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Dinesh Chandra Dowerah and anr. Vs. A.M. Dam and ors. - Court Judgment

LegalCrystal Citation
Subject;Excise
CourtGuwahati High Court
Decided On
Case NumberCivil Rule No. 37 of 1958
Judge
ActsConstitution of India - Article 226; Assam Excise Rules - Rule 205
AppellantDinesh Chandra Dowerah and anr.
RespondentA.M. Dam and ors.
Appellant AdvocateS.K. Ghose, G.R. Kalita and J.P. Bhattacharjee, Advs.
Respondent AdvocateS.M. Lahiri, Adv. General, D.N. Medhi, Senior Govt. Adv. and B.K. Goswami, Adv. (for No. 4)
DispositionPetition allowed
Excerpt:
- - the appellate authority however found that in the column 10 of the tender form the petitioners had failed to mention this fact that in the year 1937 the license of shri mohit chandra barua had been cancelled and according to the appellate authority failure to mention this in the tender form was non-compliance with a mandatory requirement and thus their tender was liable to be rejected and could not be considered. it is urged that the appellate authority has committed a manifest error of law in holding that it was a mandatory requirement of the rules that the detailed particulars should be mentioned in column 10 of the tender form and the failure to mention any of the facts which could be mentioned as a particular was enough to reject the tender. the fallacy in the argument advanced..........was found against them. the appellate authority however found that in the column 10 of the tender form the petitioners had failed to mention this fact that in the year 1937 the license of shri mohit chandra barua had been cancelled and according to the appellate authority failure to mention this in the tender form was non-compliance with a mandatory requirement and thus their tender was liable to be rejected and could not be considered. on that finding he rejected the tender of the applicants. as regards the tender given by the opposite parties no. 4 the appellate authority came to the conclusion that there was no doubt that they were inexperienced in the trade but in the absence of any rival candidate in the field that was no ground to reject their tender and on that.....
Judgment:

C. Mehrotra, J.

1. This rule was issued on an application under Articles 226 and 227 of the Constitution praying for issue of a writ of Certiorari or Mandamus or any other appropriate writ against the opposite parties Nos. 1 and 2--the Commissioner of Hills Division and Appeals, Assam and the Commissioner of Excise, Assam, Shillong respectively--restraining them from giving effect to their impugned orders and directing opposite party No. 3--the Deputy Commissioner and District Collector, Lakhimpur--to give effect to his order dated 29-10-1957 and further restraining opposite parties No. 4 from selling country spirit from Behia Chetia Country Spirit Shop on and from 1-4-1958.

The facts which are set forth in the application are that the sales of the country liquor in non-prohibited areas in Assam including Lakhimpur District are regulated by licenses to be granted by District Collectors on advice of the Advisory body consisting of not more than five local gentlemen. The District Collector and the Deputy Commissioner on the unanimous advice of the Advisory Committee of local people of the standing settled the Behia Chetia Country Spirit Shop for the year 1957-58 with the petitioners Shri Dinesh Chandra Dowerah and Shri Mohit Chandra Barua. Thereafter when the occasion for the settlement of the said shop for the year 1958-59 arose, the petitioners and several other persons submitted their tenders for the said settlement.

On the advice of the Advisory Committee the Deputy Commissioner granted the settlement of the shop with the petitioners. Then, other persons filed an appeal against the order of settlement granted to the petitioners before the Commissioner of Excise, Assam and the Commissioner by his order set aside the settlement in favour of the petitioners and also came to the conclusion that the opposite parties No. 4--Sri Gobardhan Datta and Sri Gopal Chandra Lohar were inexperienced and consequently no settlement could be made with them. He directed fresh proceedings for the settlement of the shop. Two appeals were filed to the Appellate Authority against this decision of the Excise Commissioner--one by the petitioners and the other by the opposite parties No. 4.

