February 7· v. Supervision,· Scope of-Appellate ,Authority if and. when _acts_ i1~

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 examina tion 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, 1 910, 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] I ) . and Others :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 ...... 227 of the Constitution, in respect of orders passed by v. 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 the Act). They raise certain common · questions of 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.

Sinlla ]. · (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 afore satd, 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 . d ' I 9s8 1243 . . t c f th D aud OJ hers 5;,1111 J. SUPREME COURT.REPORTS e . epu y ommxsswr:ter and, the s.c.R. uestion was ordered b;r the first respondent as the ~xoise Appellate Authonty to be settled . with the first . ellant Nagendra Na.th as an individual setting Nagelldra Nut!, Bora & Anotller aside the or e~s ? 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 · made in . the. first . appellant's favour. , Similar writ 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 judg- ment 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 d ated January 31, 1957, decid- ed 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,.· T l.e result of the ruling of this Court, was that the deter- mination 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 direc- tton of the Excise Commissioner tha.t the shop in question be re-settled, was carried out, and the settle- ment 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 I . · I · 1~8. ':. : . , . . • (I) [1957) S.C.R. 2.95· , , . , A ' -- 1244 ,-· . SUPREME COURT REPORTS [1958] } • . . . . ssam, . . . Sinh&~ J. 1 d th h Nagendra N ath Bora c;. At•otller v. rrea s, 411d others mlttee; sett e 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 Commis ofA~~lstDtAvmon sioner, in consultation with the local Advisory Com~ & e· s op In q uest1on with the third and the · fourth respondents aforesaid. The tender sub .. ~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 ex cise 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 Ex cise 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 tend erers preferred appeals to the first respondent against the order of the second respondent (the .Excise Com missioner). The first respondent dismissed 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 settle ment in favour of the appellants by the first respon dent. The High Court further directed that all the tenders be re-considered in the light of the observa tions made by it.

The main ground of decision in the ,.. 1245 s.c.R . . SUPRE~IE COURT REPORTS · I!igh Court,: was that the. E~ci~e :\P,Pellate Authority had aoted 1n . . excess of Its JUrrsdrctiOn, and that its order ·was v1t1ate the record.· The prayer for a. c.ertJ~cate that .the case 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 ·· 6- Appeals, Assrzm. spec . . and Others Nagendra Nath yerrors appa~ent · on the face of Bora G- Another ialleave to appeal. · d b . ·. v, . . ' ·(II) Civil Appeal No. 669 of 1957. . ·.:This appeal relates to the settlement of the Mur muria. country spirit shop in the district of Sibsagar, for the financial year 1957-58. · The appellant La.kbi- ram Ka.lita and the first respondent Bhanuram P egu, 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 tender- era, 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 pur suance 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 pray ed 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 : - . · t . . · ''Meanwhile . ' ~: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 the stat·us · quo ante will be main- · Sinhca f. · I i ' ( ! 1246 SUPREME COURT _ REPORTS [1958] ,. . . v. e II z95a 1g Th d th H. h 0 and Others Sinha J. . . quoted above.· . e appe ant move 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 · 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 in possession of ~he.~ s~op on .June 17, 1957, will con- . 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 posses sion 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 peti tion. 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 . . . . . 'J f f SinluJ ]. 1247 . and Others. SUPRE~1:E COURT -REPORTS s.c.R. 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 Bora 6- Anothe'f' t ' e ma . er o se ement o excise shops.. appellan .m .v. (IV) Civil Appeal No. 672 0 ; 1957. · ·~' The Commi.ss.i~~r . . ·• · • of Hzlls Dnn.sum . This appeal relates to the Tinsukia. country spirit6- Appeals, Assam, shop in the district of Lakhimpur.

The appellants 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 Commis- sioner set aside the settlement, and ordered a re.settle- ment. The first . appellant and his · father filed an appeal before the Excise Appellate Authority, against the order of the. Commissioner of. Excise. · The Appel- late Authority allowed the appeal, and set aside the orders of the Commissioner and the Deputy, Commis- sioner.

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 afore- said, 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 , l ' I ! ' f. ,· I f \ I 1-, I ! , . ! !· ,, ) . r; I ;I 1: !! " ' " ·' ;j I I ' ' .I I! [1~58] Sinha J. and OJh~rs 195s - SUPREME COURT REPORTS 1248 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 decision, aforesaid, of the .High. Court, de~lanng the 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 appli cation 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 re se.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 s.c.R. . SUPREME COURT REPORTS 1249 settlement Of the ShOp in the. abS6DC8 Of an Order Of 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 1956 a.nd the beginning of 1957.

The Tinsukia. shop The Commissioner as 'settled with respondents 1 and 2 though . the of Hills Divisicm · d cS< Appeals Assam ' end OJiusrs 1 h d • · tl I958 b v. Si"JJha J. ~ :f ' ! W JOin y su mttte a tender for the appellants a so a same. The appellants and other parties preferred a.ppeals against the said order of settlement made by 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 In maintained.', Tills took place on June 10, 1957. 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 dispossess ed 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 'i I ., ' l l I I ' I 1 I i 1 l J I J l l l j ' l .·.,; ( ... ' i j ; ; .. 1250 , SUPREME COURT REPORTS . [1958] ,. • . · xgsB "b'] ~t t th f th 1 lt f h' h and Othus _ Sinha]. 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 h d.

