Krishnankutty vs State of Travancore Cochin

This Original petn. is filed by the toddy shop contractor of Shop No. 7, Perumanur, Ravipuram (Cochin area) against the Travancore-Coohin State invoking this Ct''s jurisdiction under Article 226 of the Constitution & Section 18, Travancore Cochin High Court Act, the relief asked for in the petn. is that the Ct. should call for the records & quash the (Govt) order D. Dis. 6139/50 R. D. dated 4-10-50 & direst the Board of Revenue to refrain from enforcing the contemplated transfer of location of toddy shop No. 7 & from interfering with the conduct of the petnr''s business at the present site by a writ of certiorari or other appropriate writ. The order sought to be quashed is marked here as Ex. A, & the relevant portion thereof reads thus:

Order L. Dis. No. 6I39/50/R. D. dated 4-10-50. Govt do not find sufficient reason to interfere with the order of the Board of Revenue directing the petnr, to shift the shop from the present site ft conduct it at or about the site on which it was conducted in 1124 or 1125. The petn Is therefore dismissed. The petnr. is, however, grantee three weeks'' time from today to carry out the orders of the Board of Revenue.

The circumstances which lead to this petn can be briefly stated as follows: The petnr. was the highest bidder at the sale held under the authority of Govt, of the privilege of vending toddy in the above shop for the period of 17-8-1950 to 31-3-1951 & the sale was in due course confirmed in his name. He obtained a temporary licence & opened the shop at a site selected by him. Objections were, however, raised to the shop being conducted at that site by the licensee of toddy shop No. 6 by the general public & also by local authorities & institutions. The Board of Revenue. therefore, refused to approve the site selected by the petnr. & wanted the petnr. to shift the shop to the place in which it was held in 1124 or 1125. The petnr. immediately moved the Hon''ble Minister for Excise to rescind this Order & permit him to continus the shop at the site selected by him. The petn. filed in that behalf is dated 16-9-1950 & is marked as Ex. C in this proceeding. The minister permitted the petnr. provisionally to continue to run the shop at the place chosen by him & called for a report from the Revenue Board about the petnr''s. complaint. That report is Ex. VIII here. Ultimately the Hon''ble. Minister declined to interfere with the Revenue Board''s decision that the petnr. should shift his shop from its present site. This was on 4.10.1950 & it is that order which forms the subject of this proceeding. The petnr. filed an appln. to review the order, but that appln. also met with the same fate as the original one. This original petn. was filed immediately after, namely, on 12.11-1950. An interim order prohibiting Govt, from enforcing the order to shift the shop to another Bite was first granted by the Ct. for a limited period & that order was afterwards allowed to remain in force until the disposal of this petn.

The petnr''s. case is that the site selected by him for his shop is within the limits prescribed by the Govt, notfn. under which the sale has been held & that the opposition to his continuance there was all manipulated by the present licensee of shop No. 6 who held the licence for shop No. 7 in previous years and that the objections raised to it are all unfounded & raised purely to spite the pelnr. It would appear that Narayanan, the old licensee did not like the petnr. competing with him at the sale of this shop & it is seen that that Narayanan has been openly moving the authorities to get the pefcnr''s. shop shifted from its present site. Among the grounds urged the one that the shop was with in prohibited distance from his shop No. 6 was given sufficient prominence.

Reference can now conveniently be made to the rules guiding the Iocation of the shops & the Revenue Board''s powers in that matter. These are to be found in cls, 1 & 2 of the Govt, notfn. regarding conditions & rules for the sale of abkari & opium shops published on pp, 435 to 444 of part I of the Travancore Cochin Govt, Gazette dated 2 5-1950 under the caption "General Conditions applicable to all Abkari & Opium Licences," These clauses occur on pp. 437 & 438 & they are practically the same as Clauses 1 & 2 of the rules found on p. 830 of vol. I of the cochin Excise Manual The two Clauses as they occur in the Manual may be quoted here with advantage with the necessary adaptations as are found necessary by changes introduced into them as published in the Gazette dated 2-5 1950.

Shops should as far as practicable be located beyond two furlongs of a market, school, place of public worship, & hospital, factory, public offices, Rly. lines & similar places of public resort. There should be as a rule half a mile between shop & shop in Municipal towns & one mile in rural areas. Toddy shops should wherever practicable be located 40 yards removed from public roads or places.

