http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 22  

PETITIONER: NAGENDRA NATH BORA & ANOTHER

       Vs.

RESPONDENT: THE COMMISSIONER OF HILLS DIVISIONAND APPEALS, ASSAM, AND OT

DATE OF JUDGMENT: 07/02/1958

BENCH: SINHA, BHUVNESHWAR P. BENCH: SINHA, BHUVNESHWAR P. BHAGWATI, NATWARLAL H. IMAM, SYED JAFFER KAPUR, J.L. GAJENDRAGADKAR, P.B.

CITATION:  1958 AIR  398            1958 SCR 1240

ACT: High  Court, Powers of-Writ of certiorari, if can be  issued to  quash  an  error of fact apparent on  the  face  of  the record-judicial Supervision, Scope of-Appellate Authority if and  when  acts  in  quasi-judicial  capacity-Test-Plea   of failure  of  natural  justice,  when  can  be   entertained- Constitution  of  India, Arts. 226,  227Eastern  Bengal  and Assam  Excise  Act, 1910 (E.  B. & Assam Act I of  1910)  as amended by Ad. 23 Of 1955, s. 9, Rule 343.

HEADNOTE: The High Court has no power under Art. 226 of the  Constitu- tion  to  issue a writ of certiorari in order  to  quash  an error of fact, even though it may be apparent on the face of the record.  It can do so only where the error is one of law and  that is apparent on the face of the record.  Any  error of law or fact which it can correct as a court of appeal  or revision  cannot be a ground for the exercise of  its  power under that Article. Hari Vishnu Kamath v. Syed Ahmed Ishaque and others,  [1955] I S.C.R. 1104, relied on. Queen v. James Bolton, (1841) (1) Queen’s Bench 66, King  v. Nat  Bell  Liquors,  Limited,  [1922] 2  A.C.  128,  Rex  v. Northumberland  Compensation Appeal Tribunal, (1951) 1  K.B. 711 and Rex v. Northumberland Compensation Appeal  Tribunal, (1952) 1 K.B. 338, referred to. The  jurisdiction  of the High Court under Art. 226  of  the Constitution  is  limited  to seeing that  the  judicial  or quasi-judicial tribunals or administrative bodies exercising quasi-judicial   powers,  do  not  exceed  their   statutory jurisdiction  and correctly administer the law laid down  by the statute under which they act.  So long as the  hierarchy of  officers and Appellate authorities created by a  statute function within their ambit, the manner in which they do  so can be no ground for interference. The  powers of judicial supervision of the High Court  under Art.  227  Of the Constitution are not  greater  than  those under  Art.  226  and must be limited  to  seeing  that  the tribunal functions within the limits of its authority.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 22  

Waryam  Singh  and another v. Amarnath and  another,  [1954] S.C.R. 565, referred to. Consequently, where the High Court in exercise of its powers under Arts. 226 and 227 Of the Constitution interfered with                             1241 certain orders made by the Excise Appellate Authority  under the Assam Excise Act as being in excess of its  jurisdiction on  the  ground that they were vitiated by  errors  of  fact apparent  on the face of the record, such  interference  was without jurisdiction and the orders passed by the High Court must be set aside. Held  further, that where an appellate Authority, as in  the instant  case, is constituted the highest authority  by  the statute for deciding as between the claims of rival parties, its  powers  cannot be circumscribed nor can it be  held  to have  acted in excess of its powers or without  jurisdiction on considerations foreign to the statute or the rules. Raman  and Raman Ltd. v. The State of Madyas, [1956]  S.C.R. 256, referred to. In  the  absence  of anything to  show  that  the  appellate Authority  had  contravened any rules  of  natural  justice, which  must be understood in the context of the’ rules  laid down  by the statute itself, it would be wrong to  say  that there  has been a failure of natural justice simply  because the  view it took of the matter might not be  acceptable  to another tribunal. New Prakask Transport Co. Ltd. v. New Suwarna Transport  Co. Ltd., [1957] S.C.R. 98, relied on. The  question whether an administrative authority  functions merely in an administrative or quasi-judicial capacity  must be determined on an examination of the statute and its rules under  which  it  acts, and there can be no  doubt  on  such examination  that the Authorities mentioned in s. 9  of  the Eastern  Bengal  and Assam Excise Act, 1910, as  amended  by Assam Act 23 Of 1953, are no mere administrative bodies  and their  orders  are,  therefore, amenable to  the  powers  of control  and supervision vested in the High Court  by  Arts. 226 and 227 Of the Constitution.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 668, 669, 670 and 672 of 1957. Appeal  by special leave from the judgment and  order  dated August 6, 1957, of the Assam High Court in Civil Rule No. 65 of 1957. A.   V. Viswanatha Sastri and Dipak Datta Choudhury, for the appellants  in  C.  As.   Nos.  668  and  669  of  1957  and respondent No. 2 in C.A. No. 670 of 1957. S.   M. Lahiri, Advocate-General for the State of Assam  and Naunit  Lai, for the appellants in C.A. No. 670 of 1957  and respondent No. 2 in C.A. No. 669 of 1957. 1958.   February 7. The following Judgment of the Court  was delivered by 1342 SINHA J.-These appeals by special leave are directed against the judgments and orders of the Assam High Court, exercising its  powers under Arts. 226 and 227 of the Constitution,  in respect  of orders passed by the Revenue  Authorities  under the  provisions of the Eastern Bengal and Assam Excise  Act, 1910 (E.  B. and Assam Act I of 1910) (hereinafter  referred to  as  the Act).  They raise certain  common  questions  of constitutional   law,  and  have,  therefore,   been   heard together, and will be disposed of by this Judgment.   Though

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 22  

there  are  certain common features in the  pattern  of  the proceedings  relating to the settlement of  certain  country spirit shops, when they passed through the hierarchy of  the authorities  under  the  Act, the facts  of  each  case  are different, and have to be stated separately in so far as  it is necessary to state them. (1) Civil Appeal No. 668 of 1957. The two appellants Nagendra Nath Bora and Ridananda Dutt are partners, the partnership having been formed in view of  the Government  notification dated November 30,  1956,  amending rule  232 of the Assam Excise Rules, to the effect that  the settlement of the country spirit shops which may be declared by the Government to be ’big shops’, shall be made with  two or more partners who shall not belong to the same family nor should be related to one another (vide correction slip at p. 106  of the Assam Excise Manual, 1946).  In accordance  with the rules framed under the Act, tenders were invited by  the Deputy  Commissioner  of  Sibsagar, for  the  settlement  of Jorhat  country spirit shop for the financial year  1957-58, in  December,  1956.   The  appellants  as  members  of  the partnership aforesaid, submitted a tender in the  prescribed form.  Respondents 3 and 4, Dharmeshwar Kalita and  Someswar Neog,  respectively, also were amongst the  tenderors.   The Commissioner of Hills Division and Appeals,, Assam, and  the Commissioner of Excise, Assam, are the first and the  second respondents  in this case It is necessary to state  at  this stage  that  in respect of the financial year  1956-57,  the shop in 1243 question  was ordered by the first respondent as the  Excise Appellate  Authority to be settled with the first  appellant Nagendra Nath as an individual, setting aside the orders  of the  Deputy Commissioner and the Excise  Commissioner.   The other competitors for the settlement of the said shop  being dissatisfied with the orders of the first respondent,  moved the  Assam  High, Court and challenged the validity  of  the settlement  made in the first appellant’s  favour.   Similar writ  cases  challenging orders of settlement by  the  first respondent  as  the  Excise Appellate  Authority,  had  been instituted  in the High Court.  All those cases  were  heard together, and the High Court, by its judgment dated May  22, 1956,  quashed  the orders passed by the  first  respondent, chiefly on the ground that the Appellate Authority had  been illegally  constituted.   The matter was brought by  way  of special   leave  to  this  Court,  and  was  heard  by   the Constitution Bench which, by its judgment dated January  31, 1957,  decided that the constitution of the Commissioner  of Hills  Division  and  Appeals  as  the  ultimate   appellate Authority  under  the Act, was  not  unconstitutional.   The judgment of this Court is reported in the case of The  State of Assam v. A. N. Kidwai (1).  It will be necessary, in  the course of this judgment, to make several references to  that decision  which, for the sake of brevity, we shall call  the ruling  of  this Court’.  The result of the ruling  of  this Court,  was that the determination by the Assam  High  Court that  the orders passed by the first respondent, were  void, was  set aside, and the settlement made by  that  Authority, consequently,  stood restored.  But in the meantime, as  the orders of the first respondent stood quashed as a result  of the judgment of the High Court, the direction of the  Excise Commissioner  that  the shop in question be  resettled,  was carried  out,  and the settlement was made  with  the  third respondent  aforesaid  as an individual.   He  continued  in possession  of  the shop until February 26, 1957,  on  which date, the first appellant was put in possession as a  result

