# Biswambhar Singh v. The State of Orissa and Others

- **Citation:** [1954] 1 S.C.R. 873
- **Court:** Supreme Court of India
- **Decided:** 1954-01-13
- **Bench:** Mehr Chand Mahajan. C.J
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/biswambhar-singh-v-the-state-of-orissa-and-others-278
- **Pages:** 11

## Headnote

MuKHERJEA,
VIVIAN BosE, GHuLAM HAsAN
and JAGANNADHADAS JJ.]
Constitution of India, art. 19 (1)
(g)-Excise Regulation I of
1915-Whether ultra vires art. 19 (J) (g)-Reasonable restrictions
under art. 19 (6)-Charge of fee-Whether in the nature of tax.
Held, (i) that with reference to Excise Regulation I of 1915
for the purpose of determining reasonable restrictions within the
meaning of art. 19 ( 6) of the Constitution,
on
the right given
un<lrr cl. 19 ( 1) (g) regard must be had to the nature of
the
business and the conditions
prevailing in a particular trade and
no hard and fast rules concerning all trades can be laid
down.
The State has the power to prohibit trades which are illegal
or
in1moral or injurious to the health and welfare of the public. There
"is no
inherent right in a citizen to
sell intoxicating liquors
by
retail and therefore the provisions of the Excise
Regulation
I of
1915
purporting
to
regulate trade in liquor
in all
its different
spheres are not invalid;
(ii) charge of licence fee by public auction is more in the nature
of a tax than a licence fee though it is described as a licence
fee.
One of the purposes of the Regulation is to raise
revenue.
Revenue is collected
by the grant
of contracts to carry
on trade
in liquors and these contracts are sold by auction.
The grantee
1953
Biswambhar
Singh
v.
The State of
Orissa
and Others.
Bose J.
1954
January 13
1954
Cooverju
B. Bharucha
v.
The Excise Commissioner and the
Chief Commissioner, Ajmer,
and OJhers.
874
SUPREME COURT REPORTS
[1954]
is given a licence on payment of the auction price.
The Regulation
specially
authorises this.
It is not a fee levied
without
authority of law.
(i) Crowley v. Christensen (34 Law, Ed. 620, 623)
(ii) Commonwealth of Australia v. Bank of New South Wales
([1950] A.C. 235)
(iii) Rashid Ahmed v. Municipal Board of Kairnna ([1950] S.C.J.
324) ( <listinguished) referred to.
·
ORIGINAL
f URISDICTION : Petition
(No. 232 of 19)3)
under art. 32 of the Constitution of India.
B. D. Sharma for the petitioner.
M. C. Setalvad, Attorney-General for India
(Portts
A Mehta, with him) for the respondent.
1954. Jannary 13. The Judgement of the Court was
delivered by
MAHAJ:AN C. r.-This petition under article 32 of
the
Consritution
of
India
arises
in
the
following
circu1nstances.
The Collector of Excise, Ajmer, respondent No. 3,
on the 16th
March,
1953, held an auction sale of
"Chang Gate conntry liquor shop, Beawar," for the
year
1953-54
pursuant
to
the rules
framed under
Excise Regulation I of 1915.
The petitioner and respondent No. 5, Chhoga Lal, offered bids at the auction
sale.
Chhoga
Lal,
whose bid
was in the sum of
Rs. 57,000,
was declared
the highest bidder and the
pet!tIOner
who was the former licensee was thus unsuccessful in obtaining the contract to run this liquor
shop as hereinbefore.
Half of the auction price was
payable immediately on the provisional acceptance of
the bid.
Chhoga Lal, however, deposited Rs.
16,500
on the 16th March, 1953, and the balance of Rs. 12,000
on the 18th
March, 1953, i.e., two days after the due
date, contrary to the provisions of sub-rule 8(a) of
rule 6 of the auction rules..
In spite of this the sale
was eventually confirmed in his favour by the Minister
of EJtcise.