1 d b Bora & Anotm!r possesston a .. a rea y . een gtven o e respondents v. 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 resp_ons1 1 1 y, . as a. resu o w 1c , one o e earned judges cqnstituting .the. Bench,· namely, Deka J. ex~ pressed his .unwillingness to proceed with the hearing therefore, to be of the : case. t The . hearing : had, 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 It f .o Sir.lus ] . 1251 and Others .an erroneous inter. SUPREME COURT REPORTS s.c.R. Nove~ber 3, 1957. ·'.The vacancy of .the' third · judge h d not ·been filled till then, and .as the appellants felt ant they had been wrongfully deprived of their right Nagendra Nath h ... Bora <So A11otlur to bold their s op, . as a resu 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 ~px:~~~ evid~i{t f1:~~ .the ~tatement ·~f fac~S iz~ c~~nec-: 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 Instruc- tions, intending ·candidates for licences, · have "to sub- mit tenders to the Deputy Commissioner for the Sadar Division and to Huh-Divisional officers for Sub-Divi- sions, 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 Amcnd- tng 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 , . •' I •· .. . SUPREME COURT REPORTS [1958] 1252 December 28, 19 55, is in these terms: . . . x95a . . .. . "9. (1) Orders passed ·under this Act or under Nagendra Nath any . rule made · hereunder shall . be appealable as h I Bora <5o Anot!JtJr . y sue ru es as t e The comv:nissioncr State Government may make in this behalf- . of Hills Divison cS- Appeaol\Assam. by the District Collect_or or a Collector other than the .. · (a) t~ the Excise Commissioner, any order passed · follows 10 the manner prescn e C ll t 'b d b t ers h . . • · . · · District o ec or, : 1\'·· ~ · ' . · (b) to the Appellate ·Autnority appointed by tbe State Government for ·the purpose, any order passed by the Excise Commissioner •. · · Sinha J. · · (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 Com missioner or the District Collector may call for the pro ceedings 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, .. I -\. · · · · I95B · d" 1253 • d ' t ' SUPREME COURT REPORTS . s.c.R .. therefore~· their :orders .. whether passed in the first instance or on appeal, should not be amenable to the Nagendra Nat!J writ JUriS 10 100 or supervisory JUris Ictwn of the Bora&- A1lotner Jiigh Court under Arts.

226 and 227 of the Constitu- · 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 case of Oooverjee B. Bltarucha v. The · ExcisG Com- the Chief Commissioner, Ajmer and missioner and ) 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: · 5111,;; 1. · and Others v. "· otherB(1 " 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 settle ment, 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. ; I 1254 ·· .SUPREME COURT REPORTS [1958] v. . b z9sa · · t t b 't d several authorities to pass what are called 'speaking . orders '. .Where there is a ·. right vested in -an au tho .. · Nagendra Nath Bora & Another rity created· y st~tu e, e 1 a_ ~11!118 r3: IVe or quasi- . 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; A ssam. opportunity to the parties Concerned. in the. dispute, to place their .respect1 ve . cases connection;. the ·.observations of , Lord ·Haldane at p. 132, and of Lord Moulton at p. 150, in Local Govern ment Board v. A·tlidge (1), to the following effect are very apposite: 't e ore · 1 • Sitiha J. 'b £ I n · . ,,ers t ' · • 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. • \ . .. SUPREME COURT REPORTS s.c.R. take a.w~y from th~m~ ?r even to discuss whether in the opimon of the Indtvidual members· of the Court Nagendra Nath they are adequate or not.

" Bora e. Anotl1er v. Th6 Commissiolw~ of Jltlls Division "1vioreover an administrative body, whose deci- e. Appeals. Assam. The legal position lias been very succinctly put in Halsbury's Laws of England('}, as follows:- 1255 I958 · emd Others ~inha J. sion is actuated in whole or in part by questions of policy, may be under a duty to act judicially in the course of arriving at that decision. Thus, if in order ·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 considera tion and at that stage the body would be under a duty If, on the other ha.nd, an admini to act judicially. strative body in arriving at its decision has before it at no stage any form of lis and throughout has to con sider 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 con sidering 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 ; 1256 . 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, . · t" Bora &- AnoJiser 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 f 1 d · • • .· ~.mdOthers SiiJIIa 1. the App~llate Authority, the Excise Commi~sioneror · 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. Rule 343 provides that every memo. randum of appeal shall be presented within one month from the date of the order appealed against, subject to the requisite time for obtaining a. certified copy of the order b~ing excluded. Rule 344: requires the memorandum of appeal to be accompanied by a certi fied copy of the order appea1ed against. The memo .. randum of appeal has to be stamped with a requisite court·feo stamp. Rule 3!3 was fut·ther amended by theN otification dated niarch 14, 1U57, by o.dding the following proviso and explanations to tho.t rule: "Provided further that the co1npetent Appellate Authority shall have the power to admit the appeal after the prescribe(! porioJ. of limitation when the appellant sa, tisfies the Appellate Authority that he had sufficient cause for not preferring · the appeal \ ' s.o.R. SUPREME COURT REPORTS 1257 within such period. . z95R Explanation (1).

The fact that the appellant was Nagendra Nail• misled by any ~rde~, practic~ .or judgment of any Bora 6- Another Appellate A.ut~orrty _In_ aso.ertammg or computing the prescribed period of hmrtatwn may be sufficient cause Th' ~omnu~s~~er of Hllls Dwr .. non cS- Appeals, Assam, •thin the meaning of this Rule. . Explanation (2) . . The fact that the Appellate . and Olhers v., . Wl · . Sinha J. .... · Authority was una.ble. ~o function for any period by reason of any · JUdlmal pronouncement shall . be sufficient cause within the meaning of this Rule. · : The amendment shall be deemed to have been made on 23rd 1\rlay, 1956, and shall have retrospective effect since tha.t date. " These rules, read along with the recent amendments, set out above, approximate the procedure to be followed by the Appellate Authorities, to the regular procedure observed by courts of justice in entertaining appeals.

As would appear from the ruling of this Court at p. 304, where the provisions and effect of the Assam Revenue Tribunal (Transfer of Powers) Act, 1948, (Assam IV of 1948) have been set out, the ulti mate jurisdiction to hear appeals aucl revisions, was divided between the Assam High Court and the Authority referred to in s. 3(3) of that Ad . Appeals and revisions arising out of cases covered by the pro visions of the enactments specified in Schedule ' A' to that Act, were to lie in and to be heard by the .• -\ --sam High Cout·t, and the jurisdiction to entertain appt>als and revisions in matters arising under the provision::; of the enactments specified in Schedule 'B, to that Act, was vested in the Authority to. be set up under s. 3(3), that is to say, for the purposes of the present appeals before us, the Excise .Appellate Authority. Thus, the Excise Appellate .Authority, for the purposes of cases a.rising under the Act, was vested with the power of the highest appellate Tribunal, even as the High Court was, in respect of the other group of cases.