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 22  

of the ruling (1) [1957] S.C.R. 295. 158 1244 of this Court.  Even so, the first appellant could  exercise his  rights  as a lessee of the shop only for a  few  months during the financial year ending March 31, 1957. For the financial year 1957-58, the Deputy Commissioner,  in consultation with the local Advisory Committee, settled  the shop in question with the third and the, fourth  respondents aforesaid.  The tender submitted by the appellants, was  not considered  by  the  licensing authority  on  the  erroneous ground that the orders passed by the first respondent as the ultimate  Revenue Authority in the matter of  settlement  of excise shops, had been rendered null and void as a result of the  decision  of the High Court, referred  to  above.   The appellants,  as  also others who were  competitors  for  the settlement  aforesaid,  preferred  appeals  to  the   Excise Commissioner who set aside the settlement made in favour  of the respondents 3 and 4, and ordered settlement of the  shop with  the  appellants.  The Excise  Commissioner  took  into consideration  the  fact that the order of the  High  Court, nullifying the proceedings before the first respondent,  had been set aside by the ruling of this Court.  The consequence of  the  order of this Court, was, as  the  Commissioner  of Excise pointed out, that a supposed disqualification of  the appellants as competent tenderers, stood vacated as a result of  the first respondent’s order.  The third and the  fourth respondents, as also other dissatisfied tenderers  preferred appeals  to  the first respondent against the order  of  the second  respondent  (the Excise  Commissioner).   The  first respondent  dismissed those appeals and confirmed the  order settling  the shop with the appellants, by his  order  dated June  10,  1957.  The respondents 3 and 4, then,  moved  the High Court under Arts. 226 and 227 of the Constitution,  for an  appropriate  writ for quashing the order passed  by  the first respondent.  The High Court, by its order dated August 6, 1957, quashed the aforesaid order of settlement in favour of  the appellants by the first respondent.  The High  Court further directed that all the tenders be reconsidered in the light  of  the observation made by it.  The main  ground  of decision in the                             1245 High  Court,  was that the Excise  Appellate  Authority  had acted in excess of its jurisdiction, and that its order  was vitiated by errors apparent on the face of the record.   The prayer  for  a certificate that the case was a fit  one  for appeal to this Court, having been refused by the High Court, the appellants obtained special leave to appeal. (11) Civil Appeal No. 669 of 1957. This  appeal  relates  to the  settlement  of  the  Murmuria country  spirit  shop in the district of Sibsagar,  for  the financial  year 1957-58.  The appellant Lakhiram Kalita  and the  first  respondent Bhanurani Pegu, amongst  others,  had submitted their tenders for the settlement of the shop.  The Deputy   Commissioner,   after   consulting   the   Advisory Committee,  settled  the  shop  with  the  first  respondent aforesaid.   The  appeals filed by the appellant  and  other disappointed   tenderers,  were  dismissed  by  the   Excise Commissioner by his order dated March 25, 1957.  Against the said  order, the appellant and another party  filed  further appeals  to the Commissioner of Hills Division and  Appeals, who,  by  his  order  dated May  30,  1957,  set  aside  the settlement  in favour of the first respondent,  and  ordered

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 22  

settlement with the appellant.  In pursuance of that  order, the  appellant took possession of the shop with effect  from June 5, 1957.  The first respondent’s application for review of  the order aforesaid, stood dismissed on June  11,  1957. Against  the aforesaid orders of the Commissioner  of  Hills Division  and Appeals, the first respondent moved  the  High Court  under  Arts. 226 and 227 of the Constitution,  for  a proper  writ for quashing them.  On June 17, 1957, the  writ petition  was  heard ex parte, and the High Court  issued  a rule  to show cause why a writ as prayed for, should not  be issued.   The rule was made returnable within  three  weeks. The High Court also made the further order in these terms:- "Meanwhile, the status quo ante will be maintained." This  last order was misinterpreted by the first  respondent and his advisers as entitling them to be put in 1246 possession  of  the shop, and it is stated  that  the  first respondent  threatened  the appellant to oust him  from  the shop  on  the basis of the order of the  High  Court  quoted above.    The   appellant  moved  the  High  Court   for   a clarification  of  its  order  aforesaid.   The  High  Court naturally  observed that by I maintaining status quo  ante’, the  High Court meant that whoever was in possession of  the shop  on  June 17, 1957, will continue to be  in  possession during  the  pendency of the case in the High  Court.   But, curiously  enough, the Deputy Commissioner, by an  ex  parte order, on June 21, 1957, directed that the first  respondent be  put in charge of the shop forthwith, and the  order  was carried out.  When the Deputy Commissioner was approached by the  appellant to restore him to possession in view  of  the observation  of  the High Court, he asked the  appellant  to obtain  further order from the High Court.  Thereafter,  the appellant  again  moved  the High Court on  June  28,  1957, stating all the facts leading to his wrongful dispossession, and  seeking relief in the High Court.  No order was  passed on  that petition.  Ultimatey, the High Court, by its  order dated July 31, 1957, set aside the order of the Commissioner of Hills Division and Appeals.  The appellant’s prayer for a certificate  that the case was a fit one for appeal to  this Court, having been refused by the High Court, he moved  this Court and obtained special leave to appeal. (III) Civil Appeal No. 670 of 1957. This  appeal  is  on behalf of  the  Commissioner  of  Hills Division and Appeals, Assam, against the judgment and  order of the High Court relating to the Murmuria shop which is the subject-matter  of Civil Appeal No. 669 referred to  in  the previous paragraph.  The first respondent to this appeal  is Bhanuram  Pegu  who is also the first  respondent  in  Civil Appeal  No. 669 of 1957.  The second respondent is  Lakhiram Kalita who is the appellant in Civil Appeal No. 669 of 1957. Both  these  respondents,  as  already  indicated,  are  the competing tenderers for the shop in question.  The facts  of this case have already been stated in relation 1247 to  Civil  Appeal  No. 669 of 1957.  This  appeal  has  been brought with a view to getting the legal position  clarified in view of the frequent appeals made to the appellant in the matter of settlement of excise shops. (IV) Civil Appeal No. 672 of 1957. This  appeal relates to the Tinsukia country spirit shop  in the  district of Lakhimpur.  The appellants,  Rafiulla  Khan and  Mahibuddin  Ahmad,  are  partners,  and  as  such,  are interested  in the settlement of the shop for the  financial year  1957-58.  This shop had been jointly settled with  the first  appellant and his father for a number of years.   For

