Civil Appeal No 5742 of 1983 Appeal by Special leave from the judgment and order dated the 7th May 1983 of the Assam High Court in Civil Rule No 1292 of 1982
KK Venugopal Ms Laxmi Venugopal AK Bordelay CS Vaidyanathan and Praveen Choudhary for the Appellants
SS Ray AS Pundir Vijay Hansaria Sunil Kumar Jain Mukesh Advani and Ms Mridula Ray for Respondent Nos 1  2 SKNandy for the Respondents 3  5
NR Choudhary for the Intervener
The Judgment of the Court was delivered by 828 SEN J
This appeal by special leave is directed against the judgment and order of the Assam High Court dated November 4 1982 concerns the propriety of the grant of a liquor licence
By the judgment the High Court quashed an order of the Board of Revenue dated February 111982 affirming the grant of licence in respect of Jorhat Country Spirit Shop No 1 made by the Deputy Commissioner Sibsagar Jorhat by his order dated August 28 1981 and instead of remitting the matter to the Board of Revenue for a decision afresh the High Court had directed the Deputy Commissioner to settle the liquor shop with respondents Nos 1 and 2 for the remaining period of the grant upto March 31 1984
The short question that arises in the appeal is whether it was proper exercise of jurisdiction by the High Court under article 226 of the Constitution to have issued a writ of mandamus ordaining the Deputy Commissioner to grant the licence
Further a question arises whether it was impermissible for the High Court to have embarked upon an inquiry into the facts and on a reappraisal of the evidence come to a finding contrary to that reached by the Board of Revenue based on appreciation of evidence that one set of rival claimants ie Parag Saikia and Prafulla Barua respondents Nos 1 and 2 were entitled to grant of such privilege in preference to the appellant under the note beneath r 2232 of the Assam Excise Rules 1945 for short Rules 
The facts of this case present a rather disturbing feature
Jorhat Country Spirit Shop No 1 is a big excise shop within the meaning of r 232 of the Rules
Under cla thereof the settlement of such a country liquor shop has to be made with a pair of tenderers constituting two or more partners
Five joint tenders were received in response to the notification issued by the Deputy Commissioner Sibsagar Jorhat calling for tenders of the country liquor shop for the financial year 1983 84
The Deputy Commissioner Sibsagar Jorhat in consultation with the Advisory Committee constituted for that purpose as required under r 208 by his order dated August 28 1981 settled the shop with the two appellants Bishnu Ram Borah and Bipin Chandra Borah
One set of the unsuccessful tenderers were respondents Nos 1 and 2 Parag Saikia and Prafulla Barua
Of them Parag Saikia respondent No 1 herein was held by the Deputy Commissioner to be a mere benamidar of a prominent businessman of Dibrugarh while respondent No 2 Prafulla Barua was a student studying for his BSc
degree and stying in a hostel at Golaghat which is a place some 30 miles away from Jorhat
The Board of 829 Revenue Assam by its order dated February 11 1982 upheld the settlement of the country liquor shop with the appellants
Being aggrieved by the decision of the Board two sets of unsuccessful tenderers viz respondents Nos 1 and 2 and the interveners Daya Ram Borah and Prabin Kumar Borah filed petitions under article 226 of the Constitution before the Assam High Court being Civil Rule Nos 215 of 1982 and 1163 of 1982
The High Court instead of taking up both the writ petitions together heard and decided the writ petition filed by respondents Nos 1 and 2 and by its judgment dated November 4 1982 quashed the order of the Board of Revenue and remitted the appeal to the Board for a decision afresh in the light of the observations made by it
The Board however by its order dated December 3 1982 maintained the settlement of the country liquor shop with the appellants
Thereupon respondents Nos 1 and 2 again moved the High Court under article 226 for appropriate writ direction or order in the matter of grant of the liquor licence
The High Court by its judgment dated May 7 1983 quashed the order of the Board of Revenue and instead of remitting the matter to the Board for a decision afresh issued a writ of mandamus by which it directed the Deputy Commissioner to settle the liquor shop with respondents Nos 1 and 2 for the remaining period of the grant upto March 31 1984
While making the direction the High Court observed that in case it was found that respondents Nos 1 and 2 were benamidars of anybody it would be open to the settling authority ie the Deputy Commissioner to cancel the liquor licence 
Further it observed that the grant  would be subject to the result of the decision in the writ petition filled by the interveners ie Civil Rule No 1163 of 1982 
Before proceeding further it is necessary to refer to certain provisions of the Assam Excise Act 1910 for short Act  and the Assam Excise Rules 1945 for short Rules  as amended from time to time
Section 181 of the Act provides 18 1
Prohibition of sale without licence and the exceptions to such prohibitions No intoxicant shall be sold except under the authority and in accordance with the terms and conditions of a licence granted by the Authority prescribed in the rules framed under this Act