That does not necessarily mean that the_ Excis~ App~l- l~te Authority was a Tribunal of co.ordmate J~IriSdiC- tlOn with the High Court, or that that Authonty was not amenable to tho supervisory jurisdiction of the [ f I. ' ~-• '.f' 4• I 1258 SUPREME COURT REPORTS [1958] . ·x9sB High Court under Arts. 226 and ~27 of the Constitu- · tion. But the juxtaposition of the two parallel highest . Na&endra Nat!• Tribunals, one in t•espect of pre-dominantly civil cases, Bora 6-. A?Jother and the other, in respect of pre-dominantly revenue The con~:i~sio~eY cases {without attempting any cle~r cut line of demar of Hills Division cation), would show that the E.x~Jse Appellate Aut~o­ & Appeals, Assam, rity was not altogether an administrative body whiCh andOt.hers Sinlla ]. had no judicial or ·quasi-judicial functions. . Neither ·the Act nor the rules made thereunder, indicate · the grounds on which the first Appellate Authority, namely, the Rxcise Commissioner, or the second Appellate Author:t.v (the Excise Appellate Authority), has to exercise hv- ()r its appel1ate or revi sional powers.

There is no in<.l.1 1ttion that they make any . distinction between the grou nds of interference on appeal and in revision. That be1n ~ so, the powers of the Appellate Authorities in the. ro. Ltter of settle ment, would be co-extensive with the ~· •wers of . the primary authority, namely, the District l .nector or the Sub-Divisional Officer. See in this co1, · ~"ction, the observations of the Federal Court in Lach7ilt -hwar Prasad Shukul and others v. J(eshwar Lal ChauJJ~ ,, ri and others (1), and of this Court in Ebrahim Aboobaku. ,· and another v. Custodian-General of Evacuee Property(2 ). In the latter case, this Court, dealing with the powers of the Tribunal (Custodian-General of ·the Evacuee Property), under s. 24 of Ordinance No. 27 of 1949, observed: · '' Like all courts of appeal exercising genera.! jurisdiction in civil cases, the respondent has been constituted an appellate court in words of the widest amplitude and the legislature has not limited his jurisdiction by providing that such exercise will depend on the existence of any particular state of facts.

" ·· 'fhus, ·on a review of the provisions of the Act and the rules framed thereunder, it cannot be said that the authorities mentioned in s. 9 of the Act, pass · purely administrative orders which are beyond the ambit of the Iligh Court's power of supervision and \Vhether or not. an administra-tive body or control. (!) [1910] F.C.R. 84, 102, r 1259 SUPREME COURT REPORTS s.c.R .. authority functions as a purely administrative one or in a quasi-judicial capa0ity, must be determined in each case, on a.n examination of the relevant statute ~:;:n':~:'o~~:,. and the rules framed thereunder. The first contention raised on behalf of the appellant must, therefore, be The Commissioner overruled. of Hills Dillision Now, turning to the merits of the High Court's & Appeals. Assam. :r958 . . v. and Olhers _ Sinha J . · d d order, 1t was conten e on behalf of the appellant that the High Court had misdirected itself in holding · that the Appellate Authority had exceeded its juris- diction in passing the order it did.

Thera is no doubt that if the Appellate Authority whose duty it is to determine questions affecting the right to settlement of a liquor shop, in a judicial or quasi-judicial manner, a.ots in excess of its authority vested by law, that is to say, the Act and the rules thereunder, its order is sub- ject to the controlling authority of the High Court. The question, therefore, is whether the High Court was right in holding that the Appellate Authority had exceeded its legal power. In this connection, it is best to reprodncet, in . the words of the High Court itself, what it conceived to be the limits of the appellate jurisdiction: " In other words, it is not for the A ppella.te Authority to make the choice, since the choice has already been made by the officera below; and it is not only where the choice is perverse or illegal a.nd not in accordance with the Rules that the A ppella.te Autho rity can interfere with the order and make its own selected (sio.) out of the persona offering tenders.

If the Appellate bodies chose to act differently and con sider themselves free to make their own choice of the person to be offered settlement irrespective of the recommendations of the Deputy Commissioner or the Officer conducting the settlement, the AppcJlate bodies will be obviously ex:cecding the jurisdiction, which they possess under th'3 ln. w or going beyond the scope of their authority as contemplated by the Rules.'' . In our opinion, in so circumscribing the powers of the :\ppolla.te Authority, the High Court has er!ed. See 1n this connection, the decision of this Court m Raman l6o ' . . • • · t f t h r95s [1958] _ and Others Si?Jha 1. SUPREME COURT REPORTS . I26o ). In that and Raman · Ltd. v. The State of Madras (1 · case this Court dealt with the powers of the State Nagendra Nath Gov~rnment, which had been vested with the final f Bora&- Another a~thor1ty ~n t e rna er o gran · o s ~age carriage per- v.

Th~ commissioner roits;· Thts Court held that as the State Government of Hills Division had been constituted the final authority under the c;,. Appeals, A ssam, Motor ·Vehicles. Act, to decide as between the rival l . · •t •t d e Inter- c a1man s .10r perm1 s, 1 s ectston cou no fered with under Art. 226 of the Constitution, merely because the Government's view may have peen erro In the instant cases, the Appellate Authority neous. is contemplated by s. 9 of the Act, to be the highest authority for deciding · questions of settlement of liquor shops; as between. rival claimants. The appeal or revision being undefined and unlimited in its scope, the highest authority ·under the Act, could not be deprived of the plenitude of its powers by introducing considerations which are not within the Act or the rules. t b t J: · · · ' : . It is true that · the . Appellate Authority should not lightly set aside the selection made by the prhnary Authority, that is to say, a selection made by a Sub Divisional Officer or by a District Collector, should be given due weight in view of the fact that they have much greater opportunity to know local conditions . and local business people than the Appellate A utho. rity, even as the appeal courts are enjoined not to interfere lightly with findings · of fact recorded by the original · courts which had the opportunity of seeing witnesses depose in court, and their demeanour while deposing in court.

