BISfl:NU RAM BORAH & ANR. v. PARAG SAIKIA & ORS. •

BISfl:NU RAM BORAH & ANR. A v. •

PARAG SAIKIA & ORS. •

November 16, 1983 B JA.P. SEN, i\. VARADARAJAN $l. v. BALAKRiSHNA ERADl, JJ.] Colistittition OJ I~dia-Art .. 226-Pow<:r of High Co1111-_Scope of. . . . ' . ' Co'nstiiution .of Jndia-Arts. 226.and 227~Judg~1e111s_ and Orders of 'High c Courts binding a~d must be.obeyed by all inferior .Courts arid· tribunals subjet·t to their supervisory_jurisdic~ion. ·

A·ss~n1 Excise Rti!es, i945-Rule 223-Phras~ 'edl1c~'ted."unemployed_ y0uth~ I a'ppearing ;11 nnt~ be/Ow r11l~ 223-1\feaning of.: ... D Practh e a_uJ Proce.dI;re__.:.·Tii·O scparat~ petitions ftle;I il:i the san1e case- I . High Court dealt-with 01ie. arrd kepJ. the. other per.ding-::-Procedure adopted _not proper alld against iule offair/ilay. ·1vhile critfri~ii1g lo-wer au.ilrorities u-Se of har~h language 11111st be· ilvoided. • "· H-\Jrd.~ an.d phr(Ises-EduCated 11nen1pl_oyed )'(lllfh. . .

The 'Hoard of Revenue on.a consideration of the material on record as to the suila.bility ·or otherWisC of the rival pairs of claimants upheld the grant'· of a liquor licence ma"de·by the ·Deputy. Cominissio.ner in favour of th.e app6l~ 13.nts. It h'eld·thcit reSpondent No. 1 \Vas a n1ere benamidar of a promine_nt businessman and respondent NO. 2 heiog Still a student studying for his B.Sc. · ~egree could not be treated as an. 'e~IJcated uilen)ployed youth' .Within the F ·meani~g of the note beneath r. 223 of the Assam Exche Rules, .1945. The respondeni -Nos. 1 and 2 ·and. ihe. infervenors separately moved thC"J:i:igh COurt under ·Aft. 226 of the Constittitiori. lhe Higi1 Court instead of taking up both -.the petitions together: ,took the writ·petition filed by .respondents Nos.) and 2 and on a reappraisal of the evidence came tO the concluSion coritrary to that rea- ched by the Board. It. accordingly quashed the or.der ·o(the Board ·of ·Revenue G and remanded the n1attef to the Board for a decis.ion afresh, in the light of the directions made by lt. .The Board tOok serious exception .to certain observations made by the Hig'h Court. and held. that th:.~ directions issued Were nOlliing but .m~r~ observati~ri!> and therefore it was· l!Ot ·bound by. it. After hearing thci

r ·pal-Lie$, the Board rllaintai~ed its earlier order-.con.finning the settlement "Of the liquor shop by_ the Dep,uty Com~1issioncr with the appellants. R.fspondents · H Nos. 1 and 2 again 1:DOVCd. the High C,ourt under- Art. ·226. The High Court passed strictures on the Board of Revenue fo_r not having complied with · its di~eCtions and on a consip'eration Of "thC facts appearing came to the same

. SUPREME COURT REPORTS .[198.:ii i s.c.R. conclusion as-before and q~ashed the order of the Board bu~ iristciad ~f remand- A ing the matter to the Board for complying·with itS earlier orders issued a writ of mandamus direciing him to settle the country iiquor shop with r~sp_ondents • ·Nos. 1 and 2 on condition that the grant would be subjcCt to an inquiry as to whether respondent No. _l waS a mere benamidar and also subject to the result of e~rlier writ Pet_ition~filed by .the inte_rvenors which ~as still pending ..

B . · .In appeal, the two quesiions which ~rose were.: (l) 'W!~ether it was impenpissible for the High Court to have embarked upon an.inquiry into facts and on a reappraisal of the eviden~e-come to a finding contrary to.' that reaChed by.the Board of Revenue and upgn that"basis issue a writ of certiorari under Art. 226 qaushing the ·order of Board. And (2) Whether it was a proper exercise of jurisdiction by·tl;e High Court under. Art. 226 to. have issued a writ .of. mandamus ordaining the Deputy Commissioner to settle th_e couritry liquor sh0p c with respondents Nos. 1 and 2. · ·

AnsWering the first. ques!Jon in the- affirmative and the second. in the negative.

