Indukuri Sri Uma Maheshwari v. State of Andhra Pradesh
2020-03-20
M.SATYANARAYANA MURTHY
body2020
DigiLaw.ai
ORDER: 1. This writ petition under Article 226 of Constitution of India is filed, questioning the order passed by 3rd respondent in PE-DECOTR/2/2020-JA(B2)-DCP&EVSKP dated 10.03.2020, declare the same as illegal, arbitrary and without jurisdiction, consequently direct 3rd respondent to permit the petitioner to conduct business. 2. The petitioner is the licensee of M/s.Uday Restaurant and Bar, Visakhapatnam. 3rd respondent issued show cause notice and also passed order of suspension in PE-DECOTR/2/2020-JA(B2)-DCP&EVSKP dated 18.02.2020, wherein it is stated that the Prohibition & Excise, Superintendent has submitted a report stating that on 16.02.2020 at about 18:35 hours, 5th respondent along with Prohibition & Excise Sub-Inspector and staff surprised and visited the bar premises, on verification detected a case of storage of unauthorized IML of various GROs and found 39 bottles (28 bottles with heals and 11 bottles without heals). It is further stated that on questioning the nowkarnama, he has stated that the stock was purchased from the shop and was being sold in the bar, a case was registered against him for the offence punishable under Section 36 (b) and (c) of A.P Excise Act. Thereupon, order dated 18.02.2020 in PE-DECOTR/2/2020-JA(B2)-DCP&EVSKP was passed by exercising power under Section 31 of A.P Excise Act, the same was challenged before this Court in W.P No.4746 of 2020, the writ petition was allowed by this Court by order dated 29.02.2020, while permitting the respondents to take appropriate action in accordance with law, by issuing show cause notice. Thereafter, no show cause notice was issued to the petitioner calling for explanation and the petitioner was under bonafide impression that a separate show cause notice would be issued. But 3rd respondent passed the impugned order cancelling the license with immediate effect, on the ground that no explanation is submitted by the petitioner to earlier show cause notice issued for cancellation of license. The impugned order passed by 3rd respondent cancelling the Form 2B license of petitioner is not legal, it is arbitrary and violative of principles of natural justice and direction issued by this Court in W.P No.4746 of 2020. 3. It is specifically contended that 3rd respondent is licensing authority and as per Section 31 of A.P. Excise Act, discretion is given to licensing authority either to suspend or cancel the license.
3. It is specifically contended that 3rd respondent is licensing authority and as per Section 31 of A.P. Excise Act, discretion is given to licensing authority either to suspend or cancel the license. Therefore, 3rd respondent in exercise of quasi judicial power can pass order, but it is subject to revision/appeal and that remedy under Article 226 of Constitution of India is available, when the authorities are conferred with quasi judicial power, it is obligatory on the part of authorities to give reasons for passing impugned order. 4. A bare look at the order impugned in the writ petition, it is clear that no reason has been mentioned and it is simply stated that “the licensee has not submitted explanation to the show cause notice”, thereby passed the order without appreciation of the facts and the order is bereft of any reasons, requested to set aside the order. 5. During hearing the learned counsel for the petitioner Sri O. Manohar Reddy has drawn the attention of this Court to the order dated 10.03.2020 passed by 3rd respondent and notice dated 18.02.2020 to substantiate his contention. 6. Whereas, the learned Assistant Government Pleader for Prohibition & Excise supported the order passed by 3rd respondent in all respects, requested to dismiss the writ petition. 7. The alleged inspection of premises by Prohibition & Excise Sub-Inspector and his staff on 16.02.2020 at 18:35 hours is not in much controversy, but finding various brands and seizure of bottles with or without heals etc, is disputed by the petitioner. The order passed by rd respondent was questioned in W.P No.4746 of 2020 and the order was set aside with the following direction: “Accordingly, the suspension order impugned in the writ petition is hereby set aside. However, this order will not preclude the respondents to take appropriate action in accordance with law by issuing show cause notice to suspend the license of petitioner, if advised.” 8. Thus, it is clear from the operative portion of the order extracted above that respondents are given liberty to take appropriate action in accordance with law by issuing show cause notice, separately. Hence, a show cause notice is required to be issued before passing any order under Section 31 of A.P Excise Act, but no show cause notice was issued separately after passing the order in W.P No.4746 of 2020.