But it is not correct to hold that· because the Appellate Authority, in the opinion of the lligh Court, has not observed that caution, the choice made by it, is in excess of its power or without juris. . diction. ·. . . ~ . · · · : · ·. · . The next ground of attack against the order of the lligh Court, under appeal, was that the HiCYh Court had erred·in coming to the conclusion that there had been a ft~ilure of natural justice. In this connection, the Iligh Court has made reference to the several affi. da. vits filed on either side, and the order in which they (I) [1956] S.C.R. 256. •. "' • ' s.c.R. ·. SUPREME COURT REPORTS '1261 c v. h~d been filed; and the use made of those affidavits or Counter-affidavits. As already indicated, the . rules Nagmdra Nalh make no provisions ~or the reception of evidence oral Bora& Anothtr or documentary, or · the hearing of oral arguments, or even for .the issue of notice of the hearina 0 to the par- The Ccnnmi.ssioncr ties. concerned. ··:.The en tire proceeding~ are marked · of Hill!

Dtvision by a. oomp_lete lack of formal~ty. . The several au tho~ e. A!!;~:he~;sam, dties : have been left to their own resources to make the best selection. o In this . connection, reff3rence may b~ made to the observations of this Court in the 1 case oofNe-w.Prakash T"''ansport Co., Ltd.· v. New S.uwa.rna .Transport Co., Ltd: (1 ) • . In that case, this Court has ,laid down that the rules of natural justice vary ,. with the varying constitutions of statutory bodies and the rules prescribed by the Act under which they function; and the question whether or not any rules of natural justice hf!.d been contravened, should be decided not .under any pre-conceived notions, . but in the light of the statutory rules ·and prov~sions. In the instant case, no such rules have been brought to our notice, which could be said to have been . contravened by the Appellate Authority. Simply because it viewed :a, case in a. particular light which may not be accopt.able to another independent tribunal, is no ground . for interference either under Art .. 226 or Art.

227 of ,the Constitution. ... Si11TJ<.J ]. \ . - It roma.ins to consider the ·last. contention rais~d .on behalf of the appellants : in . these cases, na.mely, whether there has been any error apparent on the face of the record, in the order of the Appellate Authority, which would attract the supervisory . jurisdiction of the High Court. In this connection, the following observations of the High Court are relevant : "But the most glaring error on face of the order of the Appellate Authority is that it does not even refer to the report of the Deputy Commissioner on which the Excise Commissioner had so strongly relied. In my opinion, it was under the Rules obligatory on the Ap~ellate Authority to consider t;bat report before dis~ posmg of the appeal, and in failing to d~ so~ th~ officer (I) [r?,7] S.C.Ro 98 . • 0 1262 SUPREME. COURT REPORTS [1958] ) . 1 · I 95a _ ac e t d arbitrarily and :in excess of his powers as ~n . , . Appellate Authority. · · · · · . . . . . . and Others Nagendra Nath It may be that during the prolonged hearxng of these s before the · High Court w~ere counsel for the Bora & Atwt/Jer . v ·.The Com,;,issio"e' different parties placed their· respehct1dve · Vlew.points ·of Hills Division after making copious references to t . e ocuments, the ·~Appeals.

Assam. High Court· was greatly impre~sed · that the order of settlement in one case (Murmur1a shop), made by the Deputy" Commissioner, ·as confirmed by the · Excise Commissioner; was the right · one at:td ·that the choice made by the Appellate Authority did not commend itself to the High Court~ · It may further be that the conclusions of fact of the High Court were more in consonance with the entire record of the proceedings, and that the choice made by the ultimate Revenue Authority, was wrong. But, under the law a's it stands, the High Court exceeded its powers in pro nouncing upon the merits of a controversy ~which the Legislature has left to the discretion of the AppeiJate Authority. But is that a mistake apparent on the face of the record, as understood in the context of Art. 226 of the Constitution ? Tha.t leads us to a consideration of the nature of the error which can be said to be an error apparent on the face of the record which would be one of the gr?unds to attract the supervisory jurisdiction of the H1gh Court under Art.

226 of the Constitution. The ancient writ of certiorari which now in Encrland is known as the order of certiorari could be i~ued on 'fhese gro~nds have been dis- very limited grounds. cussed by this Court in the cases of: . Parry & Co. v. Commercial Employee's Association, Madras (1), Veerappa Pillai v. Raman and ·Raman Ltd., and otlbera (11 ), Ibrahim Aboobaker v. Ouatod·ian Genetal of ~vacuee Property ('), . T. C. Basappa v. T. 'f.lagappa ('). All these cases have been considered by this Court in ( J) {!9.52] S.C.R. '19. (3) [t952] s.c.R. 6g6. (2 ) [x9sz] S.C.R. .583. <-t> [19551 1 s.c.R. 2.50. 1263 SUPREME COURT REPORTS s.c.R. the case of Hari Vishnu Kamath v. Syed Ahmad ~ z95a Jshaque and others (1}. Ven_katara.ma Ayyar J., speak- ino- for the full Court, la.td d lWn four propositions Nagendra Nath be~ring on the character and scope of .the writ of Bora b v A"otller ce'ftiorari as est a blisbed upon the authorities.

The The c0m,;1issioHer third proposition out of. those four, may be stated in of Hills Div~ion the words of that learned Judge, as follows : b Appeals, Assam •. " The Court issuing a writ of cert·iorari acts in exer- and Others . i oise of a. supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact. reached by the inferior Court or Tribunal, evep if they be erroneous. " . .. While considering the fourth proposition whether the writ can be issued in the case of a. decision which was erroneous in law, after considering the recent Authorities, the same learned Judge, in the course of his judgment, at p. 1123, has observed as follows; Sinha]. . .. "It may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something m·ore than a mere error: it must be one which must be · manifest on the face of the record.

