# [1959] 1 S.C.R. 1424

- **Citation:** [1959] 1 S.C.R. 1424
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Bench:** S. R. DAS c. J, ?I<. H. Biiagwati, B. P. S1:-1Ha, K. SnrnA RAO, Ic ~- Wanciioo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1959-1-s-c-r-1424-1570
- **Pages:** 17

## Headnote

Certiorari, Writ of-Rule iss11<d on
app!ic~lio11-D11ty of.
inferior Courts and 1"ribunals-/j 'nust produce entire records.
The appellant firm, an unsuccessful applicant for a license for
vending foreign liquor in l\ew Delhi for the year 195.1-rg~. mewed
the High Court under art. 226•of the Constitution for a wrij wf
certiorari quashing the order granting the
Iici~nst• to a ri\'al
applicant ancl implcadcd the Chief Minister, the Excise Commissioner, the.Seeretary ancl the Cnder Secretary, Finance, of
the State of Delhi, as it then was, as parties to the application.
Its case in substance was that the applications macle for the
grant of the licence were never placed before the Chief Commissioner \vho alone \1,·as the competent authority to grant it under
Ch. 5, r. I of the Delhi Liquor License Rules, r935, fraa1cd under
s. 59 of the Punjab Excise Act (Punj. I of 1914). as extender! to
J)eU1i. and no orclcr granting the license \vas ever made by him.
The said opposite parties rcsponclcnts,
although rcptatedly
called upon by the High Court to do so, did not produce the
entire records and file<l evasive affidavits and eventually produced a letter written by the Coder Secretary, finance, to the
Excise Co1nmissjoncr intirnating that the Chief Commissioner
had made th~ order for granting the license to the rival applicant and maintained that th<: order had in fact been made by
the Chief Commissioner. The High Court, under a misapprehension of fact and of the true nature and effect of that letter
\vritten by the. C'ntler Sccrcta'ry, finance, to the Excise Con1missioncr, held"t!Tat th~ order had in fact been passed b~ the Chief
•O::ommissioner.
The production of the en,ire records in the
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S.0.R.
• fiUPREM;Eo COURT REPORT&
1425
Supreme Court rgac!e it clear,,and the respondents also conceded,
that the applications were never piaced before the Chief Commissioner, nor any order granting the said license was ever
made by him. What had happened was that upon an order
made by the Chief Minister on the file in accordance with a note
put up by the Under Secretary, Finance, the latter wrote a
letter to the Excise Commissioner in rep! y to a previous. one of
his, that the license might be granted to the said rival applicant. That letter, on which the High Court had relied, was in
the following terms,-
" With reference to your letter No. 295/C/54 dated the
3rst Ai<gust, r954, on the above subject, I am directed to say
that the Chief Commissioner is pleased to approve under
Rule 5. r. of Delhi Excise Manual Vol. II the grant of L-2
license to Messrs. Gainda Mall Hem Raj, New Delhi, in place of
the L-2 License surrendered by Messrs. Army & Navy Stores, New
Delhi. Necessary license may kindly be issued to the party
cttncerned under intimation to this Secretariate ".
There was nothing on the record to show that the Chief
Commissioner had ever concurred in the order made by the Chief
Minister on the file.
Held. that the attempt of the official respondents to by-pass
the Court must be strongly deprecated, and the order of the High
,.., tourt must be •reversed.
When a superior Court issues a rule on an application for a
writ of ~rtiorari, it is incumbent upon the inferior Court or the
q_uasi-judicial body, to whom the rule is addressed, to produce
t&e•entire records along with the• return so that the superior
Court may satisfy itself that the inferior Court or the quasijudicial body has not exceeded its lawful jurisdiction. Non-production of such records, as in the instant case," must defeat the
purpose which the \vrit has in view.
Held, further, that in view of the undisputed practice that
such a license, once granted by the Chief Commissioner, was
almost automatically renewed by the Collector year to year, it
could not be said that the writ application and the appeal had
become infructuous on the expiry of the period of the license in
disput~ and it was only proper that the appeal should be heard
on merits.
In the f

## Text

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1424
~UPREME COURT·~EPORTS • [1959)
1958
would like to add that th~y d~ not cor're&tly represent
Sri Llaru Ram the effect of the relevant prnvisions of the Act.
v
The result is the appeal is allowed, the orrlrr passed
sh.;,,,,.,;
by the High Court i8 set aside and the election petition
Prasanni & Othm filed by respondent l is dismissed with costs throughGaj1ndragadkar J.
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1958
Stptemb!r 30.
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Appeal allowed .
GHAIO MALL & SOXS
1!.
THE STATE OF DELHI & OTHERS
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(S. R. DAS c. J., ?I<. H. BIIAGWATI, B. P. S1:-1HA,
K. SnrnA RAO and IC ~- WANCIIOO JJ.)
Certiorari, Writ of-Rule iss11<d on
app!ic~lio11-D11ty of.
inferior Courts and 1"ribunals-/j 'nust produce entire records.
The appellant firm, an unsuccessful applicant for a license for
vending foreign liquor in l\ew Delhi for the year 195.1-rg~. mewed
the High Court under art. 226•of the Constitution for a wrij wf
certiorari quashing the order granting the
Iici~nst• to a ri\'al
applicant ancl implcadcd the Chief Minister, the Excise Commissioner, the.Seeretary ancl the Cnder Secretary, Finance, of
the State of Delhi, as it then was, as parties to the application.
