http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11  

PETITIONER: BISHNU RAM BORAH & ANR.

       Vs.

RESPONDENT: PARAG SAIKIA & ORS.

DATE OF JUDGMENT16/11/1983

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) VARADARAJAN, A. (J) ERADI, V. BALAKRISHNA (J)

CITATION:  1984 AIR  898            1984 SCR  (1) 825  1984 SCC  (2) 488        1983 SCALE  (2)1231

ACT:      Constitution of  India-Art. 226-Power  of  High  Court- Scope of      Constitution of  India-Arts. 226  and 227-Judgment  and Orders of  High Courts  binding and  must be  obeyed by  all inferior Courts  and tribunals  subject to  then supervisory jurisdiction.      Assam Excise  Rules, 1945-  Rule  223-Phrase  ’educated unemployed youth  appearing in  note below  rule 223-meaning of.      Practice and  Procedure-Two separate petitions filed in the same  case-High Court  dealt with one and kept the other pending-Procedure adopted  not proper  and against  rule  of fairplay. While  criticising lower  authorities use of harsh language must be avoided.      Words and phrases-Educated unemployed youth.

HEADNOTE:      The Board of Revenue on a consideration of the material on record  as to  the suitability  or otherwise of the rival pairs of claimants upheld the grant of a liquor licence made by the  Deputy Commissioner  in favour of the appellants. It held that  respondent No.  1  was  a  mere  benamidar  of  a prominent businessman  and respondent  No. 2  being still  a student studying  for his  B.Sc. degree could not be treated as an  ’educated unemployed youth’ within the meaning of the note beneath  r. 223  of the  Assam Excise ’Rules, 1945. The respondent Nos. 1 and 2 and the interveners separately moved the High  Court under Art. 226 of the Constitution. The High Court instead  of taking  up both  the  petitions  together: took: the  writ petition  filed by  respondents Nos. 1 and 2 and on  a reappraisal of the evidence came to the conclusion contrary to  that  reached  by  the  Board.  It  accordingly quashed the  order of  the Board of Revenue and remanded the matter to  the Board  for a decision afresh, in the light of the directions  made by it. The Board took serious exception to certain observations made by the High Court and held that the directions issued were nothing but mere observations and therefore it was not bound by it. After hearing the parties, the  Board  maintained  its  earlier  order  confirming  the settlement of  the liquor  shop by  the Deputy  Commissioner

