I. Venugopala Reddi vs Amara Venkata Narasimhulu Chetti and Another

Seshachelapati, J.—This is a petition under Article 226 of the Constitution of India for the issue of a writ of Certiorari, or any other appropriate Writ, or order to quash the order made by the second respondent, the Government of Andhra Pradesh in G. O. Ms. No. 1403 dated 12-7-1961. The facts leading upto the filing of this petition are briefly these:

The petitioner is the proprietor of a huller-cum-sheller rice mill in Chennur Village, Bit-II, Gudur Taluk, Nellore District. The 1st respondent, Amara Venkata Narasimhulu Chetti, applied for and obtained a permit from the Government on 27-3-1960 for running a huller rice mill at Chennur. The petitioner objected to the grant of the permit to the 1st respondent, and when he knew that permit was actually granted he filed on 25-4-1960 a petition before the Minister far Agriculture, Government of Andhra Pradesh, to cancel the permit and stay further proceedings. The petition was taken on file by the Minister, and the Collector was directed not to issue the licence. But by the time the stay orders were received by the Collector a licence No. 231 dated 22-4-1960 valid upto 31-3-1961 was given to the 1st respondent. But the Collector intimated to the Government that he was asking the licensee not to work the mill.

The 1st respondent thereupon filed a petition before the Minister on 11-5-1960 pleading inter alia that the allegations made against him by Sri Venugopal Reddi, were incorrect and mala fide and requesting that the Collector may be asked to cancel the orders directing him (respondent No. 1) not to work the mill, and to grant him a renewal of the licence. Similar application was also made to the Commissioner of Civil Supplies. The Government after perusing the relevant reports passed an order on 4-4-1961 to the effect that they saw no reason to interfere with the orders already passed granting the 1st respondent a permit, and the Collector was directed to renew the licence in favour of the 1st respondent for the year 1961-62 after following the prescribed procedure.

The 1st respondent filed an application before the Collector requesting for permission to convert the huller mill with 20 HP motor into a sheller-cum-huller mill with 30 HP. The Tahsildar, who was asked to enquire reported in favour of the 1st respondent. The Collector took a contrary view. The Commissioner of Civil Supplies by an order dated 2-2-1961 held that the paddy production in the locality did not justify the establishment of a new mill and that, therefore, the application of Sri A. V. Narasimhulu Chetti should be rejected. The 1st respondent thereupon filed a petition before the Commissioner of Civil Supplies stating that the order passed by the Commissioner on 2-2-1961 was due to a complete misapprehension and that he was not asking for the installation of a rice mill afresh, but the conversion of a huller mill into a huller-cum-sheller with an electric motor of 30 HP. On that petition the Commissioner of Civil Supplies passed the following order:

The petitioner is informed that he may approach the Government if so advised in the matter

Accordingly, the 1st respondent filed a petition before the Government on 15-3-1961 explaining the circumstances of the case and praying that the order of the Commissioner of Civil Supplies dated 2-2-1961 may be set aside and permission for the conversion asked for by him may be granted. The Government then passed the following order on 12-7-1961:

The orders issued by the Board of Revenue (C. S.) in its reference first read above are set aside.

Under S. 8(3)(d) of the Rice Milling Industry (Regulation) Act, 1958 (Central Act 21 of 1958) the Government grant permission to Sri Amara Venkata Narasimhulu Chetty of Chennur for conversion of this huller rice mill in Chennur-II village, Gudur Taluk, Nellore District, into combined sheller-huller type with electric motor of 30 HP.

It is the legality of the above order that is assailed in this petition.

Before considering the respective contentions, I think it necessary to refer in brief outline the relevant statutory provisions material for the disposal of this case.

In repeal and supersession of all State Laws with respect to Regulation and control of rice milk, the Parliament of India enacted in 1958 an Act called the Rice Milling Industry (Regulation) Act, 1958, (which received the assent the President on 18-5-1958) (which will be hereinafter called the Act). The Act is designed to regulate rice milling industry in the interests of general public in the whole of India, excepting the State of Jammu and Kashmir.