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 22  

the year 1956-57 also, the lease had been granted to them by the   Deputy  Commissioner,  after  consultation  with   the Advisory  Committee.   A number  of  unsuccessful  tenderers filed  appeals before the Commissioner of Excise  questining the  settlement with the first appellant and his  father  in respect  of the year 1956-57.  The Excise  Commissioner  set aside the settlement, and ordered a resettlement.  The first appellant  and his father filed an appeal before the  Excise Appellate  Authority, against the order of the  Commissioner of Excise.  The Appellate Authority allowed the appeal,  and set  aside  the orders of the Commissioner  and  the  Deputy Commissioner.   One Rafiqul Hussain, one of the  competitors for  the shop, filed a writ petition before the  High  Court under  Arts.  226 and 227 of the  Constitution.   This  writ application,  along  with other  similar  applications,  was heard and decided by the High Court, as afore. said, by  its judgment  dated May 23, 1956.  Against the judgment  of  the High  Court, the first appellant and his father appealed  to this  Court  by  special leave, with  the  result  indicated above.   During the pendency of the appeal in this Court  in the   absence  of  a  stay  order,  the  direction  of   the Commissioner  for  a  resettlement, was  carried  out.   The Deputy  Commissioner,  with  the  unanimous  advice  of  the Advisory Committee settled the shop with the first appellant on  July  25, 1956.  The first respondent  and  some  others preferred appeals before the Commissioner of Excise, against the order aforesaid of the Deputy Commissioner.  As the 1248 special  leave  appeals to this Court were pending  at  that time,  the Excise Commissioner, under a  misapprehension  of the effect of this Court’s order refusing interim stay,  set aside  the  Deputy Commissioner’s order,  and  directed  the settlement  to be made with the first respondent.  As  there was no Excise Appellate Authority functioning at the time as a  result  of the decision, aforesaid, of  the  High  Court, declaring the constitution of such an Authority to be  void, the first appellant moved the High Court under Arts. 226 and 227 of the Constitution, on the ground that the order of the Excise Commissioner was vitiated by an error apparent on the face  of  the record in so far as he had  misunderstood  the order of the Supreme Court passed on the stay petition.  The High Court admitted the application but rejected the  prayer for  maintenance of status quo in the sense that  the  first appellant’s possession be maintained.  On the stay  petition being rejected by the High Court, the first respondent  took possession of the shop from the first appellant as a  result of the Excise Commissioner’s order in his favour.  The  High Court ultimately dismissed the writ application by its order dated  December 6, 1.956. The appeal filed by the  appellant and his father, already pending in this Court, was heard and determined  as  aforesaid,  in January,  1957.   This  Court reversed  the decision of the High Court, and  restored  the status  of the Excise Appellate Authority.  As a  result  of the ruling of this Court, the Excise Appellate Authority, by its  order  dated February 25, 1957,  directed  delivery  of possession  back  to  the first appellant  and  his  father, holding that the order of resettlement and the resettlement, itself,  in  pursuance of that order, were  all  wiped  out. Against the said order, the first respondent moved the  High Court  under  Arts.  226 and 227  of  the  Constitution  for quashing the order for delivery of possession, on the ground of want of jurisdiction, and for ad interim stay.  The  High Court issued a rule and passed an order for interim stay  on February 26, 1957.  The High Court made the rule absolute by its  order  dated March 26, 1957, taking the view  that  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 22  

attention of this Court had not been drawn to the interim 1249 settlement  of the shop in the absence of an order of  stay. It appears further that during the pendency of the appeal in this Court, fresh settlement for the financial year 1957-58, took  place  towards the end of 1956, and the  beginning  of 1957.  The Tinsukia shop -was settled with respondents I and 2 though the appellants also had jointly submitted a  tender for  the same.  The appellants and other  parties  preferred appeals  against  the said order of settlement made  by  the Deputy Commissioner.  The Excise Commissioner set aside  the settlement   by  the  Deputy  Commissioner,   and   directed settlement  in favour of the appellants by his  order  dated April 16, 1957.  Against that order, respondents I and 2 and others   preferred  appeals  before  the  Excise   Appellate Authority who, by an order dated June 3, 1957, dismissed the appeals.  Accordingly, the appellants were given  possession of the shop on June 7, 1957.  The respondents I and 2  again moved  the High Court for quashing the order of  the  Excise Appellate   Authority,   affirming  that   of   the   Excise Commissioner,  and  also  prayed for the  status  quo  being maintained.   The  High  Court  admitted  the  petition  and ordered  " meanwhile, status quo ante be  maintained."  This took place on June 10, 1957.  In pursuance of the  aforesaid order of the High Court, the appellants were dispossessed of the  shop even though they had been put in  possession  only three   days   earlier.   This  was  done  on   a   complete misapprehension of the true effect of the order of the  High Court  maintaining status quo ante.  If the High  Court  had passed  its  order in a less sophisticated and  more  easily understood  language in that part of the  country,  perhaps, the party in possession, would not have been dispossessed of the  shop  settled with it.  The appellants moved  the  High Court against the Commissioner’s order directing  possession to  be  given  to the respondents 1 and 2.  The  High  Court issued a rule but refused to grant stay of the operation  of the  order  directing possession to be  given.   During  the final  hearing  of  the  rule before  the  High  Court,  the appellants  again  moved  a petition on July  5,  1957,  for vacating the 1250 order of possession which was based on a misapprehension  of the order of the High Court maintaining status quo ante, but apparently,  no  order  was passed  because  possession  had already  been given to the respondents I and 2.  During  the hearing  of  the  rule by the  High  Court,  an  unfortunate incident   occurred,   for  which  the   appellants   cannot altogether  be absolved of some responsibility, as a  result of which, one of the learned judges constituting the  Bench, namely, Deka J. expressed his unwillingness to proceed  with the hearing of the case.  The hearing had, therefore, to  be adjourned  on  July  15, 1957, until a new  Bench  could  be constituted.   The  appellants  renewed  their   application already  made  on  July 5, as  aforesaid,  for  undoing  the unintended  effect of the order of the High Court, that  the status quo ante was to continue.  But on July 30, the  Chief Justice directed that the matter be placed before a Division Bench.   As  there  was  no third judge  at  the  time,  the disposal of the case, naturally had to stand over until  the third  judge  was  available.  The  matter  of  delivery  of possession was again mentioned before the Division Bench  of the  Chief Justice and Deka J. The High Court  rejected  the application  on grounds which cannot bear a close  scrutiny. The   petitioners  also  approached  the  Excise   Appellate Authority,  but it refused to reconsider the matter  as  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 22  

case  was  then  pending before the High  Court.   Again  on August  14, 1957, a fresh application was made to  the  High Court, along with a copy of the orders passed by the  Excise Appellate Authority and the Deputy Commissioner,  Lakhimpur, giving  delivery of possession to respondents 1 and 2.  But, this  time,  Deka  J.  refused  to  hear  the  matter,   and naturally,  the  Chief  Justice directed the  matter  to  be placed  before him, sitting singly. on August 19, 1957,  the matter  was placed before the Chief Justice sitting  singly, and he directed a rule to issue on the opposite party  cited before  that Court, to show cause.  Apparently, the  learned Chief Justice treated the matter as a new case and not as an off-shoot of the case already pending before the High Court. The High Court closed for the long vacation on September  2, and was to reopen on                             1251 November  3, 1957.  The vacancy of the third judge  had  not been filled till then, and as the appellants felt that  they had  been wrongfully deprived of their right to  hold  their shop,  as  a result of an erroneous  interpretation  of  the order  of the High Court, passed on June 10,  as  aforesaid, and  as there was no prospect of the case being disposed  of quickly,  the  appellants  moved  this  Court  and  obtained special leave to appeal. As is evident from the statement of facts in connection with each  one  of the appeals, set out above, these  cases  have followed  a  common  pattern.   They  come  from  the  ’non- prohibited  areas  in  the  State of  Assam  where  sale  of ’country  spirit’  is regulated by licences  issued  by  the authorities under the provisions of the Act.  Settlement  of shops for the sale of such liquor is made for one year April I to March 31.  According to the present practice  contained in   Executive   lnstructions,  intending   candidates   for licences, have to submit tenders to the Deputy  Commissioner for  the Sadar Division and to Sub-Divisional  officers  for Sub-Divisions,  in  accordance  with the  terms  of  notices published  for  the purpose.  Such tenders  are  treated  as strictly  confidential.   Settlement is made by  the  Deputy Commissioner or the Sub-Divisional Officer concerned, as the case  may  be, in consultation with  an  Advisory  Committee consisting  of 5 local members or less.  The selection of  a particular   tenderer   is  more  or  less   a   matter   of administrative  discretion  with  the  officer  making   the settlement.   Under  the  Act, an appeal from  an  order  of settlement  made by a Deputy Commissioner or  Sub-Divisional officer,  lies  to the Commissioner of Excise, and  from  an order of the Commissioner of Excise to the Excise  Appellate Authority  whose decision becomes final.  Section 9  of  the Act,  dealing  with  appeal and revision,  has  undergone  a series of amendments, and the section as it has emerged  out of the latest amendment by the Amending Act-The Assam Act 23 of  1955-which received the assent of the Governor of  Assam on December 22, 1955, and was published in the Assam Gazette dated 159 1252 December 28, 1955, is in these terms: "9. (1) Orders passed under this Act or under any rule  made hereunder  shall  be  appealable as follows  in  the  manner prescribed by such rules as the State Government may make in this behalf- (a)  to  the  Excise Commissioner, any order passed  by  the District  Collector or a Collector other than  the  District Collector, (b)  to  the  Appellate  Authority appointed  by  the  State

