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TMI Blog1983 (11) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... pparent on the face of the record which resuited in manifest injustice. That apart, it was not a proper exercise of jurisdiction under Art.226 of the Constitution for the High Court to have issued a writ of mandamus ordaining the Deputy Commissioner to grant the liquor licence to respondents Nos.1 and 2 in preference to the appellants. There was no question of the Board disclosing the contents of the report to respondents Nos. 1 and 2. Further, respondents Nos.1 and 2 never made a demand for a copy of the report, and even if such a request was made the Board would have been fully justified in not furnishing the same. Such a refusal would not amount to denial of natural justice for the obvious reason that the rules of natural justice must necessarily vary with the nature of the right and the attendant circumstances. The grant of a liquor licence was not a matter of right but merely in the nature of privilege, Furthermore, the Board was entitled to call for a report of the Deputy Commissioner in an appeal of this nature We cannot also subscribe to the view expressed by the High Court that respondent No.2 Prafulla Barua who is a student of B.Sc. class still undergoing his studie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt a rather disturbing feature. Jorhat Country Spirit Shop No. 1 is a big excise shop within the meaning of r. 232 of the Rules. Under cl.(a) thereof, the settlement of such a country liquor shop has to be made with a pair of tenderers constituting two or more, partners. Five joint tenders were received in response to the notification issued by the Deputy Commissioner, Sibsagar, Jorhat calling for tenders of the country liquor shop for the financial year 1983-84. The Deputy Commissioner, Sibsagar, Jorhat in consultation with the Advisory Committee constituted for that purpose as required under r. 208 by his order dated August 28, 1981 settled the shop with the two appellants Bishnu Ram Borah and Bipin Chandra Borah. One set of the unsuccessful tenderers were respondents Nos. 1 and 2 Parag Saikia and Prafulla Barua. Of them, Parag Saikia respondent No. 1 herein was held by the Deputy Commissioner to be a mere benamidar of a prominent businessman of Dibrugarh while respondent No. 2 Prafulla Barua was a student studying for his B.Sc. degree and stying in a hostel at Golaghat, which is a place some 30 miles away from Jorhat. The Board of Revenue, Assam by its order dated February 11, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on with an advisory committee." Rule 223(2) provides: "In making settlement to any person preference shall always be given to the educated unemployed youths or to co-operatives and co-opt firms formed by such educated unemployed youth. Preference shall also be given to the persons belonging to the more backward classes." Note: The term 'educated unemployed youth' as mentioned in sub-rule (2) of Rule 223 means a person not exceeding 35 years of age who has passed the H.S.L.C. or its equivalent examination and is without any employment." A few facts have to be stated. Before the Board of Revenue passed its earlier order dated February 11, 1982 upholding the grant of licence by the Deputy Commissioner by his order dated August 28, 1981, the Board had called a report from the Deputy Commissioner, Sibsagar, Jorhat and had also before it a parawise comment of the Deputy Commissioner. On an evaluation of the comparative merits and demerits and after eliminating the other sets of competitors' the Board upheld the grant of licence made by the Deputy Commissioner in favour of the appellants. On a careful consideration of the material on record and in the light of the confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han even as a sleeping partner." The Board then went on to say: "Reverting to the partnership of the appellants it is observed that their respective financial investment and physical involvement as well as the sharing of the profit or loss is not known. Indeed for the two persons living in two different Sub-divisional Head-quarter towns and having a substantial difference in age and present status, it is difficult to be definite that they have the needed concord and compatibility or unity and understanding for operating a major shop like this. Again, in a double lessee shop what is needed is not just a second helping hand to a lessee but it requires persons of a minimum calibre from the point of intelligence, experience and businessman. Parag Saikia by his own admission found that the firm set up by him or joined by him had failed or were non-starters. These considerations might have weighed with the Advisory Committee and the District Collector in not setting with Parag Saikia even any of the smaller shops for which he is known to have tendered and Prafulla Barua being still an undergraduate student might have been considered unsuitable on that ground as well