HELD ·: 1. The JHgh Court clearly e~ceeded it? .jurisdiction while D issuing a writ of ccrl_iorari under Art. 226 of the Constitution ·in quashing the impugned order of the Board of Revellue to have_ Cmbarked uopn an inquiry· in.to the facts and Upon a reappraisal of the e·.iidence come to· the conclusion ·. contrafy .to that reached by thC Board of Rev~nue viz. whet!Jer or not. respon-· dCnt No. l ~as a mere bena111idar. (837 -F-G) • .. E 2 .. It was aisO not a proper exercise of )urisdiction unde'r Ari. 226 for - the High Court. to have ·issued. a ·writ of niandamus directing the Deputy Commissioner to grant. the· liquor licence to respondents Nos. 1 .and 2 in pre- ·ference to the appellants. Although a .Writ of manda1nus may be a necessary adjurict to a ·writ of certiorari, if the High Court was satisfied that a writ of . certiorari· had to be issued to· qu~sh the impug_ned order of t'he Boai'd of Revenue oil the groµ.nd that Its order was Vitiated by an efror apparerit on the F face of the record, the proper course for the High Court' to adOpt was to issue a writ of mand3.~us to the Board tO hea_r and redetermine the apPeal according. to law._ [835 E•FJ

HWR Wade's Administrative Law, 5th edn.;p. 638, referred to.

3Copy pinpoint3. The ·construction placed by the High Court ·on the meaning of the expression 'educated unemployed youth' appearir'J.g·in the note beneath r. 223 of the Rules is apparently erroneous. ·when a person is still pursuing his course of studies in a univerSity,,one _falls to see a.ny Oasis· for creating him _as ~n •educated unemployed youth. The expression 'eduacted unemployed youth, 1p

H the note beneath r. 223 has ·a definite legal connotation. It denotes a ·class of. citizens, who after. con:ipleUng their edu~ation, are faced with the growing problem Of unemployment. ·[837 B·DJ l

. D.R. BORAH V. P. SAIKIA 827

4Copy pinpoint4. The ~irection. made by the High Couit while is~uing·. a . writ' of rnan'."amus to the Deputy Commissioner· orda"ining him to grant the liquor A Ucence to respOndents Nos. 1 and 2 that the grant would· be subject to the result of an inquiry aS to whether respOndent No. 1 \Y3S a mere benamidar and also subject to the result of the writ petition which was-filed by the iniervenors and still-pending, appears to be unwarranted, If that were to he so, it would . , . affect the validity of the grant itself. It was.also irregular - rOr the High Court. to have .taken- an undertaking from respondent No. 2 who '~as a student still · undergoing his studies for B.Sc. degree in a university that he .would give up his B. studies in case he was given t"hc liquor licence. ·

5Copy pinpoint5. The pi-ocedure adOpted by the High Court in Separately hearing the . writ petition filed by respondents Nos. 1 and i, while the writ peti~iOn fited by the jntervenors was still pending; and in· not ta~iog up bQth the writ petitions together, and directing the Deputy Commissioaer to issue a liquor licence to , C -respondents Nos. 1 and 2~ was not in consonance with the procedure established by law and clearly in dellia.t ·of.rules o~fairplay and justice.

6Copy pinpoint6. The Board of ·Revenue was bound to comply with. the directions made by the High Court and it was not open. to it to say that they were mere observations. and not directions issued. The· refusal of the rBoard. tO comply D with 'thC directions of the JJigh Court issued under Art. 226 was in effect· a denial of justice and also des.tructive of one of the basic principles in the administraiion of justice based as it is i.n this country on a hierarchy o.f Courts.

Bhopal Sugar. Industries Limited v. Income-tax Officer; Bhopal. [1961] 1 S C.R. 474 relied on, • E CIVIL APPELLATE JURISDICTION Civii Appeal No. 5742 of' 19.83

Appeal by Special leave from thejudgment and order dated the 7th May, 1983 of the Assam High Court in Civil Rule No. 1292 ·of 1982. • • F ' . K.K. Venugopal, Ms.. Laxmi Venugopal, A.K. B0rdelay, C.S. Valdyanathan and Praveen Choudhary for the Appellants.