Its case in substance was that the applications macle for the
grant of the licence were never placed before the Chief Commissioner \vho alone \1,·as the competent authority to grant it under
Ch. 5, r. I of the Delhi Liquor License Rules, r935, fraa1cd under
s. 59 of the Punjab Excise Act (Punj. I of 1914). as extender! to
J)eU1i. and no orclcr granting the license \vas ever made by him.
The said opposite parties rcsponclcnts,
although rcptatedly
called upon by the High Court to do so, did not produce the
entire records and file<l evasive affidavits and eventually produced a letter written by the Coder Secretary, finance, to the
Excise Co1nmissjoncr intirnating that the Chief Commissioner
had made th~ order for granting the license to the rival applicant and maintained that th<: order had in fact been made by
the Chief Commissioner. The High Court, under a misapprehension of fact and of the true nature and effect of that letter
\vritten by the. C'ntler Sccrcta'ry, finance, to the Excise Con1missioncr, held"t!Tat th~ order had in fact been passed b~ the Chief
•O::ommissioner.
The production of the en,ire records in the
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S.0.R.
• fiUPREM;Eo COURT REPORT&
1425
Supreme Court rgac!e it clear,,and the respondents also conceded,
that the applications were never piaced before the Chief Commissioner, nor any order granting the said license was ever
made by him. What had happened was that upon an order
made by the Chief Minister on the file in accordance with a note
put up by the Under Secretary, Finance, the latter wrote a
letter to the Excise Commissioner in rep! y to a previous. one of
his, that the license might be granted to the said rival applicant. That letter, on which the High Court had relied, was in
the following terms,-
" With reference to your letter No. 295/C/54 dated the
3rst Ai<gust, r954, on the above subject, I am directed to say
that the Chief Commissioner is pleased to approve under
Rule 5. r. of Delhi Excise Manual Vol. II the grant of L-2
license to Messrs. Gainda Mall Hem Raj, New Delhi, in place of
the L-2 License surrendered by Messrs. Army & Navy Stores, New
Delhi. Necessary license may kindly be issued to the party
cttncerned under intimation to this Secretariate ".
There was nothing on the record to show that the Chief
Commissioner had ever concurred in the order made by the Chief
Minister on the file.
Held. that the attempt of the official respondents to by-pass
the Court must be strongly deprecated, and the order of the High
,.., tourt must be •reversed.
When a superior Court issues a rule on an application for a
writ of ~rtiorari, it is incumbent upon the inferior Court or the
q_uasi-judicial body, to whom the rule is addressed, to produce
t&e•entire records along with the• return so that the superior
Court may satisfy itself that the inferior Court or the quasijudicial body has not exceeded its lawful jurisdiction. Non-production of such records, as in the instant case," must defeat the
purpose which the \vrit has in view.
Held, further, that in view of the undisputed practice that
such a license, once granted by the Chief Commissioner, was
almost automatically renewed by the Collector year to year, it
could not be said that the writ application and the appeal had
become infructuous on the expiry of the period of the license in
disput~ and it was only proper that the appeal should be heard
on merits.
In the facts and circumstances of the case it was impossible
to hold that the letter of the Under Secretary embodied the
order of the Chief Commissioner or that the Court could not be
asked to°'o behind it.
Th~ letter was clearly a' communication
of the sanction and could not be equated with the sanction
itself.
Although an Under Secretary was competent to authenticate
an order made by the Chief Commissioner, the letter in que•tion
did not plljport to be made in the name of the Ghiof Commissioner and therefor~ the letter could not be treated as a proper!)"•
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Ghaio
A:Iall & Sons
v.
The Slate of
Delhi &> Others
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1426
SUPREME COURT ·R:EPORT5 • [1959]
authenticated order to which the j>resumption raised by Art.
166 of the Constitution could !'lroperly attach. •
Ghaio
Dattatreya 1\forcshu:·ar l!angarkar '" 1'he State of Bombay".
Mall 6 So>1s
[1952] S.C.H. 612, held ir.applicablc.
v.
n, State of
C1nL
APPELLATE
Jt:RISDICTION:
Civil
Appeal
Delhi (- 01h"s Ko. 481 of 1957.
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Appeal by special lean~ from the judgment. and order
dated December 12, 1955, of t.he Punjab High Court
(Circuit Bench)' Delhi, in Civil Writ Application Xo.
11-D of 1955.
Gurbachan Si711Jh and R. S. Narula, for the appellant.
C. K. Daphtary, Solicitor-General of India, Ii. J.
Umrigar and T. M. Sen, for respondents Nos. I t.o 4. •
Dr. J. N. Banerjee and P. C. Agaru;ala, for respondent !'l'o. 5.
1958. September 30. The Judgment of the Court
was delivered by
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DAS C. ,J.-The facts material for the purpose of ..
disposing of this appeal by special learn a.re shortly as
follows: The appellants, before us cl:iim to ha.\'tl been
dealers in foreign liquor• sinco 1922 and to hao;tl,
before the partition of the country, held licenses in
forms L-1, L-2.. L-10 anti L-11 at Amritsar, Sialkot
and Multan.' The appellants allege that in 1945 thoy
had also secured a license in Form L-2 in respect of
some premises in Cha.wri Bazar, Delhi, but that the
operation of the si>id license had to be suspended on
account of the unsuitability of the Chawi-i Bazar
pre.mises. Then ca.me the communal riots in t.ho
wake of the partition of the country and that license
could not he renewed.
