1. This is a Rule calling upon the respondents to show cause why the findings, judgments and orders complained of in the petition should not be set aside and/or brought up for correction or why the license of the petitioner should not be restored to him or why a Writ of, or in the nature of, Mandamus and/or Certiorari should not issue restraining the respondents from giving effect to the orders complained of. An ad interim order was granted staying the operation of the order of cancellation of the license pending the hearing of this Rule. The facts shortly are as follows: The petitioner was the holder of a license in respect of a country spirit shop at Wasabari in the district of Jalpaiguri. On 12-2-1950, at about 6 p.m Janab A. Matleb, Superintendent of Excise, Jalpaiguri, made a surprise inspection of the shop.
2. The way in which the inspection was conducted is as follows:
3. A trial purchaser by the name of Shawna Garirnan was sent into the shop by the Superintendent to buy a bottle of country liquor which should contain 20 ozs. of 77.5 U.P country liquor, the prescribed price being Rs. 0-14-6p. A sum of Rs. 0-7-6p. was payable for the bottle refundable if the bottle was returned. While the bottle was being purchased, the Superintendent stood outside watching the transaction. Immediately on the purchase being concluded, the Superintendent entered the shop and the bottle was found to contain not 20 ozs. but 16 ozs. The price charged was Rs. 1-6-0 which is above the price that could be charged for 16 ozs. and the bottle was under-weight. There is a previous conviction of the petitioner for selling underweight. The Inspector (Superintendent?) also discovered the following other irregularities. The petitioner was absent from the shop at the time of the trial purchase and the sales were being conducted by a salesman who was not registered according to the excise rules. Upon examination it was further found that the account books were not up to date but were written only up to the 10th February 1950 and even that was not complete.
4. On 30-3-1950 a notice was served by the said Mr. Matleb, Superintendent of Excise Jalpaiguri, upon the petitioner to show cause why he should not be penalised for the following irregularities as detected on the 12th February 1950.
(1) The account-books were not found to be written after the sales of 10-2-50 (including the bottling Register and the Cash Book.)
(2) The trial purchaser was served only 16 oz. of 77.5° U.P liquor while he demanded 20 ozs.
(3) Rs. 1-6-0 was charged for 16 oz. of 77.5° U.P liquor.
(4) Sales conducted by an unauthorised salesman Raghunath Prosad Shaw.
5. It is not denied that under the Excise Rules account-books have to be written up-to-date and that the salesman in charge of the sales must be registered and that it is contrary to law for sales to be conducted by an unauthorised salesman. At the time of inspection the explanation given as to the account-books not being up to date was that the sales man was weak and could not write the account-books. No explanation was offered for the other breaches expect a bare statement that an explanation will be submitted later on. The report of the Superintendent of Excise dated 12-2-1950 contains a statement that the trial purchaser had not consumed any liquor from the bottle purchased and this was found by smelling his mouth. The purchaser made a statement supporting this. On 17-4-1950 a petition was filed on behalf of the petitioner purporting to give an explanation in respect of the charges. As regards the unauthorised salesman it is stated that the old salesman Dinesh Chakravarty was on leave and the petitioner was obliged to engage one Raghunath Prosad Shaw and that a letter had actually been posted to the Superintendent for his approval. It is stated that on the morning of 12-2-1950 the petitioner had discussed this matter with the Superintendent of Excise who had approved of his appointment on 20-2-1950. But even so, it is quite clear that on 12-2-1950, Raghunath Prosad Shaw was an unauthorised salesman and had no business to be in charge of the sales.
6. As regards the failure to write the account-books properly it is stated that the salesman had been ordered by the petitioner to write up the books but he had failed to do so. It is now said that the salesman was inexperienced and ignorant of accountancy and had not posted the books during the absence of the petitioner. This of course is quite different from the explanation which he gave on the spot, nor is it in accordance with what is stated in the petition dated 17-4-1950. If the petitioner employed inexperienced and unauthorised persons or a person who failed to act under his orders, the liability must be his own.
