Case: Ashok Lanka And Another Vs. S Rishi Dixit And Others

a statutory authority while exercising its statutory functions may do away with or dilute the statutory mandates. 77. In G.J. Fernandez (supra), again this Court was interpreting the conditions of NIT and not the statutory rules. It is only in the fact situation obtaining therein it was observed that the way in which the tender documents issued by it had been understood and implemented by the KPC had been explained in its note, which sets out the general procedure which the KPC was following in regard to NITs issued by it from time to time. The said decision has no application in a case requiring compliance of statutory requirements. 78. In Dr. Mahachandra Prasad Singh (supra), this Court was concerned with interpretation of an election of the Bihar Legislative Council Members (Disqualification on Ground of Defection) Rules, 1994. While considering the submission that an affidavit which is required to be filed in terms of sub-rule (6) of Rule 6 of the Rules, the Court held that the provisions thereof are not so mandatory in nature that even a slight infraction of the Rules would render the entire proceedings initiated by the Chairman invalid or without jurisdiction. It was in that sense the provisions were held to be directory in nature. We may notice that in terms of the Civil Procedure (Amendment) Act, 2002, a plaint must be verified by an affidavit, which is mandatory in nature. 79. In Nain Sukh Das (supra) this Court was concerned with a case where the election of the municipal member was sought to be set aside on the ground of alleged violation of Article 15(1) of the Constitution. In that case it was held that the petitioners therein never asserted their rights by taking appropriate proceedings to get the bar under Article 15(1) removed and in that situation, this the Court did not exercise its jurisdiction under Article 32 of the Constitution stating: ".... It may be, as we have already remarked, that the petitioners could claim such relief as rate-payers of the Municipality in appropriately framed proceedings, but there is not question of enforcing petitioners fundamental right under article 15(1) or article 14 in such claim. There is still less ground for seeking relief on that basis against respondent 3 who is only a nominated member..." 80. The said decision has no application in the instant case. 81. In K.N. Guruswamy (supra), the appellant therein sought to enforce his right in obtaining a contract to which he was entitled to but no relief was granted as the excise year had already expired. Issuance of such a writ was found to be resulting in futility. Such is not the case herein. 82. In Rajendra Singh (supra), this Court held that the jurisdiction of the High Court under Article 226 is not intended to facilitate avoidance of obligations voluntarily incurred, though the licensees are not precluded from seeking to enforce the statutory provisions governing the contract. 83. The writ petitioners herein filed a writ at a pre-selection stage and furthermore have not sought for enforcement of the contract. 84. In Balco Employees Union (supra), this Court was concerned with an economic policy of the State which is not the case herein. 85. Furthermore, it is now beyond any cavil that economic policies of the State although ordinarily would not be interfered with, but the same is not beyond the pale of judicial review. (See Cellular Operators Association of India and others vs. Union of India & others (2003) 3 SCC 186 ). 86. It is also not a case where no relief can be granted to the writ petitioners, as was done in the case of K.N. Guruswamy (supra), having regard to the fact situation obtaining therein. SHOULD WE ISSUE GUIDELINES: 87. Before parting, we make it clear that in these appeals we did not go into the larger question raised by Dr. Dhawan that the State must insist for a solvency certificate keeping in view the similar provisions contained in the statutes enacted by the others States, nor this Court, as at present advised, is inclined to issue the requisite guidelines therefor. 88. There cannot, however, be any doubt or dispute that having regard to the several decisions of this Court, e.g. The State of Bombay vs. R.M.D. Chamarbaugwala (1957) SCR 874 ), M/s. Fatehchand Himmatlal and others etc. vs. State of Maharashtra etc. (1977) 2 SCC 670 ), Khoday Distilleries Ltd. and others vs. State of Karnataka and others (1995) 1 SCC 574 ), B.R. Enterprises etc. vs. State of U.P. and others etc. (1999) 9 SCC 700 ), State of A.P. and others vs. Mcdowell & Company and others (1996) 3 SCC 709 ), State of Punjab and another vs. Devans Modern Breweries Ltd. and another (2004) 11 SCC 26 ), trade in liquor is considered to be res extra commercium although tobacco produce has not been declared so. (See Godawat Pan Masala Products I.P. Ltd. and another vs. Union of India and others (2004) 7 SCC 68 ). The State while exercising its power of parting with its exclusive privilege to deal in liquor has a positive obligation that any activity therein strictly conforms to the public interest and ensures public health, welfare and safety. Strict adherence to the requirement to comply with the statutory provisions must be considered from that angle. CONCLUSION: 89. The question, however, which now falls for consideration is as to what order should be passed in the peculiar facts and circumstances of this case. 90. In this case the mode of selection is in question. All the parties participated in the selection process. Some of them became successful. They had not complied with the statutory requirements not because they were not willing to do so but because the statutory authorities were not correctly advised. The conduct of the statutory authorities although must be deprecated but that by itself, in our opinion, may not come in the way of the successful candidates in getting the just relief.