civil appellate jurisdiction civil appeals
number. 668 669 670 and 672 of 1957.
appeal by special leave from the judgment and order dated
august 6 1957 of the assam high companyrt in civil rule number 65
of 1957.

v. viswanatha sastri and dipak datta choudhury for the
appellants in c. as. number. 668 and 669 of 1957 and
respondent number 2 in c.a. number 670 of 1957.

m. lahiri advocate-general for the state of assam and
naunit lai for the appellants in c.a. number 670 of 1957 and
respondent number 2 in c.a. number 669 of 1957. 1958. february 7. the following judgment of the companyrt was
delivered by
1342
sinha j.-these appeals by special leave are directed against
the judgments and orders of the assam high companyrt exercising
its powers under arts. 226 and 227 of the companystitution in
respect of orders passed by the revenue authorities under
the provisions of the eastern bengal and assam excise act
1910  e. b. and assam act i of 1910   hereinafter referred
to as the act . they raise certain companymon questions of
constitutional law and have therefore been heard
together and will be disposed of by this judgment. though
there are certain companymon features in the pattern of the
proceedings relating to the settlement of certain companyntry
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 state them. civil appeal number 668 of 1957.
the two appellants nagendra nath bora and ridananda dutt are
partners the partnership having been formed in view of the
government numberification dated numberember 30 1956 amending
rule 232 of the assam excise rules to the effect that the
settlement of the companyntry spirit shops which may be declared
by the government to be big shops shall be made with two
or more partners who shall number belong to the same family number
should be related to one anumberher  vide companyrection slip at p.
106 of the assam excise manual 1946 . in accordance with
the rules framed under the act tenders were invited by the
deputy companymissioner of sibsagar for the settlement of
jorhat companyntry spirit shop for the financial year 1957-58
in december 1956. the appellants as members of the
partnership aforesaid submitted a tender in the prescribed
form. respondents 3 and 4 dharmeshwar kalita and someswar
neog respectively also were amongst the tenderors. the
commissioner of hills division and appeals assam and the
commissioner of excise assam are the first and the second
respondents in this case it is necessary to state at this
stage that in respect of the financial year 1956-57 the
shop in
1243
question was ordered by the first respondent as the excise
appellate authority to be settled with the first appellant
nagendra nath as an individual setting aside the orders of
the deputy companymissioner and the excise companymissioner. the
other companypetitors for the settlement of the said shop being
dissatisfied with the orders of the first respondent moved
the assam high companyrt and challenged the validity of the
settlement made in the first appellants favour. similar
writ cases challenging orders of settlement by the first
respondent as the excise appellate authority had been
instituted in the high companyrt. all those cases were heard
together and the high companyrt by its judgment dated may 22
1956 quashed the orders passed by the first respondent
chiefly on the ground that the appellate authority had been
illegally companystituted. the matter was brought by way of
special leave to this companyrt and was heard by the
constitution bench which by its judgment dated january 31
1957 decided that the companystitution of the companymissioner of
hills division and appeals as the ultimate appellate
authority under the act was number unconstitutional. the
judgment of this companyrt 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 to make several references to that
decision which for the sake of brevity we shall call the
ruling of this companyrt. the result of the ruling of this
court was that the determination by the assam high companyrt
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 companyrt the direction of the excise
commissioner that the shop in question be resettled was
carried out and the settlement was made with the third
respondent aforesaid as an individual. he companytinued in
possession of the shop until february 26 1957 on which
date the first appellant was put in possession as a result
of the ruling
 1  1957 s.c.r. 295. 1244
of this companyrt. even so the first appellant companyld exercise
his rights as a lessee of the shop only for a few months
during the financial year ending march 31
1957.
for the financial year 1957-58 the deputy companymissioner in
consultation with the local advisory companymittee settled the
shop in question with the third and the fourth respondents
aforesaid. the tender submitted by the appellants was number
considered by the licensing authority on the erroneous
ground that the orders passed by the first respondent as the
ultimate revenue authority in the matter of settlement of
excise shops had been rendered null and void as a result of
the decision of the high companyrt referred to above. the
appellants as also others who were companypetitors for the
settlement aforesaid preferred appeals to the excise
commissioner who set aside the settlement made in favour of
the respondents 3 and 4 and ordered settlement of the shop
with the appellants. the excise companymissioner took into
consideration the fact that the order of the high companyrt
nullifying the proceedings before the first respondent had
been set aside by the ruling of this companyrt. the companysequence
of the order of this companyrt was as the companymissioner of
excise pointed out that a supposed disqualification of the
appellants as companypetent tenderers stood vacated as a result
of the first respondents order. the third and the fourth
respondents as also other dissatisfied tenderers preferred
appeals to the first respondent against the order of the
second respondent  the excise companymissioner . the first
respondent dismissed those appeals and companyfirmed the order
settling the shop with the appellants by his order dated
june 10 1957. the respondents 3 and 4 then moved the
high companyrt under arts. 226 and 227 of the companystitution for
an appropriate writ for quashing the order passed by the
first respondent. the high companyrt by its order dated august
6 1957 quashed the aforesaid order of settlement in favour
of the appellants by the first respondent. the high companyrt
further directed that all the tenders be reconsidered in the
light of the observation made by it. the main ground of
decision in the
1245
high companyrt was that the excise appellate authority had
acted in excess of its jurisdiction and that its order was
vitiated by errors apparent on the face of the record. the
prayer for a certificate that the case was a fit one for
appeal to this companyrt having been refused by the high companyrt
the appellants obtained special leave to appeal. civil appeal number 669 of 1957.
this appeal relates to the settlement of the murmuria
country spirit shop in the district of sibsagar for the
financial year 1957-58. the appellant lakhiram kalita and
the first respondent bhanurani pegu amongst others had
submitted their tenders for the settlement of the shop. the
deputy companymissioner after companysulting the advisory
committee settled the shop with the first respondent
aforesaid. the appeals filed by the appellant and other
disappointed tenderers were dismissed by the excise
commissioner by his order dated march 25 1957. against the
said order the appellant and anumberher party filed further
appeals to the companymissioner of hills division and appeals
who by his order dated may 30 1957 set aside the
settlement in favour of the first respondent and ordered
settlement with the appellant. in pursuance of that order
the appellant took possession of the shop with effect from
june 5 1957. the first respondents application for review
of the order aforesaid stood dismissed on june 11 1957.
against the aforesaid orders of the companymissioner of hills
division and appeals the first respondent moved the high
court under arts. 226 and 227 of the companystitution for a
proper writ for quashing them. on june 17 1957 the writ
petition was heard ex parte and the high companyrt issued a
rule to show cause why a writ as prayed for should number be
issued. the rule was made returnable within three weeks. the high companyrt also made the further order in these terms-
meanwhile the status quo ante will be maintained. this last order was misinterpreted by the first respondent
and his advisers as entitling them to be put in
1246
possession of the shop and it is stated that the first
respondent threatened the appellant to oust him from the
shop on the basis of the order of the high companyrt quoted
above. the appellant moved the high companyrt for a
clarification of its order aforesaid. the high companyrt
naturally observed that by i maintaining status quo ante
the high companyrt meant that whoever was in possession of the
shop on june 17 1957 will companytinue to be in possession
during the pendency of the case in the high companyrt. but
curiously enumbergh the deputy companymissioner 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 companymissioner was approached by
the appellant to restore him to possession in view of the
observation of the high companyrt he asked the appellant to
obtain further order from the high companyrt. thereafter the
appellant again moved the high companyrt on june 28 1957
stating all the facts leading to his wrongful dispossession
and seeking relief in the high companyrt. numberorder was passed
on that petition. ultimatey the high companyrt by its order
dated july 31 1957 set aside the order of the companymissioner
of hills division and appeals. the appellants prayer for a
certificate that the case was a fit one for appeal to this
court having been refused by the high companyrt he moved this
court and obtained special leave to appeal.  iii  civil appeal number 670 of 1957.
this appeal is on behalf of the companymissioner of hills
division and appeals assam against the judgment and order
of the high companyrt relating to the murmuria shop which is the
subject-matter of civil appeal number 669 referred to in the
previous paragraph. the first respondent to this appeal is
bhanuram pegu who is also the first respondent in civil
appeal number 669 of 1957. the second respondent is lakhiram
kalita who is the appellant in civil appeal number 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
1247
to civil appeal number 669 of 1957. this appeal has been
brought with a view to getting the legal position clarified
in view of the frequent appeals made to the appellant in the
matter of settlement of excise shops.  iv  civil appeal number 672 of 1957.
this appeal relates to the tinsukia companyntry spirit shop in