7. Coming now to the question of selling underweight: It will be remembered that no explanation was given in the first instance, but the explanation given in the petition dated 7-4-1950 is-that the purchaser damanded bottle of liquor and consumed 4 oz. out of it on the spot, thus reducing the contents of the bottle from 20 oz. to 16 oz. It is not suggested that the salesman was justified in serving the purchaser with a portion of the liquor out of a full bottle inside the premises, but-it is said that it was a common practice and was done in good faith. The petitioner asked for an opportunity to prove his case by cross-examining the witnesses. He was then asked as to which witness he wished to cross-examine-and he named the trial purchaser. He was given an opportunity of cross-examining the trial purchaser who then supported the petitioner's case, and went back upon his original statement.
8. It is the case of the opposite parties that the trial purchaser was won over, and it was not possible that he could have consumed any part of the bottle containing country liquor without-smelling of the same and that the inspecting; officer took the precaution of smelling his mouth. The petitioner did not at that stage make any request for cross-examining the Superintendent of Excise although he has later complained that the Superintendent should have been offered for cross-examination. There is nothing in the rules-whereby the Excise Authorities are compelled to offer anyone for cross-examination but the very fact that they offered the trial purchaser for cross-examination shows that they were prepared to-deal with the petitioner fairly. Not having asked that a particular person should be offered for cross-examination, the petitioner cannot be heard later on to complain that he was not offered any opportunity for cross-examination. As it is, it is unusual for administrative officers under such, circumstances to be cross-examined, but I cannot come to the conclusion that such an opportunity would have been refused since it was never asked for.
9. The matter was dealt with by Mr. R. Basu the then Superintendent of Excise, who by his report dated 4-6-1950 states that the charges regarding the non-writing up of the account-books and the employment of an unregistered salesman were proved on contest. In his opinion, the trial purchaser had been bought over and he preferred to believe his original statement and not the contradictory one which he stated upon cross-examination. He accordingly found the petitioner guilty of all the four charges, namely, (1) short measure (2) over charge (3) not writing up accounts and (4) employing an unregistered salesman. He recommended that the license should be cancelled. The matter then went up to the Deputy Commissioner of Jalpaiguri, Mr. R.C Dutt, who approved of the same. On 19-6-1950 the petitioner was intimated that by the order of the Deputy Commissioner, the license of his shop at Wasabari was cancelled.
10. Against this order, the petitioner preferred an appeal to the Commissioner of Excise, West Bengal. In the petition the same facts were mentioned, stress being laid on the fact that the trial purchaser had supported the case of the petitioner upon being cross-examined. One of the points taken was that the Deputy Commissioner acted illegally in approving of the recommendation of the Superintendent of Excise without giving the petitioner an opportunity to be heard and that he had not applied his mind properly to the facts of the case and the order was without jurisdiction. A further point made is that the Deputy Commissioner had not considered the evidence of the trial purchaser and in any event he should have disbelieved the evidence of the trial purchaser altogether since it was conflicting. A point was taken that the Superintendent of Excise did not give any evidence and his report was not admissible in evidence in law. It is not stated in the petition that the petitioner had ever asked for the cross-examination of Mr. Matleb or that it was refused.
11. The Commissioner of Excise heard lawyers on behalf of the appellant and considered the papers on record. Prom his order it appears that he consulted the Superintendent of Excise who caused the trial purchase to be made, and who was then posted at Calcutta, for clarification of certain points. This consultation was not in the presence of the petitioner, nor had he any notice thereof. The Commissioner referred to the fact that no explanation of irregularity was offered at the time of the original inspection and particularly no mention was then made that the trial purchaser had consumed 4 oz. of liquor in the premises. He was of the opinion that it was an after-thought. He remarked not without reason that if the trial purchaser wished to consume any part of the bottle he had purchased in the premises, there was no reason why the vendor should take any part in the process knowing that it might land him in trouble. A man after purchasing a sealed bottle might do with it whatever he likes but it is rather improbable that the salesman would do a thing which was contrary to the rules. He rightly laid stress on the fact that the statement made in the first instance by the trial purchaser supports the report of the Superintendent of Excise who had himself smelt the mouth of the purchaser. He came to the conclusion that the trial purchaser had been won over. The Commissioner was satisfied that the charges against the petitioner had been proved. He remarked that there was no excuse for not writing the account books and engaging a salesman who was unable to perform his duties. He however stated that the employment of the unregistered salesman was more or less a breach of a technical nature and he did not attach much importance to that charge. Finally he referred to the fact that the appellant had been seriously warned for dealing out short measure in 1949-1950, and in the same year he was made to pay a penalty of Rs. 50 for dealing out short weight. He said that in the tea-estate areas of Jalpaiguri in the district of Darjeeling, it was easy to cheat consumers who mostly came from an aboriginal stock to work in the tea gardens and there was widespread malpractice to over-charge and give short measure to these unfortunate people. He therefore declined to interfere with the Deputy Commissioner's order.
