuit at Port Blair to take stock position of IMFL/Beer of all of your shops and godowns and to prepare inventory;
AND WHEREAS as per the direction of the Hon'ble High Court at Calcutta, the stocks of all of your shops and godowns were verified by the officer's of the establishment of Deputy Commissioner, Andaman's and Deputy Commissioner; Nicobars on 26-3-1996;
AND WHEREAS after stock verification, detailed inventories were prepared by the officers and a copy of the inventories were handed over to the respective shop/godown incharge under proper acknowledgement and the shops were also released to your representatives;
AND WHEREAS when the inventories were compared with the office records, the following discrepancies were detected;
1. The arrival dates of last consignments against the import permits issued against various distilleries are shown shop/godownwise in the list placed at Annexure 'A'. On physical verification and as per the inventory list made consequently, it has been observed that the manufacturing date as per the batch No. of various kinds of IMFL/ Beer are later than the actual date of arrival of last consignment as per our records;
2. The distilleries against which import permit for IMFL/Beer have not been issued by this office in the year, 1995-96 but consignment of such distilleries were found in your shops/godowns during verification the detailed list of which is placed at Annexure 'B';
3. Permits were issued for different shops against specific distilleries and should not be any other consignments in any shop other than the consignments from the distilleries as specified in the Import Permit. But during physical verification in some shops the material which were not authorised to be imported for that particular shop were also found, the details of which are shown in the list placed at Annexure 'C;
AND WHEREAS the above discrepancies are unlawful and warrant for lawful action against you;
NOW, THEREFORE, you are directed not to sell the IMFL/Beer as detailed in the Annexures and keep them separately under your safe custody till further orders. You are also required to produce all documents related to the import of the above listed IMFL/Beer on 1.4.1996 positively."
19. With regard to the permit register, collection details, cash memo bills, etc., the petitioner was asked by the notice dated March 30, 1996, to take inspection in the office of the Assistant Commissioner from 12 to 5 p.m. on that date. The petitioner, on June 30, 1996, submitted a detailed reply clarifying all the points and further stated that:
"Till now you have not furnished the required documents and particulars no effectively reply can be furnished to your purported letter dt. 21.3.96 (Annexure 'X' to the writ application). In this connection, it may be mentioned that along with your letter 19.3.96 (Annexure 'V' to the writ application), you have furnished certain purported xerox copies of the some documents numbering 13 (Thirteen) without certifying the same and many of those xeroxed copies are not legible.
8. You should appreciate that all the documents pertaining to daily sales statement, (which also depicts daily stock position in the shops) Permit Register apart from other books of accounts and records have already been illegally seized by you on 15.3.96 at 5 p.m. from the office of the Licencee at Haddo and still keeping the same with you, which are necessary for compliance of your directive to produce the sale and stock statements as mentioned in your purported notice dated 16.3.96 (Annexure 'S' to the writ application). However, in compliance some provisional of your notice dt. 16.3.1996 stock and sale statements in the prescribed format of your office are hereby submitted, which may need some amendment on receipt of all the documents illegally seized by you on arrival of the Licencee.
9. Awaiting your action in the matter of furnishing the documents and particulars called for by the learned Advocate of Licencee on 29.3.96, without prejudice to the right of the Licencee to give an effective reply to your notice dt. 21.3.96, it is hereby submitted as under :--
(a) We however, empathically deny the allegation made in letter under reference dt. 21.3.96. We also deny that the allegation that our Licence will be liable to be cancelled for persists and intentional avoidance as alleged or at all we deny that we had made persistent default or intentional avoidance as wrongly alleged in your aforesaid letter you have not furnished any particulars of such alleged default or intentional avoidance so as to enable us to give effective reply without such particulars the allegation of persistent default or Intentional avoid are wholly vague and make us incapable of understanding the substance of the allegation, please furnish forthwith the documents upon which you are to reply or the statement of any witness which you want to cite or reply. After such statement of impritations and names of witness are furnished we would submit further documents and witness, if necessary to prove that the allegations made in the letter dated 21.3.96 are not correct. In the premises, you are requested to issue licence for the year 1996-97 after receipt of this letter to run the business from 1.4.96."
20. By the letter dated March 31, 1996, on behalf of the petitioner, a representation was made to the Deputy Commissioner wherein it w is specifically pointed out that there was no such provisions in the Andaman & Nicober Excise Rules, 1934, as amended to maintain stock register and other registers asked by him only after March 15, 1996, and that in the previous years the said authority had accepted the sale statement registers maintained according to one method of account and the same had been duly audited and certified by the Chartered Accountant and that the said books of accounts were lying with the auditors in the island which would take some time to give the particulars of the previous years at that stage.
21. By the letter dated March 31, 1996, the Assistant Commissioner on behalf of the Deputy Commissioner, charged the petitioner for adopting dilatory tactics in order to defeat the ends of Justice by stating that the list of documents which was released would be sufficient in enabling the petitioner to prepare the desired statements and that the remaining list of documents which were lying seized were not a all relevant according to them for preparing the reply to the show cause notice, dated March 21, 1996. It was further observed in the said letter that "It is evident from your letter dated 29.3.1996, that you have abused the solemn order of the Hon'ble Calcutta High Court and deliberately taken advantage of the leeway given to you by the Hon'ble Court in demanding all the documents whether relevant or not with the specific objective of adopting dilatory tactics in order to defeat the ends of justice.
22. Without giving any hearing and observing the principles of natural Justice, on 1st April, 1996, an order was passed by the Assistant Commissioner (Head Quarter), holding inter alia that the question of issuing licence for the year 1996-97, did not arise or in other words, cancelled the bid which the highest bid and which was alleged to have been accepted by the following order :
"With reference to your above mentioned letter received at 5.40 PM on 30-3-1995 together with monthly sales and slock statements from February 1995 to February 1996, I am to bring the following points to your notice :--
1. In due compliance of the solemn order of Hon'ble High Court, Calcutta, Circuit Bench at Port Blair, dated 28-3-1996, we have already returned all relevant documents as asked for at 12 noon on 30-3-1996 and 3 PM on 31-3-1996 respectively. Shri Sreekumar, representative of Shri G. Mohandas has recorded on the body of the receipt that the documents given to him are sufficient for the present and the other documents will be asked for when needed. In this context, it would be highly appropriate to point out that you have committed an abuse of the solemn order of the court by wilfully exploiting the leeway given to you by the Hon'ble Court in asking for all documents whether relevant or not with the sole objective of adopting dilatory tactics to defeat the ends of justice. We have already informed you that the delay in returning the relevant documents was on account of a major power failure a known fact which can be readily ascertained from the authorities of the Electricity Department.