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 22  

Government  for the purpose, any order passed by the  Excise Commissioner. (2)  In  cases  not provided for by clauses (a) and  (b)  of sub-section  (1), orders passed under this Act or under  any rules made hereunder shall be appealable to such authorities as the State Government may prescribe. (3)  The Appellate Authority, the Excise Commissioner or the District Collector may call for the proceedings held by  any officer or person subordinate to it or him or subject to its or his control and pass such orders thereon as it or he  may think fit." Rules  339,  340, 341 and 345 of the  Assam  Excise  Manual, have,  thus,  become  obsolete and have been  deleted  as  a result  of  the latest amendment aforesaid.   The  power  of hearing appeals and revisions under the Act, has been vested successively  in the Board, the Assam Revenue Tribunal,  the Commissioner for Hills Division and Appeals; and ultimately, under the amended section, in the Appellate Authority.   The history  of the legislation relating to the highest  Revenue Authority under the Act, has been traced in the judgment  of this Court in the State of Assam v. A.N. Kidwai (supra), and need not be repeated here. It is convenient, first, to deal with the general questions of public importance raised on behalf of the appellant    in Civil Appeal No. 670 of 1957.  At the forefront   of     the arguments advanced on behalf of the Appellate Authority, was the  plea  that the several authorities  already  indicated, concerned with the settlement of excise shops like those  in question in these appeals, are merely administrative bodies, and, 1253 therefore, their orders whether passed in the first instance or   on  appeal,  should  not  be  amenable  to   the   writ jurisdiction  or supervisory jurisdiction of the High  Court under Arts. 226 and 227 of the Constitution.  If the  matter had  rested only with the provisions of the Act, apart  from the rules made under s. 36 of the Act, much could have  been said  in support’ of this contention.  As observed  by  this Court  in  the case of Cooverjee B. Bharucha v.  The  Excise Commissioner and the Chief Commissioner, Ajmer and others(1) there is no inherent right in a citizen to sell liquor.   It has  further been observed by this Court in the recent  case of the State of Assam v. A. N. Kidwai, (supra), at page  301 as follows: " A perusal of the Act and rules will make it clear that  DO person  has any absolute right to sell liquor and  that  the purpose of the Act and the rules is to control and  restrict the  consumption of intoxicating liquors, such  control  and restriction  being obviously necessary for the  preservation of public health and morals, and to raise revenue." It  is true that no one has an inherent right to  settlement of  liquor  shops,  but when the State,  by  public  notice, invites candidates for settlement to make their tenders, and in pursuance of such a notice, a number of persons make such tenders each one makes a claim for himself in opposition  to the  claims  of  the  others,  and  the  public  authorities concerned  with the settlement, have to choose from  amongst them.   If  the choice had rested in the hands of  only  one authority  like  the District Collector  on  his  subjective satisfaction  as  to the fitness of a  particular  candidate without his orders being amenable to an appeal or appeals or revision, the position may have been different.  But s. 9 of the  Act has laid down a regular hierarchy  of  authorities, one  above the other, with the right of hearing  appeals  or revisions.  Though the Act and the rules do not, in  express

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 22  

terms,  require reasoned orders to be recorded, yet, in  the context  of  the  subject matter of the  rules,  it  becomes necessary for the (I)  [1954] S. C. R. 873, 880. 1254 several  authorities  to  pass what are  called  I  speaking orders’.   Where  there is a right vested  in  an  authority created  by statute, be it administrative or  quasijudicial, to  hear appeals and revisions, it becomes its duty to  hear judicially,  that  is  to  say,  in  an  objective   manner, impartially  and after giving reasonable opportunity to  the parties concerned in the dispute, to place their  respective cases  before it.  In this connection, the  observations  of Lord  Haldane at p. 132, and of Lord Moulton at p.  150,  in Local  Government  Board v. Arlidge (1),  to  the  following effect are very apposite: appeal is imposed, those whose duty it is to decide it  must act  judicially.  They must deal with the question  referred to  them  without bias, and they must give to  each  of  the parties  the opportunity of adequately presenting  the  case made.   The decision must be come to in the spirit and  with the  sense of responsibility of a tribunal whose duty it  is to  mete  out  justice.  But it does  not  follow  that  the procedure of every such tribunal must be the same." Lord   Moulton:  "  In  the  present  case,   however,   the Legislature  has provided an appeal, but it is an appeal  to an administrative department of State and not to a  judicial body.   It is said, truthfully, that on such an  appeal  the Local Government Board must act judicially, but this, in  my opinion, only means that it must preserve a judicial  temper and  perform  its  duties  conscientiously,  with  a  proper feeling of responsibility, in view of the fact that its acts affect  the property and rights of individuals.   Parliament has  wisely  laid down certain rules to be observed  in  the performance  of  its functions in these matters,  and  those rules must be observed because they are imposed by  statute, and  for  no  other reason, and whether they  give  much  or little  opportunity  for  what I  may  call  quasi-litigious procedure  depends  solely on what  Parliament  has  thought right.  These rules are beyond the criticism of the  Courts, and it is not their business to add to or (1)  [1915] A.C. 120. 1255 take  away  from  them, or even to discuss  whether  in  the opinion  of  the individual members of the  Court  they  are adequate or not." The   legal  position  has  been  very  succinctly  put   in Halsbury’s Laws of England(1), as follows:- "Moreover an administrative body, whose decision is actuated in  whole or in part by questions of policy, may be under  a duty  to  act judicially in the course of arriving  at  that decision.  Thus, if in order to arrive at the decision,  the body concerned had to consider proposals and objections  and consider  evidence,  if  at some stage  of  the  proceedings leading up to the decision there was something in the nature of a lis before it, then in the course of such consideration and  at  that stage the body would be under a  duty  to  act judicially.   If, on the other hand, an administrative  body in  arriving at its decision has before it at no  stage  any form of lis and throughout has to consider the question from the  point  of view of policy and expediency, it  cannot  be said that it is under a duty at any time to act  judicially. Even  where  the body is at some stage  of  the  proceedings leading  up to the decision under a duty to act  judicially, the supervisory jurisdiction of the Court does not extend to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 22  

considering the sufficiency of the grounds for, or otherwise challenging, the decision itself." The  provisions  of the Act are intended  to  safeguard  the interest  of the State on the one band, by stopping,  or  at any  rate, checking illicit distillation, and on  the  other band,  by raising the maximum revenue consistently with  the observance  of  the rules of  temperance.   The  authorities under  the Act, with Sub-divisional Officers at  the  bottom and  the Appellate Authority at the apex of the  ’hierarchy, are charged with those duties.  The rules under the Act  and the executive instructions which have no statutory force but which are meant for the guidance of the officers  concerned, enjoin  upon those officers, the duty of seeing to  it  that shops  are settled with persons of character and  experience in the line, subject to certain reservations in (1)  Vol.  II. 3rd Edn., PP. 56-57. 1256 favour  of  tribal population.  Except  those  general  con- siderations, there are no specific rules governing the grant of  leases or licences in respect of liquor shops, and in  a certain contingency, even drawing of lots, is provided  for, vide  Executive  Instructions 110 at p. 174 of  the  Manual. The  words of sub-s. (3) of s. 9 as amended, set out  above, vest  complete  discretion in the Appellate  Authority,  the Excise Commissioner or the District Collector, to ’pass such orders  thereon as it or he may think fit.’ The sections  of the  Act  do  not make any reference  to  the  recording  of evidence or hearing of parties or even recording reasons for orders  passed  by the authorities aforesaid.  But  we  have been  informed at the bar that as a matter of practice,  the authorities under the Act, hear counsel for the parties, and give  reasoned  judgments,  so  as  to  enable  the   higher authorities  to know why a particular choice has been  made. That is also apparent from the several orders passed by them in course of these few cases that are before us. But  when  we  come to the rules  relating  to  appeals  and revisions,  we  find that the widest scope for going  up  in appeal  or revision, has been given to  persons  interested, because  r.  344  only lays down that no  appeal  shall  lie against  the orders of composition, thus, leaving all  other kinds  of  orders  open to appeal  or  revision.   Rule  343 provides that every memorandum of appeal shall be  presented within  one  month  from  the date  of  the  order  appealed against,  subject  to  the requisite time  for  obtaining  a certified  copy  of  the order  being  excluded.   Rule  344 requires  the  memorandum of appeal to be accompanied  by  a certified   copy  of  the  order  appealed   against.    The memorandum  of  appeal has to be stamped  with  a  requisite court-fee  stamp.   Rule  343 was  further  amended  by  the Notification  dated March 14, 1957, by adding the  following proviso and explanations to that rule: "  Provided further that the competent  Appellate  Authority shall  have  the  power  to  admit  the  appeal  after   the prescribed period of limitation when the appellant satisfies the Appellate Authority that he had sufficient cause for not preferring the appeal 1257 within such period. Explanation (1).  The fact that the appellant was misled  by any  order, practice or judgment of any Appellate  Authority in  ascertaining  or  computing  the  prescribed  period  of limitation  may  be sufficient cause within the  meaning  of this Rule. Explanation (2).  The fact that the Appellate Authority  was unable to function for any period by reason of any  judicial