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11  

with the  appellants. Respondents  Nos. 1  and 2 again moved the High  Court  under  Art.  226.  The  High  Court  passed strictures on  the Board  of Revenue for not having complied with its  directions and  on a  consideration of  the  facts appearing came to the same 826 conclusion as  before and quashed the order of the Board but instead of  remanding the  matter to the Board for complying with its  earlier orders issued a writ of mandamus directing him to  settle the country liquor shop with respondents Nos. 1 and  2 on  condition that the grant would be subject to an inquiry as to whether respondent No. 1 was a mere be subject and also  subject to  the result  of earlier  writ  petition filed by the interveners which was still pending.      In appeal,  the two  questions which  arose  were  :(1) whether it  was impermissible  for the  High Court  to  have embarked upon  an inquiry into facts and on a reappraisal of the evidence  come to  a finding contrary to that reached by the Board  of Revenue  and upon  that basis  issue a writ of certiorari under  Art. 226  quashing the order of Board. And (2) Whether  it was a proper exercise of jurisdiction by the High Court  under Art. 226 to have issued a writ of mandamus ordaining the  Deputy Commissioner  to  settle  the  country liquor shop with respondents Nos. 1 and 2.      Answering the first question in the affirmative and the second in the negative. ^      HELD  :   1.  The   High  Court  clearly  exceeded  its jurisdiction while  issuing a  writ of certiorari under Art. 226 of  the Constitution  in quashing  the impugned order of the Board  of Revenue  to have embarked upon an inquiry into the facts and upon a reappraisal of the evidence come to the conclusion contrary  to that reached by the Board of Revenue viz. whether  or not  respondent No. 1 was a mere benamidar. [837 F-G]      2. It  was also  not a  proper exercise of jurisdiction under Art.  226 for  the High Court to have issued a writ of mandamus directing  the Deputy  Commissioner  to  grant  the liquor licence  to respondents Nos. 1 and 2 in preference to the appellants.  Although  a  writ  of  mandamus  may  be  a necessary adjunct to a writ of certiorari, if the High Court was satisfied  that a writ of certiorari had to be issued to quash the  impugned order  of the  Board of  Revenue on  the ground that  its order  was vitiated by an error apparent on the face of the record, the proper course for the High Court to adopt  was to  issue a  writ of  mandamus to the Board to hear and redetermine the appeal according to law. [835 E-F]      HWR   Wade’s Administrative  Law,  5th  edn.,  p.  638, referred to.      3. The  construction placed  by the  High Court  on the meaning  of   the  expression  ’educated  unemployed  youth’ appearing in  the note  beneath  r.  223  of  the  Rules  is apparently erroneous.  When a  person is  still pursuing his course of  studies in  a university,  one fails  to see  any basis for creating him as an ’educated unemployed youth. The expression ’educated  unemployed youth,  in the note beneath r. 223  has a definite legal connotation. It denotes a class of citizens, who after completing their education, are faced with the growing problem of unemployment. [837 B-D] 827      4. The direction made by the High Court while issuing a writ of mandamus to the Deputy Commissioner ordaining him to grant the  liquor licence  to respondents  Nos. 1 and 2 that the grant would be subject to the result of an inquiry as to whether respondent  No. 1  was a  mere  benamidar  and  also

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11  

subject to  the result  of the writ petition which was filed by  the   interveners  and  still  pending,  appears  to  be unwarranted. If  that were  to be  so, it  would affect  the validity of  the grant itself. It was also irregular for the High Court  to have taken an undertaking from respondent No. 2 who  was a  student still undergoing his studies for B.Sc. degree in  a university that he would give up his studies in case he was given the liquor licence.      5.  The   procedure  adopted   by  the  High  Court  in separately hearing  the writ  petition filed  by respondents Nos.  1  and  2,  while  the  writ  petition  filed  by  the interveners was still pending, and in not taking up both the writ  petitions   together,   and   directing   the   Deputy Commissioner to issue a liquor licence to respondents Nos. 1 and 2,  was not in consonance with the procedure established by law  and clearly  in denial  of  rules  of  fairplay  and justice.      6. The  Board of  Revenue was  bound to comply with the directions made  by the High Court and it was not open to it to say  that they  were mere observations and not directions issued.  The  refusal  of  the  Board  to  comply  with  the directions of  the High  Court issued  under Art. 226 was in effect a  denial of  justice and  also destructive of one of the basic  principles in the administration of justice based as it is in this country on a hierarchy of Courts.      Bhopal Sugar  Industries Limited v. Income-tax Officer, Bhopal. [1961] 1 S C.R. 474 relied on.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 5742 of 1983      Appeal by  Special leave  from the  judgment and  order dated the  7th May,  1983 of  the Assam  High Court in Civil Rule No. 1292 of 1982.      K.K. Venugopal, Ms. Laxmi Venugopal, A.K Bordelay, C.S. Vaidyanathan and Praveen Choudhary for the Appellants.      S.S. Ray,  A.S. Pundir,  Vijay  Hansaria,  Sunil  Kumar Jain, Mukesh  Advani and Ms. Mridula Ray for Respondent Nos. 1 & 2.      S.K.Nandy for the Respondents 3 & 5.      N.R. Choudhary for the Intervener.      The Judgment of the Court was delivered by 828      SEN, J.  This  appeal  by  special  leave  is  directed against the judgment and order of the Assam High Court dated November 4,  1982 concerns  the propriety  of the grant of a liquor licence.  By the  judgment the  High Court quashed an order of  the  Board  of  Revenue  dated  February  11,.1982 affirming the  grant of licence in respect of Jorhat Country Spirit Shop  No. 1 made by the Deputy Commissioner Sibsagar, Jorhat, by  his order  dated August 28, 1981, and instead of remitting the  matter to the Board of Revenue for a decision afresh, the  High Court had directed the Deputy Commissioner to settle  the liquor shop with respondents Nos. 1 and 2 for the remaining period of the grant upto March 31, 1984.      The short question that arises in the appeal is whether it was  proper exercise  of jurisdiction  by the  High Court under Art.  226 of the Constitution to have issued a writ of mandamus ordaining  the Deputy  Commissioner  to  grant  the licence.  Further,   a  question   arises  whether   it  was impermissible for  the High  Court to  have embarked upon an inquiry into  the facts and on a reappraisal of the evidence come to  a finding  contrary to that reached by the Board of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11  

