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K. Gopal Rao v. Excise Superintendent, Adilabad, And Others
Summary of Legal Opinion
Factual and Procedural Background
The right to vend liquor in the State is governed by the Andhra Pradesh Excise Act, 1968. For the Abkari year 1978-79 the writ appellant obtained an excise licence to vend arrack from the Advelly group of arrack shops. The Excise Superintendent, Adilabad, purportedly exercising powers under Section 31 of the Act, cancelled the appellant's licence by an order dated 11-5-1979 on the ground that the appellant's partner, Ganga Gowd, had committed an excise offence by selling adulterated toddy at his licensed toddy shop.
The appellant filed a writ petition challenging the cancellation. That writ petition was dismissed by Chennakesav Reddy, J., on 27-6-1979 on the ground that Section 63(1) of the Act gave the appellant a right of appeal and that, read with Article 226, Clause (3) of the Constitution (as it existed at the relevant time), the statutory provision operated as a jurisdictional bar to the High Court entertaining the writ petition. The present writ appeal challenges that dismissal.
Legal Issues Presented
- Whether, in view of Article 226, Clause (3) of the Constitution as it existed at the relevant time, the existence of Section 63(1) of the Andhra Pradesh Excise Act, 1968 operates as a bar to the jurisdiction of the High Court to entertain the appellant's writ petition filed against the Excise Superintendent's cancellation order.
Arguments of the Parties
Appellant's Arguments
- The appellant's counsel argued that Section 63(1) of the Act does not fall within the description of Article 226, Clause (3), because the appellate provision in Section 63(1) applies only to orders passed "under the Act." He contended that the order passed by the Excise Superintendent is a nullity and therefore cannot be described as an order passed "under the Act."
- In other words, the appellant argued that Section 63(1) would be available only against valid orders passed under the Act and not against orders which are purported or void; hence the statutory appeal remedy would not be an effective bar to writ jurisdiction in this case.
- The appellant relied principally upon the Gujarat Full Bench decision in Ahmedabad Cotton Manufacturing Co. Ltd. v. Union of India (AIR 1977 Guj 113) to support this contention.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Baburam v. Zilla Parishad | "It is true that the existence of a statutory remedy does not affect the jurisdiction of the High Court to issue a writ" (as interpreting Article 226 prior to the 42nd Amendment). | Referenced to illustrate the pre-42nd Amendment position where statutory remedies did not necessarily bar writ jurisdiction; contrasted with post-42nd Amendment law. |
| Municipal Council, Khurai v. Kamal Kumar | "Though the High Court would not ordinarily entertain a petition under Article 226... where an alternative remedy is open... it has jurisdiction to grant relief... if it thinks proper." | Used to exemplify the pre-42nd Amendment discretionary approach of High Courts when an alternative remedy existed. |
| Ahmedabad Cotton Manufacturing Co. Ltd. v. Union of India (AIR 1977 Guj 113) (FB) | The Gujarat Full Bench reasoned that orders ex facie without jurisdiction or in violation of fundamental principles (purported orders) would not escape High Court scrutiny under Article 226, and distinguished between "real" orders and "purported" orders. | Cited by the appellant in support of the contention that Section 63(1) does not apply to purported/nullity orders. The court considered these observations but rejected the Gujarat Full Bench's main distinction for the purposes of the present appeal, while acknowledging the Gujarat bench recognized the possibility that a statute might provide remedy even against purported orders. |
| Anisminic Ltd. v. The Foreign Compensation Commission (House of Lords) (1969) 2 AC 147 | Reversed the classical view: a legally wrong adjudication is no different from a purported adjudication; limited margin for legal error by administrative bodies. | Relied upon by the Gujarat Full Bench; the court here criticized reliance on Anisminic for the proposition that Article 226, Clause (3) would not apply to a purported adjudication, observing that strict application of Anisminic would undermine Article 226(3). |
| M. L. Sethi v. R. P. Kapur | Quoted observation: "Anisminic leaves the Courts or Tribunals virtually with no margin of legal error." | Cited to support the discussion of Anisminic's effect on the distinction between real and purported orders. |
| Heydon's case (1584-76 ER 637) | Rule cited as a method of statutory interpretation (approach to ascertain legislative intent and historic context). | The court said it was right to approach the problem via the rule in Heydon's case, noting that the 42nd Amendment changed the law by making the availability of a statutory remedy a clear bar to writ jurisdiction. |
| Smt. Marchhia Sahun v. State of West Bengal | The opinion refers to this case as one to which the same reasoning would equally apply. | Mentioned to indicate that the court's reasoning and conclusion are equally applicable to that authority; no further principle from that case is elaborated in the opinion. |
| Government of India v. National Tobacco Co. of India Ltd. (Full Bench) | Interpreted Article 226, Clause (3) and did not accept the distinction made by the Gujarat Full Bench between real and purported orders. | The court stated it was bound by and preferred to follow this Full Bench decision of its own High Court over the Gujarat Full Bench decision and applied it in reaching its conclusion. |
Court's Reasoning and Analysis
The court started from the constitutional and statutory context. Article 226 originally conferred broad writ jurisdiction on High Courts, but the 42nd Amendment introduced Article 226, Clause (3), which provides that no petition for redress shall be entertained if any other remedy for such redress is provided by or under any other law then in force. The court observed that prior to the 42nd Amendment the existence of a statutory remedy did not necessarily operate as a bar to writ jurisdiction; that position had changed after the 42nd Amendment.
