# Quem v. James Bolton, (r84r)'(r) Qucen.•s Bench 66, Ki1~g ~

- **Citation:** [1958] 1 S.C.R. 1240
- **Court:** Supreme Court of India
- **Decided:** 1957-08-06
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/quem-v-james-bolton-r84r-r-qucen-s-bench-66-ki1-g-1407
- **Pages:** 35

## Headnote

'1240
SUPREME COURT- REPORTS
[l958j.
·.,NAGENDRA NATH BORA & ANOTHER ·
.·• . .
v.
•. 'I
February 7·
.
',
~
.- THE .. COMMISSIONER OF HILLS 'DIVISIO~ _.-
.· ..
~ND- APPEA~S, ASSAM, A~D- OTHERS_
-·-
: ·'; ·:
- (and ·connected appeals)
:
-
.
l ',.. .
·.·
..•
. .
.
'
'
·' . '
' .
~·: (BHAGWATit' B. P. SINHA~ JAFER I~IAM, J. L~ KAPUR I
: •. ' . ~ .. ) . 'and GA~~N!;JR.A.G.ADKAR JJ.) \. ·--~.
' ·.· :' '~
_
High Court, Powers of-. vVrit of certiorari,. if can be issue,l. to
quash an r,rror of fact appare1~t ,on the face of the .record-Judicia~
Supervision,· Scope of-Appellate ,Authority if and. when _acts_
i1~
quasi-judicial. capacity-· Tes~-:-Plea of failure of .natzeral ·justice~
when· can be ··entertai}£ed-Constitution of India, Arts. 226,· 2:27-·
Eastern Be·ngal and :Assam Excise. Act, I9IO (E. B. & Assam· Act I
of.I9IO) as amendedby Ad. 23 of I955, s. 9· Rule 343·
.
:
·.
The High Court has no power under Art. 226 of the Con5titi.i'-
tion to issue a writ of certiorari in order to quash an error of tact,
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
con·ect as a: court of appeal or revision cannot be a ground for the
exercise of its power under that Article. · ·'
.
.
· H ari V islmu Kamath v. Syecl Alw~ed I shaquc a-n,l 'otlzers, [1955]
I S.C.R. II04, relied on.
Quem v. James Bolton, (r84r)'(r) Qucen.•s Bench 66, Ki1~g ~
Nat Belt Liqz~ors, Limited, [1922] 2 A.C. 128, Rex v. Nortlum~b,;r
land Compensation.. Appeal Tribunal, (1951) I K.B. 7II and Rex v_.
Nortlmmberlmtd Compensatiol~ Appeal Tribunal, (1952) I K.B. 338,
;referred to.
.
.
.
The jurisdiction of the High Court under Art. 226 of the
Constitution is limited to seeing that the judicia~ or quasi-judicial
tribunals or administrative bodies exercising quasi-juditial 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.
}Varyam Singh and another v. Amama!IJ 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
...
I .
s.c.It~
S.UPREI\fE COURT ;REPORTS
1241
. · tain orders.made by th: Ex~ise Appellate Authority under the
I9J8
cersam Excise Act a~ bcmg m excess of its jurisdiction on the
As und that they were ';'itiated by errors of fact apparent on the lfagmdra Nath
f:~e of the record, such tnt~rference was without jurisdiction and Bora 6- Another
the orders passed by thcHtgh Court must be set aside.
. ·.
v. . .
·
1
·
Tha CommtssumBr
Held further; that w 1ere an appellate Authority as in the
fH'll D · · .
, .
'
'
d h h"
•
'
0
I
.S
IUISJ01J
·nstaltt case, IS constitute
t e
1~hest authonty by the statute cS- Appeals · Assam
~or decidin~ as bet~veen . the c\~lffiS Of rival parties, its powers
and O;hers
'
cannot be c1rcums;nbed ~o~ c~n ~t be hehl to. have acted in excess
of its powers or. w1thout JUn_sdlctlOn on considerations foreign to
the statute or .the rules. . .