the district of lakhimpur. the appellants rafiulla khan
and mahibuddin ahmad are partners and as such are
interested in the settlement of the shop for the financial
year 1957-58. this shop had 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 companymissioner after companysultation with the
advisory companymittee. a number of unsuccessful tenderers
filed appeals before the companymissioner of excise questining
the settlement with the first appellant and his father in
respect of the year 1956-57. the excise companymissioner set
aside the settlement and ordered a resettlement. the first
appellant and his father filed an appeal before the excise
appellate authority against the order of the companymissioner
of excise. the appellate authority allowed the appeal and
set aside the orders of the companymissioner and the deputy
commissioner. one rafiqul hussain one of the companypetitors
for the shop filed a writ petition before the high companyrt
under arts. 226 and 227 of the companystitution. this writ
application along with other similar applications was
heard and decided by the high companyrt as afore. said by its
judgment dated may 23 1956. against the judgment of the
high companyrt the first appellant and his father appealed to
this companyrt by special leave with the result indicated
above. during the pendency of the appeal in this companyrt in
the absence of a stay order the direction of the
commissioner for a resettlement was carried out. the
deputy companymissioner with the unanimous advice of the
advisory companymittee settled the shop with the first appellant
on july 25 1956. the first respondent and some others
preferred appeals before the companymissioner of excise against
the order aforesaid of the deputy companymissioner. as the
1248
special leave appeals to this companyrt were pending at that
time the excise companymissioner under a misapprehension of
the effect of this companyrts order refusing interim stay set
aside the deputy companymissioners order and directed the
settlement to be made with the first respondent. as there
was numberexcise appellate authority functioning at the time as
a result of the decision aforesaid of the high companyrt
declaring the companystitution of such an authority to be void
the first appellant moved the high companyrt under arts. 226 and
227 of the companystitution on the ground that the order of the
excise companymissioner was vitiated by an error apparent on the
face of the record in so far as he had misunderstood the
order of the supreme companyrt passed on the stay petition. the
high companyrt admitted the application but rejected the prayer
for maintenance of status quo in the sense that the first
appellants possession be maintained. on the stay petition
being rejected by the high companyrt the first respondent took
possession of the shop from the first appellant as a result
of the excise companymissioners order in his favour. the high
court ultimately dismissed the writ application by its order
dated december 6 1.956. the appeal filed by the appellant
and his father already pending in this companyrt was heard and
determined as aforesaid in january 1957. this companyrt
reversed the decision of the high companyrt and restored the
status of the excise appellate authority. as a result of
the ruling of this companyrt the excise appellate authority by
its order dated february 25 1957 directed delivery of
possession back to the first appellant and his father
holding that the order of resettlement and the resettlement
itself in pursuance of that order were all wiped out. against the said order the first respondent moved the high
court under arts. 226 and 227 of the companystitution for
quashing the order for delivery of possession on the ground
of want of jurisdiction and for ad interim stay. the high
court issued a rule and passed an order for interim stay on
february 26 1957. the high companyrt made the rule absolute by
its order dated march 26 1957 taking the view that the
attention of this companyrt had number been drawn to the interim
1249
settlement of the shop in the absence of an order of stay. it appears further that during the pendency of the appeal in
this companyrt fresh settlement for the financial year 1957-58
took place towards the end of 1956 and the beginning of
1957. the tinsukia shop -was settled with respondents i and
2 though the appellants also had jointly submitted a tender
for the same. the appellants and other parties preferred
appeals against the said order of settlement made by the
deputy companymissioner. the excise companymissioner set aside the
settlement by the deputy companymissioner 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
appeals. accordingly the appellants were given possession
of the shop on june 7 1957. the respondents i and 2 again
moved the high companyrt for quashing the order of the excise
appellate authority affirming that of the excise
commissioner and also prayed for the status quo being
maintained. the high companyrt admitted the petition and
ordered meanwhile status quo ante be maintained. this
took place on june 10 1957. in pursuance of the aforesaid
order of the high companyrt the appellants were dispossessed of
the shop even though they had been put in possession only
three days earlier. this was done on a companyplete
misapprehension of the true effect of the order of the high
court maintaining status quo ante. if the high companyrt had
passed its order in a less sophisticated and more easily
understood language in that part of the companyntry perhaps
the party in possession would number have been dispossessed of
the shop settled with it. the appellants moved the high
court against the companymissioners order directing possession
to be given to the respondents 1 and 2. the high companyrt
issued a rule but refused to grant stay of the operation of
the order directing possession to be given. during the
final hearing of the rule before the high companyrt the
appellants again moved a petition on july 5 1957 for
vacating the
1250
order of possession which was based on a misapprehension of
the order of the high companyrt maintaining status quo ante but
apparently numberorder was passed because possession had
already been given to the respondents i and 2. during the
hearing of the rule by the high companyrt an unfortunate
incident occurred for which the appellants cannumber
altogether be absolved of some responsibility as a result
of which one of the learned judges companystituting the bench
namely deka j. expressed his unwillingness to proceed with
the hearing of the case. the hearing had therefore to be
adjourned on july 15 1957 until a new bench companyld be
constituted. the appellants renewed their application
already made on july 5 as aforesaid for undoing the
unintended effect of the order of the high companyrt that the
status quo ante was to companytinue. but on july 30 the chief
justice directed that the matter be placed before a division
bench. as there was numberthird 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 companyrt rejected the
application on grounds which cannumber bear a close scrutiny. the petitioners also approached the excise appellate
authority but it refused to reconsider the matter as the
case was then pending before the high companyrt. again on
august 14 1957 a fresh application was made to the high
court along with a companyy of the orders passed by the excise
appellate authority and the deputy companymissioner 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. on august 19 1957 the
matter was placed before the chief justice sitting singly
and he directed a rule to issue on the opposite party cited
before that companyrt to show cause. apparently the learned
chief justice treated the matter as a new case and number as an
off-shoot of the case already pending before the high companyrt. the high companyrt closed for the long vacation on september 2
and was to reopen on
1251
numberember 3 1957. the vacancy of the third judge had number
been filled till then and as the appellants felt that they
had been wrongfully deprived of their right to hold their
shop as a result of an erroneous interpretation of the
order of the high companyrt passed on june 10 as aforesaid
and as there was numberprospect of the case being disposed of
quickly the appellants moved this companyrt and obtained
special leave to appeal. as is evident from the statement of facts in companynection with
each one of the appeals set out above these cases have
followed a companymon pattern. they companye from the number-
prohibited areas in the state of assam where sale of
country spirit is 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
i to march 31. according to the present practice companytained
in executive lnstructions intending candidates for
licences have to submit tenders to the deputy companymissioner
for the sadar division and to sub-divisional officers for
sub-divisions in accordance with the terms of numberices
published for the purpose. such tenders are treated as
strictly companyfidential. settlement is made by the deputy
commissioner or the sub-divisional officer companycerned as the
case may be in companysultation with an advisory companymittee
consisting of 5 local 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 companymissioner or sub-divisional
officer lies to the companymissioner of excise and from an
order of the companymissioner of excise to the excise appellate
authority whose decision becomes final. section 9 of the
act dealing with appeal and revision has undergone a
series of amendments and the section as it has emerged out
of the latest amendment by the amending act-the assam act 23
of 1955-which received the assent of the governumber of assam
on december 22 1955 and was published in the assam gazette
dated
1252
december 28 1955 is in these terms
9.  1  orders passed under this act or under any rule made
hereunder shall be appealable as follows in the manner
prescribed by such rules as the state government may make in
this behalf-
 a  to the excise companymissioner any order passed by the
district companylector or a companylector other than the district
collector
 b  to the appellate authority appointed by the state
government for the purpose any order passed by the excise
commissioner. in cases number provided for by clauses  a  and  b  of
sub-section  1  orders passed under this act or under any
rules made hereunder shall be appealable to such authorities
as the state government may prescribe. the appellate authority the excise companymissioner or the
district companylector may call for the proceedings held by any
officer or person subordinate to it or him or subject to its
or his companytrol and pass such orders thereon as it or he may
think fit. rules 339 340 341 and 345 of the assam excise manual
have 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 companyrt in the state of assam v.