Both these appeals were heard by him together and by one consolidated order dated 31-3-1958 the Appellate Authority rejected the appeal of the applicants and allowed the appeal fifed by opposite parties No. 4 with the result that the petitioners' tender was rejected and the shop was directed to be settled with the opposite parties No. 4. It is against this order that the present petition under Article 226 of the Constitution has been filed.

2. The main ground on which the petitioners' tender was rejected by the Excise Commissioner was that in the year 1937 Mohit Chandra Barua who is one of the tenderers was holding a Ganja shop in the year 1937 and was detected in giving short weight; his license was cancelled and a further punishment was awarded to him by forfeiture of half of the security money and he was further debarred from getting settlement of excise shops for two years. That was the ground on which the Excise Commissioner held that no settlement could be made with the applicants. On appeal the Appellate Authority on this question has come to the following finding:

'I hold that after so many years and without any other incident since then to question the character of the appellant, that punishment has completely lost all force to discredit him.'

In effect therefore the Appellate Authority held that the cancellation of the license and the forfeiture of the security in the year 1937 of one of the partners were no disqualification for the petitioners being selected for settlement of the shop.

In fact in the previous year 1957-58 the shop had been settled with the present applicants and no complaint was found against them. The appellate authority however found that in the column 10 of the Tender Form the petitioners had failed to mention this fact that in the year 1937 the license of Shri Mohit Chandra Barua had been cancelled and according to the Appellate Authority failure to mention this in the tender form was non-compliance with a mandatory requirement and thus their tender was liable to be rejected and could not be considered. On that finding he rejected the tender of the applicants. As regards the tender given by the opposite parties No. 4 the Appellate Authority came to the conclusion that there was no doubt that they were inexperienced in the trade but in the absence of any rival candidate in the field that was no ground to reject their tender and on that consideration he directed that the settlement be made with opposite parties No. 4.

It has been contended by the counsel for the appellants very strenuously that the Appellate Authority committed a manifest error of law and this Court in the exercise of its power under Article 226 of the Constitution can issue a writ of certiorari quashing the order passed by the Appellate Authority. It is urged that the Appellate Authority has committed a manifest error of law in holding that it was a mandatory requirement of the rules that the detailed particulars should be mentioned in column 10 of the tender form and the failure to mention any of the facts which could be mentioned as a particular was enough to reject the tender.

This view of the law as taken by the Appellate Authority was manifestly erroneous. Mr. Lahiri who appears for the opposite parties No. 4 has very strenuously contended that this is not a manifest error of law and therefore this Court will not in the exercise of its power under Article 226 of the Constitution set aside the order of the Appellate Authority. It is not necessary to go into the question if this court can interfere with the decision of an inferior tribunal on a manifest error of law. The matter has been finally settled by a series of decisions of the Supreme Court. In the case of Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233, it has been laid down by their Lordships of the Supreme Court that this court can issue a writ of certiorari under Article 226 of the Constitution if there is a manifest error of law.

In the latest case decided by their Lordships

of the Supreme Court Nagendra Nath Bora v.

Commissioner of Hills Division and Appeals, Assam,

Civil Appeal No. 668 of 1957: (AIR 1958 SC 398),

which went from this Court it was observed as follows:

'It is dear from an examination of the authorities of this Court as also of the courts in England, that one of the grounds on which the jurisdiction of the High Court in certiorari may be invoked, is an error of law apparent on the face of the record & not every error either of law or fact, which can be corrected by a superior court, in exercise of its statutory powers as a court of appeal or revision.'

From an examination of the authorities it is clear that this court under Article 226 of the Constitution exercises only supervisory jurisdiction and does not sit as a court of appeal. It is also clear from the examination of these authorities that the manifest error of law is a ground on which this court can issue a writ of certiorari in the exercise of its powers under Article 226 of the Constitution. The difficulty really arises when these principles are to be applied to the facts of a particular case.