In 1951 the appellants applied
to the Chief Commissioner, Delhi, (Ex. l) for licenses
both in Forms L-1 and L-2 in respect of Karolbagh or
at any pla.ce· in Delhi. On :\Iuy 17, 1951, l~ Home
Secretary to the Chief Commissioner by letter (l<}x, 2)
conveyed to the appellants the sanction of the Chief
Commissioner to the grant to them of license in
:Forin L-.i! :in respect of Karolbagh, Delhi. This
.license ha8 ever Since then been rene\\~d from year to
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S.C.R .•• SUPREME COURT REPORTS
1427
vear. In 19.54 a vacancy a.rose in respect of a license
in :E'orm L-2 on account of the closure of the business
of Messrs. Army and Navy ~tores of Regal Buildings,
New Delhi, which held such a license. Accordingly on
January 21, 1954, the appellants submitted an applicatioll' (Ex. 4) to the Deputy Commissioner for tlte grant
of a foreign liquor license in Form L-2 in the aforesaid vacancy. In that application the appellants
stated, inter alia, that they were " prepared to operate
it in. such a part of Delhi as may be determined by
the authorities". Not having received any reply for
nearly 3 months and apprehending that interested
persons were endeavouring to cause hindrance in the
matter of the granting of the license to them on the
.plea that the appellants had no premises in Connaught
Place, the appellants, on March 11, 1954, wrote a
·letter (Ex. 5) to the Chief Commissioner in which,
after pointing out that Karolbagh where they had
their L-1 license was in New Delhi, the appellants
• stated: "Ia any case, we have already made it. clear
in our application which we made to the Deputy
Commissioner, Delhi on the 21st January, 1954, that
we are prepared to operate J;his license in any locality
'which the authorities might deem proper". This
letter was acknowledged by the Personal Assistant to
the Chief Commissioner who, on Ma-rnh 15, 1954,
stated (Ex. 6) that the" application No. Nil dated
18-3-1954 on the subject of grant of foreign liquor
license in Form L-2" had been forwarded to the Home
Secretary, Delhi State, for disposal. Exhibit 7 to the
petition is an important document. It is a letter dated
l\{ay 21, 1954, addressed by the appellants to· the
Exci~e and Taxation Commissioner stating that " with
a view to avoiding any possible objection as to locality
etc., we have secured suitable premises also in the
Connaught Place area1 New Delhi, in wh_ich area has
occurred a vacancy on
account of t-he surrender of
this license by Messrs. Army and Navy Stores". The
letter concluded with the request that early orders be
passed on their applicatiort. On July .30, 1954, the
appellaitts wrote a long letter (E¥. 8) 'to· the Chief
Commissioner claiming justice in the matter of th et;
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Ghaio
Mall & Sons
v.
The State of
Delhi 6' Others
Das C .• j.
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Ghai"
Mall <">-
S:11Js
v.
The Slate of
Ddhi ~~~ 01hers
v ... c. j.
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1428
SUPREME COURT R~EPORTS • , [1959]
application for the L-2 licen8ct In th~ aecond paragraph of that letter it was stated: "It is now being
ftcclaimed by the party'concerncd and thoir friends
that they have succeeded in removing the only obstacle
t.hat stood in the way of their getting the said L-2
license by so arranging matters that our applica~ion
has been kept back by lhe Excise Commissioner ttnd
that only fi vc or six other applications of firms without
much nrnrit in them have been forwarded to you in
order that they might have a smooth sailing as against
those applicants". The appellants prayed that the
Excise CommiRsioner might he directed to forward all
records concerning the case to the Chief Commi8sioner
so that the latter might he able to arrive at a just
conclusion find they asked for fL hearing to explain,
their claim fully.
A copy of this letter appears to
ha,·e be<!n endor:>cd to the Excise Commissioner on
August 13, 1954, by the Under Secretary, Fina.nee.
The Excise
Commissioner
then wrote
a
letter
~o. 295. C/54 dMet! August 31, 19li!, to .the Under ,
Secret,Lry, Finance, ft copy of which was produced by
the learned Holicit.or Genera.I at tlw hearing before us.
In this letter the Excise Cojnmissioner cxpl1tin<'d why
the application of the appellants was not eousidcretl •
by him to be a good ftncl proper one lLIHi stated that
reasons
why~ .tccnrding to him, the ltpplications
of two nth<!r applica.nt8, including
~lessrs Ga.incl11
!\-fall Hem RlLj (respondent. ~o. 5), shnulcl he given
the preference.
In
the penultim1ttc pa.ra.gmph of
this letter of explanation it. was st,1tecl: ",In the
end it may also he a.dcled that the applir.a11t !ms no
pren\ises in New Delhi and as such he ha.cl no clai111.
The lice11He in F<lrm L-2 is grnntecl in respect of
cerl.,tin premises." The conchsion was that "under
the eireurn,;tances there is no force in the application
of Messrs. Ghaiu ~fall and ::-;ons." It is apparent that
the Excise C
0ommissioner did not remember th11;t the
appellants ha.1\, by their Jetter (Ex. 7) of :\la.y 21, 19~4,
addressed t.o him, stated that they had secured smt-
'tble premi~es-also ill the Cnnnaught Place area, '.'\cw
D.elhi.