Subject to the restrictions contained in Clause 1, each shop sanctioned as per schedule for each town or desman may in the first instance be opened anywhere in such town or desman provided that the Revenue Board may in its discretion, refuse to approve of any particular site selected & provided also that no arrack & toddy shop within the distance of half a mile & no opium or ganja shop within a distance of 3 miles of the British frontier shall under any circumstances be removed closer to the frontier than its location in previous years & that no new opium or ganja shop shall be opened within 5 miles of the British frontier. The Revenue Board shall also have the power to order the removal of a shop once licensed or to alter or modify the limits of the location of the shops as originally notified should the necessity for so doing subsequently arise. On the appln. of the licensee transfers, may, in its discretion, be sanctioned by the Board, provided there are good reasons for so doing. Shops, however, shall not, under any ciroumstauces, be transferred from one town or desam to another; but if in the opinion of the Board it is found that transfer is necessary the Revenue Board may at it a discretion, sanction such transfer. When, however, a shop is sanctioned for a particular part of a desam, it shall be located only in such part & cannot be removed to any other part of the desam, nor shall the other shops in the desam be located in this particular part of the desam, or unless otherwise specified'' in the schedule within such proximity to it as would be likely, in the opinion of the Board to prejudice its sales. This restriction also applies to shops in the neighbouring desama. The location of a shop once sanctioned for a village or desam with no fixed site will not be interfered with either because they are not established where certain people want them or because they are affecting the sales of shops of other desam a or village shops also without fixed sites.

The earlier part of Clause 2 no doubt gives the licensee the right to choose the site. At the same time the Revenue Board is given the authority to refuse to approve the site selected by the license, The subsequent portions of the clause also show that the Board has wide powers to direct even a shop once licensed to be shifted from its approved site. We are, however, not concerned in this case with those part of Clause 2 as no licence has been granted with respect to the particular site in question. Practically the argument of Mr. M.K. Nambiar of the Madras Bar who represented the petnr. before me turned round the second half of the first part of Clause 2 which states that the Revenue Board may, in its discretion, refuse to approve any particular site selected by the licensee. It is self-evident that the Board''s refusal to approve the site was under the authority vested in it under this provision. Mr. Nambiar''s argument was how ever two fold. One was that the said clause is void, under Article 13 (2) of the Constitution in that it contravened fundamental rights guaranteed to the citizens of the Union under Article 19 Clause (l) Sub Clause (f) & (g) & that the order passed under the purported authority of that void provision was itself null & void. The other was an alternative contention that assuming the provision conferring authority on the Revenue Board is good, the order is otherwise bad in that the jurisdiction was exercised improperly or irregularly without tona fides. On this latter aspect the attack was more on the conduct & the order of the Revenue Board rather than of Govt.''s order or their conduot. It was even contended that the Revenue Board has not really passed any order disapproving the site & that the Govt, order was therefore bad for that reason also.

Before proceeding to discuss these arguments one or two preliminary points mentioned by the learned Advocate-General who represented the State has to be adverted to. It was first said that the Govt, order sought to be quashed was a pure administrative or executive order & that it was not therefore open to this Ct. to test or examine its validity under Art 226 of the Constitution or Section 18, High Court Act. So far as it is material for our purpose the provisions of Section 18, High Court Act are the same as in Article 226 & it is not therefore necessary to refer to that section independently. The argument that the matter before the Ct. is not justiciable cannot be accepted for the reason that under Article 226 this Ct. has a duly to see that fundamental rights guaranteed by the Constitution are not violated by any law or rule or any action taken hereunder. That this is the correct view will be clear from the decision of the S. C. in Rashid Ahmed v. Municipal Board Kairana AIR I950 S. C. 163 : 1950 S. C. R. 324 ) & that of the Bombay H. C. in Emperor Vs. Jeshingbhai Ishwarlal, . In the case first named referring to the jurisdiction of the S. C. under Article 32 S. R. Das J. who pronounced the judgment of the Ct. said that the powers given to the S. C. under that Article are much wider than those enjoyed by the Chartered H. Cs before the Constitution came into force & are not confined to issuing prerogative writs only. What is true of the S. C. under Article 32 regarding the Union is true of this Ct. under Article 256 so far as this State is concerned. In the latter case a preliminary objection was raised on behalf of the State of Bombay that an administrative order passed by the Dish Mag. under the Bombay Public Security Measures Act cannot be quashed by, or challenged before, the H. C. The F. B. which heard that case overruled the contention & what the learned Chief Justice & Shah J. have said with respect to the point would prove helpful in meeting the preliminary point taken by the Advocate-General before me. In paras. 2, 3 & 4 in his judgment the learned Chief Justice said:

Now, before I consider whether the order is justified, by the provisions of this statute, It is necessary to consider a preliminary point that has been raised. That is a procedural point, & the question that we have to consider is whether this Ct. has the jurisdiction, assuming that the fundamental right of the citizen is affected, to issue any order on the Dist. Mag. calling upon him to forbear from preventing the petnr. from entering the district of Ahmedabad. It is clear, & Mr, Purushottam has not seriously disputed the position that a writ of certiorari cannot be issued against any of the opponents. The very basis of a writ of certiorari is that the order challenged; must be. a judicial or a quasi judicial order & the authority passing the order must be discharging judicial functions. It is only when the Ct. is satisfied that the authority is acting in excess of jurisdiction or is exercising, jurisdiction not vested in it or is refusing to exercise jurisdiction which is vested in it or in the exercise of its jurisdiction it is acting with material irregularity, for instance, violating the rules of natural justice, that the Ct. would issue the prerogative writ of certiorari. In this case the order made by the Diet. Mag. is obviously an administrative order & such an order cannot be corrected by a writ of certiorari. But Mr. Purshottam contend that whatever might have been the position prior to 26-1-1950, & whatever might have been the jurisdiction off this Ct. prior to that historic date, after the passing of the Constitution the jurisdiction of this Ct. has been considerably enlarged, & In order to understand what the extent of the jurisdiction of this Ct. is we have got to look to the provisions of Article 226. Before I look to the provisions of that article, it is necessary to state that the jurisdiction of this Ct. was with regard to writs of certiorari & other writs. This Ct. had the jurisdiction to issue writs of certiorari & prohibition, bat that jurisdiction was restricted territorially to the ordinary original civil jurisdiction of this Ct. The Ct. had also the jurisdiction to issue writs in the nature of mandamus which fall u/s 45, Specific Relief Act but the territorial jurisdiction was similarly restricted. The Ct. had also the jurisdiction to issue writs in the nature of habeas corpus u/s 491, Code of Criminal Procedure & as far as that jurisdiction was concerned the extent of that jurisdiction was the whole Province or State of Bombay.

Now with this background, it is necessary to turn to the provisions of Article 226. In the first place, that Article confers upon this Ct. a very vast territorial jurisdiction, ins respect of writs which it used to issue before & the territoriality of which was restricted to the ordinary original civil jurisdiction of the H. C. Now its jurisdiction has been extended to the whole State of Bombay. Further, its. jurisdiction is not merely confined to the writ which it issued in the past, but power has been conferred upon it to issue directions, orders or writs for the enforcement of any of the rights conferred by Part III which deals with, fundamental rights. It is not possible to read ''directions,, orders or writs'' as being ejusdem generis with what follows, because these "directions, orders or writs" refer to a larger category in which category is included writs in the nature of habeas corpus, mandamus, quo warranto & certiorari. The Article further confers upon this Ct. the power to issue not only writs in the nature of various categories specified in that Article, but those writs them selves & further the Article goes on to state that these writs or orders can be issued not only for the enforcement, of fundamental rights but for any other purpose. It is clear to my mind that "any other purpose'''' was embodied in this Article in order to remove any doubt that the H. C.''s juriadiction to issue these writs was confined merely to the enforcement of fundamental rights because the H. C. could issue a writ otherwise than for the enforcement of fundamental rights & that power of the H. C. is saved & safeguarded by providing in Article 226 that the writs can be issued not only for the purposes of enforcement of fundamental rights but also for any other purpose. It is perhaps interesting & also instructive to compare the power of the S. C. in this respect with the, (SIC) wers conferred upon the H. C. The S. C. being a new Ct just set up under our Constitution, special powers had to be conferred upon that Ct. & therefore Article 32 (2) con fers upon the S. C. the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamnus, prohibition, quo warranto & certiorari for the enforcement of any of the rights conferred by this Part, Therefore, whereas the jurisdiction of the S. C is restricted to the issuing of writs & orders only for the purpose of enforcement of fundamental rights, the jurisdiction of the H. C. is much wider and, as I said before, these orders & writs can be issued for other purposes which purposes were availed of by the H. C. prior to the enactment of the Constitution.