S.S. Ray, .A.S. Pandir, Vijay Hansaria, Suni/ Kumar Jain Mukesh Advani and Ms. Mridula Ray for Respondent Nos. t & 2. • .G

.S;K. Nandy for the Respondents. 3 & 5.

N.R. Choudhary for the Intervener'. H . The Judgment ofthe Court was deliver«i by .

828 SUPREME COURT REPORTS (1984) i S.C.A;

. '· · SEN~ J. This appeal by special leave is directed against the judg~ A ment and order of the Assam High Couri dated November 4, 1982 concerns the. propriety <!f the grant of a liquor licence. By the· judg· meni the High Court ,quashed an . order· of the Bnard ·of Revenue dated .February II, 1982 affirming the grant of licence in respect of Jorhat Country Spirit Shop No. I made by the Deputy Commissioner, B. Sibsagar, Jorhat, by his order dated August 28, 1981, and instead of . remitting the matter to -the Board of Reneue for a decision afresh, : the High Court had directed the Deputy Commissioner to settle the . liquor shop with respondents Nos, l and 2 for the remaining period · of the grant upto March 31, )984.

The sho_rt ql!estion that arises in tlie appeal is ~hether it was proper exereise ofjurisdiction by the High Court under Art. 226 of· .the Constitution to ha~·e issued a wrlt of manda~us ordaining the . Deputy Commissioner to grant the licence, Further, a question arises whether it was impermissible . for . the High Court to have embarked ,upon,,an inquiry into the.facts and on a neappraisal of the - J> evidence come to a finding contrary·to that reached by .the Board of Revenue bas.ed. on appreciation of evidence that 01ic set· of 1'.ival cli!ima.nt~ i.e. Parag S.aikia and Prafulla '·Barua, respondents Nos: I and. 2 were c·ntltJed to grant of suc.h priviJeg~ in .·preft:rence tot the appellants under (he .note beneath r._ 223(2) of the Ass1im Excise E . Rules, i945 (for sho1t"'Rules').

The fac,ts. -,of: this' case presenta rather distU) bing feature. Jorhat Country Spirit Shop No .. l is a big exci;e shop within ..the meaning of r. 232 of the Rules. Under cl. (a) thereof, the settlement of such a c·ountry liquor shop ha$ to be made wtih a p'air oftenderers .F constituting two or ·more partners. Five j~int tenders ·were received in ·response tci the ·notification issued by the Deputy Commissioner, Sibsagar, Jorhat·calling for tenders of the coun,try _liquor shop for the financial ·year .1983·84. The Deputy· Commissioner, Sibsagar, Jorhat in consultation with the Advisory Co~mittee constituted for G that purp.ose as required under r'. :fog by his orcjer dated August 28, 1981 settled the shop with the two appellants Bishnu Ram Borah and Bipin Chandn\Borah. 'one set of the unsuccessfu"I tende.rers were respondents Nos.1 and 2 Parag Saikia and Prafu"lla Barua,. Of them, - Parag Saikia respondent No. I herein .was held by the Deputy H Commissioner to be a mere 6enamidar of a promine.nt busittessman of Dibrugarh while respondent No. 2 Prafulla Barua was a student studying f~r his B.Sc. degree and staying in a hostel at. Golaghat, which is a place. some ,30 !"liles away from Jorhat. The Board of