Be" t!lat as it ma~', on September 11, 1~54, t.he
appellants wrote another letter (Ex. "9) to the Chief
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S.C.R, •• SUPREME COURT REPOR.TS
1429
CommissiolJilr' pressin~ tbJiir claim. In this letter
reference was made to their letter to the Excise Commissioner of May 21, 1954, (Bx. 7) in which it had been
stated that the appellants had secured suitable premises in the Connaught Place area in New Delhi. A
co~ of this letter was sent to the same U ndeJ> Secretary, Finance, to whom the Excise Commissioner had
written his letter of August 31, 1954, alleging that the
appellants had no premises in New Delhi. Exhibit 9A
is tqe postal acknowledgment by the Under Secretary,
Finance, of the letter containing the copy of the
• appellants' letter but it does not appear from the
record that the Under Secretary, Finance, thought it
necessary to remind the Excise Commissioner that the
jtppellants were maintaining that they had secured
suitable premises in New Delhi. This was followed
by a Jetter (Ex. 10) from the appellants to the Excise
Commissioner intimating that an application had been
made to the Collector on September 11, 1954, for a
, change of their premises for L-1 license from Karolbagh, New Delhi to H. 32 Connaught Circus, New
Delhi. Although this letter had been written in connectioT:t with the change of L-1 license, it certainly did
'!!J'ecify that the appellants had secured the premises
H-32 Connaught Circus.
The personal Assistant to
the Ex:cise CornmisBioner replied (Ex. ll) that the
matter was under consideration. There was a reminder
(Ex. 12) sent to the Excise Commissioner on December 8, 1954, about the change of L-1 license from Karolbagh to Connaught Circus. It appears from papers,
for the tlrst time produced before us at the hearing of
t~is appeal, that on September 3, 1954, a note was•put
up by the Under Secretary, Finance, before the Finance
Secretary, Shri S. K. Mazumdar. At the forefront of
this note we find the following statement: "The
applicants (Messrs. Ghaio Mall and Son~) have no premises ill Connaught Ctrcus. For these reasons, if for no
other, their claim has to be rejected." The note concluded with the recommendation that, in case it was
decided that the vacancy should be ,filled, the re~om-,
mendation of the Excise Commissioner 'should be
accepted, that i§ to say, the L-2 license should go tt>'
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GhaiO
Mall c;.. Sons
v.
The State of
Delhi & Others
Das C .• j.
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Ghaio
.\tall & Sons
v.
The Slate of
Deihl & Othe1 $
Dai C.J.
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1430
SUPREME COURT DEPORTS •• [1959]
Messrs. Gainda )fall Hem lhj +Responcte .. t ~o. 5). On
September 8, 1954, the Finance Secret.ary simply
endorsed the file to the Chief Minister who, on September 14, 1954, recorded the following order on the file:
"Commissioner's recommendation may be acec·pted ".
There is nothing on the record produced before Ut; to
indicate that. the matter was sent up to the Chief Commissioner or that his concurrence was obtained under
s. 36 of the Government of Part C States Act (Xo. 49
of 1951).
On December 14, 1954, the Under Secret,μ,ry,
Finance, wrote to the Excise Commissioner a letter
which was for the first time produced at the hearing
beforo the High Court and to which detaile<l reference
will be made hereaft~r. On January 15, 1955, t.he
appellants were informed that the chango applied for.
by th<·m in respect of their L-1 license ha.d heen
allowed. The appellants were not told anything about
the rejection of r.hcir application for L-2 license, but
evidently they came to know that the L-2 license, for
which a vacancy had arisen on account of the closure
of l\.Ie;;srs. Army and Navy Stores, had been granted to
)lcssrs. Gainda Mall Hem Raj (respondent No. 5). On
December 24, 1954, the apriellants wrote se\·ern'!ly to
the Bourn
~ecret.ary (Ex. 14) Finance Secretary•
(Ex. 15) and the Un<icr Secrdary, Fina.nee (Ex. 16)
asking for a. ct>py of t.he order or orders granting
license to )lcssrs. Gainda .\fall Hem Raj and/or rejecting their own application for L-2 foreign liquor license .
Three postal acknowledgments (Ex,;. 16A, 1613, 16C)
relating to those three letters are on the rccor1.
Th<l
appellants gut no rciJly from 1rny of them .
J\'"ot having received any reply the appelhrnts OJl
December 21, 1954, moved the Punjab High eourt
(Circuit Bench) under Art. 226 for appropri<\le writs or
orders, but as it was not then quite clear whether tho
order granting.the license to Messrs. (;ainda '.\fall Hem
Raj had actually been made, the Circuit Bene!\ summarily dismissed th>\t writ application as premature .
There were proceedings taken by the appellants to
obtain lea\·e. to ~ppeal ·first from this Court under
Art. 1:{6 vrbi\Jh w;i.s adjourned sine die and then from
°t'hc High Court under Art. 133, but it Is not necessary
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S.C.R .• ilUPREMEl COURT REPORTS
1431
to go into furih~r detail8 of ,those proceedings. After
the appellants had definitely ascertained that the L-2
license had been granted to M~ssrs. Gainda Mall Hem
Raj, the appellants, instead of proceeding with their
application for leave to appeal to this. Court, filed a
fresh'writ petition in the High Court (Circuit :Bench)
out of which the present appeal has arisen.
