Ghaio Mall & Sons v. The State of Delhi & Others

Dr. J. N. Banerjee and P. C. Agaru;ala, for respon-dent !'l'o. 5.

1958. September 30. The Judgment of the Court was delivered by

DAS C. ,J.-The facts material for the • purpose of • Das C. ].

disposing of this appeal by special learn a.re shortly as follows: The appellants, before us cl:iim to ha.\'tl been dealers in foreign liquor• sinco 1922 and to hao;tl, before the partition of the country, held licenses in forms L-1, L-2.. L-10 anti L-11 at Amritsar, Sialkot and Multan.' The appellants allege that in 1945 thoy had also secured a license in Form L-2 in respect of • some premises in Cha.wri Bazar, Delhi, but that the

operation of the si>id license had to be suspended on account of the unsuitability of the Chawi-i Bazar pre.mises. Then ca.me the communal riots in t.ho wake of the partition of the country and that license could not he renewed. In 1951 the appellants applied to the Chief Commissioner, Delhi, (Ex. l) for licenses both in Forms L-1 and L-2 in respect of Karolbagh or • at any pla.ce· in Delhi. On :\Iuy 17, 1951, l~ Home • Secretary to the Chief Commissioner by letter (l<}x, 2)

conveyed to the appellants the sanction of the Chief Commissioner to the grant to them of license in :Forin L-.i! :in respect of Karolbagh, Delhi. This .license ha8 ever Since then been rene\\~d from year to vear. In 19.54 a vacancy a.rose in respect of a license I958 in :E'orm L-2 on account of the closure of the business of Messrs. Army and Navy of Regal Buildings, Ghaio ~tores Mall & Sons New Delhi, which held such a license. Accordingly on v. January 21, 1954, the appellants submitted an applica-The State of tioll' (Ex. 4) to the Deputy Commissioner for tlte grant Delhi 6' Others of a foreign liquor license in Form L-2 in the afore-said vacancy. In that application the appellants Das C .• j. stated, inter alia, that they were " prepared to operate it in. such a part of Delhi as may be determined by the authorities". Not having received any reply for nearly 3 months and apprehending that interested persons were endeavouring to cause hindrance in the matter of the granting of the license to them on the .plea that the appellants had no premises in Connaught Place, the appellants, on March 11, 1954, wrote a ·letter (Ex. 5) to the Chief Commissioner in which, after pointing out that Karolbagh where they had their L-1 license was in New Delhi, the appellants • stated: "Ia any case, we have already made it. clear

in our application which we made to the Deputy Commissioner, Delhi on the 21st January, 1954, that we are prepared to operate J;his license in any locality 'which the authorities might deem proper". This letter was acknowledged by the Personal Assistant to the Chief Commissioner who, on Ma-rnh 15, 1954, stated (Ex. 6) that the" application No. Nil dated 18-3-1954 on the subject of grant of foreign liquor • license in Form L-2" had been forwarded to the Home Secretary, Delhi State, for disposal. Exhibit 7 to the petition is an important document. It is a letter dated l\{ay 21, 1954, addressed by the appellants to· the Exci~e and Taxation Commissioner stating that " with a view to avoiding any possible objection as to locality etc., we have secured suitable premises also in the Connaught Place area1 New Delhi, in wh_ich area has • occurred a vacancy on account of t-he surrender of this license by Messrs. Army and Navy Stores". The • letter concluded with the request that early orders be passed on their applicatiort. On July .30, 1954, the appellaitts wrote a long letter (E¥. 8) 'to· the Chief Commissioner claiming justice . in the .. matter of th et; . .