2. As you are well aware, the operative portion of the order passed by the Hon'ble Court on 28-3-1996, authorises the Deputy Commissioner to take any steps that he may deem expedient to seize any Incriminating Article(s) and take action under the law. The Deputy Commissioner, in respectful obedience of the directives of the Hon'ble Court, seized certain items which you erroneously claim to be validly imported. The discrepancies noticed in respect of all these items have already been served on you at 7.15 AM on 30-3-1996. However, it is indeed surprising to note that you have not taken cognizance of the illegalities on your part as communicated to you through the above mentioned letter and have instead sought to personalise issue by making a frivolous charge of bias against the Deputy Commissioner. This has been done by you with the malafide intention of deflecting attention from the serious illegalities committed by you and which have come to our notice. It is incomprehensible as to how you can conveniently turn a blind eye to the discrepancies pointed out in our letter.
3. You have also put forth the unacceptable plea that since the licensee is not personally present at Port Blair, the Deputy Commissioner's official communications to him are in 'hot haste'. Your statement is not only a reflection of the intemperate use of the English language but also smacks of an inappropriate understanding of law. The Deputy Commissioner has been mandated by the Hon'ble Court to follow the due process of law and it should be amply clear to all and sundry that the law of the land should not and does not wait for any individual to be present at the station. The non-presence of the licensee from station cannot bring lawful administrative processes to a grinding halt. All communications to Shri G. Mohandas in the past have been received at his Port Blair Office, regardless of his presence or otherwise from station. The Power of Attorney executed by Shri Mohandas in favour of Shri Gangadharan on 15th August, 1995 details the fact that the former has settled down at Trivandrum on account of his business interests. As such, the argument advanced by you rings hollow and is self defeating. In this context, it would be worthwhile to mention that Shri Gangadharn, Power of Attorney Holder of Shri Mohandas has conveniently made himself unavailable from Port Blair. Thus it is amply clear that every trick in the book is being unethically tried by you to circumvent and frustrate the process of law.
4. You have mentioned at para 7 in your letter that xerox copies of 13 documents given to you on 19-3-1996 are unattested and illegible. It is amazing that it took you ten days and a horde of legal luminaries to decipher that above documents were not certified and were illegible. Shri Sreekumar, the representative of Shri Mohandas did not raise any objection when the documents were being handed over to him on 19-3-1996. It is clear that this point is an after-thought that rose as a result of untiring effort to probe into narrow, frivolous technicalities in order to defeat the ends of justice.
5. Though you have submitted the stock and sales statement for the period from February 1995 to February 1996, the advice notes against all consignments as asked for in our letter dated 19-3-1996 have not been produced before this office. It is illegal on your part not to produce a Government document despite persistent demand.
6. The belated submission of your pending stock and sales statement for a period of one year from February 1995 to February 1996 clearly indicate the breach of responsibility, negligence of the highest order and blatant violation of licence conditions on your part.
7. As regards the issue of Licence for the year 1990-97 the reply to our letter dated 29-3-1996 pointing out the illegalities noticed during stock verification is still awaited. As is amply evident from the contents of the above mentioned letter, a large quantity of unauthorised material have been found in your stock thereby constituting a serious violation of licence conditions. Merely seeking to obfuscate the real issue by writing an offensive letter with reprehensible personal connotations cannot cover up the illegalities committed by you. You are advised again to apply your mind and realise the gravity of the illegalities and let good sense prevail.
8. It would also be in place to mention that a writ petition No. 12(W) of 1996 is already pending before the Hon'ble High Court, Calcutta Circuit Bench, Port Blair. As per the interim order passed by the Hon'ble Court on 19-2-1996 "the result of the auction shall abide by the result of the writ petition". Further, the Hon'ble High Court on 29-2-1996 has given the petitioner three weeks for filing the supplementary affidavit and directed that the matter shall appear before the next, i.e., the present Circuit Bench. This office is awaiting the directives of the Hon'ble High Court on the writ petition No. 12(W) of 1996.
9. As such, the question of issuing licence for the year 1996-97 does not arise."
23. At the time of the hearing of the matter, the respondents were directed to produce the records of the case, particularly the relevant file pertaining to the auction and in order to find out what was the occasion on the part of the writ petitioner to attend the office of the Deputy Commissioner on March 15, 1996, at 10 a.m., and whether the said statement was correct or not and/or whether there was any circumstances under which there was any scope on the part of the petitioner to appear before the Deputy Commissioner, Andaman. The file was produced and from the file it was found that auction bid of the petitioner which was the highest one, was considered at different levels. After the bid was accepted and the amount of bid of the petitioner at Rs. 30920000/- was accepted and a deposit of one crore 54 lacs and sixty thousand rupees as also the security deposit of two lacs rupees was made on 22.02.1996, the department was considering the effect of the pendency of the C.O. No. 12(W) of 1966 [Krishna Rao v. Deputy Commissioner and Ors.). In that writ application, there was no interim order excepting that the court passed an order that the auction should abide by the result of the writ application. It appears that because of the pendency of the writ application the authorities were confused and an opinion was sought for whether it would be permissible to accept the bid and the matter was referred to the Law Department and the Assistant Secretary, Law, in his note dated March 18, 1996. observed that the High Court by the order dated 29-2-1996 had not passed any tnteim order imposing any restriction on the respondent authorities in issuing the licence or entering into an agreement with the successful bidder but grant of the licence would abide by the result of the writ application.
24. Opinion was also given by the Judicial Secretary and on the basis of that Mr. A. Majumdar, Secretary (Excise), ultimately observed in his note dated 11.3.96, as follows :--
"We may, therefore, accept the advice of AS (law) at para 45/n and authorise DC, Andamans, to enter into an agreement with the successful bidder of the liquor auction and issue a licence to the said successful bidder for vending IMFL in this U.T. for the year 1996-97 after incorporating a condition that the agreement thus entered into and the licence thus issued will be subject to the outcome of the writ petition filed before the Hon'ble High Court.
Another course of action that can be adopted is to request the Hon'ble High Court to clearly clarify as to whether this Administration can enter into an agreement with the successful bidder of the liquor auction and issue a licence to the said bidder during the pendency of the writ petition before the Hon'ble High Court."
25. The file was placed before the Chief Secretary, Narendra Prasad who endorsed the view of Secretary (Excise) on 11.3.96. Thereafter, the file was placed before the lieutenant Governor. It appears that the L.G. had considered all the pros and cons of the matter as also the pending writ and on 12.3.96 passed the following order :
"If we do not confirm this auction altogether now the contractor will not get time to bring the materials from the mainland before 1st of April, which can also lead to another litigation. Further the Government Pleader who appeared before the court in this case also said that "the court has not stopped the authority from taking follow-up action in the meantime. So 'X' above is approved."
Sd/Illesible Lt. Governor 12.3.96."
26. The word "X" as appearing in the order of the L.G. refers to the note of Secretary (Excise) dated 11.3.96, for formal acceptance of the said highest bid of G. Mohandas and to enter into an agreement as required for granting to vend India-made (oreign liquor in the said island subject to the decision of the said writ application which was then pending.
27. After the Lt. Governor passed the order, the file was placed before the Chief Secretary, who signed the file and thereafter at page 16 of the file a note was given to the following extent :
"Since the file is belonging to the District Office as such file may therefore be marked to the DC Andamans for taking further necessary action as per order of the Hon. Lt. Governor on pre page. However in the meantime extract of the note from paras 49/N onwards has been detailed for our record."