In the present writ petition the appellants have
impleaded 7 respondents, namely, (1) The State of
Delhi, (2) The Chief Minister, Delhi, (3) The Excise
and Taxation Commissioner, Delhi, (3 A) Secretary,
Delhi State, (3 B) Under Secretary, Finance, (4) The
Chief Commissioner, Delhi and (5) Messrs. Gainda
Mall Hem Raj. The principal grounds urged by the
~pellants in support of this petition are that the applications of the appellants and of the other applicants had never been placed before the Chief Commissioner who, under r. 1 of Ch. 5 of the Delhi Liquor
License Rules, 1935, framed under s. 59 of the Punjab
Excise Act -(Punjab 1 of 1914), as extended to Delhi,
.. was the only competent authority empowered to grant
L-2 lic~nse for wholesale and retail vend of foreign
liquor to the public and that, the Chief Commissioner
natl never applied his mind to the applications and
did not in fact make any order and that respondents
Nos. 2 and 3 had purported to exerci'!le. jurisdiction
and power which were not vested in them by law and
that their decision, if any, had not received the concurrence of the Chief Commissioner, as requiried by
the proviso to s. 36 of the Government of Part C
States Act. The appellants pray for the issue of appr{)priate writs, orders or directions (a) quashing amd
setting aside the order of granting L-2 license to respondent No. 5, (b) directing the respondent No. 4 (the
Chief Commissioner) to hold proper enquiry regarding
suitability of premises etc., to hear boj;h the parties
and to "ecide the application of the petitioner before
taking up the application of the 5th respondent.
There is a prayer in the nature of a prayer for further
and other reliefs and there is the .usual wayer· for
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costs.
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z958
Ghaio
Mall Qi.. Sons
v.
The State of
Delhi .$. Others
Das C. j..
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Ghaio
A/all 6- Sons
v.
The Sta:e of
Delhi & Otlrtts
,.,., c. ].
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1432
StPRE~lE COURT'REPORT~ • [1959]
•
A written statement v&ifiell by the aifidavit. of Shri
S. K. Majumdar, the Finance Secretarv, has been
tiled on behalf of respondent~ l to 4.
In paragraph 5
of that written statement it has been averred that all
the applications including the appellants' a.pplication
were i'n fact considered; but it is significant tl!at it
has not been stated by whom the applications had
been considered. }lcssrs. Gainda ,\!all Hem Raj have
filed an affidavit only stating that they had been
informed that the Chief Commissiom•r had sandioned
the grant of the license t-0 them. The appellants,
with the leave of the High Court, filed a consolidated
affidavit
~et.ting out facts including the fact that
although thoy had written to the Home Secretary, the
Finance Secretary and the Under Secretary, .FinatWA',
asking for a copy of the order granting the license to
l\fossrs. Gainda :\fall Hem Raj, no copy of the order or
even a reply to the letters had been received. In
reply t-0 the consolidated fresh affidavit an affidavit
affirmed by the Finance Secretary (Shri ii K. )fajum.
dar) has been filed.
In paragraph 13 of this affidavit "'
it has been stated that, since no appeal lies aga~nst. the
order of the Chief Commi~sioner, the quest.ion of BUJ.lplying a copy of the order t-0 the appellantH does fl<it
arise. Statements of this kind cannot but leave an
impression in file mind of the (',ourt that the respondents were not squarely dealing with the case made
by the appellants, but were evading the production
of the order of the Chief Commissioner which it was
obviously insinuated not to have been made at all.
In order to compel the respondents to produce the
origina.I order, if any, the appellants made a.n aJ?plieation to the High Court supported by an affidavit.
Para.graph 2 of the petition which wa8 quite precise
reads thus:
"2. T~at. with
r~fcrence ,to paragraphs 7 & 8 of
the written statement and para.graphs 10 and ll of
the affidavit of the Finance Secretary it is submitted
that the respondents have not filed any proper return
to the rule isRued.bv thP ·Court inasmuch as the original order: sought. to be quashed with nothi,1gs etc.,
·)l·hich led to those orders have been ;vithheld. by the
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S.C.R. • ~UPREM_g COURT REPORTS
1433
•
respondents. •The respbndents have not even stated
that the Chief Commissioner, {>elhi, who is admittedly
the only competent authority for the grant of an L-2
license passed any orders himself. The replies are
evasive. It is not stated who considered the application ~f the petitioner i.e. whether it . was a clerlr who
was doing the noting or whether the Collector or
the Finance Secretary or the Chief Minister who did
it. "
On tliis application the High Court on April 11, 1955,
made the following order :
"Let the order rejecting the petitioners' application be brought to court by an officer or official of the
c!epartment concerned."
The Finance Secretary filed a reply paragraph 3 of
which was in the terms following:
"3. That I have carefully gone through the relevant papers. The case of the petitioner was consider-
.ed along with that of other applicants and it was
" finally decided to issue ths license in favour of Messrs.
Gaind~Mall Hem Raj. It was not considered necessary to send an intimation .of rejection to all those
wHo had not been granted the license in question.
There is therefore no specific order rejecting the petitioner's application as ordered to be pI'oduced by the
Hon 'ble Court."
