Case: Ghaio Mall &amp; Sons Vs. The State Of Delhi &amp; Others

1. The facts material for the purpose of disposing of this appeal by Special Leave are shortly as follows : The appellants before us claim to have been dealers in foreign liquor since 1922 and to have, before the partition of the country, held licenses in Forms L-1, L-2, L-10 and L-11 at Amritsar, Sialkot and Multan. The appellants allege that in 1945 they had also secured a license in Form L-2 in respect of some premises in Chawri Bazar, Delhi but that the operation of the said license had to be suspended on account of the unsuitability of the Chawri Bazar premises. Then came the communal riots in the wake of the partition of the country and that license could not be renewed. In 1951 the appellants applied to the Chief Commissioner, Delhi (Ex. 1) for licenses both in Forms L-1 and L-2 in respect of Karolbagh or at any place in Delhi. On May 17, 1951 the Home Secretary to the Chief Commissioner by letter (Ex. 2) conveyed to the appellants the sanction of the Chief Commissioner to the grant to them of a license in Form L-2 in respect of Karolbagh, Delhi. This license has ever since then been renewed from year to year. In 1954 a vacancy arose in respect of a license in Form L-2 on account of the closure of the business of Messrs. Army and Navy Stores of Regal Buildings, New Delhi, which held such a license. Accordingly on January 21, 1954 the appellants submitted an application (Ex. 4) to the Deputy Commissioner for the grant of a foreign liquor license in Form L-2 in the aforesaid vacancy. In that application the appellants stated, inter alia, that they were prepared to operate it in such a part of Delhi as may be determined by the authorities." Not having received any reply for nearly 3 months and apprehending that interested persons were endeavouring to cause hindrance in the matter of the granting of the license to them on the plea that the appellants had no premises in Connaught Place the appellants on March 11, 1954, wrote a letter (Ex. 5) to the chief Commissioner in which, after pointing out that Karolbagh where they had their L-1 license was in New Delhi, the appellants stated : "In any case, we have already made it clear in our application which we made to the Deputy Commissioner, Delhi on the 21st January 1954 that we are prepared to operate this license in any locality which the authorities might deem proper". This letter was acknowledged by the Personal Assistant to the Chief Commissioner who, on March 15, 1954, stated (Ex. 6) that the "application No. nil dated 18-3-1954 on the subject of grant of foreign liquor license in Form L-2" had been forwarded to the Home Secretary, Delhi State for disposal. Exhibit 7 to the petition is in important document. It is a letter dated May 2 , 1954, addressed by the appellants to the Excise and Taxation Commissioner stating that "with a view to avoiding any possible objection as to locality etc. we have secured suitable premises also in the Connaught Place area, New Delhi in which area has occurred a vacancy on account of the surrender of this license by Messrs. Army and Navy Stores". The letter concluded with the request that early orders be passed on their application. On July 30, 1954, the appellants wrote a long letter (Ex. 8) to the Chief Commissioner claiming justice in the matter of their application for the L-2 license. In the second paragraph of that letter it was statedis now being acclaimed by the party concerned and their friends that they have succeeded in removing the only obstacle that stood in the way of their getting the said L-2 license by so arranging matters that our application has been kept back by the Excise Commissioner and that only five or six other applications of firms without much merit in them have been forwarded to you in order that they might have a smooth sailing as against thoseappellants prayed that the Excise Commissioner might be directed to forward all records concerning the case to the Chief Commissioner so that the latter might be able to arrive at a just conclusion and they asked for a hearing to explain their claim fully. A copy of this letter appears to have been endorsed to the Excise Commissioner on August 13, 1934, by the Under Secretary, Finance. The Excise Commissioner then wrote a letter No. 295/C/54 dated August 31, 1954, to the Under Secretary, Finance, a copy of which was produced by the learned Solicitor General at the hearing before us. In this letter the Excise Commissioner explained why the application of the appellants was not considered by him to be a good and proper one and stated the reasons why, according to him, the applications of two other applicants, including Messrs. Gainda Mall Hem Raj (respondent No. 5), should be given the preference. In the penultimate paragraph of this letter of explanation it was stated : "In the end it may also be added that the applicant has no premise in New Delhi and as such he has no claim. The license in Form L-2 is granted in respect of certain premises." The conclusion was that "under the circumstances there is