Revenue based  on appreciation  of evidence  that one set of rival  claimants  i.e.  Parag  Saikia  and  Prafulla  Barua, respondents Nos.  1 and  2 were  entitled to  grant of  such privilege in  preference to  the appellant  under  the  note beneath r. 223(2) of the Assam Excise Rules, 1945 (for short ’Rules’).      The facts  of this  case present  a  rather  disturbing feature. Jorhat  Country Spirit  Shop No.  1 is a big excise shop within the meaning of r. 232 of the Rules. Under cl.(a) thereof, the settlement of such a country liquor shop has to be made  with a  pair of tenderers constituting two or more, partners. Five  joint tenders  were received  in response to the  notification   issued  by   the  Deputy   Commissioner, Sibsagar, Jorhat  calling for  tenders of the country liquor shop  for   the   financial   year   1983-84.   The   Deputy Commissioner, Sibsagar,  Jorhat  in  consultation  with  the Advisory Committee  constituted for that purpose as required under r.  208 by his order dated August 28, 1981 settled the shop with  the two  appellants Bishnu  Ram Borah  and  Bipin Chandra Borah.  One set  of the  unsuccessful tenderers were respondents Nos. 1 and 2 Parag Saikia and Prafulla Barua. Of them, Parag  Saikia respondent  No. 1 herein was held by the Deputy Commissioner  to be  a mere  benamidar of a prominent businessman of  Dibrugarh while  respondent No.  2  Prafulla Barua was a student studying for his B.Sc. degree and stying in a hostel at Golaghat, which is a place some 30 miles away from Jorhat. The Board of 829 Revenue, Assam  by its  order dated February 11, 1982 upheld the  settlement   of  the   country  liquor  shop  with  the appellants. Being  aggrieved by  the decision  of the Board, two sets  of unsuccessful  tenderers viz, respondents Nos. 1 and 2  and the  interveners Daya  Ram Borah and Prabin Kumar Borah filed  petitions under  Art. 226  of the  Constitution before the  Assam High  Court being  Civil Rule  Nos. 215 of 1982 and  1163 of  1982. The High Court instead of taking up both the writ petitions together, heard and decided the writ petition filed  by respondents  Nos. 1  and  2  and  by  its judgment dated  November 4,  1982 quashed  the order  of the Board of  Revenue and remitted the appeal to the Board for a decision afresh in the light of the observations made by it. The Board  however by  its  order  dated  December  3,  1982 maintained the  settlement of  the country  liquor shop with the appellants.  Thereupon, respondents  Nos. 1  and 2 again moved the  High Court  under Art.  226 for appropriate writ, direction or  order in  the matter  of grant  of the  liquor licence. The  High Court  by its  judgment dated May 7, 1983 quashed the  order of  the Board  of Revenue  and instead of remitting the  matter to  the Board  for a  decision afresh, issued a  writ of  mandamus by  which it directed the Deputy Commissioner to settle the liquor shop with respondents Nos. 1 and 2 for the remaining period of the grant upto March 31, 1984. While  making the  direction the  High Court  observed that ’in  case it  was found  that respondents  Nos. 1 and 2 were benamidars of anybody, it would be open to the settling authority  i.e. the Deputy Commissioner to cancel the liquor licence’. Further,  it observed  that ’the  grant’ would  be subject to  the result  of the decision in the writ petition filled by the interveners i.e. Civil Rule No. 1163 of 1982’.      Before proceeding  further, it is necessary to refer to certain provisions  of the Assam Excise Act, 1910 (for short ’Act’) and  the Assam Excise Rules, 1945 (for short ’Rules’) as amended  from time  to time.  Section 18(1)  of  the  Act provides:           "18 (1).  Prohibition of sale without licence, and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11  