The petitioner, when apprised of this irregularity,
sent a telegram to the Collector of Excise
stating that
S.C.R.
SUPREME COUR1' REPORTS
875
the sale
should not be confirmed in favour of Chhoga
Lal as he had failed in paying the price according to
the mks and expressing
his willingness to take the
licence on the price fetched at that auction sale.
He
also
preferred an appeal to the Chief Commissioner
against the order of the Collector allowing the deposit
of Rs. 12,000 after the due date and in not ordering
a resale.
His appeal and representation both were unsuccessful.
He claims redress for both these grievances
by means of this petition.
The petition is founded on the following allegations:
(1) That the
petitioner's fundamental right
to
carry on

## Text

S.C.R.
SUPREME COURT REPORTS
873
effect to the provisions of the Orissa Estates Abolition
Act of 1951
and not to take possession of the several
estates of the three petitioners under that Act.
The costs of the petitions here and in the High
Court should, in our opinion, be paid by the State of
Orissa.
Appeals Nos. 167 and 168 allowed
Appeal No. 169 dismissed.
Agent for the appellants: B· P. Maheshwari.
Agent for the respondents: G. H. Rajadhyaksha.
COOVERJEE B. BHARUCHA
v.
THE EXCISE COMMISSIONER AND
THE CHIEF COMMISSIOKER, AJMER,
AND OTHERS.
[MEHR
CHAND
MAHAJAN. C.J.,
MuKHERJEA,
VIVIAN BosE, GHuLAM HAsAN
and JAGANNADHADAS JJ.]
Constitution of India, art. 19 (1)
(g)-Excise Regulation I of
1915-Whether ultra vires art. 19 (J) (g)-Reasonable restrictions
under art. 19 (6)-Charge of fee-Whether in the nature of tax.
Held, (i) that with reference to Excise Regulation I of 1915
for the purpose of determining reasonable restrictions within the
meaning of art. 19 ( 6) of the Constitution,
on
the right given
un<lrr cl. 19 ( 1) (g) regard must be had to the nature of
the
business and the conditions
prevailing in a particular trade and
no hard and fast rules concerning all trades can be laid
down.
The State has the power to prohibit trades which are illegal
or
in1moral or injurious to the health and welfare of the public. There
"is no
inherent right in a citizen to
sell intoxicating liquors
by
retail and therefore the provisions of the Excise
Regulation
I of
1915
purporting
to
regulate trade in liquor
in all
its different
spheres are not invalid;
(ii) charge of licence fee by public auction is more in the nature
of a tax than a licence fee though it is described as a licence
fee.
One of the purposes of the Regulation is to raise
revenue.
Revenue is collected
by the grant
of contracts to carry
on trade
in liquors and these contracts are sold by auction.
The grantee
1953
Biswambhar
Singh
v.
The State of
Orissa
and Others.
Bose J.
1954
January 13
1954
Cooverju
B. Bharucha
v.
The Excise Commissioner and the
Chief Commissioner, Ajmer,
and OJhers.
874
SUPREME COURT REPORTS
[1954]
is given a licence on payment of the auction price.
The Regulation
specially
authorises this.
It is not a fee levied
without
authority of law.
(i) Crowley v. Christensen (34 Law, Ed. 620, 623)
(ii) Commonwealth of Australia v. Bank of New South Wales
([1950] A.C. 235)
(iii) Rashid Ahmed v. Municipal Board of Kairnna ([1950] S.C.J.
324) ( <listinguished) referred to.
·
ORIGINAL
f URISDICTION : Petition
(No. 232 of 19)3)
under art. 32 of the Constitution of India.
B. D. Sharma for the petitioner.
M. C. Setalvad, Attorney-General for India
(Portts
A Mehta, with him) for the respondent.
1954. Jannary 13. The Judgement of the Court was
delivered by
MAHAJ:AN C. r.-This petition under article 32 of
the
Consritution
of
India
arises
in
the
following
circu1nstances.