.
. .
.
.
. . .
Rainmt and Raman Ltd. v. The State of J.l!adra.s, [rgs6] S.C.R.
zs6, 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 tl~ rules Jaid 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 Prakas!J Transpor

## Text

_Characters 0–39,823 of 82,218. This is a partial read: ask again with offset=39823 for what follows._

'1240
SUPREME COURT- REPORTS
[l958j.
·.,NAGENDRA NATH BORA & ANOTHER ·
.·• . .
v.
•. 'I
February 7·
.
',
~
.- THE .. COMMISSIONER OF HILLS 'DIVISIO~ _.-
.· ..
~ND- APPEA~S, ASSAM, A~D- OTHERS_
-·-
: ·'; ·:
- (and ·connected appeals)
:
-
.
l ',.. .
·.·
..•
. .
.
'
'
·' . '
' .
~·: (BHAGWATit' B. P. SINHA~ JAFER I~IAM, J. L~ KAPUR I
: •. ' . ~ .. ) . 'and GA~~N!;JR.A.G.ADKAR JJ.) \. ·--~.
' ·.· :' '~
_
High Court, Powers of-. vVrit of certiorari,. if can be issue,l. to
quash an r,rror of fact appare1~t ,on the face of the .record-Judicia~
Supervision,· Scope of-Appellate ,Authority if and. when _acts_
i1~
quasi-judicial. capacity-· Tes~-:-Plea of failure of .natzeral ·justice~
when· can be ··entertai}£ed-Constitution of India, Arts. 226,· 2:27-·
Eastern Be·ngal and :Assam Excise. Act, I9IO (E. B. & Assam· Act I
of.I9IO) as amendedby Ad. 23 of I955, s. 9· Rule 343·
.
:
·.
The High Court has no power under Art. 226 of the Con5titi.i'-
tion to issue a writ of certiorari in order to quash an error of tact,
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
con·ect as a: court of appeal or revision cannot be a ground for the
exercise of its power under that Article. · ·'
.
.
· H ari V islmu Kamath v. Syecl Alw~ed I shaquc a-n,l 'otlzers, [1955]
I S.C.R. II04, relied on.
Quem v. James Bolton, (r84r)'(r) Qucen.•s Bench 66, Ki1~g ~
Nat Belt Liqz~ors, Limited, [1922] 2 A.C. 128, Rex v. Nortlum~b,;r
land Compensation.. Appeal Tribunal, (1951) I K.B. 7II and Rex v_.
Nortlmmberlmtd Compensatiol~ Appeal Tribunal, (1952) I K.B. 338,
;referred to.
.
.
.
The jurisdiction of the High Court under Art. 226 of the
Constitution is limited to seeing that the judicia~ or quasi-judicial
tribunals or administrative bodies exercising quasi-juditial 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.
}Varyam Singh and another v. Amama!IJ 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
...
I .
s.c.It~
S.UPREI\fE COURT ;REPORTS
1241
. · tain orders.made by th: Ex~ise Appellate Authority under the
I9J8
cersam Excise Act a~ bcmg m excess of its jurisdiction on the
As und that they were ';'itiated by errors of fact apparent on the lfagmdra Nath
f:~e of the record, such tnt~rference was without jurisdiction and Bora 6- Another
the orders passed by thcHtgh Court must be set aside.
. ·.
v. . .
·
1
·
Tha CommtssumBr
Held further; that w 1ere an appellate Authority as in the
fH'll D · · .
, .
'
'
d h h"
•
'
0
I
.S
IUISJ01J
·nstaltt case, IS constitute
t e
1~hest authonty by the statute cS- Appeals · Assam
~or decidin~ as bet~veen . the c\~lffiS Of rival parties, its powers
and O;hers
'
cannot be c1rcums;nbed ~o~ c~n ~t be hehl to. have acted in excess
of its powers or. w1thout JUn_sdlctlOn on considerations foreign to
the statute or .the rules. . .