12. The point made before me relating to the order is that the Commissioner should not have consulted the Superintendent of Excise in the absence of the petitioner, particularly as the Superintendent was practically in the position of the accuser and the petitioner does not know what prejudicial statements he made before the Commissioner.
13. Prom this order of the Commissioner of Excise an appeal was preferred to the Board of Revenue. Same grounds as before were taken before the Board of Revenue with a few additional grounds, for example, that the notice issued by the Superintendent of Excise was not a sufficient notice for cancellation. The important thing is that no point was made that the Commissioner of Excise should not have consulted the Superintendent of Excise in the absence of the petitioner. The Board of Revenue upheld the finding that the trial purchaser had been gained over. The learned member who heard the appeal was struck by the fact that the explanation regarding the short weight was not given when the Superintendent entered the shop after the trial purchase and took down the statement of the trial purchaser. He refused to take lenient view of the matter and rejected the petition. The petitioner has now come up before this Court for relief.
14. The substantial points upon which the learned Advocate for the petitioner relies are the following:
(1) That the proceedings before the Superintendent of Excise, the Deputy Commissioner, the Commissioner and the Board of Revenue are in the nature of quasi-judicial proceedings.
(2) That inasmuch as the proceedings are quasi-judicial, they have been vitiated by reason of the following facts.
(i) because no opportunity was given to cross-examine Mr. Matleb.
(ii) that the Deputy Commissioner should not have relied on the report of his subordinate officers but should have granted an opportunity to the petitioner to place his case before him.
(iii) that the Commissioner of Excise should not have consulted Mr. Matleb who is really the accuser in this case, behind the back of the petitioner and without giving him an opportunity of meeting anything said by Mr. Matleb.
(iv) that the original notice calling upon the petitioner as to why he should not be penalised was not a sufficient notice for cancellation.
15. As regards the points Nos. 1 and 2 Mr. Sen appearing on behalf of the respondents takes up the position that the proceedings are entirely administrative and not quasi-judicial. He argues that the Deputy Commissioner is entitled to cancel a license if in his opinion it is a fit case for doing so. This is merely an administrative act and in such cases it is usual and permissible that he should rely on the report of his subordinate officers without the elaborate process of putting them up for cross-examination and turning the proceedings into a judicial trial. He further argues that it is not necessary at all under any Act or Rule to hear the other side. But according to the prevailing practice, the other side is given a hearing up to a point. There is no statutory provision for framing any rules under which the Board of Revenue exercises jurisdiction (vide: Board of Revenue Act II[2] of 1913). Such rules as have been framed are entirely departmental and can have no legal bearing. The Board of Revenue has published a report of certain cases decided by it but this is merely to assist the conduct of cases but had not the force of a legal decision. He says that if the proceedings were looked at from this point of view, the conclusion should be that the authorities dealt with the petitioner quite fairly, and in any event their findings were perfectly justified.
16. In my opinion the matter lies in a small compass. If the proceedings are to be considered as judicial or quasi-judicial then it has to be considered whether they were conducted in accordance with those accepted principles in which a judicial proceeding or a quasi-judicial proceeding should be conducted. In such a proceeding, a party must have the amplest opportunity of testing any evidence given against him and must be given an opportunity of being heard at every stage, and no evidence should be taken in his absence. If however the proceedings are purely administrative, this Court can only interfere if a public officer does something which he has no jurisdiction to do or fails to do something which is incumbent upon him to do. The acts of commission or omission must relate to some provision of the law. In other words, if a public officer is not required by any law or by anything which has the force of law to do or to refrain from doing any particular act, then this Court is powerless to direct him to do that act or refrain from doing it. It is not possible for this Court to interfere on grounds of expediency alone. If something is left entirely to the discretion of an administrative officer, this Court cannot interfere unless it is shown that the actual exercise of such discretion has been mala fide or done in bad faith. There is of course no allegation of that description here.