    the exceptions to such prohibitions-No intoxicant shall      be sold  except under  the authority  and in accordance      with the  terms and  conditions of a licence granted by      the Authority prescribed in the rules framed under this      Act." Rule 208 provides as follows:           "Advisory  Committee-The  Collectors  should  make      settlements   in    consultation   with   an   advisory      committee." 830 Rule 223(2) provides:           "In making  settlement to  any  person  preference      shall always be given to the educated unemployed youths      or to  co-operatives and  co-opt firms  formed by  such      educated unemployed  youth. Preference  shall  also  be      given to  the persons  belonging to  the more  backward      classes."           Note: The  term  ’educated  unemployed  youth’  as      mentioned in  sub-rule (2)  of Rule  223 means a person      not exceeding  35 years  of  age  who  has  passed  the      H.S.L.C. or  its equivalent  examination and is without      any employment."      A few  facts have  to be  stated. Before  the Board  of Revenue passed  its earlier  order dated  February 11,  1982 upholding the grant of licence by the Deputy Commissioner by his order  dated August  28, 1981,  the Board  had called  a report from  the Deputy  Commissioner, Sibsagar,  Jorhat and had  also  before  it  a  parawise  comment  of  the  Deputy Commissioner. On an evaluation of the comparative merits and demerits  and   after  eliminating   the   other   sets   of competitors’ the  Board upheld  the grant of licence made by the Deputy  Commissioner in  favour of  the appellants. On a careful consideration  of the  material on record and in the light  of   the  confidential  report  made  by  the  Deputy Commissioner, the  Board held  that respondent  Nos. 1 and 2 were not  suitable for  the grant of licence for the country liquor shop.  As regards  respondent No.1  Parag Saikia, the Board relying  upon the  report of  the Deputy  Commissioner held that he was a mere benamidar of a prominent businessman of Dibrugarh  who was  trying to  corner big liquor shops at Jorhat and  that it  was evident  from the  report  that  he mostly resides  at Gauhati  enjoying the pay and perquisites provided by  this businessman and that he was apparently not an unemployed person as he was resorting to highly expensive litigation for  getting a  liquor shop licence. Further, the Board observed  that he  had the  means not  only to  prefer appeals before the State Government and the Board of Revenue but that he had also repeatedly moved the High Court for the grant of  appropriate writ, direction or order in the matter of settlement  of a country liquor shop which showed that he had some  strong financier behind him. As regards respondent No.2 Prafulla Barua who was still a student studying for his B.Sc. degree  and staying in a hostel at Golaghat, the Board held that he could not be treated as an ’educated unemployed youth’ within  the meaning  of the note beneath r.223 of the Rules. 831 In reaching the conclusion that it did, the Board of Revenue observed:           "In an  excise settlement  apart from the finance,      there is  also the  question of  general suitability of      the tenders  for a  particular shop. It came out during      the hearing  that this is one of the Sibsagar District.      As such substantial revenue of the State is involved in      this  shop  and  the  suitability  of  the  lessee  has