1428 SUPREME COURT R~EPORTS • , [1959]

application for the L-2 licen8ct In th~ aecond para-graph of that letter it was stated: "It is now being Ghai" ftcclaimed by the party'concerncd and thoir friends Mall <">- S:11Js

v. that they have succeeded in removing the only obstacle The Slate of t.hat stood in the way of their getting the said L-2 Ddhi ~~~ 01hers license by so arranging matters that our applica~ion

v ... c. has been kept back by lhe Excise Commissioner ttnd

j. that only fi vc or six other applications of firms without

much nrnrit in them have been forwarded to you in order that they might have a smooth sailing as against those applicants". The appellants prayed that the Excise CommiRsioner might he directed to forward all records concerning the case to the Chief Commi8sioner so that the latter might he able to arrive at a just conclusion find they asked for fL hearing to explain, their claim fully. A copy of this letter appears to ha,·e be<!n endor:>cd to the Excise Commissioner on August 13, 1954, by the Under Secretary, Fina.nee. The Excise Commissioner then wrote a letter ~o. 295. C/54 dMet! August 31, 19li!, to .the Under Secret,Lry, Finance, ft copy of which was produced by the learned Holicit.or Genera.I at tlw hearing before us. In this letter the Excise Cojnmissioner cxpl1tin<'d why the application of the appellants was not eousidcretl • by him to be a good ftncl proper one lLIHi stated that reasons why~ .tccnrding to him, the ltpplications of two nth<!r applica.nt8, including ~lessrs Ga.incl11 • !\-fall Hem RlLj (respondent. ~o. 5), shnulcl he given

the preference. In the penultim1ttc pa.ra.gmph of this letter of explanation it. was st,1tecl: ",In the end it may also he a.dcled that the applir.a11t !ms no pren\ises in New Delhi and as such he ha.cl no clai111. The lice11He in F<lrm L-2 is grnntecl in respect of cerl.,tin premises." The conchsion was that "under the eireurn,;tances there is no force in the application • of Messrs. Ghaiu ~fall and ::-;ons." It is apparent that

the Excise C 0ommissioner did not remember th11;t the • appellants ha.1\, by their Jetter (Ex. 7) of :\la.y 21, 19~4,

addressed t.o him, stated that they had secured smt- 'tble premi~es-also ill the Cnnnaught Place area, '.'\cw D.elhi. Be" t!lat as it ma~', on September 11, 1~54, t.he appellants wrote another letter (Ex. "9) to the Chief . • • • CommissiolJilr' pressin~ tbJiir claim. In this letter reference was made to their letter to the Excise Com-missioner of May 21, 1954, (Bx. 7) in which it had been GhaiO stated that the appellants had secured suitable pre-Mall c;.. Sons v. mises in the Connaught Place area in New Delhi. A The State of co~ of this letter was sent to the same U ndeJ> Secre-Delhi & Others tary, Finance, to whom the Excise Commissioner had written his letter of August 31, 1954, alleging that the Das C .• j. appellants had no premises in New Delhi. Exhibit 9A is tqe postal acknowledgment by the Under Secretary, Finance, of the letter containing the copy of the appellants' letter but it does not appear from the record that the Under Secretary, Finance, thought it necessary to remind the Excise Commissioner that the jtppellants were maintaining that they had secured suitable premises in New Delhi. This was followed by a Jetter (Ex. 10) from the appellants to the Excise Commissioner intimating that an application had been made to the Collector on September 11, 1954, for a change of their premises for L-1 license from Karol-bagh, New Delhi to H. 32 Connaught Circus, New Delhi. Although this letter had been written in con-nectioT:t with the change of L-1 license, it certainly did '!!J'ecify that the appellants had secured the premises H-32 Connaught Circus. The personal Assistant to the Ex:cise CornmisBioner replied (Ex. ll) that the matter was under consideration. There was a reminder (Ex. 12) sent to the Excise Commissioner on Decem-ber 8, 1954, about the change of L-1 license from Karol-bagh to Connaught Circus. It appears from papers, for the tlrst time produced before us at the hearing of t~is appeal, that on September 3, 1954, a note was•put up by the Under Secretary, Finance, before the Finance Secretary, Shri S. K. Mazumdar. At the forefront of this note we find the following statement: "The applicants (Messrs. Ghaio Mall and Son~) have no pre-mises ill Connaught Ctrcus. For these reasons, if for no • other, their claim has to be rejected." The note con- • cluded with the recommendation that, in case it was decided that the vacancy should be ,filled, the re~om-, mendation of the Excise Commissioner 'should be accepted, that i§ to say, the L-2 license .. should go tt>'