Hence, a show cause notice is required to be issued before passing any order under Section 31 of A.P Excise Act, but no show cause notice was issued separately after passing the order in W.P No.4746 of 2020. But surprisingly, in the reference of the order, representation of licensee i.e. M/s.Uday Restaurant and Bar is dated 02.03.2020 is found. Though this Court issued a direction to issue fresh show cause notice and take appropriate action in accordance with law, if advised, either to suspend or cancel 2B license, 3rd respondent did not issue any show cause notice afresh as permitted by this Court in W.P No.4746 of 2020. Anyhow petitioner made representation dated 02.03.2020, but curiously in 6th and 7th paras of 3rd page of the order impugned in the writ petition, 3rd respondent observed as follows: “A show cause notice for cancellation of 2B Bar license has been issued to licensee of the said Bar on 18.02.2020 this office File No.PE-DETOCR/2/2020-JA(B2)-DCP & EVSKP, dated 18.02.2020 with a direction to submit explanation to this office within 15 days from the date of receipt of notice and the same was served on 18.02.2020. but so far the licensee has not submitted her explanation for the show cause notice. Therefore, in exercise of powers conferred under Section 63(2) of A.P Excise Act, being the license granting authority, the 2B (Bar) license of M/s.Uday Restaurant and Bar, Resapuvanipalem, GVMC, Visakhapatnam is hereby cancelled, with immediate effect”. 9. As seen from the finding recorded by 3rd respondent extracted above, based on notice dated 18.02.2020 which was impugned in W.P No.4746 of 2020, in the reference representation of petitioner dated 02.03.2020 is also mentioned. In fact, this Court issued a direction to issue show cause notice afresh, to take appropriate action in accordance with law to suspend or cancel the license of the petitioner, if advised. Instead of following the direction issued by this Court in W.P No.4746 of 2020, the order impugned in the present writ petition was passed, stating the petitioner did not submit her explanation or representation within 15 days time, but no reason was mentioned for passing the order to cancel the license.
Instead of following the direction issued by this Court in W.P No.4746 of 2020, the order impugned in the present writ petition was passed, stating the petitioner did not submit her explanation or representation within 15 days time, but no reason was mentioned for passing the order to cancel the license. In the absence of issue of any show cause notice afresh, calling for explanation from the petitioner, though the petitioner submitted representation on 02.03.2020 after passing order in W.P No.4746 of 2020 dated 29.02.2020, non-consideration of the same and passing such cryptic order is ex-facie illegal and it is contrary to principles of natural justice. 10. Time and again Courts held that recording reason either in administrative or quasi judicial order is mandatory as it is heart and soul of the order which gives guidance to the appellate authority, while deciding such appeals, if any filed against the orders. The Apex Court and this Court issued certain guidelines to be followed for drafting orders by Quasi Judicial Authorities and highlighted the contents of an order or judgment. What an order shall contain normally is not specified anywhere but the order must be reasoned one, since the judgment or order in its final shape usually contains in addition to formal parts:-(i) A preliminary or introductory part, showing the form of the application upon which it was made, the manner in which and the place at which, the writ or other originating process was served, the parties appearing any consent, waivers, undertakings or admissions given or made, so placed as to indicate whether they relate to the whole judgment or order or only part of it, and a reference to the evidence upon which the judgment or order, is based and (ii) A substantive or mandatory part, containing the order made by the Court" as has been said in Halsbury's Laws of England (4th Edition, Volume 26 P. 260). Thus, in view of the requirements of an order or judgment referred above, an order impugned shall contain the reasoning, since, the Quasi Judicial Authority speaks with authority by his order. The strength of an order lies in its reasoning and it should therefore be convincing. Clarity of exposition is always essential.
