'1240

SUPREME COURT- REPORTS [l958j.

., NAGENDRA NATH BORA & ANOTHER .·• . . v.

•. 'I February 7 . ', ~

.- THE .. COMMISSIONER OF HILLS 'DIVISIO~ _.-

.· ..

~ND- APPEA~S, ASSAM, A~D- OTHERS_

-·- : '; ·:

- (and connected appeals) : - . l ',.. . ·.· ..• . . . ' ' ' . ' ' . ~·: (BHAGWATit' B. P. SINHA~ JAFER I~IAM, J. L~ KAPUR I

: •. ' . .. ) . 'and GA~~N!; JR.A.G.ADKAR JJ.) \. ·--~. ' ·.· :' '~

_ High Court, Powers of-. vVrit of certiorari,. if can be issue, l. to quash an r, rror of fact appare1t , on the face of the .record-Judicia~ Supervision,· Scope of-Appellate , Authority if and. when _acts_ i1~ quasi-judicial. capacity-· Tes~-:-Plea of failure of .natzeral justice~ when can be ·entertai}£ed-Constitution of India, Arts. 226,· 2:27-· Eastern Bengal and :Assam Excise. Act, I9IO (E. B. & Assam Act I of.I9IO) as amendedby Ad. 23 of I955, s. 9 Rule 343 . : ·.

The High Court has no power under Art. 226 of the Con5titi.i'- tion to issue a writ of certiorari in order to quash an error of tact, even though it may be apparent on the face of the record. It can do so only where the error is one of law and that is apparent on the face of the record. 'Any error of law or fact which it can conect as a: court of appeal or revision cannot be a ground for the exercise of its power under that Article. ' . . H ari V islmu Kamath v. Syecl Alwed I shaquc a-n, l 'otlzers, [1955]

I S.C.R. II04, relied on.

Quem v. James Bolton, (r84r)'(r) Qucen.•s Bench 66, Ki1g Nat Belt Liqzors, Limited, [1922] 2 A.C. 128, Rex v. Nortlumb,; r land Compensation.. Appeal Tribunal, (1951) I K.B. 7II and Rex v_.

Nortlmmberlmtd Compensatiol~ Appeal Tribunal, (1952) I K.B. 338, ; referred to.

. . .

The jurisdiction of the High Court under Art. 226 of the Constitution is limited to seeing that the judicia~ or quasi-judicial tribunals or administrative bodies exercising quasi-juditial powers, do not exceed their statutory jurisdiction and correctly administer the law laid down by the statute under which they act. So long. as the hierarchy of officers and Appellate authorities created by a statute function within their ambit, the manner in which they do so can be no ground for interference. The powers of judicial supervision of the High Court under Art. 227 of the Constitution are not greater than those under Art. 226 and must be limited to seeing that the tribunal functions within the limits of its authority.

}Varyam Singh and another v. Amama!IJ and another~ [1954] S.C. R. 565, referred to.

Consequently, where the High Court in exercise of its powers under Arts. 226 and 227 of the Constitution interfered with

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I . s.c.It~ S.UPREI\fE COURT ; REPORTS 1241

. tain orders.made by th: Exise Appellate Authority under the

I9J8 cersam Excise Act a~ bcmg m excess of its jurisdiction on the As und that they were ';'itiated by errors of fact apparent on the lfagmdra Nath

f:e of the record, such tntrference was without jurisdiction and Bora 6- Another

the orders passed by thcHtgh Court must be set aside. . ·.

v. . . 1 Tha CommtssumBr Held further; that w 1ere an appellate Authority as in the fH'll D · . , . ' ' d h h" • ' 0 I .S

IUISJ01J nstaltt case, IS constitute t e 1hest authonty by the statute cS- Appeals Assam

or decidin~ as betveen . the c\lffiS Of rival parties, its powers and O; hers ' cannot be c1rcums; nbed o~ cn t be hehl to. have acted in excess of its powers or. w1thout JUn_sdlctlOn on considerations foreign to

the statute or .the rules. . . . . . . . . . .

Rainmt and Raman Ltd. v. The State of J.l!adra.s, [rgs6] S.C.R. zs6, referred to. . ' . ! .

In the absence of anything to show that the appellate Authority had contravened any rules of natural justice, which must be understood in the context of tl~ rules Jaid down by the statute itself, it would be wrong to say that there has been a :failure of natural justice simply because the .view it took of the

matter might not be acceptable to another tribunal.

New Prakas!J Transport .co. Ltd. v. New Suu::ama Transport Co. Ltd., [I957] S.C.R. g8, rehed on. · ' • The question vhether an administrative authority functions merely in .an administrative. or quasijudicial capacity .must be determined on an examination of the statute and its rules under

\vhich it acts, and there can be no doubt on such examination that the Authorities mentioned in s. g of the Eastern Bengal and Assam Excise Act, 1910, as amended by Assam Act 23 of 1953, are no mere administrative bodies and their orders are, therefore, amenable to the powers of control and supervision vested in the High Court by Arts. 226 and 227 of the Constitution. . CrviL APPELLATE . JURISDICTION: Civil Appeals Nos. 668; 669, 670 and 672 of 1957. • . Appeal by special leave from the judgment and order dated August 6, 1957, of the Assam High Qourt in Civil Rule No. 65 of 1957. · .

A. V. Viswanatha Sa8iri and. Dipa.k Datta Chudltur?J, for the appellants in C. As. Nos. 668 and 669 of 1957 and respondent No.2 in C.A .. No. 670 of 1957.

S. }Jf. Lahiri, Advocate-General for the State of Assam an? Naunit Lal, for the appellants in C.A. No. 6!0 of 19o7 and respondent No. 2 in C.A. No. 669 of 19o7.

1958. February 7; Tho following Judgment of the .Court was delivered by ' . ' . .. . . ..

:r95B ~SINHA J.-These appeals by special leave redirect. - ed aoainst the judgments and orders of the Assam Nagendra Nath H 1"gh° Court, exercising its powers under Arts. 226 and Bora 6- Another ...... . v. 227 of the Constitution, in respect of orders passed by The. Commisio"ne~ the Revenue Authorities under the provisions of the . of Hills Divisio11 Eastern Bengal and Assam Excise Act, 1910 (E. B.

"&Appeals~ Assam, and Assam Act I of 1910) (hereinafter referred to as

and Others the Act). They raise certain common questions of

Sinlla ]. constitutional law~ and have, therefore, been heard together, and will be disposed of by this Judgment • .

Though there are certain common features in the pattern of the proceedings relating to the settlement of certain country 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 sta.te them. ·

(I) Oivil Appeal No. 668 of 1957.

The two appellants Nagendra Na.th Bora and Ridananda Dutt are partners, the partnership having been formed in view of the Government notification dated November 30, 1956, amending rule 232 of the Assam E:!cise Rules, to the effect that the settlement of the country spirit shops which may be declared by the Government to be 'big shops', shall be made with two or more partners who shall not belong to the same family nor should be re1ated to one. another (vide correction slip at p. 106 of the Assam Excise l\Ia.oua.l,

1946). In accordance with the rules framed under the Act, tenders were invited by the Deputy Commissioner of SibsC;\gar, for the settlement of Jorhat country spirit shop for the financial year 1957-58 in December, 1956.

Tte appella!lts as rnembers of the' partnerhip aforesatd, subm1tted a tender in the prescrtbed form.

Respondents 3 and 4, Dharmesh war l(a.lita and Someswa.r Neog, respectively, also were amongst the tenderers. Tho Commissioner of Hills Division and Appeals, Assam, and the Commissioner of Excise, Assam, ar~ the first and the second respondents in th_is case. It 1s necessary to state at this stage that 1n respect of the financial year 1956·57, the shop in

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SUPREME COURT.REPORTS 1243

uestion was ordered b; r the first respondent as the I 9s8

xoise Appellate Authonty to be settled. with the first . . ellant Nagendra Na.th as an individual setting Nagelldra Nut!, app d f th D t c . . ' Bora & Anotller aside the or es ? e . epu y ommxsswr:ter and, the v.

Excise .CommtssiOnr. .The oher. c.omptltors for the n 8 Commissio?Jer settlem.ent of the sa1d shop being dissa.t1sfied with the of Hills Division orders of the first respondent, moved the Assam High cS- Appeals, A ssam, Court. and challenged . the validity of the settlement aud OJ hers made in . the. first . appellant's favour. , Similar writ

5;,1111 J. cases .. oha.llenging ... orders of settlement by the first respondent as the .•Excise Appellate .Authority, had been instituted in the High Court. All those cases were heard together, and the High Court, by its judgment dated May 22, 1956, quashed the orders passed by the firs~ respondent, chiefly on the ground that the Appellate , Authority .• had been illegally constituted.