Although it was obvious what order of the Chief
Commissioner the a ppellant.s were insisting on being
producei;l, the respondents were prompt in taking
a,dvantage of the wording of the High Court's order
directjng the production of the order rejecting the
appellants' application and stated that there was no
specific order rejecting the appellants' application.
This is nothing short of what may be called swearing
by the card. The dellonent overlooks .th~ fact that
the ordtlr granting the license to Messrs. Gainda Mall
Hem Raj was in effect tantamount to a rejection of
the appellants' application. The appellants moved the
High Court again on August 8, 1955. Aft.er stating
how the. respon~ents were evading the real issue, the •
appellants in paragraph 5 of the petition categorically
.
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Ghaio
Mall 6' Sons
v,
The Stale of.
Delhi &- 001ers
Das C. /.
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GJiaio
ft/al/ b Son;
v.
. Tht Stale of
Delhi & Others
1'as C. ].
•
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. I.
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1434
Sl:PREME COURT 'REPORT~ • [1959]
•
stated that their case was tl1at the Chief Commissioner, Delhi, the compe,tent authority, had not passed
any order sanctioning the license in favour of Messrs.
Gainda l\Iall Hem Haj and prayed that the respon.
dcnl8 be directed to file the original record of th~ case
incluillng the actual sanction for the grant of the
lirensc lo :IIcssrs. Gain<la :llall Hem Haj.
On August
19, 1955, the Court ordered the relevant records to be
ca.lied for.
The only thing the respondents could, at
long last, produce before the High Court was the"lett.er
of the Unrier i:lccrdarv, Fi111tncr, to the
~~xeise CommiHsioner d1ited Decernhcr 14, 1954. to which reference
has alrcadv been made.
Learned. Sulicitor-Gencral a.ppe1iring for respondents
I to 4 pointed out that the order which is sought to 11e
quashed was the grant of L-2 license for the year
1954/1955 which has long expired and suggested that
thR writ petition and consequently tho appeal had
become infructuous. It appears that the usual practice in such matters is that once a license"in Form L-2
is grnnted by the Chief Commissioner, it is almost
automatically renewed by the Collector from .year to
year, unless, of course, the licensee is found guilty. Qf
breach of any excise rule and that in such cases of
renewal there ari~cs no question of vacancy entitling
any outside <toinpctitor to apply for a license in Form
L-2.
Th1it being the position-and this is not in dispute-it is vitally important for the appellantH that
we should consider the validity of the grant of the
L-2 liconcc for 1954,'1955 to jfessrs. Gainda jfalJ
Hem Raj, for in case of our holding that the order
granting the same was a nullity on account of iis flot
having been made by the compet~mt authority, the
vacancy caused by the closure of business by :llessrs.
Army and j\/ a.vy Store8 will still remain to be filled up
and the appellants will yet haw a chance of having
their application considered by the competent" authority.
We accordingly proceeded to hear the appeal on
merits.
'fhc pri.nl;pal question urged before us, as before the
.}:ligh Couri, is ·whether the Chief ,Comm.if!!lioner o~
. Delhi made any order !1nd~r r. 1 of Ch. 5 pf the Delhi
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S.C.R. • "SUPREME COURT REPORTS
1435
•
Liquor LicefJ.se Rules,' 1935. It is significant that
although the Chief Minister, the Excise Commissioner,
the Secretary of Delhi State, the Under Secretary,
Finance, and the Chief Commissioner have been impleaded in the present proceedings as respondents
Nos. 2, 3, 3A, 3B and 4 respectively and although
they or at least some of them could have deposed to
the material facts of their own personal knowledge,
none of them ventured to file an affidavit dealing with
the t:ategorical statement of the appellants that no
order had at any time been made by the Chief Commissioner for granting the L-2 license to Messrs. Gainda
Mall Hem Raj or rejecting the appellants' application.
Instead of adopting the simple and straight forward
-way these respondents have taken recourse to putting
up the Finance Secretary to give obviously evasive
replies which are wholly unconvincing. It is needless
to say that the adoption of such dubious devices is not
calculated to produce a favourable impression on the
• mind· of th~ court as to the good faith of the authori·
ties concerned in the matter. \Ve must also point out
that 10Vhen a superior court issues a rule on an applica-
,tion for certiorari it is incumbent on the inferior court
or the quasi-judicial body, to whom the rule is
addressed, to produce the entire records before the
court along with its return. The wb.oho object of a
writ of certiorari is to bring up the records of the
inferior court or other quasi-judicial body for examination by the superior court so that the latter may be
satisfied that the inferior court or the quasi-judicial
body has not gone beyond its jurisdiction and has
eoxercised its jurisdiction within the limits fixed by the
law. Non-production of the records completely defeats
the purpose for which such writs are issued, as it did
in the present case before the High Court. We strongly
deprecate this attelll.pt on the part ·of. the official
respm1.dents to bye-pass the court. We are bound to
observe that the facts appearing on the records before
us disclose a state of affairs ~hich does not reflect any
credit on the administration of the• erstwhile StMe of
Delhi. •We m,ust, however, say, in fairness to tb-'1
learned S~licitor-General,,that he promptly produceg
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Ghaio
Mall & Sons
v.
The State of
Delhi & Others
Das C.•].
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(;hnio
,\.Jail ,..,_ _i...·011.s
v.
The State of
Delhi &- Others
n ... c. ;.
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1436
StJPREME COURT HEPORTS • • [1959]
•
the entire records before ll8 d1fring the ht!aring of this
appeal.
