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1964 DIGILAW 43 (GAU)

Dinesh Chandra Dowerah v. Chairman, Assam Board of Revenue, Cauhati

1964-07-28

G.MEHROTRA, S.K.DUTTA

body1964
MEHROTRA, C. J.-This is a petition under Article 226 of the Constitution on behalf of the two petitioners. The facts relevant are that for the years 1964 to 1967 tenders were invited for the settlement of Behiachetia Country Spirit Shop. The petitioners applied for settlement of the shop. The Deputy Com­missioner acting on the advice of the Advisory Board directed settlement of the shop to be made with the two petitioners as joint lessees for three years from 1964 to 1967. As against the said order the unsuccess­ful tenderers, who are arrayed as Opposite Party nos. 4 and 5 in the present petition, went up in appeal to the Assam Board of Revenue. In appeal the Assam Board of Revenue allowed the appeal filed by Oppo­site Party Nos. 4 and 5 and directed settlement of the country spirit shop with Opposite Party Nos. 4 and 5 as joint lessees. It is against this order of the Assam Board of Revenue that the present petition has been filed. The prayer is that a writ ot certiorari be issued quashing the order of the Assam Board of Revenue and if this Court comes to the conclusion that the appeal has not been properly disposed of then the appeal be sent back to the Assam Board of Revenue for disposal according to law. (2) A number of points have been taken but the main point urged by the petitioners is that in dispos­ing of the appeal, the Assam Board of Revenue has violated the principles of natural justice and has also acted in violation of Rule 17 framed in exercise of the powers conferred under Section 13 of the Assam Board of Revenue Act, 1962. The relevant facts are that the Board of Revenue set aside the order of the Deputy Commissioner and the Advisory Board among other on the ground that for settlement of this shop in the year 1981 one of the petitioners had the to influence the then Deputy Commissioner and thus the Deputy Commissioner, as the Chairman of the Advi­sory Board, and the Advisory Board refused to recom­mend the name of the petitioner for settlement of the said shop. It is not necessary to go into details as to what happened subsequent to the order of the Advi­sory Board and the Deputy Commissioner recommend­ing that settlement should not be made with the petitioner, because the matter came up to this Court on earlier occasion also. For the purposes of the pre­sent petition, it is only necessary 'to note that the Assam Board of Revenue has set aside the order of the Deputy Commissioner and the Advisory Board on the ground that one of the petitioners possesses bad moral character inasmuch as he offered bribe to the Deputy Commissioner and tried to influence him in the settle­ment of this very shop in the year 1981. Dealing with this matter it will be convenient to refer to the order of Board itself as to how the Board has dealt with this matter in its judgment : "The allegation about the attempt by the respon­dent to influence the Deputy Commissioner with money is a serious one. Regarding this matter, there is material on record, vide No. 1073E dated Dibrugarh 25-1-62 from the D. C., Lakhimpur, to the Chairman of the Board. The then Advisory Committee having given an unanimous opinion that this amounted to bad moral character of D. C. Dowerah, rightly went to the extent of recommending that the Behiachelia shop should not then be settled with the respondents. We do see considerable force both in the unanimous opinion and recommendation of the then Advisory Committee." (3) The Board has thus accepted the allegations made against the petitioners in ;the letter of the Deputy Commissioner dated 25th January 1962 as true and on that assumption has held that the Advisory Committee was right in holding that the conduct attributed to the petitioner in that letter constitutes a bad moral character and thus he is not a suitable person to be given settlement of the shop. The deci­sion thus of the Board is based on the assumption that the letter referred to in its order contains true facts. The grievance of the petitioners is that this letter was placed on the record during the hearing of the arguments without giving them any opportunity to meet the allegations in the letter and to rebut the allegations contained in the said letter. The Board's action in relying upon this letter, which was a certifi­ed copy filed by the opposite party Nos. The Board's action in relying upon this letter, which was a certifi­ed copy filed by the opposite party Nos. 4 and 5 in the course of the arguments, constitutes violation of the principles of natural justice and amounts to viola­tion of the provisions of Rule 17 of the Assam Board of Revenue Regulation I, 1963. (4) In paragraph 15 of the petition it is stated that in the record of. the case Appeal No. 169E/64, there was no alleged confidential letter No. 1073/Ex dated 25-1-1962 of the Deputy Commissioner to the Assam Board of Revenue. In paragraph 16 of the petition it is further stated that the petitioners at no time were supplied with a copy of the said confiden­tial letter of the Deputy Commissioner. In the counter affidavit filed on behalf of Opposite Party Nos. 4 and 5, it is alleged in paragraph 5 (ii) that the Deputy Commissioner submitted reports on the points raised in the appeal petition and as against paragraph 7 of the appeal petition, the report of the Deputy Commis­sioner was as follows : "This refers to the confidential letter No. 1073 