The matter was brought by way of, special leave to this Court, and was heard by the Constitution Bench

which, by. its judgment dated January 31, 1957, decided that the constitution of the Commissioner of Hills Division . and . Appeals as the . ultimate appellate

Authority. under . the Act, wa.s not unconstitutionat The judgment of this Court 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, tu make several references to that decision which, for the ~1.ke

of brevity, we shall call the 'ruling of this Court,.· Tl.e result of the ruling of this Court, was that the determination by the Assam. High Court 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 Court, the directton of the Excise Commissioner tha.t the shop in

question be re-settled, was carried out, and the settlement was made with the third respondent aforesaid as a.n individual • . He continued in possession of the shop until February 26, 1957, on which date, the fi:rst appellant was put in possession as a result of the ruhng

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(I) [1957) S.C.R. 2.95

 I 1~8. ':. : . , . . • , , . ,

Nagendra N ath Bora c;. At•otller

of this Court. Even . sg, the first appellant could exercise his r1ghts as a lessee of the shop only for a, few months during the financial year ending March 31 1957. . . . . . '

Tile c_ommiso~'er For the financial year 1957-5 8, the Deputy CommisofA~lstDtAvmon sioner, in consultation with the local Advisory Com~ & rrea s, ssam, • 1 d th h . .

411d others mlttee; sett e e s op In q uest1on with the third and the fourth respondents aforesaid. The tender sub ..

Sinh&~ J. itte~ by the ppellants, :was not considered by the hcens1ng 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 beeri rendered null and vo1d as a result of the decision of the High Court; referred to above.

The appellants, as also others who were competnors for the settlement aforesaid, preferred appeals to the Excise Commissioner who set aside the settlement mad~ in favour of the respondents. 3 and 4, and ordered settle~

ment of the shop. with the appellants. The Excise Commissioner took into consideration the fact that

the order of the High Court, nullifying the proceedings before the first respondent, had been set aside by the ruling of this Court. The consequence of the order of this Court; was, as the Commissioner of Excise pointed out, that a supposed disqualification of the appellants as competent tenderers, stood vacated as a result of the first respondent's 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 Commissioner).

The first respondent dismissed those appeals and confirmed the order settling the shop with the appellants, by his order dated June 10, 1957.

Tho respondents 3 and 4, then, moved the High Court under Arts. 226 and 227 of the Constitution, for an appropriate writ for quashing the order passed by the first respondent. .The Ifigh Court, by its order dated August 6, 1957, quashed the aforesaid order of settlement in favour of the appellants by the first respondent. The High Court further directed that all the tenders be re-considered in the light of the observations made by it. The main ground of decision in the

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SUPRE~IE COURT REPORTS 1245

I!igh Court,: was that the. Ecie :\P, Pellate Authority had aoted 1n . . excess of Its JUrrsdrctiOn, and that its d b Nagendra Nath order was v1t1ate yerrors appaent on the face of Bora G- Another the record.· The prayer for a. c.ertJcate that .the case v, was a. fit one for appeal to this Court, ha vmg been Till Commissione., . refused by the High Court, the 'appellants obtained of Hills Division

· ialleave to appeal. . ·. . 6- Appeals, Assrzm. spec . . . and Others ' ·(II) Civil Appeal No. 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 La.kbiram Ka.lita and the first respondent Bhanuram Pegu, amongst others, had submitted their tenders for the settlement of the shop. The Deputy Commissioner, after consulting the Advisory Committee, settled the shop with the first respondent aforesaid. The appeals filed by the appellant and other disappointed tenderera, were dismissed . by the Excise Commissioner by his order dated 1\-Ia.rch 25, 1957.

Against the said order, the appellant and another party filed further appeals to the Commissioner of Hills Division and

Appeals, who, by his order dated ~Jay 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 oJ ·

the shop with effect from June 5, 1957. The first

repondent's application for review of the order afore- satd, stood dismissed on June 11, 1957. Against the

aforesaid orders of the Commissioner of Hills Division and Appeals, the first respondent moved the High Court under Arts. 226 and 227 of the Constitution, for a proper writ for quashing them. On June 17, .1957, the writ petition was heard e~ pa1'te, and the High Court isaued a rule to show cause why. a w1it as prayed for, . should not be issued. The rule wa~ made returnable within three weeks. The High Court also ma.de the further order in these terms :- .

Sinhca f.·

 t . . ''Meanwhile the status quo ante will be main- ~:uned ,, . ' !hia lst , order was mis-interprtcd by the first respo~

ent and his advisers o.s entitling them to be put 1n

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z95a possession of the shop, and it is stated .that .he first respondent. threatened the appellant to oust hlm from Nagendra Nath the shop on the. basis of the order of the High Court . Bora&- AtJotlleY Th II d th H. h 0

v. . . . quoted above.· . e appe ant move e 1g ourt The commissioner for : a clarification of. its order aforesaid. ·. The High of Hills Division Court"naturaUy observed that by .' maintaining status &-Appeals, Assam quo ante', the High Court meaut that whoever , was

. and Others in possession of he.~ sop on .June 17, 1957, will con-

Sinha J. . tinue to' be in possessron ur1ng the pendency. of the case in the High Court . . But, curiously enough, the Deputy;. Commissioner, 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 Commissioner was approached by the appellant to restore him to possession in view of the observation of the High Court, he asked the appellant to obtain further order from the High Court .. Thereafter, the appellant again moved the High Court on June 28,.1957, stating all the facts leading to his wrongful dispossession, and seeking relief in the High Court. No order was passed on that petition. Ultimatey, the High Court, by its order dated July 31, 1957, set aside the order of the Commissioner of Hills Division and Appeals. The appellant's prayer

for a certificate that the case was a fit one for appeal to this Court, having been refused by the High Court, he moved this Court and obtained special leave to appeal. - \ · .. ; .. . (III) Civil Appeal .No. 670 of 1957 • . ; .: .

This appeal is on behalf of the Commissioner of Hills Division and Appeals, Assam, against the judgment and order of the High Court relating to the J\furmuria shop which . is the subject-matter of Civil Appeal No. 669 referred to in the previous paragraph~ The first respondent to this appeal is Bhanuram Pe(J'u who is also the first respondent in Civil Appeal No. 669 of 1957. The second respondent is Lakhiram l(alita who is the appellant in Civil Appeal No: 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

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SUPRE~1:E COURT -REPORTS 1247

tq Civil Appeal No .. 669 of 1957: This appeal has been brought :vrt~ a v1ew to getting the legal position clarified lD vrew of the frequent appeals made to the Nagenrira Nath

t ' th tt f ttl f Bora 6- Anothe'f' appellan .m e ma . er o se ement o excise shops.. .v.

(IV) Civil Appeal No. 672 0; 1957. ·~' The Commi.ss.i~r . . . . . . . 'J ·• ·• of Hzlls Dnn.sum . This appeal relates to the Tinsukia. country spirit6- Appeals, Assam, shop in the district of Lakhimpur. The appellants . and Others.

Rfiplla. . l{.han and Mahibuddin Ahmad, are partners: and as -such, are interested in the settlement of the shop for the financial year 1957-58. This shop bad 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 Commissioner, after consultation with the Advisory Committee . . A number of unsuccessful tenderers filed

appeals before the Commissioner of Excise questioninO' the settlement with the first appellant and his fathe~ in respect of the year 1956-57. The Excise Commissioner set aside the settlement, and ordered a re.settlement. The first . appellant and his father filed an appeal before the Excise Appellate Authority, against the order of the. Commissioner of. Excise. The Appellate Authority allowed the appeal, and set aside the orders of the Commissioner and the Deputy, Commissioner. One Rafiqul Hussain, one of the competitors for the shop, filed a writ petition before the High Cour~

under Arts. 226 and 227 of the Constitution. Th1s 'Yrit application, along with other similar applications, was heard and decided by the High Court, as aforesaid, by its judgment da.ted ]flay 23, 1956 . . Against the judgment of the High Court, the first appellant and his father appealed tothis Court by special leave, with the result indicated above. During the pendency of the appeal i~ this Court in the absence of a stay order, the direction of the Commissioner for a resettle-· ment, was carried out. The Deputy Commissioner, with the unanimous advice of the Advisory Committee settled' the shop with the first appellant on July 25,

1956. The first respondent and some others peferred appeals before tho Commissioner of Excise, a.gamst the order aforesaid of the Deputy Commissioner.