28. After the Lieutenant Governor had passed the aforesaid order, the file was signed by all authorities between 14th and 16th of March, and in the consequence of events after the Lieutenant Governor had directed to accept the bid and entered into an agreement. So it is clear that the Lieutenant Governor, who was the highest and the sole authority, accepted the bid of the petitioner and order was passed for entering into an agreement in connection with the grant of liquor licence, but the same was not done. It is most surprising that before U.C. Banerjee, J., when the matter had come up for consideration of the fact that the bid was accepted by an order passed by the lieutenant Governor on March 13, 1996, was deliberately suppressed. His Lordship was deliberately misled by the bureaucrats. It also appears that the then Lieutenant Governor, v. Purushottam, resigned after March 12, 1996, and after his departure from the island, a game was started by the bureaucrats, who are responsible for concealing and/or suppressing the fact from the court and deliberately, as a matter of fact, had misled the court. This is not a case of lapses, but a deliberate attempt to change the course of justice. It is a case of a machinatious move with ulterior and unholy motive. It was the duty on the part of the respondents, Deputy Commissioner or the Assistant Commissioner or the Chief Secretary to disclose the truth before the court. But they had conspired in suppressing the truth and thereby deliberately misled the court.
29. The most surprising part of it was that the said Narendra Prasad, Chief Secretary, suppressing the fact that earlier L.G. by his order dated 12.3.96 accepted the bid and directed the Department to enter into an agreement of which Narendra Prasad was a party and placed a proposal before Sm. Rajendra Bajpayee, the L.G., who was in dual charge of Pondicherry and Andaman and in the note a proposal was given for cancellation of the auction held on 22.2.96 as also to blacklist the petitioner and Sm. Bajpayee approved the proposal given by the Chief Secretary. It is clear that the Chief Secretary is guilty of suppression of the order passed earlier by the earlier L.G. and by misrepresentation and playing trick obtained in approval from the new L.G. as designed by them. It is a clear case whether Sm. Bajpayee the new L.G. who was in dual charge had acted on the machination motive of the officers who are all subordinates to the L.G.
30. The decision taken by L.G. on 12.3.96 was also suppressed in a most unfair manner in the affidavit-in-opposition as well as from the court it is only on the basis of the prayer made by Mr. Shaktinath Mukherjee for production of the file and when this court directed the respondents to produce the file, on production of the file these things were unearthed before this court. This case shows that it is dangerous for the L.G. to have dual charge of two Union Territories at a time as it is not possible for the L.G. to look into the file and apply mind to the materials-on-record and as a matter of course or practice LG. has to rely upon the notes given by the Chief Secretary and the Chief Secretary can get anything signed from the L.G. In this case before notes placed before Sm. Bajpayee the new L.G. was kept in dark that the earlier L.G. has considered the matter looking into all pros and cons and passed the order which is a speaking order In his own hand-writing. The earlier L.G. had not simply agreed and/or disagreed but he has considered the note given by the Chief Secretary on the basis of the facts as revealed from the file and on the basis whereof he passed the order. This order was not made known to the new L.G. and it is a case where a clear fraud was practised upon the new L.G. It is unthinkable that the Chief Secretary could be a party to a machinatious and ultravires motive contrary to the final decision taken by the earlier L.G. It is a clear case where the bureaucrats started playing a sinister game after departure of the earlier. L.G. may come and L.G. may go but the order passed by the L.G. remains which is binding on all his subordinates and it is their duty to carry it out. Unfortunately, in this case, the order of the L.G. dated 12.3.96 was kept under the shoes of the bureaucrats showing disrespect to the order passed by the earlier L.G. It is a clear case of gross misconduct on the part of the Chief Secretary and Law Officers subordinate to him in dealing with the matter, in the matter indicated above. .This is a subversive for a good administration at least it is expected from I.A.S. Officers that they should act fairly reasonably and maintain discipline. It is a case of gross indiscipline conduct on the part of the Chief Secretary and other Secretaries including the Deputy Commissioner in concealing this fact from this court. The said officers were also attempted to hoodwink this court with an ulterior and unholy motive. It is outside the scope of the writ jurisdiction to take action against these Officers but it is for the L.G. or the appropriate authority to Initiate proceedings against these Officers who had played a sinister game and who had shown highest disrespect and disregard to the order of the L.G. and with the change of L.G. the colour of these Officers also changed and they started moving in the matter to nullify the order passed by the L.G. which they are not competent to do so. The order passed by L.G. could not be allowed to be thrown into the waste paper busket or keep it under the shoes of the bureaucrats which has exactly been done in this case.
31. This is not the end of the game. From the file it appears that by practising fraud and misrepresentation, an order of approval was procured from Srimati Vajpayee on March 25, 1996, for cancellation of the bid and for referring the matter to the C.B.J., as recommended by the Secretary, Excise, and Chief Secretary in respect of the matter which is already under investigation in Nagpur, and ultimately long before the approval was taken from the new Lieutenant Governor, Srimati Vajpayee, for cancellation of the auction held on 22.02.1996, as well as blacklisting for ever. It will be clearly evident that the order of cancellation of the bid an blacklisting was made without giving the petitioner any hearing or opportunity of being heard. Blacklisting was made without any show-cause and/or hearing. Cancellation of the bid was also made without giving the petitioner any opportunity of being heard and the cancellation was made in an atrocious manner.
32. From these facts, it is clearly evident that these respondents have no respect to the rule of law and it is very unsafe to rely upon these officers who were guilty of suppression of material facts and who had not only played with the court but had also played with the new Lieutenant Governor by hoodwinking her. If the order of the earlier Lieutenant Governor was placed before the new Lieutenant Governor though she was in charge of two Union Territories and though it was not physically possible on her part to look into the facts in details personally, still then, she could have considered the matter and could have taken any decision either sticking to the decision already taken by the earlier Governor or could have taken any other alternative course of action as may be available to her.
33. Furthermore, this a statutory power which has to be exercised by the Lieutenant Governor in accordance with the provisions of the Andaman & Nicobar Islands Regulations, 1876 (Regulation 13 of 1876). Such regulation did not provide any power for review or reconsideration of the order. It is well-settled principle that power of review is not an inherent power. It must be expressly conferred by the statute. The power of the Lieutenant Governor to accept or reject the bid is not an administrative order. An administrative order could be reviewed subject to two limitations that such an administrative order, while under review, should not offend any statutory provision, and secondly, the administrative order could only be reviewed after giving opportunity to the persons who are likely to be affected. But as it was a statutory power, in the absence of any provisions in the statute the order of the Lieutenant Governor dated 12.3.96 could not be ignored or reviewed.
34. In the instant case, the Lieutenant Governor had accepted the bid and an order was procured by the administration, namely the Excise Secretary, Chief Secretary, Deputy Commissioner as well as Assistant Commissioner by practising fraud and misrepresentation of facts and/ or suppression of facts from the new Lieutenant Governor. This state of affair was unearthed because of production of file by the respondents and this court highly appreciates the role played by the learned Advocate-on-Record appearing on behalf of the respondents who in his usual fairness produced the records without any objective wholly for the purpose of cooperating with the court and placing true and correct facts as evident from the file in question.
