K NATARAJAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE appellant is the writ petitioner, and he prays for a mandamus or other appropriate writ against the first and second respondents. THEse are the State of Kerala and the Second Member of the Board of Revenue, who is ex-Officio Excise commissioner. THE third respondent is one Appukuttan Nair, who runs " Xavier Restaurant " in Quilon. THE writ petition has been dismissed by a learned judge of this Court, and hence this appeal.

(2.) AT this stage we would state the relevant facts, that are not in dispute. The appellant holds for the Quilon area, a license for sales of foreign liquor, particularly described as "retail (tavern)license". This is for the period from April 1, 1960 to March 31, 1961 , and has been, on February 29, 1960 , issued under R. 13 of the Rules framed under the travancore Abkari Act, 1073, because the appellant had then been the successful bidder at the public auction. The third respondent has been, under the same rule, granted a different license, particularly described as "the Foreign liquor No. 3 Hotel (restaurant) License. " This is for the same period and for the Quilon town. The legality of granting the latter license to the third respondent, has been challenged by the writ petition, firstly on the ground of R. 13 not having authorised the grant in favour of the third respondent. The appellant has next claimed that his fundamental right under Art. 19 [g] has been infringed by the license in favour of the aforesaid respondent. It follows that the main issue in the appeal is, how far the interpretation, the appellant seeks to place on r. 13, under which the third respondent been given the license, is correct. It would, therefore, be of advantage to quote the relevant part of the Rule: - Rule 13. "licenses for the sale of foreign liquor shall be of the following descriptions and in the forms appended hereto. (1) Foreign liquor 1 Wholesale License. This may be issued by the Excise Commissioner for an annual fee of Rs. 3,000 subject to such instructions as may be issued by Government from time to time. Under this license the sale of liquor in any quantity less than one gallon at a time to one person is prohibited. Liquor sold under the license shall not be consumed on the premises. [2] Foreign liquor 2 Retail [tavern] license. The privilege of sale under this license will be sold in public auction subject to the conditions of the sale notification, published by Government from time to time. The form of license will be prescribed by the Excise Commissioner. [3] Foreign Liquor 3 Hotel (restaurant) license. Licenses in this form may be issued by the Excise Commissioner at his discretion for an annual fee of Rs. 2,000/- in each case. In any locality, in which a retail [tavern] license is functioning, hotel [restaurant] licenses will be issued only to retail [tavern] licensees. But the Excise Commissioner may grant licenses to persons other than retail or tavern licensees for the financial year 1952-53 holding hotel [restaurant] licenses in that year".

(3.) IT is clear that in this case certiorari cannot be issued, for no judicial approach is required of the licensing authority, and, therefore, a writ of mandamus has been expressly prayed for by the appellant, or some other relief, which this Court would think appropriate in the circumstances of the case. IT follows that, if a writ of mandamus also cannot be given, the application would fail; for we cannot be framing a new writ for this case, which be contrary to precedent. The appellant's counsel has urged that mandamus can be issued even where the authority, against whom the writ is being asked for, has exercised the power, and the fact of the license having been already issued to the third respondent, would furnish no plea against the issuance of the writ in this case. In support of this argument, he has relied on Dinbai Petit v. M. S. Noronha AIR. 1946 Born. 407 at p. 421, where Chaghla, j. [as he then was], has made the following observation: "now, to my mind, it is essential that there must be in the law for the time being in force, some duty, cast upon the public officer. If he does not do the duty, then the Court can call upon him to do it. If he does it improperly or unauthorisedly, the Court can call upon him to forbear from doing it in that particular manner". In State of Bombay v. Lexmidas (AIR. 1952 Born. 468) the same learned judge has again stated where the writ of mandamus would be issued, and at p. 471 has said: "the main and principal object of a writ of mandamus is to compel government or its officers to carry out their statutory obligation. We may put it in a different way. The duty of the Court is to see that Government or its officers do not overstep the limits and the bounds that the statute has prescribed for the exercise of their power. If the legislature lays down that the power cannot be exercised except on the satisfaction of certain conditions and the officer exercises the power although the conditions are not satisfied, the Court will intervene and prevent the officer from acting contrary to the statute. The whole object of the Court is to see that the mandate which the legislature has given to Government or its officers is carried out, and if the court finds that the mandate is not carried out or is being violated, the court will pull up the Government or the officer and compel them to obey the mandate which the legislature has issued. " The appellant's counsel has also relied on Wazir Chand v. State of Himachal Pradesh, AIR. 1954 S. C. 415, where goods been already seized at the instance of the police of Jammu and Kashmir, but the seizure was held not to be under authority of law, there being no Magistrate's order. The supreme Court found that the action of the police, in these circumstances amounted to infringement of the fundamental rights under Art. 19 and 31, and mahajan, J. , directed an appropriate writ to be issued for the restoration of the goods seized by the police. The next authority relied in support of the argument, is Himmatlal v. State of Madhya Pradesh, AIR. 1954 S. C. 403, where appropriate writ was issued restraining the State of Madhya Pradesh from imposing tax on the appellant in exercise of the authority of Explanation II of the C P. and Berar Sales Tax Act, which was found to be in contravention of constitutional provisions. Reliance has also been placed on State of Bihar v. D. N. Ganguly, AIR. 1958 S. C. 1018, where the Government had cancelled two earlier notifications under S. 10 (1) of the Industrial Disputes Act, 1947, later issued another under the same Act, and the High Court issued a writ of certiorari against the last notification In this context, the learned judge has observed as follows: "it has, however, been held by this Court Government is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any-the-less administrative in character. That being so, we think it would be more appropriate to issue a writ of mandamums against the appellant in respect of the impugned notification. We would also like to add that since the first two Industrial disputes referred by the appellant under the first two notifications, have remained pending before the tribunal for a fairly long time, it is desirable that the tribunal should take up these references on its file and dispose of them as expeditiously as possible. " Finally, the counsel has referred us to T. C. Basappa v. T. Nagappa, AIR. 1954 S. C. 440, where it has been laid down that in view of the express provision of the Constitution, the Court need not look back to early history or procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. Mukherjea, J. , has further held that the court can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as it keeps to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law.