ll.R .. llO RAH Y. P. !MK!A (Sen, J.) 829

Revenue, Assam by its o~der dated 'February I J, 19.82 upheld the · settlement 'ofthe country· liquor shop with the appellants. Being A aggrieved by the decision of the Board, two sets·of unsuccessful ten- deners viz; respondents Nos. I and 2 and the intervenors. Daya Ram Borah and Prabin Kuniar Borah filed petiiions 1!0der Art. 226 of the Constitution before the Assam· High Court being Civil Rule Nos. 215. of 1982 and ll6.3 pf_!982. T)le High Court instead of taking up ··both the writ petitions together, heard and .decided the·· writ ·petition B filed by respondents .Nos. I' and· 2 and by its judginent dated November 4, 1982 quashed the order of the Board of Revenue and remitted the appeal to the Board for a decision afresh in the light• of . the observations made by it. The Board however by its order dated ·December 3, 1982 inaintain~d the settlement of the country· liquor c ·shop with _the appellants. ·Thereupon, ·. responde•rits · Nos, I and 2 . again inoved the High Court und~r Art. 226 for appropriate writ, · direction or order in· the' matter of g'rant of the: liquor. licenee. The High Court by its judgment dated May 7, 1983 ·quashed the order of the Board of Revenue and instea.d of remitting the matter to the. Board for a decision afresh, issued a writ of mandamus by which it directed the Deputy Commissioner to settle the liquor shop with respondents. Nos .. I. and 2 for the remaining 11eriod of the grant upto ·.March 31, 1984. While making the direction the High .Court observed' that 'j~. case it was found that respondents Nos.· I and 2 were benamidars of anybody, it would.be open to th.e settling authority · i.e. the Deputy Commissioner to cancel the liquor licence'. Further, E ) it observed that 'the. grant· would be subject to' the· result of the . decision in the writ petition filled by the intervenors i.e. Civil Rule Ne. 1163 of 1982'. • Before nroceeding further,it is necessary to refer to ·certain .. F provisions of the Assam Excise Act, 1910 (for shoit 'Act') and 'the Assam Excis~ 'Rules, 1945 (for short 'Rules') as amended from ·time to time. Section .iS(J) of the Act provides: ·

, "18 (1 ). Prohibition of sale without licence, and the . , exceptions to such prohibitions-No· intoxicant shall be ·· G sold except under the authority and it! accordance with the terms and. conditions of . a Hcence granted by the -A.uthority pr~scribed in .the rules framed ·under this Act." .

. Rule 208 provides ~ . - as follows . : H "Advisory Committee-The Collectors should make . settlements in consultation with an.advisory c<imiiiittee," '

830. SUPREME COURT REPORTS . (1984) 1 s.c.R.

RuJe. 223(2) provides : A "In making settlement to ~oy person preference\ shall always b.e given to the educated unemplpyed youths or to co-operatives:and co·opt firms formed by such educated unemployed· youth. Preference shall also be given to the. persons llillonging to the.mare backward classes."· ·

· Note :. The term 'educated unemployed youth' as· mentioned fa sub-rule (2) of Rule 223 means a person not • .exceeding 35 years of age·who has passed the H.S.L.C. or its equivalent examination and is without any employ- C ment."

· A few facts have to be stated. · Before the Board of Revenue· passed its earlier order dated February 11, 1982 upholding the ·grant ' of licence by ihc Deputy Commissioner by his order dated August 28, 1981, the Jfoard had called a report from the Deputy Commis- · D sioner, Sibsagar, Jorhat and Iiad also before it a parawise comment of the Deputy Commissioner. On an evaluation of the comparative ·merits and demerits a)i.d after eliminating the other sets of competi- . tors' the Board upheld the grant of licence made by the Deputy Com- missioner in favour of the appellant>. On a careful•consideration of the material on record and in the light of the confidential report made by the Deputy Commissioner, the Board held that respondent Nos. I and 2 were not suitable for the grant of licence for the c.olintry liquor shop .. As regards respondent No. I Parag Saikia, the . Board relying upon the report of'the Deputy Commissioner held that .be was a mere. a 'l/Jenamidat of prominent businessnian of Dibrugath.who was trying to corner big liquor shops at Jorhat' and that it was evident from.the · report that he mostly resides at Gauhati enjoying the pay and per- quisites provided by this businessman and that he was apparently not ' an unemployed person as he was resorting to highly expensive litigation for getting· a liquor shop licence. Further, the Board observed that he had the means noi only to prefer appeals before the G State Government and the Board of Revenue but that he had also .repeatedly moved the High Court for the grant of appropriate ·writ, direction or order in the matter ·of settlement of a country liquor shop which showed tha't he had some strong . financier behind ·J:iim. H As regards.respondent.No.2 Prafiiila Barua who was still a.student studying for his B.Sc. degree and staying· in a hostel at Golaghat, .the ·Board held that he could not be. treated as an 'educated unemployed youth' w,jthin the meaning of the note beneath r.223 of the Rules.