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]When a public interest litigation was entertained the individual conduct of the writ petitioners would take a backseat. There cannot be any doubt whatsoever that in a given case a party may waive his legal right. In an appropriate case, the doctrine of acquiescence or acceptance sub silentio may also be invoked.the High Court, in the instant case, has gone into the question with a wider perspective. This Court is not only required to construe the provisions of the statute but also to take into consideration the subsequent events which took place vis-a-vis the action on the part of the State after passing of the interim order. The issue as regard application of acquiescence or waiver, therefore, in our opinion has become irrelevant.Mr. Desai is also not correct in his submission that clause 22 of the said circular contemplates a future amendment in the rules. Even if the same contemplates a future amendment, the same would not sub-serve the statutory requirements inasmuch as the Commissioner of Excise was not supposed to know as to how the existing rules would be amended and whether the same would be applied prospectively or retrospectively. The Court cannot draw a presumption that the Commissioner of Excise could proceed on a pre-supposition that his action in issuing a circular contrary to rules would stand ratified by retrospective operation of the rules. A statutory authority, it is trite, must exercise his jurisdiction with the four-corners of the statute and cannot deviate or depart therefrom.We have noticed hereinbefore that despite the fact that the order of injunction was issued by the High Court while modifying the interim order on 7.3.2005, the State was asked not to publish the selection list. The contentions raised in the petitions for grant of special leave to appeal, however, leave no manner of doubt that such selection list whether in violation of the order of the High Court or otherwise had been published. If the said rules are considered to be retrospective, admittedly, the affidavits had not been filed on the next day of such selection and, thus, the rules are not capable of being implemented.We have noticed hereinbefore that even in the notice, the selected candidates had not been asked to submit affidavits in the prescribed format. It is not expected of the statutory functionaries to ask the selected candidates to comply with the requirements orally. It is beyond our comprehension as to why such a post haste action was taken by the State.Although we do not intend to put a seal of finality on the said issue, we are constrained to observe that having regard to the actions of the statutory functionaries, the entire exercise of the scrutiny as regard ascertainment of the eligibility of the candidates vis-a-vis selection process is required to be undertaken again by the Selection Committee. Furthermore, this Court is entitled to take into consideration subsequent events so as to do the complete justice to the parties.When this Court passed an interim order it was expected that the statutory requirements therefore, shall be complied with. Even if Rule 9 is held to be directory, substantial compliance thereof was necessary. A mandatory statute requires strict compliance whereas a directory statute requires substantial compliance. Even if a statute if a statute is directory, the State cannot say that the requirements contained therein do not envisage compliance thereof. The authorities of the State cannot raise a plea that they would not even notice the inherent defects contained in the application. They could not proceed on a presumption, for which there is no legal sanction, that contents of the affidavit would be correct. No summary report required to be prepared by the Member Secretary for its placement before the Committee appears to have not been prepared. The Rules postulate that each and every application must be examined carefully. Mere fact that a large number of applications have been filed, as a result whereof the State had been able to obtain crores and crores of rupees by itself did not entitle the State to dispense with the statutory requirements. The application fees were not meant to be utilized for the purpose of earning revenue but to meet the administrative charges required therefore. Application fees cannot be equated with tax.Before parting, we make it clear that in these appeals we did not go into the larger question raised by Dr. Dhawan that the State must insist for a solvency certificate keeping in view the similar provisions contained in the statutes enacted by the others States, nor this Court, as at present advised, is inclined to issue the requisite guidelines therefor.In this case the mode of selection is in question. All the parties participated in the selection process. Some of them became successful. They had not complied with the statutory requirements not because they were not willing to do so but because the statutory authorities were not correctly advised. The conduct of the statutory authorities although must be deprecated but that by itself, in our opinion, may not come in the way of the successful candidates in getting the just relief.