17. Let us therefore investigate as to the nature of the proceedings. It is argued before me that the proceedings must be quasi-judicial inasmuch as they are required by the rules to be conducted in the manner of judicial proceedings. Applications are made by stamped petition, lawyers appear and it is pointed out that before the Board of Revenue the proceedings are conducted exactly as in a Court of law. It is further pointed out that there are several sections in the Excise Act which makes a person liable to imprisonment (S. 46) or a fine (Ss. 54 and 59). It is argued that a proceeding which might end in conviction or a fine in the manner of a judicial proceeding cannot but be called a quasi-judicial proceeding. Reference is made to S. 60 which is as follows:
“Every proceeding under this Act before a Collector or before any officer of such rant as the Provincial Government may by notification prescribe who is exercising the powers of a Collector shall be deemed to be ‘judicial proceedings’ within the meaning of S. 228, Penal Code.”
18. Under Section 61 of the even attempts to commit an offence under the Act are punishable as under the Penal Code.
19. In my opinion, however, it would not be appropriate to come to the general conclusion that proceedings under the Excise Act are quasi-judicial because of any particular section contained therein. It may be that proceedings under a particular section would be proceedings in the nature of quasi-judicial proceedings whereas proceedings under a different section would be purely administrative. Before proceeding further it would be convenient here to notice the relevant provisions of the Act and the Rules. The relevant Act is the Bengal Excise Act, 1909, being Bengal Act V[5] of 1909. Under S. 2, sub-s. (5) a “Collector” has been defined as “the Chief Officer in charge of the revenue administration of a district.” It is not disputed that the Deputy Commissioner of Jalpaiguri answers the definition. It is not also disputed that he is the granting authority. Under S. 42(1) of the Act the authority granting the license may cancel or suspend it for, amongst other reasons the breach by the holder thereof or by any of his servants or by any one acting on his behalf with his express or implied permission, of any of the terms or conditions thereof.
20. The license in this case is in the form known as Bengal Excise and Salt Department Form No. 29 which is also the Bengal Form No. 444. This license contains various terms and further, makes it subject to the general conditions as are specified in Bengal Excise and Salt Department Form No. 1 (General Form No. 420). The preamble of the license specifies that the condition of its remaining in force was that the holder would duly and faithfully perform and abide by the conditions of the license. Condition (iv) is that the licensee must not sell or keep in his possession country spirit of strength below what is specified in the license and that he is not to sell at prices above or below the prescribed price. Condition 3 of the General Conditions provides that no licensee should allow in (any?) person to conduct sales in his licensed premises unless the name of such person should have been previously submitted to the Collector for approval and endorsed by him on the license. Condition 17 requires that regular and accurate accounts should be maintained in the prescribed form and such accounts should be written up as soon as the transaction of each day has been closed. The accounts were to be preserved for one year and produced wherever called upon, for the purpose of inspection by an officer not below the rank of an Inspector. The license also sets out a note that an infraction of any of the special or general conditions would subject the holder of the license to forfeiture of the license and to all or any of the penalties prescribed by the law or rule in force for the time being.
21. Section 8 of the Act lays down the procedure for control, appeal and revision in proceedings under the Act. It lays down that the Collector should in all proceedings under the Act be subject to the control of the Excise Commissioner. It is further laid down that orders passed under this Act or under any rules made thereunder should be appealable in such cases to such authorities and under such procedure as might be prescribed by rules under S. 85(c).
22. Rules have been framed under the Act in pursuance of powers conferred by S. 85. The rules regarding appeals are as follows:
“2. An appeal shall lie to the Collector from any order of any officer subordinate to him and discharging/unctions under the Act or under any rule or order made under the Act.
3. An appeal shall lie to the Excise Commissioner from any original order made by the Collector (but not from any original order by an officer discharging functions of the Collector) and from any order made by the Collector on appeal.
(There is a proviso to this rule which is not relevant.)
4. An appeal shall lie to the tribunal constituted under Section 296(2) of the Government of India Act, 1935, from any order (except orders referred to in S. 35 of the Act) made, whether on appeal or otherwise, by the Excise Commissioner:
“Provided that, when an order made by a Collector, whether on appeal or otherwise, is upheld by the Excise Commissioner, no further appeal shall lie.