35. In this background, Mr. Shaktinath Mukherjee, learned counsel appearing on behalf of the writ petitioner, submitted that the petitioner was the highest bidder for the years 1993-94, 1994-95 and 1995-96, and there was complete unblemish records of the petitioner. It was further submitted that the allegations on the basis of which criminal case was started at Nagpur which has not yet been established in the trial, but the same was in investigation stage. In that case, no chargesheet had been given against the petitioner in respect of the allegations made against the petitioner. But the order dated April 15, 1996, was passed identically on the basis of the allegations in respect of which investigation is pending accepting that the said allegations were true and/or proved. By that order, the auction already held on February 22, 1996, was sought to be cancelled.
36. It was further submitted that on the basis of those allegations which are the subject matter of investigation in Nagpur, the petitioner was blacklisted permanently from doing any business with the Government.
37. Mr. Mukherjee further submitted that from the first information report, on the basis of which the Nagpur case was started, there was no allegation that the petitioner had anything to do in the matter of forging the permit and/or to deal with the Indian made Foreign liquor manufactured in the main land in a clandestine manner. From the first information report it also transpired that the said Indian made Foreign liquor (herein referred to as IMFL) was not transported to the petitioner from Nagpur, but it was sought to be sold in the State of Maharashtra, and in that unlawful deal, some of the officers of the Excise Department in Nagpur and some of the officers of the manufacturers were involved. In this connection, it was pointed out by Mr. Mukherjee that on February 23, 1996, seizure of IMFL and arrest were made by the State Excise Flying Squad, Nagpur, in Crime case No. 53/96, and the persons who were arrested were Acchelal Haji, Supervisor, Kedia Castle Delon Industries Ltd., Bhilal Nagar, B.B. Puwaya, Deputy General Manager, Kedia Castle Delon Industries, Bangalore. In that said first information report regarding the Nagpur case, it was alleged that application was made of Deputy Superintendent, Nagpur, on behalf of Kedia Castle Industries that on their behalf 3250 boxes were sent for Mohandas against five Export Licences, as shown, and with It the import licence dated 19-9-95, and since the period of these licences expired on 31.2.96, Acchelal requested Satpal Road Lines to keep the stock of liquor with them. The Superintendent, State Excise, Nagpur, inspected the stock and permitted to store that under these circumstances. The documents were returned for gelling the import licences extended there. It was also alleged in the said F.I.R. that confidential information was received by the Superintendent, Nagpur, that consignments were not to go to Port Blair but to be illegally distributed in Salanpur area of Maharashtra itself. In this connection, the Deputy Commissioner, Nagpur Division, sent a telegram to D.C., Port Blair, on 8.2.96. By the letter dated February 20, 1996, the Deputy Commissioner, Nagpur Division sent two copies of five import licences revalidated upto 29.2.96, to D.C., Excise, Port Blair. Acchelal, on 22.2.96, filed a letter dated 21.2.96, from Kedia Industries, stating that the liquor had been sent from workshop and gave information at different times sent through District Excise Office, but irrespective of requests made he did not give any remark. Statement of Acchelal and Pawaya were recorded regarding the revalidation of the import licences. Pawaya stated that the import licences were received through courier service for revalidation purpose.
38. It is also evident from the said F.I.R., that on February 22, 1996, telephonic message from the General Manager, workshop, received requesting immediate action to be taken for sending the liquor. The statements of Acchelal and Pawaya were recorded on February 29, 1996, wherein it was alleged that the ownership of the liquor belonged to Mahandas and at his mill and at his cost it was sent by too long distance and impracticable route.
39. Further, it appears that the travel of the liquor was to Maharashtra from Karnataka. From the envelopes of the documents filed by Acchelal, dated 27.2.96, "Hotel Gita, Acchelal, etc., matter has been written, which means the liquor was meant to be sold illegally, by evading excise, in Maharashtra itself, which has become clear on the back ground of the confidential information. There is mention of other huge amounts in the Pocket Diary of Acchelal. But he did not tender any clarification about it."
40. The Nagpur case was started for violation of Maharashtra Rules and criminal case was started for violation of the provisions of Bombay Prohibitions Act, 1949. It appears that the excise duty of 22 lacs payable in Maharashtra had been evaded. In that case, the petitioner Mohandas was separately named along with other accused without any specific allegation or charge against Mohandas. In the said F.I.R. it was also alleged that :
"A temporary permission for storing the liquor at Nagpur was demanded so that suitable enquiry may not take place about the illegally sent liquor and in case permission would have been given afterwards in the usual manner, without holding too much enquiry, then the accused could have utilized the permission given by the Superintendent Nagpur, so that the mistransaction of illegal import and transportation may not come to light. And with this intention only, hypocritically, cunningly with this Intention of cheating, by putting forth the false reason of expiry of import licence, a temporary permission of storing/keeping the liquor was demanded by submitting an application dated 31.1.96 as is seen from above. In the offences committed on the basis of false documents, own black money is deposited by himself, in others false name and drafts are drawn in favour of his own name ; that amount is not being paid by cheque and black money which is obtained from the mistransaction, it is converted into white money."
41. The facts stated in the first information report was analysed by Mr. Mukherjee to show that the petitioner had no complicity in the matter and there is no allegation against the petitioner that the petitioner was responsible for any clandestine deal in IMFL and/or responsible for forging the permits and/or evasion of the excise duty in Maharashtra. There was no allegation in the said F.I.R. that on the basis of the forged permits for which the petitioner has not yet been made responsible, the said IMFL was sought to be brought at Port Blair in contravention of the provisions of law. Accordingly it was submitted by Mr. Mukherjee that when the matter was under investigation in a criminal case, so long as the allegations are found to be true, on evidence or otherwise, no penal action could be taken against the petitioner by the authorities concerned.
42. Mr. Mukherjee next submitted that on comparison of the show cause notice and the final order that was passed, it would be clearly evident that the penal order has been passed in respect of allegations which did not find place in the show cause notice, and that the petitioner had been found guilty of certain allegations in respect of which the petitioner was not given any opportunity and/or hearing. The principles of natural justice were violated and the respondents were responsible for dealing with the matter in a most unfairly, unreasonably and with a biased mind.
43. In this connection, it was submitted by Mr. Mukherjee that in terms of the order passed by U.C. Banerjee, J., the respondents were under an obligation given opportunity of hearing. But the final action had been taken in gross violation of the order passed by U.C. Banerjee, J., by not giving the reasonable opportunity of being heard.