Now, the Advocate-General has contended that so construed the jurisdiction of the H. C. would be very extensive & may be exercised in a manner which may seriously interfere with the administration of the slate. To have jurisdiction in one thing", to exercise jurisdiction is another & I have not the slightest doubt that as in the past when prerogative writs were issued by this Ct. with the utmost care & caution, in future also, notwithstanding the conferment of extensive jurisdiction upon this Ct. the power of this Ct. will not be lightly exercised. On the other hand, 1 see no reason why if in an appropriate case the fundamental rights of a citizen are violated or affected, the Ct. should be reluctant to exercise the jurisdiction which is conferred upon it. Undoubtedly the Ct. will of its own motion put limitations upon its own powers. It has been suggested by the Advocate-General & I agree with him that the Ct. will not exercise its power under Article 226 in a, matter which it cannot deal with judicially nor would ii take notice of anything which it cannot take notice of judicially, nor would it interfere with the action of an executive officer unless it is satisfied that that executive officer is under an obligation to do something or to forbear from doing something. Therefore, if we have the jurisdiction as indeed we have, under Article 226 to issue an order against even an executive officer who has issued an administrative order, in order to safeguard the fundamental rights of the citizen, the next question that we have to consider is whether on the facts of this case any fundamental right of the citizen has been violated or is threatened to be violated.

Shah J. begins the discussion of the question on p, 370 of the report & it is carried on to the next page also. I shall quote only what is absolutely necessary here & that reads as follows:

The appln. as originally filed claimed a writ of certiorari & it was on that footing that rule was granted by this Ct. on 8-2 1950. It was, however, realized early in the course of the argument that a writ of certiorari could not be obtained except for the purpose of calling for the record of a proceeding which was either judicial or quasi-judicial in character & for correcting an error of jurisdiction in that proceeding. Mr. Purusbottam therefore, at the commencement of his case requested us to convert his appln. into one for writ under Article,226 of the Constitution. Mr. Puruahottam contended that be is entitled to ask for a writ other than one of the high prerogative writs which this Ct. was entitled before 26-1-1950, to issue, viz., writs of habeas corpus, writs of mandamus, writs of prohibition, writs of quo warranto & writs of certiorari. We have permitted Mr. Purushottam to make that appln. without a formal amendment, Now it is true that under the terms of Article 226, Constitution of India, it is open to the Ct. to issue to any person or authority including in appropriate cases the Govt, throughout the territory in relation to which the H. C. exercises jurisdiction, writs or orders including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto & certiorari, for the purpose of enforcement of any of the rights conferred by Part III of the Constitution or for any other purpose. Even though prior to 26 1 1950 this Ct.''s jurisdiction to issue high prerogative writs was a limited jurisdiction & was confined to certain specified writs, I agree with my Lord the Chief Justice that the jurisdiction of this Ct. is now not confined to the issue of these writs only or to writs In the nature of those writs but extends to the Issue of other writs which it may be necessary to issue for the purpose of enforcement of the rights conferred by Part III or for other purposes. This Ct. is constituted, under the provisions of Article 226, a custodian of the fundamental which right have been guaranteed to the citizens of the State, & for the purpose of protecting those rights & for enforcement of the obligations arising there from, it is open to this Ct. to issue writs, though they may not be writs which have been recognized heretofore.

In the face of the reasoning & conclusion in the two oases cited above the arguments raised by Mr. Nambiar that, the provision in the Abkari Rules conferring on the Board of Revenue absolute discretion to approve or not to approve a selected site is void, has to be considered on its merits. Hence, the'' High Court, is now competent to teat or examine the validity of an administrative or executive order. No doubt a writ of certiorari may not lie, but, it will be open to the Ct. as suggested in the decisions above quoted to issue necessary directions or orders or other writs & thus afford relief to the petnr. if the point raised can be held to be good in law.

The second preliminary point was that the jural relationship between the petnr. on the one hand & the State on the other was merely contractual & that no appln. for a writ would therefore lie. The authority oiled in that behalf namely pp. 561-563 of Vol. 1 of A. S. Choudry''s High Prerogative Writs itself Bhow3 that judicial opinion is not agreed on that point. It will not, in my opinion, therefore, be safe to rest a decision solely on it. Nor do I feel inclined to dispose of this petn. on the narrow ground that the petnr. if aggrieved has other remedies. No doubt that is a consideration which the Ct. should keep in mind in seeking to exercise its jurisdiction under Article 226 but the decision of the S. C. cited earlier, namely Rashid Ahmed Vs. The Municipal Board, Kairana, shows, that the availability of other remedies creates no legal bar to the Ct. exercising the jurisdiction under Article 226.