 Rule 208 provides as follows Advisory Committee The Collectors should make settlements in consultation with an advisory committee
 830 Rule 2232 provides In making settlement to any person preference shall always be given to the educated unemployed youths or to co operatives and co opt firms formed by such educated unemployed youth
Preference shall also be given to the persons belonging to the more backward classes
 Note The term educated unemployed youth  as mentioned in sub rule 2 of Rule 223 means a person not exceeding 35 years of age who has passed the HSLC or its equivalent examination and is without any employment A few facts have to be stated
Before the Board of Revenue passed its earlier order dated February 11 1982 upholding the grant of licence by the Deputy Commissioner by his order dated August 28 1981 the Board had called a report from the Deputy Commissioner Sibsagar Jorhat and had also before it a parawise comment of the Deputy Commissioner
On an evaluation of the comparative merits and demerits and after eliminating the other sets of competitors  the Board upheld the grant of licence made by the Deputy Commissioner in favour of the appellants
On a careful consideration of the material on record and in the light of the confidential report made by the Deputy Commissioner the Board held that respondent Nos 1 and 2 were not suitable for the grant of licence for the country liquor shop
As regards respondent No1 Parag Saikia the Board relying upon the report of the Deputy Commissioner held that he was a mere benamidar of a prominent businessman of Dibrugarh who was trying to corner big liquor shops at Jorhat and that it was evident from the report that he mostly resides at Gauhati enjoying the pay and perquisites provided by this businessman and that he was apparently not an unemployed person as he was resorting to highly expensive litigation for getting a liquor shop licence
Further the Board observed that he had the means not only to prefer appeals before the State Government and the Board of Revenue but that he had also repeatedly moved the High Court for the grant of appropriate writ direction or order in the matter of settlement of a country liquor shop which showed that he had some strong financier behind him
As regards respondent No2 Prafulla Barua who was still a student studying for his BSc
degree and staying in a hostel at Golaghat the Board held that he could not be treated as an educated unemployed youth  within the meaning of the note beneath r223 of the Rules
831 In reaching the conclusion that it did the Board of Revenue observed In an excise settlement apart from the finance there is also the question of general suitability of the tenders for a particular shop
It came out during the hearing that this is one of the Sibsagar District
As such substantial revenue of the State is involved in this shop and the suitability of the lessee has therefore to be examined very closely
Under Rule 232 of the Excise Rules no distinction can be drawn between the legal liabilities of the two partners who will be jointly and severally responsible for the management of the shop
It is implicit in this Rule that the partners have to be more or less equal partners
It is also implicit that the settling authority should be satisfied about their respective role responsibilities investments and involvements
On a total consideration of the tender the memo of appeal and the various affidavits and other documents filed on behalf of the appellant Parag Saikia it appears doubtless that he is the dominant partner and his associate appears more as a show boy than even as a sleeping partner
 The Board then went on to say Reverting to the partnership of the appellants it is observed that their respective financial investment and physical involvement as well as the sharing of the profit or loss is not known
Indeed for the two persons living in two different Sub divisional Head quarter towns and having a substantial difference in age and present status it is difficult to be definite that they have the needed concord and compatibility or unity and understanding for operating a major shop like this
Again in a double lessee shop what is needed is not just a second helping hand to a lessee but it requires persons of a minimum calibre from the point of intelligence experience and businessman
Parag Saikia by his own admission found that the firm set up by him or joined by him had failed or were non starters
These considerations might have weighed with the Advisory Committee and the District Collector in not setting with Parag Saikia even any of the smaller shops for which he is known to have tendered 832 and Prafulla Barua being still an undergraduate student might have been considered unsuitable on that ground as well among others
 The Board of Revenue accordingly held that respondent No 1 Parag Saikia was a mere benamidar and therefore ineligible for the grant of licence while respondent No 2 Prafulla Barua being still a student studying for his BSc
degree was not suitable for grant of such privilege and at any rate he could not be encouraged when educated unemployed youths and other suitable tenderers were available