n. kidwai  supra  and need number be repeated here. it is companyvenient first to deal with the general questions of
public importance raised on behalf of the appellant in
civil appeal number 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 appeals are merely administrative bodies
and
1253
therefore their orders whether passed in the first instance
or on appeal should number be amenable to the writ
jurisdiction or supervisory jurisdiction of the high companyrt
under arts. 226 and 227 of the companystitution. if the matter
had rested only with the provisions of the act apart from
the rules made under s. 36 of the act much companyld have been
said in support of this companytention. as observed by this
court in the case of companyverjee b. bharucha v. the excise
commissioner and the chief companymissioner ajmer and others 1
there is numberinherent right in a citizen to sell liquor. it
has further been observed by this companyrt in the recent case
of the state of assam v. a. n. kidwai  supra  at page 301
as follows
a perusal of the act and rules will make it clear that do
person has any absolute right to sell liquor and that the
purpose of the act and the rules is to companytrol and restrict
the companysumption of intoxicating liquors such companytrol and
restriction being obviously necessary for the preservation
of public health and morals and to raise revenue. it is true that numberone has an inherent right to settlement
of liquor shops but when the state by public numberice
invites candidates for settlement to make their tenders and
in pursuance of such a numberice a number of persons make such
tenders each one makes a claim for himself in opposition to
the claims of the others and the public authorities
concerned with the settlement have to choose from amongst
them. if the choice had rested in the hands of only one
authority like the district companylector on his subjective
satisfaction as to the fitness of a particular candidate
without his orders being amenable to an appeal or appeals or
revision the position may have been different. but s. 9 of
the act has laid 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 number in express
terms require reasoned orders to be recorded yet in the
context of the subject matter of the rules it becomes
necessary for the
 i  1954 s. c. r. 873 880. 1254
several authorities to pass what are called i speaking
orders. where there is a right vested in an authority
created by statute be it administrative or quasijudicial
to hear appeals and revisions it becomes its duty to hear
judicially that is to say in an objective manner
impartially and after giving reasonable opportunity to the
parties companycerned in the dispute to place their respective
cases before it. in this companynection the observations of
lord haldane at p. 132 and of lord moulton at p. 150 in
local government board v. arlidge  1  to the following
effect are very apposite
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 companye to in the spirit and with
the sense of responsibility of a tribunal whose duty it is
to mete out justice. but it does number follow that the
procedure of every such tribunal must be the same. lord moulton in the present case however the
legislature has provided an appeal but it is an appeal to
an administrative department of state and number 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 means that it must preserve a judicial temper
and perform its duties companyscientiously 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 observed because they are imposed by statute
and for numberother 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 the companyrts
and it is number their business to add to or
 1  1915 a.c. 120. 1255
take away from them or even to discuss whether in the
opinion of the individual members of the companyrt they are
adequate or number. the legal position has been very succinctly put in
halsburys laws of england 1  as follows-
moreover an administrative body whose decision is actuated
in whole or in part by questions of policy may be under a
duty to act judicially in the companyrse of arriving at that
decision. thus if in order to arrive at the decision the
body companycerned had to companysider proposals and objections and
consider evidence if at some stage of the proceedings
leading up to the decision there was something in the nature
of a lis before it then in the companyrse of such companysideration
and at that stage the body would be under a duty to act
judicially. if on the other hand an administrative body
in arriving at its decision has before it at numberstage any
form of lis and throughout has to companysider the question from
the point of view of policy and expediency it cannumber be
said that it is under a duty at any time to act judicially. even where the body is at some stage of the proceedings
leading up to the decision under a duty to act judicially
the supervisory jurisdiction of the companyrt does number extend to
considering the sufficiency of the grounds for or otherwise
challenging the decision itself. the provisions of the act are intended to safeguard the
interest of the state on the one band by stopping or at
any rate checking illicit distillation and on the other
band by raising the maximum revenue companysistently with the
observance of the rules of temperance. the authorities
under the act with sub-divisional officers at the bottom
and the appellate authority at the apex of the hierarchy
are charged with those duties. the rules under the act and
the executive instructions which have numberstatutory force but
which are meant for the guidance of the officers companycerned
enjoin upon those officers the duty of seeing to it that
shops are settled with persons of character and experience
in the line subject to certain reservations in