The Collector of Excise, Ajmer, respondent No. 3,
on the 16th
March,
1953, held an auction sale of
"Chang Gate conntry liquor shop, Beawar," for the
year
1953-54
pursuant
to
the rules
framed under
Excise Regulation I of 1915.
The petitioner and respondent No. 5, Chhoga Lal, offered bids at the auction
sale.
Chhoga
Lal,
whose bid
was in the sum of
Rs. 57,000,
was declared
the highest bidder and the
pet!tIOner
who was the former licensee was thus unsuccessful in obtaining the contract to run this liquor
shop as hereinbefore.
Half of the auction price was
payable immediately on the provisional acceptance of
the bid.
Chhoga Lal, however, deposited Rs.
16,500
on the 16th March, 1953, and the balance of Rs. 12,000
on the 18th
March, 1953, i.e., two days after the due
date, contrary to the provisions of sub-rule 8(a) of
rule 6 of the auction rules..
In spite of this the sale
was eventually confirmed in his favour by the Minister
of EJtcise.
The petitioner, when apprised of this irregularity,
sent a telegram to the Collector of Excise
stating that
S.C.R.
SUPREME COUR1' REPORTS
875
the sale
should not be confirmed in favour of Chhoga
Lal as he had failed in paying the price according to
the mks and expressing
his willingness to take the
licence on the price fetched at that auction sale.
He
also
preferred an appeal to the Chief Commissioner
against the order of the Collector allowing the deposit
of Rs. 12,000 after the due date and in not ordering
a resale.
His appeal and representation both were unsuccessful.
He claims redress for both these grievances
by means of this petition.
The petition is founded on the following allegations:
(1) That the
petitioner's fundamental right
to
carry on trade or business in liquor under article 19(1)
(g) had been infringed
by
the act of the Collector of
Excise, in condoning the failure of the respondent in
depositing the whole of the security deposit required
under sub-rule S(a) of rule 6 of the auction rules within
the
prescribed time
and in not reauctioning the
licence under sub-rule 9 of rule 6.
(2) That
in allowing Chhoga Lal to make the
deposit
after
the expiry
of the prescribed time the
Collector had discriminated between him and Chhoga
Lal
and
had
thus abridged the petitioner's fundamental right under article 14.
It is alleged that if the
petitioner
had known that the Collector would enlarge
the time for the security deposit be would have offered
a higher bid.
(3) That
the
Hon. Minister
for
Excise, respondent No. 2,
had no authority under the regulation
to confirm the auction sale held by the Collector.
( 4) That the
~ummary
rejection
of his appeal
without hearing was
not justified and has resulted in
the abridgement of his right to carry on his trade.
( 5) That the provisions of the Excise Regulation
and the auction rules made thereunder were ultra vires
as the same purport to grant monopoly of trade to a
few persons . and are thus inconsistent with article 19
(1) (g) of the Constitution and that the provisions of
the regulation regarding levy of licence fee with the
avowed object of raising a big source of revenue also
1954
Cooverjee
B. Bharutha
v.
Tiu Excise Com ..
mis~ioner and lhe
ChiefCommiJ ..
sioner, Ajmer,
and Others.
Mahajan c. J.
1954
Coove'ljee
B. Bharucha
v.
The Excise Commissioner and the
Chief Commissianer, Ajmeri
and Others.
Mahajan C. ].
876
SUPREME COURT REPORTS
[1954]
serious! y affected the fundamental rights of the petitioner under article 19(1) (g)
of the Constitution. On
these allegations the petitioner
prayed for a writ of
mandamus
or a writ
in
the nature thereof or a
direction or order on respondents Nos. 1 to 4 directing
them,
(a) not to levy any duty or fee for the purpose of
raising revenues for the benefit of the State by holding
auction sales,
(b) not to grant monopoly in the trade
to a
selected few individuals, but to grant licences freely on
application, and .
