9911796707
TMI Blog1952 (1) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... which should contain 20 ozs. of 77.5 U. P. country liquor, the prescribed price being ₹ 0-l4-6p. A sum of ₹ 0-7-6p. was payable for the bottle refundable if the bottle was returned. While the bottle was being purchased, the Superintendent stood outside watching the transaction. Immediately on the purchase being concluded, the Superintendent entered the shop and the bottle was found to contain not 20 ozs. but 16 ozs. The price charged was ₹ 1-6-0 which is above the price that could be charged for 16 ozs. and the bottle was under-weight. There is a previous conviction of the petitioner for selling underweight. The Inspector (Superintendent?) also discovered the following other irregularities. The petitioner was absent from the shop at the time of the trial purchase and' the sales were being conducted by a salesman who was not registered according to the excise rules. Upon examination it was further found that the account books were not up to date but were written only up to the 10th February 1950 and even that was not complete. 3. On 30-3-1950 a notice was served by the said Mr. Matleb, Superintendent of Excise Jalpaiguri, upon the petitioner to show cause wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated in the petition dated 17-4-1950. If the petitioner employed inexperienced and unauthorised persons or a person who failed to act under his orders, the liability must be his own. 6. Coming now to the question of selling underweight: It will be remembered that no explanation was given in the first instance, but the explanation given in the petition dated 7-4-1950 is that the purchaser damanded bottle of liquor and consumed 4 oz. out of it on the spot, thus reducing the contents of the bottle from 20 oz. to 16 oz. It. is not suggested that the salesman was justified in serving the purchaser with a portion of the liquor out of a full bottle inside the premises, but it is said that it was a common practice and was done in good faith. The petitioner asked for an opportunity to prove his case by cross-examining the witnesses. He was then asked as to which witness he wished to cross-examine and he named the trial purchaser. He was given an opportunity of cross-examining the trial purchaser who then supported the petitioner's case, and went back upon his original statement. 7. It is the case of the opposite parties that the trial purchaser was won over, and it was not poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut giving the petitioner an opportunity to be heard and that he had not applied his mind properly to the facts of the case and the order was without jurisdiction. A further point made is that the Deputy Commissioner had not considered the evidence of the trial purchaser and in any event he should have disbelieved the evidence of the trial purchaser altogether since it was conflicting. A point was taken that the Superintendent of Excise did not give any evidence and his report was not admissible in evidence in law. It is not stated in the petition that the petitioner had ever asked for the cross-examination of Mr. Matleb or that it was refused. The Commissioner of Excise heard lawyers on behalf of the appellant and considered the papers on record. From his order it appears that he consulted the Superintendent of Excise who caused the trial purchase to be made, and who was then posted at Calcutta, for clarification of certain points. This consultation was not in the presence of the petitioner, nor had he any notice thereof. The Commissioner referred to the fact that no explanation of irregularity was offered at the time of the original inspection and particularly no mention was th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not a sufficient notice for cancellation. The important thing is that no point was made that the Commissioner of Excise should not have consulted the Superintendent of Excise in the absence of the petitioner. The Board of Revenue upheld the finding that the trial purchaser had been gained over. The learned member who heard the appeal was struck by the fact that the explanation regarding the short weight was not given when the Superintendent entered the shop after the trial purchase and took down the statement of the trial purchaser. He refused to take lenient view of the matter and rejected the petition. The petitioner has now come up before this Court for relief. 11. The substantial points upon which the learned Advocate for the petitioner relies are the following : (1) That the proceedings before the Superintendent of Excise, the Deputy Commissioner, the Commissioner and the Board of Revenue are in the nature of quasi-judicial proceedings. (2) That inasmuch as the proceedings are quasi-judicial, they have been vitiated by reason of the following facts. (i) because no opportunity was given to cross-examine Mr. Matleb. (ii) that the Deputy Commissioner should not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be taken in his absence. If however the proceedings are purely administrative, this Court can only interfere if a public officer does something which he has no jurisdiction to do or fails to do something which is incumbent upon him to do. The acts of commission or omission must relate to some provision of the law. In other words, if a public officer is not required by any law or by anything which has the force of law to do or to refrain from doing any particular act, then this Court is powerless to direct him to do that act or refrain from doing it. It is not possible for this Court to interfere on grounds of expediency alone. If something is left entirely to the discretion of an administrative officer, this Court cannot interfere unless it is shown that the actual exercise of such discretion has been mala fide or done in bad faith. There is of course no allegation of that description here. 14. Let us therefore investigate as to the nature of the proceedings. It is argued before me that the proceedings must be quasi-judicial inasmuch as they are required by the rules to be conducted in the manner of judicial proceedings. Applications are made by stamped petition, lawyers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the license specifies that the condition of its remaining in force was that the holder would duly and faithfully perform and abide by the conditions of the license. Condition (iv) is that the licensee must not sell or keep in his possession country spirit of strength below what is specified in the license and that he is not to sell at prices above or below the prescribed price. Condition 3 of the General Conditions provides that no licensee should allow in (any?) person to conduct sales in his licensed premises unless the name of such person should have been previously submitted to the Collector for approval and endorsed by him on the license. Condition 17 requires that regular and accurate accounts should be maintained in the prescribed form and such accounts should be written up as soon as the transaction of each day has been closed. The accounts were to be preserved for one year and produced wherever called upon, for the purpose of inspection by an officer not below the rank of an Inspector. The license also sets out a note that an infraction of any of the special or general conditions would subject the holder of the license to forfeiture of the license and to all or any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ently may be after they have been passed. 