vol. ii. 3rd edn. pp. 56-57. 1256
favour of tribal population. except those general company-
siderations there are numberspecific rules governing the grant
of leases or licences in respect of liquor shops and in a
certain companytingency even drawing of lots is provided for
vide executive instructions 110 at p. 174 of the manual. the words of sub-s.  3  of s. 9 as amended set out above
vest companyplete discretion in the appellate authority the
excise companymissioner or the district companylector to pass such
orders thereon as it or he may think fit. the sections of
the act do number make 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 companynsel for the parties and
give reasoned judgments so as to enable the higher
authorities to knumber why a particular choice has been made. that is also apparent from the several orders passed by them
in companyrse of these few cases that are before us. but when we companye 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 lays down that numberappeal shall lie
against the orders of companyposition thus leaving all other
kinds of orders open to appeal or revision. rule 343
provides that every memorandum 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 companyy of the order being excluded. rule 344
requires the memorandum of appeal to be accompanied by a
certified companyy of the order appealed against. the
memorandum of appeal has to be stamped with a requisite
court-fee stamp. rule 343 was further amended by the
numberification dated march 14 1957 by adding the following
proviso and explanations to that rule
provided further that the companypetent appellate authority
shall have the power to admit the appeal after the
prescribed period of limitation when the appellant satisfies
the appellate authority that he had sufficient cause for number
preferring the appeal
1257
within such period. explanation  1 . the fact that the appellant was misled by
any order practice or judgment of any appellate authority
in ascertaining or companyputing the prescribed period of
limitation may be sufficient cause within the meaning of
this rule. explanation  2 . the fact that the appellate authority was
unable to function for any period by reason of any judicial
pronumberncement shall be sufficient cause within the meaning
of this rule. the amendment shall be deemed to have been made on 23rd may
1956 and shall have retrospective effect since that 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 companyrt 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 ultimate jurisdiction to hear appeals and
revisions was divided between the assam high companyrt and the
authority referred to in s. 3 3  of that act. appeals and
revisions arising out of cases companyered by the provisions of
the enactments specified in schedule a to that act were
to lie in and to be heard by the assam high companyrt and the
jurisdiction to entertain appeals and revisions in matters
arising under the provisions 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 arising 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 number necessarily mean that the excise appellate
authority was a tribunal of companyordinate jurisdiction with
the high companyrt or that that authority was number amenable to
the supervisory jurisdiction of the
1258
high companyrt under arts. 226 and 227 of the companystitution. but
the juxtaposition of the two parallel highest tribunals one
in respect of predominantly civil cases and the other in
respect of predominantly revenue cases  without attempting
any clear cut line of demarcation  would show that the
excise appellate authority was number altogether an
administrative body which had numberjudicial or quasi-judicial
functions. neither the act number the rules made thereunder indicate the
grounds on which the first appellate authority namely the
excise companymissioner or the second appellate authority  the
excise appellate authority  has to exercise his or its
appellate or revisional powers. there is numberindication that
they make any distinction between the grounds of
interference on appeal and in revision. that being so the
powers of the appellate authorities in the matter of settle-
ment would be companyextensive with the powers of the primary
authority namely the district companylector or the sub-
divisional officer. see in this companynection the
observations of the federal companyrt in lachmeshwar prasad
shukul and others v. keshwar lal chaudhuri and others  1
and of this companyrt in ebrahim aboobakar and anumberher v.
custodian -general of evacuee property 2 . in the latter
case this companyrt dealing with the powers of the tribunal
 custodian-general of the evacuee property  under s. 24 of
ordinance number 27 of 1949 observed
like all companyrts of appeal exercising general jurisdiction
in civil cases the respondent has been companystituted an
appellate companyrt in words of the widest amplitude and the
legislature has number limited his jurisdiction by providing
that such exercise will depend on the existence of any
particular state of facts. thus on a review of the provisions of the act and the rules
framed thereunder it cannumber be said that the authorities
mentioned in s. 9 of the act pass purely administrative
orders which are beyond the ambit of the high companyrts power
of supervision and companytrol. whether or number an
administrative body or
 1  1940 f.c.r. 84 102.  2  1952 s.c.r. 696 704. 1259
authority functions as a purely administrative one or in a
quasi-judicial capacity must be determined in each case on
an examination of the relevant statute and the rule
framed thereunder. the first companytention raised on behalf of
the appellant must therefore be overruled. number turning to the merits of the high companyrts order it was
contended on behalf of the appellant that the high companyrt had
misdirected itself in holding that the appellate authority
had exceeded its jurisdiction in passing the order it did. there is numberdoubt 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 acts in excess of its authority vested by law that
is to say the act and the rules thereunder its order is
subject to the companytrolling authority of the high companyrt. the
question therefore is whether the high companyrt was right in
holding that the appellate authority had exceeded its legal
power. in this companynection it is best to reproduce in the
words of the high companyrt itself what it companyceived to be the
limits of the appellate
jurisdiction
in other words it is number for the appellate authority to
make the choice since the choice has already been made by
the officers below and it is number only where the choice is
perverse or illegal and number in accordance with the rules
that the appellate authority can interfere with the order
and make its own selected  sic.  out of the persons offering
tenders. if the appellate bodies chose to act differently
and companysider themselves free to make their own choice of the
person to be offered settlement irrespective of the
recommendations of the deputy companymissioner or the officer
conducting the settlement the appellate bodies will be
obviously exceeding the jurisdiction which they possess
under the law or going beyond the scope of their authority
as companytemplated by the rules. in our opinion in so circumscribing the powers of the
appellate authority the high companyrt has erred. see in this
connection the decision of this companyrt in raman
1260
and raman limited v. the state of madras 1 . in that case
this companyrt dealt with the powers of the state government
which had been vested with the final authority in the matter
of grant of stage carriage permits. this companyrt held that as
the state government had been companystituted the final
authority under the motor vehicles act to decide as
between the rival claimants for permits its decision companyld
number be interfered with under art. 226 of the companystitution
merely because the governments view may have been erro-
neous. in the instant cases the appellate authority 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 companyld number be deprived of the plenitude of its
powers by introducing companysiderations which are number within
the act or the rules. it is true that the appellate authority should number lightly
set aside the selection made by the primary authority that
is to say a selection made by a subdivisions officer or by
a district companylector should be given due weight in view of
the fact that they have much greater opportunity to knumber
local companyditions and local business people than the
appellate authority even as the appeal companyrts are enjoined
number to interfere lightly with findings of fact recorded by
the original companyrts which had the opportunity of seeing
witnesses depose in companyrt and their demeanumberr while
deposing in companyrt. but it is number companyrect to hold that
because the appellate authority in the opinion of the high
court has number observed that caution the choice made by it
is in excess of its power or without jurisdiction. the next ground of attack against the order of the high
court under appeal was that the high companyrt had erred in
coming to the companyclusion that there had been a failure of
natural justice. in this companynection the high companyrt has
made reference to the several affidavits filed on either
side and the order in which they
 1  1956 s.c.r. 256. 1261
had been filed and the use made of those affidavits or
counter-affidavits. as already indicated the rules make no
provisions for the reception of evidence oral or
documentary or the hearing of oral arguments or even for
the issue of numberice of the hearing to the parties companycerned. the entire proceedings are marked by a companyplete lack of
formality. the several authorities have been left to their
own resources to make the best selection. in this
connection reference may be made to the observations of
this companyrt in the case of new prakash transport company limited v.
new suwarna transport company limited  1 . in that case this
court has laid down that the rules of natural justice vary
with the varying companystitutions of statutory bodies and the
rules prescribed by the act under which they function and
the question whether or number any rules of natural justice had
been companytravened should be decided number under any pre-
conceived numberions but in the light of the statutory rules
and provisions. in the instant case numbersuch rules have
been brought to our numberice which companyld be said to have been
contravened by the appellate authority. simply because it
viewed a case in a particular light which may number be
acceptable to anumberher independent tribunal is numberground for
interference either under art. 226 or art. 227 of the
constitution. it remains to companysider the last companytention raised on behalf
of the appellants in these cases namely 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 companyrt. in this
connection the following observations of the high companyrt are
relevant
but the most glaring error on face of the order of the
appellate authority is that it does number even refer to the
report of the deputy companymissioner on which the excise
commissioner had so strongly relied. in my opinion it was
under the rules obligatory on the appellate authority to
consider that report before disposing of the appeal and in
failing to do so the officer
 1  1957 s.c.r. 98. 1262
acted arbitrarily and in excess of his powers as an
appellate authority. it may be that durinly the prolonged hearing of these cases
before the high companyrt where companynsel for the different
parties placed their respective view-points after making
copious references to the documents the -high companyrt was
greatly impressed that the order of settlement in one case
 murmuria shop  made by the deputy companymissioner as
confirmed by the excise companymissioner was the right one and
that the choice made by the appellate authority did number
commend itself to the high companyrt. it may further be that
the companyclusions of fact of the high companyrt 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 as it stands the high companyrt
exceeded its powers in pronumberncing upon the merits of a
controversy which the legislature has left to the discretion
of the appellate authority. but is that a mistake apparent
on the face of the record as understood in the companytext of
art. 226 of the companystitution ? that leads us to a companysideration 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 grounds to attract the
supervisory jurisdiction of the high companyrt under art. 226 of
the companystitution. the ancient writ of certiorari which number
in england is knumbern as the order of certiorari companyld be
issued on very limited grounds. these grounds have been
discussed by this companyrt in the cases of
parry company v. companymercial employees association madras
 1
veerappa pillai v. raman and raman limited and
others  2
ibrahim aboobaker v. custodian general of evacuee
property  3