Under S. 5 of the Act, the Central Government, on application, may grant a permit for the establishment of a new rice mill and likewise a permit may be granted to the owner of a defunct rice mill for recommencing the rice milling operations in such a mill. Before granting the permit, according to S. 5(4) the concerned authority should take into account the number of rice mills operating in the locality; the availability of paddy in the locality; the availability of power and water supply etc., whether the rice mill in respect of which a permit is applied for will be of the huller type, sheller type or combined sheller-huller type, and whether the rice mill in question will cause substantial unemployment in the locality, and other particulars as may be prescribed. Section 6 provides that any owner of an existing rice mill or of a rice mill in respect of which a permit has been granted under S. 5 may make an application to the licensing officer for the grant of a licence for carrying on rice milling operation in that rice mill. Section 7 provides for the revocation, suspension and amendment of licences. Section 8 prescribes certain restrictions on the rice mills. It inter alia provides under sub-section (3) cl. (d) that no owner of a rice mill shall after the commencement of this Act, effect any expansion of the rice mill except with the previous permission of the Central Government. Sub-section (3) has a proviso and an explanation, which are not relevant for the present purpose. Section 12 provides that any person aggrieved by a decision of the licensing officer under Sees. 6 and 7, may, within 30 days from the date on which the decision is communicated to him, prefer an appeal to an appellate officer who shall be a person nominated in this behalf by the Central Government. Section 19 confers upon the Central Government the right to direct that the powers exercisable by it under the Act are also exercisable by (a) such officer or authority subordinate to the Central Government, or (b) such State Government or such officer or authority subordinate to a State Government. Under S. 22 the Central Government is empowered to make rules for the carrying out the purposes of the Act. In conformity with the powers under S. 22 of the Act, the Central Government made certain rules which were duly published in the Gazette of India on 22-4-1959.

In exercise of the powers vested in the Central Government under S. 19, an order GSR. No. 512 dated 22-4-1959 was made to the following effect:

GSR. 512: In exercise of the powers conferred by S. 19 of the Rice Milling Industry (Regulation) Act, 1958 (Act XXI of 1958), the Central Government hereby directs that the powers exercisable by it under Sections 4, 5, 8, 9, 10, 12, 15 and 18 of the said Act shall be exercisable also by the Government of a State or the Administrator of a Union Territory as the case may be''''.

Subsequently on 28-4-1960 the Government of India passed the following order:

In exercise of the powers conferred by S. 19 of the Rice Milling Industry (Regulation) Act, 1958 (XXI of 1958), the Central Government hereby directs that the powers exercisable by it in relation to matters specified in clauses (c) and (d) of sub-section (3) of S. 8 of the said Act, shall, with respect to the rice mills, situated in the State of Andhra Pradesh be exercisable also by the State Commissioner of Civil Supplies of that State.

The learned counsel for the petitioner has raised before me two broad contentions : (i) that under the powers delegated by the Central Government the Commissioner of Civil Supplies is the final authority in regard to sanctioning expansion under S. 8 (3) (d), and that no appeal therefrom lies to the Government under S. 12 of the Act; and that being so, the order impugned is one made without jurisdiction; and (ii) that the order was passed without consideration of the various objections raised by the petitioner, and, therefore, had been made in violation of principles of natural justice.

The learned Government Pleader, appearing for the State has contended that the order is not open to any of the objections raised in the petition. The learned Advocate-General who appeared for the, 1st respondent, while adopting the general arguments of the learned Government Pleader, has contended that the order impugned is an administrative order in respect of which a petition for the issue of a Writ of Certiorari is misconceived, and, that in any event, the petitioner has no locus standi to file the present petition.