.
. .
.
.
. . .
Rainmt and Raman Ltd. v. The State of J.l!adra.s, [rgs6] S.C.R.
zs6, 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 tl~ rules Jaid 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 Prakas!J Transport .co. Ltd. v. New Suu::ama Transport
Co. Ltd., [I957] S.C.R. g8, rehed on.
·
·
' • · The question ~vhether 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
\vhich it acts, and there can be no doubt on such examination
that the Authorities mentioned in s. g 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.
. ·
CrviL
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 Qourt
in Civil Rule No. 65 of 1957. · · .
A. V. Viswanatha Sa8iri and. Dipa.k Datta Ch~udl~tur?J,
for the appellants in C. As. Nos. 668 and 669 of 1957
and respondent No.2 in C.A .. No. 670 of 1957.
S. }Jf. Lahiri, Advocate-General for the State of Assam
an? Naunit Lal, for the appellants in C.A. No. 6!0 of
19o7 and respondent No. 2 in C.A. No. 669 of 19o7.
1958. February 7; Tho following · Judgment of the
.Court was delivered by
·
'
.
'
. .. . .
~
..
i242 .
SUPREME COURT REPORTS
[1958]
:r95B
~SINHA J.-These appeals by special leave ~redirect.
-
ed aoainst ·the judgments and orders of the Assam
Nagendra Nath H 1"gh° Court, exercising its powers under Arts. 226 and
Bora 6- Another
......
.
v.
227 of the Constitution, in respect of orders passed by
The. Commis~io"ne~ the Revenue Authorities under the provisions of the
. of Hills Divisio11 Eastern Bengal and Assam Excise Act, 1910 (E. B.
"&Appeals~ Assam, and Assam Act I of 1910) (hereinafter referred to as
and Others
the Act). They raise certain common · questions of
Sinlla ].
constitutional law~ and have, therefore, been heard
together, and will be disposed of by this Judgment • .
Though 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 sta.te
them.
·
(I) Oivil Appeal No. 668 of 1957.
The two appellants Nagendra Na.th 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 E:!cise 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 re1ated to one. another (vide
correction slip at p. 106 of the Assam Excise l\Ia.oua.l,
1946). In accordance with the rules framed under the
Act, tenders were invited by the Deputy Commissioner
of SibsC;\gar, for the settlement of Jorhat country spirit
shop for the financial year 1957-58 in December, 1956.
Tt~e appella!lts as rnembers of the' partner~hip aforesatd, subm1tted a tender in the prescrtbed form.
Respondents 3 and 4, Dharmesh war l(a.lita and
Someswa.r Neog, respectively, also were amongst the
tenderers. Tho Commissioner of Hills Division and
Appeals, Assam, and the Commissioner of Excise,
Assam, ar~ the first and the second respondents in th_is
case. It 1s necessary to state at this stage that 1n
respect of the financial year 1956·57, the shop in
I )
s.c.R.
SUPREME COURT.REPORTS
1243
uestion was ordered b;r the first respondent as the
I 9s8
~xoise Appellate Authonty to be settled. with the first
.
. ellant Nagendra Na.th as an individual setting Nagelldra Nut!,
app
d
f th D
t c
. .
'
Bora & Anotller
aside the or e~s ?
e . epu y ommxsswr:ter and, the
v.