As the

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195s special leave appeal.s to .thjs .curt '"ere pending !l''t - that time," .the Excise Commissioner, under a m18_ Natendra Nath apprehension of the effect of this Court's order refusing

Bora~ Another interim stay, set aside the Deputy Commissioner's

Ths com:issioner order, and directed the settlement to be ade with the of Hills Division first respondent. As thre was no Exmse Appellate

<JJ.Appcals. Assam, Authority functioning ·. t te time as a resul.t of the

and OJhrs decision, aforesaid, of the .High. Court, delanng the

Sinha J. constitution of such a.n Autbonty to be void, the.first appellant moved the High Court under Arts. 226 and 227 of the Constitution, on the ground that the order of the Excise Commissioner was vitiated byan error apparent on the face o~ the record in so far as he had misunderstood the order of the Supreme Court passed on the stay petition.

The High Court admitted the application but rejected the prayer for maintenance of status quo in the sense that the first appellant's possession be maintained. On the stay petition being rejected by the High Court, the first respondent took possession of the shop from the first appellant as a result of the Excise Commissioner's order in his favour.

The High Court ultimately dismissed the writ application by its order dated December 6, 1956. The appeal filed by the appellant and his father, already pending in this Court, was heard and determined as . aforesaid, in January, 1957.

This Court reversed the decision of the Hicrh Court and restored the status of

th~ Excise . Appellate Authority. As a. result of .the ruh!lg of th1s Court, the Excise Appellate Authority, by Its ordr dated February 25, 1957, directed delivery of pssesston back to the first appellant and his father, holdtng that the order of re-settlement and the rese.ttlement, itself, in pursuance of that order, were all Wiped out. Against the said order the first respondent move~ th~ High Court under Art~. 226 and 227 of the Constit!-ltiOn for quashing the order for delivery of J.?ORsess!on, ?n the ground of want of jurisdiction, and for ad tntenm stay. The liigh Court issued a rule and passecl. an order for interim stay on February 26, 1957 ..

The Illgh Coul't made the rule absolute by its order

atedf1\1a.rch 26, 1957, taking thf' view that the a.tte_n

wn o th&s Court had not been drawn to the intertm

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settlement Of the ShOp in the. abS6DC8 Of an Order Of

I958 stay.· H appears further that during the pendency of Nagmdra Nat" the appeal in tis Court, fresh settlement for the B()ra 6-AMih~ financial year 19~7 ·~8, took place towards the end of v. 1956 a.nd the beginning of 1957. The Tinsukia. shop The Commissioner

as 'settled with respondents 1 and 2 though . the of Hills Divisicm W 1 h d • tl b d cS< Appeals Assam appellants a so a JOin y su mttte a tender for the end OJiusrs ' same.

The appellants and other parties preferred a.ppeals against the said order of settlement made by Si"JJha J. the Deputy Commissioner.' The Excise Commissioner set aside the settlement by the Deputy Commissioner, 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 o.ppea.ls.

Accordingly, the appellants were given possession of the shop on June 7, 1957. The respondents 1 and 2 again moved the High Court for quashing the order of the Excise Appellate Authority, affirming tha.t of tbe Excise Commissioner, and also pro.yed for the Blatus quo being maintained. The High Court admitted the petition and ordered 'meanwhiLe, status quo ante be maintained.', Tills took place on June 10, 1957.

In pursuo.nc6 of the aforesaid order of the High Court, the appellants were dispossessed of the shop even though they had been put in possession only three dayd earlier.

This was done on a complete misapprehensio11 of the true effect of the order of the High Court maintaining Btatus quo ante. If the High Court had passed its order in a less sophisticated and more easily under. stood language in that part of the country, perhaps, the party in possession, would not have been dispossessed of the shop settled with it. The appellants moved

te High Court against the . Commissioner's order dtrecting possession to be given to the respondents 1 &od 2. The High Court issued a. rule but refused to grant stay of the operation of the order directing possession to be given. During the final bearing of te rule before the High Court, the appellants ago.xn moved a petition on July 5, 1957, for vacating the

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xgsB order of possession which was based on a misapprehen~ sion of the order ~£the High Court maintaining status NaGendra Nlh quo ante, but apparently, no order was passed because Bora & Anotm!r • h d. 1 d b t th v. possesston a .. a rea y . een gtven o e respondents Ths commissioter 1 and.2.J;.Daring the hearing of the rule by the High of Hills Divison Court; an unfortunate incident occurred, for which the

~Appeals, Assam, appellants cannot altogether be absolved. of. some and Othus "b'] t lt f h' h f th 1 . _ resp_ons1 1 1 y, . as a. resu o w 1c , one o e earned Sinha]. judges cqnstituting .the.Bench,· namely, Deka J. ex~ pressed his .unwillingness to proceed with the hearing of the : case. t The . hearing : had, therefore, to be adjourned. on July 15, 1957, until a new Bench could

pe constituted. The appellants renewed their appli- _cation already made on July 5, as. aforesaid, for un-:

doing: the .. unintended effect of the order of the High Court, that the status quo ante was to continue. . But on July 30, the Chief Justice directed that the matter

be, placed before a Division Bench. As there was no third. 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 Court rejected the application on grounds which cannot bear a close scrutiny .. The petitioners also approached the Excise App.ellate Authority, but it refused to re-consider the matter as the case was then pending before the High Court. Again on August 14-, 1957, a fresh application was made to the High Court, along with a copy of tha orders passed by the Excise Appellate Authority an~ the Deputy Commissioner, 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. Ou August 19, 1957, the matter was placed before the Chief Justice sitting singly, and ho directed a rule to issue on the opposite party cited before that Court,. to show cause. Apparently, the learned Chief Justice treated the matter as a new case and not as an off-shoot of the case already pending before the lligh Court. The High Court closed for the long vacation on September 2, and was to re-open on

Noveber 3, 1957. '.The vacancy of .the' third judge h d not been filled till then, and .as the appellants felt thant they had been wrongfully deprived of their right Nagendra Nath ... h It f Bora <So A11otlur to bold their s op,. as a resu .o .an erroneous inter. v. pratation of the o:der of the Htgh Court, passed on The commissiontrr June 10, as aforesaid, and as there was no prospect of of Hills Division the oase being . disposed . of quickly, the appellants <So App6als, Assam, xnoved this Court and obtained . special leave . 'to and Others

px:~~~ evidi{t f1:~~ .the tatement ·f fac~S iz~ c~nec-: Sir.lus ] . tion with each one of the appeals, set out above, _these cases have ollowed a common pattern. They conie from the' non-prohibited areas' in the State of Assam where sale of' country spirit' js 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! to larch 31. According to the present practice contained in Executive Instructions, intending candidates for licences, have "to submit tenders to the Deputy Commissioner for the Sadar

Division and to Huh-Divisional officers for Sub-Divisions, in accordance with the terms of notices published

for the purpose. Such tenders are treated as strictly confidential. Settlement is made by the Deputy Commissioner or the Sub-Divisional Officer concerned~ as the case may be, in consultation with a~ Advisory Committee consisting of 5local 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 Commissioner or Sub-Divisional officer, lies to the commissioner of Excise, and from an order of the

ommissioner of Excise to the Excise Appellate Autho~ r1ty whose decision becomes final. Section 9 of the Aot, dealing with appeal and revision, has undergone a series of amendments, and the section as it has

merge.d out of the latest amendment by the Amcndtng Act-The Assam Act 23 of 1955-which received the assent of the Governor of Assam on December 22, 19?5, and was published in the ssam Gazette. dted

, .

x95a December 28, 19 55, is in these terms: . . . . . .. . "9. (1) Orders passed under this Act or under Nagendra Nath any . rule made hereunder shall . be appealable as Bora <5o Anot!JtJr • . 'b d b h I h follows 10 the manner prescn e . y sue ru es as t e The comv:nissioncr State Government may make in this behalf- . of Hills Divison · (a) t~ the Excise Commissioner, any order passed ·

cS- Appeaol\Assam. by the District Collect_or or a Collector other than the

and t ers C ll t .. . .

District o ec or, : 1\'· ' . ·

Sinha J. ·

(b) to the Appellate Autnority appointed by tbe State Government for the purpose, any order passed by the Excise Commissioner •. ·

 (2) Iri cases not provided ' fo~· by clauses {a) and (b) of sub-section (I), orders passed under this Act or under any rules made hereunder shall be appealable to such authorities as the State Government may prescribe. · · · .. · . . (3) The Appellate Authority, the Excise Commissioner or the District Collector may call for the proceedings held by any officer or person subordinate to it or him or subject to its or his control and pass such . orders thereon as it or he may think fit.'' Rules 339, 340, 341 and 345 of the Assam Excise Manual, ha. ve, 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 Court in the State of Assam v.

A. N. Kidwai (supra), and need not be repeated here.

It . is convenient, first, to deal with the general questioilB of public importance raised on behalf of the appellant in CivH Appeal No. 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 appea.ls, are merely administrative bodies, and, ..

