judgement:
Civil Appeal No. 5742 of 1983 Appeal by Special leave from the judgment and order dated the 7th May, 1983 of the Assam High Court in Civil Rule No. 1292 of 1982.
K.K. Venugopal, Ms. Laxmi Venugopal, A.K Bordelay, C.S. Vaidyanathan and Praveen Choudhary for the Appellants.
S.S. Ray, A.S. Pundir, Vijay Hansaria, Sunil Kumar Jain, Mukesh Advani and Ms. Mridula Ray for Respondent Nos. 1 & 2. S.K.Nandy for the Respondents 3 & 5.
N.R. Choudhary for the Intervener.
The Judgment of the Court was delivered by 828 SEN, J.
This appeal by special leave is directed against the judgment and order of the Assam High Court dated November 4, 1982 concerns the propriety of the grant of a liquor licence.
By the judgment the High Court quashed an order of the Board of Revenue dated February 11,.1982 affirming the grant of licence in respect of Jorhat Country Spirit Shop No. 1 made by the Deputy Commissioner Sibsagar, Jorhat, by his order dated August 28, 1981, and instead of remitting the matter to the Board of Revenue for a decision afresh, the High Court had directed the Deputy Commissioner to settle the liquor shop with respondents Nos. 1 and 2 for the remaining period of the grant upto March 31, 1984.
The short question that arises in the appeal is whether it was proper exercise of jurisdiction by the High Court under article 226 of the Constitution to have issued a writ of mandamus ordaining the Deputy Commissioner to grant the licence.
Further, a question arises whether it was impermissible for the High Court to have embarked upon an inquiry into the facts and on a reappraisal of the evidence come to a finding contrary to that reached by the Board of Revenue based on appreciation of evidence that one set of rival claimants i.e. Parag Saikia and Prafulla Barua, respondents Nos. 1 and 2 were entitled to grant of such privilege in preference to the appellant under the note beneath r. 223(2) of the Assam Excise Rules, 1945 (for short 'Rules ').
The facts of this case present a rather disturbing feature.
Jorhat Country Spirit Shop No. 1 is a big excise shop within the meaning of r. 232 of the Rules.
Under cl.(a) thereof, the settlement of such a country liquor shop has to be made with a pair of tenderers constituting two or more, partners.
Five joint tenders were received in response to the notification issued by the Deputy Commissioner, Sibsagar, Jorhat calling for tenders of the country liquor shop for the financial year 1983 84.
The Deputy Commissioner, Sibsagar, Jorhat in consultation with the Advisory Committee constituted for that purpose as required under r. 208 by his order dated August 28, 1981 settled the shop with the two appellants Bishnu Ram Borah and Bipin Chandra Borah.
One set of the unsuccessful tenderers were respondents Nos. 1 and 2 Parag Saikia and Prafulla Barua.
Of them, Parag Saikia respondent No. 1 herein was held by the Deputy Commissioner to be a mere benamidar of a prominent businessman of Dibrugarh while respondent No. 2 Prafulla Barua was a student studying for his B.Sc.
degree and stying in a hostel at Golaghat, which is a place some 30 miles away from Jorhat.
The Board of 829 Revenue, Assam by its order dated February 11, 1982 upheld the settlement of the country liquor shop with the appellants.
Being aggrieved by the decision of the Board, two sets of unsuccessful tenderers viz, respondents Nos. 1 and 2 and the interveners Daya Ram Borah and Prabin Kumar Borah filed petitions under article 226 of the Constitution before the Assam High Court being Civil Rule Nos. 215 of 1982 and 1163 of 1982.
The High Court instead of taking up both the writ petitions together, heard and decided the writ petition filed by respondents Nos. 1 and 2 and by its judgment dated November 4, 1982 quashed the order of the Board of Revenue and remitted the appeal to the Board for a decision afresh in the light of the observations made by it.
The Board however by its order dated December 3, 1982 maintained the settlement of the country liquor shop with the appellants.
Thereupon, respondents Nos. 1 and 2 again moved the High Court under article 226 for appropriate writ, direction or order in the matter of grant of the liquor licence.
The High Court by its judgment dated May 7, 1983 quashed the order of the Board of Revenue and instead of remitting the matter to the Board for a decision afresh, issued a writ of mandamus by which it directed the Deputy Commissioner to settle the liquor shop with respondents Nos. 1 and 2 for the remaining period of the grant upto March 31, 1984.
While making the direction the High Court observed that 'in case it was found that respondents Nos. 1 and 2 were benamidars of anybody, it would be open to the settling authority i.e. the Deputy Commissioner to cancel the liquor licence '.
Further, it observed that 'the grant ' would be subject to the result of the decision in the writ petition filled by the interveners i.e. Civil Rule No. 1163 of 1982 '.
Before proceeding further, it is necessary to refer to certain provisions of the Assam Excise Act, 1910 (for short 'Act ') and the Assam Excise Rules, 1945 (for short 'Rules ') as amended from time to time.
Section 18(1) of the Act provides: "18 (1).
Prohibition of sale without licence, and the exceptions to such prohibitions No intoxicant shall be sold except under the authority and in accordance with the terms and conditions of a licence granted by the Authority prescribed in the rules framed under this Act.
" Rule 208 provides as follows: "Advisory Committee The Collectors should make settlements in consultation with an advisory committee.
" 830 Rule 223(2) provides: "In making settlement to any person preference shall always be given to the educated unemployed youths or to co operatives and co opt firms formed by such educated unemployed youth.
Preference shall also be given to the persons belonging to the more backward classes.
" Note: The term 'educated unemployed youth ' as mentioned in sub rule (2) of Rule 223 means a person not exceeding 35 years of age who has passed the H.S.L.C. or its equivalent examination and is without any employment." A few facts have to be stated.
Before the Board of Revenue passed its earlier order dated February 11, 1982 upholding the grant of licence by the Deputy Commissioner by his order dated August 28, 1981, the Board had called a report from the Deputy Commissioner, Sibsagar, Jorhat and had also before it a parawise comment of the Deputy Commissioner.
On an evaluation of the comparative merits and demerits and after eliminating the other sets of competitors ' the Board upheld the grant of licence made by the Deputy Commissioner in favour of the appellants.