Excise .CommtssiOn~r. · .The o~her. c.omp~tltors for the n 8 Commissio?Jer
settlem.ent of the sa1d shop being dissa.t1sfied with the of Hills Division
orders of the first respondent, moved the Assam High cS- Appeals, A ssam,
Court. and challenged . the validity of the settlement
aud OJ hers
· made in . the. first . appellant's favour. , Similar writ
5;,1111 J.
cases· .. oha.llenging ... 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 firs~ 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, wa.s not unconstitutionat
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, tu make
several references to that decision which, for the ~ ~1.ke
of brevity, we shall call the 'ruling of this Court,.· Tl.e
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 directton of the Excise Commissioner tha.t the shop in
question be re-settled, was carried out, and the settlement was made with the third respondent aforesaid
as a.n individual • . He continued in possession of the
shop until February 26, 1957, on which date, the fi:rst
appellant was put in possession as a result of the ruhng
A
.
I
(I) [1957) S.C.R. 2.95·
'
· I ·
1~8. ':. : . , . . •
,
, .
,
--
Nagendra N ath
Bora c;. At•otller
v.
1244 ,-·
. SUPREME COURT REPORTS
[1958]
of this Court. ·Even . sg, the first appellant could
exercise his r1ghts as a lessee of the shop only for a,
few months during the financial year ending March 31
1957.
. . . . .
'
Tile c_ommi~s~o~'er
For the financial year 1957-5 8, the Deputy CommisofA~~lstDtAvmon sioner, in consultation with the local Advisory Com~
&
rrea s,
ssam,
•
1 d th
h
.
.
411d others
mlttee; sett e
e· s op In q uest1on with the third and
the· fourth respondents aforesaid. The tender sub ..
Sinh&~ J.
~itte~ by the ~ppellants, :was not considered · by the ·
hcens1ng 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 beeri rendered null and vo1d ·as a result
of the decision of the High Court;·referred to above.
The appellants, as also others who were competnors for
the settlement aforesaid, preferred appeals to the Excise Commissioner who set aside the settlement mad~ in
favour of the respondents. 3 and 4, and ordered settle~
ment 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.
Tho 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 Ifigh 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 re-considered in the light of the observations made by it. The main ground of decision in the
}
,..
s.c.R ..
SUPRE~IE COURT REPORTS ·
1245
I!igh Court,: was that the. E~ci~e :\P,Pellate Authority
had aoted 1n . . excess of Its JUrrsdrctiOn, and that its
d b
Nagendra Nath
order ·was v1t1ate
yerrors appa~ent · on the face of Bora G- Another
the record.· The prayer for a. c.ertJ~cate that .the case
v,
was a. fit one for appeal to this Court, ha vmg been Till Commissione.,
. refused by the High Court, the 'appellants obtained of Hills Division
··
ialleave to appeal.
. ·.
.
6- Appeals, Assrzm.
spec . .
·
.
and Others
' ·(II) 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 La.kbiram Ka.lita and the first respondent Bhanuram 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 tenderera, were dismissed . by the Excise Commissioner by
his order dated 1\-Ia.rch 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 ~Jay 30, 1957, set
aside the settlement in favour of the first respondent,
and ordered settlement with the appellant. In pursuance of that order, the appellant took possession oJ ·
the shop with effect from June 5, 1957. The first
re~pondent's application for review of the order afore- ·
satd, 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 e~ pa1'te, and the High
Court isaued a rule to show cause why. a w1·it as prayed for, . should not be issued. The rule wa~ made
returnable within three weeks. The High Court also
ma.de the further order in these terms :- .
Sinhca f.·
· t . . · ''Meanwhile the stat·us · quo ante will be main-
~:uned ,,
. '
·
!hia l~st , order was mis-interpr~tcd by the first respo~
ent and his advisers o.s entitling them to be put 1n
I
i
' (
!
1246
SUPREME COURT_ REPORTS
[1958]
z95a
possession of the shop, and it is stated .that .~he first
respondent. threatened the appellant to oust hlm from
· Nagendra ·Nath the shop on the. basis of the order of the · High Court
. · Bora&- AtJotlleY
Th
II
d th H. h 0
v. . .
