Ghaio Mall & Sons v. the State of Delhi & Others

Supreme Court30 Sept 1958[1959] 1 S.C.R. 1424

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• . '· 1424 ~UPREME COURT·~EPORTS • [1959)…

Ghaio Mall & Sons versus the State of Delhi & Others — Supreme Court (1959) — LawSathi Research

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1426 SUPREME COURT ·R:EPORT5 • [1959] authenticated order to which the j>resumption raised by Art. 166 of the Constitution could !'lroperly attach. • Ghaio Dattatreya 1\forcshu:·ar l!angarkar '" 1'he State of Bombay". Mall 6 So>1s [1952] S.C.H. 612, held ir.applicablc. v. n, State of C1nL APPELLATE Jt:RISDICTION: Civil Appeal Delhi (- 01h"s Ko. 481 of 1957. • • Appeal by special lean~ from the judgment. and order • dated December 12, 1955, of t.he Punjab High Court (Circuit Bench)' Delhi, in Civil Writ Application Xo. 11-D of 1955. Gurbachan Si711Jh and R. S. Narula, for the appellant. C. K. Daphtary, Solicitor-General of India, Ii. J. Umrigar and T. M. Sen, for respondents Nos. I t.o 4. • Dr. J. N. Banerjee and P. C. Agaru;ala, for respondent !'l'o. 5. 1958. September 30. The Judgment of the Court was delivered by • • Das C. ]. DAS C. ,J.-The facts material for the purpose of .. disposing of this appeal by special learn a.re shortly as follows: The appellants, before us cl:iim to ha.'tl been dealers in foreign liquor• sinco 1922 and to hao;tl, before the partition of the country, held licenses in forms L-1, L-2.. L-10 anti L-11 at Amritsar, Sialkot and Multan.' The appellants allege that in 1945 thoy had also secured a license in Form L-2 in respect of • some premises in Cha.wri Bazar, Delhi, but that the operation of the si>id license had to be suspended on account of the unsuitability of the Chawi-i Bazar pre.mises. Then ca.me the communal riots in t.ho wake of the partition of the country and that license could not he renewed. In 1951 the appellants applied to the Chief Commissioner, Delhi, (Ex. l) for licenses both in Forms L-1 and L-2 in respect of Karolbagh or at any pla.ce· in Delhi. On :\Iuy 17, 1951, l~ Home • Secretary to the Chief Commissioner by letter (l<}x, 2) • conveyed to the appellants the sanction of the Chief Commissioner to the grant to them of license in :Forin L-.i! :in respect of Karolbagh, Delhi. This .license ha8 ever Since then been rene\~d from year to •• .. • • • T

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vear. In 19.54 a vacancy a.rose in respect of a license in :E'orm L-2 on account of the closure of the business of Messrs. Army and Navy tores of Regal Buildings, New Delhi, which held such a license. Accordingly on January 21, 1954, the appellants submitted an applicatioll' (Ex. 4) to the Deputy Commissioner for tlte 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: "Ia 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 J;his license in any locality 'which the authorities might deem proper". This letter was acknowledged by the Personal Assistant to the Chief Commissioner who, on Ma-rnh 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 an important document. It is a letter dated l{ay 21, 1954, addressed by the appellants to· the Excie 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 area1 New Delhi, in wh_ich area has occurred a vacancy on account of t-he surrender of this license by Messrs. Army and Navy Stores". The letter concluded with the request that early orders be passed on their applicatiort. On July .30, 1954, the appellaitts wrote a long letter (E¥. 8) 'to· the Chief Commissioner claiming justice in the matter of th et; . . ..

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application for the L-2 licen8ct In th~ aecond para- Ghai" graph of that letter it was stated: "It is now being <">- S:11Js ftcclaimed by the party'concerncd and thoir friends v. that they have succeeded in removing the only obstacle Slate of t.hat stood in the way of their getting the said L-2 ~~~ 01hers license by so arranging matters that our applicaion has been kept back by lhe Excise Commissioner ttnd c. j. that only fi vc or six other applications of firms without much nrnrit in them have been forwarded to you in order that they might have a smooth sailing as against those applicants". The appellants prayed that the Excise CommiRsioner might he directed to forward all records concerning the case to the Chief Commi8sioner so that the latter might he able to arrive at a just conclusion find they asked for fL hearing to explain, their claim fully. A copy of this letter appears to ha,·e becd to the Excise Commissioner on August 13, 1954, by the Under Secretary, Fina.nee. The Excise Commissioner then wrote a letter o. 295. C/54 dMet! August 31, 19li!, to .the Under , Secret,Lry, Finance, ft copy of which was produced by the learned Holicit.or Genera.I at tlw hearing before us. In this letter the Excise Cojnmissioner cxpl1tin<'d why the application of the appellants was not eousidcretl • by him to be a good ftncl proper one lLIHi stated that reasons why .tccnrding to him, the ltpplications of two nth<!r applica.nt8, including lessrs Ga.incl11 !-fall Hem RlLj (respondent. o. 5), shnulcl he given the preference. In the penultim1ttc pa.ra.gmph of this letter of explanation it. was st,1tecl: ",In the end it may also he a.dcled that the applir.a11t !ms no pren\ises in New Delhi and as such he ha.cl no clai111. The lice11He in F<lrm L-2 is grnntecl in respect of cerl.,tin premises." The conchsion was that "under the eireurn,;tances there is no force in the application of Messrs. Ghaiu fall and ::-;ons." It is apparent that • the Excise C0ommissioner did not remember th11;t the • appellants ha.1, by their Jetter (Ex. 7) of :\la.y 21, 194, addressed t.o him, stated that they had secured smt'tble premies-also ill the Cnnnaught Place area, '.'\cw D.elhi. Be" t!lat as it ma', on September 11, 154, t.he appellants wrote another letter (Ex. "9) to the Chief