On a careful consideration of the material on record and in the light of the confidential report made by the Deputy Commissioner, the Board held that respondent Nos. 1 and 2 were not suitable for the grant of licence for the country liquor shop.
As regards respondent No.1 Parag Saikia, the Board relying upon the report of the Deputy Commissioner held that he was a mere benamidar of a prominent businessman of Dibrugarh who was trying to corner big liquor shops at Jorhat and that it was evident from the report that he mostly resides at Gauhati enjoying the pay and perquisites provided by this businessman and that he was apparently not an unemployed person as he was resorting to highly expensive litigation for getting a liquor shop licence.
Further, the Board observed that he had the means not only to prefer appeals before the State Government and the Board of Revenue but that he had also repeatedly moved the High Court for the grant of appropriate writ, direction or order in the matter of settlement of a country liquor shop which showed that he had some strong financier behind him.
As regards respondent No.2 Prafulla Barua who was still a student studying for his B.Sc.
degree and staying in a hostel at Golaghat, the Board held that he could not be treated as an 'educated unemployed youth ' within the meaning of the note beneath r.223 of the Rules.
831 In reaching the conclusion that it did, the Board of Revenue observed: "In an excise settlement apart from the finance, there is also the question of general suitability of the tenders for a particular shop.
It came out during the hearing that this is one of the Sibsagar District.
As such substantial revenue of the State is involved in this shop and the suitability of the lessee has therefore to be examined very closely.
Under Rule 232 of the Excise Rules, no distinction can be drawn between the legal liabilities of the two partners who will be jointly and severally responsible for the management of the shop.
It is implicit in this Rule that the partners have to be more or less equal partners.
It is also implicit that the settling authority should be satisfied about their respective role, responsibilities, investments and involvements.
On a total consideration of the tender, the memo of appeal and the various affidavits and other documents filed on behalf of the appellant Parag Saikia, it appears doubtless that he is the dominant partner and his associate appears more as a show boy than even as a sleeping partner.
" The Board then went on to say: "Reverting to the partnership of the appellants it is observed that their respective financial investment and physical involvement as well as the sharing of the profit or loss is not known.
Indeed for the two persons living in two different Sub divisional Head quarter towns and having a substantial difference in age and present status, it is difficult to be definite that they have the needed concord and compatibility or unity and understanding for operating a major shop like this.
Again, in a double lessee shop what is needed is not just a second helping hand to a lessee but it requires persons of a minimum calibre from the point of intelligence, experience and businessman.
Parag Saikia by his own admission found that the firm set up by him or joined by him had failed or were non starters.
These considerations might have weighed with the Advisory Committee and the District Collector in not setting with Parag Saikia even any of the smaller shops for which he is known to have tendered 832 and Prafulla Barua being still an undergraduate student might have been considered unsuitable on that ground as well among others.
" The Board of Revenue accordingly held that respondent No. 1 Parag Saikia was a mere benamidar and therefore ineligible for the grant of licence while respondent No. 2 Prafulla Barua being still a student studying for his B.Sc.
degree was not suitable for grant of such privilege, and at any rate, he could not be encouraged when educated unemployed youths and other suitable tenderers were available.
It found considerable force in the submission that the Board should adopt it as a policy to discourage students from entering into liquor business.
Regrettably, the High Court while allowing the writ petition preferred by respondent Nos. 1 and 2 passed certain strictures which, in our opinion, should have been avoided.
It found fault with the Board of having acted on the report of the Deputy Commissioner observing that 'the Board could not act on the ipse dixit of the Deputy Commissioner '.
Further, the High Court held that there was no basis for the Board to adopt a policy to discourage students from entering into liquor business when there was no such legal bar.
Still further, it observed that merely because respondent No. 2 Prafulla Barua was a student of B.Sc.
class and was staying at a hostel at Golaghat which was about 30 miles away, it would not be difficult for him to carry on a partnership business at Jorhat where his cousin lives and further that he answers the description of 'educated unemployed youth ' envisaged in the note beneath r.223 of the Rules.
It recorded that respondent No. 2 Prafulla Barua had given an undertaking that he would give up his studies if the settlement of the liquor shop was made in his favour.
There was no warrant for any of these observations made by the High Court and the High Court was not entitled to enter into a question of fact as to whether or not respondent No. 1 Parag Saikia was a mere benamidar.
It is somewhat strange that the High Court should have taken an undertaking from respondent No. 2 Prafulla Barua that he would give up his studies if the settlement was made in his favour and observed that there was nothing in law to discourage students still undergoing their studies from entering into the liquor business and that he falls within he category of 'educated unemployed youth ' within the note beneath r.223 of the Rules 833 On remand, the Board of Revenue by its order dated December 2, 1982 reacted sharply to the observations and went on to say that the observations were uncalled for.
That apart, the Board observed that since the observations were on questions of fact, they could not be taken as binding on the Board.
It reaffirmed its earlier order upholding the grant of the licence to the appellants by the Deputy Commissioner.
As regards respondents Nos. 1 and 2, the Board relying on the report of the Deputy Commissioner held them to be unsuitable for the grant of licence.
It held that respondent No. 1 Parag Saikia was a mere benamidar of a mahaldar of Dibrugarh district who had cast his net far and wide in the Jorhat sub division and that respondent No. 2 Prafulla Barua who was still undergoing his studies for the B.Sc.
degree could not be regarded as falling within the category of educated unemployed youth appearing in the note beneath r.223 of the Rules.
Thereupon, respondents Nos. 1 and 2 again moved the High Court under Art.226 of the Constitution for appropriate writ, direction or order in the matter of grant of the liquor licence.
As was expected, the High Court strongly deprecated the action of the Board of Revenue defying the directions made by the High Court in exercise of its jurisdiction under article 226 of the Constitution and held that the Board had no other alternative but to decide the matter afresh in the light of the directions given by the High Court and expressed its regret that it had not done so at all observing: "Such an effort of subordinate tribunal is fraught with grave danger to the administration of justice known to the people of this country and had to be duly taken note of with great concern by all." The High Court then went on to observe that the Board had thrown all judicial decorum and discipline to the winds by disregarding its judgment.
It further observed: "A perusal of the impugned judgment shows that though the petitioners are entitled to preference under r.223(2) of the Assam Excise Rules, 1945, hereinafter the Rules, whereas the respondents land 2 are not, they have not been found suitable for settlement for these reasons; (i) Parag, one of the petitioners, is a benamidar; 834 (ii) the partnership in question is sham; and (iii) the petitioners are not financially sound to run the shop.