. quoted above.· .
e appe ant move
e
1g
ourt
· The commissioner for : a clarification of. its order aforesaid. ·. The High
of Hills Division Court"naturaUy observed that by .' maintaining status
&-Appeals, Assam· quo ante', the High Court meaut that whoever ,was
.
and Others
in possession of ~he.~ s~op on .June 17, 1957, will conSinha J. .
tinue to' be in· possessron ~ur1ng 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 J\furmuria
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 Pe(J'u ·
who is also the first respondent in Civil Appeal No. 669
of 1957. The second respondent is Lakhiram l(alita
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
,.
,
s.c.R.
SUPRE~1:E COURT -REPORTS
1247
tq Civil Appeal No .. 669 of 1957: This appeal has been
brought :vrt~ a v1ew to getting the legal position
clarified lD vrew of the frequent appeals made to the Nagenrira Nath
t ' th
tt
f
ttl
f
Bora 6- Anothe'f'
appellan .m
e ma . er o se ement o excise shops..
.v.
(IV) Civil Appeal No. 672 0; 1957.
· ·~' The Commi.ss.i~~r
. .
.
.
.
. .
'J
·• ·• of Hzlls Dnn.sum
. This appeal relates to the Tinsukia. country spirit6- Appeals, Assam,
shop in the district of Lakhimpur. The appellants
. and Others.
R~fiplla. . l{.han and Mahibuddin Ahmad, are partners:
and as -such, are interested in the settlement of the
shop for the financial year 1957-58. This shop bad
been jointly settled with the first appellant and his
father for a number of years. ·For 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 questioninO'
the settlement with the first appellant and his fathe~
in respect of the year 1956-57. The Excise Commissioner set aside the settlement, and ordered a re.settlement. 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 com·petitors
for the shop, filed a writ petition before the High Cour~
under Arts. 226 and 227 of the Constitution. Th1s
'Yrit application, along with other similar applications,
was heard and decided by the High Court, as aforesaid, by its judgment da.ted ]flay 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 i~ this Court in the absence of a stay
order, the direction of the Commissioner for a re·settle-·
ment, 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 p~eferred
appeals before tho Commissioner of Excise, a.gamst the
order aforesaid of the Deputy Commissioner.
As the
SinluJ ].
l
' I
!
'
f.
,· I
f
\
I
1-,
I
I ! , .
!
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) . r;
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1:
!!
" '
" ·'
;j
I
'
' .I
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1248
SUPREME COURT REPORTS
[1~58]
195s
special leave appeal.s to .thjs .c~urt '"·ere pending !l''t
-
that time," .the Excise Commissioner, under a m18_
Natendra Nath apprehension of the effect of this Court's order refusing
Bora~ Another interim stay, set aside the Deputy Commissioner's
Ths com:issioner order, and directed the settlement to be ~ade with the
of Hills Division first respondent. As th~re was no Exmse Appellate
<JJ.·Appcals. Assam, Authority functioning ·. ~t t~e time as a resul.t of the
and OJh~rs
decision, aforesaid, of the .High. Court, de~lanng the
Sinha J.
constitution of such a.n Autbonty 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 o~ 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, 1956. 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 Hicrh Court and restored the status of
th~ Excise . Appellate Authority. As a. result of .the
ruh!lg of th1s Court, the Excise Appellate Authority,
by Its ord~r dated February 25, 1957, directed delivery
of p~ssesston back to the first appellant and his father,
holdtng that the order of re-settlement and the rese.ttlement, itself, in pursuance of that order, were all
Wiped out. Against the said order the first respondent
move~ th~ High Court under Art~. 226 and 227 of the
Constit!-ltiOn for quashing the order for delivery of
J.?ORsess!on, ?n the ground of want of jurisdiction, and
for ad tntenm stay. The liigh Court issued a rule and
passecl. an order for interim stay on February 26, 1957 ..