No hard and fast rule can be laid down to determine what is a manifest error of law and what is a mere error of law. In my opinion a workable rule can be found in adopting the principles laid down by the English courts and which has been summarised in 'Halsbury's Laws of England--Third Edition--Volume 11, page 61' in the following terms:

'Where upon the face of the proceedings themselves it appears that the determination or the inferior tribunal is wrong in law, certiorari to quash will be granted. The tribunal is not (unless so required by statute) obliged to set out in its adjudication the reasons which led it to its decision, but if it does state them the superior court will consider the question whether they are right in law, and if they are wrong in law, will quash the decision.'

If the order contains the reasons and it is of the nature which has been characterised by English courts as speaking order, it is open to this court to examine the reasons and on such an examination to come to its own conclusion if an error of law has been committed by inferior tribunal. If on the examination of the order itself which is a speaking order, it appears to this court that an erroneous view has been taken by the inferior tribunal on the question of law, this court will certainly interfere with such an order in the exercise of its power under Article 226 of the Constitution.

As I have already observed, the difficulty does not lie in appreciating the principles but the real difficulty arises when those principles are to be applied to the facts of a particular case. It was contended by the counsel for the other side that whether a form was defective or not Was a matter which was within the exclusive jurisdiction of the Appellate Authority and if the Appellate Authority came to the conclusion that the tender was defective and considered that to be a valid ground for rejecting the tender, this court will be sitting as a court of appeal if it took a different view and came to the conclusion that there was no defect in the tender.

If the question as to whether there is any defect in the tender or not is not examinable by this court, it is not open to this court to interfere with the discretion of the Appellate Authority based on his finding under Article 226 of the Constitution. The fallacy in the argument advanced by the opposite parties to my mind is that it assumes that the Tribunal has failed to exercise its discretion in favour of the applicants on the ground that the petitioners omitted to mention certain particulars in column 10, and thus held them not suitable. The Tribunal had rejected the appeal on the ground that in view of the omission, the tender could not be looked into as it was mandatory under the rules to do so. From the perusal of the order itself it is clear that the view taken by the Appellate Authority was that it was a mandatory provision of the law that the tender must conform to the prescribed form and all the necessary particulars must be mentioned in the form itself.

Any omission to mention any of the facts which could be mentioned under it is a failure to comply with the mandatory provision of the rule and thus such a tender is to be rejected. In fact the Appellate Authority was of the opinion that it had no jurisdiction to accept such a tender at all and consider the claim of such a petitioner on the merits along with other petitioners. The error committed by the Appellate Authority lies in assuming that this is a mandatory provision of law and failure to comply with this gives no jurisdiction to the Tribunal to consider his case at all. We are of opinion that the Tribunal was not right in holding that the tender because of this defect should have been rejected for non-compliance with the provisions of the rules. The Tribunal has in effect remarked as follows:

'This defect cannot be ignored nor condoned even on the plea that the D. C. and his committee had information about this and had taken due consideration of the same. The tender form has full legal force having been prescribed under R. 205 and Instruction 104 and any lessee not fully complying with its requirements naturally runs a risk. I therefore must hold that the tender of the appellants Shri Dinesh Ch. Dowerah and Shri Mohit Ch. Barua was materially defective and as such their case must be rejected on this score. This observation of the Appellate Authority clearly indicates that the Authority was of opinion that after having come to the conclusion that the tender was not in accordance with the form prescribed, he had no other alternative but to reject the tender and not to consider the case of the applicants on merits along with the case of others. We think that there is no justification for such a conclusion. Rule 205 of the Rules framed under the Excise Act runs as follows:

'With the previous sanction of the Excise Commissioner, the District Collector (and in sub-divisions, the Sub-divisional Officer) may, instead of putting up shops to auction, call for tenders for any shop or class of shops in such form as may be prescribed by the District Collector, Each such tender shall be only for a single shop, but any person may submit separate tenders for different shops

It is then laid down in the rules that the tender is to be submitted on a prescribed form.