It found considerable force in the submission that the Board should adopt it as a policy to discourage students from entering into liquor business
Regrettably the High Court while allowing the writ petition preferred by respondent Nos 1 and 2 passed certain strictures which in our opinion should have been avoided
It found fault with the Board of having acted on the report of the Deputy Commissioner observing that the Board could not act on the ipse dixit of the Deputy Commissioner 
Further the High Court held that there was no basis for the Board to adopt a policy to discourage students from entering into liquor business when there was no such legal bar
Still further it observed that merely because respondent No 2 Prafulla Barua was a student of BSc
class and was staying at a hostel at Golaghat which was about 30 miles away it would not be difficult for him to carry on a partnership business at Jorhat where his cousin lives and further that he answers the description of educated unemployed youth  envisaged in the note beneath r223 of the Rules
It recorded that respondent No 2 Prafulla Barua had given an undertaking that he would give up his studies if the settlement of the liquor shop was made in his favour
There was no warrant for any of these observations made by the High Court and the High Court was not entitled to enter into a question of fact as to whether or not respondent No 1 Parag Saikia was a mere benamidar
It is somewhat strange that the High Court should have taken an undertaking from respondent No 2 Prafulla Barua that he would give up his studies if the settlement was made in his favour and observed that there was nothing in law to discourage students still undergoing their studies from entering into the liquor business and that he falls within he category of educated unemployed youth  within the note beneath r223 of the Rules 833 On remand the Board of Revenue by its order dated December 2 1982 reacted sharply to the observations and went on to say that the observations were uncalled for
That apart the Board observed that since the observations were on questions of fact they could not be taken as binding on the Board
It reaffirmed its earlier order upholding the grant of the licence to the appellants by the Deputy Commissioner
As regards respondents Nos 1 and 2 the Board relying on the report of the Deputy Commissioner held them to be unsuitable for the grant of licence
It held that respondent No 1 Parag Saikia was a mere benamidar of a mahaldar of Dibrugarh district who had cast his net far and wide in the Jorhat sub division and that respondent No 2 Prafulla Barua who was still undergoing his studies for the BSc
degree could not be regarded as falling within the category of educated unemployed youth appearing in the note beneath r223 of the Rules
Thereupon respondents Nos 1 and 2 again moved the High Court under Art226 of the Constitution for appropriate writ direction or order in the matter of grant of the liquor licence
As was expected the High Court strongly deprecated the action of the Board of Revenue defying the directions made by the High Court in exercise of its jurisdiction under article 226 of the Constitution and held that the Board had no other alternative but to decide the matter afresh in the light of the directions given by the High Court and expressed its regret that it had not done so at all observing Such an effort of subordinate tribunal is fraught with grave danger to the administration of justice known to the people of this country and had to be duly taken note of with great concern by all The High Court then went on to observe that the Board had thrown all judicial decorum and discipline to the winds by disregarding its judgment
It further observed A perusal of the impugned judgment shows that though the petitioners are entitled to preference under r2232 of the Assam Excise Rules 1945 hereinafter the Rules whereas the respondents land 2 are not they have not been found suitable for settlement for these reasons i Parag one of the petitioners is a benamidar 834 ii the partnership in question is sham and iii the petitioners are not financially sound to run the shop
 After adverting to the well settled principles relating to the power of the High Courts under Art226 of the Constitution to issue a writ of certiorari and observing that it was conscious of its own limitations in the matter the High Court nonetheless observed that it could definitely set aside the order of an inferior tribunal like the Board of Revenue founded even on some factual conclusions if they were based on irrelevant or extraneous materials or be such which no reasonable person could have reached or if they were grounded on a total misconception of law 
It held that a finding reached by the Board by disregarding the directions given to it by the High Court was in excess of jurisdiction
It is regrettable that the Board of Revenue failed to realize that like any other subordinate tribunal it was subject to the writ jurisdiction of the High Court under Art226 of the Constitution
Just as the judgments and orders of the Supreme Court have to be faithfully obeyed and carried out throughout the territory of India under Art142 of the Constitution so should be the judgments and orders of the High Court by all inferior courts and tribunals subject to their supervisory jurisdiction within the State under Art226 and 227 of the Constitution