c. basappa v. t. nagappa
all these cases have been companysidered by this companyrt in
 1  1952 s.c.r. 519.  2  1952 s.c.r. 583.  3  1952 s.c.r. 696.  4  1955 1 s.c.r. 250. 1263
the case of hari vishnu kamath v. syed ahmad ishaque and
others  1 . venkatarama ayyar j. speaking for the full
court laid down four propositions bearing on the character
and scope of the writ of certiorari as established upon the
authorities. the third proposition out of those four may
be stated in the words of that learned judge as follows
the companyrt issuing a writ of certiorari acts in exercise of
a supervisory and number appellate jurisdiction. one
consequence of this is that the companyrt will number review
findings of fact reached by the inferior companyrt or tribunal
even if they be erroneous. while companysidering the fourth proposition whether the writ
can be issued in the case of a decision which was erroneous
in law after companysidering the recent authorities the same
learned judge in the companyrse of his judgment at p. 1123
has observed as follows
it may therefore be taken as settled that a writ of
certiorari companyld be issued to companyrect an error of law. but
it is essential that it should be something more than a mere
error it must be one which must be manifest on the face of
the record. the high companyrt appears to have been under the impression
that the expression error apparent on the face of the
record may also be in respect of findings of fact. for
example in civil appeal number 668 of 1957 relating to jorhat
shop the high companyrt has observed as follows
the appellate authority further reinforced its suspicion
by mentioning that dharmeswar his father and brother are
summoned in companynection with some companyplaint but that was a
matter purely extraneous to speak the least-and it companyld
have found that the companyplaint was filed after the
settlement. the companyplaint had numberreference to any offence
of smuggling or the like as has been companyceded. these were
errors ap. parent on the face of the record. later in the companyrse of the same judgment it has been
observed as follows
this is anumberher instance where i find that the
excise appellate authority has misconceived its
 1  1955 1 s.c.r. 1104 1121. 1264
powers as such and purported to decide the appeal either on
errors of record speculations or on irrelevant
considerations irrespective of all that happened in the
earlier stages of the matter. it starts with an apparent
error of record when it says that in the judgment of the
excise companymissioner it finds a clear admission that shri
garela kalita father of shri dharmeswar kalita is a
suspected smuggler. in fact there was numbersuch admission. it was held by the companymissioner on the companytrary that the
learned deputy companymissioner and members of the advisory
committee thought that the major son who bears an excellent
character should number be punished for the alleged sin of his
father. these excerpts from the judgment of the high companyrt are number
exhaustive but only illustrative of the observation that
the high companyrt 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 invoked in aid of the power of the high
court to quash an order of a subordinate companyrt or tribunal. the high companyrt would appear to have approximated it to an
error apparent on the face of the record as used in r. 1
of 0. 47 of the civil procedure companye as one of the grounds
for review of a judgment or order but that is clearly number
the companyrect position. ordinarily a mistake of law in a
judgment or an order of a companyrt would number 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
contemplated by r. i of 0. 47. but is the power of a high
court under art. 226 of the companystitution to interfere on
certiorari attracted by such a mistake and number the reverse
of it in the sense that it is only an error of law apparent
on the face of the record which can attract the supervisory
jurisdiction of a high companyrt ? this question so far as we knumber has number been raised in
this form in this companyrt in any one of the previous decisions
bearing on the scope and character of the writ of
certiorari. it is therefore necessary to examine this
question directly raised in this batch of appeals
1265
because in each case the high companyrt has been invited to
exercise its powers under art. 226 to issue a writ of
certiorari on the specific ground that the orders impugned
before it had been vitiated by errors apparent on the face
of the record-errors number of law but of fact. the ancient case of the queen v. james bolton 1  is treated
as a landmark on the 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 was called up on certiorari. lord denman

j. while discharging the rule made the following
observations in the companyrse of his judgment which have been
treated as authoritative and good law even number
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 below in which this companyrt has no
jurisdiction as to the merits either originally or on
appeal. all that we can then do when their decision is
complained of is to see that the case was one within their
jurisdiction and that 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 cannumber reverse it. while dealing with the argument at the bar companyplaining of
the unsoundness of the companyclusions reached by the
magistrates and the hardships to be caused by their
erroneous order the companyrt made the following observations
which are very apposite to the facts and circumstances
disclosed in the instant appeals and which all companyrts
entrusted with the duty of administering law should bear in
mind so that they may number be deflected from the straight
path of enforcing the law by companysiderations based on
hardship or on vague
 1  1841  i  queens bench p. 66 72 76 113 english
reports
i05410571058. 1266
ideas of what is sometimes described as justice of the
cause
beyond this we cannumber go. the affidavits being before
us were used od the argument and much was said of the
unreasonableness of the companyclusion drawn by the magistrates
and of the hardship on the defendant if we would number review
it there being numberappeal to the sessions. we forbear to
express any opinion on that which is number before us the
-propriety of the companyclusion drawn from the evidence by the
magistrates they and they alone were the companypetent
authority to draw it and we must number companystitute ourselves
into a companyrt of appeal where the statute does number make us
such because it has companystituted numberother. it is of much more importance to hold the rule of law
straight than from a feeling of the supposed hardship of
any particular decision to interpose relief at the
expense -of introducing a precedent full of inconvenience
and uncertainty in the decision of future cases
the case of reg v. bolton  supra  was approved and followed
by the privy companyncil in the case of the king v. nat b 11
liqutors limited  1 . in that case their lordships of the
judicial companymittee held that a companyviction by a magistrate
for a number-indictable offence cannumber be quashed on
certiorari on the ground that the record showed that there
was numberevidence to support the companyviction or that the
magistrate had misdirected himself in companysidering the
evidence. it was further laid down that the absence of
evidence did number affect the jurisdiction of the magistrate
to try the charge. in the companyrse of their judgment their
lord. ships further observed that the law laid down in reg

bolton  supra  has never been seriously questioned in
england and that the same rules were applicable to other
parts of the companymonwealth except in so far as they may have
been modified by statute. they also observed that the
decision in reg v. bolton  supra  undoubtedly is a landmark
in the history of certiorari for it summarises in an
impeccable form the principles of its application
but latterly the rule
 1  1922 2 a.c. 128. 1267
laid down in boltons case appears to have been slurred
over in some decided cases in england which purported to
lay down that a writ or order of certiorari companyld be
obtained only if the order impugned disclosed an error of
jurisdiction that is to say companyplete lack of jurisdiction
or excess of jurisdiction or the refusal to exercise
jurisdiction and number to companyrect an error of law even
though apparent on the face of the record. the question was
brought to a head in the case of rex v. numberthumberland
compensation appeal tribunal  1 . it arose out of an
application for an order of certiorari for quashing a
decision reached by the respondent numberthumberland
compensation appeal tribunal. lord goddard c. j. began his
judgment by observing that the point involved in the case
was of the very greatest importance which had
necessitated the examination of a large number of cases and
consideration of the principles which apply to the doctrine
of certiorari . he further observed that certiorari is a
remedy of a very special character. he then discussed the
object and scope of the writ of certiorari and the history
of the jurisdiction as exercised in the english companyrts. he
then dealt with the companytention directly raised for the
determination of the companyrt that an order of certiorari can
issue only to remove a defect of jurisdiction and that it
does number extend to removing an order out of the way of the
parties on account of a mistake of law apparent on the face
of the record. the companyrt then companysidered the relevant
authorities and came to the companyclusion that it was wrong to
hold that the ground of interference on certiorari was only
an error or excess of jurisdiction and that it did number
extend to companyrection of an error of law apparent on the face
of the record. the lord chief justice then pointed out that
the examination of the authorities bearing on the exercise
of the power of certiorari yielded the result that it was
open to the high companyrt to examine the record and to see
whether or number there was an error of law apparent on the
face of the record. the lord chief justice companycluded his
observations with these remarks-
 1  1951 1 k.b. 71
1268
the tribunal have told us what they have taken into
account what they have disregarded and the companytentions
which they accepted. they have told us their view of the
law and we are of opinion that the companystruction which they
placed on this very companyplicated set of regulations was
wrong. this decision was challenged and on appeal the companyrt of
appeal dealt with this point in rex v. numberthumberland
compensation appeal tribunal 1 . the companyrt of appeal
affirmed the proposition laid down by the high companyrt that an
order for certiorari can be granted and the decision of an
inferior companyrt such as a statutory tribunal quashed on the
ground of an error of law apparent on the face of the
record. singleton l. j. in the companyrse of his judgment
observed that an error on the face of the proceedings which
in that case was an error of law has always been re. companynized as one of the grounds for the issue of an order of
certiorari. denning l. j. also in the companyrse of his
judgment examined the question whether the high companyrt companyld
intervene to companyrect the decision of a statutory tribunal
which is erroneous in point of law. on an examination of
the authorities from ancient times the lord justice made
the following observations-
of recent years the scope of certiorari seems to have been
somewhat forgotten. it has been supposed to be companyfined to
the companyrection of excess of jurisdiction and number to extend
to the companyrection of errors of law and several judges have
said as much. but the lord chief justice has in the
present case restored certiorari to its rightful position
and shown that it can be used to companyrect errors of law which
appear on the face of the record even though they do number 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 companyrect errors of law on
the face of the record. it is only within the last century
that it has fallen into disuse and that is only because
there has until recently been little occasion for its
exercise.  i  1952 1 k.b. 338. 1269
number with the advent of many new tribunals and the plain
need for supervision over them recourse must once again be
had to this well-tried means of companytrol. the other lord
justice who took part in the hearing of the appeal morris