Section 63(1) of the Andhra Pradesh Excise Act, 1968 provides: "Any person aggrieved by an order passed by any officer, other than the Commissioner or Collector, under this Act, may, within forty five days from the date of communication of such order, appeal to the Deputy Commissioner." The court noted that prima facie this provision appears to provide the statutory remedy contemplated by Article 226, Clause (3).
The appellant's central contention was that Section 63(1) does not apply because the cancellation order was a nullity and therefore not an order "under the Act." The appellant relied on the Gujarat Full Bench decision in Ahmedabad Cotton Manufacturing Co. Ltd. v. Union of India, which distinguished between real orders and purported/void orders not made under the statute.
The court examined the Gujarat Full Bench reasoning and concluded that while that bench recognised that a statute might provide an alternative remedy even against purported orders, its main distinction between real and purported orders was not decisive for the present case. The court emphasized that the Excise Superintendent is a statutory functionary whose authority to cancel licences is traceable only to the Act, and that the Superintendent had issued notice before cancelling the licence. For these reasons the court held that the cancellation order, however wrong or illegal, was made "pursuant to" or "under" the Excise Act.
The court also considered the House of Lords decision in Anisminic, which had eroded the classical distinction between jurisdictional error and other errors. The court observed that a strict application of Anisminic would make Article 226, Clause (3) ineffective and therefore found it difficult to adopt the Gujarat Full Bench's reliance on that reasoning.
Applying the rule in Heydon's case as a tool for statutory interpretation, the court read the 42nd Amendment as deliberately changing the law to make the availability of an efficacious statutory remedy a bar to writ jurisdiction. The court therefore concluded that Section 63(1) provides an alternative remedy within the meaning of Article 226, Clause (3), and that the appellant must first pursue that remedy.
The court further stated its preference to follow the Full Bench decision of its own High Court in Government of India v. National Tobacco Co. of India Ltd., which did not accept the Gujarat distinction, and treated that Full Bench as binding on the court.
Holding and Implications
Holding: The court dismissed the writ appeal. The core ruling is emphasized as follows:
APPEAL DISMISSED
Implications:
- The court held that the order of cancellation by the Excise Superintendent was made "under the Act" and that Section 63(1) of the Andhra Pradesh Excise Act, 1968 provides an alternative statutory remedy (an appeal to the Deputy Commissioner within forty-five days).
- Because an efficacious statutory remedy exists under Section 63(1), Article 226, Clause (3) operates to bar the High Court from entertaining the appellant's writ petition in this case (fundamental rights being excluded).
- The direct effect on the parties: the appellant is debarred from obtaining relief in this writ jurisdiction and is to resort to the statutory appeal under Section 63(1). The court dismissed the writ appeal without costs and ordered that there shall be no advocate's fee.
- The court stated its preference to follow the Full Bench decision of its own High Court in Government of India v. National Tobacco Co. of India Ltd. over the Gujarat Full Bench decision and applied that reasoning in this case.
Disposition: Appeal dismissed.