We cannot but deprecate the action of the Board of Revenue in refusing to carry out the directions of the High Court
In Bhopal Sugar Industries Limited vs Income tax Officer Bhopal the Income tax Officer had virtually refused to carry out the clear and unambiguous directions which a superior tribunal like the Income tax Appellate Tribunal had given to him by its final order in exercise of its appellate powers in respect of an order of assessment made by him
The Court held that such refusal was in effect a denial of justice and is furthermore destructive of one of the basic principles in the administration of justice based as it is in this country on the hierarchy of courts
The facts of the present case are more or less similar and we would have allowed the matter to rest at that but unfortunately the judgment of the High Court directing the issue of a writ of mandamus for the grant of a liquor licence to respondents Nos 1 and 2 cannot be sustained
The High Court dealt with the finding of the Board as to whether or not the alleged partnership between respondents Nos1 835 and 2 was genuine
As regards the suitability in their ages which according to the Board would stand in the way of needed
concord and compatibility it felt that it was for respondent No2 Prafulla Barua to decide whether respondent No1 Parag Saikia was a suitable person with whom he should enter into a partnership
Secondly the High Court observed that it would not be difficult for respondent No2 Prafulla Barua although he was a student studying for his BSc
degree and staying in a hostel at Golaghat which was some 30 miles away from Jorhat to carry on the liquor business in partnership
Thirdly the High Court went into the question whether they had the requisite financial capacity to fulfil the requirements of r346
From all this it is quite evident that the High Court was oblivious of the limitations of its own powers under Art226 of the Constitution in the matter of grant of a writ of certiorari
It was impermissible for the High Court to have embarked upon an inquiry into the facts to adjudge the suitability or otherwise of the rival pairs of claimants and upon a reappraisal of the evidence come to a finding contrary to that reached by the Board of Revenue
There was nothing on record to show that the Board had acted in excess of jurisdiction or there was an error apparent on the face of the record which resuited in manifest injustice
That apart it was not a proper exercise of jurisdiction under Art226 of the Constitution for the High Court to have issued a writ of mandamus ordaining the Deputy Commissioner to grant the liquor licence to respondents Nos1 and 2 in preference to the appellants
Although a writ of mandamus may be a necessary adjunct to a writ of certiorari in the High Court was satisfied that a writ of certiorari had to be issued to quash the impugned order of the Board of Revenue on the ground that its order was vitiated by an error apparent on the face of the record the proper course for the High Court to adopt was to have issued a writ of mandamus to hear and redetermine the appeal according to law HWR Wade s Administrative Law 5th edn p638
The High Court was also in error in holding that the earlier order passed by the High Court remanding the case to the Board of Revenue contained a direction requiring the Board not to act upon the report of the Deputy Commissioner
The fact that the Board had in the past in some other case viz for the grant of liquor licence for Melan Country Spirit Shop not acted upon the report of the Deputy Commissioner against respondent No1 Parag Saikia was not 836 a ground sufficient for ignoring the adverse report of the Deputy Commissioner against him in the present case
It would be apposite to quote the report which reads as follows Jorhat town country spirit shop No1 with which shop we are concerned is meant for joint lessee
Just after the submission of the tender on 21881 secret information was received to the effect that Shri Parag Saikia one of the petitioners in the case is in the private employment of a prominent businessman of Dibrugarh district who is also said to be benamidar of important CS shops and Shri Saikia resides in Gauhati for the greater part of the year enjoying all the perquisites of the employer The secret information further indicates that the said benamidar of Dibrugarh district was trying to grab important shops of Jorhat Sub Division through Parag Saikia
The matter was discussed in the Advisory Board which rejected the tender of the joint appellant
 Further the High Court had observed that the Board could not have relied upon the report of the Deputy Commissioner unless respondents Nos1 and 2 were confronted with the same and respondent No1 was allowed to have his say in the matter
The responding of the High Court can hardly be supported
In the first place the Deputy Commissioner is the head of the administration of the district and is conversant with the local situation and has secret sources of information
Normally the Board is entitled to rely upon the word of the Deputy Commissioner
It is expected that the Deputy Commissioner would always act with a sense of responsibility