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11  

    therefore to  be examined  very closely. Under Rule 232      of the  Excise  Rules,  no  distinction  can  be  drawn      between the  legal liabilities  of the two partners who      will be  jointly  and  severally  responsible  for  the      management of  the shop.  It is  implicit in  this Rule      that the  partners  have  to  be  more  or  less  equal      partners.  It   is  also  implicit  that  the  settling      authority should  be satisfied  about their  respective      role, responsibilities,  investments and  involvements.      On a  total consideration  of the  tender, the  memo of      appeal and  the various  affidavits and other documents      filed on  behalf of  the  appellant  Parag  Saikia,  it      appears doubtless  that he  is the dominant partner and      his associate appears more as a show-boy than even as a      sleeping partner." The Board then went on to say:           "Reverting to the partnership of the appellants it      is observed  that their respective financial investment      and physical  involvement as well as the sharing of the      profit or loss is not known. Indeed for the two persons      living in  two  different  Sub-divisional  Head-quarter      towns and  having a  substantial difference  in age and      present status,  it is  difficult to  be definite  that      they have the needed concord and compatibility or unity      and understanding for operating a major shop like this.      Again, in  a double  lessee shop  what is needed is not      just a  second helping hand to a lessee but it requires      persons  of   a  minimum  calibre  from  the  point  of      intelligence, experience  and businessman. Parag Saikia      by his  own admission found that the firm set up by him      or joined by him had failed or were non-starters. These      considerations might  have weighed  with  the  Advisory      Committee and  the District  Collector in  not  setting      with Parag  Saikia even  any of  the smaller  shops for      which he is known to have tendered 832      and Prafulla Barua being still an undergraduate student      might have been considered unsuitable on that ground as      well among others." The Board  of Revenue accordingly held that respondent No. 1 Parag Saikia  was a  mere benamidar and therefore ineligible for the  grant of  licence while  respondent No.  2 Prafulla Barua being  still a  student studying  for his B.Sc. degree was not  suitable for  grant of  such privilege,  and at any rate, he  could not  be encouraged  when educated unemployed youths and other suitable tenderers were available. It-found considerable force  in the  submission that the Board should adopt it  as a  policy to  discourage students from entering into liquor business.      Regrettably, the  High Court  while allowing  the  writ petition preferred by respondent Nos. 1 and 2 passed certain strictures which,  in our opinion, should have been avoided. It found  fault with the Board of having acted on the report of the  Deputy Commissioner  observing that ’the Board could not act  on the  ipse dixit  of  the  Deputy  Commissioner’. Further, the High Court held that there was no basis for the Board to adopt a policy to discourage students from entering into liquor business when there was no such legal bar. Still further, it  observed that  merely because  respondent No. 2 Prafulla Barua  was a student of B.Sc. class and was staying at a  hostel at  Golaghat which  was about 30 miles away, it would not  be difficult  for him  to carry  on a partnership business at  Jorhat where  his cousin lives and further that he answers  the description  of ’educated  unemployed youth’ envisaged in  the  note  beneath  r.223  of  the  Rules.  It