" The High Court appears to have been under the i · · · · · impression that the expression "error apparent on the face of the record" may also be in retipect . of findings of fact. For example, in Civil Appeal No. 668 of 1957, relating to J or hat shop, the High Court has observed · as follows : "The Appellate Authority further re-inforced its suspicion by mentioning that Dharmeswar, his father and brother are summoned in connection · with some complaint, but that was a matter purely extraneous, to speak the least-and it could have found that the oompla.int was filed after the settlement. The com plaint had no reference to any offence of smuggling or the like as has been conceded. These were errors a.p~ parent on the face of the record. " La.ter, in the course of the same judgment, it has been observed as follows: ·. · · "This is another instance where I find that the Excise Appellate Authority has . misconceived (1) [1955]1 S.C.R. tiO.f.t u~u. \ ~ ) ' • 1 t d K l•t I958 . ' smugger. and Others Dh'.

Sinha J.- "\ 1264: SUPREME COURT REPORTS [1958] \. " powerd aS SUCh and purported t~ decide t~e appeal either on errors of record, speculations or on Irrelevant · Nage~drAa Nt~th considerations, irrespective ·of ·an that happened in Bora 1.9'v na '''' 'the earlier stacres of the matter. It starts with an The Conu~ission Br app.arent ·. erro~ · of record when it says that in the of Hills Division judgment of the Excise Commissioner it finds 'a 'clear a,. Appeals~ Assam, admission. that Shri ~ · Garela l(alita, father of Shri I n a 1 a; ·xs· ·a suspec e · armeswar fact,' there was no such ~dmission. It was held by the Commissioner ' on·· the ·contrary that 'the· learned Deputy· Commissioner and men1bers of the Advisory Committee thought that the major son who bears an ·excellent character should not be ·punished for the alleged sin of his father'." .These excerpts from· the judgment of the High Court are not exhaustive,. but only illustrative of the obser vation that the H1gh Court appears to have treated an_ error of fact on the same footing as an error of law apparent on ·the face of the record.

The question, ) naturally; arises whether an error,. of fact can be in· voked in aid of the power of the High Court to quash an order of a subordinate court or Tribunal. The High Court would appear to have approximated it to an' error apparent on the face of the record' as used in r."l of 0. 47 of the Civil Procedure Code, as one of the grounds for revie\v of a judgment or order; but that is clearly not the correct position. Ordinarily, a mistake of law in a judgment or an order of a, court, . would not be a ground for review. It is a mistake or an error of fact apparent on. the face· of the record, which may attract the power of review as contem .. plll.ted by r. 1 of 0. 47. But is the power of a. High Court under Art. 226 of the Constitution, to interfere on certiorari, attracted by such a mistake, and not the reverse of it, in the sense that it is onl v an error of law apparent on the face of the reco1:d, which can attract the supervisory jurisdiction of a Hicrh Court! een raised in this form in this Court in any one of the previous docisioi1s bearing on tho scope and character of the writ of cert·iorari.

It is, therefore, necessary to examine this question diroctly raised in this batch of appeals, This question, so far as we kno'vv, has not b 0 s.c.R. SUPREME COURT REPORTS 1265 · · . · . · · v. h 1 t ers · · · _ Sinha J. b~cause,. in ~ach case, the High. Court has ~een invited to exer?tse t.ts powers un?er Art. 226, to IBsue a writ of ce1·hora.n on the speClfio ground that the orders impugned before it, had been vitiated by errors ap- parent on the face of the record-errors not of law Ju Co1nm; ssi01rer but of fact. . • ),j Hills Division · The ancient case of the Queen v." James ' Bolton (1) .s. Appdeaols,, Assam, ' is treated as a landmar r on t e question of the power to issue a writ or order of certiorari. That was a. case in which an order of justices for delivering up a. house to parish officers, . under a. statute, 'vas called up on certiorctri.: Lord Denman C. J. while discharging the rule, made the following observations ' in the course of his judgment, which have been treated as a.utho~ita- tive and good law even now : ' . "The first of these is a point of much importance·, because of very general application; but the principle upon which it turns is very simple: the difficulty is always found in applying it.

The case to be supposed is one like the present, in which the Legislature has trusted the original, · it may be {as here) the ·final, jurisdiction on the merits to the magistrates pelow; in which this Court bas no jurisdiction · as to the f merits eit, her originally or on appeal. All that we can then do, when their decision is complained of, is to sec that tho cn.se was one ·within their jurisdiction, and tha.t their proceedings on the face of them are regular and according to law. Even if their decision) should upon the merits be unwise or unjust, on these · • grounds we cannot reverse it. " ~Vhilc dealing with the argument at the Bar, complain Ing of. the unsoundness of the conclusi01'1s reached f by ~he magistrates a.nd the hardships to be . ca use.d .by { thou· erroneous order, the Court made tho followmg· observations which are very apposite to the facts and circumstances disclosed in the in~tant appeals, and which all courts entrusted with the duty of administer ing law should bear in mind, so t.ha.t they ma.y not be dcflc~ted from the stra.ight path of enforcing the law, by considerations based on hardship or on vague (I) [l8<f r] (1) Queen'; lJ<Incb p.

66, 72,76; t 13 English Repor~ . ' .' . . . . 105-f; 1057· 1058. 1266 SUPREME COURT REPORTS [1958] .. · t · · . · h r958 · d ideas of what is sometimes described as just.ice of t'he · . cause: ·. . . NagetJdra Nath , · . . "Beyond this we cannot go. The affidavits, being h Bora 6- Another, · · f before us, were used on t e arguf mhen ; an _mucd was v. . . . 1 Th1 Commissiont!. said of the un~asona.ble~eS!J .!2~ _t -~ -c~!!c_ USI~n ra wn nf Hills Division\ by the magistrates, ana _of t~e hardshii? OD tfle defen- 6- Appeals, Assam,:da.nt if we would not review It, there he1ng no appeal tu .c b ' and Others / to the sesswns. u e 10r ear to ex press any optniOn on Si,-:;;]. · ·~ that which is not before US! the propriety of ~he con : elusion drawn from the evtdence by the magistrates: J they ~nd they alone were the co~petent author.ity to :·!;draw 1t; and we must not constitute ourselves Into a : ~Court of Appe.al where t~e statute does not make us l ·;such, because 1t has constituted no other . • , · ' • · It is of much more importance to hold the rule _of la\v straight than, from a feeling of the supposed hard. ·ship of any particular ·decision, to interpose relief at the expense of introducing a precedent full of incon venience and uncertainty in the decision of future · cases.