Thus, in view of the requirements of an order or judgment referred above, an order impugned shall contain the reasoning, since, the Quasi Judicial Authority speaks with authority by his order. The strength of an order lies in its reasoning and it should therefore be convincing. Clarity of exposition is always essential. Dignity, convincingness and clarity are exacting requirements but they are subservient to what, after all, is the main object of an order, which is not only to do but to seem to do justice. In addition to these cardinal qualities of a good order, there are the attributes of style, elegance and happy phrasing which are its embellishments. In the words of Former Chief Justice of the Supreme Court Sabyasachi Mukharji, the requirement of a good judgment is reason. Judgment is of value on the strength of its reasons. The weight of a judgment, its binding character or its persuasive character depends on the presentation and articulation of reasons. Reason, therefore, is the soul and spirit of a good order. Equity, justice and good conscience are the hallmarks of judging. One who seeks to rely only on principles of law, and looks only for the decided cases to support the reasons to be given in a case or acts with bias or emotions, loses rationality in deciding the cases. The blind or strict adherence to the principles of law sometimes carries away a judge and deviates from the objectivity of judging issues brought before him. Justice M.M. Corbett, Former Chief Justice of the Supreme Court of South Africa, recommended a basic structural form for order/judgment writing, which is as follows: "(i) Introduction section; (ii) Setting out of the facts; (iii) The law and the issues; (iv) Applying the law to the facts; (v) Determining the relief; including costs; and (vi) Finally, the order of the Court." Keeping in view various principles and observations including the definition of order and judgment, the Apex Court laid down certain guidelines for writing judgments and orders in “Joint Commissioner of Income Tax, Surat, v. Saheli Leasing and Industries Limited (Civil Appeal No. 4278 of 2010)” in para No. 7 of the judgment and they are extracted hereunder: "7.
These guidelines are only illustrative in nature, not exhaustive and can further be elaborated looking to the need and requirement of a given case:- (a) It should always be kept in mind that nothing should be written in the judgment/order, which may not be germane to the facts of the case; It should have a co-relation with the applicable law and facts. The ratio decidendi should be clearly spelt out from the judgment/order. (b) After preparing the draft, it is necessary to go through the same to find out, if anything, essential to be mentioned, has escaped discussion." (c) The ultimate finished judgment/order should have sustained chronology, regard being had to the concept that it has readable, continued interest and one does not feel like parting or leaving it in the midway. To elaborate, it should have flow and perfect sequence of events, which would continue to generate interest in the reader. (d) Appropriate care should be taken not to load it with all legal knowledge on the subject as citation of too many judgments creates more confusion rather than clarity. The foremost requirement is that leading judgments should be mentioned and the evolution that has taken place ever since the same were pronounced and thereafter, latest judgment, in which all previous judgments have been considered, should be mentioned. While writing judgment, psychology of the reader has also to be borne in mind, for the perception on that score is imperative. (e) Language should not be rhetoric and should not reflect a contrived effort on the part of the author. (f) After arguments are concluded, an endeavour should be made to pronounce the judgment at the earliest and in any case not beyond a period of three months. Keeping it pending for long time, sends a wrong signal to the litigants and the society. (g) It should be avoided to give instances, which are likely to cause public agitation or to a particular society. Nothing should be reflected in the same which may hurt the feelings or emotions of any individual or society." In view of the principles laid down by the Apex Court, a judgment or an order shall contain the above seven minimum requirements i.e., a to g. In the present case, the order passed by 3rd respondent is bereft of such requirements. Therefore, the order of 3rd respondent is against the requirements.
Therefore, the order of 3rd respondent is against the requirements. When the order is passed without reasoning, it is not a judgment in the eye of law for the reason that the requirement of reasoning either by Quasi Judicial Authority or Court is to convey the mind of the Quasi Judicial Authority or Judge while deciding such an issue before the Authority or Court. Where the Authority or Court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons, even though the point has not been framed by the Quasi Judicial Authority or Court, there is substantial compliance and the order is not in any manner vitiated. Where there is an honest endeavour on the part of the Authority to consider the controversy between the parties and there is proper appraisement of the respective cases, weighing and balancing of the defence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment/order of the Court or Authority, it would be a valid judgment or order even though it does not contain the points for determination. The object of the Rule in making it incumbent upon the Court to frame points for determination and to cite reasons for the decision is to focus attention of the Quasi Judicial Authority or Court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enabling them to know the basis of the decision and if so considered appropriate and so advised, to avail the remedy of revision or appeal permitted by legislation. From a bare reading of the principle laid down in the above judgment, the requirement of recording of reasons is only to show that the Court has focused concentration on rival contentions and to provide litigant parties an opportunity of understanding the ground upon which the decision is founded. Even if it is an order under the provisions of the Act, still these basic requirements cannot be ignored by Courts.