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11  

recorded that  respondent No.  2 Prafulla Barua had given an undertaking that  he  would  give  up  his  studies  if  the settlement of  the liquor shop was made in his favour. There was no  warrant for  any of  these observations  made by the High Court and the High Court was not entitled to enter into a question  of fact  as to  whether or  not respondent No. 1 Parag Saikia  was a  mere benamidar.  It is somewhat strange that the  High Court  should have  taken an undertaking from respondent No.  2 Prafulla  Barua that  he would give up his studies if  the  settlement  was  made  in  his  favour  and observed  that  there  was  nothing  in  law  to  discourage students still  undergoing their  studies from entering into the liquor  business and that he falls within he category of ’educated unemployed youth’ within the note beneath r.223 of the Rules 833      On remand,  the Board  of Revenue  by its  order  dated December 2,  1982 reacted  sharply to  the observations  and went on to say that the observations were uncalled for. That apart, the  Board observed  that since the observations were on questions  of fact, they could not be taken as binding on the Board.  It reaffirmed  its earlier  order upholding  the grant of  the  licence  to  the  appellants  by  the  Deputy Commissioner. As regards respondents Nos. 1 and 2, the Board relying on  the report  of the Deputy Commissioner held them to be  unsuitable for  the grant  of licence.  It held  that respondent No.  1 Parag  Saikia was  a mere  benamidar of  a mahaldar of  Dibrugarh district who had cast his net far and wide in  the Jorhat  sub-division and  that respondent No. 2 Prafulla Barua  who was still undergoing his studies for the B.Sc. degree  could not  be regarded  as falling  within the category of  educated unemployed youth appearing in the note beneath r.223  of the  Rules. Thereupon,  respondents Nos. 1 and 2  again moved  the High  Court  under  Art.226  of  the Constitution for appropriate writ, direction or order in the matter of grant of the liquor licence.      As was expected, the High Court strongly deprecated the action of  the Board  of Revenue defying the directions made by the High Court in exercise of its jurisdiction under Art. 226 of the Constitution and held that the Board had no other alternative but  to decide the matter afresh in the light of the directions  given by  the High  Court and  expressed its regret that it had not done so at all observing:           "Such an effort of subordinate tribunal is fraught      with grave  danger to  the  administration  of  justice      known to  the people of this country and had to be duly      taken note of with great concern by all."      The High  Court then  went on to observe that the Board had thrown  all judicial decorum and discipline to the winds by disregarding its judgment. It further observed:           "A perusal  of the  impugned judgment  shows  that      though the petitioners are entitled to preference under      r.223(2) of  the Assam  Excise Rules, 1945, hereinafter      the Rules, whereas the respondents land 2 are not, they      have not  been found  suitable for settlement for these      reasons; (i)  Parag,  one  of  the  petitioners,  is  a      benamidar; 834      (ii) the partnership in question is sham; and (iii) the      petitioners are not financially sound to run the shop."      After adverting to the well-settled principles relating to the  power of  the  High  Courts  under  Art.226  of  the Constitution to  issue a  writ of  certiorari and  observing that it  was conscious of its own limitations in the matter, the  High   Court  nonetheless   observed  that   ’it  could

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11  

definitely set  aside the order of an inferior tribunal like the  Board   of  Revenue   founded  even   on  some  factual conclusions if  they were  based on irrelevant or extraneous materials or  be such  which no reasonable person could have reached or if they were grounded on a total misconception of law’. It  held that  a  finding  reached  by  the  Board  by disregarding the  directions given  to it  by the High Court was in excess of jurisdiction.      It is  regrettable that  the Board of Revenue failed to realize that  like any  other subordinate  tribunal, it  was subject to  the writ  jurisdiction of  the High  Court under Art.226 of  the Constitution.  Just  as  the  judgments  and orders of the Supreme Court have to be faithfully obeyed and carried out  throughout the territory of India under Art.142 of the  Constitution, so  should be the judgments and orders of the  High Court  by all  inferior  courts  and  tribunals subject to  their supervisory  jurisdiction within the State under Art.226  and 227  of the  Constitution. We  cannot but deprecate the  action of the Board of Revenue in refusing to carry out  the directions of the High Court. In Bhopal Sugar Industries Limited v. Income-tax Officer Bhopal, the Income- tax Officer had virtually refused to carry out the clear and unambiguous directions  which a  superior tribunal  like the Income-tax Appellate  Tribunal had given to him by its final order in  exercise of  its appellate powers in respect of an order of  assessment made  by him.  The Court held that such refusal was in effect a denial of justice and is furthermore destructive  of   one  of   the  basic   principles  in  the administration of  justice based as it is in this country on the hierarchy  of courts.  The facts of the present case are more or less similar and we would have allowed the matter to rest at  that but  unfortunately the  judgment of  the  High Court directing  the issue  of a  writ of  mandamus for  the grant of a liquor licence to respondents Nos. 1 and 2 cannot be sustained.      The High  Court dealt  with the finding of the Board as to  whether   or  not   the  alleged   partnership   between respondents Nos.1 835 and 2  was genuine. As regards the suitability in their ages which, according  to the  Board, would  stand in  the way of needed. concord  and compatibility,  it felt that it was for respondent No.2  Prafulla Barua to decide whether respondent No.1 Parag  Saikia was a suitable person with whom he should enter into  a partnership. Secondly, the High Court observed that it  would not be difficult for respondent No.2 Prafulla Barua although  he was  a student  studying  for  his  B.Sc. degree and staying in a hostel at Golaghat which was some 30 miles away  from Jorhat  to carry  on the liquor business in partnership. Thirdly,  the High Court went into the question whether they  had the requisite financial capacity to fulfil the requirements  of r.346.  From  all  this,  it  is  quite evident that the High Court was oblivious of the limitations of its  own powers  under Art.226 of the Constitution in the matter of grant of a writ of certiorari.      It  was  impermissible  for  the  High  Court  to  have embarked upon  an inquiry  into the  facts  to  adjudge  the suitability or otherwise of the rival pairs of claimants and upon a  reappraisal  of  the  evidence  come  to  a  finding contrary to  that reached by the Board of Revenue. There was nothing on record to show that the Board had acted in excess of jurisdiction  or there  was an error apparent on the face of the  record which  resuited in  manifest injustice.  That apart, it  was not  a proper  exercise of jurisdiction under Art.226 of  the Constitution  for the  High  Court  to  have