1. The right to vend liquor in our State is governed by the Andhra Pradesh Excise Act, 1968 (hereinafter referred to as 'the Act'). Section 13 of the Act forbids the sale of liquor except under a licence. For the Abkari year 1978-79, the writ appellant obtained under the provisions of the above Act, an excise licence to vend arrack from Advelly group of arrack shops. Section 31 of the Act empowers the Excise authorities to suspend or cancel a licence under certain circumstances and conditions. The Excise Superintendent, Adilabad, purporting to exercise his powers under Section 31 of the Act, cancelled the appellant's licence by his order dated 11-5-1979 holding that the appellant's licence was liable to be cancelled on the ground that the appellant's partner one Ganga Gowd, had committed an Excise offence at Mujigi by selling adulterated toddy at the latter's licensed toddy shop. Challenging that order of cancellation, the appellant had filed a writ petition which was dismissed by our learned brother Chennakesav Reddy, J., on 27-6-79 on the ground that the appellant had been given a right of appeal by Section 63 (1) of the Act to make a complaint against the aforesaid order of the Excise Superintendent, Adilabad, and, therefore, that statutory provision read with Article 226, Clause (3) of the Constitution would operate as a jurisdictional bar for this Court to entertain any Writ Petition challenging the order of the Excise Superintendent, Adilabad. It is against this order of the learned Judge, the present writ appeal has been filed.
2. The one and the only question which this writ appeal raises for our consideration is whether in view of Article 226, Clause (3) of the Constitution as it existed at the relevant time, the existence of Section 63 (1) of the Act operates as a bar to the jurisdiction of this Court to entertain the appellant's writ petition filed against the order of the cancellation passed by the Excise Superintendent, Adilabad.
3. The original Constitution worded Article 226 in the widest language possible. That provision of the Constitution conferred, for the first time on all the High Courts, power and jurisdiction to issue writs, orders and directions for the enforcement of the fundamental rights and also for any other purpose. For what other purposes, under what circumstances, and at whose instance these powers are to be exercised are all left open and unspecified by the language of the original Constitution. The original Article 26 of the Constitution was intended to bear the major part of the burden of policing the rule of law. Ubi jus Ibi Remedium, is its battle cry. It is no wonder what the people of our country who have so much realized through their suffering in the recent times the truth of this ancient saying not merely extolled Article 226 and welcomed it more than any other part of the Constitution but some of them had even called it as 'Conscience of the Constitution'. It may be, because of this reason that despite several amendments the Constitution had undergone, Article 226 was left almost untouched. The First Amendment to Article 226 in the year 1963 is not a diminution of its authority but is only an accession of further strength, for it widened the territorial jurisdiction of Art. 226. It was under the Constitution 43rd Amendment, Article 226 suffered a major depletion of its majesty and authority which we may mention had been restored to it by the 44th Amendment of the Constitution with which we are not concerned in this writ appeal. In the form of Art. 226, Cl. (3) introduced by the 42nd Amendment, the High Courts had altogether been denied jurisdiction to issue writs in all cases excepting those for the enforcement of fundamental rights where there is any other remedy provided for the redressal of the grievance by or under any other law. Prior to the 42nd Amendment, the existence of a statutory remedy intended to redress a grievance did not operate as a Constitutional bar for the High Courts to issue writs to set right the wrong done. But under the 42nd Amendment, the existence of such a remedy was made to operate to oust the writ jurisdiction of the Courts.
4. In Baburam v. Zilla Parishad, , the Supreme Court interpreting Article 226, as it stood prior to the 42nd Constitution Amendment, observed,
"It is true that the existence of a statutory remedy does not affect the jurisdiction of the High Court to issue a writ".
Similarly, in Municipal Council, Khurai v. Kamal Kumar, , the Supreme Court ruled,
"Though the High Court would not ordinarily entertain a petition under Article 226 of the Constitution where as alternative remedy is open to the aggrieved party, it has jurisdiction to grant relief to such a party if it thinks proper to do so in the circumstances of the case".
Under the 42nd Amendment by means of Article 226, Clause (3),
"no petition for the redress of any injury .... Shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force".