• . • • • •

1430 SUPREME COURT DEPORTS •• [1959]

Messrs. Gainda )fall Hem lhj +Responcte .. t ~o. 5). On September 8, 1954, the Finance Secret.ary simply Ghaio endorsed the file to the Chief Minister who, on Septem- .\tall & Sons

v. ber 14, 1954, recorded the following order on the file: The Slate of "Commissioner's recommendation may be acec·pted ". Deihl & Othe1 $ There is nothing on the record produced before Ut; to

indicate that. the matter was sent up to the Chief Com-Dai C.J. missioner or that his concurrence was obtained under

s. 36 of the Government of Part C States Act (Xo. 49 of 1951). On December 14, 1954, the Under Secret,µ,ry, Finance, wrote to the Excise Commissioner a letter which was for the first time produced at the hearing beforo the High Court and to which detaile<l reference will be made hereaft~r. On January 15, 1955, t.he appellants were informed that the chango applied for. by th<·m in respect of their L-1 license ha.d heen allowed. The appellants were not told anything about the rejection of r.hcir application for L-2 license, but evidently they came to know that the L-2 license, for which a vacancy had arisen on account of the closure of l\.Ie;;srs. Army and Navy Stores, had been granted to )lcssrs. Gainda Mall Hem Raj (respondent No. 5). On December 24, 1954, the apriellants wrote se\·ern'!ly to the Bourn ~ecret.ary (Ex. 14) Finance Secretary• (Ex. 15) and the Un<icr Secrdary, Fina.nee (Ex. 16) asking for a. ct>py of t.he order or orders granting license to )lcssrs. Gainda .\fall Hem Raj and/or reject-ing their own application for L-2 foreign liquor license . Three postal acknowledgments (Ex,;. 16A, 1613, 16C) relating to those three letters are on the rccor1. Th<l appellants gut no rciJly from 1rny of them .

J\'"ot having received any reply the appelhrnts OJl December 21, 1954, moved the Punjab High eourt (Circuit Bench) under Art. 226 for appropri<\le writs or orders, but as it was not then quite clear whether tho order granting.the license to Messrs. (;ainda '.\fall Hem • Raj had actually been made, the Circuit Bene!\ sum- • marily dismissed th>\t writ application as premature .

There were proceedings taken by the appellants to obtain lea\·e. to ~ppeal ·first from this Court under Art. 1:{6 vrbi\Jh w;i.s adjourned sine die and then from °t'hc High Court . . under Art. 133, but it Is not necessary to go into furih~r detail8 of ,those proceedings. After z958 the appellants had definitely ascertained that the L-2 license had been granted to Gainda Mall Hem Ghaio M~ssrs.

Raj, the appellants, instead of proceeding with their Mall Qi.. Sons v. application for leave to appeal to this. Court, filed a The State of fresh'writ petition in the High Court (Circuit :Bench) Delhi .$. Others out of which the present appeal has arisen.