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11  

issued a  writ of mandamus ordaining the Deputy Commissioner to grant  the liquor  licence to  respondents Nos.1 and 2 in preference to  the appellants.  Although a  writ of mandamus may be  a necessary  adjunct to a writ of certiorari, in the High Court was satisfied that a writ of certiorari had to be issued to  quash the  impugned order of the Board of Revenue on the  ground that  its order  was  vitiated  by  an  error apparent on  the face  of the  record, the proper course for the High  Court to  adopt was  to  have  issued  a  writ  of mandamus to  hear and  redetermine the  appeal according  to law: H.W.R. Wade’s Administrative Law, 5th edn., p.638.      The High  Court was  also in  error in holding that the earlier order passed by the High Court remanding the case to the Board  of Revenue  contained a  direction requiring  the Board not to act upon the report of the Deputy Commissioner. The fact  that the  Board had in the past in some other case viz. for  the grant  of liquor  licence  for  Melan  Country Spirit  Shop  not  acted  upon  the  report  of  the  Deputy Commissioner against respondent No.1 Parag Saikia was not 836 a ground  sufficient for  ignoring the adverse report of the Deputy Commissioner  against him  in the  present  case.  It would be  apposite  to  quote  the  report  which  reads  as follows:           "Jorhat town  country spirit shop No.1 (with which      shop we  are concerned) is meant for joint lessee. Just      after the  submission of  the tender  on 21.8.81 secret      information was  received to the effect that Shri Parag      Saikia (one  of the  petitioners in the case) is in the      private  employment   of  a  prominent  businessman  of      Dibrugarh district  who is also said to be benamidar of      important C.S. shops and Shri Saikia resides in Gauhati      for the  greater part  of the  year  enjoying  all  the      perquisites of  the employer,  The  secret  information      further indicates  that the said benamidar of Dibrugarh      district was  trying to  grab important shops of Jorhat      Sub-Division  through  Parag  Saikia.  The  matter  was      discussed in  the Advisory  Board  which  rejected  the      tender of the joint appellant."      Further, the  High Court  had observed  that the  Board could  not  have  relied  upon  the  report  of  the  Deputy Commissioner unless  respondents Nos.1 and 2 were confronted with the  same and  respondent No.1  was allowed to have his say in  the matter.  The responding  of the  High Court  can hardly  be   supported.  In  the  first  place,  the  Deputy Commissioner is  the  head  of  the  administration  of  the district and  is conversant with the local situation and has secret  sources   of  information.  Normally  the  Board  is entitled to  rely upon  the word of the Deputy Commissioner. It is expected that the Deputy Commissioner would always act with a  sense of responsibility. Secondly, the report of the Deputy Commissioner was confidential in nature. There was no question of  the Board disclosing the contents of the report to respondents  Nos. 1 and 2. Further, respondents Nos.1 and 2 never  made a demand for a copy of the report, and even if such a  request was  made the  Board would  have been  fully justified in  not furnishing  the same. Such a refusal would not amount  to denial  of natural  justice for  the  obvious reason that  the rules  of natural  justice must necessarily vary  with  the  nature  of  the  right  and  the  attendant circumstances. The  grant of  a liquor  licence  was  not  a matter of  right but  merely in  the  nature  of  privilege, Furthermore, the  Board was entitled to call for a report of the Deputy Commissioner in an appeal of this nature. 837

