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Gauhati High Court · body

1971 DIGILAW 32 (GAU)

Purshottam Bahel v. A. C. Baruah

1971-05-07

M.C.PATHAK, P.K.GOSWAMI

body1971
PATHAK, J.: This application under Article 226 of the Constitution of India is directed against the appellate order dated 11th January 1971 passed by the Com­missioner of Plains Division, Assam, af­firming the order of the Chairman. Jorhat Municipal Board dated 9th April 1970 directing the petitioner to close down his hotel and restaurant with immediate ef­fect and order dated 19-12-69 passed by the Chairman. Jorhat Municipal Board relecting the praver of the petitioner for renewal of his license. 2. The petitioner's case is as fol­lows: The petitioner opened a restaurant in 1967 under a valid license No. 172 dated 4-12-67 for the year 1967-68 issued by the Jorhat Municipal Board (herein­after referred to as the Board) and his license was renewed till 1969. He applied for the renewal of his license on 15-4-69 for the year 1969-70. By his letter No. 5049 dated 19-12-69 the Chairman of the Municipal Board relying on some report of the Excise Superintendent held that the petitioner violated an express condition of the license, namely, not to sell or allow use of liquor in the hotel and directed the petitioner to close down his hotel and restaurant within seven days. The said letter of the Chairman of the Municipal Board is at Annexure I to the petition. On 26-12-69 the peti­tioner submitted another application praying for reconsideration of the deci­sion of the Board. In his application he denied to have ever violated any of the conditions of the license or that the Excise Inspector had seized any liquor from his hotel premises. It was further stated that the Excise Inspector's al­legation of seizure of liquor from the hotel premises of • the petitioner was sub judice and it should not be accepted as correct. By letter No. 112 dated 9th April 1970 the Chairman of the Municipal Board informed the petitioner that the Board had decided to stand by its pre­vious decision communicated under letter No. 5049 dated 19-12-69 and directed the petitioner to close down his hotel and restaurant with immediate effect, failing which, necessary action would be taken. A copy of the said letter is Annexure II to the petition. 'Against this order of the Board the petitioner preferred an appeal before the Commissioner of Plains Divi­sion under Section 296 of the Assam Municipal Act 1956 (Assam Act XV of 19571 (hereinafter called 'the Act'). A copy of the said letter is Annexure II to the petition. 'Against this order of the Board the petitioner preferred an appeal before the Commissioner of Plains Divi­sion under Section 296 of the Assam Municipal Act 1956 (Assam Act XV of 19571 (hereinafter called 'the Act'). The appeal was rejected by the Commissioner of Plains Division by his order dated 11th January 1971. Hence this writ petition for quashing the aforesaid orders of the Commissioner and the Board. 3. In his petition the petitioner has stated that he preferred an appeal under S. 296 of the Act before the Com­missioner of Plains Division from the Board's order dated 9th April 1970 re­fusing renewal of the license. Such an appeal however lies not under Sec. 296 but under Section 322 of the Act. As no objection was raised, it is presumed that the Commissioner was authorised by the State Government to entertain appeal under Section 322 of the Act. 4. Mr. A. R. Barthakur, the learn­ed counsel for the petitioner submits that the Chairman or the Board in re­fusing to renew the license acted illegally and in violation of the principles of natural justice and therefore the im­pugned orders of the Board and the Commissioner are liable to be quashed. 5. Relevant provisions of Sec­tion 229 of the Act may be auoted here:-• "229. (1) Within such local limits as may be fixed by the Board at a meet­ing, no place shall be used without license from the Board which shall be renewable annually, for any of the fol­lowing purposes, namely:- (1) tea stall: (m) sweetmeet stall; (n1 hotel or eating house: (2) Such license shall not be with­held unless the Board has reason to be­lieve that the business which it is intend­ed to establish or maintain would be of­fensive or dangerous to persons residing, in or frequenting the neighbourhood. (3) ****** (4) ***** *». 6. From the original license in the record it is found that the petitioner's license was issued for hotel and restaur­ant and the nature of food was described as rice. tea. sweets etc. It is therefore clear that the petitioner's license was is­sued under Section 229 (1) (1) (m) and (nJ of the Act. (3) ****** (4) ***** *». 