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 22  

pronouncement  shall be sufficient cause within the  meaning of this Rule. The amendment shall be deemed to have been made on 23rd May, 1956,  and shall have retrospective effect since that  date. " These rules, read along with the recent amendments, set  out above,  approximate  the  procedure to be  followed  by  the Appellate Authorities, to the regular procedure observed  by courts of justice in entertaining appeals.  As would  appear from  the  ruling  of  this  Court  at  p.  304,  where  the provisions   and  effect  of  the  Assam  Revenue   Tribunal (Transfer of Powers) Act, 1948, (Assam IV of 1948) have been set  out,  the  ultimate jurisdiction to  hear  appeals  and revisions, was divided between the Assam High Court and  the Authority  referred to in s. 3(3) of that Act.  Appeals  and revisions arising out of cases covered by the provisions  of the  enactments specified in Schedule ’A’ to that Act,  were to  lie in and to be heard by the Assam High Court, and  the jurisdiction  to entertain appeals and revisions in  matters arising under the provisions of the enactments specified  in Schedule ’B’ to that Act, was vested in the Authority to  be set  up under s. 3(3), that is to say, for the  purposes  of the   present  appeals  before  us,  the  Excise   Appellate Authority.   Thus, the Excise Appellate Authority,  for  the purposes of cases arising under the Act, was vested with the power  of the highest appellate Tribunal, even as  the  High Court  was,  in respect of the other group of  cases.   That does   not  necessarily  mean  that  the  Excise   Appellate Authority  was a Tribunal of co-ordinate  jurisdiction  with the  High Court, or that that Authority was not amenable  to the supervisory jurisdiction of the 1258 High Court under Arts. 226 and 227 of the Constitution.  But the juxtaposition of the two parallel highest Tribunals, one in  respect of predominantly civil cases, and the other,  in respect  of predominantly revenue cases (without  attempting any  clear  cut line of demarcation), would  show  that  the Excise   Appellate   Authority   was   not   altogether   an administrative body which had no judicial or  quasi-judicial functions. Neither the Act nor the rules made thereunder, indicate  the grounds on which the first Appellate Authority, namely,  the Excise Commissioner, or the second Appellate Authority  (the Excise  Appellate  Authority), has to exercise  his  or  its appellate or revisional powers.  There is no indication that they   make   any  distinction  between   the   grounds   of interference on appeal and in revision.  That being so,  the powers of the Appellate Authorities in the matter of settle- ment,  would be co-extensive with the powers of the  primary authority,  namely,  the  District  Collector  or  the  Sub- Divisional   Officer.    See   in   this   connection,   the observations  of  the Federal Court  in  Lachmeshwar  Prasad Shukul  and others v. Keshwar Lal Chaudhuri and others  (1), and  of  this  Court in Ebrahim  Aboobakar  and  another  v. Custodian  -General of Evacuee Property(2).  In  the  latter case,  this Court, dealing with the powers of  the  Tribunal (Custodian-General of the Evacuee Property), under s. 24  of Ordinance No. 27 of 1949, observed: " Like all courts of appeal exercising general  jurisdiction in  civil  cases,  the respondent has  been  constituted  an appellate  court  in words of the widest amplitude  and  the legislature  has not limited his jurisdiction  by  providing that  such  exercise  will depend on the  existence  of  any particular state of facts. Thus, on a review of the provisions of the Act and the rules

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 22  

framed  thereunder, it cannot be said that  the  authorities mentioned  in  s. 9 of the Act, pass  purely  administrative orders which are beyond the ambit of the High Court’s  power of   supervision   and   control.    Whether   or   not   an administrative body or (1) [1940] F.C.R. 84, 102. (2) [1952] S.C.R. 696, 704. 1259 authority  functions as a purely administrative one or in  a quasi-judicial capacity, must be determined in each case, on an  examination  of  the relevant statute  and  the  rule,,; framed thereunder.  The first contention raised on behalf of the appellant must, therefore, be overruled. Now, turning to the merits of the High Court’s order, it was contended on behalf of the appellant that the High Court had misdirected  itself in holding that the Appellate  Authority had  exceeded its jurisdiction in passing the order it  did. There is no doubt that if the Appellate Authority whose duty it  is  to  determine  questions  affecting  the  right   to settlement of a liquor shop, in a judicial or quasi-judicial manner, acts in excess of its authority vested by law,  that is  to say, the Act and the rules thereunder, its  order  is subject to the controlling authority of the High Court.  The question, therefore, is whether the High Court was right  in holding that the Appellate Authority had exceeded its  legal power.  In this connection, it is best to reproduce, in  the words of the High Court itself, what it conceived to be  the limits of the appellate jurisdiction: "In  other words, it is not for the Appellate  Authority  to make  the choice, since the choice has already been made  by the  officers below; and it is not only where the choice  is perverse  or  illegal and not in accordance with  the  Rules that  the Appellate Authority can interfere with  the  order and make its own selected (sic.) out of the persons offering tenders.   If the Appellate bodies chose to act  differently and consider themselves free to make their own choice of the person   to  be  offered  settlement  irrespective  of   the recommendations  of the Deputy Commissioner or  the  Officer conducting  the  settlement, the Appellate  bodies  will  be obviously  exceeding  the jurisdiction, which  they  possess under  the law or going beyond the scope of their  authority as contemplated by the Rules.  " In  our  opinion,  in so circumscribing the  powers  of  the Appellate Authority, the High Court has erred.  See in  this connection, the decision of this Court in Raman 160 1260 and  Raman  Ltd. v. The State of Madras(1).  In  that  case, this  Court dealt with the powers of the  State  Government, which had been vested with the final authority in the matter of grant of stage carriage permits.  This Court held that as the   State  Government  had  been  constituted  the   final authority  under  the  "Motor Vehicles  Act,  to  decide  as between the rival claimants for permits, its decision  could not  be interfered with under Art. 226 of the  Constitution, merely  because  the Government’s view may have  been  erro- neous.   In  the instant cases, the Appellate  Authority  is contemplated by s. 9 of the Act, to be the highest authority for  deciding  questions of settlement of liquor  shops,  as between  rival  claimants.   The appeal  or  revision  being undefined and unlimited in its scope, the highest  authority under the Act, could not be deprived of the plenitude of its powers  by introducing considerations which are  not  within the Act or the rules.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 22  

It  is true that the Appellate Authority should not  lightly set aside the selection made by the primary Authority,  that is to say, a selection made by a Subdivisions Officer or  by a District Collector, should be given due weight in view  of the  fact  that they have much greater opportunity  to  know local   conditions  and  local  business  people  than   the Appellate Authority, even as the appeal courts are  enjoined not  to interfere lightly with findings of fact recorded  by the  original  courts which had the  opportunity  of  seeing witnesses  depose  in  court,  and  their  demeanour   while deposing  in  court.   But it is not correct  to  hold  that because the Appellate Authority, in the opinion of the  High Court, has not observed that caution, the choice made by it, is in excess of its power or without jurisdiction. The  next  ground of attack against the order  of  the  High Court,  under appeal, was that the High Court had  erred  in coming  to the conclusion that there had been a  failure  of natural  justice.   In this connection, the High  Court  has made  reference  to the several affidavits filed  on  either side, and the order in which they (1)  [1956] S.C.R. 256. 1261 had  been  filed, and the use made of  those  affidavits  or counter-affidavits.  As already indicated, the rules make no provisions   for   the  reception  of   evidence   oral   or documentary,  or the hearing of oral arguments, or even  for the issue of notice of the hearing to the parties concerned. The  entire  proceedings are marked by a  complete  lack  of formality.  The several authorities have been left to  their own   resources  to  make  the  best  selection.   In   this connection,  reference  may be made to the  observations  of this Court in the case of New Prakash Transport Co., Ltd. v. New  Suwarna  Transport Co., Ltd. (1).  In that  case,  this Court  has laid down that the rules of natural justice  vary with  the varying constitutions of statutory bodies and  the rules prescribed by the Act under which they function ;  and the question whether or not any rules of natural justice had been  contravened,  should  be decided not  under  any  pre- conceived  notions, but in the light of the statutory  rules and  provisions.   In the instant case, no such  rules  have been brought to our notice, which could be said to have been contravened  by the Appellate Authority.  Simply because  it viewed  a  case  in  a particular light  which  may  not  be acceptable to another independent tribunal, is no ground for interference  either  under  Art. 226 or  Art.  227  of  the Constitution. It remains to consider the last contention raised on  behalf of the appellants in these cases, namely, whether there  has been  any error apparent on the face of the record,  in  the order  of the Appellate Authority, which would  attract  the supervisory  jurisdiction  of  the  High  Court.   In   this connection, the following observations of the High Court are relevant: "  But  the most glaring error on face of the order  of  the Appellate  Authority is that it does not even refer  to  the report  of  the  Deputy Commissioner  on  which  the  Excise Commissioner had so strongly relied.  In my opinion, it  was under  the  Rules obligatory on the Appellate  Authority  to consider that report before disposing of the appeal, and  in failing to do so, the officer (1)  [1957] S.C.R. 98. 1262 acted  arbitrarily  and  in  excess  of  his  powers  as  an Appellate Authority." It may be that durinly the prolonged hearing of these  cases