I - \.

; I

therefore~· their :orders .. whether passed in the first

I95B instance or on appeal, should not be amenable to the • d' t ' · d" Nagendra Nat!J writ JUriS 10 100 or supervisory JUris Ictwn of the Bora&- A1lotner Jiigh Court under Arts. 226 and 227 of the Constituv. tion. If the matter had rested only with the provi, Tile Commissioner sions of the Act, apart from the rules made under of 111/ls Division

8. 36 of the Act, much could have been said in support 6- Appurls, Assam, of this contention. As observed by this Court in the and Others case of Oooverjee B. Bltarucha v. The ExcisG Com- 5111,;; 1. missioner and the Chief Commissioner, Ajmer and "· otherB(1) there is no inherent right in a. citizen to sell

liquor. It has further been observed by this Court in the recent case of the State of Assam v. A. N. J(idwai, (supra), at page.30l as follows: ·

" A perusal of the Act and rules will make it clear that no person has any absolute right to sell liquor a.nd . that the purpose of the Act and the rules is to

control and restrict the consumption of intoxicating liquors, such control and restriction being obviously

necessary for the preservation of public health and morals, and to raise revenue." It is true that no one has an inherent right to settle~ ment of liquor shops, but when the State, by public notice, invites candidates for settlement to make their

tenders, and in pursuance of such a. notice, a numller of persons make such tenders ea.ch one makes a. claim for himself in opposition to the claims of the others, and the public authorities concerned with the settlement, ha.ve to choose from amongst them. If the ohoice had rested in the hands of only one authority like the District Collector on his subjective satisfaction a.s t-o the fitness of a particular candidate without his ordors being amenable to an appeal or appeals or ·. revision, the position may have been different. But 8• 9 of the Act has Ia.id 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 not, in expres., terms, require reasoned or?ers

to be recorded, yet, in the context of the subJect- .. lllatter of the rule~, it becomes necessary for the

(l) [19:51] S. C. R. 873, 83o.

z9sa several authorities to pass what are called 'speaking . orders '. .Where there is a ·. right vested in -an au tho ..

Nagendra Nath b t b 't d · t t ' · Bora & Another rity created y sttu e, e 1 a_ ~11!118 r3: IVe or quasiv. . . judicial, to her ~peals and !ev1s1ons,. It becoll!-es .its The cmmisoer duty to her JUdl?Ially, tha~_lS to say! 1!1 an . objeCtive

of HJlls DwJsJon manner, . Impartially and~, after g1v1ng reasonable

& AppdeaOlst; Assam. opportunity to the parties Concerned. in the. dispute,

an ,, ers • 'b £ 't I to place their .respect1 ve . cases e ore 1 • n this Sitiha J. connection;. the ·.observations of , Lord Haldane at p. 132, and of Lord Moulton at p. 150, in Local Government Board v. Atlidge (1), to the following effect are very apposite: .

Lord Haldane: "My Lor'ds, when . the duty of deciding an 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 come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice. But it does n.ot follow that the procedure of every such tribunal must be the same.', Lord Moulton: "In the present case, ho1'\rever, the Legislature has provided an appeal, but it is an appeal to an administrative department of State and not 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 mans that it must preserve a judicial temper and perform its duties conscientiously, 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 obBcrved because they are imposed by statute, and for no other 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 tho Courts, and it ia not their business to add to or

(I) [19f.5] A.C. 1'20. • \ . ..

take a.wy from thm~ ?r even to discuss whether in

I958 the opimon of the Indtvidual members of the Court Nagendra Nath they are adequate or not." Bora e. Anotl1er The legal position lias been very succinctly put in v.

Halsbury's Laws of England('}, as follows:- Th6 Commissiolw~ of Jltlls Division "1vioreover an administrative body, whose decie. Appeals. Assam. sion is actuated in whole or in part by questions of emd Others policy, may be under a duty to act judicially in the course of arriving at that decision. Thus, if in order inha J. to arrive at the decision, the body concerned had to consider proposals and objections and consider evidence, if at some stage of the proceedings leading up to the decision there was something in t.he nature of a lis before it, then in the course of such consideration and at that stage the body would be under a duty to act judicially. If, on the other ha.nd, an administrative body in arriving at its decision has before it at no stage any form of lis and throughout has to consider the question from the point of view of policy and expediency, it cannot be said that it is under a duty

a.t any time to act judicially. Even where the body is at some stage of the proceedings leading up to the decil:iion under a duty to act judicially, :he supervi sory jurisdiction of the Court does nl')t exteu•l to considering the sufficiency of the grounds for, or othPrwise

challenging, the decision itself." · .

The provisions of the Act are intended to safeguarrl' the int(>rest of the State on the one hand, by stopping, or at any rate, checking illicit distillation, and on the other ha.nd, by raising the maximum revenue consist. ently with the observance of the rules of temperance.

The authorities under the Act, with Sub-divisional

Officers at tho bottom and the Appellate Authority at the apex of the 'hierarchy, are charged with those duties. The rule~ under the Act and the executive instructions which have no statutory force but which are meant for the guidance of the officers concerned, enjoin upon those officers, the duty of seeing to it that shops are settled with persons of. character a:nd e~

per•ence in the line, subject to certam reservations 1n

(•) Vol. II. Jrd Edn., pp. s6S7

I . ;

. SUPRE~IE COURT REPORTS [1958]

I958 favour of tribal population. Except those general con. .· . . siderations, there are no specific rules. governing the Nagendra Natb . grant of leases or licences in respect of liquor shops, .

Bora &- AnoJiser • • t" d f 1 and 1n a certain con 1ngency, even raw1ng o ots, 18 Th6 con:;, issioner provided for, vide Executive Instructions 110 at p~ 174

of Hills Division of the 11anual. .. ' The words of sub-s. (3) of s. 9 as o- Appeals. Assam, amended set out above, vest complete discretion in

~.mdOthers the Appllate Authority, the Excise Commisioneror ·

SiiJIIa 1. the District Collector, to 'pass such orders thereon as it or he may think fit.' The sections of the Act do not 1nake 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 counsel . for the parties,· and give reasoned judgments, so as to enable the higher authorities to know why a particular choice has been made. That is also apparent from the -several orders passed by them in course of these few cases that are before us .

. But when wo come 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 lttys down that no appeal shall lie against the orders of composition, . thus, leaving all other kinds of orders open to appeal or revision. Rule 343 provides that every memo.

randum 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 copy of the order bing excluded. Rule 344: requires the memorandum of appeal to be accompanied by a certified copy of the order appea1ed against.

The memo .. randum of appeal has to be stamped with a requisite courtfeo stamp. Rule 3!3 was futther amended by theN otification dated niarch 14, 1U57, by o.dding the following proviso and explanations to tho.t rule:

"Provided further that the co1npetent Appellate Authority shall have the power to admit the appeal after the prescribe(! porioJ. of limitation when the appellant sa, tisfies the Appellate Authority that he had sufficient cause for not preferring the appeal \

[ f

' ~-• '.f' 4• I

within such period. . z95R Explanation (1). The fact that the appellant was Nagendra Nail• misled by any rde~, practic~ .or judgment of any Bora 6- Another Appellate A.utorrty _In_ aso.ertammg or computing the v., . prescribed period of hmrtatwn may be sufficient cause Th' omnus~er

•thin the meaning of this Rule. . of Hllls Dwr .. non Wl cS- Appeals, Assam, . Explanation (2) . . The fact that the Appellate . and Olhers Authority was una.ble. o function for any period by reason of any JUdlmal pronouncement shall . be Sinha J. sufficient cause within the meaning of this Rule.

 : The amendment shall be deemed to have been made on 23rd 1\rlay, 1956, and shall have retrospective effect since tha.t 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 Court 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 aucl revisions, was divided between the Assam High Court and the Authority referred to in s. 3(3) of that Ad . Appeals and revisions arising out of cases covered by the provisions of the enactments specified in Schedule ' A' to that Act, were to lie in and to be heard by the .• -\ --sam ....

High Coutt, and the jurisdiction to entertain appt>als and revisions in matters arising under the provision::; 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 a.rising 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 not necessarily mean that the_ Excis~ Appllte Authority was a Tribunal of co.ordmate J~IriSdiCtlOn with the High Court, or that that Authonty was not amenable to tho supervisory jurisdiction of the

x9sB High Court under Arts. 226 and ~27 of the Constitu-· . tion. But the juxtaposition of the two parallel highest . Na&endra Nat!• Tribunals, one in t•espect of pre-dominantly civil cases,

Bora 6-. A?Jother and the other, in respect of pre-dominantly revenue

The con~:isioeY cases {without attempting any cler cut line of demarof Hills Division cation), would show that the E.x~Jse Appellate Auto & Appeals, Assam, rity was not altogether an administrative body whiCh

andOt.hers had no judicial orquasi-judicial functions.