The contention of the opposite party therefore is that in case there is any omission in the tender, the Appellate Authority was justified in rejecting it. Nowhere it is laid down that failure to mention any of the facts which may be regarded as necessary under column 10 entails the rejection of tie tender. The provisions requiring the applicants to fill in the tender in a particular form are not mandatory in the sense that omission to mention any fact which may be considered necessary in column 10 must result in the rejection of the tender. The object of insisting upon a tender to give particulars is to place the settlement authority in a position to know the antecedents of the tenderer and to form a correct opinion about his suitability.

The Appellate Authority has found that the fact was known to the authorities concerned; in spite of the order of 1937 he had been granted settlement in 1957-58. In these circumstances the omission to mention the fact that one of the partners was punished for a breach in 1937 in respect of a Ganja shop, which was settled with him alone can be no ground to reject his tender. In our opinion therefore there was a manifest error of law committed by the Appellate Authority and we accordingly allow this application, set aside the order of the Appellate Authority and the matter will go back to him. He will act according to law after considering the respective merits of the present applicants and opposite parties No. 4. The application is allowed with costs.

3. We assess the cost at Rs. 100/-.

H. Deka, J.

4. I agree with my learned brother that it is a fit case where we consider that the order of the Appellate Authority should be set aside on the ground of manifest error of law, in exercise of our power under Article 226 of the Constitution. What has been contended by the learned Advocate-General may be put under two heads: (1) that the Appellate Authority was competent to decide whether the form was duly filled up or not and his-order or opinion on the point is final and (2) that there was no such error or mistake of law which was manifest. Mr. Lahiri has further drawn our attention to one of the earlier unreported decisions of this Court by a Division Bench (Civil Rule No. 74 of 1957 Padma Kanta Chetia v. A.M. Dam), dated 28-8-1957 and I was a party thereto. It was held in that case that

'the Excise authorities, however, including the Appellate Authority could not be said to be acting in excess of their jurisdiction if they insisted on strictly following the terms of Rule 205 of the Assam, Excise Rules which directed that the tender for the shops should be in such form as may be prescribed by the district Collector.'

In that case the objection was raised as to the filling up of column 8 but what more, the tender was not filed in a prescribed form. Therefore the observation made in that case cannot exactly fit in with the facts of this case and we need not refer to the judgment as to the other details. Since my learned brother has dealt with the merits of the case in detail I would like only to point out that in our opinion there has been a manifest error of law in interpreting column 10 of the form which runs as follows:

'10. Details, if any, of tenderer having held any Excise shop as a lessee or having worked as a salesman or agent of any such shop.

It is nobody's case mat the tender was not filled in a form as prescribed or as required under Rule 205 but what was considered by the Appellate Authority to be a very serious error was that it was not mentioned against that column that one of the tenderers--a partner of Dinesh Chandra Dowerah--had a black mark while ho was a lessee of a Ganja shop in 1937. The Appellate Authority has commented that that by itself or the punishment inflicted had completely lost all force to discredit the tenderer, but what he considers to be a serious error is that there was irregularity in the matter of filling up column 10 of the tender form. In his words-

'the wording of column 10 of the tender form is very clear which certainly call for all past and present particulars about the tenderers, even including cases where shops were held very long ago, as in the instant case.'

In our opinion this was a manifest error in interpreting the wordings,--since the column which I have quoted above does not speak of all these details or matters of past history.

Reading the column it seems to indicate that it should only bring out whether the tenderer had any experience as a lessee of an excise shop or worked as a salesman or agent of any such shop. In case it is desired that the full history-sheet should be there, that should be made clear in the column itself; otherwise it is difficult to imagine that records of past incidents which had no material force or bearing as found by the Appellate Authority should be inserted against the column. The Appellate Authority was in error in interpreting this column and the requirements thereunder which we consider to be an error of law.

5. Leave to prefer an appeal to the Supreme Court is prayed for and it is refused since the matter raises no point of interpretation

of the provisions of the Constitution.

.


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