As already stated the principal question, on which
arguments have been addressed tons, is whether the
Chief Commissioner had made any order for granting
the L-2 license to Messrs. Gainda :\fall Hem Raj. 'fhe
High Court answ<>red the question in the affirmative on
two grounds, namely, (1) that the Finance Secretary
had made an affidavit stating that the dcci;;ion regarding the grant of the license to Messrs. Gainda ~\fall
Hem Raj had been taken hy the Chief Commissioner,
and (2) that. the learned Solicitor Genernl stritcd in
specific terms that the matter had in fact been decided
by the Chief Commissioner. On the facts as they now
emerge it appearH to us that the High Court was under"
some misapprehension on both these points. We have
alreadv ~ummariscrl all the statRment.s and affirlavit.s
affirm~d by the Finance Secretary and it is quile clrnr
tlrnt the only thing that he did not say was that the
Chief Commission~r harl considered lhe apJ'lieations or •
made an v order.
The learned Solicitr1r General, with
his usuai fairness, also informed us that <>xccpt. relying on the letter of December 14, J9;i4, he did not sa.)',
that the Chief Commissioner had taken an\· decision
in the ma.Ller.
This being the position we a're free to
go into the •matter and come t-0 our own decision
thereon.
The records, including the documents now produced
before us, do not show that the applications had ever
been placed before the Chief Commissioner. '].'here is
nothing in the files showing any order or note on the
subject made or signed or initialled by the Chief fou1missioner.
What. transpires is that the Excise Commissioner (responclcnt Xo. 3) had by his letter dated
August 31, 1954, rccordecl the reasons why the appellants' appliciitions could nut be f'.111.~rtaincd, one of tho
reasons being that they harl no premises fn the
Connaught Placn area in :-;'ew Delhi, that a note was
then put up by the Ur}der Secretary, Finance, on
September.::!· 1954, suggesting that the appellants'
~PI)licatio1\ sh~uld be rejecte~, if .for !Wthing ·~bt', ~or
tlieir not hanng any prc1i11ses m New Dpll11 (which
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S.C.R. • •SUPREME COUR'r REPORTS
•
according t~ the appellantiil was not a correct statement in view of their letters referred to above) and.
that the L-2 license should be granted to Messrs.
9ainda Mall Hem Raj, that the Chief Minister on
September 14, 1954, made an order on the file accordingty and finally that tlie Under Secretary, l''inance,
wrote the letter dated December 14, 1954, to the
Excise Commissioner intimating that the Chief Commissioner had been pleased to approve the grant of
the license to Messrs. Gainda Mall.Hem Raj. There is
nothing on the record to show that the concurrence
with the order of the Chief Minister was obtained
from the Chief Commissioner. The inexorable force
of the aforesaid facts, now appearing on the record,
.inevitably led the learned Solicitor General to concede
that, on the records as they are, it is not possible for
him to say that the Chief Commissioner had actually
made the order, but he contends that, in view of the
letter of the Under Secretary, Finance, dated Decem-
• her 14, 1954, the fact that the Chief Commissioner had
made the order could 11ot be questioned in any court .
In other words the learned Solicitor General submits
that that letter embodies tqe order of the Chief Com-
.'rdissioner and the court cannot be asked to go behind
it and enquire whether the Chief Commissioner had in
fact made the order.
•
·
In order to succeed in this contention the learned
Solicitor General has to satisfy us that this letter is the
embodiment of the Chief Commissioner's order and
that. it.has been duly authenticated. On the second
point he is clearly right, for under a rule made on
Marc):i 17, 1952, by the then Chief Commissioner, in
exercise of powers conferred on him by s. 38(3) of the
Government of Part C States Act (49 of 1951), an
Under Secretary is also a person competent to authenticl).te an order or instrument of the Goyernment of
Delhi.• The only question that remains for us to consider is whether the letter in question is the order of
the Chief Commissioner.
The letter on which the
entire defence of the responaents nsts is, e<epressed in
the fol!Qwing wprds :
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Ghaio
Mall & Sons
v.
The State of
Delhi & Others
Das Ct'].
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Ghaio
Mall 6- Sons
v.
The State of
D1#hi & 0Jhers
.Di¥ C. J.
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1438
SYPREME COURT REPORTS. • [1959]
"DELHI STATE SECHETAllro\T,
DELHI STATE
!\o. F. 10(139)/54-G A & R
Dated the
14th December, 54.
From
To
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Shri III. L. Batra, M.A., P. C. S.,
Under Secretary Finance (Expenditure) to
Government, Delhi State.
Shri Dalip Singh, M.A., L R. S.,
Commis.~ioncr of Excise,
Delhi State,
Delhi.
Subject :-Grant of L-2 License.
•
Sir,
With reference to your letter Xo. 295/Ci54 dated
the 31st AuguAt, 1954, on the above subject, I am
directed to say that the Chief Commissioner is pleased
to approve under Huie fi. L of Delhi Ext:ise Manual•
Vol. 11 the grant of L-2 license.to :\lessrs. Gaindn. l\lall
Hem Raj, New Delhi, in place of the L-2 l,icense
surrendered by Messrs. A.rmy & ~avy Stores, New.
Delhi.
.:\ecessary License may kindly be issued to.
the party concerned under intimation to this Secretariate.