Secondly the report of the Deputy Commissioner was confidential in nature
There was no question of the Board disclosing the contents of the report to respondents Nos 1 and 2
Further respondents Nos1 and 2 never made a demand for a copy of the report and even if such a request was made the Board would have been fully justified in not furnishing the same
Such a refusal would not amount to denial of natural justice for the obvious reason that the rules of natural justice must necessarily vary with the nature of the right and the attendant circumstances
The grant of a liquor licence was not a matter of right but merely in the nature of privilege Furthermore the Board was entitled to call for a report of the Deputy Commissioner in an appeal of this nature
837 We cannot also subscribe to the view expressed by the High Court that respondent No2 Prafulla Barua who is a student of BSc
class still undergoing his studies falls within the description of educated unemployed youth  appearing in the note beneath r223 of the Rules
In our judgment the expression educated employed youth has definite legal connotation
It denotes a class of citizens who after completing their education are faced with unemployment R2232 read with the note embodies a rule of preference
The question of grant of preference under the note beneath r2232 can only arise when other conditions as regards suitability of the rival tenderers is equal Besides the construction placed by the High Court on the expression educated unemployed youth  is manifestly erroneous
By no stretch of imagination can a student still under going his studies in the university be regarded as having completed his education or being unemployed  youth
When a person is still pursuing his course of studies in a university we fail to see any basis for treating him as an educated unemployed youth 
The judgment of the High Court directing the issue of a licence to respondents Nos1 and 2 being based on the rule of preference contained in the note beneath r223 of the Rules cannot therefore be supported
The judgment of the High Court also suffers from a serious infirmity
As already stated instead of remitting the matter to the Board of Revenue the High Court issued a mandamus directing the Deputy Commissioner to make a grant of the licence to respondents Nos1 and 2
While doing so the High Court made a direction that the grant of licence would be subject to the result of the inquiry as to whether respondent No1 Parag Saikia was a benamidar and therefore not entitled to such grant
Moreover the High Court made the grant subject to the result of the writ petition filed by the interveners Daya Ram Borah and Prabin Kumer Borah which was still pending before it against the earlier order of the Board dated February 11 1982
We fail to appreciate the making of a grant in favour of respondents No 1 and 2 subject to the result of the inquiry as to whether respondent No1 Parag Saikia was a mere benamidar
If that were to be so it would affect the validity of the grant itself
Further the procedure adopted by the High Court in separately dealing with the writ petition filed by respondents Nos1 and 2 making a grant of the licence to them for the country spirit shop in question while the earlier writ petition filed by the interveners was still pending was not in consonance with law and rules of fairplay and justice
838 Before parting with the case we must express our deep sense of anguish that there should have been this unseemly tussle between the High Court and the Board of Revenue particularly the lack of restraint in the language used by the Board in its order dated December 3 1982
We also feel that the High Court was not right in criticizing the Board of Revenue in such strong language
The use of harsh language does not redound to the credit of anyone
There must be restraint at all levels as otherwise there can be no rule of law and our entire system of administration of justice will fail
For these reasons we set aside the judgment and order of the High Court as a consequence whereof the order of the Board of Revenue dated December 3 1982 will stand restored
We hope and trust that the High Court will be able to dispose of the writ petition as expeditiously as possible
The writ petition filed by the interveners shall also be heard and disposed of by the High Court along with this writ petition according to law
There shall be no order as to costs
HSK Appeal remanded


Summary:
The Board of Revenue on a consideration of the material on record as to the suitability or otherwise of the rival pairs of claimants upheld the grant of a liquor licence made by the Deputy Commissioner in favour of the appellants
It held that respondent No 1 was a mere benamidar of a prominent businessman and respondent No 2 being still a student studying for his BSc
degree could not be treated as an educated unemployed youth  within the meaning of the note beneath r 223 of the Assam Excise Rules 1945
The respondent Nos 1 and 2 and the interveners separately moved the High Court under article 226 of the Constitution
The High Court instead of taking up both the petitions together took the writ petition filed by respondents Nos 1 and 2 and on a reappraisal of the evidence came to the conclusion contrary to that reached by the Board