5. Every memorandum of appeal must be presented within one month from the date of the order appealed against.
6.(1) Every memorandum of appeal shall be accompanied by the order appealed against, in original, or by an authenticated copy of such order, unless the omission to produce such order or copy is explained to the satisfaction of the appellate authority.
(2) In the case of appeals to the tribunal constituted under Section 296(2) of the Government of India Act, 1935, as provided by R. 4, the memorandum shall be forwarded by the appellant to the Secretary to the tribunal constituted under Section 296(2) of the Government of India Act, 1935, who shall—
(i) proceed to take the orders of the tribunal constituted under Section 296(2) of the Government of India Act, 1935, thereupon, and
(ii) communicate such orders to the appellant as soon as conveniently may be after they have been passed.;’
23. The tribunal prescribed by the Government of India Act, 1935 is the Board of Revenue. It will therefore appear at once that in the present case no appeal lay to the Board of Revenue at all because the findings of the Collector were upheld by the Commissioner of Excise.
24. The order of cancellation of the license in this case is by the “Collector” by which I mean the Deputy Commissioner of Jalpaiguri. According to the rules, an appeal lay from his order to the Excise Commissioner. What is the nature of the order made by the Collector and of the proceeding culminating in that order? In my opinion it is purely administrative. The Collector being the issuing authority can revoke a license for non-compliance with the conditions. There is no rule prescribed for any judicial or quasi-judicial-investigation. There is no provision for any notice to be given to the licensee. The distinction between a quasi-judicial order or an administrative or ministerial order has been discussed exhaustively in the Supreme Court judgment: Province of Bombay v. Khushaldas S. Advani, 86 Cal. L.J 330 : A.I.R 1950 S.C 222. Kania C.J has pointed out as follows:
“A discussion about the distinction between Judicial and quasi-judicial functions is not useful in this case as the point for determination is whether the order in question is a quasi-judicial order or an administrative or ministerial order. In Reg v. Dublin Corporation, (1872) 2 Ir. R. 371 at p. 376 May C.J in dealing with this, point observed as follows:
It is established that the writ of certiorari does not lie to remove an order merely ministerial, such as a warrant, but it lies to remove and adjudicate upon the validity of acts judicial. In this connection the term ‘judicial’ does not necessarily mean acts of a Judge or legal tribunal sitting for the determination of matters of law, but for the purpose of this question a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances, and imposing liability or affecting the rights of others.”
This definition was approved by Frome United Breweries Co. Ltd. v. Bath County Borough Justices, (1926) A.C 586 at p. 602, as the best definition of a judicial act as distinguished from an administrative act.”
25. The learned Chief Justice then proceeds to discuss the cases which lay down the distinction between the nature of the two acts. He has referred to the statement of the law by May C.J that whenever there was a determination of a fact which affected the rights of the parties, that determination was a quasi-judicial determination and, if so, a writ of certiorari lay against the body entrusted with the work of making such decisions. As against this, reference was made to various English cases to the effect that the decision should be a judicial decision and the obligation to act judicially must be found in the Act establishing the body which made the decision.
26. The Chief Justice then proceeds to quote Atkin L.J (as he then was) in The King v. Electricity Commissioners, (1924) 1 K.B 171, where he said as follows:
“Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling Jurisdiction of the King's Bench Division exercised in those writs.”
—a passage cited with approval in numerous subsequent decisions and accepted as laying down the correct test. In R. v. London County Council, (1931) 2 K.B 215 at p. 233 Scrutton L.J observed as follows:
“It is not necessary that it should be a Court in the sense in which this Court is a Court; it is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition; and it is not necessary to be strictly a Court; if it is a tribunal which has to decide rights after hearing evidence and opposition, it is amenable to the writ of certiorari”
27. Slesser L.J in his judgment at p. 243 separated the four conditions laid down by Atkin L.J under which a rule for certiorari may issue. They are wherever any body of persons (1) having legal authority (2) to determine questions affecting rights of subjects and (3) having the duty to act judicially (4) act in excess of their legal authority a writ of certiorari may issue. He examined each of these conditions separately and came to the conclusion that the existence of each was necessary to determine the nature of the act in question. These tests were accepted and applied in the case of The Ryots of Garabandho v. Zamindar of Parlakimedi, by the Judicial Committee 70 Ind. App. 129 (P.C).