44. In this connection, Mr. Mukherjee relied on the decision of the Supreme Court in the case of Mohinder Singh Gill v. Chief Election Commissioner , as well as the decision of the Supreme Court in the case of Commissioner of Police Bombay, v. Gordhandas Bhanji, , wherein the Supreme Court held that when the statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order that in the beginning may by the time it comes to the court on account of the challenge get validated by additional grounds. This principle was relied on in the context of the fact that in the affidavit-in-opposition the respondents had taken a stand that since the respondents had taken as policy decision not to allow any private individuals to deal with the liquor, but decided that the same should be handled by ANIIDC.O, a State Corporation, set up to promote integrated industrial development in that territory. The change of the policy and on the basis of the policy decision, the highest bid of the petitioner was cancelled was not disclosed in the order and that was not the reason and the ground for taking action. But in the affidavit-in-opposition, the new stand contrary to the stand disclosed in the order had been taken. In the affidavit-in-opposition on behalf of the respondents, affirmed by one Sri Vikram Deb Dutt, Assistant Commissioner (Head Quarter), stated on oath that:
" The present policy with regard to vending of IMFL/Beer in these islands has received a set back in view of recent developments and as such, it would not be desirable to continue with the privatisation of the liquor trade in view of the structural constraints and the statutory limitations. The process of revamping of excise rules is an elaborate process and the distrilled wisdom of various state legislations on excise matters will have to be taken into account while framing uptodate excise regulations in this Union Territory. As a first step in that direction, acts and rules from various states have already been called for by this office. In the meantime, the best course of action would be to have a regulated supply of liquor which would take care of the tourist needs while at the same till guard against unrestrained availability of liquor. In this context, it would not be beside the point to mention that previously the liquor trade was being handled by ANIIDCO which has the necessary infrastructure and the flexibility to carry out the trade in a regulated manner. The Lieutenant Governor has since approved of handing over of the same to ANIIDCO and directed to refund of the bid money to the writ petitioner. Persuant thereto a refund cheque drawn in favour of the writ petitioner was duly tendered on 2nd May 1996 at his office at Port Blair, which, however, has been refused."
45. From the records that were produced at the time of the hearing, Mr. Mukherjee pointed out that the above fact stated on oath at paragraph 44 of the said affidavit-in-opposition was not correct at all. The affidavit was affirmed by the Assistant Commissioner and that the said Assistant Commissioner put up a note like that after the then Lieutenant Governor had accepted the bid by the order dated March 12, 1996, and that the proposal and/or recommendation of the said Assistant Commissioner, Mr. Dutt, was not ultimately accepted by the Secretary, Excise, in his note dated 24.4.96, in which "for the time being in order to comply with the terms and conditions of the earlier agreement and pending court proceedings we may hand over vending of IMFL to ANIIDCO for a period of 3 months and during this time take decision either to keep vending of IMFL with ANIIDCO or re-auction it. In case we feel that vending of IMFL should be handled by ANIIDCO the modalities, regarding, the amount to be collected as licence fee from this Corporation can be worked out so that this Administration does not sustain any considerable revenue loss".
46. Thereafter, the matter was placed before the Chief Secretary and the Chief Secretary in his note dated 24.4.96, had also adopted the same view and recorded that "in this context the Deptt. suggested the ANIIDCO may be given the right to vend liquor for a period of 3 months as they had handled this trade earlier too. Though the Secretary (Excise) has suggested that we may settle the terms and conditions with the ANIIDCO later on, yet I am of the opinion that the licence fee from ANIIDCO should correspond at least to the bid amount already received by the Deputy Commissioner so that there is no criticism on account of loss of revenue. The proposal has been informally discussed with MD, ANIIDCO and he has confirmed that in case they are asked to take over the trade by the Administration they won't be found wanting." The said proposal of the Chief Secretary was also accepted in to by Smt. Vajpayee, the new Lieutenant Governor. So, it is clear that no final policy decision had been taken, but an adhoc arrangement for three months was sought to be taken under which ANIIDCO was for the vending of IMFL. So, it is also clearly established from the records that the statement made in paragraph 44, made by Vikram Deb Dutt, was made at the trade sacrifice of truth and contrary to the records. He was not the sole and the final authority. That was his proposal, but not accepted. This was an another clear attempt on the part of the said deponent who misled the court in a manner which is highly derogatory for any officer of the administration and in a manner which clearly amounts to a deliberate attempt with an unholy and ulterior view to hoodwink the court. He is guilty of filing a false affidavit and facts are false and false to his knowledge.
47. Mr. Mukherjee next submitted that when the criminal case was pending at Nagpur, parallel proceedings could not be initiated and finalized by the administration and in this connection reference was made to the decision of the Supreme Court in the cases of State of Bombay v. Kathakali. : and Kusheswar v. Bharat Coking Coal, .
48. With regard to testimonial compilation, reference was made to the decision of the Supreme Court in the case of M.P. Sharma v. Satish Chandra, .
49. Mr. Mukherjee further submitted that it is the duty on the part of the administration to act fairly as fairness is a part of the principles of natural justice and in this connection reference was made to the decision of the Supreme Court in the cases of Rajendra Kumar v. Delhi Administration, 1984 SC 1805; Anil Kumar v. Presiding Officer, : and Shankar Dass v. Union of India, .
50. Next it was submitted that the authorities concerned were guilty of acting on extraneous grounds and it was submitted that even a decision is taken on extraneous grounds, the decision is illegal, bad and in this connection reference was made to the decisions of the Supreme Court in the cases of Krishan Chand v. Commissioner of Police, ; and Delhi Cloth and General Mills v. Union of India, .
51. Mr. Mukherjee further submitted that during the pendency of the writ application and an inteiim order of injunction by this court, the cheque has been returned which an employee of the petitioner was forced to accept but the acceptance of the said cheque during the pendency of the writ application and in the facts and circumstances of the case by the employee of the petitioner and not by the petitioner, could not be taken to be the case of waiver of his right under the said auction.
52. Mr. Mukherjee further submitted that if the petitioner had committed any offence punishable under the law, the law will take its own course and the petitioner may be punished, but before trial it was wholly immatured and malafide on the part of the. respondents to hold the petitioner guilty of some allegations which have no actual or factual basis and which have not yet been proved in any court. Under such circumstances, Mr. Mukherjee submitted that the actions on the part of the respondents were wholly malfide, arbitrary and whimsical.
53. Mr. Mukherjee further submitted that before the earlier writ petition which was disposed of by U.C. Banerjee, J., nor any affidavit-in-opposition in disclosure was made with regard to the decision of the Lieutenant Governor, dated 12th March 1996 and under such circumstances the respondents are guilty of suppression of material facts before this court solely for the purpose of misguiding the court by practising fraud. With regard to the policy decision, Mr. Mukherjee submitted that there was no policy decision taken and that if the policy decision is taken the same could not be challenged except that on a fresh limited ground.
54. Further, it was submitted by Mr. Mukherjee that nobody has got any fundamental right to carry on trade in liquor. But it is well-settled principle that it is a legal right and that right conferred under the statute could not be taken away arbitrarily or capriciously and in a manner which on the face of it amounts to fraud.
55. Mr. Mukherjee further submitted that in the past a decision was taken by the administration that the liquor trade in that island should be done by the ANIIDCO, but ultimately it was found that by doing the liquor trade by ANIIDCO, the ANIIDCO incurred a revenue loss of Rs. 2.43 crores, for which the ANIIDCO had to go out of the picture and the administration had to resort to open bid so that there is no loss of any revenue.