( c) to grant a licence to the petitioner to deal in
country liquor with his place of business at or near
Chang Gate, Beawar.
In the alternative a mandamus was asked directing
the officer concerned either to confirm tne next lower
bid of the petitioner and to grant the licence for Chang
Gate liquor
shop, Beawar, in his favour or to hold a
reauction in accordance with the auction rules and to
cancel the licence of respondent No. 5.
Some of the points raised are clearly outside the
ambit of the constitutional remedy provided under
article 32 of the Constitution and will be considered
hereinafter.
The main contention which needs consideration
in
the
case
is
regarding
the
constitutional
validity of the Excise Regulation I of 1915.
It was
contended
that the petitioner, a citizen of free India,
had an unfettered right to carry on trade and business
in liquor and this right had been guaranteed to him
under article 19 (1)
(g) of the Constitution, and that
being so, the provision; of the regulation which confer
discretion on the Excise
Commissioner to restrict the
number of liquor shops, and to license them by auction
to the highest bidder amount to creation of a monopoly in liquor trade and are void. The excessive licence
fee recovered
by public auction was attacked on the
ground that it was not in the nature of a licence fee
but was in the nature of a tax and this could
not be
S.C.R.
SUPREME COURT REPORTS
877
recovered by having resort to the powers of legislation
saved
by article 19 ( 6) of the Constitution.
In order to determine the validitv of these contentions, it is necessary to refer to
th~ relevant provisions
of the regulation which consolidates and amends the
law relating to import, export,
transport, manufacture,
sale and possession of intoxicating liquors and of
intoxicating drugs, in the Provinces of Ajmer-Merwara.
It has been enacted in exercise of the legislative power
conferred
by
the Government of India Act
1935
Seventh Schedule, List II, "For making laws regarding intoxicating liquors, i.e.,
the production, manufacture,
possession, transport, purchase and sale of
intoxicating liquors", and
under power conferred for
raising "duties of excise on alcoholic liquors for human
consumption."
The pith and substance of the regulation is that it raises excise revenue by imposing duties
on liquor and intoxicating drugs by different methods
and
it
also
regulates the import, export, transport,
manufacture,
sale
and possession
of
intoxicating
liquors.
Section
13 enacts that no
excisable
article
shall be manufactured
or c0~!~'.'ted except under
the
authority
and subject to the terms
and conditions of
a licence granted in that behalf.
Section 14 provides
that the excise commissioner may (a)
establish a distillery
in
which
spirit may be manufactured under a
licence granted under section 13 on such conditions as
the Chief Commissioner may impose;
(b) discontinue
any such distillery; ( c) license, on such conditions as the
Chief Commissioner may impose, the construction and
working of a distillery or
brewery;
(d) establish
or license a warehouse wherein any excisable article
may be deposited and kept without payment of duty;
and ( e)
discontinue any such warehouse.
Section 15
provides that
without
the sanction of the Chief Commissioner no excisable article shall be removed from
any distillery,
brewery,
warehouse or other place of
storage.
Section 18 says that the Chief Commissioner
may lease to any person, on such conditions and for
such period as he may think fit, the right of manufacturing or of supplying by wholesale, or of both, or
1954
Coovetjee
B .. Bharucha
v.
The Excise Com·
missioner and the
ChiefCommis·
sioner, Ajmer,
and Others.
Mahajan C. J.
1954
Cooverjee
B. Bharucha
v.
The Excise Commissioner, and the
Chief Commis~
sioner, Ajmer,
and Others.
Mahajan C. J.
878
SUPREME COURT REPORTS
[1954)
of selling by wholesale or by retail, or of manufacturing or of supplying by whole, or of both and of selling
by
retail any country liquor or intoxicating drug
within
any specified
area. Restrictions regarding the
manufacture and sale of liquors in cantonments and
other places are found in some other provisions of the
regulation.