• . n.R. BORAH v. P, SAIK!A (Sen,'J.) 831

In reaching the conclusion thµt it did, the Board of Revenue observ~d: A "In an excise settlement apart from the finance, there is also the question of general suitabilily of the tenders for a particular shop. ·It came out during. the hearing that this is one of.the Sibsagar District. As such subs, B tantial revenue of the State is involved in this shop and the suitability of the lessee has therefore to be ·examined very closely. Under Rule 232 of the .Excise Rules, ;,o distinction can be drawn between the legal liabiliiies of "the two partners who will be jointly and severally respon- . sible for the management of the shop. It is implicit in c this Rule that the partners have to lle more or less equal partners. It is also implicit that the settling authority should be satisfied about their respective role, responsi- bilities, investments and involvements. On a total con- sideration -0f the tender, the memo of appeal and the various affidavits and other documents filed on behalf of D. the app,ellant Parag Saikia, it appears doubtless that he is lbe· dominant partner and his associate appears more as a.show-boy than even as a sleeping partner."

The'Board then went on tq say :

"Reverting to the partnership of the appellantsit is ob~erved that their respective financial investment and phy~ical involment as well as the sharing of the profit or Joss is not known. Indeed for the two persons living in two different Sub-divisional Head-quarter tbwns and having a substantial difference in age and present status, ·it is difficult to be definite that they have the needed · concord arid compatibility or unity and understanding for operating a major shop like this.. Again, in a.doublc- lessee shop what is neede.d is not just a second helping band to a lessee but ii requires persons of a mini.mum. · calibre from the point of intelligence, experience and l:>usinessman. Parag Saikia by .his own admission found tl)at the firni set np by him or joined by him had failed · or were non-starters. These consi.derations might have · weighed with the Advisory Committee and the DistriCt Collector in not setting with Parag Sai!iia eyen any of the smaller shops for which he isknowri.to have tendere~

.. SUPREMll COURT REPORTS (1984) 1 S.C.R, t .

and Prafulla Barua being ·stiH an undergraduate student might have.been considered unsuitable on that ground as . well amohg .others.'.'

The Board of Revenue acc.ordingly held that respondent No. I a Patag ~a:ikia was mere benamidar and therefore ineligible for. the grant oflfoence while respondent No. 2 PrafuHa Barna being still a student studying for his B.Sc. degree "'.as not suitable for grant of .· such privilege, and at any rate, he could not be encouraged when educated unemployed youths ind other suitable tenderers were . available. :It found considerable force in the submission that the B_oard should adopt .it as a policy to· discourage students from enter· c . ing into liquor business; ' · •·

· Regrettably, the High Court while allowing the· writ petitfon . preferred by respondent Nos. 1 and 2 passed certain strictures whieh, in our opinion, should have been.-avoided. ·It found fault with the D · Board ofhaving acied on the report of the Deputy. Commissioner observing that 'the Boarci. could ·not · act on the ipse dixit of the . Deputy Commissioner'. Further, the High Court held that there . a . was no basis for the Board to adopt policy to discourage students from entering into liquor business when_ there was no such 'legal bar. Still further, it observed thai merely because respondent No. 2 . E Prafulla Barua was a student of B.Sc. class and· was staying at a hostel at Golaghat which was about 30 miles away, it would not be. difficult for hiin to carry on a p'artnership· business _at Jorhat where his, cousin. lives and further that he. ans.wers. the deseription .of 'educated· unemployed· youth' envisaged in. the note beneath r.223 of the Rules. It.recorded. that respondent No. 2 Prafulla Barua had F giv~n an undertaking that he would. give \1p his studies if the settle~ ment of the liquor shop was made .in his favour. ·There was no- ' w_arrant for any of these .observations made by the High Court· and the High Court was not entitled to _enter into a question of fact as to whether or not respondent No. 1 Parag Saikia was a mere benamii1ar. G It is somewhat strange· that tlie High Court should have takell' an undertaking from respondent No. 2 Prafulla Barua that he would · give up his studies if the set(lemen! was made in his favour· and observed that there was notliing in law to discourage students still 11ndergoing their studies from entering into ihe liquor business and H that. he falls with int he category of 'educated· unemployed youth' within the note beneath r.223 ·or the Rules.