To turn to the points raised by the petnrs. learned Counsel it must first be considered whether! the provision conferring authority on the Revenue Board to refuse to approve a site selected by a licensee is void. The publication of the rules on pp. 435 to 444 of I Article I of the Travancore Cochin Govt. Gazette dated 2-5 1950 is made under Govt., rule making powers & those rules have, therefore, statutory force unless Article 13 (2) renders them, void. It was contended that such absolute power conferred on an executive body is an unreasonable restriction imposed on the fundamental rights of the citizen to acquire, hold & dispose of property & to carry on any . .. trade or business as enacted in Article 19, Clause (l) sub-cls. (f) & (g). Clause (5) of Article 19 so far as relevant here states:

Nothing in sub cls. (d), (e) & (f) of Clause 1 shall affect the operation of any existing law (SIC) prevent the Slate from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or.....

& the relevant portion of Clause (6) reads:

Nothing in Sub-clause (g) of Clause (1) shall affect the operation of any existing law In so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public reasonable restrictions on the exercise .of the right conferred by the said sub-clause, and ...

Mr. Nambiar contended that the restriction enacted should not only be reasonable but the law enabling the restriction must also contain the mode of its imposition. Clauses (5) & (6) inter alia authorize the State to impose reasonable restrictions on the exorcise of the fundamental rights mentioned in sub-cls. (d) to (g) of Clause (1). To quote Chagla C.J., from the judgment in Emperor Vs. Jeshingbhai Ishwarlal, .

Interests of general public embraces public security, public order & public morality, & therefore, much wider power was given to the Legislature under sub Clause (5) to restrict the right given under the Constitution under Article 19 (1) sub-cls. (d) & (e).

(That case dealt with fundamental rights mentioned in sub-cls. (d) & (f) & hence Clause (5) alone was relevant there). In testing whether the restriction imposed, namely, an unfettered discretion on the statutory body constitutiong the Administrative Head of the Excise Dept. to approve or not to approve a selected site it cannot be forgotten that the property concerned is the property in an Excise license & the trade Or business is trade or business under that licence. To me it does not appear that much our suasion or argument is needed to hold that the interests of general public demand that there must be a controlling voice to decide where a liquor shop shall be located. It will be an intolerable situation to leave it to a licensee to have the final word on the matter of the selection of a site even though the scope for abuse is limited by the provisions in Clause (1) of the Abkari rule quoted, earlier. It may not be possible for a rule to prescribe all the considerations that should be taken into account in fixing the site for a liquor shop. That the authority concerned may abuse the power conferred or that the withholding of approval may cause hardship in individual cases is not the criterion to decide whether the restriction imposed by the clause is reasonable or not. In Dr. N.B. Khare Vs. The State of Delhi, the Chief Justice of India observed at pp, 213-214 of the report thus:

The question which the Ct. has to consider is whether the restrictions put by the impugned legislation on the exorcise of the right are reasonable or not. The question whether the provisions of the Act provides reasonable safeguards against the abuse of the power given to the executive authority to administer the law is not relevant for the true Interpretation of clause (meaning Article 19, Clause 5).

In the next para, of his judgment bis Lordship the Chief Justice said:

The next question is whether the impugned Act contains reasonable restrictions on the exercise of the right given under Article, 19 (1) (d) or (e). It was argued on behalf of the patnr. that u/s 4 (East Punjab Public Safety Act) the power to make the order of externment was given to the Provisional Govt., or the Dist. Mag., whose satisfaction was final. That decision was not open to review by the Ct. On that ground, it was contended that there was an unreasonable restriction on the exercise of the citizens'' right. In my opinion, this argument is unsound. This is not legislative delegation. The desirability of passing an individual order of externment against a citizen has to be left to an officer. In the Act such a provision cannot be made. The satisfaction of the officer thus does not impose an unreasonable restriction on the exercise of the citizen''s right...

