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1999 DIGILAW 576 (ALL)

RAM CHANDRA GUPTA v. STATE OF UTTAR PRADESH

1999-04-21

R.H.ZAIDI, R.P.NIGAM

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R. H. ZAIDI, R. P. NIGAM, JJ. ( 1 ) IN both these writ petitions, common questions of law and fact are Involved, they were, therefore, heard together and are being disposed of by the common judgment. Heard learned counsel for the petitioners, learned standing counsel and also perused the record. ( 2 ) BY means of these petitions, petitioners, who were stamp vendors, challenge the validity of the order dated 15. 12. 1987, whereby the licences of the petitioners for stamps vending, have been cancelled by the Additional Collector, Hardoi. ( 3 ) IT appears that the petitioners were granted licences by the Collector for selling stamps, in exercise of powers under Rule 150 of the Stamps Rules read with Section 74 of the Stamps Act. on 12. 4. 1983 and 2. 3. 1987 respectively and since then, the petitioners have been vending the stamps. The licences of the petitioners used to be renewed from time to time, in accordance with rules. All of sudden, without affording any opportunity of hearing to the petitioners, the impugned orders dated 15. 12. 1987 were passed by the Additional Collector, whereby the licences of the petitioners were cancelled. In the impugned orders of cancellation dated 15. 12. 1987, it has been stated that the licences are being cancelled on the basis of Inspection note submitted by the Treasury Officer, Hardoi. In the said inspection note, it was stated that the petitioner Ram Chander Gupta has committed Irregularities in the sale of stamps. Inasmuch as, he has demanded more price, than the legal price of the stamps. Against Diwakar Gupta, the allegation was that he has sold one stamp more than the prescribed limit. ( 4 ) ON behalf of the respondents, counter-affidavits have been filed, in which it has been stated that it was not necessary to afford opportunity of hearing to the petitioners before passing the impugned order of cancellation of licence. The impugned order was legally passed on the basis of Inspection note submitted by the Treasury Officer, the contents of which have already been stated above. The impugned order was legally passed on the basis of Inspection note submitted by the Treasury Officer, the contents of which have already been stated above. ( 5 ) LEARNED counsel for the petitioners vehemently urged that the impugned orders have been passed by the Additional Collector, Hardoi, without affording opportunity of hearing or to explain their cases to the petitioners, therefore, the same were non-est and were liable to be quashed, it was urged that no order affecting civil rights of any person, judicial, quasi-judicial or administrative, can be passed without affording opportunity of hearing to the persons concerned, whose rights are likely to be affected by the said orders. Therefore, the writ petitions were liable to be allowed. ( 6 ) ON the other hand, learned standing counsel has supported the validity of the impugned orders of cancellation of licence of the petitioners. It was urged that the orders have been passed in exercise of powers under Rule 154 of the Stamp Act. Legally it was not necessary to afford opportunity of hearing or to explain their cases, to the petitioners before passing the order of cancellation of licences, granted under the Act. The writ petitions, therefore, were liable to be dismissed. ( 7 ) WE have considered submissions made by learned counsel for the parties and also perused the record. ( 8 ) ADMITTEDLY, the Impugned orders dated 15. 12. 1987 have been passed without affording opportunity of hearing to the petitioners. Section 74 of the Stamp Act confers rule making power upon the State Government. In exercise of said power. Stamp Rules, 1942, have been framed. Rule 154 of the Rules provides as under : "154. Revocation of licence.--A licence may be revoked at any time by the Provincial government or by the authority who granted it. " ( 9 ) IN exercise of powers under Rule 154 of the Rules, licence of a stamp vendor can be cancelled by competent authority, the Collector. The term collector has been defined under clause (9) of section 2 of the Act, as under : (9) collector.--"collector" (a) means, within the limits of the towns of Calcutta, Madras and Bombay, the Collector of calcutta. Madras and Bombay respectively and without those limits, the Collector of a District, and (b) includes a Deputy Commissioner and any officer whom (the State Government) may. Madras and Bombay respectively and without those limits, the Collector of a District, and (b) includes a Deputy Commissioner and any officer whom (the State Government) may. by notification in the Official Gazette, appoint in this behalf. ( 10 ) IN the present case, it is not disputed that the Additional Collector had the Jurisdiction to pass Impugned orders of cancellation of licence. Therefore, it is not necessary for this Court to go into the question as to whether the said power was conferred upon the Additional Collector or not. The question, however, remains as to whether power given under Rule 154 of the Rules is arbitrary, as no guideline for exercise of the same has been provided under the Rules. ( 11 ) IT is well-settled in law that the orders affecting the civil rights of any person may be passed by the competent authority after affording opportunity of hearing to the persons concerned, whose civil rights are likely to be affected by the order to be passed unless affording of opportunity is specifically excluded by the Statute, itself. Reference in this regard may be made to the decisions of Apex Court, in A. K. Karippak v. Union of India, AIR 1970 SC 150 ; M/s. North Bihar Agency and others v. State of Bihar and others. AIR 1981 SC 1758 , Delhi Transport corporation u. D. T. C. Mazdoor Congress and others, AIR 1991 SC 101 . ( 12 ) IN view of the aforesaid decisions, submission made by learned standing counsel that it was legally not necessary to afford opportunity or hearing to the petitioners cannot be accepted. An order passed in violation of principle of natural justice is a nullity. The impugned orders as stated above, have been passed without affording opportunity of hearing or to explain their case to the petitioners. Therefore, the same are invalid and illegal, and the same are liable to be quashed. For the said reason, it is not necessary to go into the question of validity of Rule 154 of the Stamp rules. ( 13 ) IT was also urged by learned standing counsel that the petitioners have, without exhausting statutory alternative remedy of filing the revision as provided under Section 56 of the Act, have filed present petition, therefore, the present petitions are liable to be dismissed on the ground of availability of statutory alternative remedy. ( 13 ) IT was also urged by learned standing counsel that the petitioners have, without exhausting statutory alternative remedy of filing the revision as provided under Section 56 of the Act, have filed present petition, therefore, the present petitions are liable to be dismissed on the ground of availability of statutory alternative remedy. ( 14 ) SO far as the question of exhaustion of alternative remedy before filing the present petitions is concerned, availability of alternative remedy is not an absolute bar on the exercise of powers under Article 226 of the Constitution of India. There are several recognised exceptions to the application of aforesaid rule, one of them is violation of principle of natural justice. If the order is challenged before this Court under Article 226 of the Constitution of India, on the ground the same was passed in violation of principle of natural justice, a writ under the aforesaid Article may be entertained and decided by this Court and availability of alternalive remedy will be no bar for exercise of power under the said Article. Therefore, the submissions made by learned standing counsel, to the contrary cannot be accepted. A reference in this regard may be made to the decision of Apex Court in State of U. P. v. Mohd. Nooh, AIR 1958 SC 86 and Whirl Pool corporation v. Registrar of Trade Marks, (1998) 8 SCC 1 . ( 15 ) WHILE admitting the present petitions on 24. 12. 1987, interim orders were also granted to the petitioners of both the petitions, whereby the operation of the Impugned orders dated 15. 12. 1987 was stayed. The said orders are still intact. The petitioners on the basis of said orders have been carrying on their business of stamp vending. ( 16 ) IN view of the said facts, writ petitions succeed and are allowed. Order dated 15. 12. 1987 in both writ petitions are quashed. It is, however, observed that it will be open to the contesting respondents to pass afresh orders after following the procedure prescribed under the law and in the light of observation made hereinabove, if they are at all required to be passed now. ( 17 ) NO orders as to costs. .