5. It is, therefore, clear that if Article 226, Clause (3) of the Constitution would apply to the facts of the present case, this court would not have any jurisdiction to entertain the appellant's writ petition. For the applicability of Article 226, Clause (3), there must be a statutory remedy provided by law for the time being in force. Section 63 (1) of the Act which reads as follows: -
"Any person aggrieved by an order passed by any officer, other than the Commissioner or Collector, under this Act, may, within forty five days from the date of communication of such order, appeal to the Deputy Commissioner".
Does appear to provide such a statutory remedy as contemplated by Article 226, Clause (3). It should, therefore, follow that the appellant must be put out of Court on the ground that he has 'other remedy' for the redressal of his grievance.
6. But the appellant's counsel argued before us that Section 63 (1) of the Act does not fall within the description of Article 226, Clause (3). He argued in support of his contention that the appellate provision contained in Section 63 (1) of the Act would be available only against orders passed 'under the Act'. As the order passed by the Excise Superintendent, Adilabad, is a nullity, it cannot be said to be an order passed 'under the Act'. The appellant's counsel in other words argued, that the appellate provision contained in Section 63 (1) of the Act would be available only against invalid orders passed by the authorities 'under the Act'. In support of this contention, the appellant mainly relied upon a Full Bench decision reported in Ahmedabad Cotton manufacturing Co. Ltd. v. Union of India, AIR 1977 Guj 113.
7. Although there are observations in the judgment of the Gujarat Full Bench which support the contention of the appellant, we do not think that they are decisive in deciding the present writ appeal before us. The Gujarat Full Bench reasoned that "the orders ex facie without jurisdiction or in violation of fundamental principles of judicial procedure which were not real but purported orders", would not escape the judicial scrutiny of the High Court under Art. 226 of the Constitution. The above quoted observations of the Gujarat High Court lay down that a statutory remedy within the meaning of Article 226, Clause (3) would normally cover only invalid orders and not void orders. The Gujarat judgment, therefore, does not say that a statute cannot provide for a remedy either by way of appeal or a revision against what may be called as 'void orders'. In the latter part of its judgment, the Gujarat Full Bench had clearly laid down, "If the Act remedy is so wide as to cover even purported orders so that no part of the activity of the authority is a collateral activity, the Act having provided for direct remedies to such a wide extent, that remedy would have to be first exhausted."
The Gujarat Full Bench, therefore, clearly recognizes the legal possibility of a statute providing for an alternative remedy even against the so called 'void orders'. For the applicability of Gujarat principle, it is, therefore, not enough for the appellant to contend that the impugned order is totally without jurisdiction but it is also essential for the appellant to successfully argue that that order is not the one passed 'under the Act' and, therefore, Section 63 (1) of the Act. Independent of the provisions of the Act. Independents of the provisions of the Act, the Excise Superintendent has no power to cancel the licence. His is the authority to cancel the licence. Similarly, his power to cancel the licence on the ground that the appellant's partner had committed an Excise offence is one relatable to section 31 (2) of the Act. Before cancelling the appellant's partner had committed an Excise offence is one relatable to Section 31 (2) of the Act. Before cancelling the appellant's licence, the Excise Super intendent had issued a notice to the appellant. It is, therefore, clear that the order of cancellation of the appellant's licence of Advelly group of arrack shops however, wrong or illegal it may be is one done pursuant to the Excise Act. Without that Act, the question of cancellation of the licence of the appellant by the Superintendent does not arise. An act which is done pursuant to a statutory authority even though illegal cannot but be considered as having been done under that Act. It is all the more so where the authority which has cancelled the licence cannot trace its power to any other source except the Act. It is, therefore, clear that the provisions of Section 63 (1) of the Act take in all orders passed pursuant to the Excise Act. The intention of the Act is clearly to provide a cheap and quick remedy against the orders of the Excise Authorities without reference to the fact whether the orders are legal or illegal. Section 63 (1) of the Act deliberately did not use the limiting words such as 'by virtue of' which would have probably confined the appellate provisions only to those orders that can strictly trace their parentage to the Act. For these reasons we reject the argument of the appellant and hold that the appellate provisions of Section 63 (1) would operate in conjunction with Article 226, Clause (3) to debar the appellant from invoking the jurisdiction of this Court in the present case.