In the present writ petition the appellants have Das C. j.. impleaded 7 respondents, namely, (1) The State of Delhi, (2) The Chief Minister, Delhi, (3) The Excise and Taxation Commissioner, Delhi, (3 A) Secretary, Delhi State, (3 B) Under Secretary, Finance, (4) The Chief Commissioner, Delhi and (5) Messrs. Gainda Mall Hem Raj. The principal grounds urged by the ~pellants in support of this petition are that the ap-plications of the appellants and of the other appli-cants had never been placed before the Chief Commis-sioner who, under r. 1 of Ch. 5 of the Delhi Liquor License Rules, 1935, framed under s. 59 of the Punjab Excise Act -(Punjab 1 of 1914), as extended to Delhi, was the only competent authority empowered to grant L-2 lic~nse for wholesale and retail vend of foreign liquor to the public and that, the Chief Commissioner natl never applied his mind to the applications and did not in fact make any order and that respondents Nos. 2 and 3 had purported to exerci'!le. jurisdiction and power which were not vested in them by law and that their decision, if any, had not received the con-currence of the Chief Commissioner, as requiried by the proviso to s. 36 of the Government of Part C States Act. The appellants pray for the issue of ap-pr{)priate writs, orders or directions (a) quashing amd setting aside the order of granting L-2 license to res-pondent No. 5, (b) directing the respondent No. 4 (the Chief Commissioner) to hold proper enquiry regarding suitability of premises etc., to hear boj;h the parties and to "ecide the application of the petitioner before • taking up the application of the 5th respondent. • There is a prayer in the nature of a prayer for further and other reliefs and there is the .usual . wayer· . for costs. • • • • • • • • • • •

1432 StPRE~lE COURT'REPORT~ • [1959] • A written statement v&ifiell by the aifidavit. of Shri S. K. Majumdar, the Finance Secretarv, has been Ghaio tiled on behalf of respondent~ l to 4. In paragraph 5 A/all 6-Sons

v. of that written statement it has been averred that all The Sta:e of the applications including the appellants' a.pplication Delhi & Otlrtts were i'n fact considered; but it is significant tl!at it

,.,., c. has not been stated by whom the applications had

]. been considered. }lcssrs. Gainda ,\!all Hem Raj have

filed an affidavit only stating that they had been informed that the Chief Commissiom•r had sandioned the grant of the license t-0 them. The appellants, with the leave of the High Court, filed a consolidated affidavit ~et.ting out facts including the fact that although thoy had written to the Home Secretary, the Finance Secretary and the Under Secretary, .FinatWA', asking for a copy of the order granting the license to l\fossrs. Gainda :\fall Hem Raj, no copy of the order or even a reply to the letters had been received. In reply t-0 the consolidated fresh affidavit an affidavit affirmed by the Finance Secretary (Shri ii K. )fajum. dar) has been filed. In paragraph 13 of this affidavit it has been stated that, since no appeal lies aga~nst. the order of the Chief Commi~sioner, the quest.ion of BUJ.l-plying a copy of the order t-0 the appellantH does fl<it arise. Statements of this kind cannot but leave an impression in file mind of the (',ourt that the respon-dents were not squarely dealing with the case made by the appellants, but were evading the production of the order of the Chief Commissioner which it was obviously insinuated not to have been made at all. In order to compel the respondents to produce the origina.I order, if any, the appellants made a.n aJ?pliea-tion to the High Court supported by an affidavit. Para.graph 2 of the petition which wa8 quite precise reads thus:

"2. T~at. with r~fcrence ,to paragraphs 7 & 8 of • the written statement and para.graphs 10 and ll of • the affidavit of the Finance Secretary it is submitted

that the respondents have not filed any proper return to the rule isRued.bv thP ·Court inasmuch as the origi-nal order: sought. to be quashed with nothi,1gs etc., ·)l·hich led to those .. orders have . been ;vithheld. . by the • • • • respondents. •The respbndents have not even stated that the Chief Commissioner, {>elhi, who is admittedly the only competent authority for the grant of an L-2 Ghaio Mall 6' Sons license passed any orders himself. The replies are v, evasive. It is not stated who considered the applica-The Stale of. tion ~f the petitioner i.e. whether it . was a clerlr who Delhi 001ers was doing the noting or whether the Collector or the Finance Secretary or the Chief Minister who did Das it. "

On tliis application the High Court on April 11, 1955, made the following order :

"Let the order rejecting the petitioners' applica-tion be brought to court by an officer or official of the c!epartment concerned."

The Finance Secretary filed a reply paragraph 3 of which was in the terms following:

"3. That I have carefully gone through the rele-vant papers. The case of the petitioner was consider- .ed along with that of other applicants and it was finally decided to issue ths license in favour of Messrs.