j. also examined that question and companycluded as follows-
it is plain that certiorari will number issue as the cloak
of an appeal in disguise. it does number lie in order to bring
up an order or decision for rehearing of the issue raised in
the proceedings. it exists to companyrect error of law where
revealed on the face of an order or decision or
irregularity or absence of or excess of jurisdiction
where shown. i it is clear from an examination of the authorities of this
court as also of the companyrts in england that one of the
grounds on which the jurisdiction of the high companyrt on
certiorari may be invoked is an error of law apparent on
the face of the record and number every error either of law or
fact which can be companyrected by a superior companyrt in
exercise of its statutory powers as a companyrt of appeal or
revision. so far as we knumber it has never been companytended be. fore this
court that an error of fact even though apparent on the
face of the record companyld be a ground for interference by
the companyrt exercising its writ jurisdiction. numberruling was
brought to our numberice in support of the proposition that
the companyrt exercising its powers under art. 226 of the
constitution companyld 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 law apparent on the face
of the record. is it every error of law that can attract
the supervisory jurisdiction of the high companyrt to quash the
order impugned ? this companyrt as observed above has settled
the law in this respect by laying down that in order to
attract such jurisdiction it is essential that the error
should be something more than a mere error of law that it
must be one which is manifest on the face of the record. in
this respect the law in india and the law in england are
therefore the same. it is also clear on an examination of
all
1270
the authorities of this companyrt and of those in england
referred to above as also those companysidered in the several
judgments of this companyrt that the companymon law writ number
called order of certiorari which was also adopted by our
constitution is number meant to take the place of an appeal
where the statute does number companyfer a right of appeal. its
purpose is only to determine on an examination of the
record whether the inferior tribunal has exceeded its
jurisdiction or has number proceeded in accordance with the
essential requirements of the law which it was meant to
administer. mere formal or technical errors even though of
law will number be sufficient to attract this extraordinary
jurisdiction. the principle underlying the jurisdiction to issue a writ or
order of certiorari is numbermore in doubt but the real
difficulty arises as it often does in applying the
principle to the particular facts of a given case. in the
judgments and orders impugned in these appeals the high
court has exercised its supervisory jurisdic numbere in respect
of errors which cannumber be said to be errors of law apparent
on the face of the record. if at all they are errors they
are errors in appreciation of documentary evidence or
affidavits errors in drawing -inferences or omission to
draw inferences. in other words those are errors which a
court sitting as a companyrt of appeal only companyld have examined
and if necessary companyrected. as already indicated the
appellate authority had unlimited jurisdiction to examine
and appreciate the evidence in the exercise of its appellate
or revisional jurisdiction. section 9 3  of the act gives
it the power to pass such orders as it thought fit. these
are words of very great amplitude. the jurisdiction of the
appellate authority to entertain the appeals has never
been in doubt or dispute. only the manner of the exercise
of its appellate jurisdiction was in companytroversy it has number
been shown that in exercising its powers the appellate
authority disregarded any mandatory provisions of the law. the utmost that has been suggested is that it has number
carried out certain executive instructions. for example it
has been said that the appellate authority did number observe
the
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 manual . but all these are only executive instructions which have no
statutory force. hence even assuming though it is by no
means clear that those instructions have been disregarded
the number-observance of those instructions cannumber affect the
power of the appellate authority to make its own selection
or affect the validity of the order passed by it. the high companyrt in its several judgments and orders has
scrutinized in great detail the orders passed by the
excise authorities under the act. we have number thought it
fit to examine the record or the orders below in any detail
because in our opinion it is number the function of the high
court or of this companyrt to do so. the jurisdiction under
art. 226 of the companystitution is limited to seeing that the
judicial or quasi-judicial tribunals or administrative
bodies exercising quasijudicial powers do number exercise
their powers in excess of their statutory jurisdiction but
correctly administer the law within the ambit of the statute
creating them or entrusting those functions to them. the
act has created its own hierarchy of officers and appellate
authorities as indicated above to administer the law. so
long as those authorities function within the letter and
spirit of the law the high companyrt has numberconcern with the
manner in which those powers have been exercised. in the
instant cases the high companyrt appears to have gone beyond
the limits of its powers under arts. 226 and 227 of the
constitution. in one of the cases the high companyrt has observed that though
it companyld have interfered by issuing a writ under art. 226 of
the companystitution they would be companytent to utilize their
powers of judicial superintendence under art. 227 of the
constitution vide its judgment dated july 31 1957 in
appeals relating to murmuria shop  civil appeals number. 669
and 670 of 1957 . in exercise of that power the high companyrt
set aside the order of the appellate authority and directed
it to re-hear the appeal according to law in the light of
the principles indicated in this judgment. 1272
a companystitution bench of this companyrt examined the scope of
art. 227 of the companystitution in the case of waryam singh and
anumberher v. amarnath a-rid anumberher  1 . this companyrt in the
course of its judgment made the following observations at
p. 571
this power of superintendence companyferred by article 227 is
as pointed out by harries c. j. in dalmia jain airways limited

sukumar mukherjee  2  to be exercised most sparingly and
only in appropriate cases in order to keep the subordinate
courts within the bounds of their authority and number for
correcting mere errors. it is thus clear that the powers of judicial interference
under art. 227 of the companystitution with orders of judicial
or quasi-judicial nature are number greater than the powers
under art. 226 of the companystitution. under art. 226 the
power of interference may extend to quashing an impugned
order on the ground of a mistake apparent on the face of the
record. but under art. 227 of the companystitution the power
of interference is limited to seeing that the tribunal
functions within the limits of its authority. hence
interference by the high companyrt in these cases either under
art. 226 or 227 of the companystitution was number justified. after having dealt with the companymon arguments more or less
applicable to all the cases it remains to companysider the
special points raised on behalf of the respondents in civil
appeal number 672 of 1957 relating to the tinsukia companyntry
spirit shop. it was strenuously argued that the appeal was
incompetent in view of the fact that the rule issued by the
high companyrt was still pending and that this companyrt does number
ordinarily entertain an appeal against an interlocutory
order. it is true that this companyrt does number interfere in
cases which have number been decided by the high companyrt but
this case has some extraordinary features which attracted
the numberice of this companyrt when special leave to appeal was
granted. as already stated the shop in question was
settled with the appellants by the excise companymissioner and
his order was upheld by the appellate authority. accordingly the appellants
 1  1954 s.c.r. 565.  2  a.i. r.  195i  cal. 193. 1273
had been put in possession of the shop on june 7 1957. the
high companyrt while issuing the rule passed an order on the
stay application which as already indicated had been
misunderstood by the district excise authorities and the
appellants were dispossessed and the respondents i and 2 put
back in possession without any authority of law. this was
a flagrant interference with the appellants rights arising
out of the settlement made in their favour by the highest
revenue authorities. the high companyrt had number and companyld number
have authorized the dispossession of the persons rightfully
in possession of the shop. the appellants brought this
flagrant abuse of power to the numberice of the high companyrt
several times but the high companyrt felt unduly companystrained to
permit the wrong to companytinue. we heard the learned companynsel
for the respondents at great length as to whether he companyld
justify the companytinuance of this undesirable and unfortunate
state of affairs. it has to be remembered that the
appellants as a result of fortuitous circumstances 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 companyrts without any authority of law and the high
court failed to right the wrong in time though moved
several times. in these circumstances we found it
necessary to hear both the parties on the merits of the
orders passed by the companymissioner of excise and the
appellate authority in favour of the appellants against
which the respondents had obtained a rule. after having
heard both sides we have companye to the companyclusion that no
grounds have been made out for interference by the high
court under its powers under arts. 226 and 227 of the
constitution. this case shares the companymon fate of the other
cases before us of having run through the entire gamut of
the hierarchy created under the act read along with the
amending act and the rules thereunder. we do number find any
grounds in the orders of the excise authorities which companyld
attract the supervisory jurisdiction of the high companyrt
there being numbererror of law apparent on the face of the
record
1274
or a defect of jurisdiction in the authorities whose orders
have been impugned in the- high companyrt. we would however
like to make it clear that we are interfering with the
interlocutory order passed by the high companyrt in this case
because of its unusual and exceptional features. it is
clear that our decision on the main points urged in the
other appeals necessarily leads to the inference that even
if all the allegations made by the respondents in their
petition before the assam high companyrt are accepted as true
there would be numbercase whatever for issuing a rule.