The employment
of children and women
is
prohibited in this business
and provision is made
authorising
the District
Magistrate for closing shops
for the sake of maintenance of public peace. Section 24
authorises
the Chief Commissioner to impose a duty
at such rate or rates as he thinks fit on any excisable
article
imported,
exported, transported or
manufactured,
cultivated
or
collected
under
any licence
granted under section 13·
Section 27 deals with grant
of
licences, permits
and passes.
It provides that a
licence shall be granted on payment of such fees, if
any, for such period and subject to such restrictions
and on such conditions and shall be in such form and
contain such particulars as the Chief Commissioner
may direct either generally
or
in
any particular
instance.
Power
is
then
given
by section 30 for
cancellation
or suspension
of the licence.
Sections
31 and 32 provide for the withdrawal and surrender
of licence.
Chapter
VII of the regulation deals with
offences
and
penalties.
Chapter VIII deals
with
detection, investigation
and trial
of offences under
the regulation.
Section 62 provides, inter
alia, that
the Chief Commissioner
has power to make rules prescribing the scale of fees and the manner of fixing the
fees payable in respect of any privilege, licence, permit
or pass or the storing of any excisable article.
Section
64 says that the following moneys, namely, all excise
revenue,
any
loss
that
may accrue when in consequence of default
a grant
has been taken under
management by the Collector or has been resold by
him, and
all amounts due to the Government by any
person
on account
of any contract relating to the
excise
revenue, may
be recovered from the person
primarily liable to pay the same, or from his surety
(if any), by distress and sale of his movable property
or by any other process for the recovery of land
..
S.C.R.
SUPREME COURT REPORTS
879
revenue due from landholders or from farmers of land
or their sureties. _
Article 19 ( 1)
(g) of the Constitution guarantees
th;.it all citizens have the right to practise any profession or to carry on any occupation or trade or business, and clause ( 6) of the article authorises legislation
which imposes reasonable restrictions on this right in
the interests
0£ the general public.
It was not disputed that
in
order to determine the reasonableness
of the restriction
regard must be had to the nature of
the
business and the conditions prevailing in that
trade.
It is obvious
that
these factors must differ
from
trade to trade and no hard and fast rules concerning all trades can be laid down.
It can also not
be denied
that
the
State has the power to prohibit
trades which are illegal or immoral or injurious to the
health and welfare
of the public.
Laws prohibiting
trades in noxious or dangerous goods or traffickir.g in
women cannot be held to be illegal as enacting a prohibition and
not
a mere regulation.
The nature of
the business is,
therefore, an important element in
deciding the reasonableness of
the restrictions.
The
right of every citizen to pursue any lawful trade or
business is obviously subject
to such
reasonable conditions as may be deemed by the governing authority
of the country essential
to
the
safety, health, peace,
order and morals of the community.
Some occupations
by the noise made in their pursuit, some by
the odours they engender, and some by the dangers
accompanying
them,
require regulations
as
to
the
locality
in
which they may be conducted.
Some, by
the dangerous character of
the articles used, manufactured or sold, require also special qualifications in
the parties permitted to use, manufacture or sell them.
These propositions
were not disputed,
but it was
urged that there was something wrong in principle
and objectionable in similar restrictions being applied
to the business · of selling by retail, in small quantities,
spirituous and intoxicating liquors.
It was urged that
their sale should be without restriction, that every
person has a right which inheres in him, i.e., a natural ·
5-96 S. C. India/59
!9~'
a-.ju··
B .. B,,-/io.·.
y.
Thi E>iis..C.- ·
missio11n MIJ-IM"
C1tiif~-·:.
SClitia, ·.Aj1Uf>·.
and Ollwrl. ,.
-,
Mahf!fon•C. :l•''
1954
Coo<lrrjff
B. B""""'1a
v.
TM &iseCom·
mis.W- tutd 11.e
GitN/OJmmi,.
siMfr; Aj1tttr
-' Ol1Mt.
MahtljBn C. J.