The petitioner has objected to the grant of permission under S. 5 to the 1st respondent. When he came to know that a permit had been granted he filed a petition before the Minister for Agriculture, for revoking that permission. After consideration of the reports of the Collector and the Board of Revenue, the Government by its order dated 4-4-1961 refused to reconsider its earlier order dated 27-3-1960 granting a permit to the 1st respondent. That question, therefore, has become concluded. It is not the order dated 27-3-1960 or the order dated 4-4-1961 that is called in question in this petition. The order that is impugned in these proceedings is the order made on 12-7-1961, whereunder the Government granted sanction to the 1st respondent for converting his huller rice mill into a combined sheller-huller mill with electric motor of 30 HP.

The first question that arises for consideration is whether the order impugned is one that is liable to removal by a Writ of Certiorari. It is well known that a Writ of Certiorari will be issued only to quash judicial or quasi-judicial orders. In a famous passage in Rex v. Electricity Commissioners, (1924) 1 KB 171 at pp. 204-205 Atkin, L. J. said :

Whenever 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 these writs.

That this represents a correct exposition of the scope of the law as to Writ of Certiorari has been affirmed by their Lordships of the Supreme Court in cases innumerable, and it is unnecessary to refer to them in detail. In Rex v. London County Council; Entertainments protection Association, Ex parte (1931) 2 KB 215 Slesser J., has analysed the passage of Lord Atkin and observed that four conditions must be present : (i) a body of persons having legal authority; (ii) the power to determine questions affecting the rights of subjects; (iii) having the duty to act judicially; and (iv) acting in excess of legal authority. The aforesaid expositions may suggest that it is necessary that there should be two parties to a dispute, and a third party to adjudicate. But that is not necessary. In Province of Bombay Vs. Kusaldas S. Advani and Others, Das J., poined out that "what Some of the writers have called "the triangular situation", was not necessary and that there were many cases where the acts of a statutory authority have been accepted as a quasi-judicial acts, though there were not two opposing parties over whose disputes the authority was to sit in judgment. The essence of the requirement seems to be the obligation of the authority to act judicially. In Rex v. Legislative Committee of the Church Assembly, (1928) 1 KB 411 at p. 415 Lord Hewart C. J., observed thus :

In order that a body may satisfy the required test it is not enough that it should have legal authority to determine questions affecting the rights of subjects; there must be superadded to that characteristic the further characteristic that the "body has the duty to act judicially.

Even in a purely administrative proceeding a judicial element may creep in when the authority has to make up its mind upon the evidence taken in the case as pointed out by Parker, J., in the celebrated case of Rex v. Manchester Legal Aid Committee, 1952-1 All ER 480. But the learned Judge has pointed out that where "an administrative body in arriving at its decision at no stage has before it any form of lis and throughout has to consider the question from the point of view of policy and expediency, it cannot be said that it is under a duty at any stage to act judicially''''. In this case, I find that there is no particular procedure prescribed for granting sanction for the expansion under S. 8(3)(d) of the Act. There is no indication, either in the body of the enactment, or the ancillary rules made thereunder, prescribing a particular procedure for calling for objections, or for taking evidence before passing orders under S. 8(3)(d) of the Act. There is no provision for an appeal or revision against the order made under the aforesaid provision. In those circumstances, it seems to me that in granting a permission under S. 8(3)(d), the concerned authority is under no obligation at any stage to act judicially. I, therefore hold that the objection raised by the learned Advocate-General that the order is purely an administrative or ministerial order and therefore, not liable to removal by a Writ of Certiorari must prevail.

In the view I have taken that the impugned order is not a judicial or a quasi-judicial proceeding liable to removal by a Writ of Certiorari, the two other points raised by Mr. Gangadhara Rao, do not fall to be considered in detail. Inasmuch as they were raised and argued, I shall deal with them briefly.