28. The question for determination however is as to whether in a particular case the body arriving;at a decision has the duty to act judicially and particularly where one of the parties is also the authority deciding the case. This aspect of the matter has been exhaustively discussed by Das, J. in Advani's case and he has laid down certain principles which are as follows:
“(i) that if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other there is a lis and prima facie, and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and
(ii) that if a statutory authority has power to do any act which will pre-judicially affect the subject then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the Statute to act judicially.”
29. This case obviously falls under category No. (ii). It is therefore necessary to see whether (1) the Collector, (2) the Commissioner of Excise and (3) the Board of Revenue are required by statute to act judicially.
30. As regards the Collector (to be exact, the Deputy Commissioner of Jalpaiguri) I do not find anything either in any Act or in the Rules which lays down that he has to act judicially. The mere fact that the Collector before cancelling the license makes some sort of enquiry, does not render the proceedings in any sense judicial. In such cases the argument is always advanced upon the authority of the observation of May C.J (ibid) that whenever there was a determination of a fact which affected the rights of the parties, the decision was quasi-judicial. But, as I have stated above this observation of May C.J has been explained in subsequent cases, particularly by Atkin and Slesser L, JJ. The decision of the executive generally is a decision of a fact and in most cases affects the rights of some one or the other. “Because” says Kania C.J
“an executive authority has to determine certain objective facts as a preliminary step to the discharge of an executive function, it does not follow that it must determine those facts judicially. When the executive authority has to form an opinion about an objective matter as a preliminary step to the exercise of a certain power conferred on it, the determination of the objective fact and the exercise of the power based thereon are alike matters of an administrative character and are not amenable to the writ of certiorari. Observations from different decisions of the English Courts were relied upon to find out whether a particular determination was quasi-judicial or ministerial. In some cases it was state that you require a proposition and an opposition or that a lis was necessary, or that it was necessary to have a right to examine, cross-examine and re-examine witnesses. As has often been stated, the observations in a case had to be read along with the facts thereof and the emphasis in the cases on these different aspects is Dot necessarily the complete or exhaustive statements of the requirements to make a decision quasi-judicial or otherwise. It seems to me that the true position is that when the law under which the authority is making a decision, itself requires a judicial approach, the decision will be quasi-judicial. Prescribed forms of procedure are not necessary to make an inquiry judicial, provided in coming to the decision the well-recognised principles of approach are required to be followed.”
31. There is nothing in the Acts or the Rules which says that the Collector was to proceed in any particular manner or that he must follow a judicial approach for the purpose of cancellation of a license. He has to come to a decision as to whether the terms of the license have been violated and has a discretion to cancel the license. It is true that in this particular case a notice was given to the licensee to show cause as to why he should not be penalised but there is no provision for any such notice nor are any forms prescribed. It is further true that an opportunity was given to the licensee to cross-examine the trial purchaser, but here again no provision of law requires that the licensee should be given any such opportunity. I therefore hold that the proceeding before the Deputy Commissioner, Jalpaiguri culminating in his order cancelling the license of the petitioner was not quasi-judicial but purely ladministrative.
32. Upon the merits also I might say that very little exception can be taken to the order made. According to the terms of the license, a violation of any of the conditions entailed forfeiture of the license. Admittedly there was a violation of the terms relating to the keeping of accounts and of employing an unauthorised salesman. If the Collector thought in his discretion that the license should be cancelled on these grounds alone, this Court could not interfere. The Deputy Commissioner not having stated any grounds, I cannot come to the conclusion that he was not persuaded to cancel the license on these admitted breaches of the terms of the license.
33. We next come to the appeal before the Excise Commissioner. As I have said, the Act and the rules provide for such an appeal. The rules prescribe as to how the memorandum of appeal should be presented and how the matter should be heard and disposed of. These appeals seem to be conducted with a certain amount of formality. The petitions and memorandum are stamped, lawyers appear and arguments are heard. In fact the Excise Commissioner heard arguments by a lawyer on behalf of the appellant. Because the original order is an administrative one, it does not always follow that the appeal against it may not be quasi-judicial. It will all depend upon the provisions of law in respect of the appeal.