56. In this connection, the report of the Deputy Director (RA-IDT), Central, Calcutta, was placed before this court in which it was clearly observed that the Government had to suffer a loss of revenue to the tune of Rs. 24333390/-, from 1990-91 to 1992-93, and that ultimately for which the administration had to resort to public auction in order to avoid loss of revenue.
57. Accordingly, it is not a case of taking a policy decision in public interest and adhoc arrangement for three months cannot be made by any stage of imagination be said to a change of policy and that such a change of policy matter required the cancellation of the bid of the petitioner. This according to Mr. Mukherjee, on the facts of the case, was wholly incorrect, baseless and wrong.
58. Mr. P.K. Roy, learned counsel appearing on behalf of the respondents, submitted that the question of acceptance of the highest bid of the petitioner and entering into an agreement with him for vending in IMFL in the island could not be done in view of the change of the policy decision taken by the authorities concerned with the approval of the Lieutenant Governor.
59. It is further submitted that where exigencies of administration required alteration in the policy decision, the same could not be challenged before the court of law. Accordingly, it was submitted that the petitioner is not entitled to any relief as prayed for in the writ application in view of the change of the policy decision in this regard.
60. Next, it was submitted that the decision of the lieutenant Governor taken on March 12, 1996, was of no effect as the said decision of the Lieutenant Governor was not communicated to the petitioner. In this connection, it was submitted that unless the order is communicated, the order does not take effect and further it was submitted that in the facts and circumstances of the case, the order of the Lieutenant Governor dated March 12, 1996, stood overruled by the subsequent decision taken by the new Lieutenant Governor.
61. Mr. Roy further submitted that the petitioner had committed several offences like interpolation and an evasion of excise duty in Maharastra for which he was proceeded with in the Criminal Court in Nagpur and that under such circumstances the liquor trade could not be entrusted in the hands of the petitioner in the island, and as the petitioner was guilty of violation of the law his licence was liable to be revoked and consequently no fresh lincence could be given to him.
62. Mr. Roy further submitted that nobody has any Fundamental Right in liquor trade, as held by several decisions of the Supreme Court of India. It is needless to point out that this is firmly established principle that nobody has got any Fundamental Right in liquor trade.
63. The Supreme Court in the case of Cooverjee v. Excise Commissioner of Ajmer, , held that there is no inherent right in the citizen to sell intoxicating liquor by retail; it is not a privilege of a citizen. As it is a business attended with danger to the community, it may be entirely prohibited or be permitted under such conditions as will limit to the utmost its evils. Right of every citizen to pursue any lawful trade or business is obviously subject to such reasonable condition as may be deemed by the governing authority of the country essential to the safety, health, peace, order and morals of the community. Provisions of Ajmer Excise Regulation purporting to regulate trade in liquor in all its spheres are valid.
64. Mr. Roy further submitted that action against the petitioner was taken in accordance with law and in public interest, in view of the fact that it would not be safe to keep the distribution of IMFI in the island in the hands of such a person who is guilty of violation of law. It is further submitted that in Nagpur the petitioner was proceeded with and further on discovery of some new and fresh materials regarding the commission of offences by forgery or otherwise, the case has been referred to the C.B.I. for investigation, and accordingly it would be contrary to public interest to grant any relief to the writ petitioner.
65. Mr. Roy further submitted that on the basis of the facts disclosed, the licence of the petitioner for the earlier year was liable to be cancelled and that an opportunity was given before taking action in the matter, as required by the earlier orders passed by this court. In this connection, Mr. Roy highlighted that the last permit in favour of the petitioner for importing INFL liquor was issued on December 22, 1995. But from the stock it appeared that the liquor manufactured in January, 1996, was found in the possession of the petitioner. That is a clear proof that the petitioner was guilty of importing of IMFL from the main island in a clandestine way on the basis of fake documents and after evading not only the excise duty but also octori duty, and the petitioner was guilty of several offences including octroi evasion. The authorities bonafide and in public interest found that the petitioner was unfit to carry on the business of procuring and selling of IMFL in the island any more and the cancellation of the auction was made and it was further submitted that the acceptance of the highest bid at the time of auction did not confirm any right upon the petitioner until and unless the same is finaly accepted and agreements are entered into. But, in the instant case, before acceptance of the highest bid by the Lieutenant Governor, the policy was changed and accordingly the highest bid was not accepted. Under the policy decision, it was decided that ANIIDCO would carry on the liquor trade in the island and accordingly the petition is liable to be dismissed.
66. After hearing the learned counsels at length and going through the papers and documents that were produced before this court including the pleadings of the parties and giving anxious consideration in the matter, I am of the view that when a public law court is called upon to review an administrative decision, there are several factors which should be taken into consideration. One of the most important factor was that such decision has to be reached by observing the principles of natural justice and the principles of fairness which is a part of the principles of natural justice. A good public administration requires not only decisiveness and finality, but it requires respect and regard to the orders passed by the highest authority. The order of the Lieutenant Governor dated March 12, 1996, could not be said to be nonest simply because it was ignored by his subordinates without any rhyme or reason, and that this is the most important and serious aspect of the matter. The lieutenant Governor is the appropriate and the final authority in the matter. A public auction was held in which the petitioner's bid was found to be highest. True, no right is conferred to the highest bidder. Until such time the highest bid is accepted by the appropriate authorities on consideration of the matter. In the instant case, the highest bid, after the bid was accepted, some doubt was created in the mind of the authorities before placing the matter to the Lieutenant Governor whether in view of the order passed in C.O. No. 12(W) of 1996, dated 19.2.1996, the bid could be accepted. On the basis of the opinion obtained from the Government Pleader and on perusal of the order passed by the court, it was found that there was no impediment on the part of the administration in accepting the bid as the order that was passed by N.K. Mitra, J., was to the extent that it was held should abide by the result of the said writ application and ultimately the said writ application was dismissed thereafter. All the authorities including the Chief Secretary of the island recommended acceptance of the bid and ultimately on March 12, 1996, the Lieutenant Governor of the Island approved the proposal of the Chief Secretary that the bid should be accepted and agreement should be entered into of course subject to decision of the High Court, and thereafter the Chief Secretary directed the file be sent to the District Office for taking further action as per order of the Lieutenant Governor. Surprisingly, the order of the Lieutenant Governor approving the action of the Chief Secretary that the agreement should be entered into in favour of the petitioner whose bid was the highest and who paid the money as mentioned was not carried out. On the contrary, the Assistant Commissioner of the Department started a game by ignoring the order of the Governor and proposed change of the policy decision of the administration.
67. From the file, it will be clearly evident that the Lieutenant Governor's order was not carried out on the contrary, it was suppressed and treated as a mere scrap of paper. The proposal of the Assistant Commissioner for change of policy decision was not ultimately upheld by the Chief Secretaiy, who was of the view that for three months on ad hoc basis the right to vend of IMFL in the island to be given in favour of ANIIDCO.