Ex. dated 25-1-1982 from Deputy Commissioner Lakhimpur, to the Chairman, Assam Board of Re­venue. The rest are matters of record." In paragraph 5 (iii) of the counter affidavit, it is stated that the petitioners filed an affidavit denying the allegations contained in paragraph 7 of the appeal petition, namely, attempt by Dinesh Chandra Dowerah to influence the then Deputy Commissioner with money. It may be mentioned that the fact that the then Deputy Commissioner reported the said matter to the Assam Board of Revenue by his letter No. 1073 Ex. dated 25-1-1962 was not denied and in fact it could not be denied. In paragraph 5 (v) the relevant allegation with regard to the filing of the document reads as follows : "The petitioner's advocate did not challenge the genuineness of the certified copy; but only denied the allegation made in the letter regarding the attempt of petitioner No. 1, Dinesh Chandra Dowerah, to influ­ence the Deputy Commissioner. In paragraph 5 (v) the relevant allegation with regard to the filing of the document reads as follows : "The petitioner's advocate did not challenge the genuineness of the certified copy; but only denied the allegation made in the letter regarding the attempt of petitioner No. 1, Dinesh Chandra Dowerah, to influ­ence the Deputy Commissioner. The petitioners did not pray for any time to produce any material in rebuttal of the said fact they having already filed an affidavit before the learned Board of Revenue." An affidavit was filed by the petitioners in reply-to the aforesaid counter-affidavit, in which it is speci­fically denied that the copy of the letter was even given to the petitioners. It is also alleged in that affidavit that at no stage opportunity was given to the petitioners to rebut the allegations made in the letter. In paragraph 6 of the rejoinder affidavit, it is specifi­cally stated that the letter which was shown on the day of hearing before the Assam Board of Revenue by the counsel was perhaps left before the Assam Board of Revenue without being properly filed in the manner prescribed under Rule 17 of the Assam Board of Revenue Regulation I, 1963. No copy «f the said letter No. 1073/Ex. dated 25-1-1962, a certified copy of which was shown by the advocate for the Opposite Party Nos. 4 and 5 before the Assam Board of Re­venue, was given and served either on the petitioners or on their advocate at any time. There is no record to show that the learned Assam Board of Revenue under Rule 17 of the Assam Board of Revenue Regu­lation J, 1963, called for the said letter or the record of Excise Appeal No. 45 (E) of 1981-62 disposed of on 15-2-1962. (5) The facts which emerged out of these allega­tions in the petition and the counter affidavit are that the certified copy of the letter was given to the Assam Board of Revenue on the date of the arguments. No copy of this letter was supplied to the present peti­tioners nor any opportunity was given to the peti­tioners to rebut the allegations made in that letter, Rule 17 of the Assam Board of Revenue Regulation I. 1963, reads as follows : "17. (1) No party to an appeal or an application shall be entitled to adduce fresh evidence, whether oral or documentary, before the Board. (1) No party to an appeal or an application shall be entitled to adduce fresh evidence, whether oral or documentary, before the Board. The Board may, however, at any stage accept documents tendered by a "party or call for any documents, if it is of opinion that they are necessary for deciding the appeal or application, provided that the other party shall in that case be entitled to produce rebutting evidence. (2) A party desiring to produce such documents or affidavit shall file three copies of the same on a date at least seven days ahead of the date of hearing and shall at the same time serve an additional copy thereof on each of the respondents or opposite parties. (6) The question that arises for consideration is whether in the circumstances of the present case it can be said that there was no violation of the prin­ciples of natural justice or there was no violation of the specific provisions of Rule 17 of the rules framed under the Assam Board of Revenue Act, 1962, herein­after called 'the rules'. Rule 17 requires that if any of the parties tenders any document at any stage of the proceedings and the Assam Board of Revenue accepts that document, the opposite party has to -be given sufficient opportunity to rebut the document. Thus under the rule, the present petitioners were entitled to an opportunity to rebut the document filed by the opposite party at the time of the hearing of the argu­ments and accepted by the appellate Court. It should also be pointed out that it was open under Rule 17 to the Assam Board of Revenue to call for the record of the earlier appeal which would have contained the original letter. But instead of doing that the Assam Board of Revenue at the date of the argument accept­ed the certified copy filed by the present Opposite Party Nos. 4 and 5. (7) Mr. Goswami, who appears for the Opposite Party Nos. But instead of doing that the Assam Board of Revenue at the date of the argument accept­ed the certified copy filed by the present Opposite Party Nos. 4 and 5. (7) Mr. Goswami, who appears for the Opposite Party Nos. 4 and 5, has firstly contended that as the letter formed part of the earlier appeal before the Board of Revenue and that has been referred to in the report submitted by the Deputy Commissioner to the Assam Board of Revenue in the present appeal, it should be treated