no force in the application of Messrs. Ghaio Mall and Sons." It is apparent that the Excise Commissioner did not remember that the appellants had, by their letter (Ex. 7) of May 21, 1954, addressed to him, stated that they had secured suitable premises also in the Connaught Place area, New Delhi. Be that as it may, on September 11, 1954, the appellants wrote another letter (Ex. 9) to the Chief Commissioner pressing their claim. In this letter reference was made to their letter to the Excise Commissioner of May 21, 1954 (Ex. 7), in which it had been stated that the appellants had secured suitable premises in the Connaught Place area in New Delhi. A copy of this letter was sent to the same Under Secretary, Finance to whom the Excise Commissioner had written his letter of August 31, 1954, alleging that the appellants had no premises in New Delhi. Exhibit 9A is the postal acknowledgment by the Under Secretary, Fianc_of the letter containing the copy of the appellants letter but it does not appear from the record that the Under Secretary, Finance thought it necessary to remind the Excise Commissioner that the appellants were maintaining that they had secured suitable premises in New Delhi. This was followed by a letter (Ex. 10) from the appellants to the Excise Commissioner intimating that an application had been made to the Collector on September 11, 1954, for a change of their premises for L-1 license from Karolbagh, New Delhi to H-32 Connaught Circus, New Delhi. Although this letter had been written in connection with the change of L-1 license, it certainly did specify that the appellants had secured the premises H-32 Connaught Circus. The personal Assistant to the Excise Commissioner replied (Ex. 11) that the matter was under consideration. There was a reminder (Ex. 12) sent to the Excise Commissioner on December 8, 1954, about the change of L-1 license from Karolbagh to Connaught Circus. It appears from papers, for the first time produced before us at the hearing of this appeal, that on September 3, 1954, a note was put up by the Under Secretary, Finance before the Finance Secretary, Shri S. K. Mazumdar. At the forefront of this note we find the following statement : "The applicants (Messrs. Ghaio Mall and Sons) have no premises in Connaught Circus. For this reason, if for no other, their claim has to be rejected." The note concluded with the recommendation that, in case it was decided that the vacancy should be filled, the recommendation of Excise Commissioner should be accepted, that is to say, the L-2 license should go to Messrs. Gainda Mall Hem Raj (respondent No. 5). On September 8, 1954, the Finance Secretary simply endorsed the file to the Chief Minister who, on September 14, 1954, recorded the following order on the file : "Commissioners recommendation may be accepted." There is nothing on the record produced before us to indicate that the matter was sent up to the Chief Commissioner or that his concurrence was obtained under S. 36 of the Government of Part C States Act (49 of 1951). On December 14, 1954, the Under Secretary, Finance wrote to the Excise Commissioner a letter which was for the first time produced at the hearing before the High Court and to which detailed reference will be made hereafter. On January 15, 1955, the appellants were informed that the change applied for by them in respect of their L-1 License had been allowed. The appellants were not told anything about the rejection of their application for L-2 license, but evidently they came to know that the L-2 license, for which a vacancy had arisen on account of the closure of Messrs. Army and Navy Stores had been granted to Messrs. Gainda Mall Hem Raj (respondent No. 5). On December 24, 1954, the appellants wrote severally to the Home Secretary (Ex. 14), Finance Secretary (Ex. 15) and the Under Secretary, Finance (Ex. 16) asking for a copy of the order or orders granting license to Messrs. Gainda Mall Hem Raj and/or rejecting their own application for L-2 foreign liquor license. Three postal acknowledgments (Exs. 16A, 16B, 16C) relating to those three letters are on the record. The appellants got no reply from any of them.2. Not having received any reply the appellants on December 21, 1954, moved the Punjab High Court (Circuit Bench) under Art. 226 for appropriate writs or orders, but as it was not then quite clear whether the order granting the license to Messrs. Gainda Mall Hem Raj had actually been made, the Circuit Bench summarily dismissed that writ application as premature. There were proceedings taken by the appellants to obtain leave to appeal first from this Court under Art. 136 which was adjourned sine die and then from the High Court under Art. 133, but it is not necessary to go into further details of those proceedings. After the appellants had definitely ascertained that the L-2 license had been granted to Messrs. Gainda Mall Hem Raj, the appellants, instead of proceeding with their application for leave to appeal to this Court, filed a fresh writ petition in the High Court (Circuit Bench) out of which the present appeal has arisen.