" . ~ The case of Reg v. Bolton (supra) was approved and followed by the Privy Council in the case of the King In that case their v. Nat Bell Liqttors, Limited (1). Lordships of the Judicial Committee held that a con· viction by a magistrate for a. non~indictable offence, (cannot be quashed on certiorari on the ground that 1 the record showed that there was no evidence to sup· ') port the conviction, or thn.t the maaist.rate had mis t directed himself in considering the ~vidence. It was '--further laid down that the absence of evidence did not · affect tho jurisdiction of the magistrate to try the · charge. In tho courae of their jud(J'ment, their Lord • . ships further observed that the Ia\~ laid down in Reg v. Bolton (supra.) has never been seriously questioned in England, and that the same rules were applicable to other parts of tho Commonwealth, except in so far · as they may have been modified by statute.

They also obsorved that the decision in Re(J v. Bolton (supra.) ~· ul}doubt~dly is a I~ndm.ark in the history of ce·rtio ran, for It summarises 1n an impeccable form the principles of its appJication ...... , But latterly, the rule · · (1) [l922J 2 A.C. 1 a B. · . SUPREME 'COURT REPORTS 1267 · . , , . ·. f , , · . S1'nha'j: ~ and OtJ,eu' I~id down in Bolton's ~ase·, appear~ to have been slurr. d over in some dcmded cases, 1n England which· e urported to ~a.y down ~hat a writ o.r order of c~rtiora1·i Nagendra Nat!J ~ould be obt~~cd. o~ly If the ~rder 1m pugned disclosed Bora 6-v~noJh~f­ on· error · of JUrLSdwtwn, that IS to say, complete lack Th c · · , .. <t ornm ISSI 01leY' of junsd.wtl_?D. or. e-:cccss o ]Ur1Sd10t10n or the refusal of 1/ills Division· to· exercise JUl'lSdlCtlOn, and not to correct a.n error of~ Atpeals, As.sam/ }a,w, even though apparent on the fa ce of the record.: The question was brought to a.. head in the case of Rex. y.

Northumberland Oon:pen; satton Appeal 'J'ribunal (1) .. It arose ·out of an apphca.twn for an order of certiorari for quashing a decision reached by the respo11dent_:_ Northumberland Compensation Appeal · Tribunal,: Lord G9ddn.rd C. J. began his judgment by observing that the point involved in the case was "of the very greates~ · importance" which had "necessitated the examination of a large number of cases and cousidera-: tion of: the principles which apply to the doctrine of cert·iorari -"., He · further : obse, rved that certiarari is ·a. remedy · of .a very special character. He, then, dis-: cussed the object and scope of the writ of certiorari ~nd: the history of the jurisdiction as exercised in the English courts. He then d ealt with · the conteQtion directly raised for the determination of the court that an order of certiorari, can issue only to remove .a. defect of jurisdiction and that it does not extend to remov ing an order out of the way of the parties on account of & mistake of law apparent on the face of the record.

The court then considered the relevant authorities, and came to the conclusion that it was wrong to hold that the ground of interference on certiorari, was only · an error or e:tcess of jurisdiction, and. that · it did no~ ~xtend . to correction of au error of law apparent on the face of the record. . .The Lord Chief Justice then pointed. out that the examination of the authorities ~?aring on the exercise of the power of certiorari, Yleld~d· the result that it wa.s open to the High Court -to examine the record and to see whether or not there Was an error of law a ppu, rent on the fo.ce of the rec?rd. T~e Lo~d Chief Justice concluded ·his observations ?t'1th these remarks : - ·. (1) [l9St]t KB. 71r. J6t . . ' . 1268 SUPREME COURT REPORTS [1958] • • f d d . . . . h 11 • d This f h 1 t 95a - on appea, their view o t e aw, an we are o opinion · _ ··, "The tribunal have told us what they have taken into account, what they have disregarded, and the Nagendra Nath contentions which they accepted.

They have told us th t th Bora 0- At~olhcr ·. e a v. The Commi$sipner construction which they . placed on this very compli. of Hills Division cated set of regulations was wrong. " d d). Appeals, Assam, eciS!OO was c a enge , an and Others · Sinha]. 1 th e · Court of Appeal . dealt with t.his point in Rex v. Northumberland Compensation Appeal Tribunal(!). The Court of Appeal affirmed the proposition laid down by the High Court that an order for certiorari, can be granted and the decision of an inferior court such as a statutory tribunal, quashed on the ground of an error of law apparent on the face of the record. Sing .. ( leton L~ J. in the course of his judgment, observed ) that an error on the face of the proceedings, which 'i in that case was an error of law, has always been re .. 1, cognized as one of the grounds for the issue of an order ( of certiorari. Denning L~ J. also, in the course of his \ .. judgment, examined the question whether the High Court could intervene to correct the decision of a statutory tribunal which is erroneous in point of la\v.

On an examination of the authorities from ancient times, the Lord Justice made the following o bserva .. tiona:- " Of recent years the scope of certiorari seems to have been somewhat forgotten. It has been supposed to be confined to the correction of excess of jurisdiction, and not to extend to the corl'ection of errors of law; and sc'Veral judges have said as much. But the Lord Chief J uatice bas, in the present case, restored cer tiorari to its rightful position and shown that it can be used to correct errors oflo.w which appear on the face · of the record even though thoy do not go to jurisdiction. I have looked into the history of the matter, and find that the old cases fully support all that the Lord Chief Justice said. Until about 100 years ago, certiorari was regularly used to correct errors of law on the face of the record. It is only within the last century tha.t it has fallen into disuse, and that is onlv becu.uso there has, until recently, been little occasion for its exercise, (•) [195:1] I K.B. 338. ' . v.