. D.R. BORAH V; P. SAIKIA (Sen, i.). 833

On remand, the Jloard of Revenue by its order dated o-.x:ember 2, H82 re8cted sharply to the observations and went on to sa9 that A· the observations were• uncalled for. That apart, the Board :observed that ·since the observations were on questions of fact, they could not be t.aken as binding on the Board. It faffirmed its earlier order upholding the grant of'the licence to the· appellants by the Deputy- Commissioner. As regards respondents Nos. I and 2, the Board relying on the report of. the Deputy Commissioner held them to be B unsuitable for the grant of licence. It held that respondent No. 1_ Parag· Saikia was a .mere . benamidar of a maha/dar of Dibruga.rh district who .had cast his.net far and wide in the Jorhat sub-division· and that respondent No. .2 Prafulla Barua who was .still undergoing . his. studies. for the B.Sc. degree could not be regarded as falling· c within the category of educated unemployed youth appearing in the note beneath r.223 Of the Rules. Thereupon, respondents Nos. I and· 2 again moved the High Court under Art.226 of the Constitution for appropriaie writ, direction or order in the matte.r·of grant of. the liquor licence. · · · · · D As was expected, the. High Court stro.ngly deprecaied the . action of the Board of Revenue defying .·the directions made by the High Court in ex'ercise of its jurisdiction under Art. 226 of the Con- stitution and held that the Board had no oiher alternative· but to decide the. matter afresh in the ·light or' the directions given by the E High Court and expressed its regret that it bad not done si:r at all . observing :

"Such an effort <if subordinate tribunal is fraught with grave danger to the administration of justice known F to the people of this country· and bad to lie· duly taken ' note of with great concern by all." . '

The High Court then went 011 to observe. that the Board had .thrown all judicial decorum and discipline to the winds by disregar- ding its jud!lJllent. It further observed : . G

; "A pe.rusal of the impugned judgment shows. that though the petitioners are entitled to preference under r.223(2) of the Assam Excise Rules, 1945, hereinafter the • H Rules.. whereas the respondents I and 2 :are not, they. have not been found suitable for settlement for these reasons; (i) Parag, one ofthe ~etitioners, is a benamidar;

834 SUPREME COURT REPORTS (1984) i s,c.R.. (ii) the partnership in question is sham; and (iii) the A ·petitioners are not financially sound to run the shop."

After adverting to the ~eil:settled principles relating t~ the power of the High Courts urder Art.226 of the Constitution- to issue a writ of certiorari and observing that it was conscious of its own B limitations· in the matter, the High Court nonetheless observed that 'it could definitely set aside the order of an inferior trib.unal like the ·Board of Revenue founded even on sonie factual conclusions if they were based on irrelevant or exfraneous materials or be such which ·no.reasonable.person could" have reac.hed·or ifthey were grounded . on a total misconception of law'. It held that a finding reached by c the Board by disregarding the directions given to it by the High Court was in excess of jurisdiction. ·

. It i~ regrettable that the Board of Revenue failed to realize that like .any other subordinate tribunal, it was subject to the writ . jurisdiction oftbe High Court under Art.226 of the Constitution. D Just as the judgments and· orders of the Supreme Court have to be faithfully obeyed and carried out throughout the territory of India under Art.142 of the· Constitution, so should be the judgments and orders of the High Court by all inferior courts an.d tribunals subject to their supervisory ju.risdiction within the State under Art.226 and E 227 of the Constitution. We cannot but deprecate ·the action of the Board .of Revenue in refusing to carry out the directions of the High Court. In Bhopal Sugar Industries Limited v. Income-tax Officer Bhopal,(') the Income'tax Officer had virtually refused to carry out th~lear and unambiguous directions which a superior tribunal like the Income-tax Appellate Tribunal had given to him by its final order . in exercise of its appellate powers in respect of ,an order of assess- .F ment made by him. The Court ·held that such .refusal was in effect a !iehial of justice. and is furthermore destructive of one of the basic J

principles in the administration of justice based .as ·it is in this country on the hierarchy of courts .. The facts of the present case are more G ot less similar and we would have allowed the matter to rest at that but unfortunately the judgment of the High Court directing. the issue of a writ of mandamus for the grant of a liquor licence to respon- dents Nos. I and 2 cannot .be sustained.