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 22  

before  the  High  Court where, counsel  for  the  different parties  placed  their respective view-points  after  making copious  references to the documents, the ’,-High Court  was greatly  impressed that the order of settlement in one  case (Murmuria  shop),  made  by  the  Deputy  Commissioner,   as confirmed by the Excise Commissioner, was the right one  and that  the  choice made by the Appellate  Authority  did  not commend  itself to the High Court.  It may further  be  that the  conclusions  of  fact of the High Court  were  more  in consonance  with the entire record of the  proceedings,  and that the choice made by the ultimate Revenue Authority,  was wrong.   But,  under the law as it stands,  the  High  Court exceeded  its  powers in pronouncing upon the  merits  of  a controversy which the Legislature has left to the discretion of the Appellate Authority.  But is that a mistake  apparent on  the face of the record, as understood in the context  of Art. 226 of the Constitution ? That leads us to a consideration of the nature of the  error which can be said to be an error apparent on the face of the record  which  would be one of the grounds  to  attract  the supervisory jurisdiction of the High Court under Art. 226 of the Constitution.  The ancient writ of certiorari which  now in  England  is known as the order of certiorari,  could  be issued  on  very limited grounds.  These grounds  have  been discussed by this Court in the cases of: Parry  &  Co. v. Commercial Employee’s  Association,  Madras (1), Veerappa Pillai v.  Raman and Raman Ltd., and others (2), Ibrahim Aboobaker v. Custodian General of Evacuee Property (3), T. C. Basappa v. T. Nagappa All these cases have been considered by this Court in (1) [1952] S.C.R. 519.       (2) [1952] S.C.R. 583. (3) [1952] S.C.R. 696.       (4) [1955] 1 S.C.R. 250. 1263 the  case  of Hari Vishnu Kamath v. Syed Ahmad  Ishaque  and others  (1).   Venkatarama Ayyar J., speaking for  the  full Court, laid down four propositions bearing on the  character and scope of the writ of certiorari as established upon  the authorities.   The third proposition out of those four,  may be stated in the words of that learned Judge, as follows: " The Court issuing a writ of certiorari acts in exercise of a   supervisory   and  not  appellate   jurisdiction.    One consequence  of  this  is that the  Court  will  not  review findings of fact reached by the inferior Court or  Tribunal, even if they be erroneous." While  considering the fourth proposition whether  the  writ can be issued in the case of a decision which was  erroneous in  law, after considering the recent Authorities, the  same learned  Judge, in the course of his judgment, at  p.  1123, has observed as follows: "  It  may  therefore be taken as settled  that  a  writ  of certiorari could be issued to correct an error of law.   But it is essential that it should be something more than a mere error: it must be one which must be manifest on the face  of the record." The  High  Court appears to have been under  the  impression that  the  expression  "error apparent on the  face  of  the record"  may  also be in respect of findings of  fact.   For example, in Civil Appeal No. 668 of 1957, relating to Jorhat shop, the High Court has observed as follows: "  The Appellate Authority further reinforced its  suspicion by  mentioning that Dharmeswar, his father and  brother  are summoned  in connection with some complaint, but that was  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 22  

matter  purely extraneous, ,to speak the least-and it  could have   found  that  the  complaint  was  filed   after   the settlement.   The complaint had no reference to any  offence of  smuggling or the like as has been conceded.  These  were errors ap. parent on the face of the record." Later,  in  the  course of the same judgment,  it  has  been observed as follows: " This is another instance where I find that the Excise Appellate Authority has misconceived its (1)  [1955] 1 S.C.R. 1104, 1121. 1264 powers as such and purported to decide the appeal either  on errors   of   record,   speculations   or   on    irrelevant considerations,  irrespective  of all that happened  in  the earlier  stages of the matter.  It starts with  an  apparent error  of  record when it says that in the judgment  of  the Excise  Commissioner it finds ’a clear admission  that  Shri Garela  Kalita,  father  of Shri  Dharmeswar  Kalita,  is  a suspected  smuggler.’ In fact, there was no such  admission. It  was held by the Commissioner on the contrary  that  ’the learned  Deputy  Commissioner and members  of  the  Advisory Committee thought that the major son who bears an  excellent character should not be punished for the alleged sin of  his father’." These  excerpts from the judgment of the High Court are  not exhaustive,  but only illustrative of the  observation  that the  High Court appears to have treated an error of fact  on the same footing as an error of law apparent on the face  of the  record.   The question, naturally,  arises  whether  an error of fact can be invoked in aid of the power of the High Court to quash an order of a subordinate court or  Tribunal. The  High Court would appear to have approximated it  to  an ’error  apparent on the face of the record’ as used in r.  1 of 0. 47 of the Civil Procedure Code, as one of the  grounds for  review of a judgment or order; but that is clearly  not the  correct  position.  Ordinarily, a mistake of law  in  a judgment  or an order of a court, would not be a ground  for review.  It is a mistake or an error of fact apparent on the face of the record, which may attract the power of review as contemplated  by r. I of 0. 47.  But is the power of a  High Court  under Art. 226 of the Constitution, to  interfere  on certiorari, attracted by such a mistake, and not the reverse of it, in the sense that it is only an error of law apparent on the face of the record, which can attract the supervisory jurisdiction of a High Court ? This  question,  so far as we know, has not been  raised  in this form in this Court in any one of the previous decisions bearing   on  the  scope  and  character  of  the  writ   of certiorari.   It  is, therefore, necessary to  examine  this question directly raised in this batch of appeals,                             1265 because,  in each case, the High Court has been  invited  to exercise  its  powers  under Art. 226, to issue  a  writ  of certiorari  on the specific ground that the orders  impugned before it, had been vitiated by errors apparent on the  face of the record-errors not of law but of fact. The ancient case of the Queen v. James Bolton(1), is treated as  a landmark on the question of the power to issue a  writ or  order of certiorari.  That was a case in which an  order of  justices for delivering up a house to  parish  officers, under  a statute, was called up on certiorari.  Lord  Denman C.  J.  while  discharging  the  rule,  made  the  following observations in the course of his judgment, which have  been treated as authoritative and good law even now: " The first of these is a point of much importance,  because