as if that letter formed part of the record of this appeal and it was not necessary to file any fresh copy of that letter. We do not think that merely because this letter is referred to in the report of the Deputy Commissioner, the letter which was on the record of the earlier appeal becomes a part of the record of the present appeal, particularly when the Deputy Commissioner has tiled an affidavit in which he has stated that this letter was neither before the Deputy Commissioner nor before the Advisory Com­mittee at the time when the opinion was given. This argument thus has no substance. (8) It is then contended that there has been sub­stantial compliance with the provisions of Rule 17 inasmuch as the present petitioners knew that there is such an allegation against them. In their affidavit they have denied such an allegation and thus they bad sufficient opportunity to rebut the allegations made in that letter. What Rule 17 requires is that after a document has been tendered and accepted by the Board of Revenue, fresh opportunity should be given to a party to rebut the allegations in the document. -Merely because such an allegation was made in the grounds of appeal and was denied by the present petitioners in their affidavit, it cannot be said that sufficient opportunity as contemplated under Rule 17, was given to the petitioners to rebut the alle­gations made in the letter. What Rule 17 contemplates is that after a document has been accepted, the oppo­site party should be given fresh or sufficient opportu­nity to rebut the allegations. Mere knowledge of those allegations by itself is not sufficient to cast any duty upon the present petitioners to examine witnesses to rebut the allegations. What Rule 17 contemplates is that after a document has been accepted, the oppo­site party should be given fresh or sufficient opportu­nity to rebut the allegations. Mere knowledge of those allegations by itself is not sufficient to cast any duty upon the present petitioners to examine witnesses to rebut the allegations. It may be that at the last moment the Assam Board of Revenue may not have relied upon those allegations or may not have ac­cepted the truth of the allegations contained in that letter. (9) It is then contended that when the certified copy was filed on the date of the argument, it was open to the counsel for the present petitioners to ask for an opportunity to rebut it, and as they did not ask for any such opportunity, there has been sub­stantial compliance with the provisions of Rule 17. We do not think that such an argument is maintain­able Rule 17 is a mandatory provision and it safe­guards the interests of the parties affected by admitt­ing any document at the last stage of the hearing by the Assam Board of Revenue. No doubt Rule 17 gives wide powers to the Assam Board of Revenue to admit any document at any stage of the proceedings, but that power is coupled with the duty to give an opportunity to the parson against whom the docu­ment is admitted to rebut the allegations made in that document. It is also faintly argued by Mr. Goswami that the opportunity contemplated under Rule 17 is with regard to the proof or genuineness of the docu­ment and not with regard to the correctness or otherwise of the document, and as in the present case, the genuineness of the document was never denied, there was no necessity of giving any further oppor­tunity to the petitioners. We do not think that there is any substance in this argument either. The Assam Board of Revenue on the basis of that letter has accepted the correctness of the allegations made in ground No. 7 of the appeal petition. The Advisory Board's opinion at the earlier stage has been accepted by the Assam Board of Revenue on the assumption that the allegations made in the letter are true and if those allegations were true, undoubtedly it will con­stitute a bad moral character and disentitle the person from being selected. The Advisory Board's opinion at the earlier stage has been accepted by the Assam Board of Revenue on the assumption that the allegations made in the letter are true and if those allegations were true, undoubtedly it will con­stitute a bad moral character and disentitle the person from being selected. It may be a valid ground for the Assam Board of Revenue to refuse to make settlement with him if those allegations are found to be correct. And that is all the more reasonable that the petitioner should have been given an opportunity to rebut the allegations made in the letter. Apart from the specific provisions of Rule L7, the principles of natural justice demand that if the contents of any document are to be relied upon against a party, he should be given an opportunity to meet the contents. The allegations have been rightly characterised by the Assam Board of Revenue itself to be of a very serious nature and thus it was all the more necessary for the Assam Board of Revenue to have given opportunity to the party concerned to rebut the allegations made in that letter. There has thus been a violation of the princi­ples of natural justice. (10) Mr. Goswami has referred to two cases of their Lordships of the Supreme Court. It should be pointed out that no exhaustive rules of natural justice can be laid down. Each case will depend upon the nature of the tribunal which is constituted to decide the matter and the circumstances in which they are to act. But undoubtedly it a serious allega­tion is made and that is the decisive factor, the party concerned should be given an opportunity to meet the allegation