Gaind~Mall Hem Raj. It was not considered neces-sary to send an intimation .of rejection to all those wHo had not been granted the license in question.

There is therefore no specific order rejecting the peti-tioner's application as ordered to be pI'oduced by the Hon 'ble Court."

Although it was obvious what order of the Chief Commissioner the a ppellant.s were insisting on being producei;l, the respondents were prompt in taking a,dvantage of the wording of the High Court's order directjng the production of the order rejecting the appellants' application and stated that there was no specific order rejecting the appellants' application.

This is nothing short of what may be called swearing by the card. The dellonent overlooks .th~ fact that • the ordtlr granting the license to Messrs. Gainda Mall Hem Raj was in effect tantamount to a rejection of the appellants' application. The appellants moved the High Court again on August 8, 1955. Aft.er stating .;., how the. respon~ents . were . evading the real issue, the •

appellants in paragraph 5 of the . petition . . . categorically .

1434 Sl:PREME COURT 'REPORT~ • [1959]

• stated that their case was tl1at the Chief Commis-sioner, Delhi, the compe,tent authority, had not passed GJiaio any order sanctioning the license in favour of Messrs. ft/al/ b Son;

v. Gainda l\Iall Hem Haj and prayed that the respon. Tht Stale of dcnl8 be directed to file the original record of th~ case Delhi & Others incluillng the actual sanction for the grant of the

lirensc lo :IIcssrs. Gain<la :llall Hem Haj. On August 1'as C. ]. 19, 1955, the Court ordered the relevant records to be

ca.lied for. The only thing the respondents could, at long last, produce before the High Court was the"lett.er of the Unrier i:lccrdarv, Fi111tncr, to the ~~xeise Com-miHsioner d1ited Decernhcr 14, 1954. to which reference has alrcadv been made.

Learned. Sulicitor-Gencral a.ppe1iring for respondents I to 4 pointed out that the order which is sought to 11e quashed was the grant of L-2 license for the year 1954/1955 which has long expired and suggested that thR writ petition and consequently tho appeal had become infructuous. It appears that the usual prac-tice in such matters is that once a license"in Form L-2 is grnnted by the Chief Commissioner, it is almost automatically renewed by the Collector from .year to year, unless, of course, the licensee is found guilty. Qf breach of any excise rule and that in such cases of renewal there ari~cs no question of vacancy entitling any outside <toinpctitor to apply for a license in Form L-2. Th1it being the position-and this is not in dis-pute-it is vitally important for the appellantH that we should consider the validity of the grant of the L-2 liconcc for 1954,'1955 to jfessrs. Gainda jfalJ Hem Raj, for in case of our holding that the order granting the same was a nullity on account of iis flot having been made by the compet~mt authority, the vacancy caused by the closure of business by :llessrs. Army and j\/ a.vy Store8 will still remain to be filled up • and the appellants will yet haw a chance of having

their application considered by the competent" autho- • rity. We accordingly proceeded to hear the appeal on

merits.

'fhc pri.nl;pal question urged before us, as before the .}:ligh Couri, is ·whether the Chief ,Comm.if!!lioner o~ . Delhi made any .. order !1nd~r r. 1 of Ch. 5 pf the Delhi ., • • • Liquor LicefJ.se Rules,' 1935. It is significant that although the Chief Minister, the Excise Commissioner, the Secretary of Delhi State, the Under Secretary, Ghaio Mall & Sons Finance, and the Chief Commissioner have been im-v. pleaded in the present proceedings as respondents The State of Nos. 2, 3, 3A, 3B and 4 respectively and although Delhi & Others they or at least some of them could have deposed to the material facts of their own personal knowledge, Das C.•]. none of them ventured to file an affidavit dealing with the t:ategorical statement of the appellants that no order had at any time been made by the Chief Com-missioner for granting the L-2 license to Messrs. Gainda Mall Hem Raj or rejecting the appellants' application.