If I understood Mr. Nambiar, the learned Counsel for the petnr , aright no argument that is not met by these quotations was raised during his argument under this head that the restriction was an unreasonable restriction. It was not even suggested that the restriction was not in the interes''s of the general public. Much to the same effect as what is contained in the above quotation from the Chief Justice of India''s judgment in Dr. Khare''s case (AIR (37) 1950 S. C. 211:1950 S. C. R. 519) is to be found in the minority judgment of Shah J. in Emperor Vs. Jeshingbhai Ishwarlal, the learned Judge observed thus:

But the reasonableness is to be the reasonableness of the restriction & not of the manner in which it is imposed. If the restriction which is contemplated to be imposed is per se reasonable, it is immaterial that the Legislature might have provided for more adequate safeguards against the possibility of misuse of the powers conferred, than what it has done. In my judgment the scheme of Article 19 is to provide a balance between the security of the State & the interest of the general public on the one hand, & the fundamental rights guaranteed to the citizens on the other. That article provides for the enunciation of the fundamental rights which would normally be exercised by the citizens but which in the larger interest of the State & the general public may be curtailed or restricted. If the Ct. is satisfied that the restriction is imposed in the interest of the general public & the restriction is not unreasonable, the Ct. has no jurisdiction to enquire whether the manner in which the restriction is likely to be imposed by the Officer charged with the duty of enforcing it may possibly act unreasonably. The possibility of an abuse of a provision enacted in the interest of the security of the State or in the interests of the general public cannot be a ground for holding the provision as void. The remedy lies with the Legislature to remove the lacuna if any which permits that abuse. It is not my judgment within the province of the Ct. to examine a statute & to declare it void on the ground of possibility of abuse of authority vested in a State or a public servant, which might have the effect of curtailing the fundamental right of an individual. As to what safeguards should be incorporated in a statute so as to prevent a possibility of an abuse is a matter within the exclusive competence of the Legislature, & the Ct. is not entitled to declare a statute void merely because it has failed, for reasons of which the Legislature is the best & the only Judge to make provisions which it might have made but has not made. What Mr. Purushottam asks us by refflrence to several hypothetical cases to consider is that the Legislature could not have intended to enable executive authorities after the Constitution came into operation to drive away a person from his hearth & home without any safeguards being imposed against the arbitrary or improper exercise of these restrictions. I am afraid it is not open to this Ct. (apart from an allegation of mala fides) to enter upon the question whether the enforcement or the imposition of restrictions is reasonable or otherwise. Nor is it. open to this Ct. to go into the question whether the law which provides for the imposition of the restrictions is a reasonable one. What the Ct. has to consider is whether, when the Legislature provides for restriction on the (SIC) the restrictions are reasonable having regard to the interests of the general public.

No doubt the above is the minority view. In a sense it answers Mr. Nambiar''s, second point under this head of the argument that the law to be valid must provide as to how the restriction should be imposed or a provision to be heard before the executive authority exercises its power. Even the judgments of the learned Judges who were in the majority would show that this requirement is seldom insisted upon except when personal freedom is touched. The latter part of paras 9 & 10 of the judgment of Ohagla C.J. at p. 368 & the concluding para, of the judgment of Bavdekar J. would bear this out. The part of the Abkaii rule sought to be impugned here is not open to this vice either. When the selection is by the licensee & the approval or disapproval by the Revenue Board is with reference to that selection the process necessarily involves a con. federation of the licensee''s view point.

In these circumstances, regard being had to the character of the property or the nature of the trade or business I cannot hold that the power conferred on the Board is an unreasonable restriction on the exercise of any fundamental right & hence void. If the provision is not void it is not known how a party who entered into the contract with open eyes can be heard to complain that he cannot be bound by the order of the Revenue Board asking him to shift the shop. By his participation at the sale & the "subsequent conduct in executing the kychit he has agreed to be bound by the rales which are of statutory validity.