The High Court de~lt with the finding of the Board as to · H whether or not the allege_d partnership between respondents Nos.I

, (1) (1961)11 S.C.R 474. •

il.R. BORAH v. P. SAIK!fA (Sen, i.) 83.S

and 2 was genuin~: ·As.regards tlie suitability in their ages which, . according to the Board, would stand in the way of needed· concord and compatibility, it felt that it was for respondent No.2 Prafulla Barua to decide whether respondent No- I Pa rag Saikia was a suitable person ·with whom lie should enter into a partnership. Secondly, the High Court obseryed that it would not be difficult for respondent No. 2 Prafulla Barna although he was a student stiidying for his B.Sc. B degree and staying in a hostel at Go laghat which was so me 30 miles . . ·away. from Jorhat to carry on the liquo_r business in partnership.- Thirdly, the High Court went into the. question whether they h~d the ·requisite financial capacity to fulfil the requirements of r.346. From all this, it is quite evident ·that the High Court was oblivious of the limitations of its own 'powers under Art.226 of the Constitution in the matter of grant of a writ of certiorari.

It was impermissible for the High Court to have. embarked upon au inquiry into •he facts to adjudge the suitability or otherwise of the rival pairs of claimants and upon a reappraisai'of the evidence come to a ftuding contrary to that reached by the Board of Revenue. D There was-nothing orr record to show that the .Board had acted in excess of jurisdiction or there was an error apparent on'the face of the record which resuitefl in manifest injustice: That apart, it W(i.S not a proper exercise of jurisdiction under Art.226 of ihe Constitu~ - tion for \he High Court to have issued a writ of mandamus ordaining the Deputy Commissioner to graiit. the liquor lice~ce to respondents. Nos. 1 and2 in preference to· the app,Ilants. Although a writ of mandamus may be a necessary adjunct to a writ of certiorari, in the High Court was satisfied t~at a writ of certiorari had to be issued to quash the impugned order of .the Board of Re\'enue on the ground that its order was vitiated by a;, error apparent on the face of the record, _the proper_ course for the High Court to adopt was to . have issued a writ of mandamus to hear~ and redetermine the appeal according to law: H.W.R.Wade's ·Administrntive Law,. 5th edn.,. p.638.· G • _ -The High Court was also in error in holding that the earlier order passed by_ the High Co,urt remanding the case to the Board of . Revenue contamed a direction · r~q~iring. the Board not to act upon the ~eport of th_e Deputy Comm1ss1oner. The fact that the Board · . had 1D the past 1Il some other case viz. for the grant,,of liquor r H .fo~ Melan Co_untry ·Spirh Shop not ._acted upon ·the report~;:~ D.puty Comm1sswner against respondent No I Parag Sa'k' - · · . . . . . • 1 1a was.not

.836 StlPREi.ifi cOURT REPORTS (i9S4j i s.c.R. .. aground sufficient for ignbring the .adverse .report of the Deputy A· · . Commissioner against him in the present case. . It would be apposite to ctuote the report which reads as follows.: .

. ''Jorhat town country spirit shop No.I (\\lith which shop we are concerned) is. meant for joint' lessee. Just B ·after the subn:iissfon o(the tender on 21.8.81.secret i~for­ mation was received to the effect. that Shri . Parag Saikia (one of the petititioners in the case) is in' the private employment of a prominent businessman of .Dibrugarh district· who is also .said to be benamidar of important C.S. shops and Shd Saikia res id.es in· Gauhati. for the c greater part of the year enjoying all the perquisites of the · empfoyer, · The secret information further ·indicates ihat . the said benamidar of Dibrugarh district was · trying to ......., grab important shaps of Jorhat Sub-Division through Farag Saikia. . The matter wa:s discussed in the Advisory D Board which rejected tlie t,ender of the joint appellant.'.'

··Further, the. High Court had obse.rved that the Board could · · not have reiied upo11 the report of the 'Deputy Commissioner unless respondents Nos.I and 2 were tonfronted with the.same and reapon- dent No.·! was allowe·d to have his say, in the matter. The ·rerson, ing of the High Court can . hardly be supported. In the first place, the ·Deputy· Commissioner is the head of the administration of the · . district ~nd ·is ·conversant with the local situation ·and.has secrei sources of iii.formation. Normally the. Board is entitled to rely upon the word· of the .D~puty Commissioner. It is expected that the.· F Deputy Commissioner would always act with a sense of responsibility. Secondly, the report of the Deputy Commissioner wa:s confidential · in nature. There .was no question of the Board disclosing the con- tents Of the report to respondents· Nos. I and 2. Further, respondents • Nos. I .and ·2· never made a demand for a copy of the. report, and even if such a request was made, the Board would have been fully justified in not furnishfog the. same. · Such a refusal w.ould .not amount to· denial of natural justice for the obvious~ reason· that the rules of of natural justice must necessarily vary v.:ith the nature the right and. the attendant cirsuinsta11ces; . The grant of a liquor licence was nofa

. matter of right but merely in the nature of privilege, · Fu'rthermore, the Board was entitled . to call for .a report of the Deputy Commis· sioner in an appeal of this nature.