The Illgh Coul't made the rule ·absolute by its order
~atedf1\1a.rch 26, 1957, taking thf' view that the a.tte_n·
wn o th&s Court had not been drawn to the intert·m
~
:f
'
!
s.c.R. . SUPREME COURT REPORTS
1249
settlement Of the ShOp in the. abS6DC8 Of an Order Of
I958
stay.· H appears further that during the pendency of Nagmdra Nat"
the appeal in t~is Court, fresh settlement for the B()ra 6-AMih~
financial year 19~7 ·~8, took place towards the end of
v.
1956 a.nd the beginning of 1957. The Tinsukia. shop The Commissioner
as 'settled with respondents 1 and 2 though . the of Hills Divisicm
W
1 h d • · tl
b ·
d
cS< Appeals Assam
appellants a so a
JOin y su mttte a tender for the
end OJiusrs
'
same.
The appellants and other parties preferred
a.ppeals against the said order of settlement made by
Si"JJha J.
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 o.ppea.ls.
Accordingly, the appellants were · given possession of
the shop on June 7, 1957. · The respondents 1 and 2
again moved the High Court for quashing the order of
the Excise Appellate Authority, affirming tha.t of tbe
Excise Commissioner, and also pro.yed for the Blatus
quo being maintained. · The High Court admitted the
petition and ordered '~meanwhiLe, status q·uo ante be
maintained.',
Tills took place on June 10, 1957.
In
pursuo.nc6 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 dayd earlier.
This was done on a complete misapprehensio11 of the
true effect of the order of the High Court maintaining
Btatus quo ante. If the High Court had passed its
order in a less sophisticated and more easily under.
stood 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
t~e High Court against the . Commissioner's order
· dtrecting possession to be given to the respondents 1
&od 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 bearing of t~e
rule before the High Court, the appellants ago.xn
moved a petition on July 5, 1957, for vacating the
' l
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( ...
;
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i
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'i I .,
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l
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1
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i
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J I
l l
J
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1250
, SUPREME COURT REPORTS
. [1958]
xgsB
order of possession which was based on a misapprehen~
sion of the order ~£the High Court maintaining status
NaGendra N~lh quo ante, but apparently, no order was passed because
Bora & Anotm!r
•
h d. 1
d b
·
t th
v.
possesston a .. a rea y . een gtven o
e respondents
Ths commissiot~er 1 and.2.J;.Daring the hearing of the rule by the High
of Hills Divison Court; an unfortunate incident occurred, for which the
~Appeals, Assam, appellants cannot altogether be absolved. of. some
and Othus
"b'] ~t
lt f h' h
f th 1
.
_
resp_ons1 1 1 y, . as a. resu o w 1c , one o
e earned
Sinha].
judges cqnstituting .the.Bench,· namely, Deka J. ex~
pressed his .unwillingness to proceed with the hearing
of the : case. t The . hearing : had, therefore, to be
adjourned. on July 15, 1957, until a new Bench · could
pe constituted. The appellants renewed their appli_cation already made on July 5, as. aforesaid, for un-:
doing: 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
App.ellate Authority, but it refused to re-consider the
matter as the 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 tha
orders passed by the Excise Appellate Authority an~
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. Ou August 19, 1957, the matter
was placed before the Chief Justice sitting singly, and
ho 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 ne·w case
and not as an off-shoot of the case already pending
before the lligh Court. The High Court closed for the
long vacation on September 2, and was to re-open on
,.
s.c.R.