8. In principle also we are unable to agree with the main decision of the Gujarat High Court. The Gujarat decision makes a distinction between a real order and a purported order and holds that the bar of Article 226, clause (3) would operate only in case of a real order. This one time judicially fashionable distinction that has been well received into the jungle of English Administrative Law has now become almost obsolescent by reason of the recent judgment of the House of Lords Anisminic Ltd. v. The Foreign Compensation Commission, (1969) 2 AC 147 on which the Gujarat Full Bench depends so heavily, According to the classical view the question of jurisdiction would arise at the commencement and not in the course of nor at the conclusion of trial. According to the classical theory, a Tribunal which legally enters up on an inquiry cannot, therefore, be guilty of a jurisdictional excess, for it has jurisdiction to decide rightly or wrongly. This position was clearly reversed by the House of Lords in Anisminic case (1969) 2 AC 147. The House of Lords in that case had almost said that there is jurisdiction for the Court or the Tribunal if the decision is right in law, none if it is wrong. According to the Anisminic case 91969) 2 AC 147, a real but a legally wrong adjudication would be in no different or better legal position than a purported adjudication. As Mathew J. said, 'Anisminic leaves the Courts or Tribunals virtually with no margin of legal error'. (M. L. Sethi v. R. P. Kapur, ). If we strictly follow Anisminic case in interpreting Article 226, Clause (3), Article 226, Clause (3) would nearly be a dead letter. We find it, therefore, difficult to follow the basis of the decision of the Gujarat Full Bench in holding that Article 226, Clause 93) would not apply to a purported adjudication.
9. We think it right to approach the whole problem from the point of the rule in Heydon's case (1584-76 ER 637). Prior to the 42nd Amendment, a statutory alternative remedy was no bar to the jurisdiction of a Writ Court to issue a Writ. The matter was left to the judicial discretion. Now the 42nd Amendment intends to bring about a change in this legal situation. The 42nd Amendment, therefore, makes the existence of such a remedy a clear bar to the exercise of jurisdiction. Courts interpreting a constitutional amendment cannot but take full note of these changes. With great respect, we cannot, therefore, agree with the Gujarat view.
10. What we say would equally apply to Smt. Marchhia Sahun v. State of West Bengal, .
11. The real meaning of Article 226, Clause (3), however, distasteful to judicial conscience it may be, is to exclude the applicability of writ jurisdiction in all cases where the statute provides for an efficacious remedy (of course, fundamental rights being excluded). A Full Bench judgment of our High Court in Government of India v. National Tobacco Co. of India Ltd., , interpreting Article 226, Clause (3) did not lay down any rule accepting the distinction made by the Full bench of the Gujarat High Court. Bound as we are by the Full Bench of our High Court, persuaded as we are by the Correctness of that decision, we prefer to follow the judgment of our Full Bench reported in Govt. of India v. National Tobacco Co. of India Ltd. (supra) to that of Gujarat High Court reported in Ahmedabad Cotton manufacturing co. Ltd. v. Union of India (AIR 1977 Guj 113) (FB).
12.The Impugned order in this case has been made by an Excise Officer who as we have already noted, is a statutory functionary clothes with authority to cancel Excise licence. His order may be right or wrong, but still it is, as we have held, one made 'under the Act'. Inasmuch as the order is one made 'under the Act', the appellant has a right of appeal assured to him under Section 63 of the Act. That provision for appeal operates as a bar for the entertainment of the present writ petition. The argument of the appellant that an order illegally made cannot be called as an order made under the Act, does not appeal to us. The implication of this argument is that an appeal can only be filed against an order made by the lower Excise authorities in conformity with and in accordance with the statute. Probably in such a case, there is no need for anyone to file an appeal at all. The Statute when it speaks of appeals against orders made under the Act, must be intended to cover every type of order cancelling or suspending a licence made by an Excise authority. The argument of the appellant would give the word 'under' a greatly restricted meaning which belongs to the words 'by virtue of'. In the circumstances agreeing with the appellant's counsel's argument would involve the substitution of the word 'virtue' in the place of 'under' which we cannot obviously do. Further the argument if accepted denudes the appellate provision of its efficacy.
13. In the circumstances, we, agree with the conclusion of our learned brother and dismiss this Writ Appeal without costs. There shall be no advocate's fee.
14. Appeal dismissed.
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