" After adverting to the well settled principles relating to the power of the High Courts under Art.226 of the Constitution to issue a writ of certiorari and observing that it was conscious of its own limitations in the matter, the High Court nonetheless observed that 'it could definitely set aside the order of an inferior tribunal like the Board of Revenue founded even on some factual conclusions if they were based on irrelevant or extraneous materials or be such which no reasonable person could have reached or if they were grounded on a total misconception of law '.
It held that a finding reached by the Board by disregarding the directions given to it by the High Court was in excess of jurisdiction.
It is regrettable that the Board of Revenue failed to realize that like any other subordinate tribunal, it was subject to the writ jurisdiction of the High Court under Art.226 of the Constitution.
Just as the judgments and orders of the Supreme Court have to be faithfully obeyed and carried out throughout the territory of India under Art.142 of the Constitution, so should be the judgments and orders of the High Court by all inferior courts and tribunals subject to their supervisory jurisdiction within the State under Art.226 and 227 of the Constitution.
We cannot but deprecate the action of the Board of Revenue in refusing to carry out the directions of the High Court.
In Bhopal Sugar Industries Limited vs Income tax Officer Bhopal, the Income tax Officer had virtually refused to carry out the clear and unambiguous directions which a superior tribunal like the Income tax Appellate Tribunal had given to him by its final order in exercise of its appellate powers in respect of an order of assessment made by him.
The Court held that such refusal was in effect a denial of justice and is furthermore destructive of one of the basic principles in the administration of justice based as it is in this country on the hierarchy of courts.
The facts of the present case are more or less similar and we would have allowed the matter to rest at that but unfortunately the judgment of the High Court directing the issue of a writ of mandamus for the grant of a liquor licence to respondents Nos. 1 and 2 cannot be sustained.
The High Court dealt with the finding of the Board as to whether or not the alleged partnership between respondents Nos.1 835 and 2 was genuine.
As regards the suitability in their ages which, according to the Board, would stand in the way of needed.
concord and compatibility, it felt that it was for respondent No.2 Prafulla Barua to decide whether respondent No.1 Parag Saikia was a suitable person with whom he should enter into a partnership.
Secondly, the High Court observed that it would not be difficult for respondent No.2 Prafulla Barua although he was a student studying for his B.Sc.
degree and staying in a hostel at Golaghat which was some 30 miles away from Jorhat to carry on the liquor business in partnership.
Thirdly, the High Court went into the question whether they had the requisite financial capacity to fulfil the requirements of r.346.
From all this, it is quite evident that the High Court was oblivious of the limitations of its own powers under Art.226 of the Constitution in the matter of grant of a writ of certiorari.
It was impermissible for the High Court to have embarked upon an inquiry into the facts to adjudge the suitability or otherwise of the rival pairs of claimants and upon a reappraisal of the evidence come to a finding contrary to that reached by the Board of Revenue.
There was nothing on record to show that the Board had acted in excess of jurisdiction or there was an error apparent on the face of the record which resuited in manifest injustice.
That apart, it was not a proper exercise of jurisdiction under Art.226 of the Constitution for the High Court to have issued a writ of mandamus ordaining the Deputy Commissioner to grant the liquor licence to respondents Nos.1 and 2 in preference to the appellants.
Although a writ of mandamus may be a necessary adjunct to a writ of certiorari, in the High Court was satisfied that a writ of certiorari had to be issued to quash the impugned order of the Board of Revenue on the ground that its order was vitiated by an error apparent on the face of the record, the proper course for the High Court to adopt was to have issued a writ of mandamus to hear and redetermine the appeal according to law: H.W.R. Wade 's Administrative Law, 5th edn., p.638.
The High Court was also in error in holding that the earlier order passed by the High Court remanding the case to the Board of Revenue contained a direction requiring the Board not to act upon the report of the Deputy Commissioner.
The fact that the Board had in the past in some other case viz. for the grant of liquor licence for Melan Country Spirit Shop not acted upon the report of the Deputy Commissioner against respondent No.1 Parag Saikia was not 836 a ground sufficient for ignoring the adverse report of the Deputy Commissioner against him in the present case.
It would be apposite to quote the report which reads as follows: "Jorhat town country spirit shop No.1 (with which shop we are concerned) is meant for joint lessee.
Just after the submission of the tender on 21.8.81 secret information was received to the effect that Shri Parag Saikia (one of the petitioners in the case) is in the private employment of a prominent businessman of Dibrugarh district who is also said to be benamidar of important C.S. shops and Shri Saikia resides in Gauhati for the greater part of the year enjoying all the perquisites of the employer, The secret information further indicates that the said benamidar of Dibrugarh district was trying to grab important shops of Jorhat Sub Division through Parag Saikia.
The matter was discussed in the Advisory Board which rejected the tender of the joint appellant.
" Further, the High Court had observed that the Board could not have relied upon the report of the Deputy Commissioner unless respondents Nos.1 and 2 were confronted with the same and respondent No.1 was allowed to have his say in the matter.
The responding of the High Court can hardly be supported.
In the first place, the Deputy Commissioner is the head of the administration of the district and is conversant with the local situation and has secret sources of information.
Normally the Board is entitled to rely upon the word of the Deputy Commissioner.
It is expected that the Deputy Commissioner would always act with a sense of responsibility.
Secondly, the report of the Deputy Commissioner was confidential in nature.
There was no question of the Board disclosing the contents of the report to respondents Nos. 1 and 2.
Further, respondents Nos.1 and 2 never made a demand for a copy of the report, and even if such a request was made the Board would have been fully justified in not furnishing the same.
Such a refusal would not amount to denial of natural justice for the obvious reason that the rules of natural justice must necessarily vary with the nature of the right and the attendant circumstances.
The grant of a liquor licence was not a matter of right but merely in the nature of privilege, Furthermore, the Board was entitled to call for a report of the Deputy Commissioner in an appeal of this nature.
837 We cannot also subscribe to the view expressed by the High Court that respondent No.2 Prafulla Barua who is a student of B.Sc.
class still undergoing his studies falls within the description of 'educated unemployed youth ' appearing in the note beneath r.223 of the Rules.
In our judgment, the expression 'educated employed youth has definite legal connotation.