SUPREME COURT REPORTS
1251
Nove~ber 3, 1957. ·'.The vacancy of .the' third· judge
h d not ·been filled till then, and .as the appellants felt
thant they had been wrongfully deprived of their right Nagendra Nath
...
h
It f
Bora <So A11otlur
to bold their s op,. as a resu
.o .an erroneous inter.
v.
pratation ·of the o:der of the Htgh Court, passed on The commissiontrr
June 10, as aforesaid, and as there was no prospect of of Hills Division
the oase being . disposed . of quickly, the appellants <So App6als, Assam,
xnoved this Court and obtained . special leave . 'to
and Others
~px:~~~ evid~i{t f1:~~ .the ~tatement
·~f fac~S iz~ c~~nec-:
Sir.lus ] .
tion with each one of the appeals, set out above, _these
cases have ~ollowed a common pattern. They conie
from the' non-prohibited areas' in the State of Assam
where sale of·' country spirit' js 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! to ~larch 31. According
to the present practice contained in Executive Instructions, intending ·candidates for licences, · have "to submit tenders to the Deputy Commissioner for the Sadar
Division and to Huh-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 a~ Advisory
Committee consisting of 5local 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
~ommissioner of Excise to the Excise Appellate Autho~
r1ty whose decision becomes final. Section 9 of the
Aot, dealing with appeal and revision, has undergone
a series of amendments, and the section as it has
~merge.d out of the latest amendment by the Amcndtng Act-The Assam Act 23 of 1955-which received
the assent of the Governor of Assam on December 22,
19?5, and was published in the ~ssam Gazette. d~ted
, .
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.
1252
SUPREME COURT REPORTS
[1958]
x95a
December 28, 19 55, is in these terms:
. . .
. .
.. . "9. (1) Orders passed ·under this Act or under
Nagendra Nath any . rule made ·hereunder shall . be appealable as
Bora <5o Anot!JtJr
·
• .
·
'b d b
h
I
h
follows 10 the manner prescn e . y sue ru es as t e
The comv:nissioncr State Government may make in this behalf- .
of Hills Divison
·
· (a) t~ the Excise Commissioner, any order passed ·
cS- Appeaol\Assam. by the District Collect_or or a Collector other than the
and t ers
C ll t
..
.
.
District o ec or, : 1\'··
~ · ' . ·
Sinha J.
·
(b) to the Appellate ·Autnority appointed by tbe
State Government for ·the purpose, any order passed
by the Excise Commissioner •. · ·
· (2) Iri cases not provided ' fo~· by clauses {a) and (b)
of sub-section (I), 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, ha. ve, 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
questioilB of public importance raised on behalf of the
appellant in CivH 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 appea.ls, are merely administrative bodies, and,
..
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SUPREME COURT REPORTS .
1253
therefore~· their :orders .. whether passed in the first
I95B
instance or on appeal, should not be amenable to the
· • d' t '
·
· · d" ·
Nagendra Nat!J
writ JUriS 10 100 or supervisory JUris Ictwn of the Bora&- A1lotner
Jiigh Court under Arts. 226 and 227 of the Constituv.
· tion. If the matter had rested only with the provi, Tile Commissioner
sions of the Act, apart from the rules made under of 111/ls Division
8. 36 of the Act, much could have been said in support 6- Appurls, Assam,
of this contention. · As observed by this Court in the
and Others
case of Oooverjee B. Bltarucha v. The · ExcisG Com5111,;; 1. ·
missioner and the Chief Commissioner, Ajmer and
"· otherB(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. J(idwai,
(supra), at page.30l as follows: ·
" A perusal of the Act and rules will make it clear
that no person has any absolute right to sell liquor
a.nd . 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 settle~
ment 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 numller
of persons make such tenders ea.ch one makes a. claim
for himself in opposition to the claims of the others,
and the public authorities concerned with the settlement, ha.ve to choose from amongst them. If the
ohoice had rested in the hands of only one authority
like the District Collector on his subjective satisfaction
· a.s t-o the fitness of a particular candidate without his
ordors being amenable to an appeal or appeals or
·. revision, the position may · have been different. But
8• 9 of the Act has Ia.id 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 expres., terms, require reasoned or?ers
to· be · recorded, yet, in the context of the subJect-
· .. lllatter of the rule~, it becomes · necessary for the
(l) [19:51] S. C. R. 873, 83o.