Even if it is an order under the provisions of the Act, still these basic requirements cannot be ignored by Courts. In such case, a Quasi Judicial Authority or Judge is required to apply his mind and give focused consideration to rival considerations raised by both parties but in this case the Quasi Judicial Authority i.e. 3rd respondent recorded a finding without independent consideration and appreciating the defence set up by the petitioner. Such order or judgment without independent consideration is not legally sustainable since Quasi Judicial Authority or Courts do not act blindly or mechanically, pass orders or judgments. Courts and Quasi Judicial Authority ought to be cautious and only on being satisfied that there is no fact which needs to be proved despite being in admission, should proceed to pass order or judgments. Thus, in the absence of application of mind in arriving at such conclusion without considering the contentions independently is nothing but a cryptic Order. The need for recording of reasons is greater in a case where the order is passed at the original stage, a decision without reasons is like grass without root, the requirement to record reasons is one of the principles of natural justice as well and where a statute required recording of reasons in support of the order, it must be done by the authorities concerned as held by the Apex Court in S.M. Mukerji v. Union of India [1990 Crl.L.J.2148]. The increasing institution of cases in all Courts and Quasi Judicial Authorities in India and the resultant burden upon the Courts and Quasi Judicial Authorities has invited attention of all concerned in the justice administration system. Despite heavy quantum of cases it would neither be permissible nor possible to state as principle of law that while exercising power of judicial review on administrative action and more particularly order of Quasi Judicial Authority before the High Court, providing of reasons can never be dispensed with. The doctrine of ‘audi alteram partem’ has three basic essentials, firstly; a person against whom an order is required to be passed or whose rights are likely to be affected adversely must be granted an opportunity of being heard, secondly; the concerned authority should follow fair and transparent procedure and lastly; the authority concerned must apply its mind and dispose of the matters by reasoned order or speaking order.
This has been uniformly applied by Courts in India and abroad [vide Assistant Commissioner, Commercial Tax v. M/s. Shukla (2010) 4 SCC 785 ]. 11. Here in this case, the order is passed totally discarding the explanation and findings recorded by the Quasi Judicial Authority. When the Quasi Judicial Authority passed such order without considering the requirements, such order of 3rd respondent cannot be sustained. Even otherwise, it is the duty of Quasi Judicial Authority to state its reasons on each issue by due application of mind, clarity of reasoning and focused consideration; a slipshod consideration or cryptic order without due reflection on issues raised in the matter may render such decree unsustainable and therefore, hasty adjudication must be avoided and each and every matter that comes to the Quasi Judicial Authority must be examined with seriousness it deserves as held by the Supreme Court in Board of Trustees of Martyr Memorial Trust and another v. Union of India and another [ 2012 (10) SCC 734 ]. 12. From the principles laid down in the above judgments, the order of 3rd respondent/Quasi Judicial Authority is nothing but a slipshod one without focused consideration on the issues raised by the petitioner herein. In such case, the same cannot be sustained. This Court reiterated the same principles in “Leela Enterprises, Rep. by its Proprietor K.Surender and another v. Smt.Kamar Sultana @ Kamer Hassan, 2017 (5) ALT 75 ” 12. In the result, the writ petition is allowed setting aside the order passed by 3rd respondent in PE-DECOTR/2/2020-JA(B2)-DCP&EVSKP dated 10.03.2020, declaring the same as illegal and arbitrary. There shall be no order as to costs. 13. Consequently, miscellaneous petitions, pending if any, shall stand closed.