REPORTABLE              IN THE SUPREME COURT OF INDIA  

          ORIGINAL JURISDICTION

               WRIT PETITION (CIVIL) NO(s). 110 OF 2008

ASIT KUMAR KAR                                       Petitioner(s)

                     VERSUS

STATE OF WEST BENGAL & ORS.                          Respondent(s)

WITH W.P(C) NO. 118 of 2008 W.P(C) NO. 119 of 2008 W.P(C) NO. 144 of 2008 W.P(C) NO. 146 of 2008 W.P(C) NO. 147 of 2008 W.P(C) NO. 148 of 2008 W.P(C) NO. 149 of 2008 W.P(C) NO. 150 of 2008 W.P(C) NO. 151 of 2008 W.P(C) NO. 152 of 2008 W.P(C) NO. 153 of 2008 W.P(C) NO. 154 of 2008 W.P(C) NO. 155 of 2008 W.P(C) NO. 156 of 2008 W.P(C) NO. 157 of 2008 W.P(C) NO. 158 of 2008 W.P(C) NO. 159 of 2008 W.P(C) NO. 160 of 2008 W.P(C) NO. 161 of 2008 W.P(C) NO. 162 of 2008 W.P(C) NO. 163 of 2008 W.P(C) NO. 164 of 2008 W.P(C) NO. 272 of 2008 W.P(C) NO. 273 of 2008 W.P(C) NO. 274 of 2008 W.P(C) NO. 275 of 2008

O R D E R  

These writ petitions have been filed under Article 32 of the Constitution

of India.

It appears that the All Bengal Excise Licensees Association had filed a

writ petition in the High Court of Calcutta  challenging  the policy of the State of

West Bengal

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of  granting  additional  licences  for  foreign  liquor  and country  made spirit.   That

petition was filed through the General Secretary of the Association.  Subsequently,

the writ petition was withdrawn.

During the pendency of the writ petition, and before it was withdrawn,

an interim order had been passed by the High Court staying the grant of licences.  A

contempt petition was filed before the High Court alleging that licences were granted

in  violation  of  the  stay  order  of  the  High  Court,  but  that  contempt  petition  was

dismissed.   Against  that  order  dismissing  the  contempt  petition,  a  special  leave

petition was filed in this  Court which was decided by this  Court in the judgment

reported as All Bengal Licensees Association v. Raghabendra Singh & Ors. [2007 (11)

SCC 374.

In that contempt petition, the Court accepted the apology of the alleged

contemnors,  but  having  done  so,  in  paragraph  40  of  the  judgment  it  directed

cancellation  of  the  licences  for  the  auctions  held  on  20.03.2005,  21.03.2005  and

22.03.2005 and directed that their businesses shall be stopped forthwith.

The  aforesaid  direction  in  paragraph  40  of  the  judgment  was  passed

without hearing the persons whose licences were ordered to be cancelled.  In fact even

the impleadment applications of such persons were rejected.

It is a basic principle of justice that no adverse orders should be passed

against a party without hearing him.  This is the fundamental principle of natural

justice and it is a basic canon of jurisprudence.  

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In the Seven Judge Constitution Bench of this Court, A.R. Antuley v. R.S.

Nayak & Anr. 1988 (2) SCC 602] it has been observed in paragraph 55 thereof:

"so also the violation of the principles of natural justice renders the act a nullity".

One of the counsel relied upon another Five Judge Constitution Bench

decision in Rupa Ashok Hurra v. Ashok Hurra [2002 (4) SCC 388].  It is true that in

paragraph 9 of the said judgment it has been observed that this Court under Article

32 of the Constitution cannot hold as invalid a judgment of this Court by treating it as

a nullity.  However, the aforesaid judgment does not say that we cannot pass a recall

order when that order has been passed without hearing a party.

There  is  a  distinction  between  a  petition  under  Article  32,  a  review

petition and a recall petition. While in a review petition the Court considers on merits

where there is an error apparent on the face of the record, in a recall petition the

Court  does  not  go into  the  merits  but  simply  recalls  an  order which  was  passed

without giving an opportunity of hearing to an affected party. We are treating this

petition under Article 32 as a recall petition because the order passed in the decision

in All Bengal Licensees Association v. Raghabendra Singh & Ors. [2007 (11) SCC 374]

cancelling certain licences was passed without giving opportunity of hearing to the

persons who had been granted licences.

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In these circumstances, we recall the directions in paragraph 40 of the

aforesaid  judgment.   However,  if  anybody  has  a  grievance  against  the  grant  of

licences or in the policy of the State Government, he will be at liberty to challenge it in

appropriate proceedings before the appropriate Court.

The writ petitions are disposed of with these directions.

......................J.                  [MARKANDEY KATJU]

.....................J                                              [R.M. LODHA] New Delhi, January 21, 2009.