34. In dealing with a similar question Lord Greene M.R said in Robinson v. Minister of Town and Country Planning, (1947) 1 K.B 702 at p. 716:
“A number of authorities were referred to in which, the powers and duties of ministers under statutes dealing in different language with different classes of subject-matter were discussed and observations were made as to their powers and duties when acting in a quasi-judicial capacity. I am basing this judgment on the particular provisions of this statute in their application to this particular subject-matter; and I do not find anything in the decisions cited which either assists or impedes me to such an extent as to make it necessary for me to examine them. As an example of the difference to be found in the subject-matter dealt with in different statutes, I may point out that this case is different from a case where a minister is given the duty of hearing an appeal from an order such as a closing order made by a local authority. This is not the case of an appeal. It is the case of an original order to be made by the Minister as an executive authority who is at liberty to base his opinion on whatever material he thinks fit, whether obtained in the-ordinary course of his executive functions or derived from what is brought out at a public inquiry if there is one. To say that in coming to his decision he is in any sense acting in a quasi-judicial capacity is to misunderstand the nature of the process altogether.”
35. As I have already stated, it is not necessary in a statute to lay down any particular mode of procedure to render a proceeding under it, quasi-judicial. If there is a duty cast to hear the parties and in doing so to have in general a judicial approach, then such acts are quasi-judicial. In my opinion an appeal under the provisions stated above does require a judicial approach and therefore is a quasi-judicial proceeding. Since no particular procedure has been laid down for the conduct of such a proceeding all that is necessary to do is to follow the rules of natural justice. In, this particular case I cannot say that the rules of natural justice have been followed. The Commissioner of Excise consulted the Superintendent who was in the position of an accuser behind the back of the petitioner and without giving him any opportunity of meeting any particular statement that the officer might have made.
36. Mr. Sen has argued that the utmost that the petitioner could claim was to be heard, and since there was no particular procedure prescribed, it is quite sufficient if he was given a hearing. Whatever be the English law on the subject, I confess that it appears revolting to me that a solemn proceeding like an appeal against an order should be heard with all the formalities including memoranda of appeal, lawyers etc., and yet the deciding authority should be at liberty to examine persons who are no more than its own witnesses and witnesses under its complete domination and control behind the back of the appellant, and what is more, base its decision upon statements-made by such persons. If an appeal lay to the Board of Revenue then of course this point disappears in limine because it was not taken before the Board and it is well established that if a citizen has his ordinary remedies and has failed to take them, he cannot be heard to complain. If the decision in this case rested on this point alone, then the order of the Commissioner of Excise might have to be set aside, but on the facts of this particular case it seems to me to be futile to do so. The evidence of the Superintendent of Excise is only relevant on the question of the short weight. The other two accusations are virtually admitted and or abundantly proved. Therefore, even if I set aside the order of the Excise Commissioner (or for the matter of that, the order of the Board of Revenue) and direct a re-hearing of the appeal on the merits, the result would be the same because on the strength of the admitted accusations (or accusations fully proved) viz. about the account books not being kept up-to-date and the employment of an unregistered salesman, the decision or decisions will still be upheld, or is capable of being upheld.
37. It is a well established principle that a writ of certiorari or mandamus should not be issued when they would be useless.
38. It has been argued before me that so far as the employment of the unregistered salesman is concerned, that has been taken as a mere technical offence, and not much weight has been placed upon it. It is further argued that a very good reason has been advanced for not keeping the books up-to-date. Apart from the fact that I am myself not satisfied about the explanations offered, I do not think that these are matters upon which this Court should interfere. These are objective facts which the officers were fully capable of investigating and which they have determined in a manner by no means unsatisfactory. It is impossible to convert this Court into a Court of appeal on such facts.
39. Similarly, even if I were to consider the appeal to the Board of Revenue as competent, the same reasoning would apply and it would be useless to send the matter back or to set aside the order passed by the Board of Revenue. For the reasons stated, the application must fail and should be dismissed. The Rule is accordingly discharged but I make no order as to costs. The interim order is discharged.
A/M.K.S
40. Rule discharged.
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