It denotes a class of citizens who after completing their education are faced with unemployment R.223(2) read with the note embodies a rule of preference.
The question of grant of preference under the note beneath r.223(2) can only arise when other conditions as regards suitability of the rival tenderers is equal Besides, the construction placed by the High Court on the expression 'educated unemployed youth ' is manifestly erroneous.
By no stretch of imagination can a student still under going his studies in the university be regarded as having completed his education or being 'unemployed ' youth.
When a person is still pursuing his course of studies in a university, we fail to see any basis for treating him as an 'educated unemployed youth '.
The judgment of the High Court directing the issue of a licence to respondents Nos.1 and 2 being based on the rule of preference contained in the note beneath r.223 of the Rules cannot therefore be supported.
The judgment of the High Court also suffers from a serious infirmity.
As already stated, instead of remitting the matter to the Board of Revenue, the High Court issued a mandamus directing the Deputy Commissioner to make a grant of the licence to respondents Nos.1 and 2.
While doing so, the High Court made a direction that the grant of licence would be subject to the result of the inquiry as to whether respondent No.1 Parag Saikia was a benamidar and therefore not entitled to such grant.
Moreover, the High Court made the grant subject to the result of the writ petition filed by the interveners Daya Ram Borah and Prabin Kumer Borah which was still pending before it against the earlier order, of the Board dated February 11, 1982.
We fail to appreciate the making of a grant in favour of respondents No. 1 and 2 subject to the result of the inquiry as to whether respondent No.1 Parag Saikia was a mere benamidar.
If that were to be so, it would affect the validity of the grant itself.
Further, the procedure adopted by the High Court in separately dealing with the writ petition filed by respondents Nos.1 and 2 making a grant of the licence to them for the country spirit shop in question while the earlier writ petition filed by the interveners was still pending was not in consonance with law and rules of fairplay and justice.
838 Before parting with the case we must express our deep sense of anguish that there should have been this unseemly tussle between the High Court and the Board of Revenue, particularly the lack of restraint in the language used by the Board in its order dated December 3, 1982.
We also feel that the High Court was not right in criticizing the Board of Revenue in such strong language.
The use of harsh language does not redound to the credit of anyone.
There must be restraint at all levels as otherwise there can be no rule of law and our entire system of administration of justice will fail.
For these reasons, we set aside the judgment and order of the High Court, as a consequence whereof the order of the Board of Revenue dated December 3, 1982 will stand restored.
We hope and trust that the High Court will be able to dispose of the writ petition as expeditiously as possible.
The writ petition filed by the interveners shall also be heard and disposed of by the High Court along with this writ petition according to law.
There shall be no order as to costs.
H.S.K. Appeal remanded.

summary:
The Board of Revenue on a consideration of the material on record as to the suitability or otherwise of the rival pairs of claimants upheld the grant of a liquor licence made by the Deputy Commissioner in favour of the appellants.
It held that respondent No. 1 was a mere benamidar of a prominent businessman and respondent No. 2 being still a student studying for his B.Sc.
degree could not be treated as an 'educated unemployed youth ' within the meaning of the note beneath r. 223 of the Assam Excise 'Rules, 1945.
The respondent Nos. 1 and 2 and the interveners separately moved the High Court under article 226 of the Constitution.
The High Court instead of taking up both the petitions together: took: the writ petition filed by respondents Nos. 1 and 2 and on a reappraisal of the evidence came to the conclusion contrary to that reached by the Board.
It accordingly quashed the order of the Board of Revenue and remanded the matter to the Board for a decision afresh, in the light of the directions made by it.
The Board took serious exception to certain observations made by the High Court and held that the directions issued were nothing but mere observations and therefore it was not bound by it.
After hearing the parties, the Board maintained its earlier order confirming the settlement of the liquor shop by the Deputy Commissioner with the appellants.
Respondents Nos. 1 and 2 again moved the High Court under article 226.
The High Court passed strictures on the Board of Revenue for not having complied with its directions and on a consideration of the facts appearing came to the same 826 conclusion as before and quashed the order of the Board but instead of remanding the matter to the Board for complying with its earlier orders issued a writ of mandamus directing him to settle the country liquor shop with respondents Nos. 1 and 2 on condition that the grant would be subject to an inquiry as to whether respondent No. 1 was a mere be subject and also subject to the result of earlier writ petition filed by the interveners which was still pending.
In appeal, the two questions which arose were :(1) whether it was impermissible for the High Court to have embarked upon an inquiry into facts and on a reappraisal of the evidence come to a finding contrary to that reached by the Board of Revenue and upon that basis issue a writ of certiorari under article 226 quashing the order of Board.
And (2) Whether it was a proper exercise of jurisdiction by the High Court under article 226 to have issued a writ of mandamus ordaining the Deputy Commissioner to settle the country liquor shop with respondents Nos. 1 and 2.
Answering the first question in the affirmative and the second in the negative.
^ HELD : 1.
The High Court clearly exceeded its jurisdiction while issuing a writ of certiorari under article 226 of the Constitution in quashing the impugned order of the Board of Revenue to have embarked upon an inquiry into the facts and upon a reappraisal of the evidence come to the conclusion contrary to that reached by the Board of Revenue viz. whether or not respondent No. 1 was a mere benamidar.
[837 F G] 2.
It was also not a proper exercise of jurisdiction under article 226 for the High Court to have issued a writ of mandamus directing the Deputy Commissioner to grant the liquor licence to respondents Nos. 1 and 2 in preference to the appellants.
Although a writ of mandamus may be a necessary adjunct to a writ of certiorari, if the High Court was satisfied that a writ of certiorari had to be issued to quash the impugned order of the Board of Revenue on the ground that its order was vitiated by an error apparent on the face of the record, the proper course for the High Court to adopt was to issue a writ of mandamus to the Board to hear and redetermine the appeal according to law.
[835 E F] HWR Wade 's Administrative Law, 5th edn., p. 638, referred to.
The construction placed by the High Court on the meaning of the expression 'educated unemployed youth ' appearing in the note beneath r. 223 of the Rules is apparently erroneous.
When a person is still pursuing his course of studies in a university, one fails to see any basis for creating him as an 'educated unemployed youth.
The expression 'educated unemployed youth, in the note beneath r. 223 has a definite legal connotation.