Reasoning:
We must also point out that when a superior court issues a rule on an application for certiorari it is incumbent on the inferior court or the quasi-judicial body, to whom the rule is addressed, to produce the entire records before the court along with its return. The whole object of a writ of certiorari is to bring up the records of the inferior court or other quasi-judicial body for examination by the Superior Court so that the latter may be satisfied that the inferior court or the quasi-judicial body has not gone beyond its jurisdiction and has exercised its jurisdiction within the limits fixed by the law. Non-production of the records completely defeats the purpose for which such writs are issued, as it did in the present case before be High Court. We strongly deprecate this attempt on the part of the official respondents to byepass the court. We are bound to observe that the facts appearing on the records before us disclose a state of affairs which does not reflect any credit on the administration of the erstwhile State of Delhi. We must, however, say, in fairness to the learned Solicitor General, that he promptly produced the entire records before us during the hearing of thisthe facts as they now emerge it appears to us that the High Court was under some misapprehension on both these points. We have already summarised all the statements and affidavits affirmed by the Finance Secretary and it is quite clear that the only thing that he did not say was that the Chief Commissioner had considered the applications or made anythe first place it is an inter-departmental communication. In the second pace it is written with reference to an earlier communication made by the Excise Commissioner, that is to say, ex facie, it purports to be a reply to the latters letter of August 31, 1954. In the third place the writer quite candidly, states that he had been "directed to say something - by whom, it is not stated, this makes it quite clear that this document is not the order of the Chief Commissioner but only purports to be a communication-at the direction of some unknown person - of the order which the Chief Commissioner had made. Indeed in paragraph 7 of the respondents statement filed in the High Court on February 2, 1955, this letter has been stated to have "conveyed the sanction of the Chief Commissioner of the grant of license to the 5th respondent". A document which conveys the sanction can hardly be equated with the sanction itself. Finally the document does not purport to have been authenticated in the form in which authentication is usually made. There is no statement at the end of the letter that it has been written "by order of the Chief Commissioner". For all these reasons it is impossible to read this document as the order of the Chief Commissioner.In the view we have taken it is not necessary for us to consider whether the action taken under the Excise Act and the rules thereunder was a judicial or an executive action, for even if it were of the latter category the letter of December 14, 1954, cannot be treated as an order properly authenticated to which the presumption raised by Art. 166 of the Constitution will attach. For reasons stated above we hold that there was no valid order granting the L-2 license to Messrs. Gainda Mall Hem Raj and that in the eye of the law the vacancy arising on the closure of the business by Messrs. Army and Navy Stores still remains unfilled. The applications of the appellants and other applicants were for a grant of L-2 license for 1954/1955. That year has gone past and accordingly in the changed circumstances we direct the Chief Commissioner to fill up the vacancy caused by the closure of the business by Messrs. Army and Navy Stores by inviting applications from intending licensees including the appellants and Messrs. Gainda Mall Hem Raj and granting the same to the most suitable party.