1254 ··
.SUPREME COURT REPORTS
[1958]
z9sa
several authorities to pass what are called 'speaking .
orders '. .Where there is a ·. right vested in -an au tho ..
Nagendra Nath
b
t
b 't d · · t
t '
·
·
Bora & Another rity created· y st~tu e, e 1 a_ ~11!118 r3: IVe or quasiv. .
. judicial, to he~r ~~peals and !ev1s1ons,. It becoll!-es .its
The c~mmi~s~o~er duty to he~r JUdl?Ially, tha~_lS to say! 1!1 an . objeCtive
of HJlls DwJsJon manner, . Impartially
· and~, after g1v1ng reasonable
& AppdeaOlst; Assam. opportunity to the parties Concerned. in the. dispute,
an
,,ers
•
'b £
't
I
to place their .respect1 ve . cases
e ore · 1 •
n this
Sitiha J.
connection;. the ·.observations of , Lord ·Haldane at
p. 132, and of Lord Moulton at p. 150, in Local Government Board v. A·tlidge (1), to the following effect are
very apposite:
· .
Lord Haldane: "My Lor'ds, when . the duty of
deciding an 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 n.ot follow that the procedure
of every such tribunal must be the same.',
Lord Moulton: "In the present case, ho1'\rever,
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 m~ans 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 obBcrved 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 tho Courts, and it ia not their business to add to or
(I) [19f.5] A.C. 1'20.
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s.c.R.
SUPREME COURT REPORTS
1255
take a.w~y from th~m~ ?r even to discuss whether in
I958
the opimon of the Indtvidual members· of the Court Nagendra Nath
they are adequate or not."
·
Bora e. Anotl1er
The legal position lias been very succinctly put in
v.
Halsbury's Laws of England('}, as follows:-
Th6 Commissiolw~
of Jltlls Division
"1vioreover an administrative body, whose deci- e. Appeals. Assam.
sion is actuated in whole or in part by questions of
emd Others
policy, may be under a duty to act judicially in the
course of arriving at that decision. Thus, if in order
~inha J.
·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 t.he 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 ha.nd, 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
a.t any time to act judicially. Even where the body
is at some stage of the proceedings leading up to the
decil:iion under a duty to act judicially, :he supervi·
sory jurisdiction of the Court does nl')t exteu•l to considering the sufficiency of the grounds for, or othPrwise
challenging, the decision itself."
· · · .
The provisions of the Act are intended to safeguarrl'
the int(>rest of the State on the one hand, by stopping,
or at any rate, checking illicit distillation, and on the
other ha.nd, by raising the maximum revenue consist.
ently with the observance of the rules of temperance.
The authorities under the Act, with Sub-divisional
Officers at tho bottom and the Appellate Authority at
the apex of the 'hierarchy, are charged with those
duties. The rule~ 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 a:nd e~
per•ence in the line, subject to certam reservations 1n
(•) Vol. II. Jrd Edn., pp. s6·S7·
I
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. SUPRE~IE COURT REPORTS
[1958]
I958
favour of tribal population. Except those general con. .·
.
.
siderations, there are no specific rules. governing the
Nagendra Natb . grant of leases or licences in respect of liquor shops, .
Bora &- AnoJiser
•
•
t"
d
·
f 1
·
and 1n a certain con 1ngency, even raw1ng o
ots, 18
Th6 con:;,issioner provided for, vide Executive Instructions 110 at p~ 174
of Hills Division of the 11anual. .. ' The words of sub-s. (3) of s. 9 as
o- Appeals. Assam, amended set out above, vest complete discretion in
~.mdOthers
the App~llate Authority, the Excise Commi~sioneror ·
SiiJIIa 1.
the District Collector, to 'pass such orders thereon as
it or he may think fit.' · The sections of the Act do
not 1nake 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 wo 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 lttys down that no
appeal · shall lie against the orders of composition, .
thus, leaving all other kinds of orders open to appeal
or revision.