The first contention of the learned counsel is that the order of the Government is without jurisdiction. It is argued that under the order of lithe Central Government dated 28-4-1960, the Commissioner of Civil Supplies has the exclusive right to pass orders under S. 8(3)(c) and (d), that his orders are not subject to a right of appeal within the meaning of S. 12 of the Act, and that the said order must be deemed to have superseded GSR 512 dated 22-4-1959, where the Central Government conferred upon the State Government its powers under the several sections of the Act including S. 8. It is also suggested that GSR 512 dated 22-4-1959 is not a valid delegation at all, because it has not been delegated in particular to the State of Andhra Pradesh. In my view, this extreme contention is without any force whatever. The learned Advocate-General, however contends that in the latter order there no words of express or implied repeal of the earlier order, and to that extent, it was doubtful whether the second order could at all be operative.

It is argued further by him that even if it were, when concurrent powers are conferred upon two authorities, it is open to the superior authority to revoke the orders of its inferior authority. Support for this view was sought from the decision of a Bench of this Court in Central Co-operative Stores v. State of Madras, 1959 2 Andh WR 332 where the learned Chief Justice held in interpreting the language of S. 57 of the Madras Co-operative Societies Act, that though the section confers upon the Government and the Registrar alike the power to revise the orders, still the language of the section is wide enough to include the power of the Government to revise the orders of the Registrar passed in revision. I do not want to discuss this question further, because even if the order impugned is not one passed within the scope of the jurisdiction of the Government, it cannot be interfered with in a Writ of Certiorari as the order in question is purely a ministerial one.

The next contention of Mr. Gangadhara Rao is that the order in question is opposed to the principles of natural justice. The complaint is that the objections of the petitioner had not been considered. It is true that the petitioner had been objecting to the grant of the permit and licence to the 1st respondent. I may take it that he was also opposed to the grant of the sanction or expansion u/s 8(3) (d). In regard to this contention it will be necessary to consider whether under the provisions of the Act, of the rules made thereunder, the petitioner has a right to object. If he has no such right - and it has not been shown to me that he has - then it seems to me that the complaint that the principles of natural justice have been violated in this case loses much of its force. As pointed out by Hamilton L. J. (Lord Sumner) in his judgment in the Court of Appeal in R v. Local Government Board; Ex parte Arlidge; 1914 1 KB 160 at p. 199 the expression ''natural justice'' is one sadly lacking in precision. When the case went up to the House of Lords, the decision of Hamilton L. J. was affirmed and the well known passage from the speech of Lord Shaw, R. v. Local Government Board; Ex parte Arlidge, 1915 AC 120 at p. 138 is worth citation:

The words ''natural justice'' occur in arguments and sometimes in judicial pronouncements in such cases. When a central administrative board deals with an appeal from a local authority it must do its best to act justly and to reach just ends by just means. If a statute prescribes the means it must employ them. If it is left without express guidance it must still act honestly and by honest means. In regard to these, certain ways and methods of judicial procedure may very likely be imitated; and lawyer-like methods may find especial favour from lawyers. But that the judiciary should presume to impose its own methods on administrative or executive officers is a usurpation, and the assumption that the methods of natural, justice are ex necessitate those of courts of justice is wholly unfounded. This is expressly applicable to steps of procedure or forms of pleading. In so far as the term ''natural justice'' means-that a result or process should be just, it is harmless though it may be a high-sounding expression; in so far as it attempts to reflect the old jus naturale it is a confused and unwarranted transfer into the ethical sphere of a term employed for other distinctions; and, in so far as it is resorted to for other purposes, it is vacuous.

It had been repeatedly held that there were no unalterable or fixed principles of natural justice. As pointed out by Lord Atkin in General Medical Council v. Spackman, 1943-2 All ER 337 at p. 341 "the procedure which may be very just in deciding whether to close a school or an insanitary house is not necessarily right in deciding a charge of infamous conduct against a professional man". In Russell v. Duke of Norfolk, 1949 1 All ER 109-Tucker L. J. said:

There are......no words which, are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with and so forth.