68. This was the state of affair revealed from the records. But in the affidavit in opposition affirmed by the Assistant Commissioner, he had also suppressed that his suggestion for change of the policy decision altogether was not accepted by the higher authorities and that in the affidavit-in-opposition, the whole thing was suppressed with the ulterior motive of misleading this court. The records reveal one set of facts while the affidavit contains a different story altogether, which has no actual or factual basis and when the Assistant Commissioner was Just several posts or grades down below the Chief Secretary or other Secretary; It is a clear case of not only acting in a malfide manner but amounts to abuse of the process of the court. Nobody is entitled to say something on affidavit which is false to his knowledge and contrary to the record. The affidavit that was filed before this court on behalf of the respondents by Vikram Deb Dutt, was made at the sacrifice of truth and that is clearly evident after the record was produced before this court. It is a clear case of affirming a false affidavit before this court. Such an affidavit cannot have any probative value. The said deponent should remember that these officers do not enjoy any special privilege under the law simply because the island is situated far away from the main island, and the law of the main island is not applicable to such islands.
69. The last submission of Mr. Roy was that the petitioner is not entitled to any relief with regard to the said bid as the part of the bid money which was deposited by the petitioner at the time of the bid has since been returned to the petitioner, which had been accepted by the petitioner.
70. Mr. Saktinath Mukherjee, learned counsel appearing on behalf of the petitioner submitted that the cheque was sent and the employee of the petitioner was forced to accept the same, but the petitioner had not encashed the cheque. It is further submitted that the sending of the cheque during the pendency of the writ application and continuance of the interim order did not and could not amount to waiver of the petitioner's right. The petitioner had not accepted it nor by virtue of sending the cheque and acceptance of the cheque by an employee of the petitioner who was forced to accept it, did not amount to waiver and relinquishment. It was further submitted that such a course of action was also malafide as the writ application is pending and such an act cannot disentitle the petitioner of the relief he has prayed for in the writ application.
71. But, in the facts and circumstances of the case, I am unable to accept the contention of Mr. Roy simply because the order dated March 12, 1996, was not communicated to the petitioner the said order becomes non est, unenforceable and did not create any right in favour of the petitioner.
72. In this connection, reference may be made to the decision of the Supreme Court in the case of Bachhittar Singh v. State of Punjab , wherein it was held that the order has to be communicated to the persons who would be affected by that order and the persons can be bound by that order and until the order is communicated it would be open to the Council of Ministers to consider the matter over and over. Whereas, subsequently the Supreme Court, in State of Punjab v. Khemi Ram, , held that the order is effective from the date of despatch and it is immaterial when he actually receives the order. If the order is transmitted it takes as there could not be any chance whatsoever of changing its mind or modifying it. This principle laid down by the Supreme Court in the aforesaid two cases had no manner of application in the facts and circumstances of the case inasmuch as it is not a case of suspension of any disciplinary action taken against an officer of the Government.
73. In that case, the principle laid down by the Supreme Court is not applicable. In the instant case, an open bid was held. The highest bid of the petitioner was accepted and ultimately the final authority, namely the Lieutenant Governor of the Island accepted the bid and directed and entered into an agreement and/or to take follow-up action for the purpose of grant of licence to vend IMFL in the Island from 1.4.1996. The order of the Lieutenant Governor was dated March 12, 1996. After the order was passed by the Lieutenant Governor, the matter had reached its finality, and the subsequent events disclosed from the file which was suppressed tactfully and with ulterior motive by the respondents had not also shown that the successor-in-office of the Lieutenant Governor who was in dual charge of two Union Territories, Pondlcherry and Andaman & Nicobar Islands, had any occasion to reconsider or had any chance of changing the order and/or modifying the order dated March 12, 1996 passed by V. Purusottam, the then Lieutenant Governor, and the new Lieutenant Governor had only approved below the note of the Chief Secretary. The Chief Secretary of the Island had played a very bad and subversive role. It is he who originally recommended the earlier Lieutenant Governor for acceptance of the bid and whereupon the earlier Lieutenant Governor had taken a decision on his own inasmuch as the order passed by the earlier Lieutenant Governor was, as it appears, in his own hand writing. The self-same Chief Secretary gave note for not accepting the bid and on the contrary to blacklist him and refer the matter to CBI without disclosing that earlier the matter was decided by the predecessor Lieutenant Governor. It was his duty to draw the attention of the Lieutenant Governor that the earlier lieutenant Governor had passed an order and whereupon the new Lieutenant Governor could have considered the matter. Of course, there was no proposal to review, modify or change of the decision of the Lieutenant Governor. It was a case of suppressing the order of the Lieutenant Governor dated March 12, 1996, which had reached its finality and cannot be allowed to be done in the interest of the administration in the Union Territories where the Lieutenant Governor has to depend upon the Secretaries. It was a clear case where the new Lieutenant Governor was kept in absolute darkness about the real state of affairs and got her approval on a proposal which was mooted out after the matter had reached its finality. When the statutory authority who is discharging powers under the statute had passed an order and directed to take follow up actions, it was the duty on the part of the administration to carry out the said order and they have no authority and/or jurisdiction to ignore and start the matter afresh on the basis of new and subsequent materials which were not placed before the earlier Lieutenant Governor.
74. A fact does not cease to exist simply because it is ignored. In the instant case, no attempt was also made to review, reconsider and overrule the order of the Lieutenant Governor, dated March 12, 1996. Accordingly, the said order of the Lieutenant Governor was binding on all authorities and in view of that order there was not scope for cancellation of the bid. It is contrary to all norms to deliberately suppress and conceal the order passed by the earlier Lieutenant Governor on March 12, 1996, before U.C. Banerjee, J., as well as before this court. The authorities down below the Lieutenant Governor were charged with the duty to carry out the order of the Lieutenant Governor. They have no jurisdiction and/or any authority or competency to ignore the order of the Lieutenant Governor. If this is allowed to be made, in that event, the rule of law will come to an end and the court will be responsible for encouraging the bureaucrats to rebel against a Lieutenant Governor and to do whatever they think fit, when they have no authority or competency in the matter. The Chief Secretary and other authorities have exceeded the limit and they are guilty of defying the order of the Lieutenant Governor which is a very serious thing in the administration of the Government. The bureaucrats cannot be allow to play trick upon the court by suppressing the order from the court and to hoodwink the court and to obtain an order by deliberately misleading this court.
75. Fundamental to the legitimacy of public decision-making is the principle that official decision should not be invoked with motives such as fraud (or dishonesty), malice or personal self-interest. It is well-settled principle that a power is exercised fraudulently if its repository intends to achieve an object other than that which he claims to be seeking. A power is exercised maliciously if its repository is motivated for any extraneous consideration.
76. It is the clear case of acting in bad faith by the Chief Secretary and other officers under him. The principles of procedural fairness was not observed in the instant case. The principles of natural justice was also not observed, before any action taken adversely to the interest of the petitioner. It is well-settled principle that even an administrative decision which has to operate to the prejudice of any person, such a decision could not be taken without due observance of the principles of natural justice.