It denotes a class of citizens, who after completing their education, are faced with the growing problem of unemployment.
[837 B D] 827 4.
The direction made by the High Court while issuing a writ of mandamus to the Deputy Commissioner ordaining him to grant the liquor licence to respondents Nos. 1 and 2 that the grant would be subject to the result of an inquiry as to whether respondent No. 1 was a mere benamidar and also subject to the result of the writ petition which was filed by the interveners and still pending, appears to be unwarranted.
If that were to be so, it would affect the validity of the grant itself.
It was also irregular for the High Court to have taken an undertaking from respondent No. 2 who was a student still undergoing his studies for B.Sc.
degree in a university that he would give up his studies in case he was given the liquor licence.
The procedure adopted by the High Court in separately hearing the writ petition filed by respondents Nos. 1 and 2, while the writ petition filed by the interveners was still pending, and in not taking up both the writ petitions together, and directing the Deputy Commissioner to issue a liquor licence to respondents Nos. 1 and 2, was not in consonance with the procedure established by law and clearly in denial of rules of fairplay and justice.
The Board of Revenue was bound to comply with the directions made by the High Court and it was not open to it to say that they were mere observations and not directions issued.
The refusal of the Board to comply with the directions of the High Court issued under article 226 was in effect a denial of justice and also destructive of one of the basic principles in the administration of justice based as it is in this country on a hierarchy of Courts.
Bhopal Sugar Industries Limited vs Income tax Officer, Bhopal.
[1961] 1 S C.R. 474 relied on.


judgement:
ition No. 5545 of 1980.
(Under Article 32 of the Constitution of India.) Pankaj Malik and Mr. R. P. Singh for the Petitioners.
section N. Kacker and Rathin Das for the Respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
True to the spirit and letter of our Constitution and in fulfilment of the promises made by our national leaders to the people of India, the Government sought to introduce agrarian 851 reforms so as to reserve the lands to the tillers of the soil giving marginal relief or compensation to the erstwhile landlords or tenants in chief, through various statutes passed by almost all the States in the country.
I n order to hasten and safeguard the agrarian reforms the Constitution takes full care by virtue of the insertion of the directive principles of Stale policy contained in part IV, which are undoubtedly the heart and soul of our Constitution and have in fact been complied with in a variety of spheres.
Ceaseless attempts made by the landlords to challenge the constitutional validity of the aforesaid reforms met with little success.
Having failed in their attempts to undo the socialist reforms passed for the purpose of building an egalitarian society and bringing about marked improvement in the condition of the poor suffering tillers by the various Acts passed by the States, the landlords left no stone unturned and were always on the look out for an opportunity to ' seize the lands from the tenants on one pretext or the other through manpowers muscle power or money power.
Nevertheless, the constitutional validity of most of the Acts came up for decision in the High Courts and in this Court and by and large each one of them was held to be constitutionally valid, thus setting at naught the attempts of the landlords to take back possession of the lands which should have been given to the tillers of the soil long before.
The landlords were thus unable to get hold of any opportunity to pounce upon the land which went and should have gone to the actual tillers of the soil.
Thereafter, some of the bigger landlords tried through their dextrous methods aud legal ingenuity to defeat the laudable social endeavour of the Government by making a show of the so called complete destruction of their assess and properties reducing them to starvation.
This case is yet another glaring illustration of such an adroit attempt made by the tenants in chief to deprive the actual tillers of the rights conferred on them by the Land Reforms Acts of West Bengal passed from 1953 to 1977.
In view, however, of the modern trends of the decisions of this Court, which always made a practical and pragmatic approach to any progressive step taken by the Parliament, the attempts of the landlords ultimately proved to be a grotesque failure.
Coming now to the facts of the case, a brief history of the admirable object of the agrarian reforms introduced by the Government of West Bengal may be necessary as a prelude to our discussion of the subject, In fact, all the contentions raised before us stand 852 concluded by a recent decision of this Court as we shall show hereafter.
Not content with the addition of Art.31C of the Constitution which was introduced by the constitution (25th Amendment) Act, 1971, the petitioners chose to call into aid the decisions of this Court in Minerva Mills Ltd. vs Union of India & Ors and Waman Rao & Ors.
vs Union of Indian & Ors, which also proved to be an exercise futility because the ratio of, these cases is in no way of any assistance to the petitioners.
In the instant case, we are concerned with agrarian reforms achieved from time to time by the Government of West Bengal in order to improve the lot of the tillers of the land by giving them as many facilities as could be possible within the framework of the law and the Constitution.
Having realised that the West Bengal Estates Acquisition 'Act, 1953 (hereinafter referred to as the '1953 Act ') could not be challenged the landlords waited for future litigations swoop down on the validity of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the '1955 Act ') as amended by the West Bengal Land Reforms (Amendment) Act, 1972 and the West Bengal Land Reforms (Amendment) Act, 1977 (for facility, to be referred to as the 'Amendment Act of 1972 ' and 'Amendment Act of 1977 ' respectively).
In the first round which was the subject matter of a decision of this Court Sri Sri Kalimata Thakurani and Sri Sri Raghunath Jew & Ors. etc.
vs Union of India & Ors.
to which one of us Fazal Ali, J.) was a party, this Court negatived the constitutional objections and contentions raised by the landlords against the reforms introduced by the 1955 Act and the 1972 and 1977 Amendment Acts.
Unfortunately, however, there appears to be some small lacuna in the above judgment which was unhesitatingly exploited by the petitioners so as to attempt to destroy the progressive amendments of 1972 and 1977 particularly taking advantage of certain observations made in that case to which we shall come later.
To begin with, in the 1953 Act which was enforced with effect from 12th February, 1954, Section 4 introduced a more or less radical reform for the benefit of the actual tillers by abolishing the rights of 853 the intermediary (ex landlords).
By virtue of this section all estates and the rights of every intermediary was to vest in the State free from all encumbrances from a date mentioned in a notification issued by the Government.
In order, however, to be just and fair to the erstwhile landlords they were conferred the status of raiyats or tenants.
By virtue of section 6 they were entitled to retain certain categories of lands like lands comprised in home steads or ' appertaining to buildings and structures, etc., of non agricultural land in khas possession.
Section 6(d) expressly provided that so far as agricultural land in khas, possession was concerned it would not exceed twenty five acres in area to be chosen by the landlord.