6. From the original license in the record it is found that the petitioner's license was issued for hotel and restaur­ant and the nature of food was described as rice. tea. sweets etc. It is therefore clear that the petitioner's license was is­sued under Section 229 (1) (1) (m) and (nJ of the Act. From the provisions of sub­section (1) it is found that any person who wants to use any place within the local limits as fixed by the Board for the pur­poses mentioned in the sub-section shall have to obtain a license from the Board and that license shall be renewable annually. In other words, the Board may grant a license for one year and the licensee will have to get it renewed annually thereafter. It has been pro­vided in sub-section (2) that such license shall not be withheld unless the Board has reason to believe that the business which it is intended to establish or maintain would be offensive or danger­ous to persons residing in or frequenting the neighbourhood. The expression 'the business which it is intended to establish or maintain' in sub-section (2) Hoes to show that for the purpose of withholding the license, the Board may consider the conditions laid down in sub-section (2) at the time of issusing the license for the first time as well as at the time of renewal of the license. 7. In the instant case a license for hotel and restaurant was issued to the petitioner by the Board in 1967. That license was issued for the year 1967-68 and subsequently it was renewed for the year 1968-69 and the licensee applied for renewal of the same for the year 1969-70. By its order dated 19-12-69 and 9-4-70 the Board for reasons re­corded therein refused to renew the license and directed the petitioner to close down his hotel and restaurant with im­mediate effect. The Board therefore must have taken action under sub-section (2) of Section 229 of the Act. 8. The points that fall for deter­mination in the instant case are whether before withholding the license or refus­ing to renew the license on grounds mentioned in sub-section (2) the Board is required to follow the principles of natural justice, or. The Board therefore must have taken action under sub-section (2) of Section 229 of the Act. 8. The points that fall for deter­mination in the instant case are whether before withholding the license or refus­ing to renew the license on grounds mentioned in sub-section (2) the Board is required to follow the principles of natural justice, or. in other words, whe­ther the Board has a duty to give to the petitioner an opportunity of showing cause; and if the principles of natural justice were not followed whether the impugned orders are liable to be quashed. 9. From the impugned orders of the Board it appears that the Board got a report from the Excise Superintendent. Sibsagar. Jorhat, to the effect that some bottles containing liquor were recovered and seized from petitioner's hotel and res­taurant and therefore it concluded that the petitioner violated an express condi­tion of the license and so directed the peti­tioner to close down his hotel and res­taurant within seven days. From the order of the Board dated 19th December 1969 it is clear that no notice was given to the petitioner to show cause against the al­legation mentioned in the order. The petitioner filed an application for review of that order and for renewal of the licen­se, whereupon the Board passed the order dated 9th April 1970 affirming the earlier order dated 19th December 1969 and directed the petitioner to close down the hotel and restaurant with immediate ef­fect. The Board's orders refusing renewal of license were based on allegations that in his hotel and restaurant the petitioner used to store or sell liauor as reported by the Excise Superintendent and some other persons. Before taking action against the petitioner on these allegations made behind him. he was not given any opportunity to meet those allegations. Before refusing to renew the license, the Board did not issue any notice to the peti­tioner to show cause. By refusing to renew the license, the petitioner's estab­lished trade or business has been stopped. At no stage the petitioner admitted the allegations made against him and the re­ports made against him were behind his back. It is therefore found that in passing the impugned orders dated 19-12-69 and 9-4-1970 by which the petitioner's applica­tion for renewal was rejected and his hotel and restaurant was stopped, the Board did not follow the principles of natural justice. 10. It is therefore found that in passing the impugned orders dated 19-12-69 and 9-4-1970 by which the petitioner's applica­tion for renewal was rejected and his hotel and restaurant was stopped, the Board did not follow the principles of natural justice. 