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 22  

of  very general application ; but the principle upon  which it  turns is very simple: the difficulty is always found  in applying  it.   The  case to be supposed  is  one  like  the present, in which the Legislature has trusted the  original, it may be (as here) the final, jurisdiction on the merits to the   magistrates  below;  in  which  this  Court   has   no jurisdiction  as  to  the merits  either  originally  or  on appeal.   All  that we can then do, when their  decision  is complained of, is to see that the case was one within  their jurisdiction, and that their proceedings on the face of them are  regular and according to law.  Even if  their  decision should upon the merits be unwise or unjust, on these grounds we cannot reverse it." While  dealing with the argument at the Bar, complaining  of the   unsoundness   of  the  conclusions  reached   by   the magistrates  and  the  hardships  to  be  caused  by   their erroneous  order, the Court made the following  observations which  are  very  apposite to the  facts  and  circumstances disclosed  in  the  instant appeals, and  which  all  courts entrusted with the duty of administering law, should bear in mind,  so that they may not be deflected from  the  straight path  of  enforcing  the law,  by  considerations  based  on hardship or on vague (1)  [1841]  (I)  Queen’s Bench p. 66, 72, 76;  113  English Reports I054,1057,1058. 1266 ideas of what is sometimes described as justice of the cause: "  Beyond this we cannot go.  The affidavits,  being  before us,  were  used OD the argument; and much was  said  of  the unreasonableness of the conclusion drawn by the magistrates, and of the hardship on the defendant if we would not  review it,  there being no appeal to the sessions.  We  forbear  to express  any  opinion on that which is not  before  us,  the -propriety of the conclusion drawn from the evidence by  the magistrates:   they  and  they  alone  were  the   competent authority  to draw it; and we must not constitute  ourselves into a Court of Appeal where the statute does not make us such, because it has constituted no other. It  is  of  much more importance to hold  the  rule  of  law straight  than, from a feeling of the supposed  hardship  of any  particular  decision,  to..  interpose  relief  at  the expense  -of introducing a precedent full  of  inconvenience and uncertainty in the decision of future cases" The case of Reg v. Bolton (supra) was approved and  followed by  the  Privy Council in the case of the King v. Nat  B  11 Liqutors, Limited (1).  In that case their Lordships of  the Judicial  Committee held that a conviction by  a  magistrate for   a  non-indictable  offence,  cannot  be   quashed   on certiorari  on the ground that the record showed that  there was  no  evidence  to support the conviction,  or  that  the magistrate  had  misdirected  himself  in  considering   the evidence.   It  was further laid down that  the  absence  of evidence  did not affect the jurisdiction of the  magistrate to  try the charge.  In the course of their judgment,  their Lord. ships further observed that the law laid down in Reg v.  Bolton  (supra) has never been seriously  questioned  in England, and that the same rules were Applicable to    other parts of the Commonwealth, except in so far as they may have been  modified  by  statute.  They also  observed  that  the decision in Reg v. Bolton (supra) undoubtedly is a  landmark in  the  history  of certiorari, for  it  summarises  in  an impeccable  form the principles of  its  application........ But latterly, the rule

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 22  

(1)  [1922] 2 A.C. 128.                             1267 laid  down  in Bolton’s case, appears to have  been  slurred over  in some decided cases, in England, which purported  to lay  down  that  a  writ or order  of  certiorari  could  be obtained  only if the order impugned disclosed an  error  of jurisdiction, that is to say, complete lack of  jurisdiction or  excess  of  jurisdiction  or  the  refusal  to  exercise jurisdiction,  and  not  to correct an error  of  law,  even though apparent on the face of the record.  The question was brought  to  a  head in the case of  Rex  v.  Northumberland Compensation  Appeal  Tribunal  (1).  It  arose  out  of  an application  for  an  order of  certiorari  for  quashing  a decision   reached   by   the   respondent    Northumberland Compensation Appeal Tribunal.  Lord Goddard C. J. began  his judgment  by observing that the point involved in  the  case was  "  of  the  very greatest  importance  "  which  had  " necessitated the examination of a large number of cases  and consideration of the principles which apply to the  doctrine of  certiorari ". He further observed that certiorari  is  a remedy of a very special character.  He, then, discussed the object  and scope of the writ of certiorari and the  history of the jurisdiction as exercised in the English courts.   He then  dealt  with  the contention directly  raised  for  the determination of the court that an order of certiorari,  can issue  only to remove a defect of jurisdiction and  that  it does  not extend to removing an order out of the way of  the parties on account of a mistake of law apparent on the  face of  the  record.   The court then  considered  the  relevant authorities, and came to the conclusion that it was wrong to hold that the ground of interference on certiorari, was only an  error  or excess of jurisdiction, and that  it  did  not extend to correction of an error of law apparent on the face of the record.  The Lord Chief Justice then pointed out that the  examination of the authorities bearing on the  exercise of  the power of certiorari, yielded the result that it  was open  to  the High Court to examine the record  and  to  see whether  or  not there was an error of law apparent  on  the face  of the record.  The Lord Chief Justice  concluded  his observations with these remarks:- (1) [1951] 1 K.B. 71 161 1268 "  The  tribunal  have told us what  they  have  taken  into account,  what  they have disregarded, and  the  contentions which  they accepted.  They have told us their view  of  the law, and we are of opinion that the construction which  they placed  on  this  very complicated set  of  regulations  was wrong. " This  decision was challenged, and on appeal, the  Court  of Appeal  dealt  with  this point in  Rex  v.  Northumberland, Compensation  Appeal  Tribunal(1).   The  Court  of   Appeal affirmed the proposition laid down by the High Court that an order for certiorari, can be granted and the decision of  an inferior court such as a statutory tribunal, quashed on  the ground  of  an  error of law apparent on  the  face  of  the record.   Singleton  L. J. in the course  of  his  judgment, observed that an error on the face of the proceedings, which in  that  case  was an error of law,  has  always  been  re. cognized as one of the grounds for the issue of an order  of certiorari.   Denning  L.  J. also, in  the  course  of  his judgment, examined the question whether the High Court could intervene  to correct the decision of a  statutory  tribunal which  is erroneous in point of law.  On an  examination  of the  authorities from ancient times, the Lord  Justice  made

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 22  

the following observations:- " Of recent years the scope of certiorari seems to have been somewhat forgotten.  It has been supposed to be confined  to the correction of excess of jurisdiction, and not to  extend to the correction of errors of law ; and several judges have said  as  much.   But the Lord Chief  Justice  has,  in  the present  case, restored certiorari to its rightful  position and shown that it can be used to correct errors of law which appear on the face of the record even though they do not  go to  jurisdiction.   I have looked into the  history  of  the matter,  and find that the old cases fully support all  that the  Lord  Chief Justice said.  Until about 100  years  ago, certiorari  was regularly used to correct errors of  law  on the face of the record.  It is only within the last  century that  it  has fallen into disuse, and that is  only  because there  has,  until recently, been little  occasion  for  its exercise. (I)  [1952] 1 K.B. 338. 1269 Now,  with the advent of many new tribunals, and  the  plain need for supervision over them, recourse must once again  be had  to  this well-tried means of control." The  other  Lord Justice  who took part in the hearing of the appeal,  Morris L. J. also examined that question and concluded as follows:- "  It is plain that certiorari will not issue as the,  cloak of an appeal in disguise.  It does not lie in order to bring up an order or decision for rehearing of the issue raised in the  proceedings.  It exists to correct error of  law  where revealed   on  the  face  of  an  order  or   decision,   or irregularity,  or  absence of, or  excess  of,  jurisdiction where shown." I It is clear from an examination of the authorities of this Court  as  also of the courts in England, that  one  of  the grounds  on  which  the jurisdiction of the  High  Court  on certiorari  may be invoked, is an error of law  apparent  on the face of the record and not every error either of law  or fact,  which  can  be  corrected by  a  superior  court,  in exercise  of  its statutory powers as a court of  appeal  or revision. So far as we know, it has never been contended be. fore this Court  that  an error of fact, even though apparent  on  the face  of the record, could be a ground for  interference  by the  court exercising its writ jurisdiction.  No ruling  was brought  to our notice in support ,of the  proposition  that the  court  exercising  its powers under  Art.  226  of  the Constitution, could quash an order of an inferior  tribunal, on  the ground of a mistake of fact apparent on the face  of the record. But  the  question  still remains as to what  is  the  legal import of the expression ’error of law apparent on the  face of  the record.’ Is it every error of law that  can  attract the supervisory jurisdiction of the High Court, to quash the order impugned ? This court, as observed above, has  settled the  law  in this respect by laying down that  in  order  to attract  such jurisdiction, it is essential that  the  error should  be something more than a mere error of law; that  it must be one which is manifest on the face of the record.  In this respect, the law in India and the law in England,  are, therefore, the same.  It is also clear, on an examination of all 1270 the  authorities  of  this Court and of  those  in  England, referred  to above, as also those considered in the  several judgments  of  this  Court, that the Common  Law  writ,  now called  order of certiorari, which was also adopted  by  our