No serious grievance was made before us regarding the provisions of sections 4 to 6 excepting that the ceiling of twenty five acres was not sufficient for the landlords to make both their ends meet and enable them to earn their livelihood Such a plea has to be stated only to be rejected because the landlords who had huge lands comprising home stead lands or those appertaining to buildings or structures and non agricultural lands in khas possession were not at all touched by the 1953 Act.
In these circumstance therefore, we do not take any serious notice of this grievance which in fact was not pressed before us.
Realising the current trends in the social, approach of the agrarian reforms made by the courts, the counsel for the petitioners confined his arguments to three infirmities from which the 1953 Act and the 1972 and 1977 Amendment Acts suffered.
However, during the course of arguments the challenge remained confined only to certain specific amendments made by the 1972 and 1977 Amendment Acts and the points raised before us may be summarised thus: (1) that the total ceiling area allowed to be retained by the 1953 Act in respect of agricultural land in khas possession of the raiyats was drastically reduced, (2) that although the status of raiyats was conferred on the erstwhile landlords which was heritable and transferable, the institution of bargardars was introduced in order to enable the raiyats to cultivate their lands on a 50:50 basis, and ' (3) that while the Amendment Act of 1972 had given a right to the raiyats to resume the lands given to the 854 bargardars for their personal cultivation, the subsequent amendments took away this right and made the right of the bargardar both heritable and transferable causing serious detriment and prejudice to the raiyats.
We now proceed to refer only to those provisions whose constitutional validity has been seriously challenged by the petitioners.
It appears that by the 1972 Amendment Act certain changes were made and a reference was made particularly to section 14M which may be extracted thus "14M. Ceiling area (1) The ceiling area shall be, (a) in the case of a raiyat, who is an adult unmarried person, 2.50 standard hectares; (b) in the case of a raiyat, who is the sole surviving member of a family, 2.50 standard hectares; (c) in the case of a raiyat having a family consisting of two or more but not more than five members, 5.00 standard hectares; (d) in the care of a raiyat having a family consisting of more than five members, 5.00 standard hectares, plus 0.50 standard hectare for each member in excess of five, so, however that the aggregate of the ceiling area for such raiyat shall not, in any case, exceed 7.00 standard hectares, (e) in the case of any other raiyat, 7.00 standard hectares; (2) Notwithstanding anything contained in sub section (1), where, in the family of a raiyat, there are more raiyats than one, the ceiling area for the raiyat, together with the ceiling area of all the other raiyats in the family shall not, in any case, exceed, (a) where the number of members of such family does not exceed five, 5.00 standard hectares; 855 (b) where such number exceeds five, 5.00 standard hectares, plus 0.50 standard hectare for each member in excess of five, so, however, that the aggregate of the ceiling area shall not, in any case, exceed 7.00 standard hectares.
(3) For the purpose of sub section (2), all the lands owned individually by the members of a family or jointly by some or all the members of such family shall be deemed to be owned by the raiyats in the family.
" It was submitted that the drastic reduction of the area of the raiyat has been reduced to 2.50 standard hectares being the minimum and 7.00 standard hectares being the maximum according to the nature of cases mentioned in cls.(a) to (e) of section 14M(I) and cls.(a) and (b) of section 14M(2), as extracted above, which worked serious injustice to the tenants.
A strong exception was taken to the amendment of s.17 of the 1955 Act particularly the substitution of s.17.(c) and the various provisos to that section.
The validity of s.17(6) was also challenged on the ground that the legislation was confiscatory.
The provisions of the proviso to cl.(8) of s.2 added by the 1977 Amendment Act to the 1955 Act was seriously assailed.
The said proviso runs thus: "Provided that such person or member of his family resides for the greater part of the year in the locality where the land is situated and the principal source of his income is produced from such land.
" A similar challenge was made to the addition of s.21B in the 1955 Act by the 1977 Amendment Act.
On similar grounds the aforesaid provisions were also challenged in the decision of this Court in Sri Sri Kalimata Thakurani 's case (supra) which did not meet with any success.
It was, however, pointed out by the counsel for the petitioners that this Court did not accept the arguments of the petitioners in that case because it was under an erroneous impression that the 1955 Act and the Amendment Acts of 1972 and 1977 were added to the Ninth Schedule in the Constitution of India and were 856 therefore, immune from challenge.
To some extent the counsel is right in his statement that such an inadvertent mistake has crept in due to oversight because the 1955 Act and the Amendment Acts of 1972 and 1977 were added to the ninth Schedule by the 4th Amendment of the Constitution of 1976 being entry numbers 181 to 185.
Hence, it could, be reasonably argued that the constitutional validity ' of the provisions, mentioned above, was justiciable and could be gone into.
Before dealing with these arguments it may be necessary to extract certain portions of the decision of this Court in Sri Sri Kalimata Thakurani 's case (supra) where this Court after dealing with the various provisions ' observed thus: "In the instant case, it is clear that the 1955 Act as also the Amendment Act of 1972 were added to the Ninth Schedule, being entry Nos. 80 and 81, prior to April 24, 1973.
In these circumstances, it is manifest that the aforesaid Acts are completely immune from challenge on the ground that they are violative of any of the rights enshrined in Part III of the Constitution.
The learned counsel for the petitioner, therefore, was fully justified in making the concession before us.
" The error is undoubtedly there but neither the counsel for the petitioners nor the counsel for the respondent drew our attention to this omission.
Even if the Acts were not included in the Ninth Schedule their constitutional validity could not be questioned because this Court has clearly held in Sri Sri Kalimata Thankurani 's case that the provisions are otherwise reasonable and give full effect to the pragmatic and socialistic approach, where the following observations were made: "It would be seen that s.17 permits the cultivator to terminate the Cultivation of the land by bargardar and resume possession under his own cultivation if the conditions mentioned in clauses (a), (b) and (d) of sub section (l) of section 17 are satisfied.
Clause (d) may be extracted thus: "That the person owning the land requires it bonafide for bringing it under personal cultivation." "Thus, the cultivator has a, right to get back the land for personal cultivation if he requires it for his bona fide 857 use and proves the some to the satisfaction of the authority appointed under s.17(1).