10. Under Section 234 of the Act. the Board has the power to order the use of any place licensed under Section 229 and carrying on any dangerous and offensive trade to be discontinued in the circumstances mentioned in the section. Section 234 itself provides that the licensee shall be given reasonable op­portunity of showing cause against any notice that may be issued under Sec. 234 for discontinuance of the use of the licensed place. 11. Similarly when a license is withheld or a renewal of license is re­fused, there is no reason to hold that in exercising such power under Section 229 (2) of the Act the Board is not required to observe the principles of natural justice. 12. In State of Orissa v. Dr. (Miss) Binapani Dei. AIR 1967 SC 1269 while discussing the principles of natural justice the Supreme Court observed as follows:- "The rule that a party to whose pre­judice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil conse­quences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed: it need not be shown to be superadded. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of iustice be ignored and an order to the prejudice of a person is made, the order is a nul­lity." ** ** ** "It is true that the order is adminis­trative in character. but even an administrative order which involves civil consequences, as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first res­pondent of being heard and meeting or explaining the evidence." 13. but even an administrative order which involves civil consequences, as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first res­pondent of being heard and meeting or explaining the evidence." 13. In A. K. Kraipak v. Union of India. AIR 1970 SC 150 . it was observed by the Supreme Court as follows:- "The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely (I) no one shall be a Judae in his own cause (Nemo debet esse judex propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitra­rily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opin­ion of the courts that unless the autho­rity concerned was required by the law under which it functioned to act •judicial­ly there was no room for the application of the rules of natural justice. The vali­dity of that limitation is now Questioned. If the purpose of the rules of natural ius­tice is to prevent miscarriage of iustice one fails to see why those rules should be made inapplicable to administrative en­quiries. Often times it is not easy to draw the line that demarcates adminis­trative enquiries from quasi-judicial en­quiries. Enquiries which were consider­ed administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial. enquiry. Enquiries which were consider­ed administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial. enquiry. As observed by this Court in Suresh Koshy George v. University of Kerala Ci­vil Appeal No. 990 of 1968. D/- 15-7-1968 = (AIR) 1969 SC 198) the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the frame­work of the law under which the enquiry is held and the constitution of the Tribu­nal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observ­ance of that rule was necessary for a just decision on the facts of that case". 14. In the instant case the Board is a statutory authority constituted under the Act. In refusing renewal of a license or withholding a license, under section 229 (2) of the Act it exercises a statutory power affecting the right of a citizen to carry on trade or business. When the Board directs a person to close down his established hotel and restaurant, refus­ing renewal of license on grounds men­tioned in Section 229 (2). such an order certainly involves civil consequences. Even though the Board's order may be administrative in character, it has to be made consistently with the principles of natural justice. inasmuch as it involves civil consequences so far as the affected citizen is concerned. 15. In the circumstances the im­pugned orders of the Board are liable to be quashed for violation of the principles of natural justice as well as the appel­late order of the Commissioner which did not take into consideration at all the Ques­tion of violation of the principles of natu­ral justice by the Board. Accordingly we quash the impugned orders of the Board and the Commissioner. 16. We however observe that this order will be no bar to the Board for taking necessary action against the peti­tioner after duly observing the principles of natural justice and in accordance with the provisions of the Municipal Act. Accordingly we quash the impugned orders of the Board and the Commissioner. 16. We however observe that this order will be no bar to the Board for taking necessary action against the peti­tioner after duly observing the principles of natural justice and in accordance with the provisions of the Municipal Act. 17. The petition is allowed and the rule is made absolute. In the facts and circumstances of the case, we make no order as to costs. P.K.Goswami C. J.: 18. I agree. Petition allowed.