. Neither the Act nor the rules made thereunder, indicate the grounds on which the first Appellate Authority, namely, the Rxcise Commissioner, or the second Appellate Author:t.v (the Excise Appellate Authority), has to exercise hv- ()r its appel1ate or revisional powers. There is no in<.l.1 1ttion that they make any . distinction between the grou nds of interference on appeal and in revision. That be1n so, the powers of the Appellate Authorities in the. ro.Ltter of settlement, would be co-extensive with the ~· •wers of . the primary authority, namely, the District l .nector or the Sub-Divisional Officer.

See in this co1, ~"ction, the observations of the Federal Court in Lach7ilt -hwar

Prasad Shukul and others v. J(eshwar Lal ChauJJ~ ,, ri and others (1), and of this Court in Ebrahim Aboobaku. ,· and another v. Custodian-General of Evacuee Property(2 ).

In the latter case, this Court, dealing with the powers of the Tribunal (Custodian-General of the Evacuee Property), under s. 24 of Ordinance No. 27 of 1949, observed:

Sinlla ].

 '' Like all courts of appeal exercising genera.! jurisdiction in civil cases, the respondent has been constituted an appellate court in words of the widest amplitude and the legislature has not limited his jurisdiction by providing that such exercise will depend on the existence of any particular state of facts. " ·· 'fhus, on a review of the provisions of the Act and the rules framed thereunder, it cannot be said that the authorities mentioned in s. 9 of the Act, pass ·

purely administrative orders which are beyond the ambit of the Iligh Court's power of supervision and control. \Vhether or not. an administra-tive body or

(!) [1910] F.C.R. 84, 102,

authority functions as a purely administrative one or :r958 in a quasi-judicial capa0ity, must be determined in each case, on a.n examination of the relevant statute ~:;:n':~:'o~~:,. and the rules framed thereunder. The first contention v. raised on behalf of the appellant must, therefore, be The Commissioner overruled. . . of Hills Dillision Now, turning to the merits of the High Court's & Appeals. Assam. d d and Olhers order, 1t was conten e on behalf of the appellant _ that the High Court had misdirected itself in holding Sinha J. that the Appellate Authority had exceeded its jurisdiction in passing the order it did. Thera is no doubt 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, a.ots in excess of its authority vested by law, that is to say, the Act and the rules thereunder, its order is subject to the controlling authority of the High Court.

The question, therefore, is whether the High Court was right in holding that the Appellate Authority had exceeded its legal power. In this connection, it is best to reprodncet, in . the words of the High Court itself, what it conceived to be the limits of the appellate jurisdiction: " In other words, it is not for the A ppella.te Authority to make the choice, since the choice has already been made by the officera below; and it is not only where the choice is perverse or illegal a.nd not in accordance with the Rules that the A ppella.te Authority can interfere with the order and make its own selected (sio.) out of the persona offering tenders. If the Appellate bodies chose to act differently and consider themselves free to make their own choice of the person to be offered settlement irrespective of the recommendations of the Deputy Commissioner or the Officer conducting the settlement, the AppcJlate bodies will be obviously ex:cecding the jurisdiction, which they

possess under th'3 ln. w or going beyond the scope of their authority as contemplated by the Rules.'' .

In our opinion, in so circumscribing the powers of the :\ppolla.te Authority, the High Court has er!ed. See 1n this connection, the decision of this Court m Raman l6o

' .

r95s and Raman Ltd. v. The State of Madras (1). In that case this Court dealt with the powers of the State Nagendra Nath Govrnment, which had been vested with the final Bora&- Another • • h tt f t f t v. . athor1ty n t e rna er o gran o s age carriage per-

Th~ commissioner roits;· Thts Court held that as the State Government

of Hills Division had been constituted the final authority under the c;,. Appeals, Assam, Motor Vehicles. Act, to decide as between the rival

and Others l . t J: •t •t d · ld t b _ c a1man s .10r perm1 s, 1 s ectston cou no e Inter- Si?Jha 1. fered with under Art. 226 of the Constitution, merely because the Government's view may have peen erroneous. 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, could not be deprived of the plenitude of its powers by introducing considerations which are not within the Act or the rules. : ' .

It is true that the . Appellate Authority should not lightly set aside the selection made by the prhnary

Authority, that is to say, a selection made by a Sub- Divisional Officer or by a District Collector, should be given due weight in view of the fact that they have much greater opportunity to know local conditions . and local business people than the Appellate A utho. rity, even as the appeal courts are enjoined not to interfere lightly with findings of fact recorded by the original courts which had the opportunity of seeing witnesses depose in court, and their demeanour while deposing in court. But it is not correct to hold that because the Appellate Authority, in the opinion of the lligh Court, has not observed that caution, the choice made by it, is in excess of its power or without juris. diction. · ·. ·. . . . . · : .

The next ground of attack against the order of the lligh Court, under appeal, was that the HiCYh Court had erredin coming to the conclusion that there had been a ftilure of natural justice. In this connection, the Iligh Court has made reference to the several affi. da. vits filed on either side, and the order in which they

(I) [1956] S.C.R. 256. •. "' • '

hd been filed; and the use made of those affidavits or

Counter-affidavits. As already indicated, the . rules c Nagmdra Nalh make no provisions or the reception of evidence oral Bora& Anothtr or documentary, or the hearing of oral arguments, or v. even for .the issue of notice of the hearina

0 to the par- The Ccnnmi.ssioncr ties. concerned. ··:.The en tire proceeding~ are marked of Hill! Dtvision by a. oomp_lete lack of formalty. . The several au tho~ e. A!!;~:he~; sam,

dties: have been left to their own resources to make the best selection. o In this. connection, reff3rence may

b~ made to the observations of this Court in the 1 case oofNe-w.Prakash T"''ansport Co., Ltd.· v. New S.uwa.rna .Transport Co., Ltd: (1 ) • . In that case, this Court has , laid down that the rules of natural justice vary ,. with the varying constitutions of statutory bodies and the rules prescribed by the Act under which they function;

and the question whether or not any rules of natural justice hf!.d been contravened, should be decided not .under any pre-conceived notions, . but in the light of the statutory rules and provsions. In the instant case, no such rules have been brought to our notice, which could be said to have been . contravened by the Appellate Authority.

Simply because it viewed :a, case in a. particular light which may not be accopt.able to another independent tribunal, is no ground . for interference either under Art .. 226 or Art. 227 of , the

Constitution. - .

It roma.ins to consider the last. contention raisd .on behalf of the appellants : in . these cases, na.mely, 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 Court. In this connection, the following observations of the High Court are relevant :

"But the most glaring error on face of the order of the Appellate Authority is that it does not even refer to the report of the Deputy Commissioner on

which the Excise Commissioner had so strongly relied.

In my opinion, it was under the Rules obligatory on the

Apellate Authority to consider t; bat report before dis~ posmg of the appeal, and in failing to d~ so~ th~ officer

(I) [r?,7] S.C.Ro 98 .

• 0

Si11TJ<.J ]. \ ...

t d arbitrarily and :in excess of his powers as n I 95a ac e . , . . . _ .

Appellate Authority. · · .

Nagendra Nath It may be that during the prolonged hearxng of these Bora & Atwt/Jer s before the High Court were counsel for the v case . . . ·.The Com,;, issio"e' different parties placed their respehct1dve Vlew.points of Hills Division after making copious references to t . e ocuments, the

~Appeals. Assam. High Court was greatly impresed that the order of and Others settlement in one case (Murmur1a shop), made by the Deputy" Commissioner, as confirmed by the Excise Commissioner; was the right one at:td that the choice made by the Appellate Authority did not commend itself to the High Court~ It may further be that the conclusions of fact of the High Court 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 a's it stands, the High Court exceeded its powers in pronouncing upon the merits of a controversy which the Legislature has left to the discretion of the AppeiJate

Authority. But is that a mistake apparent on the face of the record, as understood in the context of Art. 226 of the Constitution ?

Tha.t leads us to a consideration 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 gr?unds to attract the supervisory jurisdiction of the H1gh Court under Art. 226 of the Constitution. The ancient writ of certiorari which now in Encrland is known as the order of certiorari could be iued on very limited grounds. 'fhese gronds have been discussed by this Court in the cases of: .

Parry & Co. v. Commercial Employee's Association, Madras (1),

Veerappa Pillai v. Raman and Raman Ltd., and otlbera (11),

Ibrahim Aboobaker v. Ouatodian Genetal of vacuee Property ('), .