I958 1269 SUPREME COURT REPORTS ust1~e w o took part in the hearing s.c.R. NolV, with the advent ~f. many new tribunals, and the plain need for superv1s1on over them, recourse must once again be dha. Jd to ~his whell-tried means of control. " :a:!e;t;!~~! The other Lor of . the appeal, :Morris L. J. also examined that Tlu commissiontr ·question and concluded as follows;- of Hills Division "It is plain t!Iat .cer~iorari will not issue as the'-.App"als, Assam. . cloak of an appeal In dtsgmse. It does not lie in order /and Other$ to bring. up a:n order or deci.sion for re~earing of the issue raised m the proceedmgs. It exists to coiTect error of law where revealed on the face of an order or ·decision, or irregularity, or absence of, or excess of, jurisdiction where shown. " ·. It is clear from an examination of the authorities of this Court as also of the couxts in England, that one of the grounds on which the jurisdiction of the High Court on certiorari may be invoked, is an error of law a.ppa.rent on the fa.ce of the record and not every error7 either of law or fact, which can be corrected by a.~ superior court, in exercise of its statutory powers as a { j court of appeal or revision.

Sinha J. · · · · . So far as we know, it has never been contended be-~ fore this Court that an error of fact, e\en though apparent on the face of the record, could be a. ground for interference by the court exercising its writ jurisdic- tion. No ruling was brought to our notice in support of the proposition that the court exercising its powers under Art. 226 of the Constitution, could quash an ;' order of an inferior tribunal, on the ground of· a. mistake of fact apparent on the face of the record. / ) But the question still remains as to what is the legal import of the expression' error of Jaw apparent on the Is it everv error of law that can fa<.:e of the record.' attract tho supervisory jurisdiction of the High Court, to quash the order impugned? This court, as obser~ed above, has settled the law in this respect by laymg down that in order to attract such jurisdiction, it is essential that the error should be something more than a. mere error of Io.w • that it must be one which is manifest on the face dr the record.

In this respect, the law in lndin. and the law in Eugln.nd, are, therefore, the same.· It is also clear, on· a.n examination of all ,~ Jf 1 1270 ' 1958 - · . · : ;- .. :, · a?Jd Othus Si?Jh" J. · · the authorities of this Court and of those in Engla~d~ . ' referred to above; as also those considered in the Nagendra NatA several judgments of this Court, that the Common Law Bora & .Attot!Jer . writ, . now . called· order of certiorari, which ·was also Tire co:~,issio~&e~ adopted by our Constitution, is not · meant to take the of Hills Divisiolf place of an appeal where the s~atute does n~t c~nfer a ?-Appeals, Assanll, right of appeal. Its purpose IS only to determine, on -an examination of the · record, whether the inferior -~1tribunal h.as exceeded its. jurisdiction ?r has ·!lo~ proceeded 1n accordance With the essential require ments of the law which it was meant to administer. }1ere formal or· technical errors, even though 9f law, will not be sufficient to attract this extraordinary . ·jurisdiction. : ·:. The principle underlying ·the jurisdiction · to issue a writ or order of certiorari, is no more in doubt, but the real difficulty arise·s, as it · often does, in ·applying the principle to the particular facts of a given _case.

In he judgments and orders impugned in these appeals, the High Court has exercised its supervisory jurisdic tion in respect of errors .which cannot be said to be . errors of law apparent on the face of the record. If at .. all they are errors, they are erroJ·s in appreciation of documentary evidence or atlidavitst errors in drawinO' inferences or omission to draw inferences. In othe~ :words, those are errors which a court sitting as a, court ·of appeal only, could have examined and, if necessary, corre(.;ted .. As already indicated, the Appellate Autho .rity had unlimited jurisdiction to examine and appre ciate · the evidence in the oxercise of its appellate or ·revisional jurisdiction. ·Section 9(3) of the Act, give.s it the power to pass such · orders as it thought fit. ( ~hese. are words of ve~y great al_llplitude. The j~risdic­ )' t10u of the Appellate Authority, to · entertatn the . appeals, has never been in doubt or dispute.

Only the ) manner of the exercise of its appellate jurisdiction was 1 in controversy. It has not been sho'~"n that in exercising ~ its powers, tho Appella, te Authonty disregarded any . mandatory provisions of the law. Tho utmost· that has beeu suggested, is that it has not can·ied out certain .Bxocutive lustructions . . For example, it has been said , that the Appellate . Authority did ·not observe the ~ B.O.R. SUPREME COUR11 REPORTS 1271 instructions that tribal people ·have to be given certain preferences, or, that persons on the debarred list, like smugglers, should be kept out (see p. 175 of the Nagendra Nd.Jh Bora 6- Another Manual). But all these are only Executive Instructions v. which have no statutory force. Hence, even assuming, Tile commissioner though it is by no means clear, tha.t those instructions of lhlls Division · have been · disregarded, the non-observance of those <So Appeals.

Assam, r9sa and others SinJia 1. instructions cannot ~ffect the p ower of the Appellate Authority to . make 1ts own selection, or affect the ·validity of the order passed by it. · r The High Court, in its several judgments and 6rdera,( h'as scrutinized, in great detail, the orders passed by the Excise · Authorities under the Act. \Ve have not thought it fit to examine the record or the orders below i in any detail, because, in our opinion, it is not the 1 function of the High Court or of this Court to do so. \ The jurisdiction under Art. 226 ·of the Constitution is I limited to seeing that the judicial or quasi-judicial ~ tribunals or .. administrative bodies exercising quasi judicial powers, do not exercise their powers in excess ( of their statutory jurisdiction, but correctly administer the law within the ambit of the statute creating them I or entrusting those functions to them. ·The Act has :· created its own hl~rarchy of officers and Appellate · ·authorities, a.s indicated above, to administer the law .. So long as those Authorities function within the letter and spirit of the law, tho High Court has no concern 7 With : the manner in .which those powers have been L exercised.