• .Ji.it. BORAH v. P. SA!KiA (Sen, l.) 837

We cannot also subscribe to· the view· expreesed.b) the High· · Court that.respondent No.2 l'rafulla Barua who is a ~tudent of B.Sc., A , class still undergoing his 'studies falls within the description of, ., 'educated unemployed_youth' appearing in the note beneath r.223 of the Rules. In our judgment, the expression 'educ.ated employed youth' . has defi~lte legal. connotation. It .denotes a class of citizens who after' complet.ing thei( ·education are faced with. unemployment . R.223(2) read . with the note e.mbodies a rule of preference. The question of grant of preference under the note beneath r.223(2) can only aris.e. when other· conditions as regards sullability of the rival · tenderers is equal. Besides, ·(he construction placed by the High .. Court on the_ expression 'edµca't.ed unemployed youth' is manifestly erroneous. By no . stretch of imagination ·can a 'student still under- c ·going his stuciiesin the university be regarded as having completed his education or. being 'unemployed'. youth. When ·a person is still pursuing. his course of studies in a: university, we fail to see any basis for treating him .as an 'educated unemployed youth'. The judgn1ent of the. High Court directing 1he issue -Of a licence to respondents Nos.I and 2 being based on the rule of.preference contained in the D note be.neath r.223 of the Rules cannot<therefore be supported.

The judgment of the High Court also suffers. 'from a serious infirmity,.· As alread9 stated,. instead of remitting the· matter to the Board.of Revenue, the High Court issued a mandamus. directing the. E Deputy Commissioner to. make a grant of the. licence to r~spondents Nos.I and 2: While doing so, the High Court made a direction that the grant of licence would be subject to the result of the inquiry as to · whether. respondent No,. I Parag Saiki a. wa~ a benamidar and therefore not entitled to Such grant •. Moreover; the High Court made the ·grant subject to the result .of the'· writ petition.filed by the intervenors F Daya Ram Borah and Prabin Kumar Borah which was still pending · before it against the earlier order of the Board dated February 11, 1982: We fail to appreciate the making of a grant in favour of respondents No.s. l and 2 subject to . the· result of the inquiry iis to whe~her respondent' No.! Parag'Saikia was a mere benamidar. If that G were to be so, it would affect the validity' of the ·grant itself.· ,Further, . the procedure adopted by the High Court in separately dealing. with a the writ petition filed by respondents Nos.I and 2 making grant of the licen,ce to thein for the country· spirit shop in question while the earlier writ petition filed by the intervenors was still pending ,,.;as not' H in consonance with law and rules of fair(Jlay and justice. · •

838 SUPREME COURT REPORtS (1984] 1 s.d.R.

Before parting with the case ·~e must expreJs o.ur deep sense of A ·.anguish that there should have been this unseemly tussle between the High Court and the Board of Revenue, particularly the lack of · . restraint in the language used by Jh.e Board in its order dated. December 3, 1982. We also feel that the High Court was not right in criticizing the Board o.f Revenue in such stro.O:g language.. The use B of harsh language does not redound .to the credit of anyone-. There must be restraint at all levels as otherwise there cari be no rule of law and our. entire sys.tern of administration o.f justice will fail.

For these reasons, we set aside ·the judgment and orde~ of the · High Court, as a consequence· whereof the order of the Board of C. Revenue datedpeceniber 3, .1982 will stand r.estored. · We hope and trust thanhe High Cpurt will be able to dispose of the writ petition as expeditiously as possibie. The writ petition fiied by the intervenors · · shall also be heard and· disposed of by the High Court along with this writ petition. according to law .. D There shall pe no . order as. to costs. . ' . I -' H.S.K. Appeal remanded.