Instead of adopting the simple and straight forward -way these respondents have taken recourse to putting up the Finance Secretary to give obviously evasive replies which are wholly unconvincing. It is needless to say that the adoption of such dubious devices is not calculated to produce a favourable impression on the • mind· of th~ court as to the good faith of the authori·

ties concerned in the matter. \Ve must also point out that 10Vhen a superior court issues a rule on an applica- ,tion for certiorari it is incumbent on the inferior court or the quasi-judicial body, to whom the rule is addressed, to produce the entire records before the court along with its return. The wb.oho object of a writ of certiorari is to bring up the records of the inferior court or other quasi-judicial body for examina- • tion by the superior court so that the latter may be satisfied that the inferior court or the quasi-judicial body has not gone beyond its jurisdiction and has eoxercised its jurisdiction within the limits fixed by the law. Non-production of the records completely defeats the purpose for which such writs are issued, as it did in the present case before the High Court. We strongly deprecate this attelll.pt on the part ·of. the official • respm1.dents to bye-pass the court. We are bound to • observe that the facts appearing on the records before us disclose a state of affairs ~hich does not reflect any .... credit on the administration of the• erstwhile StMe of

Delhi. •We m,ust, however, say, in .. fairness to tb-'1 learned S~licitor-General,,that . he promptly produceg . • .

• • • •

1436 StJPREME COURT HEPORTS • • [1959]

• the entire records before ll8 d1fring the ht!aring of this appeal.

(;hnio As already stated the principal question, on which ,\.Jail ,..,_ _i...·011.s

v. arguments have been addressed tons, is whether the The State of Chief Commissioner had made any order for granting Delhi &- Others the L-2 license to Messrs. Gainda :\fall Hem Raj. 'fhe

n c. ;. High Court answ<>red the question in the affirmative on

two grounds, namely, (1) that the Finance Secretary had made an affidavit stating that the dcci;;ion regard-ing the grant of the license to Messrs. Gainda ~\fall Hem Raj had been taken hy the Chief Commissioner, and (2) that. the learned Solicitor Genernl stritcd in specific terms that the matter had in fact been decided by the Chief Commissioner. On the facts as they now emerge it appearH to us that the High Court was under" some misapprehension on both these points. We have alreadv ~ummariscrl all the statRment.s and affirlavit.s affirm~d by the Finance Secretary and it is quile clrnr tlrnt the only thing that he did not say was that the Chief Commission~r harl considered lhe apJ'lieations or made an v order. The learned Solicitr1r General, with his usuai fairness, also informed us that <>xccpt. rely-ing on the letter of December 14, J9;i4, he did not sa.)', that the Chief Commissioner had taken an\· decision in the ma.Ller. This being the position we a're free to go into the •matter and come t-0 our own decision thereon.

The records, including the documents now produced before us, do not show that the applications had ever been placed before the Chief Commissioner. '].'here is nothing in the files showing any order or note on the subject made or signed or initialled by the Chief fou1-missioner. What. transpires is that the Excise Com-missioner (responclcnt Xo. 3) had by his letter dated August 31, 1954, rccordecl the reasons why the appel-lants' appliciitions could nut be f'.111.~rtaincd, one of tho • reasons being that they harl no premises fn the • Connaught Placn area in :-;'ew Delhi, that a note was

then put up by the Ur}der Secretary, Finance, on September.::!· 1954, suggesting that the appellants' ~PI)licatio1\ sh~uld be rejecte~, if .for !Wthing ·~bt', ~or tlieir not hanng .. any prc1i11ses m New Dpll11 (which ., • • • according t~ the appellantiil was not a correct state-ment in view of their letters referred to above) and.

that the L-2 license should be granted to Messrs. Ghaio 9ainda Mall Hem Raj, that the Chief Minister on Mall & Sons v. September 14, 1954, made an order on the file accord-The State of ingty and finally that tlie Under Secretary, l''inance, Delhi & Others wrote the letter dated December 14, 1954, to the Excise Commissioner intimating that the Chief Com-Das Ct']. missioner had been pleased to approve the grant of the license to Messrs. Gainda Mall.Hem Raj. There is nothing on the record to show that the concurrence with the order of the Chief Minister was obtained from the Chief Commissioner. The inexorable force of the aforesaid facts, now appearing on the record, .inevitably led the learned Solicitor General to concede that, on the records as they are, it is not possible for him to say that the Chief Commissioner had actually made the order, but he contends that, in view of the letter of the Under Secretary, Finance, dated Decem-her 14, 1954, the fact that the Chief Commissioner had made the order could 11ot be questioned in any court .

