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Asit Kumar Kar v. State Of West Bengal And Others
Factual and Procedural Background
The All Bengal Excise Licensees' Association filed a writ petition in the Calcutta High Court challenging the State of West Bengal’s policy of issuing additional licences for foreign liquor and country-made spirit. An interim stay restrained the State from granting further licences. During the subsistence of that stay, licences were nevertheless issued, prompting a contempt petition, which the High Court dismissed.
The Association then filed a special leave petition before the Supreme Court. In All Bengal Excise Licensees' Assn. v. Raghabendra Singh (2007) 11 SCC 374, the Court accepted the alleged contemnors’ apology but, in paragraph 40, directed that licences granted through auctions on 20-3-2005, 21-3-2005 and 22-3-2005 be cancelled and business be stopped forthwith. The affected licensees had neither been heard nor impleaded.
The present writ petitions under Article 32 are by those aggrieved licensees seeking recall of the paragraph 40 directions on the ground of violation of natural justice.
Legal Issues Presented
- Whether the Supreme Court can recall its own earlier direction cancelling licences when that direction was issued without hearing the affected parties.
- Whether a petition styled under Article 32 can be treated as a recall petition distinct from review, especially when the grievance is denial of opportunity of hearing.
Arguments of the Parties
Petitioners' Arguments
- The cancellation order in paragraph 40 of the 2007 judgment was passed in breach of the fundamental principle of audi alteram partem; therefore, it is a nullity and liable to be recalled.
- Distinction must be maintained between review (which examines errors on merits) and recall (which addresses orders passed without notice to affected persons).
State/Respondents' Arguments
- Reliance was placed on Rupa Ashok Hurra v. Ashok Hurra (2002) 4 SCC 388 to contend that a petition under Article 32 cannot declare a previous Supreme Court judgment invalid.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| All Bengal Excise Licensees' Assn. v. Raghabendra Singh (2007) 11 SCC 374 | Earlier Supreme Court order cancelling licences issued during contempt proceedings. | The impugned paragraph 40 directions of this judgment were examined and ultimately recalled for breach of natural justice. |
| A.R. Antulay v. R.S. Nayak (1988) 2 SCC 602 | Violation of natural justice renders an act a nullity. | Court cited paragraph 55 to reinforce that orders passed without hearing affected parties are void and can be recalled. |
| Rupa Ashok Hurra v. Ashok Hurra (2002) 4 SCC 388 | Limits of Article 32 to challenge Supreme Court judgments. | Distinguished; Court held the decision does not bar recall of an order passed without affording hearing. |
Court's Reasoning and Analysis
1. The Court reiterated the foundational rule that no adverse order may be passed against a person without giving that person an opportunity to be heard—a principle firmly embedded in natural justice and affirmed by the seven-Judge Bench in A.R. Antulay.
2. It clarified the conceptual distinction between three kinds of petitions:
- Article 32 petitions – enforce fundamental rights but can be invoked to seek recall where an order infringes natural justice.
- Review petitions – lie to correct errors apparent on the face of the record.
- Recall petitions – confined to setting aside orders passed without notice or hearing to affected parties, without touching the merits.
3. Although Rupa Ashok Hurra held that Article 32 cannot be used to declare a Supreme Court judgment invalid, it did not preclude the Court from recalling an order that violates natural justice. The present petitions therefore could be entertained as recall petitions.
4. Since paragraph 40 of the 2007 judgment cancelled licences without hearing or impleading the licence-holders, it suffered from a jurisdictional defect and warranted recall.
Holding and Implications
ORDER: The directions contained in paragraph 40 of All Bengal Excise Licensees' Assn. v. Raghabendra Singh (2007) 11 SCC 374 canceling licences are RECALLED. The writ petitions are DISPOSED OF accordingly.
Implications: The affected licence-holders regain the status quo ante; any person aggrieved by the grant of licences or State policy remains free to pursue appropriate legal remedies. The decision is confined to rectifying a procedural infirmity and sets no new substantive precedent on licensing policy.
Order
1. These writ petitions have been filed under Article 32 of the Constitution of India. It appears that the All Bengal Excise Licensees' Association had filed a writ petition in the High Court of Calcutta challenging the policy of the State of West Bengal of granting additional licences for foreign liquor and country-made spirit. That petition was filed through the General Secretary of the Association. Subsequently, the writ petition was withdrawn.
2. During the pendency of the writ petition, and before it was withdrawn, an interim order had been passed by the High Court staying the grant of licences. A contempt petition was filed before the High Court alleging that licences were granted in violation of the stay order of the High Court, but that contempt petition was dismissed.
3. Against that order dismissing the contempt petition, a special leave petition was filed in this Court which was decided by this Court in All Bengal Excise Licensees' Assn. v. Raghabendra Singh (2007) 11 SCC 374. In that contempt petition, the Supreme Court accepted the apology of the alleged contemnors, but having done so, in para 40 of the judgment it directed cancellation of the licences for the auctions held on 20-3-2005, 21-3-2005 and 22-3-2005 and directed that their businesses shall be stopped forthwith. The aforesaid direction in para 40 of the judgment in All Bengal Excise Licensees' Assn. (2007) 11 SCC 374 was passed without hearing the persons whose licences were ordered to be cancelled. In fact even the impleadment applications of such persons were rejected.
4. It is a basic principle of justice that no adverse orders should be passed against a party without hearing him. This is the fundamental principle of natural justice and it is a basic canon of jurisprudence. In the seven-Judge Constitution Bench of this Court in A.R Antulay v. R.S Nayak (1988) 2 SCC 602 it has been observed in para 55 thereof:
“55. … So also the violation of the principles of natural justice renders the act a nullity.”
5. One of the counsel relied upon another five-Judge Constitution Bench decision in Rupa Ashok Hurra v. Ashok Hurra (2002) 4 SCC 388. It is true that in para 9 of the judgment it has been observed that this Court under Article 32 of the Constitution cannot hold as invalid a judgment of this Court by treating it as a nullity. However, the aforesaid judgment does not say that we cannot pass a recall order when that order has been passed without hearing a party.
6. There is a distinction between a petition under Article 32, a review petition and a recall petition. While in a review petition the Court considers on merits where there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party.
7. We are treating this petition under Article 32 as a recall petition because the order passed in the decision in All Bengal Excise Licensees' Assn. v. Raghabendra Singh (2007) 11 SCC 374 cancelling certain licences was passed without giving an opportunity of hearing to the persons who had been granted licences. In these circumstances, we recall the directions in para 40 of the aforesaid judgment. However, if anybody has a grievance against the grant of licences or in the policy of the State Government, he will be at liberty to challenge it in appropriate proceedings before the appropriate court. The writ petitions are disposed of with these directions.
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