T. C. Basappa v. T. 'f.lagappa (').

All these cases have been considered by this Court in

( J) {!9.52] S.C.R. '19. (2 ) [x9sz] S.C.R. .583.

(3) [t952] s.c.R. 6g6. <-t> [19551 1 s.c.R. 2.50.

) . 1

the case of Hari Vishnu Kamath v. Syed Ahmad z95a Jshaque and others (1}. Ven_katara.ma Ayyar J., speakinofor the full Court, la.td d lWn four propositions Nagendra Nath

bering on the character and scope of .the writ of Bora b v A"otller ce'ftiorari as est a blisbed upon the authorities. The The c0m,;1issioHer third proposition out of. those four, may be stated in of Hills Divion the words of that learned Judge, as follows : b Appeals, Assam •.

. i " The Court issuing a writ of certiorari acts in exerand Others oise of a. supervisory and not appellate jurisdiction.

One consequence of this is that the Court will not review findings of fact. reached by the inferior Court or Tribunal, evep if they be erroneous." .. . .. While considering the fourth proposition whether the writ can be issued in the case of a. decision which

was erroneous in law, after considering the recent Authorities, the same learned Judge, in the course of his judgment, at p. 1123, has observed as follows; .

"It may therefore be taken as settled that a writ of certiorari could be issued to correct 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 Court appears to have been under the i impression that the expression "error apparent on the face of the record" may also be in retipect . of findings of fact. For example, in Civil Appeal No. 668 of 1957, relating to J or hat shop, the High Court has observed as follows : · · "The Appellate Authority further re-inforced its suspicion by mentioning that Dharmeswar, his father and brother are summoned in connection with some complaint, but that was a matter purely extraneous, to speak the least-and it could have found that the oompla.int was filed after the settlement. The complaint had no reference to any offence of smuggling or the like as has been conceded. These were errors a.p~ parent on the face of the record." La.ter, in the course of the same judgment, it has been observed as follows: · ·. "This is another instance where I find that the Excise Appellate Authority has . misconceived its

(1) [1955]1 S.C.R. tiO.f.t uu.

Sinha].

I958 powerd aS SUCh and purported t~ decide te appeal . either on errors of record, speculations or on Irrelevant NagedrAa Ntth considerations, irrespective of an that happened in Bora 1.9'v na '''' 'the earlier stacres of the matter. It starts with an \

The Conuission Br app.arent ·. erro~ of record when it says that in the of Hills Division judgment of the Excise Commissioner it finds 'a 'clear a,. Appeals~ Assam, admission. that Shri Garela l(alita, father of Shri

and Others Dh'.

K l•t • t d

1 ' I armeswar a 1 a; xs a suspec e smugger. n

Sinha J.- fact,' there was no such dmission. It was held by the Commissioner ' on· the contrary that 'the learned Deputy Commissioner and men1bers of the Advisory Committee thought that the major son who bears an excellent character should not be punished for the alleged sin of his father'." ' ~

) .These excerpts from the judgment of the High Court

are not exhaustive,. but only illustrative of the observation that the H1gh Court 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 in voked in aid of the power of the High Court to quash an order of a subordinate court or Tribunal. The High Court would appear to have approximated it to an' error apparent on the face of the record' as used in r."l of 0. 47 of the Civil Procedure Code, as one of the grounds for revie\v of a judgment or order; but that is clearly not the correct position. Ordinarily, a mistake of law in a judgment or an order of a, court, . would not 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 contem .. plll.ted by r. 1 of 0. 47. But is the power of a. High Court under Art. 226 of the Constitution, to interfere on certiorari, attracted by such a mistake, and not the reverse of it, in the sense that it is onl v an error of law apparent on the face of the reco1:d, which can attract the supervisory jurisdiction of a Hicrh Court!

This question, so far as we kno'vv, has not b

0een raised in this form in this Court in any one of the previous docisioi1s bearing on tho scope and character of the writ of certiorari. It is, therefore, necessary to examine this question diroctly raised in this batch of appeals,

bcause,. in ach case, the High. Court has een invited to exer?tse t.ts powers un?er Art. 226, to IBsue a writ of ce1hora.n on the speClfio ground that the orders impugned before it, had been vitiated by errors ap- v. parent on the face of the record-errors not of law Ju Co1nm; ssi01rer but of fact. · . . • ), j Hills Division The ancient case of the Queen v." James ' Bolton (1) .s. Appdeaols,, Assam, 1 h . ' an t ers is treated as a landmar r on t e question of the power _ to issue a writ or order of certiorari. That was a. case Sinha J. in which an order of justices for delivering up a. house

to parish officers, . under a. statute, 'vas called up on certiorctri.: Lord Denman C. J. while discharging the rule, made the following observations ' in the course of his judgment, which have been treated as a.uthoitative and good law even now : · · ' . "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 pelow; in which this Court bas no jurisdiction as to the f

merits eit, her originally or on appeal. All that we can then do, when their decision is complained of, is to sec that tho cn.se was one within their jurisdiction, and tha.t 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 cannot reverse it." . .' . •

~Vhilc dealing with the argument at the Bar, complain- Ing of. the unsoundness of the conclusi01'1s reached f by he magistrates a.nd the hardships to be. ca use.d .by { thou erroneous order, the Court made tho followmg observations which are very apposite to the facts and

circumstances disclosed in the intant appeals, and

which all courts entrusted with the duty of administering law should bear in mind, so t.ha.t they ma.y not be dcflcted from the stra.ight path of enforcing the law, by considerations based on hardship or on vague

(I) [l8<f r] (1) Queen'; lJ<Incb p. 66, 72,76; t 13 English Repor~ . . . ' 105-f; 1057 1058.

r958 ideas of what is sometimes described as just.ice of t'he cause: ·. . . · . . NagetJdra Nath , . . "Beyond this we cannot go. The affidavits, being

Bora 6- Another,· · h t d h . .

v. . f before us, were used on t e arguf mhen ; an 1

_mucd was Th1 Commissiont!. said of the unasona.bleeS!J .!2~ _t -~ -c~!!c_ USIn ra wn

nf Hills Division\ by the magistrates, ana _of te hardshii? OD tfle defen- 6- Appeals, Assam,:da.nt if we would not review It, there he1ng no appeal

and Others ' • tu .c b ' / to the sesswns. u e 10r ear to ex press any optniOn on Si,-:;;]. ·~ that which is not before US! the propriety of he con-

: elusion drawn from the evtdence by the magistrates:

J they nd they alone were the copetent author.ity to :·!; draw 1t; and we must not constitute ourselves Into a

: ~Court of Appe.al where te statute does not make us l ·; such, because 1t has constituted no other . • , It is of much more importance to hold the rule _of la\v straight than, from a feeling of the supposed hard. ship 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 Council in the case of the King

v. Nat Bell Liqttors, Limited (1). In that case their Lordships of the Judicial Committee held that a con

viction by a magistrate for a. nonindictable offence, (cannot be quashed on certiorari on the ground that

1 the record showed that there was no evidence to sup ') port the conviction, or thn.t the maaist.rate had mist directed himself in considering the vidence. It was

'--further laid down that the absence of evidence did not affect tho jurisdiction of the magistrate to try the charge. In tho courae of their jud(J'ment, their Lord • . ships further observed that the Ia\~ laid down in Reg ·

v. Bolton (supra.) has never been seriously questioned in England, and that the same rules were applicable to other parts of tho Commonwealth, except in so far as they may have been modified by statute. They also obsorved that the decision in Re(J v. Bolton (supra.)

~· ul}doubtdly is a Indm.ark in the history of certioran, for It summarises 1n an impeccable form the principles of its appJication ...... , But latterly, the rule

(1) [l922J 2 A.C. 1 a B. .

Iid down in Bolton's ase, appear~ to have been slurr.

d over in some dcmded cases, 1n England which e urported to a.y down hat a writ o.r order of crtiora1i Nagendra Nat!J ould be obt~cd. oly If the rder 1m pugned disclosed Bora 6-vnoJhf on error of JUrLSdwtwn, that IS to say, complete lack Th c . ·. · .. , , . f , , , . <t ornm ISSI 01leY' of junsd.wtl_?D. or. e-:cccss o ]Ur1Sd10t10n or the refusal of 1/ills Division to exercise JUl'lSdlCtlOn, and not to correct a.n error of~ Atpeals, As.sam/ }a, w, even though apparent on the face of the record.: and OtJ, eu' The question was brought to a.. head in the case of Rex. y. Northumberland Oon:pen; satton Appeal 'J'ribunal (1) ..