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11  

    We cannot  also subscribe  to the view expressed by the High Court  that respondent  No.2 Prafulla  Barua who  is  a student of  B.Sc. class  still undergoing  his studies falls within  the   description  of  ’educated  unemployed  youth’ appearing in  the note  beneath r.223  of the  Rules. In our judgment,  the   expression  ’educated  employed  youth  has definite legal  connotation. It  denotes a class of citizens who  after   completing  their   education  are  faced  with unemployment R.223(2)  read with the note embodies a rule of preference. The  question of  grant of  preference under the note beneath  r.223(2) can  only arise when other conditions as regards  suitability of  the  rival  tenderers  is  equal Besides, the  construction placed  by the  High Court on the expression  ’educated   unemployed  youth’   is   manifestly erroneous. By  no stretch of imagination can a student still under going  his studies  in the  university be  regarded as having completed  his education or being ’unemployed’ youth. When a  person is  still pursuing his course of studies in a university, we  fail to see any basis for treating him as an ’educated unemployed  youth’. The judgment of the High Court directing the  issue of a licence to respondents Nos.1 and 2 being based  on the rule of preference contained in the note beneath r.223 of the Rules cannot therefore be supported.      The judgment  of the  High Court  also suffers  from  a serious infirmity.  As already  stated, instead of remitting the matter  to the Board of Revenue, the High Court issued a mandamus directing  the Deputy  Commissioner to make a grant of the  licence to  respondents Nos.1 and 2. While doing so, the High  Court made  a direction  that the grant of licence would be  subject to the result of the inquiry as to whether respondent No.1  Parag Saikia  was a benamidar and therefore not entitled  to such  grant. Moreover,  the High Court made the grant  subject to  the result of the writ petition filed by the  interveners Daya  Ram Borah  and Prabin  Kumer Borah which was still pending before it against the earlier order, of the  Board dated February 11, 1982. We fail to appreciate the making  of a  grant in favour of respondents No. 1 and 2 subject  to   the  result  of  the  inquiry  as  to  whether respondent No.1  Parag Saikia  was a mere benamidar. If that were to  be so,  it would  affect the  validity of the grant itself. Further,  the procedure adopted by the High Court in separately  dealing   with  the   writ  petition   filed  by respondents Nos.1  and 2  making a  grant of  the licence to them for  the country  spirit shop  in  question  while  the earlier writ  petition filed  by the  interveners was  still pending was not in consonance with law and rules of fairplay and justice. 838      Before parting  with the  case we must express our deep sense of  anguish that  there should have been this unseemly tussle between  the High  Court and  the Board  of  Revenue, particularly the  lack of  restraint in the language used by the Board  in its order dated December 3, 1982. We also feel that the  High Court  was not right in criticizing the Board of Revenue  in  such  strong  language.  The  use  of  harsh language does  not redound  to the  credit of  anyone. There must be restraint at all levels as otherwise there can be no rule of  law and  our entire  system  of  administration  of justice will fail.      For these  reasons, we set aside the judgment and order of the High Court, as a consequence whereof the order of the Board of Revenue dated December 3, 1982 will stand restored. We hope  and trust  that the  High Court  will  be  able  to dispose of  the writ  petition as expeditiously as possible. The writ  petition filed  by the  interveners shall  also be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11  

heard and disposed of by the High Court along with this writ petition according to law.      There shall be no order as to costs. H.S.K.                                      Appeal remanded. 839