" Referring to some of the provisions of the 1972 Amendment Act this Court held that the provision by which the right of bargardar was protected and made heritable could not be challenged as being either unconstitutional, unreasonable or arbitrary. ' But this Court made some observations which were in favour of the petitioner and which may be extracted as follows . "But when the Bargardor on his, own volition surrenders or abandons the land, there is no reason why the tenant should not be allowed to resume ' cultivation and instead be compelled to get the land cultivated by some other person nominated by the authority concerned under s.49 of the 1955 Act.
This provision therefore appears to us to be extremely harsh and works serious injustice to the rights of the tenants particularly after the ceiling are of the tenant has been considerably reduced by the Amendment Act of 1972.
Thus, the tenant having a small area guaranteed to him for his unit, he should have at least fuller and more effective rights to get that area cultivated by him or even 'by a bargardar of his choice subject to resuming the same, if the bargardar surrenders or abandons the land. .
Unfortunately, however, though the provisions of sub sections (3), (4) and (5) of s.20B, which is only a penal section) perilously border on arbitrariness and amounts to serious curbs on the fundamental right of the cultivator to pursue his occupation, we cannot however strike down these provisions because they are contained in the Amendment Act of 1972 which has been placed in the Ninth Schedule prior to April 54, 1973, and therefore fall within the protective umbrella and are immune from challenge.
" A capital was therefore made out of the above observations in Sri .
Sri Kalimata Thakurani 's case.
Reliance was also placed on a decision of this Court in Sasanka Sekhar Maity & Ors, v Union of India & Ors where A.P. Sen, J., speaking for the Court, made the following observations: 858 In order, therefore, to reconcile the fundamental rights of the community as a whole with the individual rights of the more fortunate section of the community, it was fundamentally necessary to make the impugned legislation to secure to a certain extent the rights of that part of the community which is denied its legitimate share in the means of livelihood.
"The broad objectives or any, legislation relating to agrarian reforms are materially four, viz., (I) to maximise the agricultural output and productivity, (2) a fair and equitable distribution, of agricultural income, (3( increase in employment opportunities, and (4) a social or ethical order.
Though the abolition of the zamidari system in the State of West Bengal was an important step forward, the feudal structure remained so far as the peasants were concerned.
These objectives have been achieved through progressive legislation " These observations put the petitioners completely out of court demolish the contentions advanced before us.
The four objectives mentioned by Sen,J. in the passage extracted above are clearly brought out and implemented by virtue of the impugned amendments in the 1955 Act.
So far as the decision in the case of Sri Sri Kalimata Thakurani (supra) is concerned, in view of the crystallisation of the law in Minerva Mills, Waman Rao (supra) and Sanjeev Coke Manufacturing Co. vs M/S. Bharat Coking Coal Ltd. & Anr.
cases which have been followed and amplified is the recent decision of this Court in State of Tamil Nadu , etc vs L Abu Kavur Bai & Ors.
the matter is no longer res integra and even if there was an inadvertent error in the observations of this Court in Sri Sri Kalimata Thakurani 's case, the same has become redundant as the impugned provisions can be supported as squarely falling within the four corners of Art.39(b) of the Constitution as the intention of the Acts is to secure and promote the objectives contained in Art.39(b).
In this connection, we might extract a few observations from L. Abu Kavur Bai Ors (supra): 859 "In view of Art.31C, which gives protective umbrella against Art.31(2) also, the Court cannot strike down the Act merely because the compensation for taking over the transport services or its units is not provided for.
The reason for this is that Art.31C was not merely a pragmatic approach to socialism but imbibed a theoretical aspect by which all means of production, key industries, mines, minerals, public supplies, utilities and services may be taken gradually under public ownership.
management and control.
" It was further argued by the petitioners that there was no clear nexus between the Act and the objectives contained in Art.39(b).
We are, however, unable to agree with this argument because the question of nexus has been clearly expounded by this Court both in the Minerva Mills and Sanjeev Coke Manufacturing Co. 's cases as also in the case of L. Abu Kavaur Bai & Ors.
(supra) where a Constitution Bench of this Court, speaking through one of us (Fazal Ali,J.), made the following observations: D "Another important facet of Art.31C which has been emphasised by this Court is that there should be a close nexus between the statute passed by the legislature and the twin objects mentioned in clauses (b) and (c) of Art.39.
In approaching this problem and considering the question of nexus a narrow approach ought not to be made because it is well settled that the courts should interpret a constitutional provision in order to suppress the mischief and advance the object of the Act.
The doctrine of nexus cannot be extended to such an extreme limit that the very purpose of Art.39(b)&(c) is defeated If the nexus is present in the law then the protection of Art.31C becomes complete and irrevocable.
" It was also argued that by virtue of the various amendments made by the 1972 and 1977 Amendment Acts no process of distribution is involved.
This argument cannot be accepted in view of the observations of this Court by Krishna Iyer,J. in State of Karnataka vs Ranganatha Reddy & Anr.
where the learned Judge observed as follows: 860 "The next question is whether nationalisation can have nexus with distribution.
To 'distribute '; even in its simple dictionary meaning, is to allot to divide into classes or into groups and 'distribution ' embraces arrangement, classification, placement, disposition, apportionment, the way in which items, a quantity, or the like is divided or apportioned; the system of dispersing goods throughout a community. ' ' The above observations were followed and amplified in L. Abu Kavur Bai ' case (supra) thus: "It is obvious, therefore, in view of the vast range of transactions contemplated by the word 'distribution ' as mentioned in the dictionaries referred to above, it will not be correct to construe the word 'distribution ' in a purely literal sense so as to mean only division of a particular persons.
The words, apportionment, allotment, allocation, classification, clearly fall within the broad sweep of the word 'distribution '.
So construed, the word 'distribution ' as used in Art.39(b) will include various facets, aspects, method and terminology of a broad based concept of distribution In view of the aforesaid observations, the challenge to the impugned provisions of the Acts no longer survives.
Moreover, what could have been a better mode of distribution contemplated by Art.39(b) than to take away the surplus agricultural lands from the landlords and distribute it amongst the poor suffering landless tillers of the soil who had suffered for centuries as vassals slaves of the rich zamindars, The Acts have not touched the non agricultural homestead lands or buildings 'standing thereon but has taken over only a major portion of the agricultural lands, leaving with the landlords a portion prescribed within the ceiling limit, and distributed the excess to the tillers of the soil which along constitute their main source of sustenance and livelihood.