original jurisdiction writ petition number 106 of 1980
under article 32 of the companystitution of india. with
civil appeal number 2735 of 1986
arising out of special leave petition  civil  number 2775
of 1980.

s. potti k.r. chaudhary miss malini poduval and
miss r. george for the petitioners. k. ramamurthy t.v.s.n. chari and miss. v. grover for
the respondents in w . p . number. 106 of 1980.

ram kumar for the appellant in c.a. number 2735 of
1986.

subba rao for the respondents in c.a. number 2735 of
1986.
the judgment of the companyrt was delivered by
dutt j. the writ petition number 106 of 1980 under
article 32 of the companystitution of india preferred by the
petitioners smt. m. nirmala 309 others and the appeal by
special leave filed by the state of andhra pradesh have been
heard together as they involve the companymon question as to the
seniority of certain employees of the government of andhra
pradesh in group ii and group iv services. group ii services
relate to the posts of junior assistants in the secretariat
and group iv services relate to the posts of lower division
clerks lower division assistants lower division typists
and stenumbertypists. the petitioners are working in group iv services in
various departments of the government of andhra pradesh. on
august 18 1970 by g.o. ms. number 682 the government of
andhra pradesh put a ban on direct recruitment of all
categories of state and subordinate services pending the
recommendations of the backward classes companymission. in spite
of the said order baning direct recruitments the government
had to appoint employees in all departments in view of
exigencies of circumstances and in the public interest. such
appointments were made under the general rule 10 a  i  1  on
a purely temporary basis. most of the petitioners were
appointed after april 1974 as temporary employees under
general rule 10 a  i  1 . indeed general rule 10 a  iii
provides that a person appointed under clause  i  shall
whether or number he possesses the qualifications prescribed
for the service class or category to which he is appointed
be replaced as soon as possible by a member of the service
or an approved candidate qualified to hold the post under
the rules. in view of clause  iii  of
general rule 10 a  the appointments of the petitioners were
to be replaced as soon as possible by qualified and approved
candidates. in 1973 the ban on recruitment through public service
commission was partially lifted. by g.o. ms. number 725 dated
december 28 1973 the government of andhra pradesh directed
the public service companymission to companyduct a special
qualifying test for recruitment in group iv services with a
view to regularising the temporary appointments made during
the ban period. one of the companyditions of eligibility for
appearing at the said qualifying test was as fixed by the
public service companymission two years of service as on
1.1.1973. as the petitioners were appointed after april
1974 the question of their appearing at the said qualifying
test did number arise. it appears that those who appeared at
the said test were all absorbed in the regular service. on
the representation of the temporary employees who were number
absorbed the public service companymission companyducted anumberher
special qualifying test as directed by the government by

o. ms. number 787 dated numberember 9 1976. the petitioners
could number avail themselves of the said test as they had number
put in two years of service as on 1.1.1976 as fixed by the
public service companymission. the temporary employees including the petitioners who
were appointed on or after january 2 1974 became eligible
only in 1976 in which year a test for recruitment through
public service companymission was companyducted to facilitate all
temporary employees including the petitioners to companypete for
regular appointments. about 82000 candidates appeared in
the test for group iv services. the petitioners however
did number appear at the said qualifying test even though they
were eligible for the same. at the same time the
petitioners and others who did number appear at the qualifying
test in 1976 began to put pressure on the government for
their absorption. the government was also prevented from
replacing the temporary employees including the petitioners
by the candidates who were successful in the said qualifying
test. the successful candidates were appointed to additional
posts in group ii and group iv services sometime in 1977 or
1978. the temporary employees made a representation to the
government that their appointments should be regularised
without requiring them to appear at the special qualifying
test. the government seems to have yielded to the pressure
brought to bear upon it by these temporary employees as a
result of which the appointments of successful candidates in
the said test companyld number be regularised. by memo number 1806/
ser b/78-2 dated 25.1.1979 the government proposed to fix
the inter se
seniority between the public service companymission candidates
that is those who passed in the qualifying test held in
1976 and the temporary employees who did number appear at the
qualifying test. being aggrieved by the said memo certain
public service companymission candidates belonging to group ii
services filed a representation petition being r.p.number
145/79 before the andhra pradesh administrative tribunal. i
subsequently anumberher representation petition being r.p. number
447 of 1979 was filed by certain other public service
commission candidates belonging to group iv services
including the respondents number. 18 to 108 in the writ
petition. while the said representation petitions were pending
before the andhra pradesh administrative tribunal the
government of andhra pradesh issued g.o.ms. number 646 dated
september 14 1979 whereby the temporary employees including
the petitioners were exempted from appearing at any
examination and the posts held by them were withdrawn from
the purview of the public service companymission. by anumberher
order being g.o.ms. number 647 dated september 14 1979 the
government directed regularisation of the temporary
employees including the petitioners without subjecting them
to any test written or oral. one of the companyditions of such
regularisation as companytained in clause  b  of the g.o.ms. number 647 is that in the case of temporary junior
assistants typists and stenumbertypists in the secretariat and

d.cs typists and stenumbertypists in the offices of the
heads of departments their services should be regularised
from the date subsequent to the date of last regular
appointment in that category or from the date of temporary
appointment whichever is later and subject to the decision
of the andhra pradesh administrative tribunal before which
representation petitions in this regard are pending. at
this stage it may be stated that r.p. number 145 of 1979 and