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CommissiolJilr' pressin~ tbJiir claim. In this letter reference was made to their letter to the Excise Commissioner of May 21, 1954, (Bx. 7) in which it had been stated that the appellants had secured suitable premises in the Connaught Place area in New Delhi. A co~ of this letter was sent to the same U ndeJ> 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 tqe postal acknowledgment by the Under Secretary, Finance, 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 jtppellants were maintaining that they had secured suitable premises in New Delhi. This was followed by a Jetter (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 Karol.. bagh, New Delhi to H. 32 Connaught Circus, New Delhi. Although this letter had been written in connectioT:t with the change of L-1 license, it certainly did '!!J'ecify that the appellants had secured the premises H-32 Connaught Circus. The personal Assistant to the Ex:cise CornmisBioner replied (Ex. ll) 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 tlrst time produced before us at the hearing of tis 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 Son) have no premises ill Connaught Ctrcus. For these reasons, 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 re~om-, mendation of the Excise Commissioner 'should be accepted, that i§ to say, the L-2 license should go tt>' •

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A written statement v&ifiell by the aifidavit. of Shri A/all Ghaio 6- Sons S. tiled on behalf K. Majumdar, the Finance Secretarv, has been of respondent~ l to 4. In paragraph 5 v. of that written statement it has been averred that all The Sta:e of the applications including the appellants' a.pplication Delhi & Otlrtts were i'n fact considered; but it is significant tl!at it has not been stated by whom the applications had ,.,., c. ]. been considered. }lcssrs. Gainda ,!all Hem Raj have filed an affidavit only stating that they had been informed that the Chief Commissiom•r had sandioned the grant of the license t-0 them. The appellants, with the leave of the High Court, filed a consolidated affidavit et.ting out facts including the fact that although thoy had written to the Home Secretary, the Finance Secretary and the Under Secretary, .FinatWA', asking for a copy of the order granting the license to l\fossrs. Gainda :\fall Hem Raj, no copy of the order or even a reply to the letters had been received. In reply t-0 the consolidated fresh affidavit an affidavit affirmed by the Finance Secretary (Shri ii K. )fajum. dar) has been filed. In paragraph 13 of this affidavit "' it has been stated that, since no appeal lies aganst. the order of the Chief Commisioner, the quest.ion of BUJ.lplying a copy of the order t-0 the appellantH does fl<it arise. Statements of this kind cannot but leave an impression in file mind of the (',ourt that the respondents were not squarely dealing with the case made • by the appellants, but were evading the production of the order of the Chief Commissioner which it was obviously insinuated not to have been made at all. In order to compel the respondents to produce the origina.I order, if any, the appellants made a.n aJ?plieation to the High Court supported by an affidavit. Para.graph 2 of the petition which wa8 quite precise reads thus: "2. Tat. with r~fcrence ,to paragraphs 7 & 8 of • the written statement and para.graphs 10 and ll of • the affidavit of the Finance Secretary it is submitted that the respondents have not filed any proper return to the rule isRued.bv thP ·Court inasmuch as the original order: sought. to be quashed with nothi,1gs etc., ·)l·hich led to those orders have been ;vithheld. by the . . .. ., • • • • •

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Liquor LicefJ.se Rules,' 1935. It is significant that although the Chief Minister, the Excise Commissioner, the Secretary of Delhi State, the Under Secretary, Finance, and the Chief Commissioner have been impleaded in the present proceedings as respondents Nos. 2, 3, 3A, 3B and 4 respectively and although they or at least some of them could have deposed to the material facts of their own personal knowledge, none of them ventured to file an affidavit dealing with the t:ategorical statement of the appellants that no order had at any time been made by the Chief Commissioner for granting the L-2 license to Messrs. Gainda Mall Hem Raj or rejecting the appellants' application. Instead of adopting the simple and straight forward -way these respondents have taken recourse to putting up the Finance Secretary to give obviously evasive replies which are wholly unconvincing. It is needless to say that the adoption of such dubious devices is not calculated to produce a favourable impression on the ... • mind· ties concerned in the matter. of th~ court as to the good faith \Ve must also point of the authori· out that 10Vhen a superior court issues a rule on an applica,tion 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 wb.oho 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 eoxercised 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 the High Court. We strongly deprecate this attelll.pt on the part ·of. the official respm1.dents to bye-pass the court. We are bound to observe that the facts appearing on the records before us disclose a state of affairs hich does not reflect any credit on the administration of the• erstwhile StMe of Delhi. •We m,ust, however, say, in fairness to tb-'1 learned Slicitor-General,,that he promptly produceg

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