It arose out of an apphca.twn for an order of certiorari for quashing a decision reached by the respo11dent_:_ Northumberland Compensation Appeal Tribunal,: Lord G9ddn.rd C. J. began his judgment by observing that the point involved in the case was "of the very

greates~ importance" which had "necessitated the examination of a large number of cases and cousidera-: tion of: the principles which apply to the doctrine of

certiorari -"., He further : obse, rved that certiarari is a. remedy of .a very special character. He, then, dis-: cussed the object and scope of the writ of certiorari

nd: the history of the jurisdiction as exercised in the English courts. He then dealt with the conteQtion directly raised for the determination of the court that

an order of certiorari, can issue only to remove .a. defect of jurisdiction and that it does not extend to removing an order out of the way of the parties on account of & mistake of law apparent on the face of the record.

The court then considered the relevant authorities, and came to the conclusion that it was wrong to hold that the ground of interference on certiorari, was only an error or e:tcess of jurisdiction, and. that it did no~

xtend . to correction of au error of law apparent on the face of the record. . .The Lord Chief Justice then pointed. out that the examination of the authorities

~?aring on the exercise of the power of certiorari,

Yleldd the result that it wa.s open to the High Court -to examine the record and to see whether or not there

Was an error of law a ppu, rent on the fo.ce of the rec?rd.

Te Lod Chief Justice concluded his observations ?t'1th these remarks :- ·. .

(1) [l9St]t KB. 71r.

J6t . . '

S1'nha'j: ~

t 95a _ ··, "The tribunal have told us what they have taken - into account, what they have disregarded, and the Nagendra Nath contentions which they accepted. They have told us Bora 0- Atolhcr ·. • • f h 1 d f . . th t th v. their view o t e aw, an we are o opinion a e The Commi$sipner construction which they . placed on this very compli. of Hills Division cated set of regulations was wrong."

d). Appeals, Assam, • d . . h 11 d d 1 th and Others This eciS!OO was c a enge , an on appea, e · Court of Appeal . dealt with t.his point in Rex v.

Sinha].

Northumberland Compensation Appeal Tribunal(!). The Court of Appeal affirmed the proposition laid down by the High Court that an order for certiorari, can be granted and the decision of an inferior court such as a statutory tribunal, quashed on the ground of an error of law apparent on the face of the record. Sing .. ( leton L~ J. in the course of his judgment, observed ) that an error on the face of the proceedings, which 'i in that case was an error of law, has always been re ..

1, cognized as one of the grounds for the issue of an order ( of certiorari. Denning L~ J. also, in the course of his

\ .. judgment, examined the question whether the High

Court could intervene to correct the decision of a statutory tribunal which is erroneous in point of la\v.

On an examination of the authorities from ancient times, the Lord Justice made the following o bserva .. tiona:-

" Of recent years the scope of certiorari seems to have been somewhat forgotten. It has been supposed to be confined to the correction of excess of jurisdiction, and not to extend to the corl'ection of errors of law;

and sc'Veral judges have said as much. But the Lord Chief J uatice bas, in the present case, restored certiorari to its rightful position and shown that it can be used to correct errors oflo.w which appear on the face of the record even though thoy do not 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 correct errors of law on the face of the record. It is only within the last century tha.t it has fallen into disuse, and that is onlv becu.uso there has, until recently, been little occasion for its exercise,

(•) [195:1] I K.B. 338.

' .

,~ Jf

NolV, with the advent f. many new tribunals, and the

I958 plain need for superv1s1on over them, recourse must once again be dha.Jd to his whell-tried means of control." :a:!e; t;!~~!

The other Lor ust1e w o took part in the hearing v. of . the appeal, :Morris L. J. also examined that Tlu commissiontr question and concluded as follows;- of Hills Division . "It is plain t!Iat .ceriorari will not issue as the'-.App"als, Assam. cloak of an appeal In dtsgmse. It does not lie in order /and Other$ to bring. up a:n order or deci.sion for reearing of the Sinha J. · issue raised m the proceedmgs. It exists to coiTect error of law where revealed on the face of an order or decision, or irregularity, or absence of, or excess of, jurisdiction where shown." . ·. It is clear from an examination of the authorities of this Court as also of the couxts in England, that one of the grounds on which the jurisdiction of the High Court on certiorari may be invoked, is an error of law a.ppa.rent on the fa.ce of the record and not every error7 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. j So far as we know, it has never been contended be-~ fore this Court that an error of fact, e\en though

apparent on the face of the record, could be a. ground for interference by the court exercising its writ jurisdic- ) tion. No ruling was brought to our notice in support / of the proposition that the court exercising its powers under Art. 226 of the Constitution, could 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 Jaw apparent on the fa<.:e of the record.' Is it everv error of law that can attract tho supervisory jurisdiction of the High Court, to quash the order impugned? This court, as obsered above, has settled the law in this respect by laymg down that in order to attract such jurisdiction, it is

essential that the error should be something more than

a. mere error of Io.w • that it must be one which is manifest on the face dr the record. In this respect, the law in lndin. and the law in Eugln.nd, are, therefore, the same.· It is also clear, on a.n examination of all

1958 the authorities of this Court and of those in Englad~ . ' - referred to above; as also those considered in the Nagendra NatA several judgments of this Court, that the Common Law Bora & .Attot!Jer . writ, . now . called order of certiorari, which was also

Tire co:~, issio~&e~ adopted by our Constitution, is not meant to take the

of Hills Divisiolf place of an appeal where the satute does nt cnfer a ?-Appeals, Assanll, right of appeal. Its purpose IS only to determine, on

a?Jd Othus -an examination of the record, whether the inferior

Si?Jh" J. -~

1tribunal h.as exceeded its. jurisdiction ?r has ·!lo~ · proceeded 1n accordance With the essential requirements of the law which it was meant to administer. }1ere formal or technical errors, even though 9f law, will not be sufficient to attract this extraordinary jurisdiction. : ' . :;- .. :, . ·:. The principle underlying the jurisdiction to issue a writ or order of certiorari, is no more in doubt, but the real difficulty arises, as it often does, in applying the

principle to the particular facts of a given _case. In

he judgments and orders impugned in these appeals, the High Court has exercised its supervisory jurisdiction in respect of errors .which cannot be said to be . errors of law apparent on the face of the record. If at .. all they are errors, they are erroJs in appreciation of

documentary evidence or atlidavitst errors in drawinO' inferences or omission to draw inferences. In othe~ :words, those are errors which a court sitting as a, court

of appeal only, could have examined and, if necessary, corre(.; ted .. As already indicated, the Appellate Autho- .rity had unlimited jurisdiction to examine and appreciate the evidence in the oxercise of its appellate or revisional jurisdiction. Section 9(3) of the Act, give.s it the power to pass such orders as it thought fit. ( hese. are words of vey great al_llplitude. The jrisdic

)' t10u of the Appellate Authority, to entertatn the . appeals, has never been in doubt or dispute. Only the

) manner of the exercise of its appellate jurisdiction was

1 in controversy. It has not been sho'~"n that in exercising

~ its powers, tho Appella, te Authonty disregarded any

. mandatory provisions of the law. Tho utmost that

has beeu suggested, is that it has not canied out certain .Bxocutive lustructions . . For example, it has been said , that the Appellate . Authority did not observe the

- .,

l I' ~· r

B.O.R.

SUPREME COUR1

1 REPORTS 1271

instructions that tribal people have to be given certain r9sa preferences, or, that persons on the debarred list, like smugglers, should be kept out (see p. 175 of the Nagendra Nd.Jh Bora 6- Another Manual). But all these are only Executive Instructions v. which have no statutory force. Hence, even assuming, Tile commissioner though it is by no means clear, tha.t those instructions of lhlls Division have been disregarded, the non-observance of those <So Appeals. Assam, instructions cannot ffect the power of the Appellate and others Authority to . make 1ts own selection, or affect the SinJia 1. validity of the order passed by it. r The High Court, in its several judgments and 6rdera,( h'as scrutinized, in great detail, the orders passed by the Excise Authorities under the Act. \Ve have not thought it fit to examine the record or the orders below i in any detail, because, in our opinion, it is not the 1 function of the High Court or of this Court to do so. \ The jurisdiction under Art. 226 of the Constitution is I limited to seeing that the judicial or quasi-judicial tribunals or .. administrative bodies exercising quasijudicial powers, do not exercise their powers in excess ( of their statutory jurisdiction, but correctly administer the law within the ambit of the statute creating them I or entrusting those functions to them. The Act has :·

created its own hlrarchy of officers and Appellate authorities, a.s indicated above, to administer the law ..

So long as those Authorities function within the letter and spirit of the law, tho High Court has no concern 7 With : the manner in .which those powers have been L exercised. In the instant cases, the High Court appears 1 •

to have gone beyond the limits of its powers under '

Arts. 2261l, nd 227of tho Constitution. . .· .