In other words the learned Solicitor General submits that that letter embodies tqe order of the Chief Com- .'rdissioner and the court cannot be asked to go behind it and enquire whether the Chief Commissioner had in fact made the order. • ·

In order to succeed in this contention the learned Solicitor General has to satisfy us that this letter is the • embodiment of the Chief Commissioner's order and that. it.has been duly authenticated. On the second point he is clearly right, for under a rule made on Marc):i 17, 1952, by the then Chief Commissioner, in exercise of powers conferred on him by s. 38(3) of the Government of Part C States Act (49 of 1951), an Under Secretary is also a person competent to authen-ticl).te an order or instrument of the Goyernment of Delhi.• The only question that remains for us to con- • sider is whether the letter in question is the order of • the Chief Commissioner. The letter on which the entire defence of the responaents nsts is, e<epressed in the fol!Qwing wprds : . · •• • • , . • • • • • ••• , I

1438 SYPREME COURT REPORTS. • [1959]

"DELHI STATE SECHETAllro\T,

DELHI STATE

Ghaio R Mall 6-Sons !\o. F. 10(139)/54-G A & Dated the

v. 14th December, 54. The State of From D1#hi & 0Jhers • • • Shri III. L. Batra, M.A., P. C. S., .Di¥ C. J. Under Secretary Finance (Expenditure) to Government, Delhi State.

To Shri Dalip Singh, M.A., L R. S., Commis.~ioncr of Excise, Delhi State, Delhi.

Subject :-Grant of L-2 License. • Sir, With reference to your letter Xo. 295/Ci54 dated the 31st AuguAt, 1954, on the above subject, I am directed to say that the Chief Commissioner is pleased to approve under Huie fi. L of Delhi Ext:ise Manual• Vol. 11 the grant of L-2 license.to :\lessrs. Gaindn. l\lall I Hem Raj, New Delhi, in place of the L-2 l,icense surrendered by Messrs. A.rmy & ~avy Stores, New. Delhi. .:\ecessary License may kindly be issued to. the party concerned under intimation to this Secre-tariate. • Yours faithfully, • (Sd.). M. L. Batra, Under Secretary, Finance (Exp.) to Government, Delhi Sta.tc." ln the first place it is an int.er-clepartmcnta.l cOJ»- munica.tion. In the second place it is written· with reference to an earlier cnmmuuica.t.ion mn.de by the Excise Commi,;sioner, that is to su.y, ex f acie, it purports to be a rep!~ tQ the latter's lett~r of August 31, 1954. • In the thirq.place the writer quite candidly stares that • he had been "directed to say " something-. by whom,

it is not stated. This makes it qnite clear that lhiR document i8 .not t.ltc ordet of the Chief Commi.;;8ioner 1;11;, ·only .'1i1lrports to be u. com,munieation7 a.t the "direction of some unknown . person-of the . order which .. •• •

• • • • the Chief • hasl made. Indeed in para-

C~missione1'

graph 7 of the respondents' statement filed in the High Court on February 2, 1955, this letter has been Ghaio Mall Q;. Sons stated to have "conveyed the sanction of the Chief v. Commissioner of the grant of licPnse to the 5th respon. The State of den1' ". A document which conveys the sanctivn can Delhi Others hardly be equated with the sanction itself. Finally the document does not purport to have been authenti-Das .j. cated in the form in which authentication is usually made. There is no statement at the end of the letter that it has been written " by order of the Chief Com-missioner". For all these reasons it is impossible to read this document as the order of the Chief Commis· sioner.