The above view was affirmed by the Supreme Court in New Prakash Transport Co. Ltd. Vs. New Suwarna Transport Co. Ltd., After a review of several English authorities their Lordships of the Supreme Court have held that the rules of natural justice have to be inferred from the nature of the Tribunal, the scope of its enquiry and the statutory rules of procedure laid down by the law for carrying out the objectives of the statute. In Nagendra Nath Bora and Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others, their Lordships affirmed the principle laid down in New Prakash Transport Co. Ltd. Vs. New Suwarna Transport Co. Ltd., . I have already held that the order made under S. 8(3)(d) is not a judicial or a quasi-judicial order. No rule has been brought to my notice which requires that before any order under S. 8(3)(d) is passed, notice should be given to the parties affected and their objections heard and considered before a final order is made. In Kishan Chand Arora Vs. Commissioner of Police, Calcutta, their Lordships of the Supreme Court held:

The compulsion of hearing before passing the order implied in the maxim ''audi alteram partem'', applies only to judicial or quasi-judicial-proceedings : See Express Newspapers (Private) Ltd. and Another Vs. The Union of India (UOI) and Others, I, therefore hold that there is no substance in the contention of the learned counsel for the petitioner that the order is opposed to the principles of natural justice.

The learned Advocate-General contended that, in any case, the petitioner has no locus standi, as he is not a party aggrieved. The learned counsel for the petitioner in refuting this contention has placed very strong reliance upon a decision of Rajagopalan J., in P.K.N. Abdul Mazid Vs. The State of Madras and Others, That was a case which arose under the Madras Rice Mills Licensing Order, 1955. The question there was in regard to the grant of a licence to work a rice mill, and whether a party who had a mill in close proximity and had made representations to the authorities concerned that licence should not be given to the applicant was to be regarded as a person aggrieved, so as to enable him to maintain the writ petition. Rajagopalan, J., held that the grant of licences cannot be said to be purely an administrative order, and that a person who had objected to the grant of the licence was a person aggrieved and could maintain the petition. That decision, to my mind, has no bearing on the present case.

In the first place, Rajagopalan J., was dealing with a licence to work a mill, which the learned Judge thought was not a mere administrative order. Whether the view of the learned Judge is right or wrong, that is not the position in this case, for the order impugned is not one made, either under S. 5, or S. 6 of the Act. In the second place, in holding that an objector was a party aggrieved Rajagopalan J., placed reliance upon the decision of Lord Reading in R. v. Richmond Confirming Authority, 1921-1 KB 248. which is clearly distinguishable from the present case. That was a case that arose out of an order passed by the confirming authority for the grant of a licence for the sale of intoxicating liquors in a restaurant. The question that arose there was whether a person who was carrying on a similar business in the Borough and who had a right to oppose the grant of the licence, and who in fact opposed the grant of it by the employment of counsel, was a person aggrieved at whose instance a Writ of Certiorari could be granted ex debito justitiae. It was held by Reading C. J., with whose opinion Darling and Salter JJ. concurred, that the objector was a party aggrieved, because he had a right to oppose and he did in fact oppose. That is not the case here.

I am, therefore, unable to find anything in the decision of Rajagopalan J., and the authority upon which the learned Judge relied of any real assistance to the points that I have to decide.

The petitioner is no doubt entitled to his fundamental right under Article 19(1)(g) to carry on his trade or business. But so is the 1st respondent. If in conformity with the licensing provisions contained in the Act, the concerned authorities had given the 1st respondent a permit and the licence and also sanctioned the expansion of his mall, it is not open to the petitioner to object merely on the ground that there is a likelihood of his profits in the trade being diminished. He cannot claim an exclusive monopoly to do the rice milling business in the area. There are no merits in this petition. It fails and is accordingly dismissed with costs of respondents 1and 2. Advocate''s fee Rs. 100/-.