 . , J. In ontl of the cases, the High Court has observed -that though it could ha.ve interfered by issuing a. writ

under :Art. 226 of the Constitution, they would be .contont to utilize their powers of judicial superintenence under 'Art. 227 of tho Constitution vide its Judgment dated July 31, 1957, in appeals relating to Murmuria shop (Civil Appeal~ Nos. 669. and 670 of 1957). In exercise of that power, the H1gh Court set

side the order of the Appellate Authority, and directed lt to re-hear the appeal 'according to law in the light of the principles indicated in this judgment '. . :

z9sB A Constitution Bench of this Court examined tlie scope of Art. 227 of the Constitution in the case of Nagendra Nath W aryam Singh and another v. Arnarnath and another (1 ).

Bora cS- A'Jot!Jer v.

This Court, in the course of its judgment, made the

Tl1s Commissioner following observations at p. 571 : ' .

Qj H ills DivisiaJJ .·. ·." This power of superintendence conferred by

& Appeals, Assam, article 227 is, as pointed out by Harries C .. J. in Dalmia .

andOthers Jain Airways Ltd. v. Sukumar JY!ukherjee('~'), to be

Sinha 1. exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere

errors." It is, thus, clear tha.t the powers of judicial interference under Art. 227 of the Constitution with orders of judicial or quasi-judicial nature, a.re not greater than the powers under Art. 226 of the Constitution. 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 Constitution, the power of interference is limited to seeing tha.t the tribunal functions within the limits of its authority. Hence, interference by the High Court, in these cases, either under Art. 226 or 227 of the Constitution, wa.s not justified. . After having dealt with the common arguments more or less applicable to all the cases, it remains to consider the special points raised on behalf of the respondents in Civil Appoa.l No. 672 of 1957, relating, to the Tinsukia country spirit shop. It was strenuously argued that the appeal was incompetent in view . of the fact that the rule issued by the High Court,

was still pending, and that this Court does not ordinarily, entertain a.n appeal against an interlocutory order. It is true that this Court does not interfere in cases which have not been decided by the High Court, but this case baa some extraordinary features which attracted the notice of this Court when special leave

to appeal was granted. As already stated, the shop in question was settled with the appellants by the Excise Commissioner, and his order was upheld by the Appellate Authority.

Accordingly, the appellants,

(r) [rOH] S.C.R. 565. {l) A. L R {19$1) Cal I93•

had been pu~ in possessin ?f t.he shop on June 7, 19'11 )957. The H1gh Court, while 1ssmng the rule, passed an order on the stay application, which, as already Nagendra Nath • d h d b • d .

Bora 6- Anclher indicate , a.. • een mtsun erstood by the D1strict v.

Excise author1ttes, and the appellants were dispossess- The Commissioner ed a.nd the respondents 1 and 2 put back in possesof Hills Division sion, without any authority of I a w. This was a 6- Appeals, Assam,

flagrant interference with tho appellants' rights •ntl OJners a.rising out of the settlement made in their favour by si,.lla 1. the highest revenue authorities. The High Court had not and could not have authorized the dispossession of the persons rightfully in possession of the shop. . The appellants brought this flagrant abuse of power to the notice of the High Court several times, but the High Court felt unduly constrained to permit the wrong to continue. We heard the learned counsel for the respondents at great length a.s to whether he could justify the continuance of this undesirable and unfortunate state of affairs. It has . to be remembered

th&t the appellants, as a result of fortuitous circum stances, 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 courts, without any authority of law, and the High Court failed to right the wrong in time, though moved several times.

In the-se circumstances, we found it necessary to hear both the parties on the merits of the orders passed by the Commissioner of Excise and the Appellate Authority, in favour of the appellants, against which, the respondents had obtn.incd a rule. After having heard ,, both sides, we have come to the conclusion that no i grounds have been made out for interference by the I High Court, under its powers under arts. 226 and 22i of the Constitution. This case shares the common fate of tht! other on.ses before us, of having run through the entire gamut of the hierarchy created under the Act, read alonCl' with tho amendina Act and the rules thereunder. \V~ do not find a.ny gounds in the orders of the Excise Authorities which could attract the -." supervisory jurisdiction of tho High Court, there being /~ no error of law apparent on the face of the record, ,.,

f I

1958 or a defect . of jurisdiction in the Authorities whose orders have been impugned in the High Court. , We Nagendra Nath Bqr~ e. Another would, however, like to make it clear that we are

y. interfering with the interlocutory order passed by the

TTl~ Commis.si.oer High Court in this case because of its unusual and of Hills Dwrs10n exceptional features. It is clear that our decision on & .Appeals, Assam. tb • • t d . t. h th I .l ·- and Others e marn po1n s urge 1n. o o er appea s necessan y · leads to the inference that, even if all the allegations .

Si"ha J. made by the respondents in their petition before the Assam High Court are .aceepted as true, there would be no case whatever for issuing a rule. Indeed, the respondent found it difficult to resist the appellant's argument that, if the other appeals were allowed on the general contentions raised by the appellants, the dismissal of his petition before the Assam High Court would be a foregone conclusion. It is because of these special circumstances that we have decided t~ interfere with the interlocutory order in this case in the interests of justice.

 As a, result of these considerations, the appeals must be allowed and the orders passed by the High . Court in the several cases, set asirle. . On the question of costs, we direct that the appellants in each case, should get their costs here and in the High Court, except the appellant in Civil Appeal No.-670, who has failed on the main point raised on his behalf, and who, there. fore, mut bear his own cosls.

I • .. '

Appeals allowed.

. '

' -

NAGENDRA NATH BORA & ANOTHER

THE COMMISSIONER OF HILLS DIVISION AND APPEALS, ASSAM AND OTHERS

BHAGWATit' B. P. SINHA

L~ KAPUR

Constitution of India

Arts. 226

s. 9

Art. 226

Art. 226

Art. 227

Art. 226

Arts. 226 and 227

Eastern Bengal and Assam Excise Act, 1910

Arts. 226 and 227

A. V. Viswanatha Sa8iri

Dipa.k Datta Chudltur?J

S. }Jf. Lahiri

Naunit Lal

~SINHA

Assam Nagendra Nath

Arts. 226

Assam Act I of 1910

Nagendra Na.th Bora

Ridananda Dutt

Dharmesh war l(a.lita and

Someswa.r Neog

May 22, 1956

Constitution Bench

Assam. High Court

Nagendra N ath Bora

June 10, 1957

Arts. 226 and 227

August 6, 1957

La.kbiram Ka.lita

Bhanuram Pegu

Arts. 226 and 227

June 17, .1957

Sinhca

ent

High of Hills Division Court"naturaUy

Sinha

Ultimatey

July 31, 1957

Assam

Bhanuram Pe(J'u

Lakhiram l(alita

Nagenrira Nath

Lakhimpur

Mahibuddin Ahmad

Rafiqul Hussain

Arts. 226 and 227

flay 23, 1956

Arts. 226 and 227

Supreme Court

December 6, 1956

Si"JJha

June 3, 1957

Bora

Deka

July 15, 1957

August 14-, 1957

August 19, 1957

Noveber 3, 1957

Nagendra Nath

Section 9

December 22, 19?5

Assam Revenue Tribunal

Arts. 226 and 227

Tile Commissioner sions of the Act

Ajmer

Haldane

Moulton

Haldane

Parliament

Nagendra Nath

s. 9

23rd 1\rlay, 1956

Assam High Court

s. 3(3)

s. 3(3)

Arts. 226

s. 24

s. 9

[1910] F.C.R. 84

Raman

Art. 226

s. 9

Art. 227

Nagendra Nath

Art. 226

Art. 226

Ven_katara.ma Ayyar

Dharmeswar

Garela l(alita

Art. 226

Art. 226

Denman

NagetJdra Nath

England

y. Northumberland Oon:pen; satton Appeal 'J'ribunal (1) ..

It arose out of an apphca.twn for an order of certiorari for quashing a decision reached by the respo11dent: Northumberland Compensation Appeal Tribunal,: Lord G9ddn.rd C. J. began his judgment by observing that the point involved in the case was "of the very

greates~ importance" which had "necessitated the examination of a large number of cases and cousidera-: tion of: the principles which apply to the doctrine of

certiorari -".,

leton

Denning

Morris

Art. 226

Section 9(3)

Art. 226

Arts. 2261

Art. 226

Art. 227

Art. 227

article 227

Harries

Art. 227

Art. 226

Art. 226

Art. 227

Art. 226

Tinsukia country spirit shop

June 7, 19'11 )957

I High Court

arts. 226 and 22

Si"ha