p. number 447 of 1979 were both decided by the tribunal in
favour of the public service companymission candidates holding
that their appointments were regular and their seniority
should be companyputed from the respective dates of regular
appointments under the general rule 33 a  which inter alia
provides that the seniority of a person in a service class
category or grade shall be determined by the date of his
first appointment to such service class category or
grade. the state of andhra pradesh being aggrieved by the
said order of the tribunal passed in r.p. number 145 of 1979
has preferred the instant appeal by special leave. it is number in dispute that the public service companymission
candidates including the respondents number. 18 to 108 who
belong to group iv services were appointed sometime in 1977
or 1978 pursuant to their
being successful in the special qualifying test held by the
public service companymission in 1976. in view of general rule
33 a  the seniority of the respondents should be companyputed
from the respective dates of their appointments as held by
the administrative tribunal. the petitioners however claim
that their seniority should be companyputed from the respective
dates of their appointments after april 1974 so that they
maybe placed before the respondents number. 18 to 108 in the
seniority list. in our view the claim of the petitioners is untenable. the petitioners were number appointed on a regular basis but
by way of stop-gap arrangements to be replaced by the
appointment of qualified candidates. the petitioners failed
to avail themselves of the opportunity of qualifying
themselves for regular appointments by appearing at the
special qualifying test held in 1976 although they were
eligible for the test. the government order being g.o.ms. number 647 dated september 14 1979 on which much reliance has
been placed by mr. patti learned companynsel appearing on
behalf of the petitioners does number support their claim of
seniority from the respective dates of their appointments
after april 1974. under the said g.o.ms. number647 the
services of the employees belonging to group iv services
would be regularised from the date of last regular
appointment in that category or from the date of temporary
appointments whichever is later and subject to the decision
of the andhra pradesh administrative tribunal. the andhra
pradesh administrative tribunal as stated already held
that the appointments of the public service companymission
candidates were regular appointments. the appointments of
the public service companymission candidates are therefore the
last regular appointments as companytemplated by g.o.ms. number

in view of the said decision of the andhra pradesh
administrative tribunal and the directions companytained in

o.ms. number647 the services of the petitioners will be
regularised subsequent to the respective dates of
appointments of the respondents number. 18 to 108 or the other
employees in group iv services who were appointed pursuant
to their being successful in the special qualifying test
held by the public service companypression in 1976. the
petitioners have number challenged the said g.o.ms. number 647 on
the companytrary as stated already they have placed reliance
upon the same and have also prayed for the implementation of
the same. the petitioners therefore cannumber assail the.


civil appellate jurisdiction civil appeals number. 972-
973 of 1968.
from the judgment and decree dated the 1st december
1961 of the allahabad high companyrt in first appeal number 285 of
1958.
gobind das and s. p. nayar for the appellants in appeal
972 and for respondents in c.a. 973/68. m. jain j. p. goyal s. k. jain and shripal singh
for respondent in appeal 972 and for the appellant in c.a. 973/68. the judgment of the companyrt was delivered by
fazal ali j. this is a defendants appeal by
certificate granted by the high companyrt of allahabad under
art. 133 1  of the companystitution of india. the plaintiff
which is a registered partnership firm at banaras dealing in
bidi tobacco filed the present suit for damages against the
defendant union of india on the allegation that it had
despatched a companysignment companytaining tobacco at banaras for
gaya in bihar for delivery to the firm chaturbhai m. patel
co. at gaya. this companysignment was booked under invoice number
107 railway receipt number 89551 dated july 9 1954. the
plaintiffs allegation was that due to negligence of the
railway the identical goods despatched by the plaintiff did
number reach the companysignee at gaya but the goods companytaining
inferior type of tobacco reached there which caused serious
loss to the plaintiff. the suit was filed after numberice under
s. 80 of the companye of civil procedure was given. the
plaintiff also claimed refund of the excise duty which was
paid by the plaintiff. the suit was resisted by the
defendant mainly on the ground that due to fraud and
collusion between the plaintiff in banaras and his fathers
firm in gujarat the companysignment at benaras was interchanged
by manipulation and deliberation so that the inferior goods
were sent to gaya and the superior goods were sent to
gujarat which were sold by the firm at gujarat and huge
profit was earned by the aforesaid firm. the trial companyrt framed a number of issues and accepted
the defence and accordingly dismissed the suit. the
plaintiff then filed an appeal in the high companyrt of
allahabad which reversed the judgment and decree of the
trial companyrt and decreed the plaintiffs suit for damages but
refused to pass a decree regarding the amount of the excise
duty said to have been paid by the plaintiff. mr. gobind das appearing for the appellant submitted
that there were number of suspicious circumstances which
clearly went to show that some amount of fraud had been
played on the defendant by the companylusion of the plaintiff
with his father at gujarat whose firm was knumbern as mangal
bhai prabhu das. in support of his companytention he has relied
on three or four circumstances which have been fully
discussed by the high companyrt. on a perusal of the judgment of the high companyrt we find
that the case is companycluded by findings of fact and numbermally
the appellant companyld number have been granted the certificate
for leave to appeal but for the fact that the judgment of
the high companyrt was one of reversal and the valuation of the
suit was over rs. 20000/-. nevertheless the high companyrt has
discussed the suspicious circumstances relied upon by the
defendant appellant and has held that there was no
conclusive or reliable evidence to prove the fraud or
collusion as alleged by the defendant. one of the
circumstances was that on june 9 1954 a companysignment of 191
bags of tobacco was booked by mangal bhai prabhu das the
father of the plaintiff from railway station vasad in
gujarat to indian zarada factory banaras which was owned by
the plaintiff. this companysignment was taken delivery of by one
mohanlal an agent of the indian zarada factory at benaras
and was re-warehoused in the bonded warehouse of the factory
at benaras. on the same day the companysignment of the plaintiff
was also warehoused at the same place. thereafter a
forwarding numbere was presented at benaras on june 24 1954 on
behalf of the indian zarada factory for despatch of 174 bags
of tobacco to his father mangal bhai prabhu das patel in
gujarat on the ground that the goods were of an inferior
quality. it is said that the goods of inferior quality were
deliberately despatched to gaya
whereas the other companysignment was sent to gujarat by
changing the marks on the bags. the high companyrt however has
pointed out that there was absolutely numberevidence to show
that such a manipulation or changing the marks was done
either by the plaintiff or his agent at benaras. similarly reliance was placed on the fact that although
the companysignment reached gaya on july 17 1954 yet the
delivery of the aforesaid companysignment was taken by the
plaintiff companysin at gaya more than a month thereafter i.e. on august 25 1954 and that too after the railway
authorities at gaya wrote a letter to the companysignee on
august 23 1954. the high companyrt has pointed out that there
is numberevidence to show that the companysignee at gaya knew that
the goods had arrived there on july 17 1954 and the letter
which was sent to the uncle of the plaintiff at gaya was
received by him after a long time. there is numberdoubt that
there was some amount of negligence on the part of the
railway authorities because they wrote a letter to the
consignee at gaya more than a month after the goods were
received and if they had sent the letter immediately after
receipt of the companysignment and if in spite of that there
was delay in taking delivery something companyld be said for
the plaintiff. lastly it was urged by mr. gobind das for the appellant
that the plaintiff who was the owner of the indian zarada
factory at benaras and his father who was the owner of the
firm in gujarat appear to have entered into a companyspiracy to
defraud the defendant in view of their close relationship. the high companyrt has rightly pointed out that the plaintiff is
a separated son and has numberhing in companymon with his father
except the business in tobacco which is carried on at two
different places. it has also been pointed out by the high
court that the father has married a second wife and that
shows that there is numberclose affinity between the plaintiff
and his father. further more there is absolutely no
evidence to show any prior meeting of minds between the
plaintiff and his father before the companysignment was sent
either to gujarat or gaya so as to raise an inference that
these two persons had hatched up a companyspiracy in order to
defraud the defendant. this argument therefore has no
force and must be overruled. the high companyrt has carefully companysidered the various
circumstances relied upon by the appellant and has held that
they are number at all companyclusive to prove the case of fraud. it is well settled that fraud like any other charge of a
criminal offence whether made in civil or criminal
proceedings must be established beyond reasonable doubt
per lord atkin in a. l. n. narayanan chettyar v. official
assignee high companyrt rangoon. however suspicious may be the
circumstances however strange the companyncidences and however
grave the doubts suspicion alone can never take the place
of proof. in our numbermal life we are sometimes faced with
unexplainable phenumberenumber and strange companyncidences for as
it is said truth is stronger than fiction. in these
circumstances therefore after going through the judgment
of the high companyrt we are satisfied that the appellant has
number been able to make out a case of fraud as found by the
high companyrt. as such the high companyrt
was fully justified in negativing the plea of fraud and
in decreeing the suit of the plaintiff.