• Learned counsel for Messrs. Gainda Mall Hem Raj relied on our decision in Dattatreya M oreshwar Pangarkar v. The State of Bombay('). In that case there was ample evidence on the record to prove that a decision had in fact been taken by the appropriate , authority Md the infirmity in the form of the authen-tication did not vitiatE; the order but only meant that the presumption could not be availed of by the State. That aecision did not proceed on the correctness of the f<'rm of authentication but on the fact of an order 'having in fact be<>n made by the appropriate authority and has thus no application to the pretren.t case where it is conceded that the Chief Commissioner had not in fact made or concurred in the making of an order granting the license to Messrs. Gainda Mall Hem Raj.

In the view we have taken it is not necessary for us to consider whether the action taken under the Excise A,,ct and the rules thereunder was a judicial or-an exectitive action, for even if it were of the latter category the letter of Dec em her 14, 1954, cannot be treated· as an order properly authenticated to which the presumption raised by Art. 166 of tj:i.e Constitution will attach. For reasons stated above we hold that • there was no valid order granting the df~<lense to Messrs. Gainda Mall Hem Raj and that in th~ye of the law the vacancy arisirrg on t}le closure oi the

(1) [19~2] S.C.R. 612. '. ••

183 • ..

• • • • • •

1440 STJPREME COUB.T RE;PORTS • • [1959]

business by :Messrs. Army a,.11d '.Ila vy St-0~e:o still remains unfilled. The applications of the appellants and other Ghaio applicants were for a grant of L-2 license for 1954/ /!fall 6-So11s

v. 1955. That year has gone ptist and accordingly in the 1'he Sltde of changed eircumstances wo direct. the Chief Commis-Delhi ~ Others sioner ~o fill ap the vacancy ctrnsed by the closure of

the business by ?.fossrs. Army and Xavy Stores by D,.sC.j. inviting applications from intending licensees including

the appellitnts and Messrs. Gainda Mall Hem ltaj and granting the oame to the most suitable party .• We, therefore, accept this appP1~l, reverse the order of the High Court and issue a mandamus to the effect afore-said and also direct the respondents Xos. l to 4 lo pay the appellant.s' costs of this appeal and of the proceed. ings int.he High Court out of which this appeal ha~ arisen. Messrs. Gainda '.\Iall Hem Raj arc to hear their own costs throughout.

Appeal allowed . • • •

SHRI RADESH1A'.ll 'KHARE & ANOTHER••

v.

Seplembt:r 30. •

THE STATE OF !llADHYA PHADESH & OTHEHS

• (S. H. DAS c. J., BHAGWATI, s. K. DAS, ,J. L. KAPUR

and 81.'BBA RAo ,JJ.) Municipality -- Appoi11tmmt of Excwtivc OJJiccr •by State Go·,:crnmcnt--lf an adtninistrafi;,·c act-C. J>. and Berar i'funicipali-ties Act, 1922 (Act I I of 1922). ss. 53A and 57. , • The n1ain point for clt~ci:;ion in this appeal by the lttunicipal Comn1ittcc of Dhamtari and its Prcsi<lcnt \\·as, \\·hcther in appoint-ing an Executive Officer in exercise of its po,,·ers under s. 53A of the C. P. and Bei;ar }!unicipalities Ac$, 1922, the State Go\'crn- • 1nr.nt acted iii a judicial capacity or in an administra~ve one . • Complai.tng been made against the appellants, the a<ldi-

tiona~ ollcctor \Vas directed to hold an enquiry and on his •r~pOrt the State Go,·crnn1i;nt, by a notilicatiou un<lcr that secti~n. apppin(cd all' Executive Officer of the Municipal Com-mittee for !8 Tnonth;> ,,·ith specified po\l,·crs and duJies. The ·~ppellants were gi\'en .. notice of the said enqlliry, filed objections .. • ..

• • • •