In the instant cases, the High Court appears 1 • to have gone beyond the limits of its powers under ' . , J. Arts. 2261l,nd 227 ·of tho Constitution. . · In ontl of the cases, the High Court has observed -that though it could ha.ve interfered by issuing a. writ under :Art. 226 of the Constitution, they would be .contont to utilize their powers of judicial superinten ~ence under 'Art. 227 of ·tho Constitution vide its Judgment dated July 31, 1957, in appeals relating to ·Murmuria shop (Civil Appeal~ Nos. 669. and 670 of 1957). · In exercise of that power, the H1gh Court set ~side the order of the Appellate Authority, and directed lt to re-hear the appeal 'according to law in the light of the principles indicated in this judgment '. . : .· . · · -., ~· l I' r 1272 . SUPREME COURT REPORTS [1958] z9sB · A Constitution Bench of this Court examined tlie scope of Art. 227 of the Constitution in the case of Nagendra Nath W aryam Singh and another v.

Arnarnath and another (1 ). Bora cS- A'Jot!Jer This Court, in the course of its judgment, made the v. Tl1s Commissioner following observations at p. 571 : Qj H ills DivisiaJJ & Appeals, Assam, article 227 is, as pointed out by Harries C .. J. in Dal·mia . ·. " This power of superintendence conferred by . ' .·. and Others Sinha 1. Jain Airways Ltd. v. Sukumar JY!ukherjee('~'), to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. " It is, thus, clear tha.t the powers of judicial interfer ence under Art. 227 of the Constitution with orders of judicial or quasi-judicial nature, a.re not greater than the powers under Art. 226 of the Constitution. Under Art. 226, the power of interference may extend to quashing an impugned order on the ground of a mis take apparent on the face of the record.

But under Art. 227 of the Constitution, the power of interference is limited to seeing tha.t the tribunal functions within the limits of its authority. Hence, interference by the High Court, in these cases, either under Art. 226 or 227 of the Constitution, wa.s not justified. ~ . · After having dealt with the common arguments more or less applicable to all the cases, it remains to consider the special points raised on behalf of the respondents in Civil Appoa.l No. 672 of 1957, relating, to the Tinsukia country spirit shop. It was strenu ously argued that the appeal was incompetent in view . of the fact that the rule issued by the High Court, was still pending, and that this Court does not ordi narily, · entertain a.n appeal against an interlocutory · order. ·It is true that this Court does not interfere in cases which have not been decided by the High Court, but this case baa some extraordinary features which attracted the notice of this Court when special leave to ·appeal was granted.

As already stated, the shop in question was settled with the appellants by the Excise Commissioner, and his order was upheld by the Appellate Authority. Accordingly, the appellants, (r) [rOH] S.C.R. 565. {l) A. L R {19$1) Cal I93• . • • d 19'11 d h d b •ntl OJners . si,.lla 1 SUPREME COURT REPORTS s.o.R. 1273 h·ad been pu~ in possessi~n ?f t.he shop on June 7, )957. The H1gh Court, while 1ssmng the rule, passed an order on the stay application, which, as already Nagendra Nath Bora 6- Anclher a.. • een mtsun erstood by the D1strict indicate , v. Excise author1ttes, and the appellants were dispossess- The Commissioner ed a.nd the respondents 1 and 2 put back in posses- of Hills Division sion, without any aut hority of I a w. This was a 6- Appeals, Assam, flagrant interference with tho appellants' rights a.rising out of the settlement made in their favour by the highest revenue aut horities. The High Court h ad not and could not have authorized the dispossession of the persons rightfully in possession of the shop. . The appellants brought this flagrant abuse of power to the notice of the High Court several times, but the High Court felt unduly constrained to permit the wrong to continue.

We heard the learned counsel for respondents at great length a.s to whether he could justify the continuance of this undesirable and un- fortunate state of affairs. It has . to be remembered th&t the appellants, as a result of fortuitous circum· stances, had been deprived of the possession of the shop during the best part of the financial year 1956-57. The appellants had been deprived of the fruits of their hard-won victory in the revenue courts, without any authority of law, and the High Court failed to right the wrong in time, thoug h moved several times. In the-se circumstances, we found it necessary to hear both the parties on the merits of the orders passed by the Commissioner of Excise and the Appellate Autho- rity, in favour of the appellants, against which, the respondents had obtn.incd a rule. After having heard both sides, we have come to the conclusion that no grounds have been made out for interference by the High Court, under its powers under arts.

226 and 22i of the Constitution. This case shares the common fate of tht! other on.ses before us, of having run through the entire gamut of the hierarchy created under the Act, read alonCl' with tho amendina Act and the rules thereunder. \V~ do not find a.ny g~ounds in the orders of the Excise Authorit ies which could attract the supervisory jurisdiction of tho High Court, there being no error of law apparent on the face of the record, ,, i I -." /~ ,., f I 1274 SUPREME COURT. REPORTS [1958l I • y. 1958 • t d . · and Others · · · Si"ha J. or a defect . of jurisdiction in the Authorities whose· orders have been impugned in the High Court. , We Nagendra Nath Bqr~ e. Another would, however, like ·to make it clear that we are ·interfering with the interlocutory order passed by the TTl~ Commis.si.o~er High Court in this case because · of its unusual and of Hills Dwrs10n exceptional features. It is clear that our decision on .l t. h & .Appeals, Assam. tb · e marn po1n s urge 1n. o o er appea s necessan y ·- leads to the inference that, even if all the allegations . made by ·the respondents in their petition before the Assam High · Court are .aceepted as true, there would be ·no case whatever for issuing a rule.

Indeed, the respondent found it difficult to resist the appellant's argument that, if the other appeals were allowed on the general contentions raised by the appellants, the dismissal of his petition before the Assam High Court would be · a foregone conclusion. It is because of these special circumstances that we have decided t~ interfere with · the interlocutory order in this case in the interests of justice. · As a, result of these considerations, the appeals ·must be allowed and the orders passed by the ·High . Court in the several cases, set asirle. . On the question of costs, we direct that the appellants in each case, should get their costs here and in the High Court, except the · appellant in Civil Appeal No.-670, who has failed on the main point raised on his behalf, and who, there. fore, mu~t bear his own cosls. Appeals allowed. . ' ' - .. ' • I