The claim of the raiyats (erstwhile landlords that the Acts amount to confiscation is absolutely untenable and, if we dare say, it amounts only to shedding of crocodile tears and an anathema or a taboo.
We are therefore convinced that the impugned amendments were manifestly and pointedly made for the purpose of giving effect to and securing the 861 Objects of Art.39(b) because these Acts clearly intended to distribute the material resources of toe community, viz., the agricultural lands to a large number of tillers of the soil.
in order to serve the common good of the aforesaid people.
The challenge to the impugned Acts and amendments must therefore fail as the amendments fall within the letter and spirit.
Of Art.39(b).
Finally, it was suggested that the provision of the amendment by which the raiyat is enjoined to reside In the village itself for a large part of the year seems to be harsh and arbitrary.
This argument does not hold any water for two reasons (1) that when once it is found that the Act is meant to promote and effectuate the objectives contained in Art.39(b), which is no doubt the case here, no other ground of challenge would survive because by virtue of Art.31C any Act which seems to secure the objects of Art.39(b) cannot be challenged being violative of article 14, 19 or 31.
(2) Secondly, the provision that the land owner should reside in the village is both salutary and beneficial, the object being that if a raiyat wants to cultivate his own land he must give his whole hearted attention to the said land instead of living the village and carrying on other avocations of life.
One of us, (Fazal Ali,J.) had clearly adverted to this aspect of the matter in Sri Sri Kalimata Thakurani 's case (supra) and observed h as follows: "The dominant object of the proviso is to abolish the age old institutions of absentee land holder by insisting that the cultivator to whom land is allotted must give full and complete attention to the soil and as a result of.
which there will be maximum utilisation of the agricultural resources which would increase production. .
It is obvious that the tenant has to remain in the village for the purpose of cultivating the lands.
sowing the seeds, growing it and harvesting it.
These processes would doubtless requires the presence of the tenant for a greater part of the year which is that the proviso predicates.
If 862 the tenant is permitted to leave the village for more than half the year then the very purpose of giving such a vast area for cultivation to a tenant will be foiled Moreover the proviso merely insists that the tenant should remain in the village or its periphery for 'greater part of the year ' which appears to be not only responsible but absolutely essential if the land has to be cultivated in a scientific manner in order to yield the maximum possible production, which would result in better and equitable distribution of agricultural products for the use of the people of the country.
" For the reasons given above all the contentions raised by the petitioners fail and the writ petition is dismissed but without any order as to costs.
S.R. Petitions dismissed.

dataset_name: IN-Abs

summary:
The petitioners, in this round of challenge assailed the validity of Section 14M, 17(c), 17(6) and 21 B of the West Bengal Land Reforms Act, calling to their aid certain observations made by this Court in Sri Sri Kalimata Thakurani and Sri Sri Raghunath Jain & Ors etc vs Union of India & Ors. ; and the decisions in Minerva Mills Ltd. vs Union of India & Ors.
[1981] 1 S.C.R. 206 and Waman Rao & Ors.
vs Union of India & Ors.
; The petitioners raised the following points: (i) that the total ceiling area allowed to be retained by the 1953 Act in respect of agricultural land in Khas possession of the Raiyats was drastically reduced; (ii) that although the status of Raiyats was conferred on the erstwhile landlords which was heritable and transferable, the institution of bargards was introduced in order to enable the raiyats to cultivate their lands on a 50:50 basis and, (iii) that while the Amendment Act of 1972 had given a right to the raiyats to resume the lands given to the bargardars for their personal cultivation; the subsequent amendments took away this right and made the right of the bargardar both heritable and transferable causing serious detriment and prejudice to the raiyats.
Dismissing the petitions, the Court.
^ HELD :1.1 The impugned amendments were manifestly and pointedly made for the purpose of giving effect to and securing the objects of Article 39(b) because these Acts clearly intended to distribute the material resources of the community viz, the agricultural lands to a large number of tillers of the soil in order to serve the common good on the aforesaid people.
The Amendments fall within the letter and spirit of Article 39(b) of the Constitution.
1 lie Acts have not touched the non agricultural home stead lands, or buildings of the Land owners standing thereon but has taken over only a major portion of the agricultural lands, leaving with the landlords a portion prescribed within the 850 ceiling limit and distributed the excess to the tillers of the soil which alone constitute their main source of sustenance and livelihood.
The claim of the raiyats (erstwhile landlords) that the Acts amount to confiscation is absolutely untenable and amounts only to shedding crocodile tears and an anathema or taboo.
[860 H; 861 A B; 860 G] 1.2 The error regarding the addition of Amending Acts as items of Entry in the Ninth Schedule was inadvertently crept in the decision of Sri Sri Kalimata Thakarani 's case.
Even if the Acts were not included in the Ninth Schedule their constitutional validity could not be questioned because the provisions are otherwise reasonable and give full effect to the pragmatic and socialistic approach as contained in Article 39(b) of the Constitution.
Sri Sri Kalimata Thakurani and Sri Sri Raghunath Jew and Ors vs Union of India & Ors.
[1981]2 S.C.R 950 Minerva Mills Ltd vs Union of India and Ors ; ; Waman Rao & Ors v Union of India & Ors ; Sanjeev Coke Manufacturing Co vs M/s Bharat Coking Coal Ltd and Anr , Sasanka Sekhar Maity & Ors, Union of India & Ors, ; , State of Tamil Nadu etc vs L. Abu Kavur Bai and Ors CA Nos 957 966 (N) of 1973 decided on 31 10 83 followed.
1.3 The Amendment Acts cannot be challenged as violative of the doctrine of nexus or involving no process of distributions; State of Karnataka v Rangnatha Reddy & Anr ; , Minerva Mills Ltd vs Union of India & Ors ; , Sanjeeva Coke Manufacturing Co. vs M/s Bharat Coking Coal Ltd and Anr , and State of Tamilnadu etc vs L. Abukavar Bai & Ors C.A. No. 957 966 (N) of 1973 decided on 31 10 1983 followed.
1.4 The provisions of the Amendment by which the raiyat is enjoined to reside in the village itself for a large part of the year cannot be said to be either harsh or arbitrary.
Sri Sri Kalimata Thakurani etc.
vs Union of India & Ors.
[1981]2 S.C.R. 950, applied.