amon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the observations and went on to say that the observations were uncalled for. That apart, the Board observed that since the observations were on questions of fact, they could not be taken as binding on the Board. It reaffirmed its earlier order upholding the grant of the licence to the appellants by the Deputy Commissioner. As regards respondents Nos. 1 and 2, the Board relying on the report of the Deputy Commissioner held them to be unsuitable for the grant of licence. It held that respondent No. 1 Parag Saikia was a mere benamidar of a mahaldar of Dibrugarh district who had cast his net far and wide in the Jorhat sub-division and that respondent No. 2 Prafulla Barua who was still undergoing his studies for the B.Sc. degree could not be regarded as falling within the category of educated unemployed youth appearing in the note beneath r.223 of the Rules. Thereupon, respondents Nos. 1 and 2 again moved the High Court under Art.226 of the Constitution for appropriate writ, direction or order in the matter of grant of the liquor licence. As was expected, the High Court strongly deprecated the action of the Board of Revenue defying the directions made by the High Court in exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refusing to carry out the directions of the High Court. In Bhopal Sugar Industries Limited v. Income-tax Officer Bhopal, the Income- tax Officer had virtually refused to carry out the clear and unambiguous directions which a superior tribunal like the Income-tax Appellate Tribunal had given to him by its final order in exercise of its appellate powers in respect of an order of assessment made by him. The Court held that such refusal was in effect a denial of justice and is furthermore destructive of one of the basic principles in the administration of justice based as it is in this country on the hierarchy of courts. The facts of the present case are more or less similar and we would have allowed the matter to rest at that but unfortunately the judgment of the High Court directing the issue of a writ of mandamus for the grant of a liquor licence to respondents Nos. 1 and 2 cannot be sustained. The High Court dealt with the finding of the Board as to whether or not the alleged partnership between respondents Nos.1 and 2 was genuine. As regards the suitability in their ages which, according to the Board, would stand in the way of needed. concord and compatibility, it felt that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Saikia was not a ground sufficient for ignoring the adverse report of the Deputy Commissioner against him in the present case. It would be apposite to quote the report which reads as follows: "Jorhat town country spirit shop No.1 (with which shop we are concerned) is meant for joint lessee. Just after the submission of the tender on 21.8.81 secret information was received to the effect that Shri Parag Saikia (one of the petitioners in the case) is in the private employment of a prominent businessman of Dibrugarh district who is also said to be benamidar of important C.S. shops and Shri Saikia resides in Gauhati for the greater part of the year enjoying all the perquisites of the employer, The secret information further indicates that the said benamidar of Dibrugarh district was trying to grab important shops of Jorhat Sub-Division through Parag Saikia. The matter was discussed in the Advisory Board which rejected the tender of the joint appellant." Further, the High Court had observed that the Board could not have relied upon the report of the Deputy Commissioner unless respondents Nos.1 and 2 were confronted with the same and respondent No.1 was allowed to have his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 2 being based on the rule of preference contained in the note beneath r.223 of the Rules cannot therefore be supported. The judgment of the High Court also suffers from a serious infirmity. As already stated, instead of remitting the matter to the Board of Revenue, the High Court issued a mandamus directing the Deputy Commissioner to make a grant of the licence to respondents Nos.1 and 2. While doing so, the High Court made a direction that the grant of licence would be subject to the result of the inquiry as to whether respondent No.1 Parag Saikia was a benamidar and therefore not entitled to such grant. Moreover, the High Court made the grant subject to the result of the writ petition filed by the interveners Daya Ram Borah and Prabin Kumer Borah which was still pending before it against the earlier order, of the Board dated February 11, 1982. We fail to appreciate the making of a grant in favour of respondents No. 1 and 2 subject to the result of the inquiry as to whether respondent No.1 Parag Saikia was a mere benamidar. If that were to be so, it would affect the validity of the grant itself. Further, the procedure adopted by the High Court in separately dealing with the writ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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