880
SUPREME COURT REPORTS
[1954]
right to carry on trade in intoxicating liquors and that
the State had no right to create a monopoly in them.
This contention
stands answered by what Field J.
said in Crowley v. Christensen('):
"There is iti this position an assumption of a fact
which does not exist, that when the liquors are taken
in excess the injuries are confined to the party offending.
The injury, it is true, first falls upon him in his
health, which the habit undermines; in his morals,
which it weakens; and in the self-abasement which it
creates.
But
as
it leads to neglect of business and
waste of property and general demoralisation, it affects
those
who
are
immediate! y
connected
with and
dependent upon him.
By the general concurrence of
opinion of
every civilized and Christian community,
there are few sources of crime and misery to society
equal to
the dram shop,
where intoxicating liquors,
in small
quantities. to be drunk at the time, are sold
indiscriminately to all
parties applying.
The statistics
.of every State show a greater amount of
crime and
misery attributable to the use of ardent spirits obtained at these retail
liquor
saloons than to any otber
~ource. The sale of such liquors in this way has therefore, been, at all times, by the courts of every State,
considered as
the proper subject of legislative regulation.
Not only may a licence be exacted from the
keeper of the saloon before a glass of his liquors can
be thus disposed of, but restrictions may be imposed
as
to the class of persons to whom they may be sold,
and the hours of the day, and the days of the week
on
which the saloons may be opened.
Their sale in
that form may be absolutely prohibited.
It is a question of public expediency
and public morality, and
not of federal law.
The police power of the State is
fully
competent to regulate the business-to mitigate
its evils or to suppress it
entirely.
There is no
inherent right in a citizen to · thus
sell intoxicating
liquors by retail; it is not a privilege of a citizen of
the State or of a citizen of the United States. As it is
a business attended with danger to the community,
it may, as already said, be entirely prohibited, or be
(1) 34 Law. Ed. 620, 6'3·
..
S.C.R.
SUPREME COURT REPORTS
881
permitted under such conditions as
will limit
to the
utmost
its
evils.
The manner and extent of regulation
rest
in the discretion of the governing authoritv.
That authority may vest in such officers as it may
deem proper the power of passing upon applications
for permissioa t0 carry it on, and to issue licences for
that
purpose.
It
is
a
matter of legislative
will
only."
These observations have our entire concurrence and
they
completely
negative
the contention raised
on
behalf of the petitioner.
The provisions of the regulation purport to regulate
trade in liquor in all its
different spheres and are valid.
The contention that the effect of some of these provisions
is
to enable Government to confer monopoly
rights on one or more persons to the exclusion of others
and that creation of such monopoly rights
could
not be sustained
under article 19 ( 6) i~ again without
force.
Reliance was placed on the decision in Raslzid
Ahmad v. Municipal Board of Kairana('). That decision is no authority for the proposition contended for.
Elimination and exclusion from
business
is inherent
in
the
nature of liquor business and it will hardly
be proper to apply
to
such
a business principles
applicable
to
trades
which
all could carry. The
provisions
of
the
regulation cannot be
attacked
merely on the ground that they create a monopoly.
Properly
speaking, there
can be a monopoly only
when a trade which could be carried on by all persons
is entrusted
by
law
to
one
or more persons to
the exclusion
of the general public.
Such, however, is
not the case with the business of liquor. Reference in
this connection may be
made to the observations of
Lord Porter in Commonwealth of Australia v. Bank
of New South
Wales( ).
This is what his Lordship
~aid:
"Yet about this as about every other proposition
in this· field
a reservation must be made. For their
Lordships do not intend to lay it down that in no cirnunstances would exclusion of competition so as
to
(•) (1950) S.C . .J. 324.
(2) (1950] A.C. 233.
1954
Cooverjee
B. Bharucha
v.
The Excis~ Commissionfr and the
Chief Commissioner, Ajmer
and Others.
Ma/wJan C. ].
1954
Cooverjee
B. Bharuc.'1a
v.