and failure to do so is a violation of the principles of natural justice. Reference in this con­nection may be made to the case of Syed Yakoob v. K S. Radhakrishnan, reported in A I R 1964 S C 477, and State of Mysore v. Shivabasappa Shivappa Makapur. reported in AIR 1963 S C 375. It is not necessary to deal in detail with these cases These cases have laid down certain general principles, an applying those principles we are of opinion that principles of natural justice were violated in this case. (11) Reliance is also placed on the case of Nagendra Nath Bora v. Commr. reported in AIR 1963 S C 375. It is not necessary to deal in detail with these cases These cases have laid down certain general principles, an applying those principles we are of opinion that principles of natural justice were violated in this case. (11) Reliance is also placed on the case of Nagendra Nath Bora v. Commr. of Hills Division, reported in AIR 1958 S C 398, wherein the powers of this Court under Article 228 of the Constitution have been very exhaustively dealt with by their Lordships of the Supreme Court. In that case, this Court set aside the order pissed by the appellate body in regard to the settlement of the excise shop on the ground that in its opinion the tribunal exceded its jurisdiction, and this Court had further observed that when the choice has been made by the competent authority, the appellate authority could interfere with such a choice only if the choice is perverse on the face of it and it cannot independently make any choice. That pro­position has not been accepted by their Lordships of the Supreme Court. It has been laid down that it would be placing limitation on the wide powers which are conferred on the appellate authorities, under the provisions of the Excise Act and the rules, framed thereunder. (12) The next question which was argued was as to what is an error apparent on the face of the record, and their Lordships have laid down but an error of fact cannot be regarded as an error apparent on the question of law which will entitle this Court to-exercise its powers under Article 226 of the Constitu­tion. These points have not been raised in the present case. The case is based on the ground that there has been a violation of the principles of natural justice. Dealing with this reasoning of this Court, their Lordships of the Supreme Court have remarked in the case referred to above as follows : 'The next ground of attack against the order of the High Court under appeal, was that the High Court had erred in coming to the conclusion that there had been a failure of natural justice, hi this connection, the High Court has made reference to the several affidavits filed on either side, and the order in which they had been tiled, and the use made pi those affidavits, or counter-affidavits. As already indicated, the rules make no provisions for the reception of evidence oral or documentary, or the hearing of oral arguments, or even for the issue of notice of the hearing to the parties concerned. The entire proceedings are marked by a complete lack of formality. The several autho­rities have been left to their own resources to make the but selection. In this connection, reference may be made to the observations of this Court in the case of New Prakash Transport Co. Ltd. v. New Suwarna Transport Co., Ltd. 1957 S C R 98 : (S) AIR 1957 S C 232." These observations will clearly show that there were no rules which laid down the procedure for the hearing of the appeal or of filing of any evidence. In the present case, we have got elaborate rules made in exercise of the powers under the Assam Board of Revenue Act which lay down the procedure for the hearing of the appeals, and thus, it cannot be said that in the present case the Assam Board of Revenue is left to its own resources to make the selection. There may not be rules which exhaustively lay down as to what are the grounds on which the selection can be made, but certainly the rules lay down the proce­dure for the hearing of the appeals and thus no assistance can be drawn from the observations in the case referred to above. (13) Lastly it is argued by Mr. Goswami that in any case, there were a number of grounds on which the settlement with the present petitioners was chal­lenged and even if some of the grounds are found to be true and even if it is assumed that one of the grounds on which the order of the Board is based is not correct, this Court cannot interfere with the choice ma le by the appellate authority. As we have pointed out, it is not a case where this Court is sitting as a Court of appeal and is trying to substitute its own choice to that of the appellate authority which has wide power in the matter of selection. As we have pointed out, it is not a case where this Court is sitting as a Court of appeal and is trying to substitute its own choice to that of the appellate authority which has wide power in the matter of selection. The argument is that in deciding the appeal, the Assam Board of Revenue has violated certain principles of natural justice and has violated express provision of Rule 17, and thus this Court can in the exercise of its powers under Article 228 of the Constitution can issue a writ of certiorari quashing the order of a quasi judicial body. (14) In the result, therefore, we allow this peti­tion, set aside the order of the Assam Board of Revenue and sand back the appeal to the Board to dispose it of according to law and the rules framed thereunder. There will be no order as to costs. Petition allowed.