The second main head of the argument remains to be considered. That point is, assuming that that part of Clause (2) of the Abkari Rule we are concerned here is good law whether the particular order is bad for any reason. In considering this point it has to be borne in mind that it is not competent for me to enter into the merits of the case & decide questions involved as if I am sitting in appeal over the Govt, order. Whether the selection of the site by the petnr. was without offending in any sense Clause 1 of the rule is therefore beside the point. The question can only be whether the decision is intra vires the powers of the authorities concerned & whether it has been rendered in a manner not offending the rules of natural justice. As mentioned earlier the Govt, have only confirmed the Revenue Board''s order to shift the shop. The complaint that the Revenue Board did not pass any order is without any foundation. The whole file was made available to me for perusal by the learned Advocate General & from that it can be seen that when the Advocate engaged by the petnr. appeared before the First Member of the Board the Advocate for the licensee of toddy shop No. 6 was also present & that after hearing both he announced the decision that the petnr, should shift his shop from his present site immediately. That is dear from para 7 of Ex C. the petn. the petnr. filed before the Hon''ble Minister for Excise. The file shows that when the First Member of the Board returned to Trivandrum he made a record of this order & that accordingly in striations were issued to the Asst. Excise Comr.. to take steps to enforce the order. The complaint that the Board passed the order without hearing the petnr. is not even supported by an affidavit of the Advocate who appeared before the First Member & the Revenue Board''s file belies it. The petnr. at first sent a petn. Ex. 1, two days after the period of his temporary licence began to run setting out grounds why he should not be asked to shift. Even if the Board had not heard the petnr''s Advocate its order would nevertheless have been valid. In this context I would refer to two decisions one by the H. C. of Madras & the other by a D. B. of this Ct. in A. S. 815 of 1950. In the Madras case, In re Shanmuga, Mudaliar, (1950) 2 M. L. J. 399: (AIR (38) 1951 Mad. 276) Rajamanner C.J. said:

All that quasi-judicial Tribunals like the Board of Revenue have to do is to give sufficient opportunity to the persons who approach them for the exereise of their jurisdiction to state their case, Local Government Board v. Alridge 1915 A. C.C. 120 : 84 L. J. K. B. 72). This opportunity has been given to the petnr. because presumably he has stated all his grounds of objection to the order of the Revenue Divisional Officer in his revn. petn. He is not entitled as of right to be heard & it cannot be said that the order of the Board passed without hearing him is contrary to the principles of natural justice, We must therefore refuse to issue a writ of certiorari to quash the order.

Earlier the learned Chief Justice had said there is nothing in the Act (Stamp Act) or in the rules framed thereunder which enjoined on the Board the duty to give an oral hearing to a person who invokes their revisional jurisdiction. In A. S. 815 of 1950. Of this Ct. the learned Chief Justice delivering the judgment of the Bench consisting of himself & Subramania Iyer J. said:

In the case of the Govt. normally when an appeal is presented, whether it is by virtue, of a right conferred by a Statute or by a rule of law, it may be disposed of by the Govt. on going through the grounds mentioned therein. There is no obligation imposed upon the Govt. by any Statute or rule to make a Minister or an Officer of State to sit in public & hear arguments before disposing of an appeal presented to the Govt. It is common knowledge that such procedure is not followed nor need it be observed in the absence of a specific provision in any statute or rule which makes it incumbent upon the Govt, to adopt the method of administering justice which is expected to be followed by Cts. of law.

In the case in hand the Board was functioning in a pure administrative capacity & not discharging any judicial or quasi judicial functions.

Several grounds are set out in the present petn as grounds to invalidiate the Govt. order. The first ground is that the Minister passed the order without calling for the file as enjoined by Section 9, Revenue Board Act. Section 9 relates to Govt''s powers of revn. & even a Ct. moved to invoke its provisional jurisdiction can & very often does dismiss revn. peths. without calling for the records. Here however the Minister after hearing the petnr''s Advocate called for a report from the Revenue Board & Ex. 8 is the report the Board made to Govt, about the petnr''s. appln. to the Minister. I cannot therefore find any merit in the point. At the worst it is merely an irregularity & does not touch even the fringes of the question of jurisdiction. The second point taken in the present patn. is that the Govt, passed its order under a misapprehension that the Revenue Board had passed an order to shift the shop. I have shown that that the Revenue Board had really passed an order. Even otherwise Section 9 referred to above authorizes Govt. to pass any order it thick fit on a file pending before or disposed of by the Board. The other poin''s mentioned as grounds to challenge the validity of the order do not deserve any independent consideration nor do I think there is any substance in them. On the whole I cannot find any material on the records that the order is without jurisdiction or that it was passed without due regard to the rules of natural justice. The Revenue Boards order to shift the shop is one which was competent for the Board to make & it was pas3ed after the petnr. was duly heard. Government confirmed it after a review, of all the available materials & reconsidered their own decision before dismissing the review petn, filed before them by the petnr:

I cannot in the circumstances find any merit in the petn. & I dismiss it with costs. Advocate''s fee Rs. 100 The enforcement of the order has been stayed by this Ct. & with the dismissal of the petn. the stay order ceases to be in force. It is however expected, Govt. will give the petnr. sufficient time & also afford him all facilities to find a new habitation for his shop.