The Excise Commissionef' and the
Chief Commissio11er, Ajmef'
and Others.
Mahajan C. J.
882
SUPREME COURT REPORTS
[19541
create a monopoly either
in a State or Commonwealth
agency or in some other body be justified. Every case
must be judged on its own facts and in its own setting
of time."
Further it seems to us that this argument suffen
from a fallacy.
Under the rules every member of the
public who wishes to carry on trade in liquor is invited
to make bids.
This is the only method by which carrymg on of liquC>r trade can be regulated.
When the
contract is
thrown open to public auction, it cannot
be said
that
there is exclusion of competition and
thereby
a monopoly is created.
For all these reasons
we are of opinion that the contention that the provisions of the regulation are unconstitutional as
they
abridge the rights of the petitioner to carry on liquor
trade freely cannot be sustained.
The next contention that the charge of fee by public
auction
is excessive and is not in the nature of a fee
but a tax ignores the fact that that licence fee described as a licence fee is more in the nature of a tax
than a licence fee.
One of the purposes of the regulation is to raise revenue. By the provisions of section 24,
duties can be
imposed on the manufacture, import,
export and transport
of liquor and other excisable
articles.
Revenue
is also collected by the grant of
contracts
to
carry on
trade in liquors and these
contracts are sold by auction.
The grantee is given a
licence on payment
of the auction price. The regulation specifically authorises this.
It is not a fee levied
without authority of law as was the situation in Rashid
Ahmad's case( 1).
As regards the other contentions of
the learned
counsel, it is sufficient to say that if there has been
any breach of the rules framed under the regulation
by the officers concerned, the remedy for such breaches
is provided for in the regulation itself. Mere irregularities committed in conducting an auction sale connot
be said to have abridged the petitioners's fundamental
rights and so article 32 is not attracted. It is open to
the petitioner under article 226 to approach the
High
Court for a mandamus if the officers
concerned have
i•) [1950] S.C.J. 324.
S.C.R.
SUPREME COURT REPORTS
883
conducted themselves not in accordap.ce with law or if
they have acted
in excess of their jurisdiction. The
same is
the answer to the petitioner's next contention
that the sale
could not
be confirmed by the Minister
and
that
under the rules it was only the Chief Comm1ss10ner who was
authorised to confirm it. The
point of
discrimination
was
not
seriously
argued
before us.
For the reasons given above we see no validity in
this application
and
we accordingly dismiss
it with
costs.
Petition dismissed.
Agent for the peut10ner: S. D. Sekhri.
Agent for the respondent: G. H. Rajadhyaksha.
THE VICE-CHANCELLOR, UTKAL
UNIVERSITY AND OTHERS
fl.
S. K. GHOSH AND OTHERS.
[MEHR
CHAND
MAHAJAN. C.J.,
MuKHERJEA,
S. R. DAs, VrVIAN
BosE and GHULAM
HASAN JJ.]
Constitution of
India, art.
226-Mandamus
petition-High
Court-Whether can
constitute itself as court of
appeal-Resolu~
ti<>ns passed by
University
Syndicate-Validity
of-Notice
of
meeting issued to all-T¥ant
of due notice
waived-Substantial
compliance with spirit of law.
In the present case there were two meetings of the University
Syndicate, consisting of twelve members.
Proper notices of both
meetings were issued to all the members but one member did not
attend one meeting and another n1e111ber did not attend the other
·meeting. 1'he defect \Vas
that the subject matter of the present
·case was not included in the agenda of either meeting but one of
the items in the agenda of both the notices was "other matters_,
if any."
The subject matter consisted of leakage of examination
papers and the cancellation of results.
~fhose present
passed
the
resolution on both occasions unanimously.
The High Court held
that want of notice in
the two cases invalidated the resolutions
!954
Coovetjee
B. Bharucha
v.
The Excise Commissioner and the
Chief Commis~
sioner, Ajmer
and Others.
Mahajan C . .].
1951
Jariuary 15.