77. Accordingly, in view of the binding effect of the order of the Lieutenant Governor, dated March 12, 1996, the action of the respondents in cancelling the bid was, on the face of it, illegal, invalid and non est in the eye of law. It is unnecessary to drag any longer on this point of law inasmuch as it is too late in the day to contend that with the departure of the Lieutenant Governor from that Island all his decisions should be deemed to be non est and/or to be thrown into the sea. The bureaucrats are bound to maintain administrative discipline. They must remember that the Lieutenant Governor in the Island was the highest authority and the orders passed by the Lieutenant Governor should be given effect to unless of course the order of the Lieutenant Governor is rescinded or cancelled in accordance with law. These officers cannot, at their sweet will, treat the order of the Lieutenant Governor as non est and/or illegal or invalid on any ground whatsoever.
78. Further, with regard to the sending of the cheque and acceptance of the cheque is concerned, I am of the view that the same has no relevance in the facts and circumstances of the case where the bid was accepted and that accepted by the Lieutenant Governor on March 12, 1996, and that the subsequent order of the authorities concerned including the new Lieutenant Governor without revoking and cancelling the earlier order of the Lieutenant Governor is clearly illegal, void and ultra vires. The sending of the cheque during the pendency of the writ application and that too not accepted by the petitioner and any action does not and cannot amount to create any bar on the basis of the principles of waiver, estoppel or acquiescence. Accordingly the submission of Mr. Roy, on this score, must be overruled.
79. Further, in the instant case, it appears that the final order that was passed under the seal and signature of the Deputy Commissioner, dated April 15, 1996, was on the face of it illegal and void inasmuch as the petitioner was not given any opportunity of being heard in respect of the allegation made against the petitioner on the basis of which the order was passed. There was no show cause notice giving the petitioner opportunity to meet with the allegations made in the show cause notice before any action could be taken. Certain records and documents were called for in the background for the purpose of revocation of the stocks presumably because of the case in Nagpur. The order dated April 15, 1996, suffers from various informities inasmuch as that the order dated March 12., 1996, accepting the bid given on February 22, 1996 has reached its finality and there was no scope for cancellation of the same when it was accepted by the earlier Lieutenant Governor.
80. Further, before blacklisting the petitioner, the petitioner was not given any opportunity and/or hearing. In this connection, reference may be made to the case of Erusian Equipment and Chemicals Ltd. v. State of West Bengal, , where in it was held :
"Blacklisting has the effect of preventing a person from the privilege and advantage of entering into lawful relationship with the Government for purposes of gains. The fact that a disability is created by the order of blacklisting indicates that the relevant authority is to have an objective satisfaction. Fundamentals of fair play require that the person concerned should be given an opportunity to represent his case before he is put on the blacklist ...
The order of black-listing has the effect of depriving a person of equality of opportunity in the matter of public contract. A person who has been dealing with the Government in the matter of sale an purchase of materials has a legitimate interest or expectation...
Where the blacklisting order involves civil consequences it casts a slur. It creates a barrier between the persons blacklisted and the Government in the matter of transactions. The blacklists are 'instruments of coercion'. Hence a person must be given an opportunity of hearing before his name is put on the black list."
81. Accordingly, the order of blacklisting cannot be sustained on the ground of non-observance of procedural fairness and principles of natural justice. With regard to the merits of the case, it appears that the respondents had committed deliberate mistakes and errors presumably because they were bent upon to take adverse actions against the petitioner and that is why they did not find any time or they had at that mental aptitude to look into the matter dispassionately. From the records, it appears that it is not a fact that the last permit was issued that there was any importation of any IMFL in and clandestine manner. Even in January the permits were issued as a matter of fact. Of course, these things are not relevant as the last licence was not cancelled. The period of licence expired on 31.3.1996 and before that date no cancellation was made.
82. Further, it appears to me that when the case is under investigation on the basis of certain allegations, the facts stated in the FIR could not be said to be proved until and unless it is found to be proved by the court of Law. Accordingly, it is premature to hold that the petitioner was guilty of tampering and/or commission of forgery, for which actions could be taken before the trial is over. Of course, during the pendency of a criminal case, the authorities concerned could have proceeded independently in respect of specific charges and on enquiry and giving an opportunity of being heard could make a finding but without making any finding and/or without observing the due process of law the respondents took such a decision. Of course, when criminal cases are pending, it is not for this court restrict the hands of the Criminal Courts, as this is beyond scope of writ application and it is not the desire of the court to interfere with any proceeding. If the petitioner is found guilty of any offences law will take its own course.
83. Accordingly, the respondents are directed to enter into an agreement pursuant to the order passed by the Lieutenant Governor, dated March 12, 1996, and to issue the licence for vending India-made Foreign Liquor in the said island for the year 1996-97 and to allow the petitioner to carry on trade subject of course to the rights of the respondents to take steps in accordance with law including the cancellation of the licence if the petitioner is ultimately found guilty of any of the charges and/ or the allegations. It is also made clear that the CBI would also be at liberty to proceed with the investigation in accordance with law and take steps whatever the said authority may think fit and proper. It is not the duty of the court to protect any offender it he has committed any offence. Further, in respect of liquor trade, it would be within the competence of the respondents to cancel the agreement and/or the licence and the right to carry on trade in case it is found that the petitioner is guilty of any offence by any competent court.
84. Accordingly, the impugned order dated April 15, 1996, and the order of the Lieutenant Governor is cancelled and the respondents are directed to give effect and take steps pursuant to the order passed by the Lieutenant Governor dated March 12, 1996, within a period of two weeks from the date of communication of the order. The writ application succeeds.
85. But before parting with this matter, I express my displeasure in the course of action taken by the officers working under the Lieutenant Governor and let a copy of this order be sent to the Lieutenant Governor to take proper steps against the officers concerned who are guilty of suppression of material facts and practice fraud in adopting unfair procedure for misleading the Lieutenant Governor. For filing a misleading and false affidavit, this application is allowed with costs assessed at Rs. 7500/-, to be paid by Vikram Deb Dutt personally, who has filed such an affidavit, within three weeks from today.
86. Accordingly, the writ application is allowed. There will be no order as to costs. I make it clear that this order is passed without prejudice to the rights of the Administration to take any step or action according to law in case it is found that the petitioner was guilty of any offence during the currency of the licence period 1996-97, and if ultimately found guilty of any criminal offence by any Criminal Court, they will also be at liberty to cancel or rescind the licence issued pursuant to the order of the Lieutenant Governor dated 12.3.96 and in terms of the order of the court as it would be contrary to public interest to entrust such a trade in the hands of persons who may be found guilty of any offence pertaining to the liquor trade or otherwise.
87. Let the records of the cases be sent down to the Andaman Circuit Court. The Registrar, of that court is directed to communicate this order upon the Lieutenant Governor, Port Blair.
88. The learned Advocate appearing for the respondent has prayed for stay of operation of this order, but in view of the peculiar facts and circumstances of the case which was high-lighted in the Judgment, the said prayer is refused.
89. Let a plain copy of the operated portion of the above order, countersigned by an Assistant Registrar (court) be given to the parties for communication as a special case.