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 22  

Constitution,  is not meant to take the place of  an  appeal where  the statute does not confer a right of  appeal.   Its purpose  is  only  to determine, on an  examination  of  the record,  whether  the  inferior tribunal  has  exceeded  its jurisdiction  or  has not proceeded in accordance  with  the essential  requirements  of the law which it  was  meant  to administer. ,Mere formal or technical errors, even though of law,  will not be sufficient to attract  this  extraordinary jurisdiction. The principle underlying the jurisdiction to issue a writ or order  of  certiorari,  is no more in doubt,  but  the  real difficulty  arises,  as  it  often  does,  in  applying  the principle  to the particular facts of a given case.  In  the judgments  and  orders impugned in these appeals,  the  High Court has exercised its supervisory jurisdic note in respect of errors which cannot be said to be errors of law  apparent on the face of the record.  If at all they are errors,  they are  errors  in  appreciation  of  documentary  evidence  or affidavits,  errors  in drawing -inferences or  omission  to draw  inferences.  In other words, those are errors which  a court sitting as a court of appeal only, could have examined and,  if  necessary, corrected.  As already  indicated,  the Appellate  Authority had unlimited jurisdiction  to  examine and appreciate the evidence in the exercise of its appellate or revisional jurisdiction.  Section 9(3) of the Act,  gives it  the power to pass such orders as it thought fit.   These are words of very great amplitude.  The jurisdiction of  the Appellate  Authority,  to entertain the appeals,  has  never been  in doubt or dispute.  Only the manner of the  exercise of its appellate jurisdiction was in controversy, It has not been  shown  that in exercising its  powers,  the  Appellate Authority  disregarded any mandatory provisions of the  law. The  utmost  that  has been suggested, is that  it  has  not carried out certain Executive Instructions.  For example, it has been said that the Appellate  Authority did not  observe the 1271 instructions  that  tribal people have to be  given  certain preferences,  or,  that persons on the debarred  list,  like ,smugglers,  should be kept out (see p. 175 of the  Manual). But all these are only Executive Instructions which have  no statutory  force.  Hence, even assuming, though it is by  no means clear, that those instructions have been  disregarded, the  non-observance of those instructions cannot affect  the power of the Appellate Authority to make its own  selection, or affect the validity of the order passed by it. The  High  Court, in its several judgments and  orders,  has scrutinized,  in  great  detail, the orders  passed  by  the Excise  Authorities under the Act.  We have not  thought  it fit to examine the record or the orders below in any detail, because, in our opinion, it is not the function of the  High Court  or  of this Court to do so.  The  jurisdiction  under Art.  226 of the Constitution is limited to seeing that  the judicial  or  quasi-judicial  tribunals  or   administrative bodies  exercising  quasijudicial powers,  do  not  exercise their powers in excess of their statutory jurisdiction,  but correctly administer the law within the ambit of the statute creating  them or entrusting those functions to  them.   The Act has created its own hierarchy of officers and  Appellate authorities, as indicated above, to administer the law.   So long  as  those Authorities function within the  letter  and spirit  of the law, the High Court has no concern  with  the manner  in which those powers have been exercised.   In  the instant  cases, the High Court appears to have  gone  beyond the  limits  of its powers under Arts. 226 and  227  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 22  

Constitution. In one of the cases, the High Court has observed that though it could have interfered by issuing a writ under Art. 226 of the  Constitution,  they would be content to  utilize  their powers  of  judicial superintendence under Art. 227  of  the Constitution  vide  its  judgment dated July  31,  1957,  in appeals  relating to Murmuria shop (Civil Appeals  Nos.  669 and 670 of 1957).  In exercise of that power, the High Court set aside the order of the Appellate Authority, and directed it  to re-hear the appeal ’according to law in the light  of the principles indicated in this judgment’. 1272 A  Constitution  Bench of this Court examined the  scope  of Art. 227 of the Constitution in the case of Waryam Singh and another  v. Amarnath a-rid another (1).  This Court, in  the course  of its judgment, made the following observations  at p. 571 : " This power of superintendence conferred by article 227 is, as pointed out by Harries C. J. in Dalmia Jain Airways  Ltd. v. Sukumar Mukherjee (2), to be exercised most sparingly and only  in appropriate cases in order to keep the  Subordinate Courts  within  the bounds of their authority  and  not  for correcting mere errors." It is, thus, clear that the powers of judicial  interference under  Art. 227 of the Constitution with orders of  judicial or  quasi-judicial nature, are not greater than  the  powers under  Art.  226 of the Constitution.  Under Art.  226,  the power  of  interference may extend to quashing  an  impugned order on the ground of a mistake apparent on the face of the record.   But under Art. 227 of the Constitution, the  power of  interference  is  limited to seeing  that  the  tribunal functions  within  the  limits  of  its  authority.   Hence, interference by the High Court, in these cases, either under Art. 226 or 227 of the Constitution, was not justified. After  having dealt with the common arguments more  or  less applicable  to  all the cases, it remains  to  consider  the special points raised on behalf of the respondents in  Civil Appeal  No.  672 of 1957, relating to the  Tinsukia  country spirit shop.  It was strenuously argued that the appeal  was incompetent in view of the fact that the rule issued by  the High Court, was still pending, and that this Court does  not ordinarily,  entertain  an appeal against  an  interlocutory order.   It  is true that this Court does not  interfere  in cases  which  have not been decided by the High  Court,  but this  case has some extraordinary features  which  attracted the  notice of this Court when special leave to  appeal  was granted.   As  already  stated, the  shop  in  question  was settled with the appellants by the Excise Commissioner,  and his   order   was  upheld  by   the   Appellate   Authority. Accordingly, the appellants, (1) [1954] S.C.R. 565.        (2) A.I. R. (195i) Cal. 193. 1273 had been put in possession of the shop on June 7, 1957.  The High  Court, while issuing the rule, passed an order on  the stay  application,  which, as already  indicated,  had  been misunderstood  by the District Excise authorities,  and  the appellants were dispossessed and the respondents I and 2 put back in possession, without any authority of law.  This  was a flagrant interference with the appellants’ rights  arising out  of the settlement made in their favour by  the  highest revenue  authorities.  The High Court had not and could  not have authorized the dispossession of the persons  rightfully in  possession  of the shop.  The  appellants  brought  this flagrant  abuse  of power to the notice of  the  High  Court several times, but the High Court felt unduly constrained to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 22  

permit the wrong to continue.  We heard the learned  counsel for  the respondents at great length as to whether he  could justify the continuance of this undesirable and  unfortunate state  of  affairs.   It  has  to  be  remembered  that  the appellants,  as  a result of fortuitous  circumstances,  had been deprived of the possession of the shop during the  best part  of the financial year 1956-57 The appellants had  been deprived  of  the fruits of their hard-won  victory  in  the revenue  courts, without any authority of law, and the  High Court  failed  to  right the wrong  in  time,  though  moved several   times.   In  these  circumstances,  we  found   it necessary  to  hear both the parties on the  merits  of  the orders  passed  by  the  Commissioner  of  Excise  and   the Appellate  Authority, in favour of the  appellants,  against which,  the respondents had obtained a rule.   After  having heard  both  sides, we have come to the conclusion  that  no grounds  have  been made out for interference  by  the  High Court,  under  its  powers under arts. 226 and  227  of  the Constitution.  This case shares the common fate of the other cases  before us, of having run through the entire gamut  of the  hierarchy  created under the Act, read along  with  the amending  Act and the rules thereunder.  We do not find  any grounds in the orders of the Excise Authorities which  could attract  the  supervisory jurisdiction of  the  High  Court, there  being  no error of law apparent on the  face  of  the record, 1274 or a defect of jurisdiction in the Authorities whose  orders have  been impugned in the- High Court.  We would,  however, like  to  make  it clear that we are  interfering  with  the interlocutory  order passed by the High Court in  this  case because  of  its unusual and exceptional  features.   It  is clear  that  our decision on the main points  urged  in  the other appeals necessarily leads to the inference that,  even if  all  the allegations made by the  respondents  in  their petition  before the Assam High Court are accepted as  true, there would be no case whatever for issuing a rule.  Indeed, the respondent found it difficult to resist the  appellant’s argument  that,  if the other appeals were  allowed  on  the general contentions raised by the appellants, the  dismissal of  his  petition  before the Assam High Court  would  be  a foregone  conclusion.   It  is  because  of  these   special circumstances  that  we have decided to interfere  with  the interlocutory  order  in  this  case  in  the  interests  of justice. As  a  result of these considerations, the appeals  must  be allowed  and  the  orders passed by the High  Court  in  the several  cases,  set aside.  On the question  of  costs,  we direct  that the appellants in each case, should  get  their costs  here and in the High Court, except the  appellant  in Civil  Appeal  No.  670, who has failed on  the  main  point raised on his behalf, and who, therefore, must bear his  own costs.                       Appeals allowed. 1275