•
Yours faithfully,
(Sd.). M. L. Batra,
Under Secretary, Finance (Exp.)
to Government, Delhi Sta.tc."
ln the first place it is an int.er-clepartmcnta.l cOJ»-
munica.tion.
In the second place it is written· with
reference to an earlier cnmmuuica.t.ion mn.de by the
Excise Commi,;sioner, that is to su.y, ex f acie, it purports
to be a rep!~ tQ the latter's lett~r of August 31, 1954.
In the thirq.place the writer quite candidly stares that
he had been "directed to say " something-. by whom,
it is not stated. This makes it qnite clear that lhiR
document i8 .not t.ltc ordet of the Chief Commi.;;8ioner
1;11;, ·only .'1i1lrports to be u. com,munieation7 a.t the
"direction of some unknown person-of the order which
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S.C.R. • .SUPRE~E COURT REPORTS
1439
•
the Chief C~missione1' hasl made. Indeed in paragraph 7 of the respondents' statement filed in the
High Court on February 2, 1955, this letter has been
stated to have "conveyed the sanction of the Chief
Commissioner of the grant of licPnse to the 5th respon.
den1' ". A document which conveys the sanctivn can
hardly be equated with the sanction itself. Finally
the document does not purport to have been authenticated in the form in which authentication is usually
made. There is no statement at the end of the letter
that it has been written " by order of the Chief Commissioner". For all these reasons it is impossible to
read this document as the order of the Chief Commis·
sioner.
• Learned counsel for Messrs. Gainda Mall Hem Raj
relied on our decision in Dattatreya M oreshwar
Pangarkar v. The State of Bombay('). In that case
there was ample evidence on the record to prove that
a decision had in fact been taken by the appropriate
, authority Md the infirmity in the form of the authen-
• tication did not vitiatE; the order but only meant that
the presumption could not be availed of by the State.
That aecision did not proceed on the correctness of the
f<'rm of authentication but on the fact of an order
'having in fact be<>n made by the appropriate authority
and has thus no application to the pretren.t case where
it is conceded that the Chief Commissioner had not in
fact made or concurred in the making of an order
granting the license to Messrs. Gainda Mall Hem Raj.
In the view we have taken it is not necessary for us
to consider whether the action taken under the Excise
A,,ct and the rules thereunder was a judicial or- an
exectitive action, for even if it were of the latter
category the letter of Dec em her 14, 1954, cannot be
treated· as an order properly authenticated to which
the presumption raised by Art. 166 of tj:i.e Constitution
will attach. For reasons stated above we hold that
there was no valid order granting the df~<lense to
Messrs. Gainda Mall Hem Raj and that in th~ye of
the law the vacancy arisirrg on t}le closure oi the
(1) [19~2] S.C.R. 612.
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Ghaio
Mall Q;. Sons
v.
The State of
Delhi & Others
Das C . .j.
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Ghaio
/!fall 6- So11s
v.
1'he Sltde of
Delhi ~ Others
D,.sC.j.
Seplembt:r 30.
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1440
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STJPREME COUB.T RE;PORTS • • [1959]
business by :Messrs. Army a,.11d '.Ila vy St-0~e:o still remains
unfilled. The applications of the appellants and other
applicants were for a grant of L-2 license for 1954/
1955. That year has gone ptist and accordingly in the
changed eircumstances wo direct. the Chief Commissioner ~o fill ap the vacancy ctrnsed by the closure of
the business by ?.fossrs. Army and Xavy Stores by
inviting applications from intending licensees including
the appellitnts and Messrs. Gainda Mall Hem ltaj and
granting the oame to the most suitable party .• We,
therefore, accept this appP1~l, reverse the order of the
High Court and issue a mandamus to the effect aforesaid and also direct the respondents Xos. l to 4 lo pay
the appellant.s' costs of this appeal and of the proceed.
ings int.he High Court out of which this appeal ha~
arisen. Messrs. Gainda '.\Iall Hem Raj arc to hear
their own costs throughout.
Appeal allowed .
•
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SHRI RADESH1A'.ll 'KHARE & ANOTHER••
v.
•
THE STATE OF !llADHYA PHADESH & OTHEHS
(S. H. DAS c. J., BHAGWATI, s. K. DAS, ,J. L. KAPUR
and 81.'BBA RAo ,JJ.)
Municipality -- Appoi11tmmt of Excwtivc OJJiccr •by State
Go·,:crnmcnt--lf an adtninistrafi;,·c act-C. J>. and Berar i'funicipalities Act, 1922 (Act I I of 1922). ss. 53A and 57.
,
•
The n1ain point for clt~ci:;ion in this appeal by the lttunicipal
Comn1ittcc of Dhamtari and its Prcsi<lcnt \\·as, \\·hcther in appointing an Executive Officer in exercise of its po,,·ers under s. 53A of
the C. P. and Bei;ar }!unicipalities Ac$, 1922, the State Go\'crn1nr.nt acted iii a judicial capacity or in an
administra~ve one .
Complai.tng been made against the appellants, the a<lditiona~
ollcctor \Vas directed to hold an enquiry and on
his •r~pOrt the State Go,·crnn1i;nt, by a notilicatiou un<lcr that
secti~n. apppin(cd all' Executive Officer of the Municipal Committee for !8 Tnonth;> ,,·ith specified po\l,·crs and duJies.
The
·~ppellants were gi\'en notice of the said enqlliry, filed objections
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