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TMI Blog2014 (1) TMI 1518X X X X Extracts X X X X X X X X Extracts X X X X ..... osed two actions. Firstly, deletion of two out of three restaurants and secondly recovery of additional licence fee for the period the three restaurants were run by the petitioner as attached to the ORBIT Bar in terms of the licence granted by the respondents - Collector of Excise only deleted names of the two restaurants that had been inadvertently allowed and treated as attached with the 'Orbit Bar'. No penalty or direction for payment of any licence fee for the said two restaurants was passed. Adjudicating authority upon examination and due consideration, did not think and consider appropriate to levy penalty, or direct deposit of any additional licence fee. To this extent proceedings were dropped, in favour of the petitioner. Apparently the authority felt that the error or mistake was of the department and no fault could be attributed to the petitioner. The order dated 01.04.1985 was complied with and had become final. The order did not find wrong doing on the part of the petitioner but holds that the restaurants were added inadvertently - while the presence of two parties besides the deciding authority will prima facie and in the absence of any other factor impose upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Name of attached Restaurants/ Dining Hall. 1. 'OPEN HOUSE' Open House Restaurant 2. 'ORBIT BAR' Attached Dining Hall of Orbit, Mandarian and Gulnar Restt. 3. The case of the petitioner is that the said Orbit Bar was located on the ground floor in the centre of Hotel Janpath and on three sides around the Bar, there was space for restaurants and on the fourth side there was a passage. The entire area where the bar and the restaurants were situated were interconnected and there was no door fixed to separate them from each other. The petitioner at the time of application for grant of liquor licence had submitted a plan wherein the areas including the bar area were distinctly shown. On the basis of the said application, the licence in the category of L-5 was granted and the licence specifically mentioned "Orbit Bar" attached to dining hall of "Orbit, Mandarian and Gulnar Restaurants". 4. The case of the petitioner is that the petitioner and their staff have always run the liquor bar in question in accordance with the licence. The bar was inspected on several occasions by the officers of the respondents and entries with respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icence to the contrary were directed to be deleted. The order does not hold or observe that the "inadvertent error" of mentioning the two additional restaurants occurred on account of some fault of the petitioner. The petitioner was not ordered to pay any additional fee, as was proposed in the show-cause notice for restaurants. To this extent the show-cause notice was dropped. 8. The petitioner alleges that the order dated 01.04.1985 was duly complied with and names of the two restaurants were deleted from the L-5 licence and the sale of liquor in the said two restaurants was ceased forthwith. No complaint of any nature was received alleging violation of the said order. The order was duly complied. 9. On 05.01.1989 i.e. four years after passing of the order dated 01.04.1985, another show cause notice was issued to the petitioner to show-cause as to why a sum of Rs.3.5 lacs plus interest be not recovered from the petitioner as licence fee for the two restaurants included in the licence issued. 10. By order dated 18.10.1989, the Collector of Excise noticing that the petitioner had been inadvertently allowed service of liquor to three restaurants held that the licencee was requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce by the respondents and the licence had mentioned three restaurants attached with the Bar. The licence fee stipulated in the said licence had been duly paid by the petitioner. Terms of the licence were not violated and were duly complied. The petitioner cannot be faulted with for an inadvertent error or mistake on the part of the respondents by mentioning names of three restaurants attached to one bar. In case, an error had occurred on part of the respondents, the correct course was to rectify the error which, in fact, was done by the order dated 01.04.1985 when names of two restaurants out of the three were deleted from the said licence. 17. The petitioner cannot be saddled with the liability of paying the licence fee for two restaurants for the period when the petitioner had a licence mentioning the three restaurants attached to the bar. The respondents have not relied upon or referred to any statutory provision or rule, in support of their claim. Apparently, the issue in question was a matter of policy and there was ambiguity and ambivalence whether or not separate licence was required. The billing for liquor was issued from the bar. In case, the petitioner had been informe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1987] 4 SCC 525, State of Orissa v. Commr. of Land Records and Settlement [1998] 7 SCC 162 and Sunita Jain v. Pawan Kumar Jain [2008] 2 SCC 705 this Court held that the power to review is not an inherent power. It must be conferred by law either expressly/specifically or by necessary implication and in the absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statute. Jurisdiction of review can be derived only from the statute and thus, any order of review in the absence of any statutory provision for the same is a nullity, being without jurisdiction. 14. Therefore, in view of the above, the law on the point can be summarised to the effect that in the absence of any statutory provision providing for review, entertaining an application for review or under the garb of clarification/modification/correction is not permissible." 21. The order passed by the Collector of Central Excise on the first show cause is not a mere administrative order but is a quasi judicial order. It determined the question of liability, fine etc. 22. The Supreme Court of India considering the distinction between the administrative function ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mean acts of a Judge or legal tribunal sitting for the determination of matters of law, but for purpose of this question, a judicial act seems to be an act done by competent authority upon consideration of facts and circumstances and imposing liability or affecting the rights. And if there be a body empowered by law to enquire into facts, makes estimates to impose a rate on a district, it would seem to me that the acts of such a body involving such consequence would be judicial acts." 22. Atkin, L.J. as he then was, in R. v. Electricity Commrs. [1924] 1 KB 171 stated that when any body of persons has legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, such body of persons is a quasi-judicial body and decision given by them is a quasi-judicial decision. In the said decision, there was no contest or lis between the two contending parties before the Commissioner. The Commissioner, after making an enquiry and hearing the objections was required to pass order. In a nutshell, what was held in the aforesaid decision was, where a statutory authority is empowered to take a decision which affects the rights of persons and such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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