17. The tribunal prescribed by the Government, of India Act, 1935 is the Board of Revenue. It will therefore appear at once that in the present case no appeal lay to the Board of Revenue at all because the findings of the Collector were upheld by the Commissioner of Excise. 18. The order of cancellation of the license in this case is by the Collector by which I mean the Deputy Commissioner of Jalpaiguri. According to the rules, an appeal lay from his order to the Excise Commissioner. What is the nature of the order made by the Collector and of the proceeding culminating in that order? In my opinion it is purely administrative. The Collector being the issuing authority can revoke a license for non-compliance with the conditions. There is, no rule prescribed for any judicial or quasi-judicial investigation. There is no provision for any notice to be given to the licensee. The distinction between a quasi-judicial order or an administrative or ministerial order has been discussed exhaustively in the Supreme Court judgment: Province of Bombay v. Khushaldas S. Advani, . Kania C. J. has pointed out as follows: A discussion about the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p. 233 Sorutton L. J. observed as follows : It is not necessary that it should be a Court in the sense in which this Court is a Court; it is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition; and it is not necessary to be strictly a Court; if it is a tribunal which has to decide rights after hearing evidence and opposition, it is amenable to the writ of certiorari Slesser L. J. in his judgment at p. 243 separated the four conditions laid down by Atkin L. J. under which a rule for certiorari may issue. They are : wherever any body of persons (1) having legal authority (2) to determine questions affecting rights of subjects and (3) having the duty to act judicially (4) act in excess of their legal authority a writ of certiorari may issue. He examined each of these conditions separately and came to the conclusion that the existence of each was necessary to determine the nature of the act in question. These tests were accepted and applied in the case of The Ryots of Garabandho v. Zamindar of Parlakimedi, by the Judicial Committee 70 Ind. App. 129 (P. C.). The question f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtain objective facts as a preliminary step to the discharge of an executive function, it does not follow that it must determine those facts judicially. When the executive authority has to form an opinion about an objective matter as a preliminary step to the exercise of a certain power conferred on it, the determination of the objective fact and the exercise of the power based thereon are alike matters of an administrative character and are not amenable to the writ of certiorari. Observations from different decisions of the English Courts were relied upon to find out whether a particular determination was quasi-judicial or ministerial. In some cases it was stated that you require a proposition and an opposition or that a lis was necessary, or that it was necessary to have a right to examine, cross-examine and re-examine witnesses. As has often been stated, the observations in a case had to be read along with the facts thereof and the emphasis in the cases on these different aspects is not necessarily the complete or exhaustive statements of the requirements to make a decision quasi-judicial or otherwise. It seems to me that the true position is that when the law under which the au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the original order is an administrative one, it does not always follow that the appeal against it may not be quasi-judicial. It will all depend upon the provisions of law in respect of the appeal. In dealing with a similar question Lord Greene M. R. said in Robinson v. Minister of Town and Country Planning (1947) 1 K. B. 702 at p. 716: A number of authorities were referred to in which the powers and duties of ministers under statutes dealing in different language with different classes of subject-matter were discussed and observations were made as to their powers and duties when acting in a quasi-judicial capacity. I am basing this judgment on the particular provisions of this statute in their application to this particular subject-matter; and I do not find anything in the decisions cited which either assists or impedes me to such an extent as to make it necessary for me to examine them. As an example of the difference to be found in the subject-matter dealt with in different statutes, I may point out that this case is different from a case where a minister is given the duty of hearing an appeal from an order such as a closing order made by a local authority. This is not th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point alone, then the order of the Commissioner of Excise might have to be set aside, but on the facts of this particular case it seems to me to be futile to do so. The evidence of the Superintendent of Excise is only relevant on the question of the short weight. The other two accusations are virtually admitted and/or abundantly proved. Therefore, even if I set aside the order of the Excise Commissioner (or for the matter of that, the order of the Board of Revenue) and direct a re-hearing of the appeal on the merits, the result would be the same because on the strength of the admitted accusations (or accusations fully proved) viz. about the account books not being kept up-to-date and the employment of an unregistered salesman, the decision or decisions will still be upheld, or is capable of being upheld. 25. It is a well established principle that a writ of certiorari or mandamus should not be issued when they would be useless. 26. It has been argued before me that so far as the employment of the unregistered salesman is concerned, that has been taken as a mere technical offence, and not much weight has been placed upon it. It is further argued that a very good reason has be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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