It accordingly quashed the order of the Board of Revenue and remanded the matter to the Board for a decision afresh in the light of the directions made by it
The Board took serious exception to certain observations made by the High Court and held that the directions issued were nothing but mere observations and therefore it was not bound by it
After hearing the parties the Board maintained its earlier order confirming the settlement of the liquor shop by the Deputy Commissioner with the appellants
Respondents Nos 1 and 2 again moved the High Court under article 226
The High Court passed strictures on the Board of Revenue for not having complied with its directions and on a consideration of the facts appearing came to the same 826 conclusion as before and quashed the order of the Board but instead of remanding the matter to the Board for complying with its earlier orders issued a writ of mandamus directing him to settle the country liquor shop with respondents Nos 1 and 2 on condition that the grant would be subject to an inquiry as to whether respondent No 1 was a mere be subject and also subject to the result of earlier writ petition filed by the interveners which was still pending
In appeal the two questions which arose were 1 whether it was impermissible for the High Court to have embarked upon an inquiry into facts and on a reappraisal of the evidence come to a finding contrary to that reached by the Board of Revenue and upon that basis issue a writ of certiorari under article 226 quashing the order of Board
And 2 Whether it was a proper exercise of jurisdiction by the High Court under article 226 to have issued a writ of mandamus ordaining the Deputy Commissioner to settle the country liquor shop with respondents Nos 1 and 2
Answering the first question in the affirmative and the second in the negative
 HELD  1
The High Court clearly exceeded its jurisdiction while issuing a writ of certiorari under article 226 of the Constitution in quashing the impugned order of the Board of Revenue to have embarked upon an inquiry into the facts and upon a reappraisal of the evidence come to the conclusion contrary to that reached by the Board of Revenue viz whether or not respondent No 1 was a mere benamidar
837 F G 2
It was also not a proper exercise of jurisdiction under article 226 for the High Court to have issued a writ of mandamus directing the Deputy Commissioner to grant the liquor licence to respondents Nos 1 and 2 in preference to the appellants
Although a writ of mandamus may be a necessary adjunct to a writ of certiorari if the High Court was satisfied that a writ of certiorari had to be issued to quash the impugned order of the Board of Revenue on the ground that its order was vitiated by an error apparent on the face of the record the proper course for the High Court to adopt was to issue a writ of mandamus to the Board to hear and redetermine the appeal according to law
835 E F HWR Wade s Administrative Law 5th edn p 638 referred to
The construction placed by the High Court on the meaning of the expression educated unemployed youth  appearing in the note beneath r 223 of the Rules is apparently erroneous
When a person is still pursuing his course of studies in a university one fails to see any basis for creating him as an educated unemployed youth
The expression educated unemployed youth in the note beneath r 223 has a definite legal connotation
It denotes a class of citizens who after completing their education are faced with the growing problem of unemployment
837 B D 827 4
The direction made by the High Court while issuing a writ of mandamus to the Deputy Commissioner ordaining him to grant the liquor licence to respondents Nos 1 and 2 that the grant would be subject to the result of an inquiry as to whether respondent No 1 was a mere benamidar and also subject to the result of the writ petition which was filed by the interveners and still pending appears to be unwarranted
If that were to be so it would affect the validity of the grant itself
It was also irregular for the High Court to have taken an undertaking from respondent No 2 who was a student still undergoing his studies for BSc
degree in a university that he would give up his studies in case he was given the liquor licence
The procedure adopted by the High Court in separately hearing the writ petition filed by respondents Nos 1 and 2 while the writ petition filed by the interveners was still pending and in not taking up both the writ petitions together and directing the Deputy Commissioner to issue a liquor licence to respondents Nos 1 and 2 was not in consonance with the procedure established by law and clearly in denial of rules of fairplay and justice
The Board of Revenue was bound to comply with the directions made by the High Court and it was not open to it to say that they were mere observations and not directions issued
The refusal of the Board to comply with the directions of the High Court issued under article 226 was in effect a denial of justice and also destructive of one of the basic principles in the administration of justice based as it is in this country on a hierarchy of Courts
Bhopal Sugar Industries Limited vs Income tax Officer Bhopal
1961 1 S CR 474 relied on